If An Arab Tells an Israeli Jewish Woman That He's Jewish and She Therefore Consents to Sex, Is It Rape?

September 15, 2010

An Unusual Legal Case in Israel

By Cathy Young//RCP

An unusual legal case in Israel has become an explosive intersection of gender politics and ethnic/religious tensions in the Middle East. The saga, involving a Palestinian Arab man, a Jewish woman, and either consensual sex or violent rape, illustrates how hard it is to separate facts from ideologies, and how easy to jump to simplistic conclusions.

The story first made headlines in late July when Israeli newspapers reported that the man, Sabar Kashur, had been convicted of rape after a consensual encounter because he had led the woman to believe he was Jewish. Israeli law allows conviction for "rape by deception" if the "person does not tell the truth regarding critical matters to a reasonable woman, and as a result of misrepresentation she has sexual relations with him." Kashur, who had spent nearly two years under house arrest while awaiting trial, was sentenced to 18 months in jail.

Reported around the world, the verdict was roundly denounced as a shocking example of Israeli racism against Arabs. Israeli commentators joined in: Haaretz columnist Gideon Levy charged that Kashur's "chances of being accepted as a human being in Israel are nil" and that the verdict had "the uncomfortable smell of racial purity," with apartheid- or even Nazi-like overtones. In the United States, Atlantic.com blogger Andrew Sullivan invoked "the racial sexual panics of the Jim Crow South." Meanwhile, Kashur made numerous appearances in the Israeli media, receiving sympathetic treatment as a man unduly punished for a minor lapse. He appealed his conviction and was released pending the outcome.

Now, a month and a half after the uproar, a very different story has emerged: Kashur was originally charged with forcible rape after the woman said he had lured her into a stairwell, violently attacked her, and left her half-naked and bleeding. Fearing that the victim's emotional problems and troubled history jeopardized a conviction, prosecutors let Kashur plead guilty to "rape by deception" -- facts they couldn't explain since they had signed the plea agreement accepting the consensual-sex-under-false-pretenses version.

This turnaround is due to the efforts of the Israeli weekly Ha'ir, which sought and obtained a transcript of the woman's previously sealed testimony. A lengthy article giving her side of the story ran in Ha'ir, in Hebrew, on September 3; after a translation was posted on a website, the new revelations found their way into the English-language media.

These revelations paint a sad portrait of the alleged victim. A woman in her late 20s, she says she has endured sexual abuse from her father since age six and into adulthood. She has a history of drug use, prostitution, and psychiatric problems. Her testimony at the trial was often confused and contradictory, with outbursts and bizarre statements (at times, she sounded especially upset about Kashur's supposed theft of her MP4 player). The prosecution decided to seek a plea bargain when the defense obtained detailed information about the woman's 14 prior reports of sexual assault against several men and wanted to question her about the complaints that were found unsubstantiated.

This type of case poses a wrenching dilemma. Just because a woman is mentally or emotionally unstable certainly doesn't mean she cannot be a "real" victim -- if anything, it may make her a preferred target for sexual predators. Allowing defense attorneys to bring up her personal issues may mean re-victimizing the most vulnerable. Yet false claims of rape do exist, often related to mental illness. If the alleged victim's mental state or past history raise valid doubts about the defendant's guilt, to exclude such questions would be grossly unjust.

In the aftermath of the Ha'ir article, some commentators critical of the earlier coverage have treated the new version -- the violent rape -- as fact. However, this is far from proven. Assessing the veracity of the woman's account is hard; despite claims that her injuries were documented at the hospital, the article says only that according to her testimony, the examination found scratches. Unless we accept the pseudo-feminist, sexist notion (argued, for instance, by activist Merav Michaeli in Haaretz) that any woman claiming sexual abuse must be believed and any accused man presumed guilty, the truth will likely remain unknown.

But what of the presumption of guilt against Israel in the initial reaction? There was certainly no shortage of vicious, over-the-top rhetoric, or blanket assumptions -- for instance, that with the roles reversed, an Israeli Jew would never have been convicted of victimizing a Palestinian woman. (Let's leave aside the question of how a Palestinian woman who admitted to a consensual relationship with a Jew would have fared in Hamas-controlled territory.) Undoubtedly, Israel-bashers were all too happy to use this story as a bludgeon.

Unfortunately, serious errors of judgment on the Israeli side also created perfect fodder for the haters. The Israeli media, which trumpeted the story without doing their homework, deserve much of the blame. But a large share of it also rests with the prosecutors: in their zeal to convict, they not only used a bad paternalistic law but applied it in a way that played right into the meme of "Israel as a racist state." Did no one pause to think that even appearing to send an Arab to prison for sex with a consenting Jewish woman was a public relations disaster?

In fact, the widespread sympathy for Kashur in Israel undercuts the notion that Israeli society is drenched in hatred of Arabs. Yet neither this nor the belated disclosure of the complexities of the case is likely to undo the damage. Those in the media who took part in the outcry have a responsibility to correct the record. But the blunders that created this mess could and should have been avoided in the first place.