Legal Affairs: The presidential precedent

The Katsav verdict may have dramatic long-term implications for all cases of male violence against women.

By DAN IZENBERG
January 7, 2011 15:41
Former president Moshe Katsav in courthouse

katsav enters court 311. (photo credit: Ben Hartman)

The verdict of the Tel Aviv District Court in the trial of former president Moshe Katsav may turn out to be a landmark ruling in the long fight waged here over the past few decades against male violence toward women.

This, although most legal experts agree there was nothing unusual in the methodology of the three judges who ruled unanimously to convict Katsav on the two counts of rape with which he was charged.

The judges, George Karra, Miriam Sokolov and Yehudit Shevah, heard the conflicting accounts and arguments of the defendant and the complainant, A, heard testimony and saw evidence supporting their conflicting claims and chose to believe A.

What makes sex-crime cases different from most others is that there are rarely eyewitnesses who can testify to what transpired. The overwhelming majority of rape or alleged rape cases occur between men and women who know each other and most of them take place in private.

In these cases of “he says, she says,” judges, in the final analysis, must base their ruling on which one of the parties they believe more, and if it is the accusing woman, they must believe her version is true beyond reasonable doubt.

This is how all rape cases and other cases involving allegations of sex crimes are handled by the court.

The only thing that was unusual in the Katsav trial was the elevated status of the defendant.

TO SOME extent, Katsav had an advantage in this trial. He was tried according to an older definition of rape which appears in the original version of the Penal Law. According to that definition, rape occurs when “a person has intercourse with a woman without her freely given consent and in consequence of the use of force, the infliction of bodily suffering, the use of other means of compulsion or the threat of any of these, no matter whether directed at the woman or any other person.”

In 2001, the law was amended and rape is now defined as “having intercourse with a woman without her freely given consent.” The use of force or the threat of force no longer has to be proven to determine that an act constitutes rape.

Orit Kamir, a research fellow at the Hartman Institute of Judaic Studies in Jerusalem and former international visiting professor of law at the University of Michigan, wrote that there is no doubt “the transition from a definition of rape as including two circumstances (violence or the threat of violence, and lack of consent) to a definition which included only lack of consent expresses the intention of the legislator to strengthen the woman’s autonomy and her sovereignty over her body and sexuality.”

In the final analysis, however, no matter how broad or narrow the definition of rape is, the fact that the conditions were met must be proven. And the problem of how to prove it, when it boils down to one person’s word against the other, remains.

Noya Rimalt, a senior lecturer in law at the University of Haifa, told The Jerusalem Post that the question of one person’s word against another in criminal cases is not as unusual as some people would like to make out.

“The same is often true of theft cases, when the complainant charges that the defendant stole something from him and the defendant replies that the plaintiff gave him the object of his own free will,” she said. “But when it comes to rape, people make it sound as if this problem is something unique. It all stems from the traditional attitude of suspicion toward women.”

This, she continued, has been the heart of the problem all along. Society even now has still not liberated itself of its historical baggage when it comes to relations between men and women.

In ancient days, she explained, women were considered the property of their men – fathers or husbands.

In an essay published by the Canadian Bar Association on the historical development of rape, the author described the law regarding the crime in ancient Israel.

“The crime of rape was not considered so much an assault against the person of the woman as it was an attack on the property of the dominant male in her life – father or husband, as the case may be,” the author wrote.

“Recent writers have observed: If a woman was raped, a sum was paid to either her husband or father, depending on who still exercised rights of ownership over her, and the exact amount of compensation depended on the woman’s economic position and her desirability as an object of an exclusive sexual relationship. The sum was not paid to the woman herself; it was paid to her father or husband because he was the person who was regarded as having been wronged by the act.”

Later on in history, rape came to be considered a moral crime, but still not a crime against women. Women were expected to be virgins when they married, so the men who raped them were violating the moral code of the time.

Later, women were expected to use force to resist rape and if they did not, they were the ones held guilty of the crime. Rimalt added that this dogma was proved to be false when it turned out that in most cases, women who resisted their assailants suffered more violence than submissive ones.

Here, too, the law has changed over the years. For example, in 1988, the wording of the article in the Penal Law was changed from intercourse “against the will” of the victim to “without the victim’s consent,” because the new wording allegedly did not make allusions to the fact that the woman ought to actively resist the rapist. Later amendments removed the requirement that the alleged victim bring additional evidence to support her claim and limited the right of the defense lawyer to examine her sexual history in court.

THESE DEVELOPMENTS illustrate the changing attitude of the legislator, and presumably society, toward rape and lesser sex-motivated crimes such as sexual harassment.

And although the court in Katsav’s case was obliged to hand down its ruling according to the original provision in the 1977 Penal Law, it was obviously influenced by the changing atmosphere.

Nevertheless, it still had to determine that Katsav had used force or the threat of force and had penetrated A without her consent to find him guilty.

It did so by wholeheartedly accepting A’s version of events and wholeheartedly rejecting Katsav’s on the basis of A’s credibility, the evidence presented by the state supporting her story and Katsav’s lack of credibility as these elements emerged during the trial.

In this case, it was apparently not hard to do. “A was completely credible. Her replies were spontaneous and lacked any guile. She told the investigators and the court facts that appeared to put her in a bad light and revealed her dilemmas unhesitatingly. Moreover, almost everything she said was backed by outside testimony, some of which she was not even aware of. We therefore accept the story of her rape by the defendant.”

As for Katsav, “His testimony was not sincere.

The defendant, who is intelligent and quick to catch on, was familiar with every scrap of evidence in the file and from his answers we could conclude that they were not given from memory but as conclusions from this or that testimony or piece of evidence.

His testimony was rife with lies, big and small, and was notable for its manipulativeness and concealment of information.”

Rimalt explained that when a court verdict hinges largely on the judges’ assessment of the credibility of the witnesses, it must go into great detail to explain its position so that the public will understand why it decided as it did. Even in this apparently extremely abbreviated version of the complete ruling, which is apparently hundreds of pages long and classified, the judges provided many examples of the lies they believed Katsav had told them.

One example involved the former president’s denial of the assertion that he had bought earrings for A. When the prosecution presented the earrings in court, Katsav suddenly changed his story and acknowledged that he had bought them, but claimed that A had stolen them from him.

IN ONE vital way, Katsav’s rape trial differed from most others, in which the man claims intercourse was by mutual consent and the woman denies she agreed. In this trial, Katsav did not argue that he had had sex with A by mutual consent. He claimed that he had had no sexual contact of any kind with her or with the other two complainants in the case or the many other women who could not file formal complaints because the statute of limitations applied to the alleged sexual acts he had committed against them.

This claim, the judges wrote, was also a lie.

Other than that peculiar factor, what makes the Katsav trial different from others, and may indicate the courts have reached a new level of understanding of rape, is the fact that the judges accepted A’s testimony unreservedly, Rimalt said. “That was one of the great things,” she said. “The court believed the stories of the women.”

One of the reasons women are so reluctant to complain about sexual attacks is because of the what happens in court – the humiliation they face, the publicity, the long and drawn out legal procedure, she continued.

“The fact that the court unreservedly believed the women’s stories is extremely important for the future.”

On the other hand, she said, the most disappointing event in the saga was the state attorney’s decision to accept Katsav’s lawyers offer of a plea bargain in which the original, harsh indictment, which included three rape charges, was watered down to a few minor charges and no jail time.

“That decision stemmed from the prosecution’s doubts about the credibility of the women who complained,” she said. “And I maintain that this was not because of the quality of the evidence but because of the lack of understanding of what it means for a woman to be sexually attacked.”

Attorney-general Menahem Mazuz and other prosecutors were apparently concerned about the fact that A did not complain to the police about the rapes, and that when she did, she initially complained only about one of them. It was only in the seventh police interrogation that she complained about the second one. They were also worried about a “love” letter that A sent Katsav after the two rapes.

The judges showed more understanding of A’s state of mind than the prosecution, which filed the indictment against Katsav only after he reneged on the plea bargain.

It referred to a recent ruling to explain why it was not perturbed by A’s initial reluctant behavior. “In ordinary circumstances,” it quoted from a recent ruling handed down by the Supreme Court in another case, “the court attaches special weight to the initial testimonies of the witness to the police. But in sexual crime cases, especially those within the family, the court is aware that the initial testimony of the victims of sexual crimes are often laconic and reveal little. See Shulamit Almog’s Trauma, Narrative and Trial, where the author focuses on the changing stories of sex crime victims and the fact that in the first account of a traumatic event that a woman recounts, she tends to minimize it as much as possible, by giving a ‘softened version, vague and restrained, sometimes even distorted, of the painful incident.’”

“These women were helpless,” added Rimalt. “Katsav controlled their fate, and they were dependent on him for their livelihood. The prosecution did not understand this and therefore doubted their testimony.”


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