In my opinion, it cannot be disputed that this proposal embodies the court's position that the result in which the applicant is convicted of the offense of assault and not convicted of the offenses of fraudulent rape is a legitimate and even desirable result (and certainly not one that contradicts the court's duty to "give a true judgment").
Moreover, as my colleague emphasized, the judge Y. ElronAt the end of the hearing on September 18, 2024, the court was of the opinion that the aforementioned result - the respondent's repetition of her request to convict the applicant of the offenses of rape by fraud and of indecent act by fraud - was an appropriate result, not because it concluded that there was no basis for a conviction for the aforementioned offenses, but for external reasons thereof. Nor was this approach (and rightly so) perceived by my colleagues as contradictory to the status of truth in law.
Since this was the position of the court (as well as the opinion of my colleagues), it does not seem to me that it can be said that the gap between the conviction of the applicant for the offenses of rape by fraud and his conviction for the offense of assault is such that there is room and justification to make, in the circumstances at hand, the use of the far-reaching power to convict a defendant of an offense more serious than the one claimed by the accuser.
Towards the end of the hearing on September 18, 2024, and after hearing all the arguments of the parties on the merits, this court did not believe that between the possibility that the applicant would be convicted of the offense of rape by fraud, and the possibility that he would be convicted of the offense of assault, there is a gap that embodies, as it were, the difference between a ruling that corresponds to the "principle of truth" (in the words of my colleague) and a ruling that supposedly violates the "principle of truth." Therefore, the court saw fit to propose what it sought to offer at the end of the hearing on September 18, 2024. Since that proposal was proposed, there has been no change in the facts or the law. What did happen in the meantime, due to a mistake that occurred, was that the judgment was given on appeal, in which the court ruled that there was a basis for convicting the applicant of the offense of fraudulent rape. That decision was, on its merits, a correct decision, but the gap between it and a conviction for an assault offense did not change. Therefore, even the conviction of the applicant for the offense of assault and not of the offense of rape by fraud did not become such that it could not be agreed to because it ostensibly contradicted the "truth". Therefore, in my opinion, even in retrospect and once the mistake was discovered, there is no reason to make use of the power to convict beyond and contrary to the respondent's position, and the judgment on appeal should not be left standing.
- I will add and note that in my view, in addition to and beyond the aforesaid, the result whereby the applicant will be convicted of the offense of assault and not of the offense of rape by fraud, is not a result that is contrary to a weighty public interest, and which should not be consented to.
I will reiterate in this regard the factual determination, which the Respondent also did not wish to appeal, according to which the Applicant did not commit the acts against the two patients for the purpose of sexual stimulation or gratification, and that there is a possibility, at least with a degree of reasonable doubt, that the Applicant committed the acts in order to benefit the patients. In the framework of my opinion in the judgment on appeal, I also expressed my opinion that, in these circumstances, the result according to which acts committed when this is the mental element of their perpetrators, establish the offense of rape, is not an easy result, and it is doubtful whether it is consistent with the desired law.