What is the true significance of the evidence meant to prove that testimony of the two key women in the Katsav affair was problematic?
In the dialogue between attorneys Shai Nitzan, representing the state, and Avigdor Feldman, representing former president Moshe Katsav, conducted with Supreme Court President Dorit Beinisch, there was as much philosophy as hard fact, and as much psychology as black-and-white data in the interpretation of the evidence. And even though three of the justices on the panel were men, there appeared to be clear differences of opinion between the court and the attorneys on the basis of gender.
During his plea to the court on Wednesday, Feldman described the fundamental difference between lawyers and prosecutors. When each studies the same evidence, they see different things.
What he said about defense lawyers and prosecutors might also be true regarding the men (prosecutor and defender) and women (the two dominating presiding justices, Ayala Procaccia and, far more so, Beinisch).
The fundamental question raised during the two days of hearings on six petitions challenging Attorney-General Menahem Mazuz's final indictment against Katsav was what had happened between January, when he described the harsh indictment the state was considering filing, and June, when he decided to file a much milder one.
Feldman and Nitzan replied: "What happened is all wrapped up in the evidence."
And then they began to explain why. The "second Aleph," also known as Tourism Ministry-Aleph, Nitzan told Beinisch, maintained that she had been raped twice by Katsav, once between February and April 1998 and again in June 1998.
Yet, three months after the second alleged rape, in September, she sent a greeting card to Katsav for Rosh Hashana. "It wasn't a message," said Nitzan. "It was a megilla [scroll]."
Nitzan was prohibited from describing the letter in detail, since the High Court, as a court of appeal, is not supposed to hear evidence. All he could add was that it was "a greeting card filled with love."
Beinisch was not impressed.
"I assume that there are other cases involving sexual crimes that include such cards," she replied, indicating it is known that victims of sexual crimes committed by those who have authority over them respond in unexpected ways for psychological reasons.
Nitzan then said other witnesses testified that the "second Aleph" was in love with Katsav and put on lipstick when she heard he was coming into the office and appeared excited.
Regarding the "first Aleph," or Beit Hanassi-Aleph, Nitzan quoted witnesses who came to testify after January and said she had been obsessed with Katsav and became jealous when he started up with another woman in the office.
"Why is that relevant?" replied Beinisch.
Women's organizations, for the most part, argue that "what you see is not what you get," that women confronting situations like those faced by Katsav's employees cannot be judged by their external behavior.
Recently, Zvia Zigelman, a senior clinical psychologist and head of the sexual trauma treatment unit at Tel Aviv's Sourasky Medical Center, described the situation of women exposed to continuous sexual harassment.
"In such circumstances," she wrote, "there is an assailant who does not suffice with simple obedience or total surrender [on the part of the victim]. He has a psychological need to turn her into a victim by choice to justify his crimes and purify his actions, and for this he needs the victim's confirmation. Therefore, he constantly demands infinite loyalty, declarations of respect, gratitude and even love."
Beinisch's dismissive response to Nitzan and Feldman regarding the examples they presented to explain why Mazuz changed his mind indicates that she agrees with Zigelman's analysis. Since Beinisch has been a judge for many years, and before that a prosecutor, she has likely come across many examples of this kind of seemingly irrational behavior on the part of sexual victims. Either that, or she believes the literature.
But this way of approaching sexual crimes goes against the grain of classic criminal investigation. As the Los Angeles cop Sgt. Joe Friday used to say on Dragnet, "We want the facts, Ma'am. Just the facts."
Facts are meant to be empirical. A series of facts may be interpreted in different ways, but each fact, in its own right, is supposed to be indisputable. When Katsav's lawyers and the prosecution found examples of allegedly contradictory behavior on the part of the victims, they took it at face value. The petitioners, and Beinisch, did not.
Beinisch's approach frustrated Nitzan and Feldman.
"If regarding every argument of ours the court says [skeptically], 'Yes, we've heard this before, yes, we've heard it all - that the victim went back to work after being sexually assaulted/harassed, that the victim sent [love] notes afterward,' then we [the defense] will not have any arguments left," Feldman told her.
In the final analysis, Katsav's attorneys and the state agreed that there was a degree of mutual cooperation between Katsav and the "first Aleph" and between Katsav and the "second Aleph" that called into serious doubt the severe charges the prosecution had originally intended to file. The question that the court will have to decide is whether these facts are what they look like at face value, or are something else that does not meet the naked eye. The gender factor could be crucial in determining the answer to this question.