A legal issue to be arbitrated in the Tel Aviv District Court this May raises a philosophical-artistic question that exceeds both the narrow boundaries of law books and the broader limits of the stage. Y., the victim of a gang rape on Kibbutz Shomrat in 1988 when she was 14, is suing playwright Edna Mazya, author of the play "Games in the Backyard," with the claim that the work violates her legal right to privacy. Mazya's play, which deals with the gang rape of a teenage girl in an unspecified community, was written in 1993 and mounted since at the Haifa Theater and dozens of theaters around the world. For the past three years, it has been performed again at the Cameri Theater in Tel Aviv.
This specific case is the focus of a legal battle, and a thorny one at that because - aside from the clash between an individual's right to own her life story and an artist's right to freedom of expression - the matter of rape is also at issue. In this case there are precedents for protecting a victim's privacy, as evidenced in the release of only part of the recent court decision to convict former President Moshe Katsav of rape in order to shield the victims.
On the other hand, there is also a question of integrity. Y.'s name, Yael Greenberg, was revealed, and she was interviewed on TV by Yair Lapid in 2001 already. On the occasion of the play revival she was interviewed again by Emmanuel Rosen on TV and in wake of that took part in discussions organized by the theater following the performance. At the behest of the playwright, Greenberg received part of the royalties of the revival run. This arrangement was discontinued after she filed her suit in court.
The natural inclination of any theater person for whom the subject of art is dear to his heart is for an unequivocal ruling. After all, theater is not truth but its representation. While it does create an illusion of reality (we are supposed to believe that Othello really strangles Desdemona ), at the same time we viewers are supposed to know that the connection between theater and reality, while not accidental, is not direct either. The best of world drama down the generations would not have been possible if the issue of defending individual privacy - based in law or social norms - applied to fiction.
Take for example, Shakespeare's "Richard III." Josephine Tey's brilliant detective novel "Daughter of Time" allowed a broad audience to learn what historians had known for a long time. Shakespeare maliciously distorted the story of the king, who was no cruel hunchback. He was a successful ruler who certainly did not murder the princesses in the Tower as depicted in the play. But Shakespeare was writing during the reign of Queen Elizabeth I, heiress to the Tudor dynasty that overthrew Richard, and served Her Majesty's narrow political interests and his own by slandering the Yorks.
But why go so far back? The same year the Haifa Theater presented "Games in the Backyard" (under the direction of Oded Kottler ), the Cameri performed Hillel Mittelpunkt's "Gorodish," directed by the author. This play used the names of figures from recent history, and was based on conversations that took place in the 1980s between journalist Adam Baruch and the army commander who, in the eyes of the Agranat Commission and to a large extent the public too, bore direct responsibility for what happened in the battlefield at the beginning of the Yom Kippur War.
Subject to public debateSome voices were heard expressing disagreement about what was called the "decency" of using the story of a living person as material for a play (one of the protesters was Shabtai Tevet, whose book "The Tanks of Tammuz" featured Gorodish as a hero, testimony to and a symbol of the army in the Six-Day War ). The matter was subject to public debate, but did not reach the courts. It seems that at that time, the awareness that Gorodish was a public figure who had long ago lost his right to privacy won out over what happened to him in the play. It appears that public interest in a subject at the center of national debate, and the freedom of expression granted to art, overcame the matter of one individual's feelings. It may be that the fact that Gorodish did not have a lobby worked in the play's favor (the same way that Richard III's heirs lacked influence, to make an understatement, in the time of Elizabeth I ).
On the other hand, it is possible to consider a story that turned out in a completely opposite way; it did not concern a public figure, or even someone familiar whose story was known, whether uncomplimentary or not (like that of the Shomrat rape victim ), and the playwright decided on his own to shelve the work. This is the story of Hanoch Levin's "Thrill my Heart." According to sources who have asked to remain anonymous, one of the plot elements really happened to an acquaintance of Levin's, who was concerned that the play's performance would offend him. The same sources told me that the incident was utterly insignificant and Levin's concern - they thought - baseless, and in any case the acquaintance had died before Levin did. Nonetheless, Levin during his lifetime shelved the play and did not include it in the edition of his complete works that he himself prepared for publication. Only after his death was the play performed.
Being turned into a character in a Levin play may be an uncomplimentary fate, but I have never figured out which plot detail could have been the one that has the potential to hurt anyone and which caused Levin to put the play aside, out of concern for harming the right to privacy.
Kastner's claimThe most interesting instance of this conflict which led to a court verdict is that of Motti Lerner's series on Channel 1 in 1994 about Israel Kastner, about whom he had also written a play mounted by the Cameri. In the series, Kastner accuses Hannah Szenes of turning over her fellow paratroopers to the Nazis. The television show does not claim that this is a fact, but rather a claim made by Kastner, a character who is based on reality but fictionalized in Lerner's series, as in "what might have been," one of the justifications of art, according to Aristotle.
Szenes's family petitioned the Supreme Court, which decided in a two-to-one vote in favor of Lerner's freedom of expression. The minority opinion of Justice Mishael Cheshin was that the film should not be screened. Lerner says that he remembers a conversation with Moti Kirschenbaum, then the Channel 1 general manager, in which he and director Uri Barbash were told to make several changes. Kirschenbaum says that to the best of his recollection hardly any changes were made, except for adding a disclaimer that the show was fictionalized.
On the theoretical level, it is easy to be on the side of freedom of expression while at the same time feeling for someone who is offended by a theatrical presentation of his life. On the other hand, when I have to weigh the harm done to the feelings of an individual whose life story is recounted to the public against the freedom of expression of a playwright who does not yet enjoy the celebrity or reputation of a Shakespeare or even Levin, I begin to have doubts.
On the third hand, if a theater were to mount a play about a veteran theater critic at a respected newspaper who is handicapped, and in which he is accused of using his position to settle accounts with theater people, who knows what I would feel and how I would respond? Would I be able to demonstrate complete loyalty to the artist's right to freedom of expression? I would like to hope that I would.
In the past Ehud Asheri questioned me about the complexity of relations between the critic and the criticized when the two have been friends since childhood, and afterward wrote the book "Soul Sister," whose protagonists are a theater critic and a director who have been friends since their youth, and who find themselves not only on the opposite sides of the artistic barricades, but in love with the same woman. That's what convinced me that the book was not about me, not even a smidgen.
This isn't a story with a definitive end, and it touches as well on the issue of the ethics of writing. The important thing that must be said is that this matter is not one for the courts, and will certainly not be solved there - for the simple reason that one never knows in which direction a judge's soul will tilt - between freedom of expression and the right to privacy. And court decisions are precedents. So it is best that these conflicts, as important as they are to artists and to people (no contradiction between the two ), will be solved by a give and take negotiation. It is as old as art itself, and let's hope it will continue forever. Or at least as long as I'm alive to write about such things.
