It should also be noted that one of the judges of the panel (the judge A. Romanov), he found it appropriate to note (in paragraph 31 of his opinion) that the court was not asked to make use of the power granted to it to convict a defendant of an offense different from that attributed to him in the indictment, and that in these circumstances he was of the opinion that it was inappropriate for the court to do so on its own initiative.
- On February 12, 2023, the Respondent filed an appeal to this Court against the District Court's ruling, which is the appeal in question. In the framework of the appeal, the Respondent sought to convict the Applicant of the offenses of which he was charged in the District Court: fraudulent rape and fraudulent indecency.
A.2. The Hearing and Judgment in the Appeal
- On September 18, 2024, a hearing was held before us in the Respondent's appeal.
First, the arguments of the respondent's counsel were heard, who emphasized, at the outset, that the respondent does not ask this court to intervene in the determinations of the trial court regarding the applicant's mental state at the time of the commission of the acts at the center of the indictment, so that the starting point is that it has not been proven that the acts were committed by the applicant for sexual stimulation and gratification, and even though the applicant acted as he did in the best interest of the patients (see p. 3, lines 4-5 and 22-23 and p. 6, line 1, for the record).
In the course of the arguments of the respondent's counsel, it was possible to discern two motifs in our questions and comments:
The first is questions and comments indicating that the Respondent's petition to convict the Applicant of the offense of rape raises a difficulty, given the determinations regarding the Applicant's mental state at the time of the commission of the acts. This is both with regard to the element of "fraud" required to formulate the offense of fraudulent rape (and see the comments of my colleague, the judge א' שטיין, on p. 7, lines 14-17, p. 8, lines 12-17, and my comments on p. 7, lines 30-32 and on p. 8, lines 22-23, of the transcript), and both with regard to the very possibility of convicting of rape when the acts are not performed for sexual stimulation and gratification, nor even for the humiliation of the victim of the offense (and see, after a contradictory statement by my colleague, the judge א' שטיין, my words on page 9, line 38 to page 10, line 2, and on page 13, lines 22-23).