CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, November 7, 2017

Gross on Rape by Deception about Gender and Nationality

Aeyal Gross (Tel Aviv University - Buchmann Faculty of Law) has posted Rape by Deception and the Policing of Gender and Nationality Borders (Tulane Journal of Law & Sexuality 24 (2015)) on SSRN. Here is the abstract:
In 2012, the Israel Supreme Court handed down its decision in the appeal of Sabbar Kashur, who had been convicted of rape by deception regarding the perpetrator’s identity and of indecent assault. The conviction had been based on a section in the Israel Penal Law that defines rape as consensual sexual intercourse with a woman if her consent was obtained by deception regarding the perpetrator’s identity or the nature of the act. Kashur had been convicted for deception relating to national identity, with the court of first instance ruling that he had “falsely” represented himself as a Jew and with regard to his personal status. His indictment and conviction generated intense public and legal debate around questions of sex, nationality, and the link between the two. That same year also saw the partial lifting of the publication ban on a case that had culminated in conviction for rape by deception relating to the perpetrator’s identity where the charge had been for gender impersonation. This was the second instance in Israel of a conviction in such circumstances. 

In this Article, I will discuss questions that arise with regard to the use of the rape-by-deception charge in cases relating to issues of identity — gender and national — and crossing its boundaries.
I will not explore the entire range of criminal law issues that this offense raises. Rather, I will consider how the case law on nationality impersonation and gender impersonation can shed light on how the gender-national order is preserved against boundary crossing by the criminal law rules governing rape by deception regarding the perpetrator’s identity.

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