Based on Evidence Alone

The prosecution undertook a difficult task in this unprecedented case: proving beyond a reasonable doubt that rape was committed. But indictments are one thing and verdicts are another.

The Tel Aviv District Court will issue its verdict on former President Moshe Katsav on Thursday. Judges George Karra, Miriam Sokolov and Judith Shevach are all experts in criminal law and in analyzing evidence, including conflicting testimony.

The journalists present in the courtroom will rush to text their editors. They won't have to wait long for the bottom line, because by law, the court must announce an acquittal before reading the verdict - and acquittals on any charges will mean Katsav was convicted of the others.

katsav - Rafael Ben Ari / Israel Hayom - December 30 2010
Rafael Ben Ari / Israel Hayom

The judges made their decision without regard to all the media reports and polls. That is the strength of a professional judge: He focuses solely on evidence that has been proven in court. A criminal conviction requires proof beyond a reasonable doubt.

The key charge in the indictment is rape. Specifically, Katsav is accused of "abusing his position and authority, in his roles as both minister and president," to obtain sex with a subordinate.

The Katsav indictment is unprecedented - not only in Israel, but apparently in the entire democratic world. But indictments are one thing and verdicts are another. The prosecution undertook a difficult task: proving beyond a reasonable doubt that rape was committed - actual penetration of the woman's sexual organ without her freely given consent.

The indictment does not ignore the problematic circumstances of the incidents it describes, such as the fact that A.B. returned to her job as then-Tourism Minister Katsav's office manager after the two acts of rape she alleges. It attributes her "mild, rather than blunt," objections to having sex to her desire to keep her job, and her fear that refusal "could lead to her dismissal."

The circumstances of the case will be the focus of the argument. But previous Supreme Court rulings seem to be on A.B.'s side.

One ruling, for instance, noted that "there are situations in which the woman does not object forcefully, inter alia out of fear and helplessness." The court has also ruled that the person controlling the situation has a "responsibility to ascertain beyond any doubt that the complainant is really interested in having relations." And it has acknowledged that "rape victims' trauma affects their behavior," which can vary widely "depending on the circumstances of the case, the degree of closeness and the balance of power between victim and attacker."

But the law also requires criminal intent for a conviction, meaning the perpetrator must have been aware that the sex was nonconsensual, or at least have deliberately closed his eyes to the victim's objections.

Rape carries a maximum sentence of 16 years. There is also a minimum sentence of one-fourth the maximum, barring exceptional circumstances. Thus a rape conviction would almost certainly entail jail time.

The other sexual offenses of which Katsav is accused pale beside the rape charge. If he is acquitted of rape, even in a split decision, that will undermine the severity of his alleged actions.

Yet the other charges are also serious sex crimes. Forcible indecent assault carries a maximum sentence of seven years, while sexual harassment has a two-year maximum sentence. And both these crimes allegedly occurred while Katsav was president.

He is also accused of obstructing justice and intimidating a witness, each of which carries a three-year maximum sentence. Both are crimes that subvert the course of justice, making the very thought that they could be committed in the president's office deeply disturbing.

Rape is often hard to prove, and it is especially so given the circumstances of this case - particularly A.B.'s return to her job at the Tourism Ministry and her subsequent desire to work for Katsav in the president's office.

In an interview with Haaretz last year, Katsav flatly denied ever having had "intimate or romantic" relations with the complainants. If he stuck to this in court, then the judges had to decide between two diametrically opposed stories.

Katsav will walk out of court Thursday either a convicted rapist or the victim of an unsubstantiated smear. Even a conviction on lesser charges would undermine the severity of the case and raise questions about the prosecution's judgment.

Either way, Thursday's verdict will make legal and social history.