In Israel, Misrepresenting Your Ethnicity Makes You a Rapist

Ah yes, the old hit-and-run has bedeviled many a woman. Charmed into bed, she notes a rapid metamorphosis of her suitor into a cad who leaves and never calls again. Most women who experience this learn a valuable lesson, and are more prudent in future encounters.

But in Israel, a woman has taken it one step further and successfully convicted her Arab seducer of rape. The defendant had consensual sex with the “victim” after presenting himself as a Jew interested in a long term relationship. Upon discovering he was an Arab, she went to the police who charged the man with rape and indecent assault.

Now, if these facts make you cringe, there’s good reason. In first year torts, we briefly discussed whether lying can equate to a misrepresentation which would vitiate consent. The example used was the man who represents himself as wealthier/more powerful than he really is. Many jokes ensued, including the “morning-after-beer-goggle” horror stories that many law students are apparently familiar with. It is important to note that in class we talked about civil actions, not criminal ones. In this case the man has been sentenced to 18 months in prison.

The issue here was what the consequences of representing oneself as another ethnicity should be.

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.” [emphasis added]

The issue is therefore whether the man’s Arab ethnicity is a “critical matter”. Now, people misrepresent things all the time. But the ruling of the court is essentially stating that a persons ethnicity is a matter so important that lying about it can vitiate consent. In other words, the woman was so appalled at the thought of sexual activity with an Arab, she claimed in hindsight she never would have consented had she known the truth. Now, a woman has every right to not want to mate with a person of another race. What personal prejudices or preferences she has is no ones business but her own. But when she involves the state in such matters to bring down the heavy and of the criminal law, there is a greater principle at stake. The state of Israel is essentially saying that it will enforce personal preferences for ethnic purity in personal relationships through the use of criminal sanction. This type of thinking brings uncomfortable parallels to the Third Reich, which had similar views on racial purity and inter-ethnic relationships, marriage, and intercourse.

Imagine if you will, a similar claim being brought in North America. A white woman is seduced by a man who presents himself as Spanish. She subsequently discovers he is Aboriginal, and in horror calls the police. Now, while most would consider the woman’s beliefs and actions repugnant, what is hard to fathom is that various levels of government organization, from law enforcement to the judiciary, would seek to prosecute the aboriginal for behavior which may be immoral (deceit), but is not prohibited under enumerated laws.

In fairness, a previous case also saw a Jewish man prosecuted for misleading his “victims” in a superficially similar fashion.

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.

But the deception here is qualitatively different. The promises made here are a form of contract, an explicit quid-pro-quo. For legal people out there, there was consideration. I’ll give you concrete material benefits if you sleep with me. Prostitution is illegal in most developed countries, yet a judge would rightly imprison a patron who received sex and then refused to pay for it.

The bottom line is this: Arabs and Jews are both Semites. But there appears to be an increasing trend in Israeli society to marginalize the Arab inhabitants of Israel and the Occupied Territories. Increasingly disturbing laws are legalizing the oppression of Palestinians and Arab Israelis, and this ruling is a classic Freudian Slip which sheds light on the mentality of even the most enlightened and (supposedly) impartial of Israeli Jews towards their Arab neighbors.

It turns out the convicted’s only deceit was calling himself “Daniel” when he actually has an Arab name. The woman initially charged the man with violent rape. When she was demolished during a cross examination by the defence, she admitted lying about the violent rape but still claimed she would’ve never had sex with the man were she to know he was an Arab.

The judge presiding over the case once allowed a Jewish defendant to escape punishment by apologizing, after he ran over a female Ethiopian security guard. Because of this, the judge lost a chance at becoming an Israeli Supreme Court Justice. It seems racist judgments are a habit, rather than anomoloy, in at least one part of the Israeli justice system.

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