There is no dispute that the claim regarding masturbation was first explicitly raised in the statement of claim submitted to the District Court. It was not mentioned at all in the application for compensation under Article 80 of the Penal Law, and was not even raised by the respondent in real time (as opposed to, for example, allegations of violence, as cited above). My colleague, Justice Amit, is of the opinion that for this reason there is no reason to accept the only testimony of the respondent. However, my opinion is that limited weight should be attributed to the delay, given the nature of the accusation. Life experience, as well as judicial experience, shows that sex-related abuse carries a special baggage of shame and fear. Therefore, victims of sexual offenses often tend to delay reporting the harm they have suffered (see, for example: Criminal Appeal 6346/11 State of Israel v. Shmueli 7.2.2012). Admittedly, we are dealing with a suspect, a defendant and a prosecutor, and not with a complainant. However, the respondent is still the victim, according to his version. Demanding the act of masturbation falls into this category of sex-related injuries. The possibility that a person who is required to masturbate in front of police interrogators will be burdened with shame and humiliation, to a degree that will prevent him from immediately crying out against the injustice done to him and publicly suing for his insult. For this reason, I am of the opinion that the claim of delay has little weight in this case, or at least does not meet its full strength.
The respondent, being a plaintiff, raised a version on the subject that stands out among his other arguments. The relevant police officer was questioned on the matter, while the plaintiff was not questioned about it at all. This situation raises a difficulty in the adversarial method. It may be asked, what else could the plaintiff have done? Admittedly, it is not necessary in each such case to accept the plaintiff's version. But to this must be added the court's negative impression of the policeman's testimony. At the same time, it is necessary to examine the respondent's argument. A difficulty arose in this matter, and there is no choice but to take into account a certain gap in the respondent's version. As stated, the District Court ruled that the police forced the respondent to masturbate in front of their eyes. This is indeed stated in a number of places in the statement of claim (see, for example, paragraphs 19, 32 and 208) and in the summaries of the claim (section 19). This means that the respondent did in fact masturbate. On the other hand, elsewhere in the affidavit of the main witness (paragraph 34) he writes that "the police investigators... They forced me to masturbate in front of their eyes, Something I refused to do" (emphasis added). In the statement of claim, the respondent also claims that the police "tried to force [me] to masturbate in front of them," and later he quotes from the expert opinion on his behalf in which it is stated that the respondent "refused to please the interrogators, and did not agree to masturbate in front of them at their demand" (section 157). The nature of that attempt to force the respondent to masturbate was not fully clarified. However, what all the respondent's versions have in common is that he was subjected to humiliating pressure to masturbate in front of the interrogators. This is serious in itself, even if the respondent refused to carry out the action. The head of the investigation team at the time, Yitzhak Stern, testified to this. During one of the interrogations, it turns out that the police stopped the recording. The head of the team was asked: "Q. At this stage when you stopped the recording and until you resumed it, did you ask [the respondent] to masturbate? A. No. Q. How do you remember that you didn't? A. I will not ask for such a thing from my lifelong interrogee" (p. 175 of the transcript). If so, even according to the respondent's lenient version (from the police's point of view), the police demanded that he masturbate and tried to force him to do so, but he refused, and in the end did not masturbate. This is, of course, a serious, humiliating and shameful act, which also has a part to play in the experience of detention. I will discuss the causal connection between these actions and the damage in the next section.