The rape of justice

The Katsav trial is a display in how the court of public opinion can overrule the court of law.

By SIMCHA YOUNGER
Former president Moshe Katsav in court 311 (photo credit: Alex Kolomoiski / Pool)
Former president Moshe Katsav in court 311
(photo credit: Alex Kolomoiski / Pool)
The numbers in parentheses refer to the page and line in the public summary of the Katsav decision, 1015/09. This summary is what the court provided to the public as a statement of the legitimacy of its decision, and it is based on this document that the public must be able to evaluate the accusations and the conviction.
The conviction of disgraced former president Moshe Katsav for the rape of “Aleph” was rightly seen as a victory for feminism. Unfortunately, this victory involved the defeat of the rule of law. The trial perhaps showed, more than anything else, the contradiction between justice and the demands of feminism. Katsav was convicted without a fair trial - a fact clearly acknowledged by his judges - and that was the only way Aleph’s grievances could be addressed.
Did Katsav rape Aleph? From a judicial standpoint, we will never know. The judges said that he did, but they also said he was denied a fair trial and acknowledged that Aleph has added to her story over time, after meeting with other people. We can only accept their conclusion if we discard any need for judicial integrity. If a fair trial is necessary to determine what happened, we know nothing more at the end of this trial than we knew at the beginning.
The treatment of Katsav and his trial presented a clear assertion that Katsav’s guilt was so obvious that he did not deserve a fair trial. Rape is very difficult, if not impossible, to prove and if we would demand proof in rape cases, victims would often have no way to pursue justice. The only way a court can prosecute a claim that a rape occurred in private, long before the trial, is if the judges made their decisions based on their sentiment, and not based on any formal proofs and procedures. The public sentiment of guilt justifies holding such a trial - how else will justice be served? If the sympathies of the judges are the basis for conviction, their job is to give power to the victim. The public perception of guilt forms the basis for both the trial and the conviction. The judges never have to judge, they only find a way to formalize the public’s conclusions.
Every person has the obvious right to form their own opinions regarding this story. The opinions of private citizens, however, must remain just that - a private opinion, of no judicial importance. Popular opinion cannot determine what happened, and cannot replace the function of a trial. A judicial decision which is based on popular opinion rather than properly evaluated evidence does not lend any support to the validity of those public opinions. A decision which is given without a fair trial is meaningless, except as much as it shows that a conviction could not be achieved while respecting the demands of judicial integrity.
It seems that many observers accept an automatic presumption of guilt - why would Aleph possibly lie? Even if we could not answer this question, it would not justify denying Katsav a fair trial. As it is, this argument is simply a denial of the fact that lying about rape is a well recognized phenomenon. It was recognized in the Bible, when Potiphera’s wife lied about Joseph raping her when her advances were rebuffed, and continues today with complaints from police departments of being overwhelmed with frivolous sexual assault cases. 
We do not need to know why Aleph would lie in order to require the prosecution to prove her allegations, but some possibilities present themselves. Perhaps the possibility of massive public attention held some appeal, or the chance of getting a sizable retirement fund. Considering that she went to a lawyer the day after Katsav fired her from a respectable and lucrative job (9/22), the possibility of revenge presents itself as an obvious explanation - a possibility which the judges seem to have intentionally ignored. It is also possible that, like Potiphera’s wife, her advances to Katsav were rebuffed, thus motivating her revenge. The explanations for why she may have lied are varied, and in the end, irrelevant. Every claim which comes to court must be proven and not accepted on the basis that it sounds right. Here, there was no reason to assume any veracity to Aleph’s story, but even if there was, the judicial process demands that it be questioned and proven, which it was not.
But what of the other women who came forward to say that Katsav had taken liberties with them? Here to, the conclusions which any individual may draw based on this fact do not make it legitimate legal evidence. In this case, the judges violated the integrity of the judicial process by considering evidence which was not verified by a court, and not subject to cross-examination (8/7). From a formal judicial, standpoint these claims must be considered irrelevant, as they were never evaluated by a court.
The court, as well as much of the public, seems to simply accept the fact that other women came forward to complain as evidence that Katsav found women attractive, and there is no need to verify the individual complaints. Here too there are other possibilities and other conclusions which can be drawn. Perhaps these women also were looking for their chance in the spotlight, and it is also possible that they only decided Katsav had maltreated them after hearing Aleph’s accusations, and such retroactive complaints cannot be of any value. The court also neglected to ask itself how strongly their complaints, if true, supported Aleph’s story. Aleph was an outlier here, complaining of rape and blatant sexual harassment. The other woman who was given an award complained that Katsav had hugged her too hard - hardly an indicator that Katsav would sexually attack someone. The judges seemed to be unable to differentiate between a hug and rape.
The judges interpreted the evidence based on their psychological analysis of the situation and of the people involved, and not through a formal logical evaluation. I do not know on what basis judges are selected in Israel and what their training is, but it is clear their profession is law, not psychology. The judges must judge based on legal principles and leave their emotions at home when they sit on the bench. I also do not have formal training or practical experience in psychology, but not much is required to point out the simplicity and fallacies in the judges’ analysis.

Stay updated with the latest news!

Subscribe to The Jerusalem Post Newsletter

Subscribe Now
The judges assert (10/26) that if Aleph’s performance on the job had not been satisfactory, he would not have allowed her to stay on the job for fourteen months and, if he did let her stay, it could only be because he was afraid that if he fired her she would reveal what he had done to her. Here is one possibility they failed to consider in making this statement: Aleph threatened to lie about sexual harassment in order to keep her job, which worked for a while, until her behavior became unbearable and Katsav decided to take the chance of firing her. A woman using this threat to extort their employers is hardly unheard of, except apparently in court.  In this case, there was a strong indicator that Aleph was extorting Katsav - the whole investigation began when Katsav filed a complaint with the police that Aleph was trying to extort him with threats of filing a false sexual harassment claim. Here is a conundrum for the novice psychologists on the bench - if the complaints were true, would Katsav have filed that report?
In regards to the possibility that there was a consensual relationship between Katsav and Aleph, the decision states: “We do not understand how the defense can raise the possibility that there were consensual relations while the lover claims there were no relations at all.” (18/10) Now I have no interest in arguing over whether there was a consensual relationship, or if the judges should have accepted this possibility from a legal standpoint. However, their rejection of the possibility that it happened based on Katsav’s current denial is incomprehensible. Katsav had good reason to deny the encounter now, even if it had happened and even if it was consensual.
Perhaps Katsav was trying to protect his public image. This may not help him legally, but it explains why he denied a loving encounter, making the judges rejection of the possibility baseless. Katsav would have had another compelling reason to deny the encounter, if it had happened - once he was accused of rape, he would have absolutely no way to defend himself if he admitted to being there. A question of his word against her word would have been a definite conviction, on the basis that she was more believable (which is ultimately the only basis for his current conviction.) Again, I am not arguing that this happened, and the Katsav covered up. We do not know what happened, and probably never will. What we can say quite definitely is that the judges were completely wrong in denying the possibility that it did happen, with the non sequiter that since he currently denies it, it cannot have happened.
The violations of logic are insignificant compared to the violations of the principles of justice. Logic is a goal, principles are a precondition. A fair trial cannot be something which is left to the judge’s discretion. The judges in Katsav’s trial relate to a fair trial as a technical formality which can be waived in consideration of the circumstances. They completely disregard the principle of judicial procedure which says that no one may be punished based on the feelings or determination of any person, but only through a fair trial which respects the rights of the accused. When the judges acknowledge that Katsav was not granted a fair trial and still reject him that right, they are rejecting the basis of justice.
As a final point of consideration, here are three contradictions in the decision. The conviction of Katsav falls on each of these contradictions, individually.
Concerning the position of the defense that Aleph did not originally report rape and only added it to her story after meeting with other people who corrupted her testimony, the judges assert that it is natural for victims of sexual abuse to be hesitant to tell their story and the fact that she added to her story over time cannot be held against her. It cannot be expected that someone who suppressed the story for a long time can be fully open when they first come forward with the story (6/34). They then proceed to defend the authenticity of her story by asserting that since she discussed it in real time, she cannot be accused of making it up (8/1). She is believed because she suppressed her story, and she is believed because she did not.
Concerning Katsav’s reliability, the judges assert that he was familiar with all the details of the evidence and clearly testified strategically. Therefore, he cannot be believed (15/30). One example which they give is that he lied about the date when he fired Aleph. He claimed that he fired her during the primaries, trying to show that he was not afraid of her. Had he been afraid of her, he would not have fired her at that point. It turns out that he fired her after the primaries, not before (15/37). This example of Katsav’s mistaken memories of what happened a few years previously is rather a counter-example of strategic lying. This story of when he fired Aleph would not have been of much value in the overall testimony. Additionally, the date when he fired Aleph is well recorded and easy to verify. If Katsav was well aware of all the detail and carefully selecting what to say and what not to say, there is no way he would have made this mistake. This example, rather than supporting the judges claim that Katsav was intentionally and strategically lying, strongly refutes the judges' assertions.
A third contradiction concerns the only basis for conviction - Aleph’s authenticity as a witness. Aleph is clearly honest in her presentation, the judges tell us, as she testifies in an open and spontaneous manner (15/25). They additionally tell us that Aleph comes across as an honest and authentic person since she was hesitant and unsure of what she wanted to say in her testimony (7/7). The judges not only present contradictory reasons for believing a witness, they blatantly contradict their description of Aleph’s presentations.
The conviction of Katsav, if it is a victory for women, is not a victory over rapists. It is a victory over justice. The only justification for the trial and the conviction is the assumption of guilt, and the demand to forgo the democratic safeguards which would prevent justice for the victim. Anyone who celebrates the conviction of Katsav is celebrating the rape of justice.

The writer studied philosophy and political science, works as a programmer, and has never voted.