Israeli Supreme Court 311.
(photo credit: REUTERS/FILE)
In a unanimous ruling on Thursday, the Supreme Court cut the prison sentence of
an Arab-Israeli man convicted of rape-by-deception, from 18 months to nine
Sabbar Kashour had appealed against his sentence following his
conviction in the Jerusalem District Court in July 2010.
convicted in a plea bargain after agreeing to plead guilty to rape-by-deception
and indecent assault.
Kashour was convicted of rape even though the
complainant in the case, identified only as M.T., had consented to sex with
Under the Penal Code, a charge of rape can also apply if a person
has intercourse with a woman with her consent, if that was obtained by deceit
“in respect of the identity of the person or the nature of the act.”
Kashour’s case the judges found M.T. had consented to sex after he deceived her
about his identity, telling her he was single, Jewish and seeking a serious
romantic connection, when in reality he was married, not Jewish and sought only
a “no strings attached” sexual encounter.
In cutting Kashour’s sentence,
Justices Hanan Melcer, Elyakim Rubinstein and Yitzchak Amit partially accepted
his appeal. Melcer said the main offense for which Kashour was convicted was not
the most severe rape offense, and that he had no previous criminal
Kashour had also made progress in recognizing the severity of his
actions and in striving for reintegration into normative society, Melcer
However, the court also criticized Kashour’s defense team for
raising issues in the appeal concerning his conviction, which they said
constituted an attempt to retract his agreement to the plea
Kashour’s defense attorney, Dr. Elkana Laist, had raised
objections to the amended indictment, criticizing the district court ruling as
excessively paternalistic. Kashour’s actions were not criminal, but only
immoral, Laist argued, and at the very worst he should have been charged with
obtaining a thing by deceit and not rape-by-deception.
Laist had argued
that the district court had not taken into account the fact that the encounter
between Kashour and M.T. lasted only for a few minutes, that M.T. had consented
to sex, and that since their meeting had been a chance occurrence, Kashour could
not have planned to deceive her.
Laist also raised disagreements with a
number of statements made in the district court ruling, including that “if
[Kashour] had not suggested to the complainant that he was a single Jew
interested in a significant romantic encounter, she would not have cooperated
Melcer said that this argument, which he said was an attempt
to absolve Kashour’s act of any criminality, was problematic because it was not
mentioned in the plea bargain.
The justice also said Kashour’s defense
team had the option in the original trial of pursuing a plea bargain on lesser
charges. “The moral and legal-philosophical aspects of rape-by-deception as a
legal instrument provide protection to the public in general, and to women in
particular,” Melcer added.
Amit noted that the original indictment
against Kashour had been far harsher than the amended one, and included a charge
of rape without any consent from the complainant.
According to the
amended indictment, the rape occurred in a building on Jerusalem’s Hillel Street
in September 2008. Kashour presented himself to M.T. as a single Jewish man
interested in a serious romantic relationship.
She believed him and
agreed to accompany him to the top floor of the building. In the elevator,
Kashour embraced M.T. and touched her in a sexual manner, and on the top floor
had full sexual intercourse with her. Immediately afterward, Kashour left the
building, leaving M.T. alone and naked.
In August 2010, the High Court of
Justice ruled to postpone Kashour’s sentence, pending his appeal, on the grounds
that the sentence might be reduced on appeal.
Kashour was also released
from house arrest. Following Thursday’s ruling, Kashour’s prison term will begin
on February 19.