This is a fairly broad definition, according to which any use of force against another person in any way, without his consent or consent that was fraudulently submitted, is an assault; where the term "use of force" has also been broadly defined, and it applies to every action."which can cause damage or discomfort״.
- The first offense of assault for which the appellant was convicted is simple assault, which is set forth in section 379 of the Penal Law, which states, "Anyone who unlawfully attacks his friend shall be sentenced to two years' imprisonment." If so, the assault must be unlawful in order for the offense of assault to take place. This Court is often required to interpret the circumstantial "unlawful" component of criminal law, and this is not the place to elaborate on this (see: Criminal Appeals Authority 8736/15 Tzubari Bar v. State of Israel, paragraphs 29-35 [Nevo] (January 17, 2018) (hereinafter: the Tzubari Bar case); Yoram Rabin and Yaniv Vaki Penal Law, 1, 279-283 (3rd ed. 2014)). For our purpose, it is sufficient to clarify that this element is required in the offense of mere assault, so that not every act that constitutes "assault", in accordance with the broad definition mentioned above, will constitute the criminal offense of mere assault. It is therefore required that the assault be carried out "unlawfully", i.e., that there be a aggravating aspect in relation to it (compare: Criminal Appeal 4191/05 Altgauz v. State of Israel, para. 13 [Nevo] (October 25, 2006) (with respect to the interpretation of the term "unlawful assault"); The Tzubari Bar case, at paragraphs 37-42 (with respect to the interpretation of the "unlawful" component in the offense of threats)). It should also be noted that the scholar Kedmi notes that although the element "unlawfully" does not appear in the definition of "assault", the accepted position is that this element is required by implicit in this definition, and therefore it applies in any case to all offenses of assault (Yaakov Kedmi on the Criminal Law – Penal Law, Part III 1516 (updated edition, 5766-2006) (hereinafter: Kedmi)). Accordingly, the act of assault must reflect an infringement of the values that the criminal prohibition seeks to protect, in order for it to be considered an unlawful assault (see and compare: Criminal Appeals Authority 2660/05 Ungerfeld v. State of Israel, paragraphs 43, 45-47 [Nevo] (August 13, 2008) (with respect to the interpretation of the offense of insulting a public servant); Criminal Appeal 6790/18 Tetro v. State of Israel, paragraph 4 of the opinion of Judge Neil Hendel [Nevo] (July 29, 2020) (regarding fraudulent interpretation and breach of trust in cases of conflict of interest); Criminal Appeals Authority 4743/20 Leibel v. State of Israel, paragraph 5 of the opinion of Deputy President (Ret.) Hendel [Nevo] (July 21, 2022) (with respect to the interpretation of the term "other harassment" as an invasion of privacy)).
Against the background of this interpretation of the offense of mere assault, it should be clarified in relation to cases such as the one before us that not every touching of a kindergarten teacher on a child, which involved the use of certain physical force or was done aggressively, amounts to a criminal offense of assault. This is true even in cases where There is no dispute that the act in question is worthy of a certain social condemnation and that it is expected of the Defense Department not to act in this manner. It is therefore required that the child be touched from the professional-moral realm to the normative-punitive realm, i.e., that the criticism of the kindergarten teacher's conduct be not only on the "proper" level (the kindergarten teacher's behavior is inappropriate), but also on the "criminal" level (the kindergarten teacher's conduct constitutes an offense). This is especially so when we are dealing with a kindergarten, where as part of our daily routine there may be a need to touch children, sometimes with a certain use of force: for example, in order to separate children who are fighting; in order to prevent a risk to one of the children (see, for example, what is described in Charge 5, Incident 2, in which the Appellant noticed a minor standing on a table and aggressively removed her from it); and in order to maintain order in the kindergarten, and to enable the routine of activity in it (for example, to sit the children for a meal or to put them to rest). In other words, as part of the day-to-day conduct of the kindergarten, a kindergarten teacher may use a certain power for "functional" needs related to the management of the kindergarten and its ongoing and proper functioning. The use of (light) force advances the goals of the garden and its conduct, and it is often perceived as legitimate, and in fact necessary. In these cases, in order to be convicted of a criminal offense, it is necessary to show that the kindergarten teacher's conduct clearly deviates from the permissible treatment – that is, that the deviation from the norm is extreme and clear, in a manner that justifies not only criticism (it would have been appropriate to act in a more moderate manner), but also criminalization (the use of force constitutes an offense). On the other hand, when it is clear that the use of force against the toddler is not required for a functional purpose, but rather serves to vent anger and frustration on the part of the kindergarten teacher, or that it is intended to convey an "educational" (deterrent) message towards the toddler, there is no place for this, and this will usually amount to the offense of assault. In these cases, it is therefore sufficient for the physical means to be at a relatively low level of severity, compared to the standard of use of force in the framework of functional conduct in the kindergarten, in order for the acts to be classified as assault.