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It's Time for Israel to Rewrite Criminal Law to Tackle Sex Offenses

Orit Kamir
Orit Kamir
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A protest in Tel Aviv over the gang rape of 16-year-old girl in Eilat, last year.
A protest in Tel Aviv over the gang rape of 16-year-old girl in Eilat, last year.Credit: Ofer Vaknin
Orit Kamir
Orit Kamir

The uproar in Israel’s LGBTQ community over allegations of sexual offenses by leading figures in the community reflects an upset of norms. Its old rules, centering sexual freedom, are being reexamined in the light of radical feminism’s understanding of sexual exploitation. The community seems to be moving toward a recognition that protecting the welfare and innate dignity of all sexual partners is as important as sexual autonomy, and that rules for respectful sexual behavior must be set.

From my feminist perspective, this is a welcome development. But its success cannot rely on activists alone. Laws, carrying penalties, must be passed to define boundaries and prohibit harmful and exploitative behavior, notwithstanding the (justified) fears over invasion of privacy.

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Only after a legal framework is in place can education for respectful sexual conduct be possible – together, of course, with strict observance of defendants’ rights.

The Israeli law pertaining to sexual offenses is woefully archaic, rendering it inadequate for its purpose.

For example, it defines “sodomy” as “the introduction of a bodily organ or an object into a person’s anus, or introduction of a sex organ into a person’s mouth,” and specifies circumstances in which such acts are prohibited.

This terminology does not respect anyone, certainly not members of the gay community. LGBTQ Israelis are not the only ones who are abased and humiliated by the language of this law. It uses the word be’ila (from ba’al, meaning owner, master and also husband) for sexual intercourse, defined as “the introduction any part of the body or any object into the woman’s sex organ.” In other words, as the law is phrased, when a man penetrates a woman’s vagina, he becomes her master, whether or not she consented to the penetration.

How is it possible to fight the patriarchal objectification of women by means of their sexuality when the law structures the man as a subject who acquires for himself, by means of sexual penetration, ownership of a woman? When the law structures the woman as a sexual object, ownership of which may be acquired through sexual contact?

The law includes vaguely worded offenses such as “causing an act to be performed,” in Article 350, and patently illogical penalties for offenses such as “forbidden intercourse by consent,” “sexual relations between a provider of mental health treatment and a patient,” “sexual relations between a member of clergy and a person who received counseling or instruction from him.” What is the problem with how these three offenses are defined? Indeed, sexual relations conducted without a person’s free consent are legally classified as rape. The three offenses cited here refer to specific situations in which sexual relations were conducted without the victim’s freely given consent: situations in which the perpetrator is in a position of authority (at work or in school, for instance), or a psychologist or clergyman who exploited his relationship with his victim. Common sense demands that these offenses be classified as even more severe than ordinary rape, since they combine the absence of the victim’s freely given consent with despicable exploitation of an imbalance in power relations. But lo and behold: In the Israeli penal code, these offenses are actually viewed as much milder than the standard offense of rape. Kim Arad, psychologist Yuval Carmi’s (alleged) victim, is justly protesting against this outrageous state of affairs.

Just as serious: Since the law on sex offenses is old and outdated, it contains no mention of new types of sexual behavior that only emerged with the advent of the internet. As everyone knows, many interpersonal and sexual relationships now occur via screens. The penal codes in many countries now draw red lines regarding these kinds of behavior. The purpose is to educate the public about what constitutes respectful sexual conduct in the virtual age, to prevent sex offenses via the internet and, when needed, to impose penalties for such offenses in a proportional and intelligent manner. The Israeli penal code is completely silent on all this; no trace of the 21st century has seeped into it. No one has told it that nowadays personal relations also take place via technological means, and that some of these relations are harmful and dangerous. Of course, this silence precludes the possibility of education for respectful sexual behavior, or deterrence, prevention and punishment.

This legal lacuna also causes damage of another kind: It causes the state prosecutor’s office and the courts to try to fill it, and to take old prohibitions and apply them to virtual situations for which they were not designed. In so doing, they violate the principle of legality (anything not explicitly forbidden is permitted) and human rights (the right not to be tried and penalized for actions not explicitly forbidden).

For example, in September, the Supreme Court dealt with a case in which a defendant persuaded a policewoman who was impersonating a minor to insert fingers into her vagina, when they were in separate locations, on separate screens, with only the internet connecting them. There is no question that the defendant, who attempted to have a virtual sexual relationship with someone he believed was a minor, tried to exploit her young age in order to bring himself to sexual climax. The law needs to explicitly and precisely define the harm entailed by such behavior and its legal consequences. But Israeli law is silent. At the prosecution’s request, the Supreme Court agreed “to correct” the law’s silence. It applied to this incident an offense that does not match it and convicted the defendant of attempted rape (even though the defendant and the policewoman impersonating a minor never saw each other or were together in the same space). This is an absurd and harmful result.

Justice Minister Gideon Sa’ar is known to care about gender issues and has promoted initiatives in this area. Now that the state budget has passed and the coalition is more stabilized, Sa’ar should form a team to work on reformulating the penal code’s Article on sex offenses. Once the law sets the boundary between permitted and forbidden and defines in detail which types of behavior fall beyond the red line, it will be possible to educate for sexuality that is not harmful, and to try someone for sexual offenses while protecting the rights of all involved. In such a reality, members of the LGBTQ community who wish to break the conspiracy of silence will also be able to accuse someone who deviated from the rules of respectful sexuality, while the rights of the victims as well as of the defendants are upheld.

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