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.

"Rape By Deception"...

You have to give it to the Israeli courts, they will be creative in their jurisprudence if it means protecting some absurd sanctity of Jewishness and purity. If you tell lies and mistruths or you misrepresent something, like who you are for example, you might be guilty of deception. But to say you are someone you are not, or to lead someone to believe you are someone you are not, seemingly gets you in a position where you can be guilty of rape by deception.

In essence, if you embellish your personal story to get laid, then you get laid and the other person finds out that you are not who or what you say you are, then you are guilty of raping that other person because they would not have willingly engaged in sexual relations with you if they had known the truth.

This brings us to the case of Saber Kushour. It is a story I came across as I plough through the news online. I found this story at The Guardian here. The article is based solely on the account of Kushour.

The story is a sad tale because Kushour is a married father of two, and irrespective of the outcome of the case he acknowledges that his stupidity has harmed his family.

Kushour is an Arab Israeli who speaks fluent Hebrew without an Arab accent, and obviously passes for a Jew in some circumstances. Perhaps he now wishes that he did not in hindsight. Kushour has been sentenced to eighteen months in jail for the rape by deception of a Jewish woman.

The sex was consensual at the time and lasted a mere 15 minutes. Kushour's case is on appeal and attracting considerable attention in Israel for the underlying racist nature of the sentence and what this says about justice in Israel, and perhaps what is morally acceptable to Israelis in general.

Why has Kushour been sentenced to prison? This is a crude tale, an adulterous tale, where a single Jewish woman propositions a married Arab Israeli man and then has sex with him on a rooftop. To be fair the Jewish woman does not know that Kushour is married. But, Kushour is married and seemingly figured it was a good idea to avail himself of an opportunity to have a casual sexual encounter that his wife would never find out about. Unfortunately for Kushour, the Jewish woman when she found out that Kushour was really an Arab Israeli and not a Jew she lodged a police complaint claiming that she never would have had sex with him if she had known he was an Arab Israeli and not a Jew.

So, what was the legal reasoning of the judge, Zvi Segal, in this case that would allow a decision like this to be reached:

'Judge Segal conceded that it was not "a classical rape by force". He added: "If she hadn't thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have co-operated. The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price – the sanctity of their bodies and souls."' (from the Guardian).

The problem with this reasoning is that the woman was clearly not thinking about the sanctity of her body or soul when she engaged in the consensual sexual activity. The reality is she picked a man up off the street and then had sex with him on a rooftop. The judge has seemingly gone above an beyond in constructing his decision based on the need to protect the public interest from smooth talking criminals.

It would seem that Kushour's crime is that he suggested to the Jewish woman that he was a bachelor interested in a long-term relationship. In addition to the failure to be explicit in saying to the Jewish woman. "before we have sex you should know that I am an Arab Israeli, are you still interested in proceeding with our sexual encounter?" However, it must be pointed out that the Jewish woman did not ask about Kushour's lineage either.

The judge has then decided that the Jewish woman would not have 'co-operated' if she had known that Kushour was not a bachelor, and presumably she definitely would not have proceeded had she known he was an Arab Israeli. Yet, I would argue that the simple fact that she picked this man up while he was out buying cigarettes and then had sex with him on a nearby roof suggests that she was not all that interested in a period of courtship, marriage, and then sexual relations.

Kushour might be an adulterer but he is not a rapist.

Note:
If I can find what the appeal court decides in this case I will add a postscript to this post. If the appeal court upholds this decision it will be interesting to see if anyone tries to argue and introduce it in other jurisdictions.

"Break Out" -- Micheal Mackinnon & Iain Croucher...

This is something that Dilligaf posted on his Facebook Wall and I discovered it there. The video embedded here is available on YouTube.

The video "Break Out" is a Micheal Mackinnon and Iain Croucher production and is apparently produced on a low budget. The video is encouraging the British electorate to reject the British National Party (BNP). It is part of the "Hope Not Hate - Stop the BNP" campaign.

The BNP's leader, Nick Griffin, has won a seat in the European Parliament which should make for some interesting viewing. The BNP is a far-right political party and there is active debate and argument, often quite heated, about whether the BNP is racist (you can follow the links here).

I found the video interesting and disturbing at the same time. The interesting angle was the idea that Arabs and Jews can work together where there is common ground, in this case survival or a common enemy. However, to be successful in thwarting the far-right agenda the base needs to be so much broader than just Arabs and Jews. It is disturbing because Mackinnon and Croucher felt there was a need to make the video in the first place.

Break Out starts off fairly innocuously, but the injection of the neo-Nazi skinheads into the equation does make for some intense viewing.