I do not see the need to decide the aforementioned dispute since, at this time, the position of the victims of the offense is before us.
- On the merits of the matter, and without taking lightly, G-d forbid, the position of the victims of the offense and its reasons, in the circumstances of the case, including and especially the aforesaid regarding the mental element of the applicant at the time of the commission of the acts, the position of the victims of the offense does not change my position on the merits of the matter.
B.4. Conviction of the Applicant for Assault
- Chapter 6 of the Criminal Procedure Law deals with the criminal appeal process, and section 216, in this chapter, states that:
"The court may convict a defendant of an offense for which his guilt was revealed from the facts that were proven, even if it differs from that of which he was convicted in the previous instance, and even if the same facts were not argued in the previous instance, provided that the defendant was given a reasonable opportunity to defend himself; However, he will not be subjected to a more severe punishment than would have been imposed on him if the facts as alleged in the indictment had been proven."
The Respondent, in its response of September 26, 2024, after announcing that it was retracting its request to convict the Applicant of rape by fraud and indecent act of fraud, sought to convict the Applicant of the offense of assault, according to Article 379 to the Penal Law, while the court makes use of the authority granted to it Section 216 of the Criminal Procedure Law.
The applicant, in his response of October 9, 2024, objected to the application.
In the judgment in the appeal, it was held that the applicant should not be convicted of the offense of assault, for the following reasons (paragraph 64 of the opinion of my colleague, the judge א' שטיין):
As to the Applicant's actions in inserting fingers into the complainants' genitals, it was determined that the Applicant's conviction for fraudulent rape is a conviction in which "the act of assault was swallowed up".