The case law indicates that this is a broad offense that includes a variety of behaviors, according to the bad imagination. Sometimes it is a single act, which includes a prominent element of humiliation, humiliation or oppression. Other times, when these elements are not dominant, it is an extraordinary manifestation of cruelty. In another group of cases, when these elements are not prominent, these are acts that continue over a long period of time and are done systematically. Unfortunately, many of the cases incorporate such cases (ibid., at paragraph 8 and the references there; see also: Criminal Appeal 3682/12 Anonymous v. State of Israel, paragraphs 28-29 [Nevo] (January 28, 2014)).
As follows, the offense of abuse can exist in relation to a single act – which includes a prominent element of humiliation, humiliation, or oppression, or when it comes to exceptional cruelty; But it can also be crystallized in the face of actions that are carried out systematically and over a long period of time, in which the aforementioned elements are not prominent.
- In our case, the appellant was convicted of two offenses of abuse: in Charge 15, it was determined in relation to leaving a child in wet clothes urinating for a few minutes that it was mental and physical abuse. As noted, in view of the short period of time that the child remained in his wet clothes, the state argued in the appeal that this was not abuse but rather an offense of neglect. In Charge 16, it was determined that exposing the kindergarten children to the appellant's acts of assault, even if they were not committed against them but only in their presence, constitutes emotional abuse. For the reasons that will be detailed below, in my view, the appellant should be acquitted of her conviction for these two offenses.
- With regard to Charge 15, the State argues that from the moment the trial court ruled that the child remained in his wet clothes for a few minutes, the severity of the act decreased, and therefore the appellant should be convicted, instead, of the offense of neglect. This offense is set forth in section 362(c) of the Penal Law, which states, "Anyone who is obligated by law or agreement to take care of the needs of the life of a minor or of a person who is unable to take care of his life's needs, who is under his care, except for a parent, who does not provide food, clothing, lodging and other essential necessities of life to the extent necessary to maintain his safety and health, shall be sentenced to three years' imprisonment." I do not believe that the elements of this offense exist in this case. As it appears from the wording of the section, the offense of neglect deals with cases in which the minor was not provided with "food, clothing, lodging needs, and essential necessities of life to the extent necessary to maintain his safety and health." The requirement to provide an essential need for life was interpreted in the case law as "an infringement of the core of the victim's existence" (the Margolin case, at paragraph 35 of Justice Hendel's judgment; emphasis added), while the requirement in this context depends on the circumstances of the case – since it is not possible to compare the life needs of a young child with that of a adolescent boy (Criminal Appeal 8488/07 State of Israel v. Shifrin, para. 8 [Nevo] (November 17, 2008)). If so, the purpose of the offense of neglect is to prevent the person responsible "from shirking his duties towards the minor or the superintendent, in a manner that will causesignificant and fundamental harm to them" (Margolin, at paragraph 35 of the judgment of Justice Hendel; emphasis added). Therefore, it is necessary to strike at the high standard of the victim's vital life needs – at the core of his existence. Given this strict interpretation; Considering the short period of time during which the child remained in his wet clothes; And since this is not a method of education used by the appellant, I see no reason to convict the appellant of this offense. These statements are all the more valid given that the child was in rehab at the time, and on the same day he wet his clothes twice more (before the case in question 15), and the kindergarten staff changed his clothes without leaving him wet in them.
Even now, I saw fit to reiterate: it would have been better if the kindergarten staff had changed the child's clothes sooner, as they had done on the previous two occasions that day; And it is certainly not appropriate to leave a small child in wet clothes from urine or to instruct the assistants not to change his clothes. Such conduct is improper and justifies condemnation – but it does not establish liability for a criminal offense in the circumstances of the case.
- With regard to Charge 16, as will be recalled, in this charge the Appellant was convicted of the offense of abuse (emotional abuse) on the basis of her conviction for the multiple offenses of assault, since these were committed in the presence of the other kindergarten children – even though they were not directed at them – and while the Appellant was aware of their presence and exposure to her actions. In my opinion, as stated, the appellant should be acquitted of this charge as well.
- The possibility of convicting of the offense of abuse in the circumstances described (exposure to acts of violence directed at others in their immediate environment) was recognized in Criminal Appeal 1779/22 Moshe v. State of Israel [Nevo] (June 18, 2023) (in the same incident, the appellant tried to murder his wife in their home, and all this in front of their toddler son, who was with his mother, cried, and at one point was covered in blood; and while the mother implored the appellant to stop his actions and remove the toddler). Since this is not a "regular" conviction for the offense of abuse, since the acts were not directed directly at the minors, it has already been clarified in the case law that the court must exercise extreme caution before convicting the defendant of the offense of abuse in the aforementioned circumstances. Thus, in the Binyamin case, two main tests were presented that can assist the court in examining whether the offense of abuse has indeed been formulated in cases such as the one before us:
One is the severity of the acts to which the minor was exposed, according to their quality and quantity. In this context, when we are dealing with exposure to an inherently severe and extreme act of violence, as in the case of Moshe, one incident may suffice; however, even acts of violence of less severity may consolidate the level of severity required if they are carried out frequently to the point of creating an atmosphere of threat, oppression, humiliation, or terror, to which the minor is exposed over time. The second test is the intensity of exposure to violent incidents. In this regard, it is not sufficient to suffice with the presence of the minor nearby, in one event or another, but it is required to show that the minor was exposed to the acts of violence in a real way, such as the toddler in the Moshe case, to the point that the observing minor became part of the occurrence itself – and it can be said that the act of abuse was committed "on him". The combination of the two aforementioned demands, against the background of the power disparity between the therapist and the victim, therefore fulfills the characteristics of the offense of abuse as one that includes cruelty, oppression or humiliation, as well as the potential to cause suffering or damage to the victim of the offense (ibid., in paragraph 12 of the opinion of Justice Kanfi-Steinitz).