An Interesting “Rape by Fraud” Case from Israel

The Guardian (UK) reports:

A Palestinian man has been convicted of rape after having consensual sex with a woman who had believed him to be a fellow Jew.

Sabbar Kashur, 30, was sentenced to 18 months in prison on Monday after the court ruled that he was guilty of rape by deception. According to the complaint filed by the woman with the Jerusalem district court, the two met in downtown Jerusalem in September 2008 where Kashur, an Arab from East Jerusalem, introduced himself as a Jewish bachelor seeking a serious relationship. The two then had consensual sex in a nearby building before Kashur left….

Handing down the verdict, Tzvi Segal, one of three judges on the case, acknowledged that sex had been consensual but said that although not “a classical rape by force,” the woman would not have consented if she had not believed Kashur was Jewish.

The sex therefore was obtained under false pretences, the judges said. “If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated,” they added….

Segal said: “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. 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 — actual and potential — to protect their wellbeing. Otherwise, they will be used, manipulated and misled, while paying only a tolerable and symbolic price.”

Such “fraud in the inducement” would not suffice for a rape conviction under the law of most American states (see, e.g., this case), though it’s an interesting question why it’s a crime to get money by fraud but not to get sex by fraud. There are good answers to that question, I think, but they’re not so obviously right as to keep the question from being interesting.

For some thoughts from last year on a proposal in Massachusetts that might have allowed liability in such a situation, see here. Also, it appears that a few American rape statutes might already criminalize sex procured through false statements. State v. Tizard, 897 S.W.2d 732 (Tenn. Ct. Crim. App. 1994) holds that Tennessee law rejects the distinction between “fraud in the inducement” and “fraud in the fact,” which is what has prevented rape prosecutions in cases such as the Israeli one; the facts of Tizard, though, are rather different — the defendant was lying about the supposed medical reason of the sexual act (there, the defendant’s masturbation of the victim, though the analysis would be the same for intercourse) rather than about the defendant’s identity. And some states generally provide that “assent does not constitute consent if … [i]t is induced by force, duress, or deception” (to quote Colo. Rev. Stats. Ann. § 18-1-505), which would in principle apply to rape cases as well.

If anyone can point me to the written opinion in the case, I’d be much obliged, both so I can blog about it and so I can use it in my Criminal Law class this Fall (I have a unit on fraud in the section on the law of rape). Thanks to Mike Sheridan for the pointer.

UPDATE: Several commenters raise a point that was also made by one of the source cited in the article: “Gideon Levy, a liberal Israeli commentator, was quoted as saying: ‘I would like to raise only one question with the judge. 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.'”

It’s certainly possible that a court would have — and still would in the future, even given this decision — acquit this hypothetical Jew-pretending-to-be-a-Muslim defendant. But I’m just not sure that one can categorically assume this, especially in light of the judges’ rhetoric. It seems to me that Jewish judges might well think the lying Jew’s behavior is as deceptive, manipulative, and injurious to “the sanctity of [victims’] bodies and souls” as a lying Muslim’s, and that the deceived Muslim woman should be as protected as a deceived Jewish woman. And this is so even given the undoubted psychological reality that judges, like other people, generally tend to empathize more with people who are like themselves. Despite this reality, judges may still empathize enough with people who are less like themselves.

Now I’m certainly not an expert on Israeli judges’ attitudes, and I’d be happy to hear the views of people who have lived in Israel and have a sense of how the Israeli legal system would deal with this situation. But I’m reluctant to accept the assumptions of the one Israeli commentator who was quoted, at least unless I hear a broader range of people confirming his judgment.

FURTHER UPDATE: Haaretz has more on the underlying legal rule (thanks to Ivan Drago and Ilya Somin for the pointer):

In 2008, the High Court of Justice set a precedent on rape by deception, rejecting an appeal of the rape conviction by Zvi Sleiman, who impersonated a senior official in the Housing Ministry whose wife worked in the National Insurance Institute. Sleiman told women he would get them an apartment and increased NII payments if they would sleep with him.

High Court Justice Elyakim Rubinstein said a conviction of rape should be imposed any time a “person does not tell the truth regarding critical matters to a reasonable woman, and as a result of misrepresentation she has sexual relations with him.”

Rubinstein said the question was also whether an ordinary person would expect such a woman to have sex with a man without the false identity he created.

In the past, men who misrepresented themselves in this way were convicted of fraud.

One such case was that of Eran Ben-Avraham, who told a woman he was a neurosurgeon after which she had sex with him, and was convicted of three counts of fraud.