[...]
At the basis of these rulings is not the desire to grant a 'discount' to victims of sexual offenses or to lower the evidentiary standard required for the conviction of sex offenders, but rather recognition of the reality of life. This reality shows that in quite a few cases, victims of sexual offenses react in an 'irrational' way to the assault (for example, freezing in place or staying close to the offender); find it difficult to give an orderly testimony about the incident in which they were attacked; Or they decide to suppress their testimony and are in no hurry to complain. In certain circumstances, some sexual victims continue to behave as usual without externalizing the trauma they have undergone. It is the recognition of these phenomena that has led to the creation of the unique laws, which can be described as an "evidentiary enclave." [...]
See also Criminal Appeal 6681/23 State of Israel v. Hive, para. 15 (November 10, 2024).
- The special evidentiary rules outlined in the Daniel case allow for lenient treatment of contradictions in the victim's testimony and an examination of whether a "kernel of truth" or a "false version" has been proven; In addition, the victim's tendency to suppress the testimony or the fact that the event was not told to anyone in real time does not necessarily impair his credibility. Similarly, lack of awareness of the offense at the time of the act does not necessarily attest to consent; It was further determined that the "irrational" behavior of the victim does not necessarily impair his credibility, and that even an "evolving" version over time does not necessarily indicate a lack of trustworthiness; The existence of an extraneous motive and the timing of the complaint will also not necessarily serve the victim's obligation.
- However, alongside the special evidentiary rules that have been outlined, this does not mean that in no case should a complainant of a sexual offense be charged with suppressing the testimony, internal contradictions in the version, or the development of the version. and that "this 'evidentiary enclave' requires careful and sensitive application. These are not sweeping rules that have the power to overcome any defect in the testimony and attribute credibility to each complainant, but rather rules that were created against the background of recognition of a complex reality and are intended to assist in exposing the factual truth" (Daniel case, paragraphs 10-11).
- Against the background of these criteria, I will move on to analyzing the evidence, determining the findings and drawing conclusions regarding the applicability of the truth of publication protection to the first publication.
and. Advertising on the Website "Politically Reading"
- The article in Politikaly discusses the station's poor conduct in handling complaints of sexual harassment and inappropriate behavior, while presenting testimonies of male and female soldiers from the 1980s to 2019. The part that dealt with the plaintiff, for which the lawsuit was filed, included descriptions of acts attributed to him by the two female soldiers. The manner in which the matter was presented and the focus in this section was also on the station's poor handling in real time, from the point of view of the female soldiers who complained against the plaintiff. In order to formulate the defense of the truth of the publication, as stated, two cumulative foundations must be adopted, namely that the publication was true and that there was a public interest in its publication.
- As for the element of public interest, in accordance with the broad criteria outlined in the case law, there is public interest in publicity, both in relation to the station's handling of complaints by male and female soldiers, and in the coverage of individual cases that have occurred over the years involving employees at the station. In his summaries, the plaintiff confirms that the publications deal with a matter of great public importance, but argues that the publication of his name was not required and that it was possible to realize the public benefit of the publication even without mentioning his name.
The question of whether, in the framework of determining that there is a public interest in order to protect the truth of the publication, the court must examine whether it is possible to realize the public purpose of publication in a way that is less harmful to the victim, was not decided in the case law. In his book, Shenhar refers to the First Amendment to the Prohibition of Defamation Law, in which the restriction in section 14 was repealed, which stipulated that the publication would be of interest to the public "provided that the publication did not deviate from the scope necessary for that matter." Although it is possible to learn from this correction that there is no room to examine whether it is possible to realize the public goal in a way that is less harmful, Snahar explains in his book why this conclusion is uncertain. At the same time, in his opinion, since there is almost no case in which it is impossible to publish truthful publications in a less harmful way, this is imposing too heavy a burden that is liable to cause a chilling effect that will harm freedom of expression and freedom of the press in truthful publications of public interest. His conclusion at the end of the discussion is that "this rationale and the natural conclusion from the amendment of section 14 may lead to the courts not assigning the applicability of the defense on the fact that it was impossible to achieve the public purpose in a less harmful way (Shenhar, 421-422; Civil Appeal Authority 1104/07 Khir v. Gil, IsrSC 66(2), 511, 523, 526 (2009), where a similar approach was brought with regard to the consequences that should be given to the deletion of a condition in the defense of section 13(5) of the Law).