A 12-year-long battle by activists for men’s rights and family values was capped with success Wednesday, when the Justice Ministry published a revised version of its infamous Prosecution Instruction 2.5, which effectively gave women a free pass to file false charges of violence and sexual abuse against men.
The instruction was initially formulated by then-State Attorney Dorit Beinisch, and was modified by her successor, Edna Arbel, in the early 2000s. Its somewhat elaborate title is: “Policy regarding launching investigation and filing charges on suspicion of giving false or contradictory statements or testimony during an investigation or trial, and for refusal to testify.”
The problematic nature of the instruction was exposed in a journalistic article in 2004 which gained widespread attention and, over the years, the Israeli juristic world has come to see it as allowing women’s perjury against men to go unpunished.
In its previous form, the instruction lumped together allegations of violence and sexual assaults, and complainants or witnesses who are minors, with those who are adults. It stated that while the law stipulates that purposely giving false testimony is a serious crime, in cases like these, when complainants recant or contradict their own testimony, they must not be put on trial. It conflated cases in which false charges were made maliciously, and cases in which a witness recanted true statements due to external pressure.
Activists and numerous jurists demanded that the instruction be annulled. In the end, it was not annulled, but it has undergone a thorough change.
In its new form, the instruction specifically uses the Hebrew word “’alilah” – which refers to false charges made purposely in order to harm an innocent person – for the first time, thus recognizing the existence of the phenomenon. In items 8 to 10, it states: “We must differentiate between an ‘alilah (false charges made purposely in order to harm an innocent person), and giving false or contradictory statements that do not amount to an ‘alilah.
“As a rule, if there is suspicion that a person has purposely made false charges in order to harm another, in the context of a criminal offense, the prosecutor will transfer the matter to police investigation.” If, however, the intent is to mislead but not in the context of a criminal offense, the tendency will still be to launch an investigation, subject to the following conditions:
- The witness lied knowingly.
- The lie was material and had potential to influence the process
- The lie was exposed “due to an external element” and not when the witness recanted willingly due to remorse
Item 11 in the new formulation states: “to the extent that the statement caused or could have caused serious damage to the suspect, to the defendant or another person, or to public interests, the tendency to launch an investigation shall increase. For instance, if a false complaint caused the suspect to be arrested, to be distanced from his children, or to have any other meaningful limitation placed upon him, which turned out to be unjustified in hindsight, the tendency to launch an investigation shall increase.”
This last clause is especially meaningful for men in divorce battles, who are arrested and distanced from their homes and children as a matter of course through the tactical use of false accusations.
Some men’s activists took to calling the instruction, in its previous form, the Wife of Potiphar Clause, after the famous Biblical Egyptian noblewoman who caused Joseph the Righteous to go to jail by falsely accusing him of attempted rape.
Israel has been rocked for many years by scandals involving women's accusations against men in positions of power. It remains to be seen what effect, if any, the new instruction will have on this dynamic.