Last update - 00:00 03/03/2008
Proclaiming shame without pity
By Ze'ev Segal
Jerusalem Magistrate's Court President Amnon Cohen yesterday appointed a panel of three judges well-versed in criminal law to hear the indictment against former president Moshe Katsav and the plea bargain that is an inseparable part of it.
At the hearing, which is scheduled for March 26, Katsav is slated to admit to committing a nonconsensual indecent act involving the application of pressure, an offense punishable by a maximum of seven years in prison; sexual harassment, punishable by a maximum of two years; and intimidating a witness, punishable by a maximum of three years. According to the plea bargain, the prosecution will request a suspended sentence only rather than a prison term or community service - which was the sentence received by minister Haim Ramon, whose offense pales in comparison to those in the Katsav case. The magistrate's court will be required to approve a plea bargain that Supreme Court President Dorit Beinisch wanted to revoke, according to her minority opinion in the High Court of Justice's ruling on the case.
The lower court judges will be considering a "grave and severe" indictment, as Deputy Supreme Court President Eliezer Rivlin put it in his majority opinion, which approved the plea deal. Justice Ayala Procaccia said the offenses listed in the indictment would constitute a stain on anyone's character, but are doubly severe when committed by the president, who thereby "seriously damaged the honor of Israeli society."
The magistrate's court will naturally discuss the offenses to which Katsav will confess, rather than those with which he perhaps should have been charged. The court is limited to these charges and the circumstances surrounding them, but has full discretion over the appropriate sentence. The court does not have to make do with the sentence agreed on in the plea deal. It is obligated to examine whether the sentence strikes a suitable balance between the public interest in upholding plea bargains and the benefit the accused will derive from the bargain. Former Supreme Court president Aharon Barak emphasized that the court is not obligated to uphold whatever deal a prosecutor and defendant reach with regard to the sentence.
Thus the court could replace a suspended sentence with jail time, and jail time of less than six months could be commuted to community service. This means that the magistrate's court has an important job, albeit not a particularly active one; any intervention in the sentence would not be a quotidian event. This court's president co-authored an article in the legal journal Mishpatim several years ago suggesting that the current legal situation be changed to grant judges an active role in formulating plea bargains. In the Katsav case, the magistrate's court will have an active, substantive job: deciding whether the offenses of the former president involve moral turpitude, or shame. This decision is necessary in light of the Knesset Finance Committee's decision that Katsav will be stripped of various financial benefits (excluding his pension) if the court decides that his offenses did involve moral turpitude.
The attorney general told the High Court of Justice that "severe moral turpitude" adheres to Katsav, in light of the serious sexual offenses he carried out for an extended period by exploiting his position. The attorney general committed to articulating this position to the court hearing the indictment, and he will doubtless do so.
The High Court justices, for their parts, showed deference to the magistrate's court. They mentioned the term "moral turpitude" 92 times in their ruling and analyzed its origins, which come from the realm of ethics, but refrained from laying down the law on the question of moral turpitude in this case. Judging by their descriptions of the severity of the charges and the circumstances, it is not hard to guess the justices' position. Nonetheless, the decision on the question of moral turpitude is reserved for the magistrate's court judges.
It would be reasonable and appropriate for these judges to have no hesitation in designating Katsav guilty of acts involving moral turpitude, given the nature of the sexual offenses that he committed both as minister and as president, taking advantage of his status to exploit women who worked for him. The same is true of his intimidation of a witness who worked in the President's Residence, which is considered a serious offense because it undermines the rule of law.
Former Supreme Court justice Mishael Cheshin wrote that judges must guard against pity when it comes to moral turpitude, because "the price of such pity will be paid by the community, and the community has not sinned." Twelve years ago, Cheshin called on his fellow judges to make clear to everyone what suitable standards of public ethics require. Such sentiments have not yet gone out of style.