07 September 2010

Rape by Deception -- An Update...

It is not always fatal to rush to judgment on a limited set of facts. However, it is important if you rush to judgment that you have the courage and honour to report the rest of the facts surrounding a case when they come to light. There is a sense of moral responsibility with respect to setting the record straight.

This brings me to the case of rape by deception. Israeli law allows a man to be charged and convicted of rape by deception for lying about who he is in order to gain sexual favours.

The law has been used to convict a number of Israelis who lied about their socio-economic status in order to bed a woman. This absurd law really came under the harsh spotlight of international media scrutiny when Sabbar Kashur was convicted to 18 months in jail for the rape by deception of a young Jewish woman.

The international media at the time, as well as many bloggers and other social media commentators, wrote this off as some form of anti-Arab overt racism. However, the case is far more complex and sad than it first appeared. There are very real arguments that race played a part in this sordid affair, but that it may have in fact worked in Kashur's favour rather than against him. There are always two sides to any story, and I mention that the commentary I was making in the original piece was based solely on the exclusive story of Kashur.

The Hebrew press in Israel has recently taken up the other side of the story, in this instance the woman who was raped. You can find that story at Haaretz online it is in Hebrew. You can find a translation of the article and some commentary on it at Mideast Youth blog. The best English account of the growing alternate case, alternate only in the sense of it being the other side of the story, can be found in an excellent piece written by Lisa Goldman.

There is always the temptation when you get something so wrong that it is embarrassing that you take all necessary measures to remove the embarrassment and pretend that it did not happen, and then hope that no-one ever finds out about it. However, the original piece that I wrote on this case will remain where it is. It is, and will continue to be a lesson, on remembering that there is always an alternate story out there waiting to be written. In any event, I stand by my belief that the law is absurd (at least for now).

The other side of this story is that Kashur brutally raped the young Israeli woman and left her bleeding and hysterical in the building in which he forced himself upon her. The reality is that he was charged with that violent sexual assault. The truth is that the prosecution realised that the victim in this case, the young woman and not Kashur, was going to be problematic as a reliable and credible witness if the case went to trial. Her testimony was riddled with inconsistencies and part truths about her life that the defense would have been able to exploit mercilessly.

The young woman has a story, and it is a tragic story. It is, and must be, one that is noted here. The young woman was a victim of incest, she was raped by her father from the age of six. She worked as a prostitute, and at the time of the violent sexual assault perpetrated against her by Kashur, she was living in a woman's shelter. It is not rocket science to understand that this is a young woman with serious emotional and mental issues to deal with. It is also not rocket science to understand that her life story has left her vulnerable to exploitation by others.

It would seem that she placed her trust in a man that had no intention other than to see whether or not he could extract a sexual favour or two. And, when the young woman resisted, he decided that he could take those favours even if she resisted those advances. A man forcing a woman to have sex with him by any definition is rape. No means no; no ifs, no buts and no maybes.

What is most interesting about this case now that more of the facts have come to light is that the prosecution and the defense seemingly reached a plea agreement in proceeding with this case. This is interesting for many reasons.

First, considering the vulnerability of the victim, why did the defense agree to a plea deal for the lesser charge of rape by deception? It would seem that with such a vulnerable witness that the defense could have continued to pick her testimony apart and that there would have been a good chance that Kashur would have escaped punishment for his crime.

Second, and conversely to the first, why would the prosecution and judges consider the plea deal when it would seem that this was in fact a case where a violent rape had occurred where the perpetrator must be punished, and severely for the crime he has committed.

The answer probably lies in the reality. The defense would undoubtedly have been worried that the sympathy for the victim may have overridden the inconsistencies in the victim's testimony and then resulted in a very long custodial sentence. In order to avoid this the defense agrees to plead out to the lesser charge. For the prosecution and the judges, the belief would undoubtedly have been that this is a man who is a violent rapist who must be punished. However, the inconsistencies in the victim's testimony are going to make it very difficult to secure a conviction, so plead out to a lesser charge. It is better that he be punished a little than not at all.

Yet, despite the machinations in this sorry and sad case, the prosecution and judges were not able to avoid being labeled as racist for jailing an Arab for a crime that he claims he did not commit and only pleaded guilty to in order to avoid a long custodial sentence. However, as more details and facts come to light, then perhaps perceptions about who the real victim is in this case can be rectified and the record set straight once and for all.

This is a sad case, but it has been an illuminating and educational one on many levels for me.

Perhaps I will revisit this issue in the future. I feel that there is more that needs to be said, I am just not sure at the moment what it is that needs to be said.


pj said...

This is such an unpleasant story on a lot of levels. Haven't seen anything close to a follow up yet in the Guardian - I suppose the original story was more racy than the correction.
I wonder how many more stories like this are out there in this little world.
Good on you for the follow up.

Rob Baiton said...

@ PJ...

The original story based on the facts available at the time allows for a much greater level of criticism of Israel / Palestinian / Arab relations than does a more thorough examination of what is available to us now.

I still think the whole "rape by deception" set up is fundamentally flawed. This is because men and women lie all the time. I am waiting for some Israeli men to come forward claiming to have had sex with women who said that they were much more than they really were.

But to make this lies a crime in the way that they have been seems, at least, to me to be manifestly excessive.

The sadness of this case though is with the woman, who on a second reading of the facts available to us now. There are good arguments to be made for the idea that she was raped by Kashur, and then raped a second time by a legal system that is not designed to be as victim friendly as it must ultimately be.

Anyways, I could go on and on, but I won't.

VICKYFF said...

Hate people who use malicious deception to do some despicable things hurt others is simply inexcusable

Scarves Scarves

Rob Baiton said...

@ VickyFF...

Thanks for dropping by and leaving a comment. Comments are always appreciated.

I am sure that if people are interested then they can check out your link.