Roger writing the LAWmag

Judge Yeshaya's Judicial Monstrosity

Israel, sight unseen but from their "visit the holy land" tourism brochures, appears like a modern, beautiful, by-the-sea democracy.

By most accounts, Israel has a robust justice system and a solid judiciary, reflective of a modern law and order society. This, in spite of ongoing and intense military exigencies and international political interference with the ongoing border dispute with Palestinians, not to mention several states nearby that have vowed to eliminate Israel. That should give any government the jitters.

Anomalies happen but Israel still presents as a small, cool country, albeit one victimized often by that very unique scourge of the terrorist variety in a never-ending and often violent border dispute with Palestinians.

Israelis do seem to be a relatively fun-loving bunch. Take, for example, the recent news item of Israeli female soldiers playfully posting photographs of themselves partly nude, online. The cheeky soldiers were disciplined but the fact that they would even do this speaks volumes of their freedom.

Compare, for example, with female soldiers in traditional Muslim countries. Oh wait! Traditional Muslim countries do not allow women to serve in their armed forces, among many other things women are not allowed to do such as drive a car or go to school.

Women in Israel are free to dress as they want. This includes wearing sexy or revealing clothes. In fact, it is legal to suntan in the nude on the beaches of Israel.

If in every large flock there is a black sheep, in the case of Israel that must be former president Moshe Katsav who apparently left behind victims of both rape and sexual harassment. He has always maintained his innocence but he was found to have been guilty beyond reasonable doubt by a three-judge panel, a conviction he appealed but the appeal was dismissed. Former president or not, he was given a seven-year prison term which he is presently serving.

Israel your brochureUnfortunately, the flock is big and there was yet to be another bitter chapter in the legal history of the rights of women in Israel.

The Monstrosity

What should never of happened, happened in Israel at the very beginning of June in the year 2013.

It was a civil case but predicated by the previous convictions of four Palestinians for the rape of a then-13-year-old girl. The case was one for victim of crime compensation. It came before the Tel Aviv District Court in May 2013. The presiding judge was 66-year old Nissim Yeshaya.

It would be his last case which may have been the only salutory result of his presidency.

At one point in the hearing and, luckily, with the victim temporarily absent from the Court room, judge Yeshaya offered a spontaneous reflection ... that:

"... some girls enjoy being raped".

A dead quiet immediately washed over the court room as the words swept and sunk over the clerks, the sheriffs and the lawyers.

It was by any account a dark day for justice. When told later about the Yeshaya's comment, the victim fainted.

Almost from the minute the court adjourned, and to the credit of Israel, zero tolerance towards this kind of comment was manifest. All hell broke loose. The female lawyer of the victim, Roni Aloni-Sadovnik, made the courageous decision to immediately make the judge's comment public and to harshly criticize them.

She would not be alone. Prime Minister Benjamin Netanyahu broke through the shield of judicial independence and harshly criticized Yeshaya for his comment. Women's groups were also sharp off the mark and demanded the judge's resignation.

Judge Nissim YeshayaThe first public reaction of Mr. Yeshaya did nothing to reassure anybody. He claimed that he "doesn't know what all the fuss is about". He added that his remark was "not serious" and "taken of context", as if a monstrosity like that would have an agreeable context. Then he further deflected responsibility by adding that the furor was a publicity stunt.

Unfortunately, the Neanderthal proposal of women rights was continued by the media spokesperson of the Israeli court who offered this mild explanation:

"Things were said in the heat of the debate, and that there was no intention to hurt or belittle the plight of rape victims."

Yeshaya was summoned to appear before a quickly convened judicial conduct hearing which ended in the judge resigning. However, the court and the government of Israel still refuse to release the transcript of the hearing. Surprisingly, judge Yeshaya was not dismissed outright for egregious misconduct.

One item of interest is the impact being allowed to resign might have on his entitlement to a judge's pension.

Stupid and Insensitive

It is extremely rare in this century for any judge to make a comment as incredibly stupid and insensitive as that of now-former judge Nissim Yeshaya. But when they are attributed to judges, even if subsequently disciplined, the community believes the comment to be an accidental revelation of what the judge really thinks. Riding that wind of legitimacy, the comments then find and influence other minds in the bars and taverns, prisons and homes of the community. Great harm is done, and not to speak of the impact on victims of rape who already enter court rooms everywhere with trepidation.

Israeli justice minister Tzipi Livni reflected on what may be the saddest legacy of Yeshaya's remark:

"The judge’s statement was appalling and outrageous. It is difficult to assess the total harm it caused, which may deter other sexual assault victims, present and future, from complaining about attacks."

Posted in Crime and Criminal Law, Human Rights, Sexual Assault, Social Justice
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