Defense at extradition hearing: Leifer’s students effectively consented to abuse
At a long-awaited extradition hearing for Malka Leifer on Monday, the defense team of the former headmaster at an Australian school sought to argue that those who accuse their client of sexual abuse had effectively consented to it.
The highly anticipated session at the Jerusalem District Court was the 69th hearing convened since Leifer was initially arrested in 2014, six years after fleeing Australia, where she now faces 74 charges of child sex abuse.
Defense attorney Nick Kaufman argued that the three sisters accusing his client were around or even over the consenting age of 18 when the alleged abuse took place.
Dismissing the alleged power-dynamic between the then teenage students and their former principal at the Adass Israel ultra-Orthodox all-girls high school, Kaufman asserted that Dassi Erlich, Nicole Meyer and Elie Sapper continued meeting Leifer privately and that two of them never tried to resist the alleged abuse.
State prosecutor Matan Akiva flatly rejected the claims, saying the alleged victims were in no place to say “no” to Leifer and that their principal had total control over them. Moreover, he argued that the nature of the their ultra-Orthodox community in Melbourne left the girls without the tools to be able to cope with such abuse.
The hearing at times turned graphic, with the prosecution reading out the police statements filed by the sisters in 2011 detailing the alleged abuse and the defense questioning whether the various sexual acts carried out by Leifer on her former students counted as rape.
Citing her heavy case load, Judge Chana Miriam Lomp said she would not be able to hand down a ruling on extradition until September 21.
In the meantime, the Supreme Court will convene on July 29 to hear the defense’s appeal against Lomp’s May ruling, finding Leifer mentally fit to face extradition.
If the court approves Leifer’s extradition, Justice Minister Avi Nissenkorn will have to sign off on the order. However, both the court decision and Nissenkorn’s stamp of approval can be appealed to the Supreme Court as well.
At the start of Monday’s hearing, Akiva took issue with the court allowing Leifer not to appear in person, but rather over Skype. “This is a woman who is pretending to be mentally ill,” he asserted, pointing at the screen as Leifer slouched down in her chair, resting her head in her elbow. During a break that took place mid-way through the session, Leifer told the prison guards in the room with her that she had a headache and wanted to be taken back to her cell. They appeared to have complied as the defendant was not seen for the rest of the hearing.
The first to formally address the court was Kaufman, who requested and was granted approval to submit a new legal opinion filed by prominent Australian prosecutor Chris Boyce, which claimed Australia’s extradition request had been invalid.
The complaints submitted by the alleged victims should not be admissible because they have yet to be validated, Kaufman argued, saying they were only submitted to police and not an official registrar. The prosecution would later dispute this claim, saying the police complaints filed against Leifer in 2011 were signed in front of an Australian judge. The defense also argued that Leifer was never given an opportunity to respond to the allegations. The Adass school board purchased a plane ticked for then headmistress on the evening before allegations were slated to come to light and Leifer was whisked out of the country with her family within hours, forgoing the opportunity to confront her accusers.
Kaufman argued that while Israeli court is not trying Leifer over the child sex abuse allegations, evidence of those accusations must be verified before Israel sends her back to Australia. He claimed the evidence in Australia against Leifer would not hold in an Israeli court.
He then went on to argue that two of the three sisters accusing Leifer had effectively consented to the alleged abuse, pointing out that the third sibling told police that she had resisted and told Leifer “no,” while the other two did not do the same, even though they could have.
Kaufman quoted an except from the police complaint of one of the alleged victims who said, “I couldn’t say no to her. That just wasn’t an option because of her position in the community. I was too scared to say no… I was scared of upsetting her.”
“In other words [the alleged victim] didn’t oppose the actions of Leifer because she was afraid of her. But what is the source of this fear? A subjective feeling, not because of a threat or an order or an exploitation,” Kaufman said.
The prosecution responded, saying that “consent is not a sufficient defense” according to Australian law when the attacker is a figure of authority.
“We believe the complainants. Kaufman does not. His position is not important here, and neither is ours. But to question the credibility of three complainants who God knows have no interest in going public with what happened to them? Really?” Akiva asked.
The prosecution went on to cite testimony from one of accusing sisters who recalled Leifer threatening to bad mouth them in the community if they told anyone about the abuse.
Kaufman later corrected Akiva, saying the alleged victim told police that Leifer had “implied” the threat, but did not voice it specifically.
“Leifer asked one of the complainants to call her ‘mother’. This is the relationship she created with the girls on the basis of which they allegedly gave her ‘consent,’” Akiva said, before quoting the police testimony of one of the victims who said, “I never consented to the sexual acts Leifer carried out on me.”
The state prosecutor added that Leifer was aware of the alleged victim’s difficult home life and “took advantage of them, telling them it would be best for them to stay with her [where she’d sexually abuse them] rather than going home to parents who would beat them.”
“One of sisters suffered from PTSD and had breastfeeding problems [as result of abuse]. Another one tried to commit suicide,” Akiva said. “Clearly they ‘consented’ because they were afraid of her. Leifer saw in them three paralyzed girls who she’d sometimes abuse when they were together in the same room.”
For his part, Kaufman argued that when Israel signed an extradition treaty with Australia in 1976, neither country considered the sexual acts allegedly carried out by Leifer on her former students to be rape, rather only sexual assault.
Both countries have since altered their legal definitions of rape to include the offenses committed by Leifer, but the extradition treaty has not been updated to reflect that change. While rape is considered an extraditable offense, sexual assault alone is not, Kaufman argued, saying his client should not be sent back to Australia.
The defense dismissed the claim offhand, saying the extradition treaty was written with such flexibility that it can be adapted based on updated definitions of crimes in Israel and Australia.
As for Kaufman’s claims regarding Leifer’s close ties to the Jewish state, Akiva argued that “Leifer got up and left Australia quickly, in a matter of hours. Not out of a special emotional connection to Israel.”
The defense also said that Leifer should not be extradited because she won’t be able to adhere to her Haredi lifestyle in the Australian prison system.
Kaufman quoted testimony from an ultra-Orthodox woman named Rita Goldberg who served time in an Australian prison 20 years ago and claimed she was unable to live a Haredi lifestyle there and that the experience would be “humiliating and “traumatic” for Leifer.
Appearing to surprise the defense, Akiva presented the court with a document from the Australian Prison Service in which the latter vows to respect Leifer’s religious lifestyle. Kaufman, however, dismissed the pledge, saying it only covered assurances to offer Kosher food. The state prosecutor dismissed, but said that regardless, the defense argument is not justification for ignoring Australia’s extradition request.
The defense then went on to claim that the media in both Israel and Australia have “turned Malka Leifer into a monster.” Kaufman asserted that his client should not be extradited, as there would be no way she’d receive a fair trial in Australia.
He also accused Israeli and Australian ministers and politicians of “interfering in the case.” On Sunday, the Supreme Court rejected his appeal to subpoena the minutes from meetings held by Leifer’s alleged victims and Australian lawmakers with Israeli politicians.
“Even Netflix plans on making a show about Malka Leifer,” the defense attorney lamented, claiming that Australians had read about the Jerusalem District Court’s May ruling finding his client to be feigning mental illness and that she would not receive a fair trial as a result. Leifer will likely undergo similar proceedings to determine her mental fitness in an Australian court if she is extradited.
Kaufman spoke for over twice as long as Akiva during the hearing, but the state prosecutor was unmoved by the difference, telling The Times of Israel afterward that whoever has to speak as long as the defense attorney did “has no case.”
Speaking to reporters over Skype following the session, Erlich and Meyer express their dismay over the defense’s calling into question whether they had consented to the alleged abuse by Malka Leifer.
“This was an incredibly traumatizing day for us. We did not expect the issue of consent in sexual abuse to still be an issue in the year 2020,” Erlich said.
Meyer said it was particularly difficult not being in the courtroom as the defense questioned their story. However, she says that the fact that the hearing finally took place, nine years after they she and her two sisters filed police complaints, “it gives us hope that she’ll be sent back.”
Avital Ribner-Oron from the prosecution called Monday’s session a “significant milestone.”
Speaking to reporters, she condemned “numerous attempts made by defense counsel to have hearings postponed” and expressed satisfaction that the court set a date in which a decision will be handed down.
“We’re confident that the extradition was filed based on law, based on Israel’s treaty with Australia and based on facts. We’re look forward to a swift conclusion,” Ribner-Oron said.
Kaufman said after the hearing that he does not intend to cause suffering to the alleged victims by attempting to poke holes in their story.
However, he said his client is “entitled to the presumption of innocence” and that the requirements for extradition were not met by Israel.
“I’m not saying that [the alleged victims] agreed to the [sexual] acts [performed on them]. However, the onus is on the prosecution to prove that there was lack of consent and that there was awareness by the defendant that there was a lack of consent,” he said.
Listening to the comments outside the courthouse, sex abuse victims advocate Manny Waks said he was “disgusted” by Kaufman’s remarks.
“Here we have someone claiming to be experienced in prosecuting sexual offenses trying to poke holes in what the victims claim, that the fact that they continued seeing Leifer proves that they had consented to the abuse. You can’t claim to be a prosecutor experienced with these cases and then ignore the reality that victims frequently return to their abusers,” said Waks, the chairman of the Kol V’Oz victims rights group.
Leifer left Israel to take a job at Adass in 2000 before fleeing Australia eight years later. She was arrested in Israel in 2014 after Australia filed for extradition, but a Jerusalem court suspended the proceedings in 2016, deeming her mentally unfit to stand trial. She was rearrested in 2018 after being filmed appearing to lead a fully functional life.
Leifer was allegedly aided by former health minister Yaakov Litzman, who police last year recommended be indicted for pressuring psychiatrists in his office to change the medical opinions submitted to the court to deem her unfit for trial.