There was a wacky legal story out of Israel yesterday that reminded me of a discussion from my first semester torts class. We had been talking about Barbara A. v. John G., a 1983 California case in which an attorney was held liable for having sex with one of his client.
The problem wasn’t what you might expect. Nope. Ms. A was mad—and sued and won a judgment—because she had wanted to use a contraceptive, but Mr. G. didn’t want to and claimed to be sterile. He wasn’t. She became pregnant and sued for battery.
The court held that though Ms. A. had consented to sex, she had not consented to getting pregnant. Based on Mr. G.‘s misrepresentation, consent was invalid.
At least half the students in the class considered this a ridiculous decision. (I’m still not sure how I feel.) But most of the class agreed on two things: it would have been a tort if Mr. G. had claimed to not have AIDS but actually did; and everyone lies when sex is involved. (Above The Law agreed yesterday.)
Which takes us from California to Israel, via Haaretz, where it appears that it’s not just a sin—it’s a crime—to tell lies for the sake of seduction:
Sabbar Kashur, 30, had consensual sex with a woman after he posed as a Jewish bachelor interested in a long-term relationship.
When the woman found Kashur was not a Jew but an Arab, she filed a police complaint that led to charges of rape and indecent assault.
“If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated,” Judge Zvi Segal wrote in his verdict. Segal said the court had to protect the public from sophisticated criminals who could mislead innocent victims.
Truth be told, Kashur’s exploit is not uncommon. It was in Jeffrey Goldberg’s excellent memoir about the Israeli-Palestinian conflict that I read about Jawdat, a Palestinian from Bethlehem who spoke fluent Hebrew:
Before the Intifada, he worked at a Sheraton in Tel Aviv, and he would tell American Jewish girls on two-week holidays he was Israeli, and they would believe him. “I’ve f—-ed more Jewish girls than you have,” he told me once, trying to stir my blood. “We’re circumcised, too. They can’t tell the difference.”
Maybe not, but they’re still the ones deciding to go to bed with a stranger. Call me old fashioned but … Actually, don’t call me anything. Read what Dan Savage at The Stranger had to say:
When we have consensual sex with strangers—when we go home (or to “a nearby building”) with someone we’ve only just met—we’re not just taking a chance on a person we know very little about. We’re taking a chance on our own judgment. With no way to verify the story of the hot stranger—he could be lying about anything—we’re taking a chance on our own bulls**t detectors. And no one’s bulls**t detectors are 100% accurate. So someone who can’t bear the thought of accidentally f*****g the s**t out of an Arab or a Republican or a married man or a guy who makes less than $250,000 a year has no business f*****g complete strangers. That person owes it to himself/herself to get to know the people he/she wants to f**k a bit better before visiting any nearby buildings with them.
Biblical notions of biblical relations aside—not to mention the racism that this court decision stings of—Haaretz reports sentiments that this establishes a dangerous precedent:
in the past, men who misrepresented themselves in this way were convicted of fraud.
One such case was that of Eran Ben-Avraham, who told a woman he was a neurosurgeon after which she had sex with him, and was convicted of three counts of fraud.
Elkana Laist of the Public Defender’s Office yesterday said the Jerusalem District Court had gone too far in its application of the approach of the High Court, “opening the door to a rape conviction every time a person lies regarding details of his identity. Every time the court thinks a reasonable woman would not have had sex with a man based on that representation, the man will be charged with rape. That approach is not accepted around the world either.”
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