'Judges Don’t Understand What Being Raped Is Like'

Lawyer Rotem Aloni-Davidov represents the victims of sexual abuse, and frequently cautions her clients that pursuing financial compensation is often a better course of action than criminal proceedings

Lawyer Rotem Aloni-Davidov.
Eyal Toueg

Lawyer Rotem Aloni-Davidov has represented many rape victims in her career, so while the disclosures of the current #MeToo campaign don’t exactly shock her, they do impress her. Though an attorney and a believer in the legal system, she acknowledges that it has its limitations and the anti-harassment campaign gives women a different way of fighting back.

“Last week I had my picture taken for the paper, and the photographer asked me if women also sue men who aren’t famous,” says Aloni-Davidov, 39. “I told him that most of my day is devoted to unknown women who are hurt by unknown men.”

Media reports about allegations against a celebrity can encourage “unknown” women to come forward and speak when they have been hurt by that same person. Such empowerment is missing in the case of the anonymous – yet some assailants may be in positions of great power and cause great harm.

Take cases against doctors and other kinds of carers who are sexual predators. Aloni-Davidov handles such cases, but until the allegations are proven, these professionals remain publicly unnamed. In theory, she would prefer that the names of the alleged attackers be publicized so that other victims come forward – so that people stop going to them for treatment, and also because they probably hurt other women too.

That can’t happen, of course, because defendants also have rights. Still, Aloni-Davidov points out she has one case of a doctor against whom four different women, none of whom know each another, have come forward and complained independently. His name remains confidential and protected by a gag order, she says. He’s still working, as are other doctors like him.

As a result, women may inadvertently find themselves being treated by doctors and psychologists who are under investigation for sexual predation. Over 80% of sexual assault cases are closed for lack of evidence, and the proportion going forward to trial is very small.

Aloni-Davidov says one problem is that quite a few of the complaints she handles is women coming forward years, or even decades, after the event. Another is the sheer difficulty a woman has in testifying about incidents involving sexual assault – and the requirement to confront the attacker.

Solid evidence is also a problem, especially in old cases. “The woman is stripped naked and the process she undergoes is awful, while the likelihood of anybody actually going to jail is very small,” Aloni Davidov says.

Students protesting against harassment of women at the Hebrew University, April 2015.
Olivier Fitoussi

Israel was rocked earlier this month by the prosecution’s demand that Sari Golan – one of the women who accused real-estate developer Alon Kastiel of rape – disclose notes taken by her own psychologist. Aloni-Davidov is handling her case and calls the prosecution’s demand “invasive.”

Unfortunately, the criminal process sanctifies the rights of the accused over those of the victim, Aloni-Davidov notes. But sometimes it’s better to cooperate with the demands of the prosecution, just to maintain control over the material given to the defense counsel, she adds.

In other words, the privacy of alleged attackers is jealously guarded by the law enforcement system, while details about victims are open to all, says Aloni-Davidov. The very questions asked are invasive; even the cross-examination in court can often go to irrelevant places, just to shake the woman’s confidence.

Sure, the defendant has rights, says Aloni-Davidov – but the victims deserve much better protection and treatment from the legal system. The truth is that nobody knows what went on behind closed doors. “He said, she said” and the fact that a case can be closed doesn’t mean the allegations weren’t true, Aloni-Davidov points out.

Some years ago, the Israel Bar Association set up a committee to look into false allegations, spurred by divorce and custody disputes, Aloni-Davidov explains, noting the inferiority of the woman’s position under Israeli family law. Aloni-Davidov rejects male complaints that they’re actually the ones in an inferior position.

“Men say all kinds of things – that doesn’t mean it’s true,” she says. “There may be women who abuse the system, but cases often get closed for ‘lack of guilt.’ The women and children I see show signs of post-traumatic stress and tell horror stories about the things daddy does to them – yet the police close the case. It has happened not once and not twice.” In any case, Aloni-Davidov feels that arguing whether one gender benefits more than the other in Israeli family law is pointless.

She does understand that the prosecution has its own viewpoint: they have to worry about acquittals, and the risks they take will be proportional.

As for the police, they are simply unable to investigate sexual offenses, Aloni-Davidov believes – whether for lack of ability, lack of willpower or lack of sensitivity.

Israel Police chief Roni Alsheich.
Emil Salman

Her case load covers a huge range of sexual horrors: from incest to gang rape, to doctors and psychologists abusing their patients. Pressed by TheMarker, Aloni-Davidov declines to offer a clear recommendation about what a woman should do – go to the police or file a civil suit.

“It’s a function of the circumstances,” she says. “There are some more clearer-cut cases than others. Take a teacher whom parents learn is hurting their child: there’s no question the police should be involved, lest other children get hurt.”

Aloni-Davidov herself aims to close cases through financial agreements that involve compensation, an apology, an agreement on psychological counseling, or whatever is needed. Sometimes families need to talk about things openly. That may be especially pertinent in cases of abuse in the family, she says. “Say an uncle hurt a child and it tears the family apart, but the victim wants to restore the family framework because she loves her aunt,” she says; when it comes to family, things can get very complicated.

Aloni-Davidov says things can be resolved to the victims’ satisfaction, but a key issue – which she tries to achieve through the civilian processes she pursues – is to restore a sense of control. Women in these positions want to feel that they’re in charge, she says. (Criminal proceedings are a different matter altogether.)

Compensation can reach millions of shekels. “The rich pay more easily,” says Aloni-Davidov. “But we have reached compensation arrangements in which people took out a second mortgage or a loan from friends – for 700,000 to 800,000 shekels [$200,000 to $228,000].”

When asked if there is a price list for sexual assault, Aloni-Davidov confirms there is and that the courts have a price list. “If you were raped in the north, you won’t get the same amount as if you were raped in the south or center,” she admits. “In the north, you’d get a quarter of the amount you’d get in the center or south.”

Aloni-Davidov says that is a function of the courts. “The Nazareth court are cheapskates,” she says. “The judges in the south and center award higher amounts.”

In general, she feels that compensation for rape victims is stingy, certainly when compared with the damage caused. Compensation for the agonies caused by medical negligence tends to be much higher, for instance – though the agony suffered after sexual attack may be much worse, Aloni-Davidov observes. “Getting scarred or losing a limb will get you much higher compensation than rape.”

Why? “Because the judges don’t understand what being raped is like. True, you haven’t lost a limb, but it’s a lot worse to lose your joie de vivre,” she says. “It should be parallel to severe disability. Psychiatrists also have difficulty quantifying mental suffering, because it has to be translated into numbers. If she functions, ostensibly the damage is lesser, but that’s just ostensible – she may function during the day but not at night because she gets crazy flashbacks. Or there may be foods she can’t eat because they remind her of the event. Or she can’t be in a couple. She gets up in the morning and goes to work. So what?”

Settling out of court, the compensation may be higher, she says. When Aloni-Davidov writes a letter to the attacker, describing the event and suggested compensation figure, it can work.

Based on what figures? “Say therapy costs 400 shekels an hour – once or twice a week, times five years. There is a capitalization equation. There is loss of income, costs or women who may become suicidal and need guarding medicine, therapy, addiction treatment. I calculate future costs, add pain and suffering, depending on the gravity of the acts, then name a figure.”

Almost everybody tries to strike a deal, she says. They also nearly always employ their own lawyer, too – an arrangement she prefers. “There’s something uncomfortable about sitting with a person who isn’t represented.” She prefers to keep the playing field level.

Though criminal proceedings don’t cost them anything financially, the victims may well have to pay for psychological counseling to get through the process, Aloni-Davidov says. And if the victim wants her own lawyer by her side, she will have to pay for that too.

Rape crisis centers are excellent at helping women through the process, and can advise them if they need to get their own lawyer, Aloni-Davidov adds. Also, the state is looking at paying for “private” legal counseling in serious cases.

Asked if she could ever represent a man who hurt a woman, Aloni-Davidov is quick to respond. “I can’t be on both sides,” she explains. “I’m on this side because I believe the women who describe their hurt.”

Still, she understands the lawyers who choose to represent the men – at least to some degree. “It’s work,” she says. “I don’t have a better answer than that.”