There is also great complexity in giving incriminating testimony against a spouse. Feelings of shame, fear, a sense of failure and guilt, as well as the pressure stemming from the significance of giving testimony (separation, dissolution of the family unit, ostracism, financial harm, etc.), along with the hope that the offending behavior will change and change – all of these make it very difficult for the spouse to disclose the matter of the offense. This is of course even more true in traditional societies, where there are sometimes external stressors, such as financial dependence, pressure from family members or authority figures in the community.
[For further and enrichment, see the study by Prof. Rachel Lev-Wiesel and Prof. Zvi Izikovich, "Violence against Children and Adolescents in Israel: Between Prevalence and Reporting," University of Haifa, January 2016].
- The suppression of testimonies of victims of offenses committed between family members is also a well-known phenomenon. The complex relationship between the perpetrator and the victim, as well as the age or power disparities, fear, embarrassment, and a sense of "no way out" – all of these can be the basis for a late appeal to the authorities and exposure of cases of violence within the family. The suppression of testimony in situations of this type usually has a reasonable explanation, which is anchored in the special circumstances of the case. The suppression of the testimony does not always rely on the logic and rational analysis of an adult. In this regard, one must be careful of "wisdom be-di'avad," and the "puzzling" explanation for the suppression of the testimony does not impair the credibility of the version of the victim of the offense. To the extent that there is an explanation for the suppression of the testimony, the court may give the testimony its full evidentiary weight [compare and examine criminal appeal 5874/00 Lazarovsky v. State of Israel, IsrSC 58 (4) 249]. See also Criminal Appeal 6274/98 Anonymous v. State of Israel, IsrSC 55 (2) 293, where it was held that:
Indeed, suppressed testimony can raise doubts and undermine the weight of the testimony. But this is true when there is no plausible explanation for the suppression of the testimony. This is not the case in our case... The suppression of the testimony over the course of three years stemmed from the complainant's list of priorities, which placed the needs of the children above her own needs and above the harms she suffered. ... There is a reason to suppress the testimony because of the complainant's fear of the appellant-husband, as she testified in her testimony in the trial court. In such an atmosphere of fear, which even the appellant's counsel does not deny, it is no wonder that the complainant was not in a hurry to complain to the police..."
- In light of this, it has been held in the past that when the court comes to examine the credibility of a complainant, it is sometimes necessary to suffice with the "kernel of truth" in the testimony. Significant weight should not always be attributed to the contradictions revealed in the versions [cf. Criminal Appeal 993/00 Noor v. State of Israel, IsrSC 56 (6) 205; Criminal Appeal 30/15 Anonymous v. State of Israel [published in Nevo] (April 20, 2016). See also Criminal Appeal 8745/08 Anonymous v. State of Israel [published in Nevo] (November 30, 2011), where it was held that:
"... Of course, it is difficult to expect that the complainant and the children, like victims of domestic violence in general, will remember the full details of each and every event, when it comes to a difficult life in which one serious event follows another. It is certainly possible to accept that the details are forgotten from the memory of the victim, who wishes to move on with his life... The court is aware that the initial versions of the victims are sometimes laconic and usually "reveal a little bit and conceal a little bit"... In offenses that are characterized by one family member intimidating another family member, there is also significant difficulty in obtaining external evidence that will strengthen the complainants' version."
- Alongside all of the above, it should be emphasized: the sensitivity with which the court examines the testimonies of victims of domestic violence offenses does not mean a change in the burden of proof in a criminal trial. The court must continue to examine whether there is a "reasonable doubt" that the accuser must remove as a condition for convicting a criminal defendant. And where the doubt has not been removed, the defendant will benefit from this doubt, and will be acquitted of the acts attributed to him in the indictment.
Investigation Pollution:
- An issue that often arises in cases involving offenses committed within the family, in which minors are interrogated, relates to the "contamination of the investigation." This is apparently a translation of the English phrase co-witness contamination. This is an unsuccessful expression, in my humble opinion, since there is nothing "pure" or "polluted" in the interrogation, and even the negative connotation derived from this coinage is out of place. The term "contamination of an investigation" refers to information that is transmitted (intentionally or unintentionally) between witnesses to an incident, before testimonies have been taken from them by the investigative unit. The concern is that the transfer of information in this manner may affect the delivery of the testimony, in various ways (whether by adding or subtracting details, the degree of certainty of the witness in relation to various details in his version, etc.).
- The case law held that the "contamination" of an interrogation, especially the interrogation of a minor, is liable to harm the independence of evidence. Thus, for example, it was held in criminal appeal 446/02 State of Israel v. Kobi, IsrSC 57 (3) 769 that:
"... In the interrogation of a boy or girl, according to the Child Protection Law, special emphasis must be placed on the "purity" of the interrogation. As much as possible, the intervention of external parties that could affect the testimony of the child witness or the course of the investigation should be avoided. Such involvement of external parties, especially one that has no reliable documentation, and whose details cannot be determined, may in some cases cast doubt on the credibility of the main testimony and lead to the acquittal of the accused."
- However, it is clear that not every conversation between witnesses and family members prior to their interrogation is a "pollution" of such an interrogation. Thus, for example, the Supreme Court ruled, with regard to the allegations regarding the "contamination of the investigation" of the affair of sexual offenses committed in the family:
"This court has already noted that in circumstances such as this, in which a number of members of the same family experienced sexual offenses, it is natural that a dialogue will be created between the complainants, out of a desire to share the difficulties they had to deal with and to find solace in the other, and such a discourse does not contaminate their testimonies, which were found to be reliable by the trial court (see and compare: Criminal Appeal 6352/10 State of Israel v. Anonymous, [published in Nevo], paragraph 14 (October 15, 2012); Criminal Appeal 6691/17, para. 47)."