The Supreme Court recently overturned the conviction of a man accused of committing rape at a swingers party organized by a police officer. Be’er Sheva District Court had previously found the man guilty on two counts of rape and sentenced him to three-and-a-half years in prison. Under court rules, the man cannot be named publicly.
Two weeks ago, the Supreme Court ruled in an appeal that the lower court’s conclusions were erroneous. The justices, however, did not challenge the complainant’s reliability and decided to acquit the defendant due to reasonable doubt.
The complainant, 27, said she had been raped twice at a swingers party (where couples swap partners). The party was arranged by a married police officer from Sderot, with whom the complainant had been having an affair.
On the night of October 12, 2008, the officer, Sa’adia Shukrun, planned a partner-swapping get-together. Shukrun brought the complainant to the apartment of a subordinate of his. There they met the subordinate and another woman, called Tania, 23, who was six-months pregnant.
Some of them drank alcoholic drinks and watched a pornographic movie. Later, the four went into the bedroom together. At some point the subordinate and complainant left the room hand-in-hand, naked, and went into the adjacent room.
The complainant said the subordinate raped her in the adjacent room twice. The defendant said they’d had consensual sex, until the woman changed her mind and objected.
The district court convicted the defendant of rape and said he had “taken advantage of the woman’s lack of consciousness or some other state that prevented her from giving her agreement freely.”
The district court accepted the complainant’s story, although it contradicted the versions given by the defendant, Shukrun and Tania, saying the three had probably “coordinated their story.”
Supreme Court Justice Isaac Amit said the version presented by Shukrun, Tania and the defendant was not typical of false witnesses who had coordinated their testimonies, and it was unclear why their reliability was questioned.
He said he had received the impression that their testimony was rejected on moral grounds. Be’er Sheva District Court had argued that the three should not be believed because Shukrun had used the defendant’s apartment for sexual liaisons while he was married. The lower court also said Tania was pregnant and a single mother at the time.
The district court rejected the defendant’s reliability, citing Shukrun’s testimony that the defendant had told him he used to lie to his partners about using contraceptives.
Amit criticized the district court’s statement that partner-swapping was at the heart of the disagreement. The district court had ruled that the complainant had not known about the partner-swapping plan and was drunk (i.e., not in a position to give her consent freely).
But Amit said it wasn’t possible to ascertain that she was drunk, certainly not to an extent that prevented her from consenting freely, because as soon as she left the apartment, the complainant sent text messages. Also, the gynecologist who examined the complainant the morning after the incident wrote on her examination form, “She said she was under the influence of alcohol, but not drunk.”
The complainant said in her testimony: “I knew what was going on around me, I could stand on my two feet and walk, and could say no when I meant no.”
The police officer who accompanied her to the hospital testified she was not drunk.
Despite this, the district court ruled she had been drunk, on the basis of another statement.
Justice Amit said the district court judges had taken things out of context, as the statement had been made on another day on which the complainant had tried to commit suicide.
Amit said he would not argue with the positive impression the complainant had made and her reliable testimony, but attributed importance to her mental state, which raised doubts.