"Well, ma'am, there are two matters to address. One, this is the very matter if you stand by everything we have heard, which the length of the proceeding must also be taken into account, as well as the matter of 216. It is very possible that you are not interested. So if you're not interested, then we're not interested either."
- As can be easily seen, in the framework of what has been said, we have clarified to counsel for the parties that according to the facts that were proven in the District Court, it appears - prima facie - that although we are faced with a difficult issue with regard to the possibility of convicting the respondent of rape and an indecent act by fraud, such a possibility certainly exists; and in any event, it is impossible to exempt the respondent without anything: it is possible that the latter committed the acts of rape and the indecent acts in the fraud that the prosecution attributes to him; and it is possible that he is "only" guilty of attacking the complainants by means of the very unusual acts that he committed against them, which have been proven to be true. We have also made it clear to the parties' counsel that we do not express a firm position one way or the other, and accordingly, we ask for their consideration of the possibility that the respondent's acquittal of the offenses of rape and indecent act by fraud will remain in place, but that the respondent will be convicted of the offense of assault within the scope of section 216 ofthe Chesed Code. This was the proposal that we proposed, while we reiterate that this proposal does not constitute an expression of the final position of the panel one way or the other.
- This suggestion of ours was not properly understood by the State Attorney's Office (hereinafter: the State Attorney's Office), which informed us, on September 26, 2024, that although it still believes that the respondent committed the acts of rape fraudulently as well as the indecent act of fraud that it attributes to him, it accepts our proposal not to dispute his acquittal of these offenses, withdraws its request to convict the respondent of such offenses, and asks us to make use of our authority under section 216 of the Kindness Act and convict him of assault. In this statement, the State Attorney's Office emphasized that it would be appropriate and correct to convict the respondent at least of the offense of assault in order to realize the clarification of the truth and bring about a just result that would be consistent with the factual determinations in relation to the acts he committed.
- In other words, the State Attorney's Office understood our words as a proposal to retract its request to convict the respondent of rape and indecent act, even though we emphasized - and reiterated - that all possibilities are open and that we do not express a firm position on them one way or the other. All we have suggested to the parties' counsel - and this, of course, quite a bit - is to consider giving their consent to convict the respondent of assault instead of rape and the indecent act.
- It also became clear, contrary to the way I understood the matter in the reading of the State Attorney's Office announcement of September 26, 2024, that the State Attorney's Office also did not condition its retraction of its request to convict the respondent of rape and indecent act on his conviction for assault; The State Attorney's Office even reiterated this in a hearing we held on July 1, 2025, while confirming that there was indeed a "lack of communication." In parentheses, I will note that in light of the explicit things that I said, with the necessary caution, to the respondent's counsel, in the presence of the parties, after the hearing of the appeal had ended - and which were quoted above from the transcript of the recorded hearing - there should have been no room for doubt that in my opinion the acts committed by the respondent against the victims of the offense amounted to assault, if not more. These words were not supposed to create a "media shortcoming" as aforesaid, but they did create it - and as will be explained below, it does not change the result we reached in our judgment.
- On the other hand, the respondent pinned his hopes on the state's withdrawal of its request to convict him of rape and fraudulent act, and asked us not to convict him of assault, since, according to him, he could not properly defend himself against the accusation of such an offense, which was not included in the indictment (see: Supplementary argument on behalf of the respondent dated October 9, 2024).
Our Judgment in Light of the Parties' Positions and the Evidence
- Against this background, we determined in paragraph 64 of our judgment (which was written by me) that after reviewing the supplements of the argument on behalf of the parties on the question "rape or assault?" we were of the opinion that the correct conclusion is the conviction of the respondent for the offense of fraudulent rape.
In this framework, we wrote and clarified as follows: