Accordingly, the court must examine in each case the nature and intensity of the force used against the minor, as well as the circumstances in which the force was used against him. This is while giving significant weight to the fact that we are dealing with toddlers and young children, whose care must be done with the care and gentleness appropriate for them.
It should be emphasized in this context that there may also be cases in which it is not clear what the purpose of the use of force was – whether it was intended for a functional purpose, which justifies it in the circumstances of the case; Or is it a discharge of anger and tension that has accumulated in the kindergarten teacher? In these cases, as well as in cases where the actual use of force, or its intensity (whether it is a low or unusual intensity), it is clear that the kindergarten teacher should be acquitted because of the doubt.
- The second offense of assault for which the appellant was convicted is assault on a minor, which is defined in section 368B(a) of the Penal Law as follows: "The assailant is a minor or helpless and causes him real injury, his sentence is five years' imprisonment; if the assailant is responsible for the minor or the helpless person, his sentence is seven years' imprisonment." Thus, the main difference between the two offenses of assault lies in the element of causing "actual injury", which appears only in the offense of assaulting a minor. This component has been interpreted extensively in case law, which is based on the definition of "sabotage" in the Penal Law – "physical pain, illness or impairment, whether permanent or fetal" – while clarifying that "injury that has a tangible expression" must be proven (Criminal Appeal 1976/11 Weisfish v. State of Israel, para. 6 [Nevo] (November 21, 2011). See also: Criminal Appeal 2192/23 Anonymous v. State of Israel, para. 22 [Nevo] (June 27, 2024)). However, the component may exist "even without permanent signs or defects" on the victim of violence (Criminal Appeal 901/23 Binyamin v. State of Israel, paragraph 33 of the judgment of my colleague, Judge Khaled Kabub [Nevo] (July 6, 2025) (hereinafter: the Binyamin case)). It was also clarified in the case law that it can be concluded that "real injury" was caused on the basis of life experience and common sense (ibid.). In doing so, consideration must be given to the children's reactions to the appellant's actions – for example, if the child burst into tears following the touch; and the degree of violence used in that case. Still, not every time a child bursts into tears, it indicates that a real injury has been caused. Similarly, not every case in which force is used against a child must be concluded that the use of force amounts to assault of a minor. It is not for nothing that the legislature has created a distinction between simple assault and assault of a minor, and this distinction must be maintained; and accordingly to the cases that fall under the offense of assaulting a minor, cases in which the minor has indeed suffered "real injury" (even taking into account the interpretation given to this component in case law).
- As stated, the appellant was convicted of 32 offenses of simple assault and 5 offenses of assault of a minor. In view of the large number of charges (including the events included in them) that are on the agenda, and given the need to make a concrete decision in relation to each of them, it is incumbent upon us to examine them individually. We will now turn to this examination.
- First, we will detail those cases in which the appellant does not appeal her conviction, and therefore her conviction stands:
- Charge No. 2 – The appellant was convicted of two offenses of mere assault. The trial court ruled that the appellant forced A.L. to lie down on a mattress by pulling on his ear, and then forcibly pressed A.T. to the mattress, who was seen crying during the acts. These wrongful acts, whose criminality is indisputable, demonstrate that even when the use of force is done for a functional purpose (laying a child at rest), the manner in which they are carried out may clearly deviate from the permissible scope of treatment, and justify the conclusion that it constitutes an assault.
- Charge No. 7, Incident 2 - The appellant was convicted of one offense of assaulting a minor. In this case, it was determined that the appellant slapped a toddler the cheek, and he immediately burst into tears and covered his face with his hand. This grave incident – probably the most serious of those attributed to the appellant – in which at best it is an act to convey an "educational message", demonstrates the use of force that not only has no functional justification, but clearly crosses the line between the "inappropriate" and the "criminal".
- Charge No. 9 Events 2-3 - The appellant was convicted of two offenses of simple assault. The trial court ruled that the appellant noticed two babies standing in the chicken coop, and laid them down while violently slamming them on the mattress. Even now, as in Charge No. 2 discussed above, and in the other incidents in which the Appellant did not deny the scope of Charge 9 that will be mentioned below, the purpose of the use of force is functional (laying children at rest), but the manner in which it is applied clearly exceeds the permissible limit.
- Charge No. 9 Events 4-5 - The appellant was convicted of one offense of mere assault. According to the judgment, the appellant violently pushed A.L., who was standing in the coop, and later turned her aggressively on her stomach.
- Charge No. 9, Incident 7 - In this incident, the appellant was convicted of the offense of mere assault. According to what emerges from the judgment, the appellant hit the buttocks of a baby whose identity is unknown while he was in the chicken coop.
- Charge No. 9 Events 9-10 - The appellant was convicted of two offenses of simple assault. It was determined that the appellant approached R.Z., who was standing in the coop, grabbed him by the head and pushed him towards the mattress; The appellant pushed A.B., who was also standing firmly from his head towards the mattress, and moved him on the mattress while slamming him.
- Charge No. 12, Incident 2 - In this charge, the trial court acquitted the appellant of the offense of assaulting a minor and convicted her of the offense of mere assault. It was held that the appellant pinched a child who was standing next to a safety barrier and pushed him using force; and that given that the child cried even before the appellant touched him, and continued to cry afterwards, there is doubt as to whether the crying was the result of the pain caused to the child. In this case, it does not appear that the use of force had any functional purpose, and in any case the use of force was prohibited, and amounted to an assault.
These events – for which the appellant was convicted of 9 offenses of simple assault and one offense of assault of a minor – reflect prohibited violence that the appellant used against the kindergarten children. In most cases, the use of force was impermissible, because even if it had a functional purpose, it clearly exceeded the scope of permissible treatment (and as such justifies not only criticism, but also criminalization); In two of them, the use of force had no functional purpose at all, and therefore they certainly constituted an assault, and the most serious of them (Charge No. 7, Incident 2) – assault on a minor. The appellant therefore did well not to appeal her conviction for these events.
- And now for the rest of the appellant's convictions for the assault offenses. After watching the videos several times and reviewing the arguments of the parties, I have come to the conclusion that in a significant number of cases there is a significant gap between the acts that are revealed to the eye of the viewer in the videos, and the determinations in the verdict – and this gap justifies, accordingly, the acquittal of the appellant. In those cases, my impression of the videos is very different from that of the trial court, and as stated, with respect to evidence of this kind, there is no real advantage for the trial court over the appellate court. As we shall see below, the trial court interpreted and applied the offense of assault too broadly, and this choice led to the appellant's conviction even in cases where her actions reflected conduct for a functional purpose, which was indeed more aggressive than it should be, but did not clearly deviate from the scope of the criminal prohibition (even if there is no dispute that it is not desirable or proper).
- It is important to frame things: the acts of assault attributed to the appellant relate, in essence, to the fact that she behaves aggressively towards the kindergarten children as part of the way she conducts her daily routine in the kindergarten. Any kindergarten teacher who acts in this way may commit an assault, but it is important to distinguish between her and a kindergarten teacher who acts out of a desire to harm children. In the Binyamin case , my colleague, Justice Kabub, noted the accepted distinction between these kindergarten teachers, and noted that:
From the rulings that have accumulated so far, it seems that there are two types, two prototypes, of violent caregivers. The first, and more serious, type is the 'vengeful caregiver'. This is a caregiver who has become angry with the toddlers who are dedicated to her care, and as a result, she consciously decides to hurt them. Such cases, which are unfortunately familiar to us, include the use of deliberate and cruel violence against the toddlers, which sometimes even ends with their injury. In contrast, the second type is the aggressive caregiver. This caregiver tries to do her job, including preventing the toddlers from harming themselves and each other, while maintaining order in the kindergarten. However, the same caregiver treats the toddlers very aggressively in the course of her actions, and uses force that significantly exceeds the bounds of reasonableness in the circumstances of the case. Indeed, criminal law is designed to protect and protect helpless toddlers from both types of caregivers; However, we must not blur the clear line that passes between them.