“We had never jumped fences before”: The city, the woman, and the drifter in the Yaakobowitz case

• Published date: 02 November 2009
• DOI: https://doi.org/10.1108/S1059-4337(2009)0000049006
• Pages: 57-96
• Date: 02 November 2009
• Author: Leora Bilsky

‘‘WE HAD NEVER JUMPED

FENCES BEFORE’’: THE CITY,

THE WOMAN, AND THE DRIFTER

IN THE YAAKOBOWITZ CASE

Leora Bilsky

This article goes back to the trial that enthralled the state of Israel in its

second year of existence, the trial of David Yaakobowitz, known in public as

the murder and rape in Meir Park, Tel Aviv. A brother and his half-sister

who were strolling in Meir Park at night were attacked by a stranger. The

brother, a married man, managed to escape but later died of his wounds.

The sister was attacked and brutally raped but managed to fight off the

attacker. The police brought criminal charges against the person who called

the police. He was accused of the murder of the brother. He was not charged

for the rape of the woman. The sister turned into the main witness for the

prosecution. In the legal community, the Yaakobowitz trial stands for

articulating the mens rea requirement in the crime of murder. To the public

at large, the trial is remembered as a traumatic event, symbolizing the

transformation of the first Hebrew city – Tel Aviv – into a modern cityfacing

increasing crime problems. The trial opened in April 1950, and in November

1950, the judgment was read: the accused was found guilty for murder and

was sentenced to death. On appeal he was acquitted of murder and convicted

for manslaughter. He was sentenced to fifteen years imprisonment.

Studies in Law, Politics, and Society, Volume 49, 57–96

Copyright r2009 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000049006

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The first two parts of the article tackle the trial through the age-old tension

between the private and the public. Taking a ‘‘trial as performance’’

approach, I examine the dramatic conflict that took place on the stage of the

court between the desire to expose the ‘‘secret’’ and the constraints imposed

by ‘‘due process.’’ I argue that it is not the legal precedent but rather the

repeated failures to respect the constraints of law that made the trial into a

didactic stage for the Israelipublic. It served to teach the painful lesson of the

danger of yielding to the desire to find the ‘‘whole truth’’ while disregarding

procedural constraints as technicalities. While the first part of the article

looks at the intrusions of law in the private domain, the second part looks at

the invasion of the family into the center of the criminal trial. I argue that

only in the judgment of the Supreme Court, a new understanding emerges of

law as artifice, dependent on securing an insulated sphere from social forces.

The third part further explores the trial as performance of identities. It

focuses on the two ‘‘heroes’’ of the trial: the central prosecution witness –

Naomi

1

– and the accused – David Yaakobowitz. Both are ‘‘streetwalkers’’,

wandering the streets of TelAviv and challenging the social order of the time.

The woman and the new immigrant pose a challenge to the Court of how to

adapt the public sphere to respect their rights. They bring the social

experience of discrimination into the light of day and demand that the Court

bridge the gap between Zionist ideology (committed to equality of women

and immigrants) and a social reality of exclusion. Feminist literature is

employed to understand the difficulty of maintaining the distinction between

private and public in respect to women (in sexual offenses in particular) and

other marginalized groups in society. The article highlights the various ways

in which the law participates in their exclusion by constraining their

narratives and limiting the credibility of their testimonies. However, it also

shows that while the Court is relatively successful in overcoming its initial

failures to hear the woman, it remains unable to listen to the ‘‘drifter’’ till the

end. To understand this difference, we need to go beyond feminist theoryand

understand the logic oflaw in the modern state. I argue that while the woman

challenges social prejudices, her claim does not undermine the logic of law.

She demands to be included on the same terms as men. She does not

undermine the private-public distinction as such, only asks that her right to

privacy be respected. On the contrary, Yaakobowitz, the accused, poses a

much more radical challenge to the modern legal order. His way of life as

vagrant constantly blurs the distinction between private and public and at

times even inverts it. The Court uses the trial to perform its own identity as

the guardian of boundaries and as such repeatedly fails to comprehend the

narrative told by the accused. Comparing the two can shed light on the terms

LEORA BILSKY58

of inclusion that the law can offer to the marginalized. Moreover, since the

affair is located at the very ‘‘beginning of law’’ – the Yaakobowitz trial can

help us re-think the role of law in forming (and performing) social hierarchies

in a new society.

1. ON PRIVACY

After considering the material before me, I have formed the opinion that it shall be

permitted for the petitioner to examine the file under scrutiny. Deliberation on the case

did not take place behind closed doors and there is no lawful prohibition to the

examinationyin addition I accept the position of the respondent, according to which in

spite of the fact that a large portion of the details of the affair were published in the

judgmentythe file contains material whose revelation can cause unnecessary harm to

the central witness ythe examination considered will be contingent on an undertakingin

writingyaccording to which the petitioner will not publicize anything that will damage

the privacy of the victims and their families beyond the damagethat already occurred by

the court judgment. (Decision of magistrate Yigaal Marzel, 2006 in the matter of C.A

125/50 Yaakobowitz v. Attorney General)

My path to criminal case 125/50 was directed, and bound, by legal

tradition, by the limitations arising from the right to privacy. These

limitations are imposed ex post facto. At the time of ‘‘The Affair,’’ the press

was full of intimate details, as were the Court hearings and judgments. Now,

fifty years later, my attempt to return to the case started with meeting a wall

of privacy in place of the wall that was breached many years ago.

Nathan Dunewitz, a trial reporter and journalist, dedicates a chapter

of his book, The Accused: Dramas from the Court, to the Gan Meir affair.

He, too, opens his discussion of the rape and murder that took place in the

year 1949 with the issue of privacy. However, the park and not the Court

constitutes the locus of privacy in his story:

The evening of the 21

st

of August, 1949 was hot and humid. Many Tel Aviv residents

were outside of their houses yin Tel Aviv of those years there weren’t air-conditioned

apartments. Many lived in tiny apartments – often two or three families to an apartment-

and in some there were shared washroom facilities. There was not even a bit of

privacy ywhen hearts became heated and connections intensified, many of the

youngsters would retire to the ‘‘bedrooms’’ of the city – distant places on the sands of

the Tel Aviv beachfront or the public parksyMeir Park was a haven for forbidden

relations ythe locked gates didn’t prevent visitors to Meir Park. They would jump and

pass over the fence, give a hand or shoulder to their date, so she could pass the physical

barrier on the way to the regions of loveyhere in Meir Park took place the most serious

crime of the State of Israel’s second year of existence. A youth was murdered by heavy

blows and punches, and his girlfriend was beaten and raped. (Dunewitz, 2000, pp. 27–28)

The City, The Woman, and The Drifter in the Yaakobowitz Case 59