Israel: "Rape by deception" turns out to be brutal rape of a vulnerable and abused woman

by Elizabeth (Israel)

This July, Israeli and world media enthusiastically covered a peculiar verdict issued by an Israeli court, sentencing a Palestinian man to 18 months in prison for impersonating a Jewish bachelor and under that guise convincing a Jewish woman to have consensual sex with him. The accusations of racism were flung forcefully at the woman and the Israeli judiciary, despite the focus of the verdict on the marital status of the man and not his race. “All men should be jailed if lying is a crime”, commentators chirped. The media didn’t bother asking why Kashur was initially charged with non-consensual rape, and why he agreed to the plea bargain.

Last week, Haaretz daily published a long expose on the matter (my full translation below), revealing what was behind the plea agreement. The report shows, that the victim, B., was raped by her father since she was six-years-old, and was later forced into prostitution by him. At the time of the rape, B. was staying in a women’s shelter after another sexual assault by her father. According to B.’s testimony, first revealed in the Haaretz report, after Kashur claimed that he was a Jewish bachelor, he enticed her to come into a stairwell in a Jerusalem building, where he brutally raped her. B. was left bleeding, beaten up and half naked by Kashur.

Following the rape, B. was hospitalized in a mental institution, where she was investigated by the police. The Prosecutor’s office decided to charge Kashur with rape and sexual assault based on B.’s testimony and other evidence. When B. later appeared in Court to give her testimony, which was confused and contradictory at times, she was confronted by the Defense attorney with her past occupation as a prostitute and her father’s abuse and rape from an early age. The court appearance left B. severely traumatized. When the Defense learned that B. previously filed 14 complaints against her father and other men for sexual assault, it asked to cross-examine B. once again about the past complaints, while focusing on a number of them that didn’t result in an indictment and convictions due to contradictions in her story. The Defense planned to use B.’s past complaints to shatter her credibility. Wanting to avoid another traumatizing event, the Prosecution formulated a plea bargain with the Defense that reduced the charges to “rape by deception”. Essentially, using the threat of once again subjecting a vulnerable rape victim to a traumatizing interrogation, the Defense was able to reach a plea agreement with greatly reduced charges, which didn’t correspond with the facts of the incident.

The Israeli media has failed to thoroughly investigate this matter, resulting in widespread victimization of a rapist and mockery of the “gullible” woman. B. was victimized and abused by her surrounding from an early age, and unfortunately, the Israeli and foreign media, pundits and the blogosphere, victimized her once again.

The Haaretz expose is below:

“I wasn’t wearing pants, stayed this way, because I was in shock. The floor was dirty with blood and I was really afraid of touching myself to see if I’m alright”
By Lital Grossman
Haaretz, September 3, 2010

This is, according to B., was the result of her meeting with Sabbar Kashur – the Arab who became famous for posing as a Jewish bachelor in order to sleep with her. In her testimony, revealed here for the first time, she claimed that on that day, Kashur forcibly stripped and raped her in the staircase of a Jerusalem building. So why did the Prosecution go for a plea bargain with a reduced charge of consensual sex that was obtained by deceit? Why did the media portray a completely different picture from what becomes clear from the testimony? And what does all of this have to do with B.’s past as a prostitute?

The story of “Dudu”, Sabbar Kashur, the Arab family man who posed as a Jewish bachelor and based on this elicited the consent of a young Jewish woman to have sex with him and received 18 months in prison for it – seems weird from second one. Rogel Alper wrote about this in this paper: “Not just Kafkaesque, this is completely mad: before us is a totally banal story, a daily occurrence really, of consensual sex, after which the woman discovered that the man lied to her, and therefore the court decided it was right to send him to prison for 18 months! The essence of this crazy story is: sex obtained by prevaricating details equals rape.” The feeling that the court wouldn’t have been as harsh with a Jewish defendant added a racist undertone to the affair, which only increased the suspicion that this affair is too crazy to be true, even in the current climate. Alper expressed this in the closing of his article, saying “I wouldn’t be surprised if behind this absurd and truly unbelievable plea bargain, there is a more complex truth than what has been published in the media.”

Based on the incomplete facts published thus far in the case, Kashur’s role as a victim became established over the past month and a half, and rightfully so. However, according to the testimony of the complainant, the full story appears to be much more complex, and the victim is the one Kashur left naked in the staircase of the building on 13 Ben Hillel Street (publishing her name is forbidden and she will be called here B.). The new details shed completely new light on this case, and haven’t been published until today because they were first revealed in B.’s testimony in court, which was classified as it was said in a trial behind closed doors. Following the request of “HaIr” [local Haaretz-affiliated newspaper in Tel Aviv – E], the court recently declassified the testimony and paved the way for its publication. The testimony details in 100 pages B.’s tragic life story and her version of the events that happened on that afternoon two years ago, and is exposed here for the first time.

The event: “He behaved like some psychopath.

The basis for understanding the affair is B.’s life story, a woman in her late 20s from a town in central Israel, who was sexually abused by her father since she was six-years-old, and eventually forced into prostitution by him. She spent parts of her childhood in and out of boarding schools, and as an adult worked as a prostitute, used drugs and for a while even lived on the street, but this didn’t end the abuse from her father. Only a month before the incident with Sabbar Kashur she was once again abused by him and as a result ran away to a women’s shelter. This cruel irony is that this placed her only a few blocks away from where she would eventually be raped.

On that morning, September 3, 2008, B. left with the director of the shelter, a social worker and another friend who stayed at the shelter to a meeting in Galgal, a crisis center for homeless youth. After the meeting the three left to another location. B. recounts: “I walked toward Zion Square and then sat by a Cellcom store at 13 Ben Hillel street… I sat on the rocks under a tree and listened to (music; LG) on my MP4.” Then, B. says, a guy she didn’t know appeared, riding a moped. In the interviews conducted with him later, Kashur said that he arrived there to shop at a near-by store. “He drove behind my back toward me”, continued B. in a broken language that characterized her whole testimony (here it should be pointed out that all the mistakes are in the original; LG), “and he stopped few meters from me, like only a little far from me. He called me, like, to come to him, and I told him that he should come to me (Kashur later claimed in interviews that she was the first to approach him; LG)… we talked for about seven, ten minutes before the incident happened”.

At this point occurred the dialogue that was later used as the basis for the charge of deception against Kashur. “At first he told me his name was Daniel (and not Dudu, the nickname his friends use, as Kashur claimed in interviews; LG)… he didn’t want to tell me his last name… after a few minutes he like said ‘Cohen’”. B. also said that “he asked me if I have a boyfriend and I said no, and then he asked me if I want to be his girlfriend. I asked him if he’s married, and he said no, and then I asked him if he has children and he told me he doesn’t have children.” Later in that conversation, according to the testimony, Kashur asked B. for a kiss. “He wanted me to give him a kiss on the cheek and then he gave one back”. According to B., they also exchanged phone number.

At this point, according to the testimony, Kashur invited B. to see where he works, supposedly in the building at 13 Ben Hillel Street, outside of which they were standing. “He said he wanted to invite me for coffee and show me his workplace there”, said B. The reason she gave for agreeing to leave with an almost complete stranger was “I looked for someone to put my trust in… I know that strangers, you even don’t contact them… but because I was like, as you know, when I told you that I came from a place where there’s no, I lived on the streets for a while too… I thought that if I am with him, I’ll feel safe, and I’ll have, I’ll be financially secured. I really like trusted him.”

Right after they entered the building, B. claims, Kashur began forcing himself on her. “We were in the staircase, like in the first stairs of the building, where we entered and then he asked for a hug… so I hugged him because he said that he wants a hug for warmth and love because he didn’t have a relationship in a while, like a girlfriend… and when I felt that he was too clingy, I tried pushing him away, so he used force a little like, got a little aggressive.” According to B., Kashur wouldn’t let go. “He lifted my shirt and the bra and kissed my chest”, she said. But then, a blond woman entered the stairwell, and Kashur stopped. He decided to move from the stairs to the elevator. “When I was with him in the elevator he also touched me and started acting like some psychopath. I was so scared of him… I started sensing that something strange was happening, because I noticed that I wasn’t going to any workplace and I don’t see any coffee cups, and I don’t, then I began to panic and started like, I also screamed when it started happening.”

When they left the elevator on the top floor of the building, according to B., Kashur took her to the stairwell that led to the attic. There, according to her, he raped her. “We took off my pants and underwear”, described B., “and all of this was done with force, I didn’t agree to anything… I was left in just my shirt. Then he took off his clothes… then he put saliva on his penis and then, it was like full penetration, like, it wasn’t with consent as he claims. He laid me on the floor… and asked to kiss my chest too and then like when I asked that he stops and tried to push him away, he started pressuring me with his arms forcefully on me… when I tried to push him with my hand in his stomach, this happened in a more advanced stage, when he was already inside of me, then he said that if I don’t stay silent and I don’t resist, then it would like end faster and it wouldn’t be like, he wouldn’t use force. I still resisted him and it was forced.”

The detention: the confrontation at the police station

According to the testimony, after Kashur climaxed, he stayed lying on top of B. for a while. After that, he got up and left, leaving her half naked. “Then (Kashur; LG) just disappeared and took my MP4…”, she claimed, “and I ask that he return it to me because it is in his house.” Left alone in the stairwell, B. began to weep. “I was really hysterical”, she said. At this point she also noticed that she was bleeding out of her vagina and panicked even more. After a few minutes her brother happened to call and she asked him to call her caregiver. The caregiver quickly contacted B. who told her about what happened. “She told me not to freak out and call MADA [an ambulance – E]”, B. recounted the conversation following which Yasam [Special Patrol Unit – E] policemen arrived at the scene and found B. up the stairwell. “The Yasam (arrived; LG) before MADA”, says B., “when they arrived I was… I wasn’t wearing pants, like stayed this way, because I was in shock. The floor was dirty with blood and I was really afraid of touching myself to see if I’m alright, I was really frightened.” After this the MADA crews arrived as well. According to her testimony, in the examination in the Shaarei Tzedek Hospital scratch marks were found on her body, which were documented in the Prosecution’s file.

Following the incident, the testimony shows that B. was hospitalized in “Kfar Shaul”, a government run psychiatric hospital in the Har Nof neighborhood in Jerusalem. “I am not crazy or have a mental illness”, she wanted to clarify in her testimony, “I was there because they have a women’s ward… for women who were sexually abused.” That night, Kashur called B.’s cell phone. She testified that she had given him the number earlier in their meeting. “I didn’t recognize the number”, she says, “I didn’t know it was him so I answered.” Kashur asked to see her again. “I said everything out of fear… I don’t actually remember what I said because it was late at night”, recounted B., “I just know that when I got up in the morning I had about 20 unanswered messages (probably means calls; LG) and I had two messages that he left me that I showed them to the interrogator Sharon and she saw, ‘what’s with you? What happened? Don’t you want to answer?’”

About a month after this, on October 5, Kashur was arrested. In media interviews he said that at first he didn’t understand the reason for the arrest. A police investigator called him and told him that he was involved in a fight with a security guard at the Magistrate Court – a fight that according to Kashur never happened. Kashur decided to come to the station to see what it’s about. Only after a few hours Kashur began to understand based on the questions of the interrogators the real reason he’s being interrogated. “They questioned me for eight hours”, Kashur said in an interview to Eti Abramov of Yediot Aharonot on July 25, 2010, “they asked me all kinds of questions that sounded very strange to me… If I slept with any woman since being married. B. didn’t even cross my mind. But then the interrogator told me “midrechov” [the central street on Jerusalem, which runs parallel to Ben Hillel street – E] and “elevator” and slowly I began to connect the matter to B. I told him ‘wait, wait, what are you getting at?’ And then they dropped the bomb on me: ‘the woman filed a complaint against you for rape.’ I was shocked.” After this interrogation, Kashur was placed in detention that lasted one and a half months (and was later released under house arrest).

A few hours after he woke up in his first morning of detention, a confrontation was held between him and B. Based on this confrontation, B.’s complaint and the evidence collected by the Prosecution, the Deputy Prosecutor of the Jerusalem County, Danny Wittman, decided to charge Kashur with a severe indictment that charged him of rape and sexual assault. “The defendant had sex with the plaintiff without her consent and sexually assaulted her for sexual arousal and satisfaction against her free will”, the indictment read.

The testimony: Outbursts toward the defense attorney

A few months after this, on March 19, 2009, during the trial, B. was put on the stand and recounted her version of the events, which was summarized here. The occasion, understandably, was traumatic for her: her facial expressions showed that she was under immense pressure, sometimes on the verge of hysteria; her speech was broken and at times unclear; on several occasions the judged offered her a glass of water, and at another time suggested she should sit down to help her relax. The person who elicited most of her feelings of rage was the public defense attorney Adnan A’ladin. For example, when he questioned her about her past as a prostitute she told him: “you completely confused me, you’re looking at me and smiling, this is just…”. The judge Segal offered her instead to “look at us”, B. responded: “he’s just making it hard to concentrate, I’m sorry…”.

However, it should be pointed out that in the cross examination some problematic points arose in B.’s testimony. For example, the lawyer A’ladin focused on B.’s claim to the investigator that she was a virgin before the incident – to Kashur she said that she hasn’t been with a man – while also testifying that her father raped her from an early age and even served prison time for this. B. said that in the past her doctor told her that she is a virgin. She also added that she told the investigator that she was a virgin because she was worried that her complaint wouldn’t be taken seriously if they knew about her past.

The last sentence touches the second problematic aspect of B.’s testimony: the fact that she worked as a prostitute – even though she states that she didn’t do it while staying at the shelter. “If I do what I do it’s because I want it and it’s not forced on me”, B. explained with fervor to A’ladin, “and if I went with him like as a prostitute I would get money, I would ask for money. But I wasn’t the one who took from him, he was the one who took from me. My freedom, my liberty, my body and my MP4 he took.” It’s important to note that Kashur also didn’t claim – in the press interviews – that B. asked him for money.

The plea bargain: “The testimony would be traumatic”

Over the years B. filed 14 complaints, most of them for sexual offenses, against her father and other men. Some of the complaints were found to be justified, the defendants confessed and were sent to prison. Other complaints didn’t result in indictments, sometimes due to lack of evidence, and sometimes because B.’s testimony was doubted. When B. was first put on the stand in Kashur’s trial, the defense didn’t have all the 14 cases, but only a short list with the details of the cases, without all the evidence. Therefore, A’ladin applied to receive the cases following B.’s testimony. A’ladin’s intention was to put B. back on the stand and question her about the details of the cases where she was found to be unreliable – in order to discredit her in this case as well.

The Deputy Prosecutor Wittman did not like the idea of putting B. back on the stand. The previous time was, as mentioned, nothing less than traumatic, and B. was not interested in it herself. “We thought that the defense attorney’s request to question the plaintiff again about those past complaints, some of which didn’t lead to indictments, was legitimate”, Wittman explained to HaIr, “therefore, we faced a dilemma whether to expose the plaintiff once against to the cross-examination of the defense attorney over these complaints, which would inevitably lead to another traumatic experience for the plaintiff, or reach a plea bargain, as the defense attorney suggested.”

And thus, out of a desire to prevent B. from testifying for the second time, the plea bargain was hatched, in which both sides agreed to change the charges from rape without consent to rape with consent that was elicited with deception, a much less serious count. In the new indictment filed to the court on July 14, 2009, the charges where changed to: “The defendant, who is married, falsely presented himself as a Jewish bachelor to the plaintiff, and presented himself as interested in a meaningful romantic relationship (hitherto: the misrepresentation) and offered her to escort him to the building. Due to this misrepresentation, the plaintiff agreed to accompany the defendant.” Thus, B.’s version was narrowed down to the almost-innocent affair of impersonating. “Plea bargains never match the original narrative of the plaintiff, because the two sides have to bridge the gap between them and reach an agreement,” explains Wittman, “in this case we gave up on the ‘forcible’ element and agreed to a rewriting of the indictment, according to which the defendant had sex with the woman with her consent that was obtained with deception. This formulation fully corresponds with the demands of the article in the law [Israel’s Criminal Code- E] that defines the alternative ‘rape by deception’”.

The handling of the media of the case: Tailwind to the Supreme Court

But the agreement between the sides to update the counts of the indictment didn’t end this affair. In hindsight, it can be seen that the root of the trouble – that appeared a few months later with a media onslaught on the verdict, harsh criticism of the judiciary and an appeal to the Supreme Court – was the disagreement between the sides about the punishment that will be given to Kashur. The Prosecution wanted to see Kashur serve time in jail, and when asked during the argumentation for punishment on the duration, Wittman replied: “more than six months in jail, but not many years. I don’t want to state an exact number of months.” This is while the Defense argued that any punishment beyond probation would be unjustified. The main arguments of the Defense were the lack of criminal history, the admission and acceptance of responsibility, and then need to integrate Kashur in a rehabilitation program. On top of that, Kashur has already been punished with house arrest for over a year (for about two years until today), wearing an electronic bracelet. But on July 19, 2010, almost a year after the filing of the updated indictment, the three-panel court sentenced Kashur to 18 months in prison.

At this point, the media entered the fray and did so like an elephant entering a china shop. The media, being unaware of the legal complexities of the case, only joined in at the last moment and fumed about what appeared like a grossly disproportionate punishment compared to the counts of the indictment, and the punishment of Kashur for essentially portraying himself as a Jew. As a result, Kashur was turned into a victim of an apparently racist judicial system. “Posed as a Jewish bachelor, had consensual sex – and convicted of rape”, the Haaretz headline read. In a commentary article, the law commentator of the paper, Ze’ev Segal said that: “the application of this offense (rape offense; LG) also on a case where consent was given due to misrepresentation of one of the sides is nothing but contempt of the offense of rape. As merchants praise their merchandise, so do people, at times, present themselves as something they’re truly not.” It should be mentioned that as this point, B.’s testimony remained classified, which made it difficult to get the full picture of the story. Nevertheless, it didn’t seem to interest anyone why Kashur was initially charged with rape without consent and why later he agreed to take a plea bargain.

The importance of these questions grew smaller and smaller with every appearance of Kashur in the media. Absurdly, the verdict, which at first shocked him and his attorneys, played into their hands complexly, by making Kashur a sought-after interviewee, exactly because of the severity of the verdict. In a short time, Kashur presented his version on television, the radio and a newspaper, while of course omitting the details that were problematic for him. Among other things, he told Abramov in the Yediot Aharonot interview that “it was clear that the girl really (ashkara) jumped on me, wrapped herself around me. I don’t remember who was the first to say “let’s have sex” but it was clear that she wanted it.” Yediot Aharonot added insult to injury by attaching to the interview a box with a guide to “the lies everyone tells on the first date”. In an interview to the morning show on 103FM, said the host Gabi Gazith to Kashur: “you probably were aware that many in the media think that the punishment you received was too harsh?” At another point of the interview Kashur said: “I made a small mistake and I’m paying for it tenfold.”. “Everyone makes mistakes”, agreed Gazith at the end of the interview and wanted to clarify: “don’t let anyone think based on this friendly conversation that we support deception, or that we’re for providing false details about yourself. We think people should proudly carry their real identity and their name. But if it’s not asked, it’s not asked”. This friendly chat is just one example of the gap between B.’s testimony and the way the case was portrayed in the media.

It should be said right away that in the limited context in which the details of the events were presented, there was ground for the suspicion of racism. A sentence of 18 months in jail for an Arab who posed as a Jew in order to have sex seemed unreasonable, which is proven by the complexity arising from B.’s testimony. However, until it was revealed, the affair caused significant damage to the judiciary. Most of the fire was directed at the Prosecutor, which when trying to reply had its hands tied since it signed a plea agreement stating that the sex was consensual, and now couldn’t claim otherwise. At some point Wittman was dispatched to the media front, and attempted to explain to Ynet, three days after the publication of the verdict, the development of the case. He did this under the limitation imposed on him while emphasizing slight nuances: “Kashur was tried for forcible rape, but during the hearing of testimonies some difficulties with evidence arose and therefore negotiations were held between the Prosecution and Defense and we reached a plea bargain… according to the plea, even the Defense admitted to rape and deceit.”

But the nuance wasn’t understood and the media kept with its attack, thus providing strong support for the Defense to appeal the verdict to the Supreme Court ten days after its publication. “The Defense states”, the appeal read, “that the facts described in the updated indictment shouldn’t result in charges of rape by deception… in the circumstanced described in the indictment… the Defense thinks that this behavior is within the realms of activities that although immoral, the criminal law in a liberal state is supposed to stay out of.”

For the Prosecution, this was the last straw. On the same day, in an extraordinary move, the spokesman of the Ministry of Justice, Moshe Cohen, issued the following statement: “The Prosecutor’s Office in the Jerusalem Country does not approve of the tone in which the appeal is worded and the strong expression contained in it. The Prosecution was especially surprised by the denial of the Defense of the charge of deceit, demanding to acquit the defendant of the rape by deceit charge… now the Public Defense decided to change its mind and deny these facts – facts that are the basis of the plea agreement it formulated with the Prosecution and signed, after the initial indictment charged the defendant with rape without consent.” But this message, in its legalistic language, and still with the inability to reveal details of B.’s testimony that can shed another light on the story, also passed under the radar of the media.

About a month ago Kashur was released with limiting arrangements from house arrest after two years. This was part of the appeal that his defense attorneys submitted to the Supreme Court to receive a stay in the execution of the sentence until the appeal in his case was to be decided. “I’ve reached the conclusion that in this case the request should be granted”, wrote Supreme Court Justice Asher Gronis, “the circumstances of the case, as they appear in the updated indictment, are extraordinary. We cannot rule out the possibility that the Appeal court will decrease the punishment of the appellant.” A date for Kashur’s appeal in the Supreme Court hasn’t been set yet.

The response of the Public Defense representing Sabbar Kashur
Unreliable

“The testimony of the complainant in court was full of contradictions and unreliable. Therefore, the Prosecution recanted its original indictment of forced rape and filed a corrected indictment where Kashur’s factual version was accepted and that the sex was consensual.

Kashur should be tried based on the facts that appear in the updated indictment, according to which he and the complainant had sex with her full consent, a few minutes after they met, based on her understanding that he is a Jewish bachelor, due to his presentation. According to the Defense, these facts represent very low criminality, if any at all, and they of course don’t justify any time in prison. The Supreme Court delayed the execution of the sentence for a reason until its decision on the appeal, releasing Kashur from the house arrest he was subjected to.”