From rape to racism: How and why did charges change against Arab man?
Newly published testimony reveals the Arab man convicted of rape by deception for posing as a Jewish man to seduce a woman was originally charged with rape by force.
Something seems off about the story of Sabbar Kashur, a.k.a. "Dudu," the Arab man who presented himself as a Jew and thus obtained a Jewish woman's consent to sex, and who was on this basis convicted of rape and sentenced to 18 months in prison. The feeling that a court would have treated a Jew less severely gives the affair a whiff of racism, aggravating the sense that this cannot be what happened, not even in Israel's current climate.
Since the verdict became public a month and a half ago, the case won Kashur much sympathy in the international media. Based on the fact that it had not been permitted to publish any of the court transcript until now, it seemed justified to call him the victim. Once the complainant's testimony is actually taken into account, however, it becomes clear that the story is much more complicated, and that the real victim is the woman who Kashur left naked in the stairwell of the building on 13 Ben Hillel Street, in Jerusalem.
The woman's testimony, which throws a completely different light on the case, had not been released until now, since she testified during an in camera court session, whose contents had been under gag order. The identity of the complainant, B., remains under gag order.
The court recently lifted the gag order on the testimony in the wake of a request from the Ha'ir newspaper, and it is being published here in English for the first time. The 100-page transcript describes B.'s difficult life and her version of the events that afternoon two years ago.
History of abuse
B.'s life story is crucial to understanding the affair. B. is in her late 20s, and comes from a city in central Israel. Her father began sexually abusing her when she was 6, and later sent her to work as a prostitute. Much of her youth was spent in boarding schools. As a teenager, she worked as a prostitute and started abusing drugs, and at one point she lived on the street. None of this ended her father's abuse. Just a month before her encounter with Kashur, her father sexually assaulted her again, and she fled to a shelter for young women at risk.
On the morning of September 3, 2008, B. went, together with the shelter's director, a social worker and a friend who also was staying at the shelter, to a meeting at Galgal, a drop-in center for homeless youth. After the meeting, B.'s three companions headed somewhere else, without her. B. relates in her testimony, "I walked toward Zion Square, and then I sat down next to a Cellcom [cell-phone] store, around Ben Hillel Street. I sat down on some rocks next to a tree, and listened to my MP4."
Then, a man she didn't know pulled up next to her on a moped, she relates. In interviews conducted afterward, Kashur said he was on his way to a grocery store there.
"He rode behind my back on purpose," B. states in broken cadences that typify her entire testimony, "and he stopped a few meters from me. He called me over, and I said he should come to me [Kashur claims B. initiated the initial contact], and we spoke for some seven or 10 minutes, before the event occurred."
The dialogue included an exchange that serves as the foundation for the fraud charges against Kashur. "At the beginning, he said his name was Daniel [not Dudu, a nickname his friends use, Kashur explained in interviews]; he didn't want to tell me his last name ... but after a few minutes, he said it was Cohen." B. continues, "He asked me whether I had a boyfriend, so I told him that I didn't, and then he asked me whether I would like to be his girlfriend. I asked him whether he was married, and he said he was not married. Then I asked him whether he had children, and he said he had no children."
As the discussion progressed, B. testifies, Kashur asked B. for a kiss. "He wanted me to give him a kiss on the cheek, and then he gave one back." Then the two exchanged phone numbers, B. says.
Then, Kashur invited B. to see what he claimed was his workplace, at 13 Ben Hillel Street, she says. The two stood outside the building for a few minutes. "He said that he wanted to invite me inside for a cup of coffee, and show me his place of work," B. relates. To explain her decision to accompany a virtual stranger inside the building, B. states, "I was looking for someone to trust. I know that it is wrong to talk to strangers, but since I am, like, as you know, since I come from a place where there is nothing, since I lived for some time on the street - I thought that if I would stay with him, I might feel protected and be taken care of, economically. I really trusted him."
As soon as they entered the building, B. claims, Kashur started to force himself upon her. "We were on the stairs, the first set of stairs in the building, right where we entered, and he asked for a hug. So I hugged him, because he said he wanted an embrace of warmth and love and that it had been a long time since he had had a relationship, like, a girlfriend. When I felt that he was too dependent I tried, like, to separate from him ... He pinned his body to me; I tried to push him off, and then he used some force, he became a little aggressive."
B. says Kashur showed no restraint. "He lifted up my shirt and bra and he kissed my body," she says. At this point, an unknown blonde woman entered the stairwell, and Kashur stopped, B. says. He decided to move from the stairwell to the elevator. "When I was with him in the elevator he also touched me, and he was behaving like a psychopath. I was really afraid of him. I started to sense that something very strange was happening, because I noticed that I wasn't arriving at any workplace, and I didn't see any cup of coffee; so I started to get scared, and I screamed," she testifies.
When they got off the elevator at the building's top floor, B. claims, Kashur led her to the stairwell to the roof. There, she states, he raped her. "He took my pants and underpants off," B. says. "All this happened by force; I didn't agree to anything ... Then he took my clothes off; he then put saliva on his penis and there was, like, full penetration - this was not, as he says, with consent. He put me down on the floor, and then he started to kiss my breasts, and then, like, I asked that he stop, and I tried to push him away, but he pressured me with his hands. When I tried to push him with my hand on his stomach, then what had already happened once happened again, this was at a later stage; he was inside me, and then he said that if I kept quiet and stopped trying to resist him, it would be over more quickly, and he wouldn't, like, use force. But I resisted, and it happened by force."
According to B.'s testimony, Kashur remained on top of her for some time, and then got up and walked away, leaving her naked ("He just disappeared and took my MP4," B. testifies, "and I want him to return it because it's with him in his house" ). Alone in the stairwell, B. started to cry.
"I was really hysterical," she testifies. At this stage, she noticed blood around her vagina, and that added to her fears. A few minutes later, her brother called, and B. asked him to contact a worker from the shelter. This woman quickly contacted B., who told her what happened.
"She [the shelter worker] said I should stay calm, and contact Magen David Adom," B. says. Later policemen came, and found B. in the stairwell. "When they arrived I was not wearing pants; that's how I was, and I was in shock," B. says. "The floor was dirty with blood, and I was really afraid to touch myself to see if I was okay; I was really scared."
Later, a Magen David Adom team showed up. B. states that she was later checked at Shaare Zedek Medical Center, Jerusalem, which documented scratches on her body. The prosecution's files contains photographs of her wounds.
B. later convalesced at the Kfar Shaul Mental Health Center, a government-run psychiatric facility located in Jerusalem's Har Nof neighborhood. "I am not crazy, and do not have a psychiatric disorder," B. insists in her testimony. "I was there [at the Kfar Shaul facility] because they have a woman's ward there, a unit for women who have been sexually abused."
The evening after the encounter, Kashur called B.'s cell phone. "I didn't recognize the number," she says. "I didn't know it was him, so I answered." Kashur asked that they meet again. "I spoke with him entirely out of fear," she says. "I don't remember what I actually said, because it was late at night. I only know that when I woke up in the morning I had some 20 or so unanswered calls; and he left me two messages."
Pressure in the courtroom
About a month later, on October 5, Kashur was arrested. In media interviews he claimed he initially didn't understand why, and several hours passed until he understood the real reason he was being interrogated. "They questioned me for eight hours," Kashur said in an interview with Yedioth Ahronoth that was published July 25, 2010. "They asked me all sorts of questions that sounded very strange - whether I had slept with a woman since I got married. Then an interrogator said something about the [Ben Yehuda Street] pedestrian mall and an elevator, and so I slowly was able to connect this to B. I told them: 'Wait a minute, where are you headed?' Then they dropped the bomb on me: 'The woman has filed a rape complaint against you.' I was in shock."
After this interrogation, Kashur was held in detention for a month and a half, and then was released to house arrest.
A few hours after he woke up during his first day in detention, police staged a confrontation between Kashur and B. Based on this confrontation, along with B.'s complaint and other investigative material, Jerusalem prosecutors decided to charge Kashur with rape without consent and sexual assault.
"The accused forcibly had sex with the complainant, without her consent, and sexually assaulted her," the indictment stated.
A few months later, on March 19, 2009, B. took the witness stand in the Jerusalem District Court and gave her version of events. The above quotes are the main part of her testimony. She appeared stressed, and seemed almost hysterical. Her words were broken and occasionally unclear; at certain points the judges offered her some water, and on one occasion she was advised to sit down and to try to calm down.
The person who brought the most emotion and rage out of B. was defense counsel Adnan Aladin. For instance, when he asked her about her background as a prostitute, B. yelled: "You already have completely confused me. You're looking at me and smiling, it's simply ..." Judge Zvi Segal then advised her: "You should look at us." B. replied: "He simply makes me lose my concentration, I'm sorry."
The cross-examination revealed several problems with B.'s testimony. For instance, Aladin extensively questioned her claim to a police interrogator that she was a virgin before the incident (she also told Kashur that she never had had sexual intercourse ); the defense attorney also emphasized that B. also testified that her father raped her repeatedly, starting when she was a young girl, and even served a prison sentence for this offense.
B. replied that she had been told by a doctor in the past that she was a virgin. She also explained that she told the police interrogator that she was a virgin because she was worried that her complaint would not be taken seriously if her past were exposed.
This last consideration points to the second problematic aspect of B.'s testimony - the fact that she worked as a prostitute, though she claims that while she was at the shelter, and at the time she met Kashur, she was not working on the streets.
"If I do what I do, that's out of my own will, and not because I am forced to do it," B. agitatedly told Aladin. "If you were to have a prostitution deal with me, I would receive money, I would ask for money; but I wasn't the one who took money from him, he took money from me. He also took my freedom, the freedom of my body, and my MP4, he took that."
Kashur never claimed in media interviews that B. asked him for money.
The main factor motivating the prosecution's decision to strike a plea bargain was the desire to spare B. the trauma of taking the witness stand a second time, which would have been necessary had the case continued in court.
Over the years, B. has submitted no fewer than 14 complaints, most of them for sex offenses, against her father and other people. Some were deemed to have merit, and the accused confessed and were sent to prison. Other complaints never led to indictments, either due to a lack of evidence or over doubts about the veracity of B.'s testimony.
When B. took the stand during the Kashur trial, the defense did not have access to these 14 complaints; it only had a short list of the cases, without supporting evidentiary material. Attorney Aladin thus requested to receive these files after B. testified, intending to put B. back on the stand and force her to respond to questions about cases where her complaints had not been verified, in an attempt to undermine her credibility in the Kashur case.
Jerusalem prosecutors told Ha'ir that the request to question B. about these cases was valid. "We were faced with the dilemma of whether we should expose the complainant to the defense counsel's cross-examination about those past complaints, which would have been another traumatic experience for the complainant, or whether we should strike a plea bargain, as the defense counsel proposed," Ha'ir quoted the prosecutors as saying.
Under the plea bargain, the sides agreed to alter the charges from rape without consent to rape with consent attained through deception. The new indictment, filed on July 14, 2009, reformulated the facts, saying, "The accused, who was married, presented himself falsely to the complainant as an umarried Jew, and as someone who was interested in a serious relationship, and proposed that she accompany him to the building. As a result of this false presentation, the complainant agreed to accompany the defendant."
"A plea bargain never adheres to the complainant's original narrative, since the two sides need to bridge the gap and reach an agreement," says Jerusalem prosecutor Danny Witman. "In this case we made a concession on the term 'force,' and agreed to the formula that appears in the revised indictment, which states the accused had sex with the complainant with her consent, but attained it through deception. This formulation complies with the requirements of the legal statute on 'rape by deception.'"
The media gets involved
Ultimately, it seems the core of the controversy, which first flared a few months after the plea bargain was reached, drawing harsh criticism of the legal system and leading to a Supreme Court appeal, stemmed from disagreement over what Kashur's sentence would be.
The prosecutors sought a prison term. When asked by the court what he recommended, Witman said that he wanted the court to sentence Kashur to "more than six months in prison, but not many years in prison. I don't want to name a number of months."
The defense objected to prison time, citing Kashur's lack of a criminal record, his acceptance of responsibility for the action, and the need for him to participate in a rehabilitation program instead. Kashur also had spent more than a year under house arrest.
On July 19, 2010, almost a year after the revised indictment was submitted, a three-judge panel sentenced Kashur to 18 months in prison. That's when the media took an interest in the case, without being aware of its legal complexities. Press reports accentuated what appeared to be a miscarriage of justice, a grossly inappropriate sentence for a man who falsely stated he was Jewish. Kashur was perceived as the victim of a putatively racist judicial system.
"He posed before a young woman as a single Jew, had consensual sex with her, and was convicted of rape," one Haaretz report declared. The newspaper's legal commentator Ze'ev Segal wrote, "The application of this offense [rape] to a case in which consent was attained through false pretenses makes light of the gravity of the offense of rape. Just as merchants tend to boast about their wares, people also attribute to themselves traits they do not have."
At this point, B.'s testimony was still under gag order, altering people's understanding of the affair. However, it does not appear that anyone was particularly concerned about why Kashur was charged with rape without consent in the first place, and why he agreed to accept a plea bargain.
Absurdly, the sentence, which stunned Kashur and his attorneys, turned him into a media figure. Shortly after the sentence was announced, he presented his version on television, radio and in the print media; naturally, he obscured facts that did not entirely square with his version of events.
In the interview with Yedioth Ahronoth, Kashur claimed: "This young woman fell for me. She was all over me. I don't remember who first said to whom 'let's have sex,' but it was clear that she wanted to do it." Yedioth Ahronoth even accompanied the article with a column entitled "Lies that everyone tells on their first date."
In an interview on 103 FM, program moderator Gabi Gazit asked a question that sounded more like a declaration: "You must be aware that a large portion of the media thought your sentence was too harsh?" At a different stage of the interview, Kashur stated: "I made a small mistake, and I'm paying a price 10 times too high for it." Gazit concurred, saying, "All of us make mistakes." At the end of the interview, he tried to clarify: "Nobody should conclude on the basis of this half-smiling interview that we are in favor of impersonations or giving incorrect information."
In this limited context, the verdict gave off a whiff of racism. An 18-month prison term for an Arab who passed himself off as a Jew in order to have consensual sex seems unreasonable. Until B.'s testimony was disclosed, the Kashur affair caused considerable damage to the legal system.
Jerusalem district prosecutors absorbed the brunt of the criticism. Their efforts to rebuff the attacks were hampered by the fact that they had signed a plea bargain that called the sexual relations consensual; the prosecution cannot now assert that this was unequivocally rape.
Riding the crest of media support, Kashur's attorneys appealed to the Supreme Court 10 days after the sentence was announced.
"The defense's position," the appeal states, is that "the facts described in the revised indictment should not substantiate, in the pursuit of justice, an offense of rape by deception. Given the circumstances described in the indictment ... the defense believes the case straddles the line of acts that, while possibly immoral, do not call for the involvement of a liberal state."
The day the appeal was filed, Justice Ministry spokesman Moshe Cohen took the unusual step of releasing the following statement: "The Jerusalem district prosecutor's office has reservations over the style of the appeal wording, and over extreme statements that it includes. The prosecutor's office was particularly surprised by the defense's denial of the claim of deception, and by the request to acquit the defendant of rape by deception ... The public defender's office has changed its stripes, and chosen to deny these facts - these are facts that were the basis for the plea bargain that the prosecution formulated with the defense and signed; under the original indictment, the appellant was charged with the offense of forcible rape."
However, due to this announcement's gray legal idiom, and the gag order that remained on B.'s testimony, the statement remained under the media's radar.
A month ago Kashur was freed from two years of house arrest, after his attorneys asked the Supreme Court to delay their client's sentence, pending a decision on the appeal.
"I reached the conclusion that the request should be approved in this case," wrote Supreme Court Justice Asher Dan Grunis. "The matter's circumstances, as described in the revised indictment, are exceptional. The possibility that the appeal may lead the sentence to be lightened should not be discounted."
No date has been set for hearing the appeal.
The public defender's office, which represents Kashur, stated: "The complainant's court testimony was filled with contradictions and was unreliable. The prosecution therefore revoked the original indictment's charges of forcible rape, and submitted a revised indictment in which Kashur's account, holding that the sex was consensual, was accepted. Kashur should be judged according to the facts of the revised indictment; they hold that he and the complainant had consensual sex shortly after they met, on the basis of her understanding that he was a single Jewish man, due to how he presented himself.
"These facts, the defense holds, lower the criminal bar significantly, if there is at all criminality. They certainly do not justify a prison term. The fact that the Supreme Court delayed the sentence until the appeal is heard, and freed him from house arrest, is not coincidental."