Adv. Kahar noted that soldiers and workers should feel comfortable in their service environment and not feel harassed or threatened in any way by the servants or workers in their environment.
Therefore, he emphasized that wherever there is doubt , there is no doubt, and we must not do anything that could be interpreted by the other side as sexual harassment.
- The transcript of the interview conducted with the complainants by Politikali before the publication of the article presents a similar picture. Thus, in an interview with Sapir, she shared on her own initiative words about the plaintiff, without guidance and without guiding questions: "I will simply pour out what I have... Actually, I'll tell you the biggest story, and it was Avner Hofstein... Every time he wanted to say something to me, it included touch. Or he puts a hand on my shoulder or inner thigh, just like that when he says to me, "Say..." And while he was touching me, Anne's thigh on the shoulder or the waist and it just really drove me crazy [...]." Even if the weight that should be given to the transcript is partial, it can serve as an additional reinforcement of the evidentiary totality presented.
- As for the claim that the complainants did not file a complaint in real time, and that the plaintiff was not presented with the version that the complainants are presenting today, in their testimony in court, the complainants convincingly explained why they were afraid to file a complaint and why they wanted to leave the matter in focus without it gaining traction: "At the time of A, I did not have the self-confidence or maturity that I have today as an adult who speaks. As a 19-year-old girl, Sha. Soldier, B. She wanted to work in the media and her future would be in the media, I didn't want to cause a fuss, I didn't want to make a fuss about it, I didn't want things to be around me, to have a stain on me, I wanted to close [you] behind closed doors, I just wanted it to stop" (p. 249, paras. 16-20); And also "I didn't want to risk my future, I didn't want it to expand even further, [...] I didn't want them to know. I was 19 years old, I wanted a career in the media, I didn't want to be involved in this thing and to have a stain on my name because at that time if a girl complained, she would burn herself. I didn't want to burn myself at the age of 19" (p. 252 S., paras. 1-8). I found support for this in an interview I conducted with Sapir before the publication of the article: "I didn't ask to open a complaint, I just wanted the man, maybe to reset him a bit, was a new citizen who didn't work with female soldiers... I just wanted them to make a reset call to him, saying, "My brother, it's not appropriate for you to talk like that to 18-year-old soldiers, and it's not appropriate for you to touch female soldiers."
The complainants' explanation that at the time of the events they asked that the affair be dealt with in a specific and limited manner, and for this purpose they were satisfied with the cooperation of sources at the station that the plaintiff was "touching them unnecessarily" in order for the matter to be dealt with, is logical and reasonable. Therefore, I do not accept the plaintiff's argument that this would impair their credibility.
- As for the claim that Sapir noted in an interview with Politikali that she was afraid that she would be "told that she was exaggerating" and that "Dana" asked Steif in real time whether it was sexual harassment - this does not impair their credibility. In her testimony, Sapir explained that she was a 19-year-old female soldier at the time and that "it was before me too, it was before there was an atmosphere in which there was a presence of sexual harassment and an unnecessary sexual atmosphere, it was not okay in the workplace [...] But today, from the perspective of a reasonable person, 28 years old, I can say that indeed anyone who has been there and looks from the perspective of 2024 would have said that it is completely unlikely" (pp. 244, 2-6). The behavior of the complainants in real time, taking into account the explanations in the cross-examination, is expected to be the natural behavior of young girls who experience the acts described.
Therefore, there is no substance to the plaintiff's claim in his summaries that the complainant's conduct expresses an acknowledgment that the actions on his part were carried out inadvertently and that they were not of a sexual nature. In this context, it is important to mention the Supreme Court's ruling, which recognized that there are: "There are 106 reasons for which the victim of the offense chooses to suppress his testimony, sometimes for many years. This is due to external reasons such as fear and environmental pressure, fear of exposure to the public, and fear of the difficulty involved in the investigation and trial proceedings [...] and due to internal reasons such as feelings of guilt, disgrace, shame, embarrassment, insult, rejection, internal reluctance, and sometimes, even the victim's misunderstanding that forbidden things were done to him" (Criminal Appeal 5582/09 Anonymous v. State of Israel, paragraph 86 of the judge's judgment (as his title at the time) Y. Amit (October 20, 2010)).
- According to the plaintiff's claim that the female soldiers complained in real time only about incidental and distracted contact with neutral body parts, there is no anchoring in the evidence. Even if the plaintiff saw things in real time (although he claims that he does not remember touches), it was proven that the complaints were about repeated contact, which is beyond casual and casual contact.
Moreover, even if I accept the plaintiff's claim in his summaries that the complainants recognize the possibility that he did not have sexual intent , the evidentiary basis presented shows that his actions crossed the line from casual and casual contact to intrusive and disturbing contact. As is well known, the test for examining the behavior as a nuisance is objective and the occurrence must be examined through the eyes of a reasonable person. "The fact that the harasser did not intend to harass him, that he believed that his conduct did not constitute harassment, and even that he believed that his conduct was consensual by the other party, does not constitute a decision" (Civil Servants Disciplinary Appeal 6713/96 State of Israel v. Ben Asher, IsrSC 52(1) 650, 687 (1998)).
- Accordingly, even if Dekel and Shouri did not attribute sexual intent to his actions in the clarification conversation with him, this does not change the conclusion reached. In the clarification conversation, which according to the plaintiff's testimony was also difficult and unpleasant (Transcript 2, p. 164, paras. 12-16; at p. 192, paras. 26-32), Dekel and Schori presented him with complaints that were received that went beyond casual and casual contact, and warned him that he must be aware of his actions and stop doing so. Poliak's testimony that "I have no doubt that Avner did not intend to sexually harass the girls" is of no evidentiary value. In fact, her testimony actually strengthens the complainant's version. Poliak testified in her affidavit that the female soldiers complained to her that "Avner has a problem of boundaries" (paragraphs 3 and 5 of the affidavit) and even confirmed in her cross-examination that she herself had the impression that "Avner has a problem of boundaries and habits of behavior" (Transcript 1, p. 22, 13-16) and that he "may have crossed some certain boundary in the situation" (p. 20, s. 17). When she was asked in her cross-examination to answer where the female soldiers had complained in a conversation with her that the plaintiff had touched them, she replied: in the shoulder and knee, and when she was asked to be more precise, she replied that they had complained of contact that was "slightly above the knee" (p. 31, question 32) - that is, the thigh. It is actually possible to understand from Poliak's testimony that there is a gap between the plaintiff's perception of reality regarding his conduct and the way things are interpreted from an objective point of view.
I found it necessary to add that in view of the manner in which complaints were handled in real time - which I discussed at length above - the weight that should be attributed to the opinion of Poliak (who went on maternity leave and was not involved in most of the clarification process) and Steif (who conducted an examination at her discretion and contacted "Dana" on her own initiative who testified that she felt uncomfortable with the contact with her (paragraph 26 of Dana's affidavit") - it is low.