It is a generally accepted legal principle that when a woman consents to sexual intercourse, she cannot retroactively claim that act to be one of rape. There appears, however, to be one country that defies this Western norm–Israel.
In a recent court ruling, Judge Tzvi Segal stated that Sabbar Kashur, a 30 year old Arab Israeli, had committed “rape by deceit” when he slept with an Israeli woman who believed Kashur was, in fact, Jewish.
Under Israeli law, a person may be charged with rape by deceit if he “does not tell the truth regarding critical matters to a reasonable women, and as a result of misrepresentation she has sexual relations with him.” According to Segal, Kashur was in clear violation of this law. "If she hadn't thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated,” noted Segal.
In other words, since Kashur misled the woman as to his true ethnicity, she could claim their otherwise consensual sexual encounter to be a rape.
While this is the not first case where the law has been invoked, it is the first time that ethnicity has been used as the main determinant on which such a case is decided. Subsequently, both the law and the judicial decision have come under fierce attack. Some, like Merav Mor of Israel’s Rape Crisis Center, believe the Israeli woman to be fully with her legal rights. Others—both within Israel and abroad—have been quite critical of the decision.
Elkana Laist, an Israeli public defender, says that the ruling sets a dangerous precedent. It opens “the door to a rape conviction every time a person lies regarding details of his identity,” be it his religion, socio-economic status, or even age.
And while there is certainly reason to take issue with the letter of the law, much of the controversy has centered on its application, which critics claim points to a larger issue—persistent discrimination of Israeli Arabs within the state of Israel.
Ha’aretz columnist Gideon Levy phrased it as such, “What if this guy had been a Jew who pretended to be a Muslim and had sex with a Muslim woman? Would he have been convicted of rape? The answer is: of course not.”
Many critics who share Levy’s sentiment believe Israel, the only country in the West to have a formally instituted rape by deceit law, drafted the legislation in order to legalize an otherwise clear act of discrimination. Arab Israelis, a group often shunned both by Arabs and Israelis, tread a fine line in contemporary Israeli society. Their allegiances are constantly called into question, and their motivations are subject to suspicion.
Kashur’s sentence– 18 months in prison– indicates that Israeli suspicion is quite high. While Kashur has vowed to appeal the verdict, his chances of success are minimal. In a country where marriage between a Jew and a Muslim is illegal, it is hard to imagine sexual intercourse between the two will be deemed judicially acceptable.
-Yaffa Fredrick
photo by darrenjsylvester via Flickr
Further reading:
-For more reactions to the case in Israel and the Arab world, read Global Voices’ blog post
-For reactions from young adults in the Middle East, read MidEastYouth’s blog post