Equality, Religion and Gender in Israel
The principles of equality for women under the Israeli Declaration of Independence and the Women’s Equal Rights Law were not endowed with constitutional force and the 1992 Basic Law: Human Dignity and Liberty does not expressly include the principle of equality. However, these laws have been interpreted by the courts as securing the principle of gender equality as a basic principle of the legal system. While in the private sphere, all the religious systems impose patriarchal norms on family life, in areas of law not directly related to religious values and norms a strong concept of gender equality has been developed. In these areas, the legal system combines social accommodation for maternity and parenthood with equal opportunity guarantees for women’s participation in all areas of Israeli life.
A legal system is a mirror of the society in which it functions, reflecting different aspects of social reality at different levels of its infrastructure. Constitutional principles reflect the fundamental societal norms in Israel, formulated by the Lit. "assembly." The 120-member parliament of the State of Israel.Knesset as constitutive assembly and interpreted by the High Court of Justice. In the ordinary legislative process, there is a testing of practical priorities, of the preparedness of a society not only to declare values but also to implement them. Case law, whether constitutional or not, represents an amalgam of the priorities of petitioners, those members of the society who invest their energies in applying to court, and the perceptions of judges based on their professional training and their individual perspectives. The courts provide a forum for a dialectic of opposing views—the plaintiff articulates his or her case, the defendant responds, and the judges determine the norm as they perceive it, each in his or her own way. This litigatory process reveals both the parameters of social activism and the judicial perception of the normative consensus. By examining women’s status in these various legal forums, we can obtain an overview of the position of women in Israeli society.
Constitutional Principles and Religious Jurisdictions
Israel’s Declaration of Independence was one of the earliest constitutional documents in the world to include sex as a group classification within a guarantee of equality in social and political rights. The message was clear—Israel’s prestate experience of discrimination and persecution had produced in the founders of the state a heightened sensitivity to the issue of group discrimination, and this included an appreciation of the need for equal treatment of women. However, the principles of the Declaration of Independence were not subsequently ensconced in a constitution. This was because of opposition by the religious political parties in the Knesset to freedom of conscience and equality, which would undermine the religious monopoly on marriage and divorce, and opposition by security interests to the imposition of limits on the government’s security powers. In 1951, the Women’s Equal Rights Law was passed, but it was an ordinary statute. Neither the Declaration of Independence nor the 1951 Law bestowed constitutional authority on the courts to cancel subsequent primary legislation, enacted by the Knesset, as unconstitutional. The laws were a mere interpretative tool to be applied by the courts in applying legislative provisions.
Nevertheless, this interpretive power under the principles of the Declaration of Independence enabled the High Court of Justice to introduce an impressive range of fundamental rights into the Israeli legal system, including the rights to freedom of speech, equality and freedom of association and demonstration.
In the Knesset, every legislative proposal for a constitutional bill of rights was obstructed by the Jewish religious political parties, largely on the grounds that the principle of equality for women must be subordinated to the predicates of Judaism in all matters of personal status. The State of Israel adopted and continued the Millet system, employed by the Ottoman Empire and the Mandate for Palestine given to Great Britain by the League of Nations in April 1920 to administer Palestine and establish a national home for the Jewish people. It was terminated with the establishment of the State of Israel on May 14, 1948.British Mandate before creation of the State, which applied the religious personal law to members of the various religious communities in Israel. Thus the personal law of Jews is determined by the rabbinical courts, of Muslims by the Sharia courts, and of Christians by the church authorities of the various denominations. This priority of religious values incorporates and endorses a patriarchal concept of women’s role in the family. Jewish law, as well as Muslim, Druze, Bedouin, and, to a lesser extent, Christian law, are all patriarchal legal systems, in that they exclude women from full participation in the public sphere while subordinating them to male authority in the private sphere (Polan, 1982: 295).
In the public sphere, conferment to the religious courts of exclusive jurisdiction over matters of personal status (such as the matter of marriage and divorce) excludes women from taking public office on such matters—there are no women acting as rabbinical judges, kadis, or priests with judicial authority in the various religious courts. Under The legal corpus of Jewish laws and observances as prescribed in the Torah and interpreted by rabbinic authorities, beginning with those of the Mishnah and Talmud.halakhah, women are not regarded as fully qualified to give evidence in court and cannot be appointed as rabbis or judges (Deuteronomy 17:6; Moses ben Maimon (Rambam), b. Spain, 1138Maimonides, Laws of Evidence 9:2, Laws of the Study of Torah she-bi-khetav: Lit. "the written Torah." The Bible; the Pentateuch; Tanakh (the Pentateuch, Prophets and Hagiographia)Torah 1:13). (For an exposition of the halakhic position see “Extracts from the Petition in the Shakdiel Case,” the Newsletter of the Association for Civil Rights in Israel, No. 16, May 31, 1987, where Rabbi Halevi Steinberg is quoted as giving the most recent authoritative summing up of the halakhah on the issue: “To all functions only a man should be appointed. Hence a woman does not have the capacity to be a judge.”)
In the private sphere, all the religious systems impose patriarchal norms on family life. Jewish women are subject to male predominance under halakhah. Although it can be said that, for the era in which it was promulgated, halakhah exhibited a considerably advanced sensitivity to the need to protect women against male exploitation (for example, halakhah protected women against exploitation of their property during marriage or loss of it upon divorce: Ketubbot 78a–30b; rape within marriage was prohibited: Maimonides, Personal Laws 15:17; Shulhan Arukh, Orah Hayyim 25:2, Rakover, Shnaton Ha-Mishpat Ha-Ivri, Vol. 6–7, 295–317), in modern terms it subordinates women to men in marriage. The basic concept of the marriage ceremony is “purchase” of the woman by the husband, who takes her as his wife in a unilateral ceremony (Codification of basic Jewish Oral Law; edited and arranged by R. Judah ha-Nasi c. 200 C.E.Mishnah in Kiddushin 2a). Divorce is not a judicial act and may be achieved only in accordance with the husband’s wish—until he declares that he is willing to divorce her, there is no way in which she may be released from the marriage bonds (Deuteronomy 24:1; Writ of (religious) divorceGittin 85a–b). Later introduction of a requirement of the wife’s consent to divorce did not result in a symmetrical impediment for men and women (Ban of Rabbenu Gershom, eleventh century). Women refused a divorce cannot remarry and, if they bear children from a union with another man before the divorce is given, face the severe problem of mamzerut—a form of bastardy applicable to the children of adultery by a woman. (A Lit. "bastard." Offspring of a relationship forbidden in the Torah, e.g., between a married woman and a man other than her husband or by incest.mamzer cannot marry within the Jewish community: Deuteronomy 23:3; Shulhan Arukh, Even ha-Ezer). In contrast, for men whose wives refuse to agree to the divorce, there is no problem of “mamzerut” and there are even ways in which the husband may acquire the right to remarry without a divorce (Shifman, 1984; Shereschewsky, 1984). For the Muslim and Christian communities, different forms of patriarchal rules are imposed by religious law, such as the unilateral divorce and custody rights of the male in Muslim law and the obligation of obedience in the Christian church.
In the 1951 Women’s Equal Rights Law, which guaranteed women equality before the law and constituted a principle of interpretation for ambivalent primary legislation and a norm allowing invalidation of secondary legislation, the Knesset subordinated the principle of equality for women to halakhic rules on marriage and divorce: the right to equality was expressly excluded regarding all issues of “prohibition and permission to marry and divorce.”
Since 1951, there have been many initiatives by members of the Knesset to introduce a constitutional bill of rights. However, they have almost all been marked by the same unwillingness to insist on the right of women to equality in marriage and divorce. The only constitutional proposal that has uncompromisingly insisted upon equality for women in the personal law is that proposed by former Member of Knesset Shulamit Aloni, but her attempts were consistently met with a solid wall of parliamentary opposition.
In 1992, the Knesset found a way to circumvent the opposition of the religious parties to a constitutional principle of equality by introducing a partial constitutional bill of rights, the Basic Law: Human Dignity and Liberty, which guaranteed, amongst other rights, the right to human dignity. Recognition of human dignity was acceptable to the religious parties, who undoubtedly regarded it as the very essence of Jewish law and not as a threat to the established order. Human dignity—kevod ha-adam—has, however, very different connotations in modern human rights discourse from its biblical predecessor. Human dignity in international human rights law inherently incorporates the right to equality and prohibition of group discrimination, including on grounds of sex. Those judges of the Supreme Court who have addressed the issue, have, for the most part, held that equality for women is incorporated in the right to human dignity. The Basic Law: Human Dignity and Liberty guaranteed superiority to the human rights listed, which could not be violated except by a law that is in accordance with the values of the State of Israel as a Jewish and democratic State, that is for a justified purpose, and hat is not disproportionate for the achievement of that purpose.
The Principle of Equality: The Supreme Court
Although the principles of equality for women under the Declaration of Independence and the Women’s Equal Rights Law were not endowed with constitutional force and although the 1992 Basic Law: Human Dignity and Liberty does not expressly include the principle of equality, these laws have been interpreted by the courts as securing the principle of gender equality as a basic principle of the legal system. The development of the principle of equality has had to contend with the incompatibility of the religious personal law and the concept of equality and with the clash between the Jewish and democratic values of the State. These clashes have a different impact as regards the private sphere (the family) and the public sphere (economic and political life). In family law, religious values exercise a significant restraint over the development of gender equality jurisprudence, while in the public sphere the reach of religious norms is far more limited and an impressive body of gender equality jurisprudence has been developed.
The Private Sphere: Family and Religious Values
In the private sphere, the exclusion of marriage and divorce from women’s constitutional right to equality, established in the Women’s Equal Rights Law, has been clearly regarded by the courts as beyond challenge. Even more, the Supreme Court has not taken it upon itself to develop indirect incentives to lessen women’s disadvantage under the halakhic rules of marriage and divorce. Thus, the Supreme Court has refused to sanction the use of punitive maintenance payments given by rabbinic courts against husbands who were unreasonably withholding a get (bill of divorce); the Court preferred to preserve the “real” purpose of maintenance payments rather than countenance extending their function to discourage abuse of the power to withhold a divorce (Mira Solomon v. Moshe Solomon, 38 P.D. 365). In the Plonit case (Plonit v. Ploni 51(1) PD 198 (1997)), a petition was submitted to overturn a ruling of the Grand Rabbinical Court, which had refused to oblige a husband, who had been separated from his wife for more than six years, to give her a divorce. The High Court of Justice ruled unanimously to dismiss. The Court ruled that it could not intervene in the Grand Rabbinical Court’s holding that there had not been proof of violence by the husband and that, even if there had, the husband “had not been put on warning.” One of the three judges sitting on the case, Justice Cheshin, remarked that the situation of a slave was preferable to that of a wife under the applicable Jewish Law, since even a slave would be released after seven years’ bondage.
Within the narrow limits of the residual right to equality in family life, the principle of equality has been applied by the Supreme Court in a number of cases. In the early years of the state, immediately following the enactment of the Women’s Equal Rights Law, the Court cancelled halakhic rules where both parties did not expressly choose to be governed by those rules, which created inequalities for women in the sphere of married women’s property and domicile rights (Raday, 1983). Regarding women’s equality in guardianship rights, which was expressly guaranteed in the Women’s Equal Rights Law (sec. 3(a)), the courts confirmed that the various religious courts were subject to the provisions of this Law (Raday, 1983).
However, the limited effectiveness of this guarantee is well illustrated by the case of Halima Bria (Halima Bria v. Qadi of the Shari’a Moslem Court et al.,  9 P.D. 1193). In that case, a widowed mother of three children who had remarried petitioned the High Court of Justice to desist from hearing an application to cancel her guardianship, on the basis of Muslim law. Under Muslim law, a mother who remarries ceases to be the natural guardian of her children. The application to cancel Halima Bria’s guardianship had been brought by the dead father’s sister. The High Court refused to grant the petition. There was disagreement between the justices as to whether the provisions of the Muslim law discriminated against women. While one of the three justices found discrimination (Justice Goitein, At 1998), a second remained silent on the issue and the third held there was no discrimination “since the question was which of two women was to be given guardianship of the child.” Whatever their opinion on the issue of discrimination, all three justices agreed not to invalidate the Muslim law as a relevant consideration. The Court pointed out that under the Women’s Equal Rights Law, the Qadi would be entitled to determine guardianship on the basis of the good of the child (sec. 3(b)). Only if it was proven that, in the final judgment, the Muslim courts had “intentionally ignored” the provisions of the Women’s Equal Rights Law in judging the good of the child would the High Court interfere (At 1199). The Court dismissed the claim that a skillful Qadi could find ways to disguise the fact that his decision was based on religious law and not on the principles of the Women’s Equal Rights Law (At 1199). In a more recent decision of the High Court of Justice, it required the Qadi to take into account psychological opinion in determining the good of the child.
In the 1994 Bavli case (Bavli v. Rabbinical Court of Appeals, 48 P.D. , 221), the High Court of Justice imposed on the rabbinical courts the obligation to abide by the principle of equality in the division of matrimonial property. Justice Barak held that the Jewish law principle of separation of matrimonial property could not satisfy this requirement since it resulted in women receiving a negligible share of the property on divorce. The Court’s decision was in conformity with the Women’s Equal Rights Law, which excluded only the matter of license or prohibition in marriage and divorce from the purview of the equality principle and not related matters, such as property, maintenance, and custody. The decision provoked violent opposition from religious groups and is said not to be applied in practice by the religious courts.
The Public Sphere: Politics, Economics, and the Military
Judicial decisions regarding the principle of gender equality in the public spheres of politics, economic life, and the defense forces, which are ostensibly secular institutions, have nevertheless been affected by the extent to which they impinge on religious values or sensitivities.
The first gender discrimination case to be brought before the Israeli courts was that of a man who was a member of the ultra-Orthodox Neturei Karta (“Guardians of the city”) sect, who claimed that his prosecution for refusal to serve in the army constituted sex discrimination, since a woman who held his religious convictions would have been entitled to an exemption from army service (Steinberg v. Attorney General,  5 P.D. 1061). The Supreme Court rejected this claim, holding, amongst other things, that the Law was intended to protect women, not men.
The impact of religious values on public life was addressed in 1988 in the Shakdiel and Poraz cases (Bagaz 153/87 Shakdiel v. Minister for Religious Affairs et al., 42 P.D. 221; Bagaz 953/87 Poraz v. Lahat, Mayor of Tel Aviv et al. 42 P.D. 309). The issue in Shakdiel was the decision of the Minister for Religious Affairs and a Ministerial Committee set up under the Jewish Religious Services Law of 1971 to refuse to appoint Leah Shakdiel to serve as an elected member of a local religious services council, on the grounds that she was a woman. The issue in Poraz was the Tel Aviv Municipal Council’s decision not to appoint women to the electoral board for the Tel Aviv municipal rabbi. The opposition to these appointments was based on claims that, under Jewish Law, women may not elect or be elected to public office. The women petitioned to enforce their right of participation and their petitions were accepted by the Court, which recognized women’s right to equality as a “fundamental principle” of the Israeli legal system. Both appointments were to bodies established by legislation, which were hence, although dealing with religious affairs, clearly public civil institutions. Undeniably, these cases establish that women are entitled to equality of participation in state administrative bodies, even those that deal with religious services.
However, there are grounds for some hesitation regarding the impact of the two High Court decisions as regards the constitutional balance between equality and religion. Both the decisions accorded the principle of equality for women, which they termed a fundamental principle, much less than a hegemony in this balance. In Shakdiel, Justice Elon held that the principle of equality is to be “balanced against other legitimate interests of individuals or the public.” Hence, he argued, “had there been a prohibition in the halakhah against women serving on religious councils, … a compromise would have to be found between the two approaches. Although the municipal council is a secular statutory body and is hence subject to secular law, it deals with halakhic affairs . . . and thus it would be desirable to seek ways to bridge the opposing interests” (At 242–243). In Poraz, Justice Barak regarded it as the duty of the Court to balance “the general principle of equality, on one hand, and particularistic interest in the appointment of an electoral board, which should be able to carry out its functions properly, on the other.” He held that the balancing process was “horizontal, not vertical … we do not have a situation here of a clash, in which one of the principles predominates over the other. Equality is an important principle but it is a relative principle” (At 336). Justice Barak went on to say that, even in this horizontal balancing process, the importance of equality is central and infringement will be permitted only if there is no other way to implement the particularistic purpose which underlies a specific law. However, he went on to make it clear that the principle of equality was determinative in this case only because there was, as a matter of fact, no real barrier to the proper functioning of a municipal rabbi if women sat on the electoral board: “Justice Elon showed in the Shakdiel decision that there is no halakhic prohibition of participation by women in elections of functionaries to public office. It can be assumed that there are certain rabbis who think as he does and hence will be candidates for municipal rabbi” (At 337).
The Court’s readiness in the above decisions to ascertain whether the inclusion of women was prohibited by the halakhah, as a relevant issue in determining the right of women to participate in these public bodies indicated a preparedness to tolerate the encroachment of inegalitarian halakhic values on areas of public life: the bodies in question were, as the Court itself stressed in both cases, public bodies set up under the secular law. The Supreme Court could have furthered the cause of equality by a decision that, until such time as the legislature expressly provided otherwise, it was to be assumed that even if the inclusion of women was contrary to halakhah, or even if no rabbi was willing to sit with a woman in a religious council or be elected by an electoral board that included women, the legislature did not intend to condone unequal treatment of women in this sphere.
The remaining case law on gender equality in the public sphere is not even directly associated with questions of religion, and the Supreme Court, over time, developed a strong gender equality principle in the matters not influenced by religious norms.
The early cases brought by women for equality were not successful. The failure in the early 1960s of the first claim brought by a woman to enforce her right to economic equality may have helped to discourage further litigation in this sphere (Lubinsky v. Pakid Ha-Shumah , 16 P.D. 304). The case, in which tax authorities assessed a married woman’s income from an orchard she owned together with her husband’s income from salary for income tax purposes and refused her request for separate assessment, resulted in the Supreme Court not only finding that the ruling could not be challenged because it was based on statute law but also holding that there was no sex discrimination. It was not until 1977 that the next equality petition was brought. This petition was brought before the Supreme Court by a legal apprentice. She claimed that refusal of the Law Society to reduce the length of legal apprenticeship in the case of absence for maternity leave, mandatory by statute law, in the same way as it did in that of absence for military service, discriminated against women (Lifshitz Aviram v. Israel Lawyers’ Association,  31 P.D. 250). The High Court of Justice found it patently unproblematic to dismiss the petition, holding, in an uncharacteristically short decision (less than two pages long), that there were no possible grounds for finding discrimination since women as well as men serve in the army.
In 1990, in the context of the issue of equal retirement age for women, the Supreme Court, for the first time, gave a decisive, unambiguous ruling on the supremacy of the principle of equality under the Women’s Equal Rights Law: “… where there is no expressly contrary provision, the courts must prefer that statutory interpretation which is consistent with the principle of equality between the sexes” (Bagaz 104/87, Nevo v. the National Labor Court et al., 22.10.90). Justice Bach, giving the lead opinion of the Court, elevated the test for proof of discrimination to a level requiring strict scrutiny; he expressly pointed to the fact that there is insufficient awareness of discrimination where it acts against women and called on the courts to rectify this.
This decision was a turning point, and in the decade following the Nevo decision the High Court of Justice gave a series of decisions that transformed the principle of equality for women in Israel into a progressive and powerful one. The Court went on, per Justice Cheshin, in a later case, to delineate the place of equality amongst legal principles as “The king of principles—the most elevated of principles above all others … So it is in public law and so it is in each and every aspect of our lives in society. The principle of equality infiltrates every plant of the legal garden and constitutes an unseverable part of the genetic make-up of all the legal rules, each and every one. … The principle of equality is, in theory and practice, a father-principle or should we say a mother-principle…”. He distinguished clearly between group discrimination and arbitrary distinctions: “Discrimination against a woman—because she is a woman—is generic discrimination … another example of generic discrimination is the discrimination against a person because of his race or color. Generic discrimination … is discrimination that mortally wounds human dignity. A person does not have control over his sex (male or female), over his skin color (black, yellow or white)….”
In the last decade of the twentieth century the Court broke away from the limits of formal equality and incorporated concepts of affirmative action and accommodation into the principle of equal opportunity itself. Furthermore, the Court analyzed the need to prevent violence against women in the context of women’s human rights to human dignity and equality.
First, affirmative action. In the case of the Israel Women’s Network, the IWN, a feminist organization, brought a petition to implement the provisions of a recent legislative measure introducing a requirement of fair representation of both sexes—a form of affirmative action—in appointments to the boards of directors of government companies. In spite of the legislative provisions, three men had been appointed to the boards of government companies on which there were not yet any women directors. The petition to cancel these appointments was accepted by a majority decision of the High Court of Justice. Justice Matza, writing the lead opinion of the Court, clearly identified the socio-historical roots and reality of discrimination against women and the need for equal opportunity and affirmative action and not mere formal equality. His rhetoric rings with the rationale of socio-dynamic equality: “Provision of equal opportunity has a chance of achieving an egalitarian result, only where the populations competing do so from a starting position which is more or less equal. ... A significant gap in equality of ability [to achieve]—whether its source is in discriminatory laws which were in force in the past and have now been discontinued, or whether it has been created by inappropriate attitudes which have become rooted in society—increases the chances of the strong groups and detracts from the chances of the weak groups. … The correction of past injustices and the achievement of real equality is possible only by giving preference to the weak group.” The conceptualization of affirmative action in Matza’s judgment is as an integral part of equality and not an exception to it. He said: “The idea of ‘affirmative action’ is derived from the principle of equality and its essence is in the engineering of legal policy tools for the implementation of equality as an effective social norm (equality in the result).”
In the case of IWN II (IWN v. Minister of Labor, 52(3) P.D. (1998), 630), in 1998, the petition was for fair representation of women in promotion to the level of deputy director general in the National Insurance Institute. This time the petition was in the absence of any preexisting statutory or contractual provision for affirmative action. Accepting the petition, Justice Cheshin, with Justice Zamir and Justice Beinisch concurring in his judgment, set a ground-breaking precedent on the priority of the right to equality in the legal system and, in particular, the issue of affirmative action. Referring to Matza’s judgment in IWN I, Justice Cheshin accepted the concept that affirmative action and fair representation of women are an integral part of the principle of equality. However, while the Matza judgment was based squarely on a statutory fair representation provision, Justice Cheshin extended the obligation to guarantee fair representation of both sexes to all public or dual identity public and private institutions.
Second, accommodation. In 1995, in the Miller case (Miller v. Minister of Defense 49(4) P.D. (1995), 94), the petitioner had been refused entry to the pilot’s course of the Israel Air Force on the grounds of her sex. The Airforce claimed that the exclusion of women from the pilots’ course was justified for operational considerations because of the cost of the course and the reduced reserve service potential of women. The Air Force pointed out that the Defense Service Law allowed women to cease reserve service after pregnancy, while men are required to continue such service till the age of fifty-four. The Air Force did not claim justification on grounds of policy regarding combat roles for women and did not question women’s competence to be pilots. Miller’s petition to the High Court of Justice was accepted by a majority of three to two. Justice Dorner introduced the principle of accommodation as the model of equality for women to be adopted by the Court. She said:
The interest in guaranteeing the dignity and status of women, on one hand, and the continuation of society’s existence and the rearing of children, on the other, demands—as far as possible—that women should not be prevented from realizing their potential simply because of natural functions which are special to them, and thus be discriminated against vis-à-vis men. The social regulations—including the legal regulations—must be adapted to their needs (Miller, supra note 111, at 142).
Dorner termed this the “intermediate model” that lies between two extremes. At one extreme, she said, is “the asymmetrical model of ‘special treatment’, according to which women possess special characteristics and functions which justify differentiating them from men”; this model condones the exclusion of women from certain posts. At the opposite extreme is “the symmetrical model of ‘sex blindness,’ [which] demands the same treatment for men and women and assumes that the members of both sexes have the same functional capabilities. The adoption of this model usually involves structuring the system according to the capabilities of the male, without accounting for the special needs of women.” However, alongside this apparently radical imposition of equality norms on the Air Force, there is a traditionalist undertone in Justice Dorner’s judgment. In her assertion of the need to accommodate women’s special needs, she did not differentiate between women’s biological reproductive functions, which is the source of an immutable difference from men, and women’s parental role as the bearer of the responsibility for child rearing, which is a socially derived mode of behavior and subject to the possibility of change. This stereotypical view of women’s family role is further expanded in Justice Matza’s judgment, as he refers to women’s roles as wife and mother. Only Justice Strasberg-Cohen limited her perception of the right to accommodation to women’s biological difference.
In the Be’eri case (The State of Israel v. Be’eri et al., 48(1) P.D. (1993), 302), which was a prosecution appeal against an acquittal in a case of adolescent group rape, the Supreme Court analyzed the question of a woman’s or girl’s consent to have sexual relations as a matter of her fundamental right to human dignity and to equality between the sexes. Justice Cheshin and Justice Shamgar used the constitutional right to human dignity to give a progressive and often neglected emphasis to the requirement that a woman must give her full and free consent to sexual intercourse in order that the accused be entitled to an acquittal. Justice Cheshin said: “… human dignity—the dignity of the woman and the dignity of the man as a person—requires us to say that sexual intercourse requires consent between two who are equal to each other.” While, in this respect, his decision is similar to that of Justice Shamgar, Justice Cheshin went further and required a total change of social and legal attitudes regarding the consent of women to sexual intercourse. He placed the burden of proof, in the case of doubt regarding consent, on the man, who must ascertain whether the woman consents or does not consent, expressly or implicitly, to the act of intercourse:
Where doubt arises as to the woman’s consent or non-consent to sexual intercourse, the conclusion must be that the intercourse was without consent.
Since the man must have the woman’s consent to intercourse—and in the absence of consent the intercourse will be regarded as rape—it is enough for the woman to express her lack of consent in a straightforward manner, and even by implication, and she is not required to take any physical or verbal action beyond that.
Justice Cheshin thus applied an extremely high standard for the establishment of consent that places the burden of proof on men rather than women. This approach is consonant with a radical feminist view. The assumption is that, in order to achieve real equality between men and women and to guarantee women protection against unwanted invasion of their bodies, men must be held responsible for ascertaining real consent.
For his part Justice Shamgar proposed that, in cases of group rape when the victim is a minor, the burden of proof should shift to the accused. Furthermore, he accepted psychological evidence of the concept of rape trauma syndrome. He regards it as requiring the courts to modify their attitude to victims who do not immediately report the rape and not to interpret the victim’s silence as indicating consent. Justice Shamgar referred to the hostile atmosphere in which rape victims have found themselves in the legal process and rejected the use of evidence regarding the victim’s sexual history, emphasizing that such evidence has in the past been used to turn the victim into the accused. He demonstrated the importance of eliminating this approach by asserting that a wife has the right to refuse to have intercourse with her husband and a prostitute has a right to refuse to have sexual relations with any man with whom she does not want such relations.
In Ben Asher (The State of Israel v. Ben Asher, 52(1) P.D. (1998), 650), a sexual harassment case in which the Supreme Court overturned a decision of the State Disciplinary which had acquitted the respondent, Justice Zamir writing the opinion of the Court, contextualizes sexual harassment in the rhetoric of equal opportunity. His opinion demonstrates awareness of the impact of sexual harassment on women’s human rights and, in particular, on their right to equality and human dignity. Zamir does not present the phenomenon as sex neutral, recognizing that, although there are cases in which women may sexually harass men, in the vast majority of cases men are the perpetrators and women the victims. He says of sexual harassment:
It is outlawed because it is coercive behavior by one person against the will of the other, in the sphere of sex which is, of its nature, more than any other sphere, restricted to mutual will. It is also prohibited because it mixes sex with non-sex: it relates to a person according to his sex in a harmful way, when it should relate to a person according to how he performs his function or the level of his achievements at his workplace or at the institute of learning. Therefore it involves not only an attack on the principle of equality of the sexes but also an attack on human dignity.
In the Galili case (Bagaz 1284/99 Plonit v. Chief of the General Staff, 53(2) P.D. (1999), 62), the petitioner, a female soldier, who was the personal assistant of a base commander, complained that he had sexually harassed her. The Court set out from the factual assumption that the soldier had agreed to the sexual contact with her commander. The Court held that the commander’s behavior was reprehensible and that the army was preempted from promoting him. In her analysis of whether the conduct of the commander was reprehensible, Justice Strasberg-Cohen sets out from a radical feminist position: “This relationship between a senior officer and his assistant is characterized by a deeply engrained and inherent inequality.” However, Strassberg-Cohen followed this perception of the young female soldier’s impotence with an assertion of her autonomy and of both her right and her duty to stand on her wishes:
[The petitioner, despite her young age] is a free and independent woman, who has her own personality and independent will. She should be regarded as a person who is mature enough to accept responsibility towards herself and others, in the army and outside it. …
However, for this purpose she should receive the proper support from the army and its elite.
Gender Equality Legislation
Legislation on matters not connected with the religious jurisdiction over personal law has been developed in a progressive way since the late 1980s. The delay in the initiation of legislative reform to guarantee equal opportunity for women can be attributed to two factors. First, the founding premises of Israel in socialist Zionism made it natural to provide accommodation for women’s needs—especially “working mothers” rights. Thus from the 1950s, women were entitled to maternity leave allowance paid by National Insurance, protection against dismissal during pregnancy, and affordable childcare facilities, all of which combined to allow women to continue gainful employment and family life. It took time before the stereotype of the working mother was perceived as a barrier to women’s advancement. In addition, there was a myth of gender equality from the early years of the State, which derived from the participation of women in the pioneer organizations, in military service, in politics, and in the professions. However, the myth was deconstructed in the 1970s and 1980s when it became apparent that presence was not power and that women were subject to disadvantage in Israel as elsewhere.
The awakening to the reality of women’s disadvantage brought a decade of feminist legislation, which was initiated by feminist organizations. The first legislative measure in 1987 was to reverse a Labor Court decision that had upheld mandatory early retirement for women. After that, an equal employment opportunity law was passed, with remedies for all forms of employment discrimination and conversion of childcare rights from maternal to parental rights. Laws requiring affirmative action for directors of government companies and for civil service employees and imposing an obligation to pay equal pay for work of equal value were passed. In 1998 the Knesset adopted a law prohibiting sexual harassment in the workplace, which extended its prohibitions beyond the workplace to other dependent relationships, in education, healthcare and the military, and also to non-dependent relationships where there are repeated acts of harassment. A law guaranteeing women’s right to fill any role in the military, provided they are capable of doing so, was introduced. In 2000, an Amendment to the Women’s Equal Rights Law consolidated the principles of equality with affirmative action and accommodation, which had been introduced in case law and legislation as basic principles of the legal system.
Despite the progress made in legislative policy on women’s equality in the period since 1987, Israel has fallen behind advances being made in most European countries. Thus, the length of paid maternity leave (twelve weeks, of which the father may take six) and of parental childcare leave (a maximum of 72 weeks—unpaid) is no longer generous in comparison to that prevailing in Europe. Furthermore, there are no provisions for pension subsidy for years of maternity or childcare absence from the labor force. There is no statutory requirement of women’s quotas for representation on political parties’ candidacy lists or for appointment to state policy making or advisory bodies, such as exists in the Scandinavian countries, France, and Belgium and in some developing countries such as India and Bangladesh.
Throughout the period since the 1980s, measures were taken to improve legal prohibitions and preventive measures in the sphere of violence against women. The Prevention of Violence in the Family Law was passed, conferring jurisdiction on the courts to give protection orders that remove the violent person from the family home. Amendments were made to the law of rape, which improved the trial situation of rape victims, abolishing the requirement of corroborative evidence of rape and disallowing examination of the rape victim’s past sexual experience. Additionally, the definition of rape was broadened and prohibition of marital rape, already well established in the case law of the Supreme Court on the basis of Jewish Law principles, was given statutory force.
Regulation of reproductive freedoms has been partially influenced by pressures by the religious parties for conformity with Jewish Law. Abortion is legal on certain approved grounds: age (under sixteen or over forty); a prohibited or extramarital relationship or incest; a physical or mental defect of the fetus; danger to the woman’s life or her physical or mental health. According to Israeli rabbinic authorities, under Jewish Law abortion is permissible only where the continuation of the pregnancy threatens the mother and in the late 1970s the religious parties successfully lobbied to repeal socio-economic circumstances as ground for abortion, which had allowed abortion because of difficult family or social circumstances. A law was passed allowing surrogacy agreements. Legality was, however, effectively restricted to surrogacy by unmarried women in order to avoid the possibility that the child would be the product of the adulterous pregnancy of a married woman.
There is a dichotomy in Israeli law between religious and secular values as regards gender issues. This dichotomy pervades the legal system at all levels. At the constitutional level religious values have preempted the introduction of an explicit right to equality for women. However, this limit has been largely circumvented by the constitutional right to human dignity and by Supreme Court jurisprudence, which has established the right to equality as a fundamental right. The Knesset has put personal status law—license and prohibition in marriage and divorce—beyond the reach of the principle of equality and the courts have not challenged this. On the other hand, the High Court of Justice has required the religious courts to apply the principle of equality to associated issues of family law, such as the division of property on divorce. As regards areas of public life connected with religious services, the High Court of Justice has imposed the principle of equality only in so far as it did not involve the infringement of a prohibition of Jewish Law. In the regulation of reproductive rights religious norms have also influenced the substance of legislation. In all other areas of law, not directly related to religious values and norms, a strong concept of gender equality has been developed both in legislation and in the courts. Thus, in these areas, the legal system combines social accommodation for maternity and parenthood with equal opportunity guarantees for women’s participation in the labor force and the military and affirmative action in public sphere economic activities.
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