Since the 1980's, 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 issue protective orders that remove the violent person from the family home. Additionally, the definition of rape was broadened and the prohibition of marital rape, which had already been established by the Supreme Court in accordance with Jewish law principles, was given statutory force. 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 Supreme Court analyzed the need to prevent violence against women in the context of women's human rights to human dignity and equality.
Statutory regulation of reproductive freedoms has been partially influenced by pressures of the religious parties. 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 to her physical or mental health. Under Jewish law abortion is permissible only where the continuation of the pregnancy threatens the mother, and in the late 1970's the religious parties successfully lobbied to repeal socioeconomic circumstances as grounds 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.
The development of a judicial principle of equality for women in the High Court of Justice has had to contend with the patriarchal religious personal law. The clash between the two has had a differing impact in the private (namely, family) sphere, and the public arena, (namely, economic and public life). Whereas in family law, religious values exercise a significant restraint over the development of gender equality jurisprudence, the inhibiting impact of religious norms in the public sphere is far more limited and an impressive body of gender equality jurisprudence has been developed.
In the private sphere, Israeli courts have not interfered with the statutory delegation of license and prohibition in marriage and divorce to the religious courts. Beyond this statutory limit, however, the principle of equality has been applied by the Supreme Court in a number of cases, as for instance regarding property ownership and domicile rights. In 1994, 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, irrespective of the Jewish law principle of separation of matrimonial property.1
In the public arena (politics, economic life and the military) the High Court of Justice, untrammeled by religious norms and sensitivities, introduced radical principles of equality for women. Thus, in 1990, in the context of the issue of equal retirement age for women, the Supreme Court required the courts to exercise strict scrutiny in examining claims of group discrimination against women. In a series of rulings, the Court transformed the principle of equality for women in Israel into a progressive and powerful one. Justice Michael Cheshin of the Supreme Court, described the principle of equality 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 parent-principle or should we say a mother-principle."2
In the last decade of the twentieth century the court broke away from the restraints of formal equality and introduced concepts of affirmative action and accommodation. Affirmative action was sanctioned by the courts in a number of cases. The courts recognized that 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). The principle of accommodation as the model of equality for women to be adopted by the Court was introduced by Justice Dalia Dorner:
"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-a-vis men. The social regulations - including the legal regulations-must be adapted to their needs."3
The Israeli legal system is marked by a deep dichotomy between traditionalist preservation of patriarchy in matters related to religion, on the one hand, and progressive and even radical legislative and judicial policy on matters of gender equality not related to religious norms, on the other. This dichotomy is also apparent in the gap between the high level of women's education and their high level of representation in professional life, especially in the legal system itself as lawyers and judges, and the comparatively low level of women's political representation, as ministers in the government or members of Knesset.
1. H.C. 1000/92 Bavli v. Rabbinical Court of Appeals, 48(ii) P.D. 221
2. IWN v. Minister of Labor, 52(3) P.D. (1998), 630 at 650.
3. H.C. 4541/94 Miller v. Minister of Defence, 49(iv) P.D. 94, 142.
Courtesy Shaare Zedek Medical Center
Frances Raday holds the Elias Lieberman Chair of Labor Law at the Hebrew University and is a professor at the College of Management - Academic Studies. She served as an Expert Member of the UN Committee for the Elimination of Discrimination Against Women from 2000-2003, and was the Founding Chair of the Israel Women's Network Legal Center. She currently chairs the Israeli Association of Feminist and Gender Studies. Frances Raday has written extensively on labor, human rights and gender equality issues and is a strong advocate of women's rights in Israel.