A rapist who dodged jail, or a Palestinian man unjustly accused?

A rapist who dodged jail, or a Palestinian man unjustly accused?
Sabbar Kashur on the cover of The City Tel Aviv Magazine, 3 September 2010

A few weeks ago, a story about a Palestinian man convicted by an Israeli court of raping a Jewish woman made headlines around the world. Sabbar Kashur, a 30 year-old resident of East Jerusalem, was convicted not of rape by physical force, but rather of rape by deception: according to the verdict, he presented himself as a Jewish bachelor interested in a serious relationship, when he was in fact a married Muslim Arab looking for a quickie.

Kashur and the plaintiff met two years ago on a street in downtown Jerusalem. According to the story that was initially published quite widely, he introduced himself as Dudu (a Hebrew nickname derived from David). They flirted; he suggested that they go to a nearby building; she agreed; and a few minutes later they were having consensual sex. Only later, after the woman discovered that Dudu was an Arab, did she accuse him of rape. Israeli law stipulates that sex obtained by deception is rape.

The judges’ wording of the verdict seemed to be inspired by E.M. Forster’s A Passage to India, or an Oriental version of  To Kill a Mockingbird, with Kashur as Tom Robinson, the black man unjustly accused of raping a white woman in 1930s Alabama. “If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated,” wrote the judges. Judge Tsvi Segal added, “The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price – the sanctity of their bodies and souls.”

By the time the verdict was published, Kashur had been under house arrest for nearly two years, wearing an electronic monitoring device, presumably living in the same house as his children and his wife while he was on trial for raping another woman. An interview Kashur gave to Haaretz was quoted extensively by the international media: “If I were Jewish, they wouldn’t have even questioned me,” he said. “That’s not called rape, I didn’t rape her in the forest and and throw her away naked. She agreed to everything that happened.”

There were two precedents of Israeli Jewish men convicted of rape by deception; but in both those cases, the men were convicted of lying about their socio-economic status. Never had a man been convicted of rape by deception for claiming he was a Jew when he was in fact an Arab. Haaretz columnist Gideon Levy  asked rhetorically if a Jewish man would have been convicted for posing as a Muslim in order to bed a Muslim woman.

For Israel’s male-dominated, socially liberal media, the outrage could be parsed as follows: all men lie to obtain sex – this is normal and not worthy of comment; but only in Israel is such a banal incident considered rape if the liar turns out to be an Arab posing as a Jew.

This past Friday (3 September) Ha’Ir (The City), a weekly magazine distributed only in Tel Aviv, published a cover story by Lital Grossman that brought a new perspective to the story. “Don’t look at him like that,” is the title of the piece, in large white font superimposed over Kashur’s image against a red background. The lede summary continues:

‘The story of “Dudu,” or Saber Kashur, sounded bizarre from the beginning. A man from an Arab family pretended to be a Jewish bachelor and convinced a young Jewish woman to have sex with him. Based on that, he was sentenced to 18 months in jail. In response to a request from Ha’Ir, the courts released the testimony of “B,” revealing a sad life story and her version of the events that occurred on that afternoon two years ago. According to her testimony, the story is much more complicated and the identity of the victim is rather different – that of a woman who was found after the encounter with Kashur naked on the roof of a building on 13 Hillel Street in Jerusalem.”

A very brief summary of the piece is as follows: the plaintiff, identified in the article as “B*,” was an emotionally traumatized woman in her 20s who had been raped by her father from the age of six. On the day she met Kashur, she was living in a women’s shelter. Before that, she had worked briefly as a prostitute and spent some time living on the streets. Kashur lured her into the building on Hillel Street with the claim that he worked there and wanted to show her his office; he then assaulted her and raped her, leaving her naked and bleeding – which is how the police discovered her.

B. was later hospitalized in a psychiatric institution, where the police questioned her about the rape, which led them to Kashur. During the trial, after it became apparent that B’s past, combined with her emotional state, made her a vulnerable witness, the prosecution came up with a plea bargain of rape by deception.

Excerpt from B’s testimony**:

“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 numbers.

At this point, according to the testimony, Kashur invited B. to see where he works, supposedly in the building at 13 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 secure. 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. “He 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 him to stop 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 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.”

B’s story sounds believable. Based on her testimony it appears that she was not a racist but rather a terribly vulnerable, emotionally damaged woman who was desperate for affection. The act she describes Kashur having committed is indeed a brutal rape. So the point made in Lital Grossman’s article is that Kashur was not unjustly punished because he was an Arab, but the opposite: that he managed to avoid the punishment he deserved because his ethnicity made it possible to plead guilty to the lesser charge of rape by deception, thus avoiding jail time. Everyone knew there was no way of convicting Kashur of violent rape based on B’s testimony, but the judges and the prosecution were sympathetic to the plaintiff and wanted Kashur to pay at least a little, so they cooked up a deal.

Over the weekend I spent a lot of time thinking about that article. Were those of us who rushed to support Kashur guilty of reverse racism and sexism? If a Jewish man had committed that brutal rape, wouldn’t he have gone to jail for a long time? Or perhaps not. Perhaps a Jewish man accused by a woman with B’s credibility problems would have been released without any conviction at all. But if B was such a vulnerable witness, then why did Kashur’s lawyer agree to a plea? Perhaps because he believed the judges were more influenced by their sympathy for B than their commitment to the law.

There are few unassailable facts or bottom lines here. A woman who may or may not have been raped is in a psychiatric hospital, traumatized and unable to communicate coherently. Perhaps a rapist who should have have been jailed is now a free man, wandering around Jerusalem shopping malls with his kids while the woman he raped is institutionalized, physically and emotionally traumatized. Or perhaps an innocent man was forced to plead guilty to a crime he did not commit, in order to avoid being sentenced to jail by judges who were biased against Arabs.

None of these issues were raised in the original reporting of the affair. None of the reporters covering the story when it first broke, in July, mentioned having applied to the courts to obtain the unsealed testimony. The polarized, angry atmosphere in contemporary Israel seems to make rational, detached analysis nearly impossible.  This is a very troubling state of affairs. It is also quite dangerous.

*Israeli courts banned publication of the plaintiff’s name in order to protect her privacy, but the Guardian went ahead and published her first name.

**Since the 3,000 word feature was published Saturday on Haaretz’s Hebrew website (Ha’Ir and Haaretz are both owned by Schocken) I was hoping it would be translated for the English edition, but it hasn’t been and Elizabeth Tsurkov saved me hours of work: she translated the whole thing and posted it on Mideast Youth.