Tuesday, August 3, 2010

"Rape by deception" - for pretending to be Jewish?

Hear about this story? A woman in Israel shags a guy who she thinks is Jewish. Turns out he's actually an Arab. She goes to the police. Arab guy gets jailed for rape.

What do you reckon? The verdict sounds like a complete load of horsesh!t to me, but maybe I'm missing something here. Read it for yourself:

A Palestinian man was convicted of rape in Jerusalem after he had consensual sex with a woman who he had tricked into thinking he was also Jewish. Shabbar Kashur, 30, was sentenced to 18 months behind bars after he accepted a plea bargain for the charge “rape by deception.”
Kashur first met the woman in downtown Jerusalem in September 2008. At the time, he had told her that he was a single Jewish man who was looking for a long term relationship. They talked for a minute, and then went to a nearby building and had sex, according to the complaint.
The woman later found out that the man was not Jewish at all, and was an Arab from East Jerusalem. She filed a criminal complaint for indecent assault and rape. Because he took the plea that was offered to him, the charges were lessened to rape by deception.
Arabs currently make up over 20 percent of the population in Israel, but relationships between the two cultures are rare amid the ongoing violence in the region. There are very few integrated neighborhoods in Israel, and even fewer relationships.
One judge said that even though the two of them had had consensual sex, the woman never would have said yes if she had realized that the man was not Jewish.
“If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she never would have cooperated,” the judges said.

The original article is here. The man claims he never even told her he was Jewish, and she just assumed. I dunno... let's assume he did actually lie about it.

Now, let's be honest. People lie all the time to get sex. Mostly it is the men who do so. Is that wrong? Of course. Is that rape? Er...

I mean, fellas, let's be real. If you are about to get it on with someone who may be hot but you're not in love with, and he/she asks, "Do you love me?" what are you gonna say?
Further up the bullsh!t scale, some guys might go all out and lie their asses off to get some ass. You know, pretend they're single when they're not, or pretend they really do want a relationship when they are just out to hit it and quit it. Such guys are douchebags, no doubt. But not rapists, surely?

It sounds like Shabbar Kashur falls into this category. From the sounds of it, maybe he deserves to have the Jewish woman's brother kick his ass. But 18 months in jail, following 2 years of house arrest?

In the past, men have been charged with fraud for this kind of thing, according to this article. And I can maybe accept that. Because while he may have deceived her, she still entered the sexual act of her own free choice, right?

But where do you draw the line on this stuff? Because rape by deception certainly does and should exist as a legitimate and serious charge. For example, if someone knows they have HIV but tells you otherwise and has unprotected sex with you; or if someone who is 19 pretends to be 15 in order to have sex with someone underage. Those are two examples. But those are two pretty heinous things to happen. Finding out the guy was actually an Arab? That's in a totally different class, no matter whether you like Arabs or not.

And that's what I find quite repugnant about this. It seems based on the assumption that Shabbar Kashur's Arab-ness is a horrible trait akin to having a disease or taking advantage of young girls. You'd have to regard this as a racist decision, which is a reflection of the entitled attitude of a dominant majority population (in this case, Jews in Israel).

Rape is primarily about power and dominance. I just don't see that as a factor in the sex act here.

Perhaps the woman involved might realise that some of the old-fashioned values - like not sleeping with someone until you know them pretty well - actually have some basis in common sense. Not that I'm justifying his deception, but that's the risk you take when you are over-eager to jump in the sack with total strangers.

And don't for a minute think that I'm trying to minimise rape or its impact. I'm not at all. Indeed, I think cases like this are insulting to the many real victims of rape who need the help of a justice system which is being tied up by frivolous cases like this.

But I may well be wrong about all this, and I'm open to persuasion. Feel free to share your thoughts.
Interesting clip below about the case and the context in which it occurs.

13 comments:

  1. Hmm.
    I can see the context.
    But aside from that there are some basic principles- consent must be informed.

    People have the right to choose their partners and impose whatever filters they want- racial, political, gender, religious.

    From a distance we can say that someone's religion shouldn't be a big deal when choosing a partner, but obviously in Jerusalem it is a very big deal, with very serious social consequences.

    If she made it clear what her conditions for sex were and he deliberately deceived her on that basis (and not on something subjective like "love", but objective, like marital status and ethnicity/religion), then it's fair to say she did not provide informed consent.

    What else do you call sex without informed consent but rape?

    Why should you judge her for being "over-eager" to jump in the sack? We don't know how much due diligence would have been reasonable to see through his (alleged) lies.

    Are your examples (the HIV case and the underage case) really rape by deception? The second one is straight-forward statutory rape. The first one is certainly all sorts of crime, but I'm not sure about rape by deception.

    I've never heard of "rape by deception" but it sounds like the "switcheroo"- changing partners in a dark room without telling somebody, or twin brothers. Or abusing a position of medical or religious authority by pretending that sex is required for medical reasons or spiritual reasons.

    It certainly has a lot to do with depriving the woman of her right to know who she's having sex with.

    A closer example to this one would be a married person pretending to be single to have sex with someone who has explictly said she didn't want to have sex with a married person.

    If such things aren't a crime, I think they should be, because it is a definite violation of a person. It is certainly not trivial. There's a reason why the word "informed" is included with "consent".

    The broader race angle here is relevant, but it muddies the issue both ways.

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  2. "maybe he deserves to have the Jewish woman's brother kick his ass."
    I was going to say that he should be grateful the law is intervening here because in most countries neighbouring Isreal, he could be flat-out honour-killed with minimal consequences...
    but by the same token...so could she for having pre-marital sex...

    But both cases are a good rebuttal to letting people's brothers sort things out with arse-kicking.

    Seriously, it would be good to get a female perspective on how they'd feel if a guy deliberately and blatantly lied about his identity on a matter that was very very important to her just to get sex. Whether they would think it was "frivolous".

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  3. @ bonoboboy:

    Interesting points. I guess it revolves around that question of informed consent, and your statement that "People have the right to choose their partners and impose whatever filters they want- racial, political, gender, religious."

    To my mind, deceiving someone about these things is an entirely different matter to the "switcheroo" and medical abuse examples you give.

    Fraud, perhaps... but I struggle to see it as rape.

    In those latter two examples, the difference between what is being presented and what is reality is pretty fundamental. In one case it is an entirely different person, in another the patient is being effectively coerced to do something that they would not otherwise do, because of the person in authority, who has a disproportionate amount of power in that situation.

    I don't see the difference between being Jewish and being Palestinian as so fundamental. Some Jews and Palestinians might, sure, but I think the importance of ethnicity is being blown out of realistic proportion.

    I say "ethnicity" rather than "religion" because neither person's behaviour seems particularly consistent with being devoutly religious.

    I don't think I'm judging her negatively for jumping into bed too quickly with somebody; after all, many of us have done that. But anyone who does that knows that there are emotional risks involved, right? For example, that the other party is not quite as wonderful as they seemed to be after knowing them for half an hour.

    Again, I'm not trying to defend this guy's behaviour. But I think that if we start applying the word "rape" to things that are not, the term starts to lose its meaning. Which is not something any of us should want.

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  4. Not sure what to say here. It does sound like a big issue because of the current conflict in their part of the world, but if you want to follow logic, then any man who ever lies about anything can be accused of rape. The bottom line is, she had a consensual sex with a man. And she has a full right to be angry if he lied to her. But is that a rape?

    Let's take a more horrible example. A HIV positive man has a consensual sex with a woman without telling her about his HIV status. As far as I understand, it is a crime (at least it's a crime in my country). But, is it a rape?

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  5. @ Mira: I'm not sure if that is considered rape. Possibly. In any case it is very serious; if not rape, perhaps it is considered inflicting grievous bodily harm?

    There are some people, particularly from a radical feminist viewpoint, who would consider all the examples given here as rape. I think it's important to state that by pointing out that something does not fit the legal definition of rape, that's not the same as saying it is okay.

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  6. I'm not a lawyer. It would be interesting to get a professional opinion on the Australian legal status of this.

    The principals involved in rape are, as I understand,
    1) A person's physical/sexual integrity is very important and to penetrate that without permission/consent can cause extreme harm.
    2) At ANY time, for ANY reason, a person may withhold or withdraw consent. Even if a woman walks down the street naked and starts having sex with strangers, she can stop in the middle of having sex and say "No" and if the other guy doesn't stop also, it is rape. Maybe she doesn't like his haircut. Or she thinks he might be Jewish, Arab or worse- a Scientologist. The reasons are irrelevant. It's not up to other people to judge.
    3) Consent must be informed otherwise it ceases to be consent.
    "Informed" means the person has the capacity to fully understand the circumstances involved (who, how, why, where, what).
    Yes, this is subjective.
    How much alcohol can a person have before they are unable to consent? How much mental disability? How dark does the room have to be before a person can reasonably make a mistake about the identity of the person they are having sex with (in the case of the switcheroo), especially if alcohol is involved. I think in Australia we deal with these issues through precedent and through the "reasonable person" test, as applied by the jury.
    The issue with the switcheroo and abusive doctor/priest (many of whom are fake) concerns identity, which can get a bit post-modern. Identity is more than just a person's DNA. Identity theft is a huge issue generally and it can overlap into the sexual domain.

    I think this case potentially meets the principles mentioned above (bearing in mind we don't have all the details but assuming, as you did, a worst-case scenario- i.e. she asked his status and ethnicity/religion and he lied.)

    1) Noone is disputing that her physical integrity was penetrated. Noone has a right to imply that she's blowing the issue of ethnicity out of proportion in selecting her partners or in estimating the amount of her hurt. It should be her choice and you can't possibly know how she feels.

    2) Was she able to consent?
    To paraphrase you- was she effectively coerced into doing something she wouldn't otherwise do by being presented with something that is fundamentally different from reality?

    The deception/presenting a different reality wasn't as fundamental here as switching partners in the dark, but nor can it be described as trivial. You agree that the difference between being Jewish and Palestinian might be fundamental for Jews and Palestinians, which the people involved in this case happen to be. And we can dither about the differences between ethnicity and religion but two locals, meeting in Jerusalem, can probably establish to the satisfaction of each whether they are Jewish or not in 2 minutes flat, if both are asking the question and neither is lying.

    I think the principles involved (sexual penetration, diminished capacity for informed consent due to deliberate deception) would suggest that this is some level of sexual assault, if not rape. "Fraud" doesn't sound right and trivialises the physical violation involved.

    I suppose another more relevant comparison to this case would be a male transvestite telling a straight person he is a woman to have a sexual encounter with a man who has explicitly said he only wants to have sex with women.

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  7. @ bonoboboy:

    I mention fraud because I read of another case in Israel where I believe a man passed himself off as a doctor in order to seduce a woman (ie. to impress her with the associated status). He was charged with fraud.

    At ANY time, for ANY reason, a person may withhold or withdraw consent. Even if a woman walks down the street naked and starts having sex with strangers, she can stop in the middle of having sex and say "No" and if the other guy doesn't stop also, it is rape. Maybe she doesn't like his haircut. Or she thinks he might be Jewish, Arab or worse- a Scientologist. The reasons are irrelevant. It's not up to other people to judge.

    No disagreement there. But I don't think it's relevant here, since consent was only withdrawn after the act.

    Was she able to consent?
    To paraphrase you- was she effectively coerced into doing something she wouldn't otherwise do by being presented with something that is fundamentally different from reality?


    Coerced? No. That is the big difference for me. Presumably she had a good time. Rape is about power, and power is not really an issue here.

    You agree that the difference between being Jewish and Palestinian might be fundamental for Jews and Palestinians, which the people involved in this case happen to be.

    See, my problem is that ethnic difference is being elevated to such a degree of importance. It assumes that being a Palestinian is such a shocking thing so fundamentally different from being a Jew, that it is such a violation.

    "I suppose another more relevant comparison to this case would be a male transvestite telling a straight person he is a woman to have a sexual encounter with a man who has explicitly said he only wants to have sex with women."

    Hear about the show "There's something about Miriam"? Pretty much the same situation. The duped contestants on that show sued the producers for conspiracy to commit sexual assault. (The case was settled.)
    I think a case like that holds more weight because gender (at least in a physical sense) is a far more concrete concept than ethnicity. Obviously gender can be fluid also. One's sexual preference, whatever that is, is fundamentally linked to gender. I don't think race has the same status.

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  8. @ bonoboboy:

    I mention fraud because I read of another case in Israel where I believe a man passed himself off as a doctor in order to seduce a woman (ie. to impress her with the associated status). He was charged with fraud.

    At ANY time, for ANY reason, a person may withhold or withdraw consent. Even if a woman walks down the street naked and starts having sex with strangers, she can stop in the middle of having sex and say "No" and if the other guy doesn't stop also, it is rape. Maybe she doesn't like his haircut. Or she thinks he might be Jewish, Arab or worse- a Scientologist. The reasons are irrelevant. It's not up to other people to judge.

    No disagreement there. But I don't think it's relevant here, since consent was only withdrawn after the act.

    Was she able to consent?
    To paraphrase you- was she effectively coerced into doing something she wouldn't otherwise do by being presented with something that is fundamentally different from reality?


    Coerced? No. That is the big difference for me. Presumably she had a good time. Rape is about power, and power is not really an issue here.

    You agree that the difference between being Jewish and Palestinian might be fundamental for Jews and Palestinians, which the people involved in this case happen to be.

    See, my problem is that ethnic difference is being elevated to such a degree of importance. It assumes that being a Palestinian is such a shocking thing so fundamentally different from being a Jew, that it is such a violation.

    "I suppose another more relevant comparison to this case would be a male transvestite telling a straight person he is a woman to have a sexual encounter with a man who has explicitly said he only wants to have sex with women."

    Hear about the show "There's something about Miriam"? Pretty much the same situation. The duped contestants on that show sued the producers for conspiracy to commit sexual assault. (The case was settled.)
    I think a case like that holds more weight because gender (at least in a physical sense) is a far more concrete concept than ethnicity. Obviously gender can be fluid also. One's sexual preference, whatever that is, is fundamentally linked to gender. I don't think race has the same status.

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  9. "No disagreement there. But I don't think it's relevant here, since consent was only withdrawn after the act."

    She consented to have sex with a single, Jewish man, not a married father-of-two, Muslim. Her consent was obtained falsely and should therefore be considered seriously in doubt.

    "Coerced? No. That is the big difference for me. Presumably she had a good time. Rape is about power, and power is not really an issue here."

    Knowledge is also power. The principle behind coercion is getting someone to do something they wouldn't otherwise do. This can be done by force, but it can also be done by deception. In some ways, deception is even worse, because it makes the victim feel complicit.

    "See, my problem is that ethnic difference is being elevated to such a degree of importance."


    I think other people are elevating the ethnic issue (talking about chosen races, and Arabs being compared to HIV carriers) without giving due attention to the serious issues of manipulation of consent (and subsequent hurt) that it raises, which would be valid anywhere.

    To some people, particularly people effectively at war, the difference between a Jew and a Muslim might even be of greater importance in their sexual preferences than that between a man and a woman. (and I'll say it again- in Jerusalem, there is very little fluidity in people's definitions of Jew and Muslim. You wouldn't be expected to share that feeling, but you're not one of the protagonists in the case)

    At any rate, who are we to judge from here how someone should perceive the importance of ethnicity (and marital status) in making their decision who to have sex with?

    We don't know all the facts but I think a woman has been physically and emotionally violated and has suffered. There should be some sort of process to resolve this and deter it from happening in future.

    Just as the judicial system (through precedent and jury) weights up the extent to which one pint diminishes the capacity to give consent compared to a slab, maybe it should be called to weigh up what deception is trivial or subjective (e.g. a wig, or "I love you") and what might be more fundamental (e.g. religion, ethnicity, gender), taking into account the social circumstances of the people involved.

    "I mean, fellas, let's be real. If you are about to get it on with someone who may be hot but you're not in love with, and he/she asks, "Do you love me?" what are you gonna say?
    Further up the bullsh!t scale, some guys might go all out and lie their asses off to get some ass. You know, pretend they're single when they're not, or pretend they really do want a relationship when they are just out to hit it and quit it. Such guys are douchebags, no doubt. But not rapists, surely? "
    Personally, I'd never say "I love you" to get a girl in bed. Once I've given her the best 3 minutes of her life, I've then got to deal with a person who's got very different ideas than I do. And I think there may be a legitimate point at which lying can be more than douchebaggery, and border on sexual assault (as in Miriam case and perhaps this one), if not rape.

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  10. See, my problem is that ethnic difference is being elevated to such a degree of importance. It assumes that being a Palestinian is such a shocking thing so fundamentally different from being a Jew, that it is such a violation.

    I don't have any problem with this. I mean, I do have an ethical problem, and it does make me sad to see what sort of beings people are. But not in a way I am surprised. That's how it goes. These people are at war and actively hate each other. It can't get worse than that ("sleeping with the enemy").

    But I repeat: I don't see that as a good thing, but I'm not surprised to learn it happened.

    As for informed consent, this is the first time I hear about this. So, any time one of the partners lie about anything, he or she can be accused of rape? Remember, even a tiniest lie can be used as a rape accusation, because a person can claim that one lie is enough of a reason to withdraw consent.

    So, for example, any man who fathered a child because his girlfriend lied about using birth control can sue her for rape?

    I'm not sure if that is considered rape. Possibly. In any case it is very serious; if not rape, perhaps it is considered inflicting grievous bodily harm?

    The HIV example? It is considered a crime in my country and a person can end up in jail for that. But no, it is not considered a rape.

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  11. Mira, the example of the lying girlfriend is interesting.

    Maybe one way of looking at this is "conditional consent".

    The examples we've been looking at earlier is where a woman agrees to have sex on the condition the man is who he says he is. In your example, the man may agree to have sex providing the woman does what she says she will do. If these conditions are not met, then consent is not given.

    I don't know if the law recognises this concept but I think it has validity on principle.

    It is a pity that when you google, "rape by deception miriam" you still get pages and pages of debate about the Jerusalem case and anti-semitism/anti-muslim racism and noone mentioning the precedent set by Miriam- http://en.wikipedia.org/wiki/There%27s_Something_About_Miriam

    Miriam was a Mexican transvestite who pretended to be a woman on a reality TV show and was charged with conspiracy to commit sexual assault and personal injury in the form of pyschological and emotional damage.

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  12. full of shit. Not rape. At all, period.

    Also, like you said, people tell white lies ALL THE TIME to get the opposite sex interested in them sexually. If telling a minor white lie=rape all men would be rapists and all women victims.

    This is BS, full stop.

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  13. Also who jumps in bed with someone just because hes says hes a Jew looking for a serious relationship? LOL thats not serious sweetie, its a one night stand.

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