"The argument that a defendant acquires himself a presumption of the sentence that was offered to him in the framework of an offer that he rejected negates any significance from the institution of the plea bargain, as it is recognized in our law [...]. Indeed, agreements must be fulfilled, but a plea bargain is not an option that can be exercised at any time, according to the defendant's wishes. When the petitioners chose to withdraw from the plea bargain to which they initially agreed and discovered that they had made a mistaken bargain, they have nothing to blame but themselves" (see: ibid., at paragraph 5; emphasis added - A.S.).
- The more significant arguments raised by the respondent attribute to the state judicial estoppel and impediments, and point to our lack of authority, or, at least, the lack of justification, to hear and rule on charges that the State Attorney's Office withdrew - even if partially - not even by virtue of section 216 of the Chesed Police.
- These arguments are to be rejected. First, as the State Attorney's Office noted in its response of August 21, 2025, it did not change the position presented in its notice of September 26, 2024, but rather brought - following the court's decision - its position regarding the analysis of the legal situation after the judgment was rendered in the circumstances of the present case, according to which this court was authorized to convict the respondent of fraudulent rape. Second, even if I assume that the State Attorney's Office has now changed its position, it is highly doubtful in my opinion that the State Attorney's Office is silent from arguing that the respondent is guilty of fraudulent rape in accordance with what is stated in our judgment. InAdditional Criminal Hearing 1187/03 State of Israel v. Peretz, IsrSC 59(6) 281 (2005), this court held that when the trial court deviates from a plea bargain that the defendant made with the state, the state must re-examine its position in preparation for the appeal, and in appropriate circumstances, it will be entitled not to defend the plea bargain as it was done. This is in light of the state's obligation to the public and as a representative of the public interest in criminal proceedings. All the more so that the state, as the accuser, is entitled to re-examine and change its position when it comes to a unilateral position that was not given in the framework of a plea bargain agreed upon by the parties, and which the defendant even rejected. This, all the more so, in cases such as the one before us, in which a detailed and reasoned judgment was given that unanimously determined the guilt of the respondent of fraudulent rape offenses.
- In any event, even if an argument is heard that the state is silenced from claiming the respondent's guilt of fraudulent rape, this does not block the court's mouth when it comes to telling the truth, as it is, and to rule on the truth. After we found that the complainant's assault was expressed in the insertion of his fingers into the genitals of each of them; After we have come to know that the manner in which these acts were carried out does not correspond with any recognized gynecological treatment, and that the respondent concealed this critical fact from the complainants; And after we know that the offense of rape takes shape even without sexual intentions on the part of the perpetrator, as explained in our judgment, we have no choice but to convict the respondent of rape fraud as part of our authority and duty to give a true verdict. Therefore, our judgment clearly determined, on the basis of the evidence about which there is no real dispute, that the respondent committed acts of fraudulent rape against the victims of the offense. The victims of the offense experienced the aforementioned acts of rape from his hands, and this fact cannot be changed even against the background of the "lack of communication" described above. As President Zamora taught us, a criminal trial based on the principle of truth is not "an Ashkookan game in which one wrong move determines the fate of the game" (see: Sylvester case, at p. 18).
- Moreover, it was assumed, contrary to the facts of the case at hand, that the state had filed an indictment against the respondent from the outset accusing him of assault, and nothing more; that the District Court acquitted him of this charge in full; and that the state appeals this acquittal and asks us to convict the respondent of assault, while emphasizing - as in the present case - that as far as it is concerned, the conviction of the respondent of rape is not on the agenda.
- Even in this hypothetical situation, which benefits the respondent before us, we have full authority and justification to convict the respondent of fraudulent rape, if he has been given a reasonable opportunity to defend himself - this, as stated, by virtue of section 216 ofthe Kindness Act. In the case before us, after we know that the respondent was charged from the outset with fraudulent rape (among other offenses attributed to him) and that he had a full opportunity to defend himself against this charge, this is all the more so. It is clear that this court did not deviate from its jurisdiction in the slightest when it ruled on the basis of the principle of truth and found the respondent guilty of the offense of rape by fraud. I will reiterate that in view of the fact that both the proceedings before the District Court and the hearing before us focused on the respondent's responsibility for acts that amount to fraudulent rape, there cannot be an argument that the respondent, as it were, was not given a reasonable opportunity to defend himself in all that is related to this offense. The respondent's argument that due to the state's notice of September 26, 2024, the defense did not relate to the sexual offenses, but only to the question of whether he could be convicted of the offense of assault - is not an argument, and it constitutes a distortion of reality. Our decision of September 18, 2024 - in which we instructed the Respondent and the State to complete their arguments regarding the applicability of section 216 of the Kindness Act as a basis for the possible conviction of the Respondent for the offense of assault - was given by us after we heard the full arguments of the parties, the center, inter alia, on the Respondent's responsibility for the acts of fraudulent rape that the State attributed to him from the beginning of the criminal proceeding that was conducted in his case until its end. Prior to that decision, the respondent's arguments that there was no reason to convict him of fraudulent rape were heard in full and at length, both in writing and orally.
- The respondent's argument that section 216 of the Kindness Act does not apply in cases of absolute acquittal is unfounded. This argument is contrary to common sense and undermines the principle of truth and the broad authority granted by the legislature to the appellate courts in sections 212 and 213 of the Chesed Order. The language of section 216, according to which the appellate court is authorized to 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", does not come to qualify the applicability of the section, but rather to clarify that the principle of truth, according to which the appellate court is commanded to act, applies even in such cases. The authority and duty of the Court of Appeal to rule on truth and truth is a general authority. This is how it was determined, from ancient times, in the laws quoted above, which established the principle of truth, and which we cannot - and probably will not want - to change. In the present case, after we have realized, beyond a reasonable doubt, that the victims of the offense were victims of fraudulent rape committed by the respondent, we are obligated to convict him of fraudulent rape, and not of assault.
- In these circumstances, there is full justification for the state's current position, which asks us to render a true judgment and to leave our judgment in place, without any addition or change. The same argument is made by the victims of the offense - and I also found great reason in it after I knew that these women were undoubtedly fraudulently raped by the respondent, and not only attacked by him. The respondent's arguments regarding the sequence of events in the case, the prolongation of the proceedings, and the torture caused to him should be considered in the framework of his sentencing by the District Court. In this context, we will record before us the State's position that the maximum penalty prescribed alongside the offense of assault will be the upper threshold of punishment that should be considered by the District Court in the Respondent's case.
- I am therefore of the opinion that we must reject the respondent's request to annul our judgment with both hands and leave our judgment in place, without any addition or change - and this is what I would suggest my colleagues do. Any other decision would sin against the principle of truth, since it has been proven beyond a reasonable doubt that the respondent fraudulently raped the victims of the offense, and not only assaulted them. Our judgment was rendered, inter alia, against the background of the assumption that the parties did not reach a plea bargain that the court sought to consider, a correct assumption on the factual level - even though I was wrong when I assumed, in addition, that the state conditions its withdrawal of its request to convict the respondent of rape on his conviction for the offense of assault. All the more so, despite the "communication brief" that occurred between us and the State Attorney's Office, we reminded us that the criminal proceeding is not a "Ashkooki game", in which a mistake such as the one that occurred here leads to the acquittal of the defendant - it is our authority and duty to convict the respondent of such a rape; And so I will suggest to my friends that we decide.
A brief response to the opinion of my colleague, Justice Y. Kasher
- My colleague, Justice Kasher, does not disagree - and in light of the clear references cited by me in such a case, in any case he cannot disagree - that we have the authority to render our judgment as possible and accordingly to reject the application that the respondent placed before us. According to my colleague, the question that is now being decided is nothing but this: How should we exercise our authority - the one that existed then and the one that exists now - after we know that there was a fault in the proceeding that was conducted before us? I will answer this question simply: our duty to rule on the truth has not diminished in the slightest; And after we have realized that the respondent committed an act of rape on the victims of the offense fraudulently - and that the victims of the offense before us experienced rape in their bodies - we must convict the respondent of rape, and not of a lesser offense such as assault.
- My colleague, Justice Kasher, credits part of the mishap that fell to us, and I am also willing to do so - provided that things are correct. As I have already noted, at the end of the hearing that took place on September 18, 2024, I clarified to the respondent's counsel, in the presence of counsel for the state, that the client is guilty of at least one offense of assault. This clarification was subject to what is stated in section 216 of the Kindness Act, but in my opinion it was clear to everyone that the state would have no difficulty in overcoming this hurdle of giving the defendant a "reasonable opportunity to defend himself", since the act of assault that I spoke of was expressed in the unauthorized insertion of the respondent's fingers into the genitals of the victims of the offense - a factual framework around which the entire trial was conducted in the context of rape offenses and indecent acts. There is therefore no doubt that the state erred in informing the court that it accepts our proposal to withdraw its request to convict the respondent of rape and indecent act - since, as stated, and my colleague does not dispute this, this was not our proposal. Under these circumstances, if I had noticed that the state had made a mistake, I would have held it accountable. However, since I expected an answer to the question that we presented to the parties at the end of the hearing, do they intend to reach a plea bargain in which the respondent will be convicted of assault instead of the offenses of rape and indecent act? - I interpreted the State's position, that we requested that we convict the respondent of assault, inadvertently, as readiness to reach such an arrangement. The problem is that the respondent ruled out this possibility in response to the state's supplementary argument and claimed his complete innocence. Since our proposal was not accepted and was not perfected into a plea bargain, we analyzed the respondent's actions as detailed in our judgment and reached the conclusion that the respondent raped the victims of the offense fraudulently and that this was the correct and proper labeling for his actions. In other words, the mishap that occurred did not cause the respondent any miscarriage of justice, and his current attempt to build from it at the expense of the truth must be rejected with both hands.
- I have examined the words of my colleague, Justice (ret.) Elron, which were written in reference to the position of my colleague, Justice Kasher, and I agree with every word. In particular, I concur with Justice Elron's comment regarding the procedure for responding to the court's motions concerning plea bargains. In this regard, I would like to propose another option: each litigant's answer should include a single, two-letter word: "yes" or "no."
| Alex Stein |