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Mervyn Bennun - Israel, Rape, Racism, and South Africa’s Immorality Act

 Street News Service 31 October 2019

Mervyn Bennun was till 2009 Honorary Research Associate in Law Faculty at the University of Cape Town UCT, and is a member of the SA Organising Committee of the RToP. (1714 Words) - By Mervyn Bennun


My cousin recently told me, angrily, that he did not wish to speak to me again and that he wanted nothing to do with me any longer. Telling me his reasons, he let the racist cat out of its Zionist bag in all its spitting, snarling viciousness. He deliberately drew an analogy with South Africa. He said that when apartheid ended and all South Africans became free and had equal rights in every way, whites lost exclusive power and became just a mere minority. A similar thing would happen to the Jews in Israel, he told me, without Zionism; if Palestinians' rights were recognised and they became equal citizens, then Jews would lose power and become just a mere minority in the same way as South African whites did and Israel would cease to be a Jewish state.

The Observer newspaper of 25 July 2019 reports a case heard in Israel of a man, Saber Kushour, who was convicted of rape after having had consensual sex with a Jewish woman without telling her that he was a married Palestinian. Judge Zvi Segal ruled that, "If she hadn't thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have co-operated. The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price - the sanctity of their bodies and souls".

The following also appears in the newspaper: 'Kushour speaks fluent, unaccented Hebrew, as do many Palestinians living and working in Jerusalem. The woman asked his name and Kushour replied "Dudu" - a common Israeli name. He said, "Since I was a kid everyone calls me Dudu - even my wife calls me Dudu. It's a nickname." At no point, he says, did the woman - who gave her name as Maya - ask if he was Jewish, although he has acknowledged that he said he was single.'

Saber Kushour's account of what happened was apparently accepted by the court: it was a casual encounter in which Maya had made the first approach and thereafter set the pace for what followed.

There is nothing special about the criminal law relating to rape in Israel: under section 345 of the Penal Code, the prosecution must prove that the accused person knew that the alleged victim was not consenting to intercourse, and any consent is valid only if it is 'informed' consent - in practical terms, the accused may have to ensure that the alleged victim knew everything which might affect her consent. For historical reasons Israeli law is influenced by English law, where there are cases to the effect that there would be no consent if the accused misled the woman about the nature of what was being done (for example, in one decided case a singing teacher persuaded the woman that having sex with him would improve her voice) or concealed the fact that he might infect her with a disease; and there are even cases to the effect that there would be no consent if the accused deceived the woman into thinking that he was someone else with whom she would be willing to have intercourse - for example, her husband.

But from what judge Zvi Segal and Saber Kushour both said, it is clear that there was no reason whatever for Kushour to think that Maya would have refused to have sex with a Palestinian - the judge simply assumed that no Jewish woman would agree to such a thing. He thus legitimised Maya's racism by making it relevant to her consent.

Judge Zvi Segal's interpretation of the law of rape is even worse than the prohibitions of South Africa's old Immorality Act of the apartheid days - at least then it had to be proved that one actually knew that one's sexual partner was from a prohibited group if one was prosecuted under the Act. Kushour was convicted of rape even though he did not know that his companion would not have had sex with him had she known that he was a Palestinian.

Is racism farce or tragedy? Ultimately, racism gets entangled with a prurient interest in sex so this could be a soft-porn comedy within the setting of a satirical nightmare - a parody of some characters from Gilbert and Sullivan's Mikado, perhaps. Judge Zvi Segal would be portrayed as a sort of Poo-Bah character - prejudiced, ignorant, and merciless. In Act 1, the audience would think that it's all good-humoured fiction for the operetta seems to be located in a nameless country with laws even more crazy than those of Titipu. In Act 2, we begin to feel uneasy - the work is holding our attention, but is it a satire and should we laugh? We learn the answer in Act 3.

In the operetta, Kushour (alias Ko-Ko) cannot defend himself by claiming that he is equally revolted by the thought of sex with the Jewish woman who had misled him into thinking that she was a Palestinian. Perish the thought! The judge is indignant - hasn't he just said that the law assumes irrefutably that no Jewish woman would consent to have sex with a Palestinian?

So here's the twist in the plot - a Palestinian and a Jew who were each mistaken about the other's ethnicity. Did they commit offences against each other - was the Palestinian a rapist under the Penal Code, and did the Jewish woman commit an indecent assault? But how could they be given equal protection by the law in a state meant exclusively for Jews? The scandalised judge sings a patter-song with the refrain, 'No way, chaver! No way!'

Then along comes a character based on a sinister re-recreation of the Mikado himself, with a malevolent talent for bizarre solutions for the list of bizarre problems which he has invented. He drools over this one: Jews and Palestinians are sometimes indistinguishable by their appearance, speech, behaviour, and the clothes they wear, and as marriages between Jews and Palestinians are forbidden in Israel, and as being Jewish is inherited from one's mother and has nothing to do with one's genes or religion (enter a doleful, lovesick chorus of 'little atheist maids from school'), further precautions must be taken.

His Majesty observes that it is not enough that everyone is already defined by their ethnicity on their identification cards (Jewish, or Arab, or Druze, and so forth), which are used to control whom they may vote for, whom they may marry, where they may go, where they may live and travel (there are even roads which Palestinians are not allowed to use). The danger, he sings, is that in moments of lust both parties may forget to study each other's identification card.

He proclaims a new law: from now on, everyone must wear a distinguishing tattoo which can be seen when they start to take their clothes off - when, of course, any last hope of seeing the difference between a Palestinian and a Jewish male would be lost altogether... a pink tattoo for Palestinians, in the shape of the crescent moon and star; and, for Jewish Israelis, a yellow one in the shape of the Star of David. Problem solved.

The snickering stops in Act 3, because we realise that we never were at a comic opera. As the curtain rises, Billy Holliday is heard singing 'Strange Fruit'. On the stage there are references to the Klu Klux Klan's justification for lynching black men - to 'protect white women'; to what the Nazis did 'to protect Aryan purity'; and to South Africa's Immorality Act.

Southern trees bear a strange fruit, Blood on the leaves and blood at the root, Black body swinging in the Southern breeze, Strange fruit hanging from the poplar trees.

Pastoral scene of the gallant South, The bulging eyes and the twisted mouth, Scent of magnolia sweet and fresh, And the sudden smell of burning flesh!

Here is a fruit for the crows to pluck, For the rain to gather, for the wind to suck, For the sun to rot, for a tree to drop, Here is a strange and bitter crop.

Judge Segal's words (quoted above) are appalling. George Santayana wrote: 'Those who cannot remember the past are doomed to relive it', and what the judge said is an echo of something he has forgotten.

The backdrop to the last act is also genuine - it reproduces what the United Nations Fact-Finding Mission on the Gaza Conflict (the Goldstone Mission) reported (para. 706, n. 394):

Graffiti left by Israeli soldiers in the house of Talal al-Samouni, which were photographed by the Mission, included (a) in Hebrew, under the Star of David: 'The 5 Jewish people are alive' and, above a capital 'T' [referring to the army (Tsahal)], 'This [the letter T] was written with blood'; (b) on a drawing of a grave, in English and Arabic, 'Arabs 1948-2008 "; and (c) in English: 'You can run but you can not hide', 'Die you all', ' 1 is down, 999,999 to go', 'Arabs need to die' and 'Make war not peace'.'

Those who have forgotten the past have betrayed the young people who did this by teaching them to think in such terms of their compatriots. The soldiers are tragic victims also.

Let us stop reliving the past. There must be a state where all are equal, and where there are no fearful minorities (Jewish or otherwise) because nobody is taught to hate. There will be no discrimination based on race or gender or any other characteristic that a human being can be born with; where everyone can travel freely and where nobody's land can be expropriated just because they are Palestinians or of any other ethnicity. It will be a land where all people of all cultures and all beliefs (even the atheists) are safe, have a right to dignity, and are equally free to live, love, marry and laugh together - and yes, if the moment is right, even to lust for each other without being haunted by 'gallantry' like Judge Segal's and which Billy Holliday sang of.

I wish that my cousin shared this dream with me.

Postscript: In passing, we see in the programme notes that the ballad 'Strange Fruit' was written in the mid-1930s by a Jewish anti-racist writer who was shocked by photographs of a lynching.

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