|
|
In 2008, a Palestinian called Saber Kushour, who worked in East Jerusalem as a delivery man, met a Jewish woman. The chemistry between them worked and they slipped away to the rooftop of a nearby apartment building and had sex. Kushour left. Some weeks later the woman brought a charge of rape against him. Kushour had introduced himself to the woman as Dudu, a common Israeli nickname which he used despite not being Jewish. He had also claimed to be a bachelor when, in fact, he was married. The woman charged that she had been conned into sex with a married Palestinian.
Kushour was imprisoned briefly, then electronically tagged and kept under house arrest for two years till the case came to trial this month. When it did, a three-judge bench found Kushour guilty of rape by deception and sentenced him to 18 months in jail. Admitting that the case didn’t fit the usual definition of rape, that is, forced sexual intercourse, the judge, Zvi Segal, ruled that if the woman “…hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have co-operated”.
This judgment seems derived from two sorts of contexts. The obvious one is the racial polarization in Israel and the discrimination that Palestinian Arabs face both randomly and institutionally in a Jewish State. The other context is more unusual: Kushour’s conviction was also made possible by a form of political correctness.
The three judges who sentenced Dudu weren’t making up the law as they went along; Israel has a law that explicitly criminalizes deceit in sexual intercourse and classifies it as rape. A man who has sex with a woman with her consent but where the consent is elicited with deceit about the essence of the perpetrator is, according to paragraph 345(a)(2) of Israel’s criminal code, a rapist.
The interesting thing about this law is that it wasn’t designed to protect Jewish women from Arab “predators”. Segal’s “smooth-tongued criminals” who gull women to violate the “sanctity of their bodies and souls” don’t have to be Arab. In 2008, the Israeli High Court of Justice convicted Zvi Sliman of rape because he had pretended to be a housing ministry official to persuade women looking for home loans to have sex with him. Sliman is a Jew and he got 10 years in jail as against Kushour’s 18 months.
The spokespersons who have been arguing for the justice of the verdict haven’t been the usual right-wing Likudists or rabid Meir Kahane-style demagogues; they have been articulate activist women who run organizations intended to protect women.
Merav Mor, a spokesperson for the Rape Crisis Centre which runs a string of offices in Jewish and Arab areas of Israel, said that to classify Kushour and the Jewish woman’s encounter as consensual sex was wrong, because any deceit used by a man to elicit sex undermined the basis for consent, and converted sex into rape. The Rape Crisis Centres, said Merav, made no judgment about the merits of a woman’s sense of injury. They believed that it was for the woman to determine the kinds of lies that they found significant and for the courts to rule on their complaints.
Dana Pugach of the Noga Centre for Victims of Crime told a newspaper that “[w]e all have different characteristics, and it is a person’s right to have sexual relations with a person knowing the facts about those characteristics”. And she insisted that the characteristics in question in this case weren’t racial. “The court emphasized,” according to her, “the fact that he claimed to be single while he was married, which would be relevant in the context of a romantic relationship.”
What we have here is a radical feminist definition of consent and violation and consequently of rape that has been enshrined in law. So it is for the woman to decide which lies matter in the mating game. Dyed hair, for example, is unlikely to be criminalized, said Pugach, because women don’t see it as a ‘real’ lie, just a cosmetic adjustment. It isn’t difficult to see that the thinking behind the law is well-intentioned: women are more likely to be chatted up and abandoned, more likely to suffer the consequences of deceitful casual sex, and so their sensibilities need to be factored into a fiercely deterrent law.
But the road to hell is paved with good intentions. It is a given that any law that allows subjectivity free rein will, over time, come to reflect an oppressive, majoritarian common sense because for a law to come into effect, charges have to be brought, cases registered and judges persuaded. Take Dana Pugach’s insistence that Kushour’s critical lie, the one that swung the jail sentence, was not that he concealed his Arabness but that he lied about being unmarried. If this were true in a general way, dozens of Jewish men would be looking at long jail sentences unless we’re to believe that married Jewish men don’t pass as bachelors to get sex. The reason they aren’t sentenced to jail is because Jewish women are unlikely to charge them in court for lying their way into their beds.
In a social world that isn’t polarized by race or religion or caste, the fact that men (and women) lie for sex by pretending to be rich, famous, well-connected and so on when they’re not, is accepted as one of the hazards involved in looking for sex or love. It’s when the lie is reinforced by prejudice that matters end up in court. And when public ‘common sense’ is made the yardstick for judging the gravity of a crime, the potential for prejudice lurks under the guise of gendered social concern.
For example, when the Jewish woman brought charges against Kushour, she declared that she had been forced into sex, assaulted. When evidence demonstrated that this was not the case, that sex had been consensual when it happened, instead of dismissing the case and penalizing the woman for lying, the court went out of its way to reframe the charge so that it became rape by deception.
While delivering his judgment in the landmark case of 2008 which sent Zvi Sliman down for 10 years, the supreme court judge, Elyakim Rubinstein, laid down the standard for judging if a sexual act was rape by deception: it would be rape, she said, “…if in the view of an ordinary person this woman would have agreed to have sexual relations with a man who did not have the identity he invented”.
This is a classic case of well-meaning, socially concerned judges making awful law. Who is this “ordinary person” whose views become a kind of gold standard for determining prison sentences? Gideon Levy spells out the lopsidedness of such reasoning in Haaretz:
“Now the respected judges have to be asked: if the man was really Dudu posing as Sabbar, a Jew pretending to be an Arab so he could sleep with an Arab woman, would he then be convicted of rape? And do the eminent judges understand the social and racist meaning of their florid verdict? Don’t they realize that their verdict has the uncomfortable smell of racial purity, of ‘don’t touch our daughters’? That it expresses the yearning of the extensive segments of society that would like to ban sexual relations between Arabs and Jews?”
If paragraph 345(a)(2) were a part of the Indian Penal Code and if India were a Hindu State in the same way as Israel is a Jewish State, it isn’t hard to see a Dalit convicted of rape by deceit if his dupe was a Brahmin woman and no possibility at all of a case being brought if the roles were reversed.
If there’s an Indian moral to this Israeli story, it is this: in heterogenous societies, any attempt to legislate personal relations and private belief, regardless of intention, will always end in the stigmatization of those who fall outside the ambit of a majoritarian common sense. Israel would be a better place if the judgment as to whether Kushour was a predatory, deceiving swine or the woman a slut with buyer’s remorse was left to the tabloids. That Dana Pugach and Merav Mor can defend the verdict with no self-consciousness about its racial implications tells us something about the kind of country Israel has in fact become.
