Legal Commentary

?Rape by Deception? Turns Out to be a Plea Bargain

By David Bernstein

A few weeks ago, Israeli newspapers reported that an Arab man had been convicted of ?rape by deception? after having intercourse with a Jewish woman while pretending to be a Jew.

Various blogs ran with the story. The more sober blogs noted that the crime of rape by deception was established as a crime in Israel in a context having nothing to do with inter-ethnic/religious sex, and various law professors noted the interesting hypotheticals that could arise under this crime.

The more hysterical anti-Israel blogs (do I even need to mention Juan Cole?), by contrast, found that the case reflected a deep illness in Israeli society. For example, Andrew Sullivan:

But it?s the visceral emotional core of this that is so offensive. It?s about racism, religion and the risk of miscegenation. It?s about the deep disgust of some Israeli Jews toward Arabs, upheld by the courts. It?s a variant of the racial sexual panics of the Jim Crow South. 

Gideon Levy, an Israeli whose vitriol for his own country puts Sullivan to shame, added:

It was no coincidence that this verdict attracted the attention of foreign correspondents in Israel, temporary visitors who see every blemish. Yes, in German or Afrikaans this disgraceful verdict would have sounded much worse.

It turns out, however, that the victim actually accused the perpetrator of ?simple? violent, forcible rape, and the charge of ?rape by deception? was a plea bargain (original Hebrew, but here?s an English translation) agreed to by the defendant to avoid trial on the real charge, and agreed to by the prosecutor because the victim, a past victim of significant sexual violence, would have been traumatized by pursuing the case.

We sometimes see a similar dynamic in the U.S., where, say, a 22 year old is convicted of statutory rape of a 17 year old. This seems absurd, an abuse of prosecutorial discretion, until you learn that the 22 year old was accused of a forcible rape, and the statutory rape charge was a plea bargain. 

I would severely admonish Sullivan, Levy and others for leaping to conclusions based on a single, unverified and uninvestigated news story, but I?m not at all certain that I never do the same thing. (Even worse are the various news outlets that reported and embellished the original story (e.g.) without investigating the facts.) However, I do try to post corrections and retractions when I turn out to have made inferences that turn out to be mistaken. We?ll see if Sullivan, et al. do the same. Put it this way: if you read a blog that gave this story an anti-Israel spin and you don?t see a correction in the next day or two, you can cross it off your credibility list.

H/T: Michael Davis and Steven Lubet.

Full post as published by The Volokh Conspiracy on September 06, 2010 (boomark / email).