JERUSALEM (JTA) — If a woman believes she was deceived by a man she agreed to have sex with, does that constitute rape?
It can, according to a Jerusalem District Court.
Last week the court ruled on a case involving a woman who said she believed the Arab man with whom she had consensual sex a few minutes after meeting him was a Jewish bachelor interested in a serious relationship.
The man, Saber Kushour, a married father of two from eastern Jerusalem, was found guilty of “rape by deception” and sentenced to 18 months in prison.
Some Israeli commentators greeted the ruling with incredulity and dismay; some have denounced it as anti-Arab racism.
Haaretz columnist Gideon Levy wrote that Kushour’s only crime was that he "was born Palestinian."
Political analyst Sima Kadmon, in an Op-Ed in the Israeli daily Yediot Achronot, wrote that "If any married man who has ever lied in order to get sex would be charged with rape, there would be no room in our prisons,” “It appears that the court had a problem with Kushour being Arab rather than with him being married."
But Dana Pugach, head of the Noga Center for Victims of Crime, told Ynet that she thought the verdict was appropriate.
"We all have different characteristics, and it is a person’s right to have sexual relations with a person knowing the facts about those characteristics,” Pugach said.
Kushour does not deny that he had a one-time sexual encounter with the woman, who was identified as Maya, but he denies that he misrepresented himself as Jewish in order to sleep with her. His lawyers reportedly are planning to appeal the ruling to Israel’s Supreme Court.
In an interview with the British Guardian newspaper published Sunday, Kushour — who is known by the Jewish nickname Dudu, a sobriquet for David — said Maya never asked if he was Jewish and did not appear to be looking for a long-term relationship when the encounter took place in 2008.
Within 15 minutes of meeting each other, the couple had consensual sex on the top of a nearby building. Kushour left the woman immediately afterward, but not before tapping her phone number into his cell phone.
Maya filed a police complaint shortly after the encounter, and when Kushour called her six weeks later, she had enough contact information to have him picked up by police and confined to house arrest for the past two years.
"If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated," Judge Zvi Segal wrote in his verdict finding Kushour guilty of rape. "It is incumbent on the court to protect the public interest from sophisticated, smooth, sweet-talking offenders who can mislead naive victims into paying an unbearable price: the sanctity of their bodies and souls."
Haaretz’s Levy wondered, however, “Do the eminent judges understand the social and racist meaning of their florid verdict? Don’t they realize that their verdict has the uncomfortable smell of racial purity, of ‘Don’t touch our daughters?’ That it expresses the yearning of the extensive segments of society that would like to ban sexual relations between Arabs and Jews?"
It was not the first court ruling against a man who used deceit in a sexual context, according to Haaretz.
In one case, a man named Eran Ben-Avraham was convicted on three counts of fraud for telling a woman he was a wealthy neurosurgeon in order to maintain a relationship. In another, Zvi Sleiman was convicted of rape by deception for pretending to be a senior Housing Ministry official and making promises of an apartment to keep his girlfriend. That decision was upheld in 2008 by Israel’s Supreme Court.
In the United States, California and Tennessee have "rape by fraud" legislation, according to CBS News.
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