Rape can be one of the thorniest crimes to prosecute because in certain circumstances, it’s plainly difficult to prove. Most obvious are situations of date rape, of his word against hers, of whether consent was given, whether the victim and attacker were acquainted, whether objection was voiced, whether there was resistance, etc.

Charges of rape are frequently compounded by issues such as the veracity of the accuser, whether the victim had reached the age of consent, whether force was used, whether coercion or abuse of authority were involved or whether the victim was in an incapacitated state (induced by drugs or alcohol).

But sometimes rape cases present themselves most unambiguously, conforming even to the ultra-conservative strictures that predated the feminist movement’s campaigns to reform inadequate codes (which allowed certain types of rape to pass under law-enforcement radars).

One such case occurred in the vicinity of Tel Aviv’s new central bus station on Independence Day. Two school kids were walking home from a club on Shivat Zion Street. They were accosted by three Eritrean illegals, who asked them for a lighter. Having received the lighter, the men – aged 18, 19 and 24 – kept badgering the youngsters. Eventually they robbed them. One of the attackers pinned the boy to the ground and the other two began beating and raping the 15-year-old girl.

She yelled, opposed them and struggled hard.

Although semen belonging to the two was found on her genitalia, they were not indicted for rape. Why? Because due to this child’s valiant fight, they didn’t quite manage a penetration. As the prosecution crudely put, the victim “kept her legs closed.”

The upshot is that only charges of attempted rape were filed. In practical terms it may mean little because the law allows judges enough leeway to impose harsh sentences for the lesser crime as well.

But a principle is involved here. If a case as blatant and as brutal as this – where a ruthless sexual assault was perpetrated upon a juvenile, who suffered violence (as did her friend) from several total strangers, acting in concert on a city street – doesn’t merit being called rape owing to a technicality, then ordinary folks’ common sense is critically assaulted. Moreover, the cause of protecting innocents from sexual predators of all kinds is dealt a regressive blow.

We all know that law and what is commonly perceived as justice are hardly one and the same. There is the dry letter of the law as formulated by legislators and interpreted by the judiciary. In contrast, “commonsense justice” reflects what ordinary folks regard as fair.

In terms of commonsense notions, the 15-year-old was cruelly raped. The fact that she succeeded in not allowing the two attackers to fully complete the act should by no means detract from the gravity of what they actually did do and it shouldn’t make an iota of a difference.

If her courage is allowed to lessen their charges, then the wrongest of messages is sent to all rape victims.

Why should they suffer the grilling and courtroom humiliation of replaying the grisly events if the crime was downgraded? Victims are placed in an impossible situation. Lack of resistance can lead to a misrepresentation of the victim’s behavior. However, successful resistance works in the assailants’ favor.

This shouldn’t be so. Legalistic nitpicking notwithstanding, this girl underwent a terrible trauma – even if she managed to avoid greater harm to herself. The severity of anxieties, phobias, post-traumatic stress disorders that victims experience isn’t delineated by formalistic and rigid bureaucratic definitions.

Sometimes too inflexible a reading of the law results in a miscarriage of justice.

We wonder where women’s organizations are in this instance. Why has no outcry been sounded? We hope this doesn’t arise from political correctness, given the fact that the assailants are African, or from the fact that no headline-generating celebrity was implicated.

If the fault is in the wording of the law, then changes ought to be seriously considered. Legal phraseology isn’t sacrosanct and revisions, especially in cases of such utterly incontrovertible viciousness, shouldn’t be out of the question.

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