In Israel, Rape Is When the Man Is Arab

If Sabbar Kashur were Jewish, he would not have been convicted of rape.

But while Kashur is many things, he is not Jewish. He's an Arab living in Jerusalem — a married man and father of two. He is a man who met a Jewish woman at the grocery store two years ago, spoke with her for 15 minutes, and engaged in what both parties agree was consensual sex in a nearby building. He's since been convicted in an Israeli court — for, of all things, so-called "rape by deception."

That's because according to the complaint filed against Kashur and early reports on the case, Kashur lied about his ethnicity, indicating that he was Jewish. Later, it emerged that Kashur never stated his ethnicity, but only offered his nickname — DuDu, which is a common Jewish nickname in Israel, and one that Kashur has gone by his whole life. "My wife even calls me that," Kashur explained.

Kashur's adultery and alleged lying may be immoral, but they should not be punished as crimes.

Should the government punish people based simply on popular moral beliefs? This week's victory in Perry v. Schwarzenegger — which declared Proposition 8's ban on gay marriage in California unconstitutional — would suggest the answer is no. In that decision, a federal judge determined that even though the majority of a state's voters have voiced their moral disapproval of gay marriage, there is no legitimate government purpose in banning such unions.

In that seminal ruling, Judge Vaughn Walker quoted the U.S. Supreme Court, writing, "'[M]oral disapproval, without any other asserted state interest,' has never been a rational basis for legislation." Accordingly, Walker determined that the homophobic Proposition 8 failed to pass even the lowest level of constitutional scrutiny.

Kashur's conviction for "rape by deception" presents a similar problem. Even assuming that he did deceive her about his race, consensual sex with a woman shouldn't be considered rape.

While Kashur's conviction awaits appeal, his prison sentence has been delayed and his house arrest finally lifted after two years. Israeli courts should go further, however, and reverse the conviction altogether.

I think Israeli commentator Gideon Levy puts it best when he asks: "What if this guy had been a Jew who pretended to be a Muslim and had sex with a Muslim woman? Would he have been convicted of rape? The answer is: of course not."

Photo Credit: Wikimedia Commons

[The photo is of graffiti by Banksy on the Israeli West Bank Barrier outside of Bethlehem.]