Woman consented to sex with married man after he said he was a single Jew looking for serious relationship.
By JOANNA PARASZCZUKIsraeli Supreme Court 311(photo credit: REUTERS/FILE)
In a unanimous ruling on Thursday, the Supreme Court cut the prison sentence of an Arab-Israeli man convicted of rape-by-deception, from 18 months to nine months.Sabbar Kashour had appealed against his sentence following his conviction in the Jerusalem District Court in July 2010.Kashour was convicted in a plea bargain after agreeing to plead guilty to rape-by-deception and indecent assault.Kashour was convicted of rape even though the complainant in the case, identified only as M.T., had consented to sex with him.Under the Penal Code, a charge of rape can also apply if a person has intercourse with a woman with her consent, if that was obtained by deceit “in respect of the identity of the person or the nature of the act.”In Kashour’s case the judges found M.T. had consented to sex after he deceived her about his identity, telling her he was single, Jewish and seeking a serious romantic connection, when in reality he was married, not Jewish and sought only a “no strings attached” sexual encounter.In cutting Kashour’s sentence, Justices Hanan Melcer, Elyakim Rubinstein and Yitzchak Amit partially accepted his appeal. Melcer said the main offense for which Kashour was convicted was not the most severe rape offense, and that he had no previous criminal record.Kashour had also made progress in recognizing the severity of his actions and in striving for reintegration into normative society, Melcer added.However, the court also criticized Kashour’s defense team for raising issues in the appeal concerning his conviction, which they said constituted an attempt to retract his agreement to the plea bargain.Kashour’s defense attorney, Dr. Elkana Laist, had raised objections to the amended indictment, criticizing the district court ruling as excessively paternalistic. Kashour’s actions were not criminal, but only immoral, Laist argued, and at the very worst he should have been charged with obtaining a thing by deceit and not rape-by-deception.
Laist had argued that the district court had not taken into account the fact that the encounter between Kashour and M.T. lasted only for a few minutes, that M.T. had consented to sex, and that since their meeting had been a chance occurrence, Kashour could not have planned to deceive her.Laist also raised disagreements with a number of statements made in the district court ruling, including that “if [Kashour] had not suggested to the complainant that he was a single Jew interested in a significant romantic encounter, she would not have cooperated with him.”Melcer said that this argument, which he said was an attempt to absolve Kashour’s act of any criminality, was problematic because it was not mentioned in the plea bargain.The justice also said Kashour’s defense team had the option in the original trial of pursuing a plea bargain on lesser charges. “The moral and legal-philosophical aspects of rape-by-deception as a legal instrument provide protection to the public in general, and to women in particular,” Melcer added.Amit noted that the original indictment against Kashour had been far harsher than the amended one, and included a charge of rape without any consent from the complainant.According to the amended indictment, the rape occurred in a building on Jerusalem’s Hillel Street in September 2008. Kashour presented himself to M.T. as a single Jewish man interested in a serious romantic relationship.She believed him and agreed to accompany him to the top floor of the building. In the elevator, Kashour embraced M.T. and touched her in a sexual manner, and on the top floor had full sexual intercourse with her. Immediately afterward, Kashour left the building, leaving M.T. alone and naked.In August 2010, the High Court of Justice ruled to postpone Kashour’s sentence, pending his appeal, on the grounds that the sentence might be reduced on appeal.Kashour was also released from house arrest. Following Thursday’s ruling, Kashour’s prison term will begin on February 19.
