Malka Leifer’s abuse of pupils may not be a crime in Israel, court told

Malka Leifer’s alleged sexual abuse of pupils may not necessarily be a crime in Israel and two of the complainants may have consented, an extradition hearing in Jerusalem has been told.

Malka Leifer arrives at court in Jerusalem in February 2018. Picture: AFP

Former school principal Malka Leifer’s alleged sexual abuse of pupils may not necessarily be a crime in Israel and two of the complainants may have consented, an extradition hearing in Jerusalem has been told.

Ms Leifer is facing 74 charges of abusing pupils at the Adass Israel Ultra-orthodox Jewish girls school in Melbourne in the early 2000s. She fled to Israel when first confronted with the allegations in 2008.

Victoria police pressed charges against Ms Leifer in the cases of three sisters, Nicole Meyer, Dassi Erlich and Elly Sapper including grooming sexual abuse and rape. They allege the abuse continued over a number of years when they were pupils at the school.

On the first of the extradition hearing in the Jerusalem District Court on Monday night (AEST), Ms Leifer appeared via video linkup from the women’s prison where she has been held for the past two years. She wore a headscarf and a mask and sat with her head down. The defence objected to photos being taken of the screen, but Judge Miriam Lomp overruled them.

The defence put its case first on Monday, arguing that the fact that Leifer will face a committal procedure in Australia means she is not being extradited to face certain charges. “This is an interim step and not a final hearing and thus not suitable for extradition,” argued Nick Kaufman, a British-born lawyer with a background in international law and war crimes extraditions, who recently joined Leifer’s defence team.

He also argued that what he called “double criminality” was a problem, where offences that were criminal in Australia were not necessarily criminal in Israel.

“Here in Israel, for example, we have to prove exploitation of a relationship of authority, such as that between teacher and pupil, to sustain a case of sexual abuse, and that may not the case in Australia,” Mr Kaufman said in court.

He raised the issue of consent, saying: “In the case of two of the Australian complainants, it may be that they consented to the ­alleged acts.

“The complainants said the acts made them feel dirty, they understood they were immodest acts, but they didn’t object. I feel certain that if this case were being heard in Israel, many of the charges would be struck out.”

The defence submitted an opinion from Australian barrister Chris Boyce QC, who was a prosecutor in the trial of Cardinal George Pell, raising the issue of consent. “It is possible that acts of sexual abuse that are consented to are not equal in a conceptual basis in Australia and Israel,” Mr Boyce wrote.

Ms Leifer’s defence also argued that digital penetration was not considered rape in Israel and therefore not an extraditable offence under the extradition treaty Australia and Israel have signed.

During this part of the hearing, Ms Leifer sank lower in her chair until at times she was doubled over. Her family members present in court, including one of her sons and a brother and sister, walked out and a break was declared.

Mr Kaufman later raised two main objections to extradition. First, the problem that Ms Leifer is an Ultra-Orthodox woman who, if extradited, will not be able to live according to her strict religious code in an Australian prison.

“The conditions in an Australian prison for a religious woman with psychiatric problems would be dangerous to the point of being life threatening,” he said.

His second claim was that Ms Leifer would not be able to receive a fair trial due to the publicity the case has received, in Israel as well as in Australia.

“This case is in the media, in newspapers and on TV, every day. They’ve turned Leifer into a monster in the coverage,” he said. “Even people wanted for the killings of a thousand people in Bosnia didn’t receive media coverage like this.”

Israeli prosecutor Akiva Matan, presenting the case on behalf of the government of Australia, said in reply that the power differential made any talk of consent meaningless. Quoting from the charges, he described the way in which the complainants alleged Ms Leifer selected and “groomed” them.

“It is cynical of the defence to run this argument. Plus it is irrelevant to an extradition hearing. They can run that defence, if they choose to, once the case gets to trial, but is not relevant to the issues before the court now.”

The prosecutor also submitted an Australian government statement confirming that the prison system would accommodate Ms Leifer’s religious requirements.

Since Ms Leifer was found fit to stand trial in May, after years of hearings in the Jerusalem District Court, her legal team have lodged two appeals to Israel’s highest court, the Supreme Court. The Supreme Court this week denied Ms Leifer’s appeal for the Israeli prosecutor to produce evidence of meetings between the complainants and also Australian lawyer Jeremy Liebler with Israeli politicians, including Prime Minister Benjamin Netanyahu.

The Supreme Court has set a date for an appeal against the decision finding Ms Leifer mentally fit to stand trial.

Judge Lomp, who is presiding over this extradition hearing, found that Ms Leifer been faking her condition. Judge Lomp said then that even though Ms Leifer might have some underlying mental illness, she was still fit to stand trial, as she could understand the charges against her and the proceedings in court.

The court will hand down its judgment on September 21.