A Rapist’s Prosecution

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Demonstrators protest sexual violence in Rabin Square, Tel Aviv, last year.

“You said that you agree that there wasn’t consent, but the problem was Eran’s awareness. This leads to a problem: If it was obvious to you that there was no consent, why wasn’t it obvious to Eran?”

With these words, Supreme Court Justice Neal Hendel justifiably slapped the wrist of the prosecutor who decided to close a rape case because he couldn’t prove that the perpetrator, identified only as ‘Eran,’ wasn’t aware that he had failed to get consent from his inebriated 18-year-old relative – a woman two decades younger than him who had never had sexual relations – to have sex in a public restroom during a family wedding.

The private tragedy of Shir (not her real name) that arises from the investigation raises questions concerning the legal worldview of the State Prosecutor’s Office when it comes to sex offenses in the #MeToo era. It should not have been the Supreme Court that reviewed the strength of the case but senior officials in the prosecutor's office, who should have sent it back to the police for further investigation. It isn’t the consent of the victim that is standing trial but that of the senior prosecutors who permitted such a negligent investigation.

The problem that Justice Hendel pointed to is just one in a series of troubles emerging from this case. The investigation was replete with failures and omissions, including witnesses who were never called in for questioning and others who were called in but never fully questioned. As to the judges’ inquiry about whether prosecutors consulted experts regarding the discretionary ability of someone who had consumed as much alcohol as Shir did, the effects of her fainting and any other relevant issues, the answer was no. No expert was consulted.

Most of the reactions to Hendel’s report evinced despair about how the justice system relates to the rights of victims of sexual offenses. But there is another side to it: Even when her extended family turned their backs on her and tried to obstruct the investigation, Shir, the 18-year-old rape victim, stood her ground and fought for four years. “I told my lawyer, I don’t intend to stay quiet. We’ll take this all the way,” she said in a radio interview.

The Haaretz investigation focused on investigative failures, but Shir’s courage, fearlessness and strength emerged from between the lines. Courage and determination like hers is what’s required of those in charge of the prosecutors’ office and the Israel Police. The criminal negligence, low regard for women, disregard of the victim’s age and state of awareness, and general insensitivity throughout the case call for a thorough examination of all those involved, both in the State Prosecutor’s Office and the Israel Police.

The above article is Haaretz's lead editorial, as published in the Hebrew and English newspapers in Israel.

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