Most likely, you’ve already heard that an Israeli court last week convicted a Palestinian man, Sabbar Kashur, of “rape by deception.” He met a Jewish woman on the street outside a Jerusalem grocery store. They struck up a conversation. She assumed he was Jewish due to his nickname, “Dudu,” which apparently is common among Jewish men. Within 15 minutes, the two adjourned to a nearby building and had sex. Afterward, he took off before she even was dressed. She believed he was a Jewish bachelor who was seeking a long-term relationship.
The woman then filed forcible rape charges. Later, she stated that the sex had been consensual but on false premises, and the charge was downgraded to “rape by deception.”
I’d prefer to table the fundamental problems with “rape by deception” to another post. Here, I just want to say that the notion of purity expressed by the presiding judges in this case is deeply troubling. As Haaretz reported:
In the verdict, deputy president of the Jerusalem district court Tzvi Segal, along with fellow judges Moshe Drori and Yoram Noam, wrote that although this wasn’t “a classical rape by force,” and the sex was consensual, the consent itself was obtained through deception and under false pretenses.
“If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated,” the judges wrote. …
“The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price – the sanctity of their bodies and souls,” Segal wrote.
“When the very basis of trust between human beings drops, especially when the matters at hand are so intimate, sensitive and fateful, the court is required to stand firmly at the side of the victims … otherwise, they will be used, manipulated and misled, while paying only a tolerable and symbolic price,” he wrote.
The parallel that pops into my mind is one that I realize may be offensive to some folks: the charge of “race defilement” in Nazi Germany. No, I’m not equating these judges (much less all of Israel) with the Nazis. But there’s a notion of racial purity behind this verdict that is reminiscent of Nazi ideas about racial purity as expressed in the Nuremberg Law for the Protection of German Blood and Honor (the Blood Protection Law, for short).
Under the Blood Protection Law, only men could be charged. That went for both “Aryan” and Jewish men, though the primary targets were of course Jewish. Women were interrogated and their privacy and reputations destroyed, but “Aryan” women were also viewed as victims. This legal practice followed Hitler’s bilious depiction of male Jewish sexuality in Mein Kampf:
The black-haired Jewish youth lies in wait for hours on end, satanically glaring at and spying on the unsuspicious girl whom he plans to seduce, adulterating her blood and removing her from the bosom of her own people.
(p. 270 in the James Murphy translation of Mein Kampf that’s freely available on the Web)
Compare this with the language in Segal’s opinion:
The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price – the sanctity of their bodies and souls.
In both instances, men in the out-group are envisioned as predatory and deceptive; they’re sexual beasts, but they’re also terribly clever. In both instances, women belonging to the in-group are portrayed as passive, innocent, and unsuspecting. In neither case are women conceived – or even conceivable – as sexual agents. In both cases, women will be despoiled if the state fails to protect them. In both cases, community, honor, and racial purity are at stake.
You see the assertion and protection of honor, too, in Segal’s insistence that the woman would not have consented to sex with Kashur if she had not imagined him to be 1) Jewish, 2) a bachelor, and 3) interested in a long-term relationship. While it’s crucial not to slut-shame women (and that includes the woman in this case), let’s not forget that insisting on protecting purity enables slut-shaming in the first place. And when it comes to protection, the racial element in Segal’s reasoning is clear: He didn’t object to Kashur’s failure to disclose that he was married. He only emphasizes that the women was deceived into thinking Kashur was Jewish. (Never mind that Kashur apparently never made such a claim.)
Just for the record, I’m not defending Kashur’s actions as ethical. Not at all. He behaved like a complete cad toward the woman who brought charges, and he was an even bigger asshole toward his wife. I’m just trying to tease out the racial implications of his conviction.
Israel was born out of deep historical oppression and trauma. It’s not surprising that some Israelis overcompensate for this. It’s sad and disturbing, though, that any Israeli would support a rape conviction that rests on notions of race defilement similar to those used historically to oppress Jews.
Fortunately, some Jewish jurists are voicing their dissent (again via Haaretz):
Elkana Laist of the Public Defender’s Office yesterday said the Jerusalem District Court had gone too far in its application of the approach of the High Court, “opening the door to a rape conviction every time a person lies regarding details of his identity. Every time the court thinks a reasonable woman would not have had sex with a man based on that representation, the man will be charged with rape. That approach is not accepted around the world either.”
Laist needs to go further and condemn the racist aspects of the verdict (and perhaps she did but Haaretz didn’t quote it). Here in the U.S., Michelle Goldberg says all that needs to be said:
If such a verdict is allowed to stand, it will be evidence of the deep and corrosive racism menacing Israel. Earlier this year, Haaretz reported on a poll showing that 56 percent of Israeli high school students would ban the country’s Arab citizens from election to the Knesset. “Around half the respondents say Israeli Arabs should not receive the same rights as Israeli Jews,” the story said. We’ll soon see to what degree they get their wish.
Like Goldberg, I too support Israel’s right to exist. But as she says, “It’s getting harder and harder to be a liberal Zionist.” If Israel is to continue to exist as a democracy, its leaders, judges, and citizens need to repudiate racist notions of blood and honor and reaffirm the humanity of everyone living within its borders.
Note to anyone who’s not a regular reader: My Ph.D. is in modern German history. While most of my teaching is in women’s and gender studies, I just taught a college course on the history of Nazi Germany. That’s why I happen to be acquainted with Mein Kampf - I’m not a neo-Nazi in disguise!
Patron cat of Kittywampus (1985-2001)
The problem I see is that this goes two ways. The reasoning might be atrociously racist, but I’m certain that the woman in question DOES feel that she’s been raped, with all the feelings of violation and loss of control that come with that. This isn’t just about the theories behind it; it’s about two people who are caught up in something screwy. Had the deception been unrelated to one of the most prominent race wars in the world, we wouldn’t question for a moment that the woman was in the right.
I’m not being fully coherent, but it’s a chilling example of how much harm systemic, internalized racism can do.
Hi Anna, and thanks for taking time to comment. I agree that the woman almost certainly does feel violated. I don’t think that the law ought to categorize feelings of violation – due to her not knowing enough about the man – as “rape.” I certainly don’t think the law should honor the self-same racist attitudes that are at the root of the accuser’s charges. But I’m sure you’re right that she feels violated, and that this is another instance of systemic racism at work.
I’m less sure about your statement that we wouldn’t question the woman in another context. I actually think that the whole basis of “rape by deception” is untenable. But I’d prefer to discuss that in my next post, as an issue in its own right.
Yeah, this whole thing is really troubling.
The “notions of purity” as you put it also trouble me from more than just a racial standpoint. Perhaps this is more appropriate to discuss in your next post, but this same kind of thing also plays strongly into the discourse surrounding transexual people and sex, and often similarly demonizes trans men and women as “deceptive” etc. And to categorize that as rape is… extremely troubling to me, for a variety of reasons.
Hi Cessen! Yes, trans people will be among the first to be hurt under any law that would prosecute a lover who told a lie or simply kept a secret. I did mention this in my followup post. Thanks for bringing it up here, too. If you want to expand on it further in the second post, go for it.
I agree with all of your points, except this:
“It’s sad and disturbing, though, that any Israeli would support a rape conviction that rests on notions of race defilement similar to those used historically to oppress Jews.”
It’s no more disturbing that an Israeli would support this than it is that anyone would support it. It’s a mistake to include paragraphs like this among otherwise valid criticisms, because it gives those who don’t want to hear the excuse they need.
The idea that victims have greater moral authority than others, and therefore greater moral responsibility than others is ridiculous. I mean, after all, victims of violence are more likely to be violent.
It also distracts from what should be a more salient point, namely, that Israelis are acting more and more like their theocratic and nationalist neighbors. What’s interesting, and disturbing, is how cultural, social, and political diffusion works. It’s almost like cruelty and tribalism is in the the air there.
Any path to a viable two-state solution is going to have to confront this dehumanizing cruelty. And pointing out that Israelis should know better, their parents and grandparents having been victims of it, won’t help.
Thanks, Dan. I agree with your criticism up to a point. I don’t think victims have greater moral authority, or greater responsibility.
But when their history offers a lesson that they don’t learn, it is still distressing. You are right that people tend not to do this – that abuse tends to beget abuse. However, most Israeli leaders were born post-1945, so they’re coming from a second- or third-generation perspective that allows for slightly more reflection. Thus, I tend to hope that they might learn from history. I freely admit that people generally don’t. Maybe my vain hopes are just a conceit that springs from my training as a historian – the idea that someone *ought* to learn from history! Otherwise, why bother?
I don’t expect that my saying “Israelis should know better” will help change any minds in Israel. But Israel responds, up to a point, to pressure from the U.S., where perhaps a historical argument could gain more traction. Or perhaps not.
I’ve gone from being wholly uncritical toward Israel in the early 1980s to constructively critical. I support a two-state solution. Where, in your estimate, is there any lever for diminishing the cruelty and making a two-state solution thinkable?
Good point, also, on how theocracy and nationalism tend to spread. Marriage in Israel is thoroughly under the control of the ultra-Orthodox rabbis – that’s just one example.
Two strangers meet and have sex. On what, exactly, are you basing the notion that the man was any more of a cad than the woman was? He disputes the notion that he claimed to be Jewish, for example, and the article you cited doesn’t indicate that he acknowledged claiming to be a bachelor interested in a long term relationship.
Hi ballgame – happy to see you! I was pretty sure you’d show up for this (and the next post, too).
Kashur is a cad because he was married. He was a cad because he jumped off of the woman pretty much as soon as he came, and took off. I’ve experienced that (minus the racial baggage) and it ain’t very nice. I’m not a fragile lily, but that experience made me feel used. Ugh.
Bringing rape charges, as she did, is a whole different order of bad behavior. “Cad” doesn’t cover it. “Racist,” maybe? (I’m assuming here that she never was forcibly raped; I’m taking her recantation at face value. I do realize that women sometimes recant when they don’t want to go through the hell of trial.)
As the American kid of an Israeli who left Israel because of death, war, nationalism, and creeping fundamentalism, I absolutely agree with you that Americans need to utilize their power to try to bring about a two-state solution. That means loudly criticizing human rights abuses. That means withholding funds for violations of international law.
Most Israelis are drawing lessons from history. Here’s what they say: The lessons they’ve learned, after being attacked over and over, is to kill them before they kill you. They’ve learned that to be the passive supplicants to their non-Jewish patrons, is to invite extinction.
So the response is an aggressiveness that dehumanizes the other. They’ll defend this as being nothing like the Nazis. They don’t want to round up and kill all Arabs. All they want is their security. The evidence, they’ll claim, is that Arabs won’t let them have it.
I don’t mean to justify these responses, because they are morally wrong. They are not Jewish, insofar as being Jewish implies making a moral commitment (i.e tikkun olam). It’s one’s moral commitments that conditions the lessons one draws from history, not the other way around, at least in this case. My point is that understanding morality, not history, is what makes this so. We don’t live in a world dreamed up by some whack philosopher for whom history is progress converging on Utopia.
And so I think that browbeating Israelis with lessons of the Holocaust is counterproductive, to say the least. Frankly, the idea that such a good writer considers that point remotely persuasive, historian or not, baffles me.
Dan, my intent here was in no way to browbeat Israelis. According to my Statcounter, I have one or maybe two regular readers from within Israel. My audience is primarily North American, or at least Anglo-American. This post sprang originally from a desire to analyze the particular racial/gender elements of the Kashur case separately from the more abstract issue of “rape by deception.” And I absolutely, 100% defer to you on the sorts of argument that may be helpful or ineffective in bringing about peace and security for all the people living in Israel. I have no pretense to knowing what may help, and what might hurt.
Also, I don’t want to bring the entire Holocaust into discussion, only a very specific aspect of the law in Nazi Germany: the way the Blood Protection Law was applied, and the beliefs behind its application. While the Nuremberg Laws helped pave the way for the Holocaust (following Raul Hilberg, it was the first step in a four-stage process – *defining* who was a Jew), there was no teleology as of 1935 that preordained the Final Solution. My intent here was specifically to compare the racial/gender ideology that underlies notions of racial purity in both instances. I suspect that fairly similar notions could be identified in other modern societies that embrace(d) ideas of racial purity – for instance, lynchings in the American South were justified by an ideology that posited passive sexuality for white women and predatory sexuality for black men.
I also don’t see history as progressing toward utopia. I’m much influenced by Walter Benjamin’s theses on history and Paul Klee’s painting (Angelus Novus) that inspired Benjamin. (I’ve got an old post about that somewhere in my archives.) Nonetheless, I also have a hopeful, wishful side that wants humanity to learn from at least our most awful mistakes.
Finally, I appreciate your description of the situation on the ground in Israel. I fully understand that you’re not justifying anything, only helping me (and perhaps a few others) understand. For that I thank you.
OK, I admit it. I was about to sound off in terms of the children of the persecuted having failed to learn the lessons of history ETC.
However, having read the post and its comments, I’ve had the wind taken out of my sails, which is excellent, and a reminder of why I’m so glad of the educative power of blogs like this and its commenters.
I’m not yet sure what I think, but it seems to me that our moral judgments can’t be driven by history, but history surely has a role in guiding practical action. It can show us the probable outcome of a particular course of action, and cause us to ask if this is what we want?
How about morality as the fuel of our sense of right and justice, and history to warn us of practical danger? It’s perhaps analogous to the roles of emotion and reason. There is no competition between them if we don’t confuse one with another as I was about to do.
The previous case law on this topic is the conviction of two Israeli-Jewish men, for making misrepresentations of potential economic benefit (in exchange for sex) to two Israeli-Jewish women. It is one of the few religious-community-blind (in application, anyway) sex-abuse laws in Israel, which is bedeviled by people like Goel Ratzon, who use religious communities as cover for trafficking and sex slavery rings.
As an Israeli with a certain experience in the medico-legal sphere, I have been bitterly amused by the Anglo-sphere blog response to this particular case. A reminder of Jabotinsky’s “We are good enough for ourselves.”