Sexual assaults against men are worse than those against women because they undermine the victim’s masculinity, an Israeli female judge ruled recently.
A man who is sexually assaulted feels greater shame and guilt, Be’er Sheva Magistrate’s Court Judge Sara Haviv wrote in a sentencing decision, because of “social expectations … that he should have responded and stopped the assault.”
The case involved a man in his fifties who sexually assaulted a male German tourist two years ago. The tourist, 28, was vacationing at the Dead Sea and discovered that there was no running water in the changing room. The assailant, who worked at a nearby kiosk, offered to show him to a changing room that did have running water.
But when they got there, the assailant poured bottled water over the tourist, fondled his chest, put his hand into his pants and grabbed his penis. He continued the assault despite the victim’s pleas until the tourist finally fled.
Haviv sentenced the assailant to 12 months in jail, a fine of 2,000 shekels ($560) and 20,000 shekels in compensation to the victim, thereby disregarding the welfare service’s recommendation that the man be sentenced only to community service. She said the relatively harsh sentence was justified in part because the victim was a man.
“The harm done to the complainant is greater than usual because of his gender,” she wrote. “Aside from the direct damage caused by the assault, the complainant suffered harm because of the fact that he is male.
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“The complainant felt, in part because of the social expectations in his case, that he should have responded and stopped the assault earlier than he did. He felt additional shame and guilt because of his gender, on top of the shame and guilt that usually accompany sexual assault.”
Another reason for the severity of the sentence was that the assailant “slandered Israel,” Haviv wrote, citing the tourist’s testimony that he “thought this was a local custom and therefore didn’t stop the defendant.”
The assailant “exploited the fact that the complainant was in a strange place,” she continued. “There are grounds for toughening the sentence when a sex crime is perpetrated against a tourist.”
Her other reasons for severity were more conventional, however. For instance, even though the welfare service deemed the defendant suitable for a sentence of community service only, its evaluation rated him at “medium-high” risk of assaulting others. It also said he had trouble showing empathy for his victim, viewed himself as a victim and had refused rehabilitative treatment.
Consequently, the prosecution sought a sentence of 16 to 24 months in prison.
Defense attorney Or Shapiro-Sa’ar asked for community service only, arguing that her client simply misread the situation, believing the sexual encounter was by consent, and stopped as soon as he realized that the tourist objected. Moreover, she said, the defendant’s cognitive level is low, he has trouble understanding social situations, and he also suffers from repressed sexuality. But Haviv didn’t accept these arguments.
Shapiro-Sa’ar said she plans to appeal both the conviction and the sentence.
“It’s inconceivable that a defendant’s sentence should be increased for discriminatory reasons,” she said. “With all due respect to the fact that the complainant is a man and a foreign national, these don’t make the damage any different from that experienced by any assault victim, female or male.”
Shapiro-Sa’ar charged that the ruling discriminated thrice over – against the LGBTQ community, by saying that homosexual assaults inherently deserve to punished more harshly; against women, by saying that they suffer less harm from being assaulted; and against her client, “by mixing illegitimate considerations into his sentence.”