If so, in essence, it is necessary to examine whether The severity of the acts (exposure to a particularly serious act of violence, or exposure to a series of events of a lesser degree of severity but which is done frequently) or The intensity of exposure to violent incidents (actual exposure, so that the minor actually becomes part of the occurrence itself) - indicates that the elements of the offense of abuse exist.
- The application of these two tests to the circumstances of our case leads to the conclusion that the appellant should be acquitted of the offense of abuse. As to the test of the severity of the acts – as stated above, in my view the appellant should be acquitted of many assault offenses for which she was convicted in the trial court's ruling, and with regard to the main acts of assault in which her conviction stands, it was clarified that they are at a low level of severity. Therefore, the test of the severity of the acts does not justify viewing the exposure of the kindergarten children to these acts of assault as abuse (see, similarly, the Binyamin case, at paragraph 45 of the judgment of my colleague, Justice Kabub). It should be noted that some of the assaults in which the appellant was convicted are indeed serious – for example, the case in which the appellant slapped one of the kindergarten children hard – but this is a relatively small percentage of the total acts, and they cannot be sufficed to determine that this test is met. Even the test of the intensity of the exposure does not support the appellant's conviction of the offense of abuse, since the exposure of the kindergarten children to the acts of assault, as it emerges from watching the videos, was not at such a level that they became part of the occurrence itself; as opposed to their very presence close to the occurrence, which is not sufficient. In addition, the attacks were short (usually lasting a few seconds); Some are not done in front of other children; In general, it appears that the kindergarten children were busy with their own affairs, and did not pay attention (or even notice) to the appellant's actions. Accordingly, it does not appear that the acts had an effect on the children, let alone a real effect as required by this test (see, similarly, in the Binyamin case, at paragraph 13 of the opinion of Justice Kanfi-Steinitz). In view of this, my conclusion is that the appellant should be acquitted of the conviction on Charge 16.
Summary of the appeal against the verdict
- To summarize the discussion with respect to the judgment, I am of the opinion that the appeal should be accepted in part, and that the appellant should be acquitted of one offense of assaulting a minor; from 18 offenses of simple assault; from one offense of leaving a child unsupervised; and two counts of abuse. In addition, two offenses of assaulting a minor should be replaced with offenses of mere assault.