Analysis: What is the definition of moral turpitude?
It is likely the moral censure that accompanies the term that will hurt Katsav most of all.
By DAN IZENBERGkatsav 298.88(photo credit: Ariel Jerozolimski)
Now that the High Court of Justice has handed down its ruling and the uncertainty over the legality of the plea bargain has been removed, there are two questions that remain to be answered regarding the investigation of former president Moshe Katsav.
The first is whether or not the judge who presides over his case will determine that the actions attributed to him regarding "Tourism Ministry Aleph" and "Lamed," the two women whose cases appear in the indictment - constitute moral turpitude.
The second is whether the judge will abide by the recommendation of the prosecution and the defense to give Katsav a one-year suspended sentence.
One of Katsav's lawyers, Zion Amir, has warned that the former president might still reject the plea bargain if the state asked the court to declare that he was guilty of moral turpitude. The threat is an idle one. The last thing Katsav needs now is to face a stormy, emotional and extended criminal trial in which he will face charges of rape and other serious sex crimes.
Still, Amir's statement reflects his concern over the gravity and, in his eyes at least, the unfairness of such a determination, because it would have serious consequences for his client.
From a practical point of view, the consequence would be financial.
In July, the Knesset Finance Committee passed a decision denying public figures who are convicted of a crime that carries moral turpitude their "special expenses." In the case of the former president, these expenses add up to about NIS 1.1 million a year.
But as painful as that might be to Katsav, who will still enjoy a monthly pension of NIS 48,000, it is likely the moral censure that accompanies the term that will hurt Katsav most of all.
According to legal experts, "moral turpitude" is not a legal term and has no legal definition. Deputy Supreme Court President Haim Cohen once wrote that "moral turpitude is a moral flaw that signals that the one afflicted by it is unworthy of walking among honest people.
This label must stick to such a person because of his sin even after he has served his punishment for it."
According to another definition, "A crime that involves moral turpitude points to a grave moral flaw in the defendant and the nature of the crime he has committed."
Law professor Ruth Gavison wrote: "There is no group of actions that is defined by law as involving moral turpitude because the concept does not come from the realm of law but from the realm of morality. There are two problems with moral points of view in terms of clarity and stability.
"In the natural course of events, they change from time to time and place to place and they differ from one man to another and one judge to another."
Former Supreme Court president Aharon Barak also stressed the relativity of the concept. "The cut-off point between crimes that involve moral turpitude and those that do not is essentially a moral one. Thus the determining point is not the formal definition of the crime but the circumstances in which it was carried out," he said.
These definitions indicate that while the decision as to whether to brand a specific crime as involving moral turpitude is subjective, the term is associated with a crime of a relatively high degree of severity. Such a crimes includes an "added value" element that raises it above "normal" crimes and gives it an extra dimension of moral reprehensibility that does not disappear on the day the perpetrator completes his sentence.
Katsav is a proud man who perceives himself as having devoted his life to the public good. The fact that he has been accused, and been forced to admit to, sexual crimes, has proved devastating to him, as all of us saw in his embarrassing appearance on television after Attorney-General Menahem Mazuz announced the grave charges against him included in the original draft indictment.
But for the court to now declare that his moral reprehensibility is worse than the legal punishment he has received for his crime and that he is, and will continue to be "unfit to walk among honest people," would likely be a much greater blow to him than even his plea of guilt and conviction.
Will the court in fact rule that his crimes involved moral turpitude?
Not necessarily. Despite all that we have head and read about Katsav and his alleged treatment of female employees over the past year-and-a-half, the judge is supposed to decide on this matter according to nothing more nor less than the description of his actions in the plea bargain indictment. As Supreme Court President Dorit Beinisch pointed out in her ruling Tuesday, the actions described in the plea bargain indictment were not very serious. Indeed, they were on the lowest rung of sexual crimes.
On the other hand, the stark contrast between what the president of Israel stands for as the symbol of the national and moral consensus in society, and even those acts to which Katsav confessed, could be enough to persuade the judge that, all things being relative, his deeds do involve moral turpitude.
