When things are clear, we should not deal with theoretical assumptions and possible scenarios: Here are the Konk factsרbiases, concrete circumstances, concrete respondent and concrete offense victims. It is not "in the air" to be decided, but with no mind, when our feet are planted in the ground. In this view, it is unacceptable to change the respondent's conviction as my colleague Justice Kosher Offering, only because counsel for the parties did not correctly understand our proposal.
After the judgment states, Unanimously, that the respondent should not be convicted of the offense of assault, and his conviction should not be commuted now, as suggested by the judge Kosher, for the offense of assault instead of the offense of fraudulent rape, due to the "public interest", which in my opinion is many times more difficult. The evidence remains as it was; The legal situation has not changed either; The legal arguments are identical. The judgment is correct today as it was correct on the day it was given, how can we ignore the evidentiary basis and the legal reality and convert the respondent's conviction into a different offense that does not fully reflect his actions?
- My colleague Justice Kasher presents as the central question in his opinion the following question: How should one act when it turns out that there was a mistake in the court's action and there was a fault in the way it acted? Thus, my colleague Justice Kasher is of the opinion that the judgment in the appeal was given on the basis of the erroneous assumption that what was proposed by the court was an agreed arrangement in respect of which no agreement was reached. However, I find it difficult to understand his position - the judgment was given on the basis of the provisions of the law, the arguments and the evidence, like any judgment in any case that requires a judicial decision in the absence of the consent of both parties. The court's proposal, which was not accepted in any case, does not change the judgment one way or the other. Justice Kasher's clarification that he would not have joined the judgment after the appellant retracted her request to convict the respondent of the same offenses (paragraph 25 of his opinion) is not clear, even if only because her position was put before my colleague Justice Kasher, as it was before me. Nevertheless, his consent was given.
- This should be emphasized: the appellant's "repetition" of her request to convict the respondent of the offenses of rape by fraud and an indecent act by fraud was not made in light of a new evidentiary discovery or following her conclusion that the respondent did not commit the acts. In her words: "The appellant is still of the opinion, as she argued in the appeal, that the facts established in the majority opinion in the trial court's judgment establish the offenses of fraudulent rape and fraudulent act" (as stated in her reply of September 26, 2024).
Therefore, I do not share the presentation of the matter in the position of my colleague, the judge Kosher, for example, our substantive position with the respondent is even more stringent than the position of the appellant itself. This difficulty does not arise at all, since the appellant is of the opinion that even with respect to the offenses in which we rejected the appeal against his acquittal, it should have been lawful to convict him.