Sex, Lies… and Race?

Human-rights activists, Arab advocates and feminists split over cases of rape by deception.

By JUDITH SUDILOVSKY
Cartoon (photo credit: Avo Katz)
Cartoon
(photo credit: Avo Katz)
A MARRIED MAN POSES AS a single pilot and has ostensibly consensual sex with several women whom he met through a dating site. The women, all Jewish, subsequently discover that the man is not Jewish, as he had claimed, but Bedouin. Not one of the women complains of any form of violence yet, in mid- January 2010, at least three women file a complaint against the man. The state charges him with “rape by deception.”
Was this rape? Did the court recognize and uphold a woman’s right to say no whenever – and to whomever – she chooses? Or is this a case of racism against Arabs, legitimized by the Israeli justice system? As jurists, lawmakers, feminists and women’s rights advocates throughout the world attempt to redefine what constitutes rape in modern reality, Israel’s own debate on the matter has been colored by conflicting arguments regarding the limits of women’s rights, religious discrimination and racism.
The recent case follows an earlier incident in the summer of 2010, when Sabbar Kashur, a Palestinian resident of Jerusalem, was convicted of rape by deception and sentenced to 18 months in jail, after a Jewish woman filed a rape complaint and it became known that Kashur had misrepresented himself as a Jew. A media frenzy ensued in both Israel and abroad, charging that Kashur, who claimed that the sex had been consensual, was a victim of racism. But when a gag order on the case was lifted, it became clear that Kashur had not merely lied about his identity – he had violently attacked and raped the woman, leaving her bloodied and half naked in a stairwell. Kashur was given a reduced sentence in a plea bargain only because the victim – who has a traumatized past of rape and sexual abuse by her father and has previously accused others of rape – was unable to testify, even in closed chambers as Israeli law allows.
But few of the media outlets updated the report or printed any correction to their accusations.
The connection between “rape by deception” and Israeli racism had been made. Coming on the heels of racially tinged initiatives – including the creation of a hotline for women involved with Arab men launched by the Tel Aviv Municipality with funding from two government ministries and a special task force in Petah Tikvah aimed at breaking up mixed couples, also funded by the municipality – some view the more recent case as yet another brick in Israel’s ostensibly growing racist policies. And the fact that the case combines sex and race makes it even more sensationally titillating.
IN THE MORE RECENT CASE, involving the misrepresentation on the dating site, the Bedouin man – a 43- year-old Israel Air Force reserves officer from the north – is being charged with rape by deception, based on a 2008 ruling by High Court Justice Elyakim Rubinstein that a rape conviction should pertain in any situation where a person does not tell the truth about characteristics that are critical to a “reasonable woman,” and in light of that misrepresentation, the woman had sexual relations with the man.
Setting legal precedent at the time, Rubinstein convicted Zvi Sleiman of rape because he had impersonated a high-ranking official in the Ministry of Housing and promised women free apartments and higher welfare payments in exchange for sex. Prior to Rubinstein’s decision, men who lied in order to obtain sex were convicted of fraud.
In the more recent case, the Bedouin’s public defender has led a counter-charge in the media, noting that one of the women, who is 59, lied about her age in her dating profile and so is also guilty of fraud.
Supporting the concept of rape by deception, Miriam Schler, executive director of the Sexual Assault Crisis Center in Tel Aviv, tells The Jerusalem Report, “The whole definition of rape is changing…If I thought I was agreeing to ‘A’ and it actually turned out to be ‘B,’ then I was not fully agreeing…” In contrast to prevalent stereotypes, Schler adds, “Most cases of sexual assault or rape are not violent. Rape is more about psychological manipulation and most cases are based on relations of power, exploitation, and authority.”
Avi Dawidowicz, a lecturer in criminology at Bar-Ilan University, a retired police commander and vice chief of the National Unit for Organized Crime, also notes the legal concept of rape and the laws involving rape in Western countries have evolved to include not only the element of force but also issues of agreement and choice and the statute of limitations for charges to be filed.
“[This case] is more serious than a classic case of fraud,” he tells The Jerusalem Report. “Here sex is the central issue. Rape can be without violence.”
Many times, due to fear, shock and panic, a rape victim may not be able to say no, but that does not signify that she agreed to the sexual act, Dawidowicz continues. “Today a woman doesn’t have to say ‘no;’ she has to say ‘yes.’ Today you have to prove that the woman wanted [to have sex]. This is a real revolution in the way of thinking about rape.”
Inbar Yehezkeli, legal advisor of the Association of Rape Crisis Centers in Israel, notes that Israeli rape law does not include any mention of the necessity of the use of violence in order for there to be an act of rape. “It is a matter of sex without consent,” Yehezkeli says. Yet, despite the overtly prowoman stance of Israeli legislation, she says, less than 20 percent of the women who turn to rape crisis centers ultimately file a report with the police, and of those, less than 40 percent of the cases are indicted.
Dawidowicz notes that in Israel, as in the United States, an estimated 70 percent of rapes go unreported.
THE CONCEPT OF RAPE BY deception is not a new concept and finds precedent in British law and legal rulings. As far back as 1888, a British judge ruled that in order to establish rape by fraud, the deception must be with regard to the type of act committed (a doctor who pretends to be carrying out a gynecological exam while instead actually performing an act of sexual gratification for himself, for example); the nature of the act or the identity of the person who performed the act as he pretends to be someone other than who he is.
Several cases of rape by deception have also come to court internationally. One is pending in Scotland against a woman who posed as a man and had sex with two unsuspecting women. In another case, in Idaho in the US, a woman was tricked by her boyfriend and friend into having sex with his friend; both men were found innocent because the state law contains provisions of rape by deception only for married men.
Two years ago, in a similar case in Massachusetts, a man who posed as his twin brother in order to have sex with his sleeping girlfriend was found innocent because the act did not involve force. Both state legislatures are now in the process of trying to amend their laws to allow for such cases.
Feminist law professor Orit Kamir, a lecturer at the Shimon Peres Academic Center who authored Israel’s groundbreaking legislation against sexual harassment and stalking, calls the law used to prosecute the Bedouin man “anachronistic and shocking.”
Such legislation is, she contends, based on an old English law meant to protect women from men who snuck into their beds pretending to be their husbands, she says.
“The use of this law in this instance has no justification,” Kamir tells The Report.
“The fact that someone says he is a pilot or single or not is not relevant to [the woman’s] decision to sleep with him. Women decide to sleep with someone based on whether they are attracted to him or not.”
The man’s behavior could, at its most serious, be considered fraud, in which case the woman would be entitled to monetary compensation.
“Rape is a very serious crime and…this is not rape even though the law allows it [to be defined as such],” Kamir continues.
“This is someone trying to get something from someone else based on misleading information. It is not right to call it rape, though it is an injustice. Real rape is when someone comes into someone’s body against their will. When someone does not know the age or nationality [of whom they are sleeping with consensually], it is not rape.”
Similarly, in a written response to questions from The Jerusalem Report, Assiwar – the Arab Feminist Movement in Support of Victims of Sexual Abuse notes, “The instance of fraud is indeed a crime and the perpetrator must be punished. But it is fraud and not rape. After all, this is not a case of forced sexual intercourse with an exploitation of position or use of force.”
It is clear, says clinical psychologist and head of Tel Hai College’s gender studies department Dr. Avigail Moor, that the concept of rape by deception still has no clear definitions and further discussion is needed to refine the terminology.
“If consent is a deciding factor [in rape] then maybe [rape by deception] is a form of rape,” says Moor. “Consent implies having all the information and consent can’t be considered consent if that is misrepresented. If you sign a consent form [in a hospital] and it is misrepresented, that is considered criminal.”
However, at the same time she suggests that, given the difficulty the public has in accepting anything other than violent rape by a stranger, giving the act a different legal determination such as “sex by deception” might make the concept easier to understand.
“It is on the same continuum [as rape] but I would like it to be termed differently, so the distinction can be made more clearly.”
“People lie to get sex all the time, which is why people have a hard time recognizing date rape or rape by deception as rape,” Moor adds, noting that “despicable” as it is, this is common practice in all Western patriarchal societies. “It is a lack of respect of a woman’s will… a total ignoring of the person.
It treats the woman as a sexual object and you have the right to get her sex one way or another.”
But if lying for sex can be considered fraud, what are the limits of fraud? If lying about nationality is an offense – is lying about income? About marital status? About profession? About age? Will some women abuse the law? Schler maintains that there have not been enough cases in which the law has been applied to make any broad statements or allencompassing conclusions about racism or exploitation of the law, she adds. “This is one case, one Arab man. There are very few [such cases] actually filed, so few women filing, that I don’t see that happening,” she says. She adds, “We are trying to…increase the honor and respect people have for women. We are challenging norms which are deeply ingrained in society. Men of privilege in any system don’t want to give it up.
Now they have to watch their step,” she says. “In essence, anyone who acts like a decent human being doesn’t have to worry about what we are doing.”
Schler is confident that common sense will prevail. The rape by deception ruling is not new, she notes, and fears that women will begin indiscriminately filing rape reports against men who misrepresent themselves are largely ill-founded. “Law enforcement officials will not start prosecuting people indiscriminately and will use common sense to determine what constitutes rape,” she insists.
IN A H I G H LY S O C I A L LY - fragmented society such as Israel’s, with growing animosity between different social, ethnic and religious groups, can “fraud” be separated from issues of racism and prejudice? “This is about a woman’s right to choose whomever she wants to have sexual relations with, whether we like her choices or not,” says Dawidowicz. “We are talking about the letter of the law, not about ethics and morals…This was a case of a criminal who uses fraud in order to exploit [women]. The fact that he is now trying to put himself into the shoes of a victim of racism makes him more evil as he deepens his lies and deception.”
Aida Touma-Suleiman, general director of Women Against Violence disagrees. Though clearly there is “no doubt” in her mind that a woman has the right to choose with whom she has sex and that withholding or misrepresenting information in order to have sex is actually rape, Touma-Suleiman says she is not sure that the recent charges against the Bedouin man were not based on racism.
“I don’t see many women trying to get men to court because they lied about their profession or because they own a yacht or a villa.
The only two cases raised in court [since the 2008 precedent] were connected to the nationality and identity of the man,” she notes – and in both cases, the man is a non-Jew.
And, in their written statement, while emphasizing the issue of fraud, Assiwar also writes, “This case begs the question of whether the judge would deal with a case where a Mizrahi man changes his name to an Ashkenazi name and has sexual relations with an Ashkenazi woman as a case of rape. There is no doubt that in this case the charge of rape against the man is a result of his nationality and not because of the actual act. We at Assiwar emphasize that the act of fraud deserves a punishment but not as a case of sexual violence.
The judge’s decision was mistaken and unjust.”
But Dorit Abramovitch, a coordinator of campaigns for women’s organizations, says that she is disturbed by the tenor and direction of the debate. “First of all, we must say, when a woman says she was raped – she was.
We must believe her. But society doesn’t want to deal with the worldwide epidemic of violence against women, so we divert our attention to other issues – fraud, deception, racism, whatever. And no matter how racist we accuse Israeli society of being, the fact is that an Arab male rapist received more public sympathy that a Jewish woman victim.”
Furthermore, she argues, instead of focusing on the lie, attention should be focused on the motivation. “Men often argue that complaints about sexual harassment make it difficult to pay a compliment to a women.
That’s nonsense. A woman knows if she’s being complimented or harassed, because she understands the man’s motivation. An intimate relationship should be good for both parties – and sometimes people lie to protect themselves, because hierarchical societies make people feel inferior about themselves for all sorts of reasons, including race, how they earn a living, how much money they make, how old they are.”
The question, Abramovitch continues, should not focus on the deception, but rather on the motivation for the deception. “If a man lies to satisfy his own needs – that is violence because he is treating the woman as an object who is there merely to meet his needs. If the relationship is based on trust and intimacy, then the small lies we tell to protect our own fragile sense of self don’t matter.”