rape by deception

I haven’t seen much press about it here, but upon returning from Israel a few of my colleagues told me about a court case that shows the salience of race and racism in Israel. The story is this: a man and a woman had sex. Both willingly. But the man had lied. He introduced himself with a traditionally Jewish name. But he was an Arab. She later found out, filed a complaint, and he has since been convicted of “rape by deception.”

“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.”

I think central to this case is to see just how salient race is as a category. Most initial sexual encounters are marked by degrees of deception. We might lie about our occupations, our present relationship status, our overall amiability, our prowess, our intentions, etc. Now there is clearly a difference between omission (withholding the truth) and commission (telling a lie). Both are intentional acts of deception. But in the former case, we can’t always know what the other in an interaction will think of as “dealbreaker” information.

Regardless, it seems to me that such deception is commonplace. Indeed, sometimes we even appreciate deception, as it might increase our erotic excitement, or, if you’re meeting someone for the first time you don’t want to hear about ALL the bad things they’ve done in their life (or are doing now). You might want to build a relationship. And doing so means putting your best foot forward. In short, you deceive. You lie by omission.

But what omissions count? Informed consent is a pretty tough bar. “I never would have had sex with him if I knew he was married.” Rape? I’m not so sure. “I never would have had sex with her if I’d known she repeatedly cheated on her ex.” Rape? You can imagine lots of scenarios… “if he weren’t a lawyer… if she wasn’t really from a wealthy family… if I’d known he had a Black father…”

And that’s where race comes in. Race is so salient a category in Israel that to lie about it is to commit rape. This conviction is serious: the three judge panel refused to allow community service and instead is demanding some pretty serious jail time.

I hesitate to reveal the fuller story of their encounter, as it could be read as a way to slander this woman — to suggest, as is not uncommon in this case, that her sexual character is such as to have “asked for” this incident. But I think the details are relevant, not to the case, but to the thinking in about race. The two met on the street. He introduced himself with false name. They talked. They then wet to the top floor of a nearby office building and had sex. He immediately left. What’s interesting here is that the court, in working within the idea of “moral purity” polluted by grotesque actions maintains a different reading of the encounter.

“If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have co-operated…”

Now I don’t wish to make any kind of argument about moral bankruptcy by contrast. Instead I would simply note that this is a very generous reading of the encounter, and one necessitated by an insistence of the sacredness of Jewish womanhood and the pollution of Arabs.

16 thoughts on “rape by deception”

  1. Interesting. This reminded me of a recent NYT ethicist column on potentially outing a transgender person (FTM) dating women within an Orthodox Jewish community here in the states. The questioner doesn’t say, but I doubt there was much physical contact–I think the issue was probably that she didn’t think the person was a “real” man and resented wasting the time spent (along with transphobia), though she doesn’t actually say what her problem is with the person. Queer advocate sites had a lot to say about this, generally critical of the Times’ columnist’s response, though some commenters felt that the transgender person should have known it would be an issue and disclosed it early on (it wasn’t clear how far the relationship had gone), or not tried to date within the Orthodox community http://www.nytimes.com/2010/07/11/magazine/11FOB-Ethicist-t.html

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  2. I wonder how Goffman would read this. Seems like, from the perspective of symbolic interaction, whether you are deceiving or being the “real” thing, you need to do the same thing: perform your identity thorugh impressions. So a real “Jewish” guy would have needed to perform just as much as this fake “Jewish” guy. So, seems like whatever our imposter Jew did, he performed Jewish sex well. But his impressions were foiled not by anything he himself did, but by some non-performed thing, like state records or something that say he is “not Jewish”. This is all to say whether some identities are in fact, in the last instance, not performable or at least based on impressions outside the control of the actor?

    Also, I wonder what people would think, say if this “deception” included “conception”. I.e., lets say this woman got pregnant? Does that change the evaluation of this guy?

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  3. It’s very interesting that they defend the sacredness of Jewish (pure) womanhood in the case of a woman having sex with a man she’s not married to. Clearly they’re saying it’s not consensual because he lied, but is the implication they would say it’s OK to have casual consensual sex with a Jewish guy?

    Quite separately, I recently re-read a great 2003 article in the NYT by Amy Harmon about online dating, which includes this line:

    “It’s amazing how all women say they’re slender when a lot of them are overweight,” said one 79-year-old Manhattan man who lists himself as 69 on his Match.com profile.

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  4. Just a quick followup: it’s not 100% clear to me how this guy lied. There’s a story here:

    http://www.haaretz.com/print-edition/news/jurists-say-arab-s-rape-conviction-sets-dangerous-precedent-1.303109

    It reports:

    “According to Kashur, he was exiting a grocery store in downtown Jerusalem around midday when a woman in her late 20s began to talk to him. “I would say she set upon me. She was interested in my motorcycle and so we talked. I didn’t pretend. I said my name is Dudu because that’s how everybody knows me. My wife even calls me that.””

    So, first off, Kashur, the man accused, clearly not a great guy. He’s got a wife and two kids. I asked my Israeli friend about this.

    “dudu is a common israeli nickname; I think it is often associated with jews. But its very very interstng because in israel, there are many many arabs who will use a different name than say “mohammed” in order not to scare of jews and assimlate. For example, when my parents were fixing their huse the contractor, a christian arab, went by “micky”. Its a way of kind of assimilating”

    but maybe there is more to this “presenting himself as an interested Jewish bachelor” idea that I’m not seeing (I don’t read Hebrew).

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  5. Obviously the rational response would be to require Arabs to wear something that would reliably identify them, so that potential sexual partners would be properly informed in advance. Given that the matters at hand are so intimate, sensitive and fateful, you’d want to be something obvious. Perhaps a yellow badge of some kind would do the trick, as it would be easily visible in the dark. Or maybe a tattoo.

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  6. Btw, I wonder if he was circumcised….if not, could be the basis of a wonderful defense! If it doesn’t fit you must acquit!

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  7. We don’t know if he was a Muslim or not, just an Arab, but you should know that Muslim men comprise the largest block of the portion of men who are circumcised. It is a common misconception that this is unique to Judaism.

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  8. Though race is certainly an issue here, rape by deception can (and has) been recognized or proposed in other contexts.

    Massachusetts legislators proposed (but failed to pass, yet) a law that would make it a criminal offense to have “sexual intercourse… with a person having obtained that person’s consent by the use of fraud, concealment or artifice.”

    Many U.S. states have laws providing that “assent does not constitute consent if … [i]t is induced by force, duress, or deception”. This could be applied to rape, thought I’m not sure whether it has been.

    Previous convictions for this crime in Israel have not involved race. In the two examples I have seen, one conviction had to do with a housing official claiming that he could get her an apartment if she had sex with him, and another involved a man who falsely claimed he was a neurosurgeon before they had sex. I don’t know the facts of the latter case, but if it simply involved somebody who wouldn’t have slept with the man if he hadn’t lied about his profession, then it sounds like some Israeli courts are willing to apply this law whenever there was any deception involved. Sounds like too broad of a law, for the reasons you’ve pointed out.

    It would be interesting to see if the courts use the same “sanctity” or moral purity language in the non-racial rape-by-deception cases. If not, that strengthens the interpretation that the ruling was motivated by racial pollution concerns.

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    1. I’m pretty sure California has a rape by deception law. The Sleiman case is interesting (the apartment one). If he hadn’t been convicted of rape would they both have been guilty of prostitution? In the neurosurgeon case it was fraud that they guy was convicted of. Which, as I understand it, is a lesser crime.

      I don’t object to rape by deception laws. Some are certainly essential (one could think about the rape/attempted murder convictions for people with HIV who knowingly infect others). What I DO object to us have race be a legitimate category of “deception”.

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  9. What ever happened to caveat emptor?

    I’m not so sure we need rape by deception laws for cases such as transmitting an STD. Couldn’t we make “knowingly transmitting a deadly disease” against the law without even bringing sex into the equation? Otherwise, we are just arbitrarily defining rape based on particular cultural values.

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  10. I don’t agree with applying rape law (or probably any criminal sanction) in this kind of situation. I just wanted to point out that the situation may be more complicated that it seems.

    Let’s put aside the issue of whether the ruling was racist for a moment. Most people seem to think that the woman’s reaction was racist. But this is not necessarily the case. First, he allegedly lied about three things: 1) his marital status (he was married with children), 2) his interest in a long-term relationship, and 3) his religion/ethnicity. I’m not sure we know which one was most salient to her, or whether it was the combination of the three lies that made her feel violated. Being tricked into committing adultery could have been a big factor, since their sexual contact could have broken apart a nuclear family (though certainly hauling him to court won’t help keep the family together). It is even possible that she would have pressed charges if he had been a married Jewish man who claimed to be single and interested in a relationship. It’s also possible she would not have pressed charges if he was a single, available Arab man who was only lying about his religion/ethnicity. We just don’t know.

    Second, a commitment to dating or marrying within the faith is not by definition racist. Most world religions (including Catholicism and Islam) prohibit marrying outside the religion. People who greatly value their religion understandably want their descendants to be adherents too, and probably the most reliable way to ensure this is to marry within the faith. Judaism may be a nation as well as a religion, but this does not necessarily mean that a commitment to endogamy is motivated by prejudices against certain races or ethnic groups.

    Third, we don’t know this woman’s past. We can’t assume she has one-night stands all the time. For all we know, should could have been a virgin who naively believed that the man was interested in a long-term
    relationship with her, and was overwhelmed by the insistent advances of a smooth-tongued, mendacious cassanova. If this is the case, it may explain her desire to have him punished.

    Fourth, we don’t know how they ended up at the top floor of the building. They could have said, hey, let’s go have sex, I know a good place nearby. But he also could have suggested they were going there for a different reason — to see the view, or whatever — and then once they were up there, he aggressively put the moves on her until she relented. Consent is often a subtle matter, and even though sex might not have been forced, it’s possible to imagine situations in which consent is given but only after the woman feels threatened and afraid to say no. Given how aggressive men can be about sex, this kind of situation is probably quite frequent. If it happened here, it might explain her reaction.

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    1. The question is not whether or not she is racist. It is fairly difficult to legislate what particular people believe or think.

      It is quite another thing, entirely, for the state to codify racism in criminal court. She may well feel that she was deceived in a way that constitutes rape. But that does not mean that the state should reify that position.

      As for what happened: every account that I have read indicates that she acknowledged that the sex was full consensual. Further, they found out who this guy was because she game him her phone number after the encounter and he called her. This hardly seems the action of either a rape victim or perpetrator.

      See here: http://www.guardian.co.uk/world/2010/jul/25/saber-kushour-rape-deception-charge

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      1. I agree. I didn’t notice he called her — thanks for pointing that out. I know it’s more important what the court does — I was just addressing her racism because this is an aspect of how people view this situation. I think most people immediately assume she was just some kind of person who sleeps around all the time and once she finds out it’s an Arab she says, ick, it must have been rape. That may well have been the case, and that would certainly be racist, but I just don’t think we know enough to make these judgments about her history and mental processes.

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