Don’t you dare, not even in “the heat of the moment”
I recently received a call from a man who began by telling me about his wife, the problems between them and the divorce process he wants to start. There is one child and no property to be divided. They are religious, thus he prefers the rabbinical court and not the “regular” legal system.
“Great” I say, “I can assist no problem”.
Well, the guy says there is one small detail: “Yesterday we had a fight and she [the wife] attacked me.”
“So?” I asked.
“The problem is that I hit her back”, he responded.
Bad news!
At this point he needs me to handle two cases, not one. The divorce will not be a problem and with some mutual understanding we can reach an agreement in a few hours of work. The second will be much more difficult; if the wife seeks advice from a lawyer he will personally bring her to the nearest police station to file a complaint. Our “buddy” will be in jail for few days and indicted for a very serious crime.
The process will take time and the price the husband (the attacker) will pay will certainly be very high, including: steep legal fees, a criminal accusation for many years to come, a horrible time in the court room, probation at least, and much more.
Let us assume the wife hit him first. If it wasn’t pure “self defense” the attacker will have no excuse and don’t think you can claim you didn’t know the law or “it was in the heat of the moment” because it is well known that Ignorantia legis non excusat: “Ignorance of the law is no excuse.” Not knowing that one`s actions are forbidden by the law is not a defense.
In this case it is not possible to ask for “justice because she hit you first” because you didn’t have to respond and hit her back and don’t even think of “protection from – of justice” claiming “come on…everyone does it once in a while” (I’ve heard this one in court too).
So what should you do? First: “anger management”; second: listen to your lawyer. It may sound “politically incorrect” but your lawyer may ask you to “tell the story a little differently, from a different angle” and still it could be “kosher”. Remember, you don’t know the system and you are not a lawyer; therefore it would be wise to follow his instructions. What sounds to you as a crime could be interpreted another way (maybe not in this specific case) and like it or not this is what a good lawyer does.
Because in this specific case the guy told me he is “religious” and would never “lie”, I was wondering where such a person found rabbinical permission to raise his hand against a fellow Jew, specially his “half” (the wife is the man’s half)? I’ve looked all over for just one Rabbi and found none.
Are you looking for Justice? Not here please
If justice is what you’re looking for please look up into the sky because justice in our legal system “is only a star” (Jupiter is called TSEDEK in Hebrew and TSEDEK as you know means justice). You won’t find any in our court rooms though.
The Israeli legal system has created something called: “Protection from justice or Protection of the justice” (Hagana Min Hatsedek) which is a claim that gives the court discretion to delay proceedings, or when they cannot give the defendant a fair trial and / or because the management of the trial may be lacking a sense of justice and fairness, as the court sees it.
What does this really mean? As an example, we can say that if every other citizen in this country parks illegally but the police never ever gives them a ticket but when YOU parked illegally you got a ticket, you can ask in court for this type of protection. Protection from justice is most used in criminal cases though.
The court room is a place where the law is to be upheld but not necessarily will it be “just”. The courts exist to maintain the law and not to make new laws or to give the judge the power to change or interpret the law as he (the judge) thinks is better.
Dura lex, sed lex : “The law is harsh, but it is the law”. It follows from the principle of the rule of law that even draconian laws must be followed and enforced; if one disagrees with the result, one must seek to change the law and court rooms should not be used to change the law, but the parliament.
