On rape by deception and state-sanctioned racism

As submitted to The Daily Maverick.

Most social interactions are likely to involve some measure of deception. This could range from feigning interest, or pretending to know more about the topic under discussion than you actually do, to calculated deception involving beliefs, character, or motivation. Many of these lesser deceptions are perhaps not even considered dishonest, but merely part of the everyday bargaining between our own multiple identities (which could vary according to context) and the identities of others.

Some more serious sorts of deception are of course legally actionable, and in many cases involve clear moral wrongs. One example of this is painfully fresh in many people’s memories, and involves entrusting financial investments to people who in the end misrepresented the extent to which they had the client’s best interest at heart.

But what to make of “rape by deception”, and in particular the case of Saber Kushour, recently sentenced to 18 months in prison for this “crime”? (The scare-quotes are of course not intended to indicate that rape is not a crime, or that it shouldn’t be, but rather to indicate that it’s not yet clear whether Kushour is guilty of rape at all.)

For those not familiar with the story in question, the bare facts are as follows: Kushour is a Palestinian man who met a Jewish woman in downtown Jerusalem in September 2008. They struck up a conversation in Hebrew, which Kushour speaks fluently and with no discernible accent. The conversation quite quickly led to a sexual encounter on the roof of a nearby office block. Kushour had told the woman (she gave her name as Maya) that he was a bachelor, but it later emerged that he was married.

According to Kushour, he did not present himself as being Jewish. When asked for his name, he replied that it was Dudu – apparently a common Israeli name, but also the name that Kushour had colloquially been addressed by since childhood. But Maya claims to have believed him to be Jewish. When she discovered that this was false, she laid charges of rape and indecent assault against him.

Once on the witness stand Kushour’s defense made these charges unsustainable, and Maya then admitted that she had lied, and that the sex was consensual. After learning Kashour lied to her, Maya reported that she had felt humiliated, and then went to the police to lay the initial charges. When the consensual nature of the sex became clear, the prosecution came up with a plea bargain whereby Kushour was instead convicted of rape by deception.

The district court judge Tzvi Segal ruled that the law should protect women from “smooth-tongued criminals who can deceive innocent victims at an unbearable price – the sanctity of their bodies and souls”. The deception involved was summarised by Mrs Segal as follows: “If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have co-operated”.

While previous examples of convictions of rape by deception exist, British legal experts believe this to be the first case where the alleged deception involves misrepresenting one’s race. And of course, in the context of Arab/Israeli relations, this particular racial deception could be especially fraught with tensions. However, the way the events unfolded gives rise to significant disquiet regarding apparent state-sanctioned racism, in that the verdict seems unjustifiably prejudicial against Kushour.

First, because in ruling that sex with an Arab can cost an Israeli woman the sanctity of her soul, Mrs Segal could be said to be making a direct comment on what she perceives as racial purity – sleeping with an Arab is a perversion or a corruption. There is no evidence that Maya was a virgin prior to this encounter, so the purity at issue is not the normal sort of “sanctity of soul” claptrap – the loss of purity relates directly to the offensive nature of a sexual encounter with an Arab.

Second, because it’s entirely unclear that any relevant deception took place, which brings the legitimacy of a guilty verdict into question. It is of course not commendable that Kashour was unfaithful to his wife – nor that he lied to Maya about being married – but these deceptions make him typical of a known sort of man, who employs typical sorts of falsehoods in pursuit of seduction. These falsehoods are not right, at all, but they are also not normally a legal issue.

Consider, for example, the deception involved in professing undying love – or even great attraction – for a prospective conquest. Hollywood leads me to believe that this happens all the time, and I certainly overhear snippets of conversation which lead me to believe that some actual humans do this sort of thing also. Again, certainly morally wrong, but not a matter for the law.

If Kashour was Jewish – or if Maya had reported the sex as being consensual in the first instance – it is unlikely that the case would have ever made it to court. More importantly, as Gideon Levy (a liberal Israeli commentator) asks: “What if this guy had been a Jew who pretended to be a Muslim and had sex with a Muslim woman? Would he have been convicted of rape? The answer is: of course not.”

We can also ask questions about the appropriateness of the sentence, regardless of the conviction itself. As Andrew Sullivan reports in The Atlantic, Kashour has no earlier convictions, “while in another ‘rape by deception’ case, which involved a lesbian masquerading as a man in order to have sex with women, she received only six months of suspended sentence. Kashour got 18 months of incarceration.”

Sullivan also tells us that one of the three judges in the Kashour case was Moshe Drori, who was embroiled in a 2009 scandal “when he refused to convict a very well connected yeshiva boy who admitted – and was filmed – running over a security guard with his vehicle. The security guard was an Ethiopian woman. Drori, a Jewish Orthodox, forced the guard to accept the apology of the yeshiva boy, and then invoked a judgment by 12th century scholar Maimonides, which says once an apology is accepted by the victim, the case is closed. And he closed the case.”

This ruling was later overturned in the Supreme Court, and is said to have cost Drori the chance of becoming a Supreme Court justice. But both of these cases – and perhaps countless others that don’t make the news – ask us to consider the extent to which deception is a moral matter, or a legal matter. More importantly, the Kashour ruling seems to be premised on something quite sinister: namely the notion that if an informed Jewish woman knew that a man was an Arab, then she would not (and perhaps, should not) have sex with him.

Legislated discrimination of this sort amounts to a form of public apartheid, and also an intrusion of the law into what should be a private matter. Here, the private becomes public, via a prejudice that should have no place in the modern world. But in a context where judicial rulings involve the “purity of souls”, the modernity of the world in question is perhaps itself a disputable issue.