When is rape nationalistic? – analysis

The rape of a seven-year-old Jewish girl allegedly by a Palestinian has brought up a debate about when nationalistic – or anti-Jewish – motivations should be assigned to the crime of rape.

While many on the Israeli side want to declare it a nationalistic-motivated crime, the Palestinians themselves view the defendant as a disgraced criminal, and will not be paying him a cent, as is done with other terrorists who have committed nationalistic crimes.

In the case of Palestinian Arafat Irfaiya, who confessed to and has been indicted for raping Ori Ansbacher, Palestinians threatened to kill him if he was jailed together with other Palestinian security prisoners.

In the current case, military Advocate-General Maj.-Gen. Sharon Afek determined that Mahmoud Nazmi Abed Alhamid Katusa’s alleged rape of the seven-year-old was a criminal act, and not nationalistically motivated.

Irfaiya, on the other hand, was indicted for nationalistic intent for the alleged rape, over Palestinian objections.

What makes a rape nationalistically motivated versus criminally motivated?

The Jerusalem Post has researched this issue and has found that there are very few cases of Palestinians raping Jews, and that almost none of them was categorized as nationalistically motivated.

This means that the Irfaiya case is a highly unusual exception to the rule.

To understand the thought process, it is useful to view the full spectrum of crimes Palestinians might commit against Jews and how they are usually treated.

Generally, when a Palestinian murders a Jew, the default assumption is that it was nationalistically motivated, though there are exceptions.

In contrast, when a Palestinian steals money from a Jew without acting violently, the default assumption is that it was criminally motivated.

Rape could be seen as fitting somewhere in the middle, as it combines control, passion and violence.

A complex middle-of-the-road case that can help flesh out the analysis might be a case where a Palestinian steals a Jew’s car and then runs over and kills the Jew with it.

Was the purpose of the crime to steal the car and the Jew just got in the way by accident, or he was possibly just killed as the Palestinian was trying to make a quick getaway? Or did the crime combine seeking to steal along with an opportunity to violently kill a Jew, which means the second part was ideological?

What if a Palestinian steals money from a Jew and then beats the Jew afterward? Was the beating merely to facilitate getting away, or was it a separate anti-Jewish violent crime?

When Palestinian rock throwing has led to Jews dying, there has sometimes been a debate whether it was a planned nationalistically motivated murder, or dumb teenagers expressing anger at the nearest scapegoat they could find, without fully realizing how dangerous their actions might be – with some defending their action saying they only meant to damage the car.

These cases expose the need to carefully analyze the facts at each stage, and the potential multiple crimes or motivations involved.

Ultimately, Irfaiya was indicted for nationalistic motivations because he confessed as such, and because he first stabbed Ansbacher, and only later raped her and then left her to bleed to death.

Had he only raped her and not stabbed her, and had she not died, he may not have been indicted for nationalistic motivations.

In the latest case, the indictment mentions some low-grade violence besides the highly violent act of rape, including some pushing.

But there was nothing near a stabbing – and the girl was freed at the end and lived to tell the tale.

Some of the circumstances of the case – that the indictment does not give an exact date of the rape (the Post has learned this is because the girl did not reveal the rape to her parents on the day that it occurred); that the alleged rapist had a long history working around Jewish students; and that he bribed her with treats to build trust – make an ideological accusation more difficult.

To date, this defendant unlike Irfaiya has not merely refrained from saying what his motivation was, but denies that he perpetrated the crime at all.

None of this, of course, makes the rape any less grotesque.

But when trying to make sense of the inner workings of criminal law and the decisions of prosecutors, the facts and what they imply – not the emotional revulsion to the crime – will always dominate the decision.