Just the Facts

Until 1980, the law forbade courts from convicting someone of sex crimes based solely on the complainant's testimony; there had to be some other evidence.

The Supreme Court's rejection of former President Moshe Katsav's appeal comes as no surprise.

Katsav's main argument in the appeal was that the District Court erred in finding his accuser's testimony credible and his own not credible. But it's a well-established legal principle that appellate courts generally do not intervene in the lower courts' factual findings, and especially not in their findings about the credibility of witnesses, because the appellate court didn't see and hear the witnesses itself and thus cannot evaluate their credibility.

Moshe Katsav - Ilan Assayag - 10112011
Ilan Assayag

What the Supreme Court did examine was whether the District Court's factual findings justified its conclusions. And it ruled that they did.

Katsav's main claim was that A. from the Tourism Ministry lied when she accused him of forcing her to have sex against her will. But since people don't generally have sex in front of witnesses, all such cases force the courts to decide which of the two key witnesses, the accuser and the defendant, is more credible.

Until 1980, the law forbade courts from convicting someone of sex crimes based solely on the complainant's testimony; there had to be some other evidence. But that year, at the request of both the courts and women's organizations, the Knesset eliminated the requirement of supporting evidence.

In this case, however, the court found that there was plenty of additional evidence to support A.'s story.

The justices rejected the defense's claim that the District Court should have considered the possibility that Katsav and A. had consensual sex, noting that in order for the court to have considered this possibility, Katsav would have had to claim that it was true and supplied evidence. Instead, he flatly denied having had sex with her at all. And once it was proven that A., rather than Katsav, was telling the truth on this point, that lent credence to the rest of her story.

Evidence was also adduced to confirm that she was in Katsav's company at the times and places when she claimed the rapes occurred. Finally, the court found support for her story in the testimony of another woman who described a similar pattern of behavior by Katsav, but who could not be included in the indictment because the statute of limitations had expired.

Another woman's testimony similarly assisted in his conviction on charges of indecent assault against two other complainants. Here, Katsav admitted to the acts in question, but claimed these were friendly touches, not sexual. The other woman's testimony provided support for the thesis that they were in fact sexual.

The court also rejected the argument that he should be acquitted, or at least given a lighter sentence, because of the numerous leaks from his investigation and his subsequent "trial by media," though it did criticize the attorney general's public statements on the case before the indictment was filed.

Can we learn anything from this verdict? On a personal note, it would seem to reinforce an argument I've been making for years: Today, there is no longer any rationale for the doctrine that an appellate court cannot intervene in the lower court's factual findings, because today it is possible for an appellate court to see and hear the witnesses itself on video. Currently, only written and audio records are made of courtroom proceedings. But videotaped records would allow the appellate court to form its own opinion of the witnesses' credibility.

Granted, this system would be expensive because it would require expanding the number of judges in the system. But if we want better quality control over lower court verdicts, this is what we should do.

More broadly, yesterday's verdict first and foremost reinforces what we should all already know: A male employer has no right to have sex with a female employee without her consent; a woman is the sole master of her own body. The verdict also proves that everyone is equal before the law, including Citizen No. 1.