The World Desk

Michael Petrou writes about international news and Canadian foreign policy.

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And yet somehow it's still legal in Israel to tell your Jewish lover you're not married

by Michael Petrou on Tuesday, July 27, 2010 10:54am - 0 Comments

A Palestinian man in Israel has been convicted of rape because he told the Jewish woman with whom he had a consensual affair that he was Jewish. Writing in Haaretz, Gideon Levy discusses the creepy and racist absurdity of the case.

Tags: Sabbar Kashur

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Emily

'The sanctity of their bodies and souls' hmmm?

And now sordid and defiled because he's a Palestinian?

Human stupidity writ large.
Olaf

While this may be morally repugnant, I don't think it's as legally absurd as one might assume. Consent to sexual activities can be vitiated by fraud in most nations with developed legal systems. Each has different standards as to what constitutes "fraud", and it is not a settled question. I believe that currently in Canada, the test is whether there was deception that resulted in deprivation (or the significant risk of serious bodily harm), established in R. v. Cuerrier.

It should be noted, however, that in dissent, L'Heureux-Dube suggested a more inclusive standard: "fraud is simply about whether the dishonest act in question induced another to consent to the ensuing physical act… whether the nature and execution of the deceit deprived the complainant of the ability to exercise his or her will in relation to his or her physical integrity with respect to the activity in question". According to that standard (which has some truck with legal professors), this case would at least be debatable.

Olaf

*has some pull with legal professors*

Haha I'm not sure how the word "truck" got in there. Day dreaming of my days in the sandbox I guess.

Mike T.

The use of truck isn't actually improper in that sense.

http://intensedebate.com/people/Gaunilon Gaunilon

She might have a reasonable fraud case if he'd tricked her into marriage that way….but into an affair? Come on.

Olaf

Hey, I don't write the rules, I just follow them. Meticulously. On the L'HD viewpoint, the question is simply "if the individual wasn't lied to, would he or she have made the same decision". She (and many others) see it as a question of autonomy – if someone lies to you to get you to do something, then you're not in fact exercising your free will, and it is this mischief that the law of sexual assault is meant to guard against: you being forced to do something (or endure something) that you don't actually want to do or endure.

The Cuerrier case is an interesting read, by the way.

Gaunilon

If society prosecuted every case of someone doing something because they were lied to (particularly women sleeping with men because the guy lied about himself) I think we'd have more prisoners than free citizens.

Laws are decided not only based on what is just, but on what can be reasonably promulgated. This strikes me as a pretty selective case of prosecuting someone for deceiving another into sex….and the reason for it seems to be racial.

Olaf

Well yes, that is the obvious rebuttal (see McLachlin's dissent in Cuerrier).

And I'm not defending the decision by any means, especially since there appears to be no mens rea whatsoever (generally, even on L'HD's standard, the 'perpetrator' would have to commit fraud intentionally for the purposes of inducing consent). I was just pointing out that, at least among ivory tower elitists and the know-it-all judiciary, the underlying principle according to which this unfortunate man was convicted is not beyond the bounds of reality, as some would assume.
SkullCrusher

I've slept with a couple girls on the false premise that I'm a good guy. Toss me in jail and throw away the key.

Surely it would have to be demonstrated that the woman suffered some material harm as a direct result of the misrepresentation made by the accused. Having suffered the indignity of sleeping with a gentile wouldn't qualify in my mind, nor would it in the mind of any reasonable person.

Mike T.

It wouldn't be wise to extrapolate from a criminal sexual assault case into civil domestic arrangements. Lies told to try to get somebody to marry you remain a buyer beware area of our legal system.

And since the dissent in the case that Olaf mentions is careful to stress that the situation must still be judged objectively, it's unlikely that even were it good law it would produce the same result here in Canada.

Andrew (not PorC)

He's guilty of lying, not rape, it would seem.

http://intensedebate.com/people/tobyornotoby tobyornotoby

Which lie? There doesn't seem to be evidence, at least not in the article, that he told her he was Jewish, just that he didn't disclose he was Palestinian.

Adn further to this, in my experience, ethnic origin isn't always the first thing that arises (if you know what I mean).

Significant detail

It's worse than you put it. The guy didn't "claim he was Jewish" at all, he just had a Hebrew nickname so the woman ASSUMED he was Jewish. He's been sent to jail for 18 months for blurring the line between Jews and Arabs not by his actions but BY HIS VERY EXISTENCE.
John D

nice try
Gaunilon

Uh, yep – I'd have to agree that that's racist.
Anon

Apparently there is also an issue with a proposed law in Israel on how to recognise conversions.

Conversions done outside Israel would not be recognised (although I'm not 100% sure on that). Debate on the new law has been put aside for six months I believe.

You can hear this story at:
http://www.cbc.ca/ottawamorning/index.html
http://intensedebate.com/people/sourstud sourstud

I sure hope this poor chap wins on appeal. I also hope his wife kicks him out on his a55.
JamesHalifax

That's ridiculous. Consensual is consensual.

If every Canadian guy who lied to a woman to get lucky was guilty of rape….I'd say 90% of the male posters on this site would be in jail….the other 10% are gay.

sheesh…..

http://intensedebate.com/profiles/tcallocchia Tanya

I agree! Both men and women lie.. we'd all be in jail!

AlexB

She thought he was a Jewish bachelor entering into a long-term relationship to get married. She is a conservative woman who takes sex seriously on a deep spiritual level, not hedonisticly or likely like so many people do…

He took advantage of that, got what he wanted, and dumped her afterwards.

All that that Arab man really wanted is to get a taste of Jewish p***y, and to literally "f*** the enemy's woman", and then laugh about it. In any other country in the middle east it wouldn't even reach court. The woman's brothers would simply kill the perp. If it did reach court, rest assured the result would have been the same.

You people really don't understand the context of the whole thing. This isn't happening in Toronto or Calgary (where actually a woman in a similar position could sue the man and get lots of money out of him), but in the Middle East.

Michael Petrou, I commend your critical blog posts on Iran and on human rights issues, but this post is really misguided. And to quote a guy from the Ha'Aretz newspaper is dishonest since you are probably very much aware that Ha'Aretz is the paper of the Extreme Left in Israel… much more Left than the New York Times is in America.

Guest

she's obviously not that conservative if she agreed to sleep with him moments after meeting him outside of a grocery store.

AlexB

That's the only question mark in the case. And still, I say this is the Middle East. Canadians and westerners really can't grasp all the complexities, contexts, sub-contexts and the whole complicated relationship between Arabs and Jews in Israel. Petrou should've quoted an analysis not from an extreme left newspaper like Ha'Aretz but a more mainstream one. The judiciary in Israel is among the best, if not the best, in the world. Occasionally the judges make mistakes like everywhere else. If the judge's decision was reviewed by other judges and mainstream analysts (as opposed to extreme left activists) and allowed to stand, then it was valid. If it was overturned or changed, then the original decision was not valid. I just think it's really misguided to look at the situation from 5000 miles away and pretend it's as simple as if it happened to 2 Canadians in Canada, and make simple judgements.