ON AUGUST 29th, 1997, Senator David Norris addressed a letter to the judges of the High Court in Jerusalem in advance of an appeal of sentencing in the case of Ezra Yizhak, who had been convicted of the statutory rape of a 15-year-old boy.
He said he had known Mr Yizhak for the last 23 years. “I know him to be an intelligent, honest, trustworthy, good and moral person for whom the present difficulty is quite uncharacteristic,” he said.
He described Mr Yizhak as a “very good son to his mother” and “a kind and caring brother and uncle”. “I could cite many instances of his practical goodness as a human being. In particular I am personally aware of the sacrifices he made in caring for two friends who died from Aids. I have rarely witnessed such selflessness and humanity for no personal gain whatever.”
Mr Norris described himself as “a serious and respected person”. He went on to detail his career at Trinity College Dublin and in the Seanad. “At the recent election held last month, I received the highest vote ever recorded in the Senate, being elected on the first count, and have been widely mentioned as a possible presidential candidate in the forthcoming elections for the presidency of Ireland.”
He told the judges he was a strong supporter of Israel and had great respect for its court processes. “I merely feel that my close personal knowledge of Mr Yizhak may prove helpful . . . I am a person of some consequence whose views are not arrived at lightly or for no good reason.”
He said his experience and expert knowledge could be of value to the court given that he founded “the most extensively used counselling service for gay people” in Ireland and had “long experience of dealing with the emotional and legal difficulties experienced by gay people”.
Mr Norris said he had travelled to Israel and was present in the court for the hearing and witnessed “some troubling anomalies” in the majority verdict, such as the “constant insistence by the presiding judge that there was absolutely no difference between this case and a similar case involving heterosexual relations.
“This is certainly factually incorrect. I would be more than happy to give the court the benefit of my expert knowledge on this and other matters if it were found possible for me to give evidence in the matter.”
He said he was “a direct personal witness” to some of the “peripheral events” surrounding the case before it came to court. He had offered to give evidence which “might have helped the court to come to a more lenient judgment” and was surprised not to be called.
“I would like to stress that should the court find it possible to show mercy to Mr Yizhak, I am more than happy to act as a personal guarantor for his continued good behaviour and to guarantee absolutely that there will be no re-offence.”
He said Mr Yizhak’s arrest took place “in a curious and troubling manner”. “Mr Yizhak was lured into a carefully prepared trap. The police did not permit the advice of a lawyer. In the Irish jurisdiction, dealing with such circumstances would almost automatically lead to the dismissal of the case.”
Mr Yizhak’s guilty plea, however unwise, would be seen in the Irish jurisdiction as a “very strong mitigating fact”.
“As a result of so doing, Mr Yizhak spared the young man who is the other party to the incident from the traumatic necessity of giving evidence.”
He quoted the doctrine of the “fresh complaint” under which a complaint must have been made as soon as reasonably possible and must have been made voluntarily.
This would “certainly in Irish law raise serious doubts about the strength of the prosecution case and again could lead to dismissal of the case”.
In Ireland, non-custodial sentences had been imposed in cases “of a far more serious nature”, he added.
He went on to outline a number of cases in Ireland, England and Nova Scotia in which mitigating circumstances affected sentencing. He highlighted the following extract from the Nova Scotia case: “Where the victim not only consents but could be considered the instigator or at least a willing participant, a sentence towards the lower end of the range will be appropriate.”
He criticised what he described as “anomalies” in the original trial, including that the judge ignored the advice of two psychiatric social workers who recommended a non-custodial sentence.
He finished by telling judges his most urgent plea was not technical. He said Mr Yizhak would not offend again in the same way and was prepared to make financial compensation available to the young man involved.
He also said he believed “lasting and perhaps permanent damage” would be done to his “psychological and material welfare” by being imprisoned and that he might attempt suicide.
“I earnestly beg that the court may see the possibility of securing justice not by sending him to prison but by imposing a non-custodial sentence.”