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Incident 6 - It was determined that the appellant pushed A.T. hard from his head and thereby laid him down in the chicken coop. The appellant maintains that this is only a minor touch. I do not believe that this is indeed a minor touch, as the appellant claims, but I also do not believe that the appellant's actions indeed amount to an assault in this incident. This involves laying down a minor in the chicken coop, with some use of force. It should be assumed in favor of the appellant that this is a reasonable use of force that was done as part of the day-to-day conduct in the kindergarten (for the purpose of putting the child to sleep in the playpen); And these acts do not cross the criminal threshold. The appeal in this matter must be accepted.
Incident 8 - It was determined that the appellant forcibly laid A.B. in the coop. In relation to this incident, the appeal must be accepted. I do not determine that the appellant laid A.B. to bed easily and gently, as she claims, but the documentation in the videos does not show unequivocally that the appellant did indeed use force against A.B. while laying him down. As I noted above, in cases where there is doubt as to the appellant's conduct (whether it is not clear whether the use of force was done for functional purposes, or because the use of force itself was not proven, as in this incident), the appellant should be acquitted because of the doubt.
Events 11-12 - In relation to these events, the trial court ruled that the appellant aggressively picked up R.Z. and took him out of the coop; took him to another room; and sat him down in a chair while dropping and slamming him. The appellant maintains that although she held R.Z. in one hand, at the same time she held him securely in the center of her body, and subsequently she placed him in the chair – and did not slap him. The appellant should be acquitted. The videos testify that the appellant is indeed acting aggressively – but her actions do not cross the criminal threshold. Moreover, the videos do not show that the appellant did indeed place R.Z. in the chair while omitting and slamming him. A possible impression is that the toddler was placed normally.
- Charge No. 10 - It was determined that the appellant committed one offense of mere assault, since she hoisted a child while holding only his arm, when this swing was not the way to hold a child and move him from one place to another. Rather, it was determined, this was a violent attack for all intents and purposes. The appellant walked three steps with the child held in the air in his hand, and his entire body weight in his hand. The trial court also noted that in its opinion, these acts are close to abuse of a minor. The appellant argues that although it is appropriate to lift a child with both hands, lifting with one hand is not valid. Indeed, there may be exceptional cases in which lifting with one hand will not constitute assault (see the reference to indictment No. 5, Incident 2), but I accept the conclusion of the trial court that the manner in which the act was carried out in this incident clearly deviates from what is permissible for a functional purpose – thus, because of the way the appellant was hoisted, the distance that the appellant traveled while holding it, and since it is a toddler – as stated, he must be treated gently.
- Charge No. 11 Incident 2 - In this charge the appellant was convicted of the offense of assaulting a minor (it should be noted that the court noted that the appellant was convicted of the offense of abuse of a minor, but it appears that this was a mistake). It was held that the appellant forcibly grabbed the shoulder of a toddler by way of pressure, causing her pain. Thus, "from the very fact that [the appellant] moves the child by this grasp on the shoulder, moving quickly and aggressively, using force, it is clear that this is not a light grip, but rather a grasp of her [...] This is the use of force that amounts to assault" (page 52 of the judgment). Subsequently, the court ruled that the girl appeared to be beginning to cry, and from this it can be learned that the appellant's actions caused her real pain. I, too, am of the opinion that the appellant's conduct amounts to an assault; However, in the circumstances of the case, I do not share the conclusion that this conduct caused the toddler real pain. The reason for this is that there is doubt as to whether the toddler did indeed cry as a result of the acts. In light of this, it is difficult for me to determine that the "substantial sabotage" component required in the offense of assaulting a minor has been proven beyond a reasonable doubt. Therefore, the appellant should be acquitted of the offense of assaulting a minor due to doubt and convicted instead of mere assault.
- Charge No. 11 Incident 3 - The court ruled that the appellant approached the toddler who was sitting in a chair, and aggressively and violently she held his body with one hand and the other hand on the chair, and pushed him with the chair to the table - and in response the child placed his hand on the table in order to stop the momentum. The appellant claimed at the time that she did indeed sit the child sharply, but this was done out of impatience and not out of evil. The court ruled that the element of assault existed, and therefore it convicted the defendant of one offense of mere assault. In my opinion, the appellant should be acquitted. She did move the chair, and she did so aggressively, but she is right that this is not an attack. In order for moving a chair on which a minor sits would constitute a criminal offense, it is not sufficient that he was moved aggressively, as was done in this case.
- Indictment No. 12 Incident 1 - The appellant pushed S.W. from his back, and he fell to the floor so that his head hit the metal leg of a chair that was there. As a result of the fall, the chair moved and hit another child's leg. They both cried in response. Thereafter, the appellant returned to S.W. and lifted him off the floor while pulling him with one hand. It was held that the appellant attacked S.W. violently and harshly, by slamming him to the ground by way of a strong push on his back; and that as a result, the child suffered real pain, expressed in S.W.'s crying, in which he erupted in response to the push and the blow he received. In respect of the aforesaid, the appellant was convicted of the offense of assaulting a minor. My opinion is the same as that of the trial court, and I do not see how it is possible to reach a different conclusion. The appellant maintains that she only touched S.W.'s back as if she wanted to move him, but watching the videos shows otherwise. The appeal should therefore be dismissed.
- Charge No. 14 – In the framework of this indictment, the trial court convicted the appellant of 12 offenses of mere assault, and acquitted her of one offense. The appellant argues with respect to all the incidents described in this indictment that they do not amount to assault, but rather are part of normal conduct in a kindergarten, and another determination will lead to her incrimination merely because she is a kindergarten teacher. Furthermore, it is claimed that these events are spread over a period of three weeks (the relevant period), so this is not a common practice. The appellant is correct that the events described below embody, for the most part, the use of functional force, which takes place as part of the kindergarten's routine. After watching the videos, I remained in doubt as to whether the criminal threshold had been crossed, and therefore I believed that the appeal should be accepted and the relevant convictions should be overturned. Only with regard to two of the incidents (incident 3 and incident 11 (in relation to the third part)), in which the use of force was not necessary for a functional purpose, I was of the opinion that the convictions in this charge should be left in place. I will elaborate.
Event 1 – It was determined that the appellant aggressively and aggressively sat down 4 toddlers, one after the other, and the fourth toddler appeared to be crying. The appellant should be acquitted, since her actions did not clearly deviate from the boundaries of permissible treatment of toddlers; And they do not rise to the level of attack.