"After considering what is stated in the plea supplements that were submitted for our review, I have come to the conclusion that it would not be correct to convict the respondent of the offense of assault that was not attributed to him in the indictment.
Here are the reasons for this:
- If there is no dispute that the respondent inserted his fingers into the genitals of M. and Y., if it is determined that this was indeed done by him fraudulently, we must convict him of the more serious offense of fraudulent rape, when the act of assault was absorbed into it (see and compare: S.Z. Feller, "Rule A = A + B and the Scope of Its Application," Hapraklit 23 427 (5727)).
- With regard to the chest massage that the respondent did to complainant M, after we knew that it was not possible to convict him of the offense of an indecent act, and given the extreme severity of the rape charges, which the respondent was sentenced to deal with in the District Court, it is doubtful in my opinion whether the respondent was given a proper opportunity to deal with the accusation of an act of assault that arises from that specific incident. In these circumstances, I am of the opinion that it would not be appropriate to exercise the special authority entrusted to us in section 216 ofthe Chesedap."
- These words were written by us as part of the detailed judgment that convicts the respondent of fraudulent rape and confirms his acquittal of the offense of an indecent act. This judgment is based mainly on the factual findings that were acceptable to all the judges of the District Court in the judgment that is the subject of the appeal.
Summary of the parties' arguments
- The Respondent placed before us a motion to annul the judgment we rendered in his case on March 23, 2025. His request is based on the state of affairs described above: the lack of understanding that the State Attorney's Office had with regard to the statements made by me and my colleague, Justice Elron, regarding the possibility of convicting the respondent of assault in lieu of the offenses of rape and indecent act; and the manner in which I understood what was stated in the State Attorney's Office's statement of September 26, 2024, as one that was consistent with what my colleague, Justice Elron, said, And I suggested to the parties' counsel, but it turned out that it did not match the response we received from the State Attorney's Office. According to the respondent, when the State Attorney's Office retracted its request to convict him of rape and indecent act, we were unable to convict him of these offenses; And our judgment was impaired, according to him, by not giving weight to the State Attorney's Office's withdrawal of its request as aforesaid in the framework of the appeal it filed against his full acquittal.
- The respondent's request was heard by us, together with the state's response, in a hearing we held on July 1, 2025, following the petition filed by the respondent in the High Court of Justice file 57436-05-25. Subsequently, the litigants completed their arguments in the writings that they submitted for our perusal.
- According to the state, the "lack of communication" and the misunderstanding it had regarding the court's proposal at the end of the hearing of its appeal should not lead to the annulment of the judgment given by us.
- In addition, the State noted, in completing its argument, that in the situation described above, there is no "withdrawal from the appeal" within the meaning of section 206 of the Kindness Act, neither in terms of the formal process nor in terms of substantiveness. Throughout the length and breadth of the argument, the State noted the broad powers given to the appellate court - including the power to convict a defendant of offenses from which he acquits even in the absence of an appeal on behalf of the State - powers that derive from the very role of the appellate court, including the correct definition of the offense committed and the establishment of the rule on a machine. According to the state's position, since the respondent was convicted of the offenses attributed to him in the first place, the prerequisites for the appellate court's authority to convict him of offenses different from those for which it sought to convict him, at the end of the day, due to the "short communication" that occurred - this is in view of the fact that the respondent was given a full opportunity to defend himself against the accusation of such offenses.
The State emphasized that in our judgment, which was given after a detailed discussion of various issues, the respondent's guilt of fraudulent rape was unanimously determined, while addressing and deciding legal issues related to both the offense of rape and the offense of fraudulent rape, and in particular in the context of the provision of treatment by a gynecologist. According to the state, the rulings in the judgment are of real importance to the patients who were harmed by the respondent's conduct - the victims of the offense who informed the state that they wished to leave the judgment in place - and may have practical implications regarding the respondent's ability to continue to engage in the occupation in which the offenses were committed. The state further argued that the judgment is important for the purpose of clarifying the rule with respect to the offense of rape in general and fraudulent rape in particular, when the "mishap" that occurred does not in any way impair the verdict itself. The state is therefore of the opinion that we must give decisive weight to the aforesaid considerations, and that in the totality of the circumstances, the scales tend to the fact that no grounds have been formulated for annulling the judgment. The state added that the balance between these considerations and other considerations - such as the continuation of the proceedings and the respondent's reasoning following its announcement of September 26, 2024 that he was no longer in danger of being convicted of sexual offenses - should be done as part of the District Court's sentencing of him.
- The respondent argued, on the other hand, that judicial estoppel had arisen vis-à-vis the state following a substantial change, according to him, in its position: from an explicit request not to convict him of sexual offenses - on which he and his counsel relied - to a later position in which it petitioned for a conviction for these offenses without justification or a change in circumstances. According to the respondent, when the state announced that it was withdrawing its appeal, the court's jurisdiction to hear that appeal expired, and therefore his conviction for fraudulent rape was done without authority. It was argued that even when the state reduces the appeal to some of the offenses, there is no longer a pending appeal for the offenses that were removed, by virtue of which the court is authorized to convict the respondent of these offenses. The respondent also argued that when the state announced that it would not stand by the appeal in relation to the sexual offenses, the defense relied on this and refrained from raising any arguments regarding these offenses, and deciding them in this way violated his right to defense as well as his right to a fair trial. The respondent further referred to the torture of the law in his case and to his personal and family circumstances, which he claimed exacerbated the injustice and miscarriage of justice caused to him. The respondent's response further noted that in light of section 81 of the Courts Law [Consolidated Version], 5744-1984, and in the absence of the parties' consent, the current procedural framework does not allow for a hearing on the appeal, clarification of the parties' arguments, and the issuance of an amended judgment.
- The victims of the offense also submitted - through their counsel - a written position in relation to the application in question, in which they noted that their position with regard to the appeal process as a whole was not sufficiently addressed and was not reflected in the position of the State Attorney's Office - neither at the stage of retracting the request to convict the respondent of sexual offenses nor at the stage at which we find ourselves. The victims of the offense asked us to leave the judgment in place, since it reflects, in their view, what actually took place during the "gynecological treatments" they received from the respondent and the type of offenses that the respondent committed against them. According to the victims of the offense, any outcome that does not recognize that they were fraudulently raped by the respondent will constitute a fatal violation of their dignity, after they have brought the story of their injury to the legal system in the belief that the truth will come out; now that the truth has been clarified, any attempt to erase it or "renovate" it is inconsistent with the principle of justice. The victims of the offense emphasized that whatever the procedural mistake that occurred, it cannot justify an outcome that distorts justice and allows the acquittal of a guilty person, who will not be held accountable for his actions, and the severe harm caused to them will be as if it never existed.
Discussion and Decision
- The respondent's request is based on a number of arguments. Before I discuss arguments that deserve to be heard and seriously weighed, I will take from our agenda two arguments that do not even have a hint of truth.
- The respondent's argument, which I will briefly discuss, first, is light years away from the truth. I am referring to the argument that attributes to the State Attorney' s Office a withdrawal from the appeal, and which was argued by the respondent repeatedly, orally and in writing. Repeating this claim - which is not true - many times cannot turn it into truth. It is plain that the State Attorney's Office has never withdrawn its appeal. In its announcement of September 26, 2024, the State Attorney's Office noted that it still believes that the facts set forth in the verdict establish the offenses of rape by fraud and indecent act by fraud, but after hearing the court's comments in the hearing that took place in the appeal, it announces that it retracts its request to convict the respondent of these offenses, and at the same time requests that we convict him of assault, an offense under section 379 ofthe Penal Law. 5737-1977. It is clear that we are dealing with a retraction of a specific argument that the State Attorney's Office raised as part of its arguments in the appeal, and not from the appeal as a whole. If the State Attorney's Office had retracted its appeal against the respondent's acquittal in the District Court, and the appeal it filed was and is not - how exactly did it ask us to convict him of the offense of assault? Unfortunately, since I have never encountered a lawyer who does not know the difference between a retraction of an appeal and a retraction of a specific claim, of one kind or another, I am forced to doubt the sincerity of the argument regarding the state's withdrawal from its appeal.
- Another argument made by the respondent attributes to us a lack of reference to the things that arose in the supplements to the argument. What is stated in paragraph 64 of our judgment - quoted above - shows that there is no truth in this claim. The truth must be told again: when I read the State Attorney's Office's announcement of September 26, 2024, I was of the opinion that it was a response to the proposal we proposed, conditional on its agreement to waive the respondent's conviction for the offenses of rape and indecent act by convicting the respondent of assault - even though it did not say "Rachel, your little daughter." As I said, I thought this was not correct. In retrospect, it seems that this stemmed from the fact that I saw in the State Attorney's Office's response a response to the proposal we proposed, which we were supposed to accept. At the same time, when I understood from the words of the State Attorney's Office that it insisted that the respondent be convicted of at least assault, I was not wrong; and obviously, I also understood very well the position of the respondent, who asked us for a full acquittal of all the offenses. Our judgment, which, as stated, was written by me, was therefore given against the background of the dispute as it exists, both as to the law and as to the facts of the case. This, subject to one detail only: Contrary to what I believed, the State Attorney's Office's waiver of its request to convict the respondent of rape and indecent act was not contingent on his conviction of assault.
- In other words, our judgment was given against the background of the lack of agreement between the parties in which the State Attorney's Office would waive the possibility of convicting the respondent of rape and indecent act - a concession that the State Attorney's Office gave - in exchange for the respondent's consent to convict him of assault, consent that the respondent did not give. In these circumstances, and in view of what is stated in the case law dealing with the principle of truth, which was quoted above, we have given our judgment which reflects true law. In this context, it is important to emphasize that even if the parties had reached a plea bargain whereby the respondent would have been convicted of assault, nothing would have detracted from our authority and duty to render a true judgment - after accepting the position of the victims of the offense, as required by sections 17(c) and 17(d) of the Crime Victims' Rights Law, 5761-2001. Therefore, it is not at all certain that we would have approved the plea bargain - especially in light of the position of the victims of the offense that they experienced rape and not assault (see and compare: Criminal Appeal 8164/02 Anonymous v. State of Israel, IsrSC 58(3) 577, 585-586 (2003); Criminal Appeal 3971/90 Assis v. Judge Victoria Ostrovsky, IsrSC 45(1) 661 (1990); as well as Criminal Appeal 532/71 Bahamutsky v. State of Israel, IsrSC 26(1) 543 (1972)). In any event, we, for our part, would not have approved any plea bargain in this case without clarifying the positions of the victims of the offense, as commanded by the legislature.
- According to the principle of truth, the fact that the State Attorney's Office did not condition its withdrawal of the request to convict the respondent of rape and indecent act on his conviction of assault does not in any way detract from our authority and duty to render a true judgment. Therefore, taking into account the fact that the State Attorney's Office accepted our proposal, as it understood it, under protest that emphasizes the respondent's guilt of rape and indecent act, and in view of the fact that the respondent in any case did not give his consent to his conviction of assault and claimed full innocence, what is stated in paragraph 64 of our judgment and the rest of the judgment remains the same and does not detract from anything or half of the respondent's rights. The Respondent now wishes to go back to the timeline and determine that the Court's jurisdiction is bound by the State's notice of September 26, 2024. The problem, as noted by the aforesaid possibility, of convicting the respondent of assault was not at all certain, especially in view of the position of the victims of the offense, and the respondent, as stated, waived it; And what has been done cannot be changed now.
In this regard, the President's words are appropriate A. Barak IIAdditional Criminal Hearing 5035/99 Dorfman v. State of Israel [Nevo] (January 23, 2000), with the necessary changes: