In our case, as is clearly evident from the videos, the appellant is trying to carry out her work, while acting aggressively. She does not take revenge on the children or, God forbid, seeks to hurt them (at least in the vast majority of cases), but rather tries to run the kindergarten and maintain its orders. Thus, for example, in a significant part of the events in which the appellant treats the kindergarten children without the necessary sensitivity, as if they were "objects" – she picks them up, moves them and sits them down by force. This, in the vast majority of cases, is part of the desire to manage the kindergarten functionally. This, of course, is not the proper or ideal way to treat toddlers and young children, since a kindergarten teacher is expected to act with the sensitivity and gentleness required by the children's vulnerability. But are these also criminal offenses? This is what the appeal revolves around in relation to the assault offenses. As we will see below, in many cases I thought the answer to this was no. To be precise, even with regard to cases in which I was of the opinion that the appellant's actions did indeed constitute a criminal offense – I was under the impression that most of the acts fall within the low threshold of severity of the offense.
It should be emphasized: Even in cases where I am of the opinion that the appellant should be acquitted, this does not constitute light-heartedness in the seriousness of the acts and in the harm caused to the kindergarten children and their families. Nor does the aforesaid conclusions constitute a determination that the appellant's conduct in those events is the standard or proper conduct of a responsible kindergarten teacher. Far from it. The videos are not comfortable to watch, and some are even difficult to watch – let's not forget that. Still, as was clarified above, not all of the appellant's actions cross the criminal threshold. Indeed, there is a gap between the proper conduct required of a female defense teacher and the conduct for which she must be held accountable in criminal cases. The acts of which I have found appropriate to her credit are in this medium – as such they certainly justify criticism and condemnation, since they do not fit the standard of behavior that we demand of a kindergarten teacher in the State of Israel; However, they do not lead to a criminal conviction, since the level of deviation from the norm does not justify it.
- Let us now proceed to discuss the convictions for the assault offenses to which the appeal is referred in their order:
- Charge No. 1 – In this indictment it was determined that the appellant forcibly pulled a minor who was not sitting in her chair, the minor stumbled, and the appellant forcibly and aggressively sat her in the chair, when the use of force exceeded what was required for the purpose of sitting in the chair, and in response the minor cried and suffered real pain. For the aforesaid, the appellant was convicted of one offense of assaulting a minor. Watching the videos shows that the appellant was aggressive towards the minor, even overly aggressive, and it was certainly appropriate to avoid this. However, it cannot be determined, beyond a reasonable doubt, that this action, which was required functionally, clearly exceeded the scope of permissible use of force in the circumstances of the case, in a manner that justifies a criminal conviction. Moreover, I am not sure that as a result of the appellant's actions, the minor cried; And even if they did, this crying ended after a few seconds. As I explained above, this behavior is not characteristic of a "good" or even "reasonable" kindergarten teacher, but it is also not possible to determine in this case that she establishes criminal liability – not even for the mere offense of assault. Therefore, the appeal in relation to this charge must be accepted.
- Charge No. 3 – In this indictment, it was determined that the appellant pinched a toddler sitting on his back to the camera in the front of his face, and his head was raised back in response. For the aforesaid, the appellant was convicted of one offense of mere assault. The appellant maintains that she acted in an instinctive reaction to the fact that the same toddler had bitten another minor, but even if this is true, this does not justify her actions and the aggressiveness she used, and even in my opinion they cross the criminal threshold. Moreover, in the trial court, the appellant claimed that she did indeed pinch the minor, but not in the sense of beating and defending. For this reason, too, I am of the opinion that the appeal in relation to the indictment in question should be dismissed.
- Charge No. 5 Incident 2 - In this indictment it was determined that the appellant aggressively pulled a minor who was standing on a table and playing with balloons, and in the process the minor's leg hit another toddler who fell and appeared to be For the aforesaid, the appellant was convicted of one offense of mere assault. In the meantime, the court ruled that the appellant pulled the girl using only one hand, "and nothing prevented [the appellant] from using both hands and removing her from the table in a more gentle and appropriate manner" (page 24 of the judgment). Indeed, the appellant took the minor off the table aggressively and with one hand – but this was done out of panic and in order to remove her from the table on which she was standing, and thus to prevent the danger that she would be harmed. In these circumstances, the appellant's actions do not constitute assault (in the criminal sense) – even if it would have been better to adopt a more "gentle" approach towards the minor. The appellant should be acquitted of the charge in question.
- Charge No. 6 - This indictment describes three events that took place one after the other. Initially, the trial court ruled that the appellant lifted a child from the floor and dropped him onto a chair, and then pinned him to the cheek, as a result of which he cried. The court described that the appellant's conduct was aggressive, and that it was a violent act towards the helpless child who was lifted up and thrown from the air. For the aforementioned, she was convicted of the offense of assaulting a minor. I am also of the opinion that in this incident the appellant's actions clearly deviate from the permissible treatment of the child, and they should be regarded as an assault. However, unlike the trial court, I do not believe that the element of causing the actual injury has been proven. As you may recall, it is not enough to suffice with every cry, no matter how short and fleeting, in order to prove that the component does indeed exist. In our case, it is not possible to determine from watching the video that the component exists, and it must be assumed in favor of the appellant that the toddler's reaction did not deviate to the point of real pain. Therefore, the appeal should be accepted and the appellant should be convicted of the offense of mere assault (in lieu of her conviction for assaulting a minor). In the other two incidents, it was determined that the appellant grabbed the toddler and dropped him from her hands to the floor; And immediately afterwards, she pushed another toddler aggressively and violently. It was determined that this was a violent assault, and therefore she was convicted of two offenses of mere assault. With regard to these convictions, my impression is different, according to which the appellant should be acquitted. The videos do not show unequivocally that the appellant did indeed drop the child from her hands to the floor, and it appears that she actually tried to sit him down. In addition, the description of the appellant's behavior as if she pushed the toddler is inconsistent with the videos, which show the toddler standing between her legs and moving him. Therefore, the appellant should be acquitted of two offenses of mere assault.
- Charge No. 7 Incident 1 - In relation to this charge, it was determined that against the background of a quarrel between two children who wanted to get on a slide located in the yard of the kindergarten, the appellant pushed one of them, while he was on the stairs to the slide, and as a result he fell to the ground. The court ruled that "this is not a stumble, but rather a direct, clear and deliberate abortion of the child by the [appellant]. This is a violent attack [...]" (p. 31 of the judgment). In respect of the aforesaid, the appellant was convicted of the offense of mere assault. The appeal in relation to this conviction should be dismissed. The video documenting the appellant's actions is clear and unequivocal. The appellant pushes the child rudely; It falls to the floor and the appellant does not pay any attention to it. The manner in which the appellant pushes the minor aside is certainly not, the way in which such cases should be adopted. Indeed, as a general statement, the appellant can be understood when she sees that the strong child bypasses and moves the little girl in line for the slide, she comes to the girl's aid and allows her to enjoy the slide as well. At the same time, the control of the line (which is certainly a functional action of a kindergarten teacher) should not be carried out in a crude and abusive manner. Therefore, in my opinion, the appellant's actions in this incident do indeed cross the criminal threshold, but they fall within the lower threshold of severity.
- Charge No. 8 – In this charge, the trial court ruled that the appellant pushed and pinched a toddler in her left ear, thereby removing her from the nursery room in which she was. In respect of the aforesaid, the appellant was convicted of one offense of mere assault. I am of the opinion that the appellant should be acquitted. What is documented in the videos does not show, beyond any doubt, that the appellant did indeed pinch the minor. It is true that you can see a certain touch on the toddler - a particularly short touch that lasts less than a second - as the toddler continues on her way. It does not appear that the contact changed the course of the toddler, which raises doubt as to what is described in the indictment, and that we are indeed dealing with assault (it should be noted that in Charge 8, the Appellant was also convicted of one offense of leaving a child unsupervised). See more below).
- Charge No. 9 – In the framework of this indictment, the appellant was convicted of 10 offenses of simple assault, and 12 incidents are described in it (it should be noted that the division between the various events in this indictment, as well as the conviction in relation to these incidents, is not sufficiently clear, neither in the verdict and sentence, nor in the reasons of the parties). As stated, the appellant does not appeal most of her convictions on this charge, but only 4 concrete offenses.
00Incident 1 - In relation to this incident, the trial court ruled that the appellant pinched N.S. on his left cheek forcefully. The appellant maintains that she grabbed her cheek for a hundredth of a second, and he did not cry or react to her actions at all. The appeal should be dismissed. The pinch is clearly evident from the videos, and even if it was short, it is unnecessary and offensive - and therefore it does constitute an attack.