A 68 year old Israeli religious man pled guilty to repeated rape and forced molestation of his granddaughter, now an adult, when she was 7-10 years old, and was sentenced to 19 years in jail. In a landmark judgement, the judges call his crime and any sexual assults on children "a soul murder in a body that keeps on living."
Table of Contents:
- The District Court in Haifa (12/06/2001)
(Unofficial translation from Hebrew)
S. Jobran - Head Judge
Y. Grille - Judge
R. Shapiro – Judge
The State of Israel against: (name withheld for protection of the victim's—his granddaughter's—privacy)
1. The offenses the defendant was convicted of:
The defendant, born in 1933, was convicted through his own guilty plea of felonies referred to him in a revised accusation, of forced molestation, rape, and sexual assault. The victim of these felonies the defendant was convicted of was his granddaughter, born in 1980 ("the complainant"). The felonies were done in the complainant from the time she was 7 years old to the time she was 10. According to the Accusation, there were many incidents in which the defendant did the felonies he is accused of in his granddaughter, the complainant, felonies of which he pled guilty.
Let it be noted that the accusation refers to several different laws, due to changes in the penalty law regarding sexual offenses. The most severe charge referred to the defendant is a rape offense of inserting a finger into the complainant's genital, and this is a great number of times. It should be noted that the accusation does not relate to the popular term of rape (i.e. with a penis), but the actions admitted by the defendant are considered rape according to the law.
2. The victim:
Before we detail our considerations regarding the appropriate penalty in this case, we find it important to bring up some facts that are relevant to our decision, as related to the victim of the felonies as well as the defendant.
These facts, along with the total of facts presented to us, which we will not fully detail, faced us with a difficult deliberation regarding the severity of the penalty in this case. An unusual and a severe case in which a grandfather attacks his granddaughter and does in her sexual offenses of the kind the defendant plead guilty for.
Since the defendant pled guilty, it spared the complainant the need to testify. As noted, this is to the defendant's credit that he spared the granddaughter further suffering. At the same time, because of the guilty plea, the court did not hear the complainant's voice and we were not presented with the full factual picture, as it related to her hurt. Nevertheless, the prosecution presented to us evidence from which we learned to know the complainant, even if just a little bit. Under these circumstances, the court acquainted itself with the victim through the victim's report, the video confrontation, and other documents we received for review.
The complainant grew up in house next to her grandfather's house, the defendant. Life wasn't peaceful in her home. Her mother divorced twice. The conflicts in the mother's house included violence. Under these circumstances, the grandfather, who was a neighbor, was the dominant figure and a substitute father figure and a shelter in time of trouble. This is at least how the complainant felt until she realized that the grandfather, whom she loved and admired, made her into a service tool for his deviations.
The grandfather/defendant was a dominant and appreciated figure in the community where the family lived. We shall say more of his character later. It be noted that this is a lawyer who was one of the top lawyers in the North. In addition, the defendant is a learned man with many academic degrees in various topics, and was a teacher of the Bible, and a guide for many, in the legal community as well as outside of it. Under these circumstances, the grandchild's admiration of him was great. And as great the admiration and love, is the greatness of the loss, when she realized as a child that she was sexually exploited by the admired figure she loved most.
Later on, and as a result of many events, the mother left the town where she lived next to the grandfather, and moved with her children, including the complainant, to a near by Kibbuz. Where she created a warm home, and where the complainant matured.
The defendants' schemes and his hurt of the victim were already exposed in 1990. At the time, the committee that dealt with the case through the department of social services ("Ptor Committee"), decided to transfer the complaint to the police, and following the district attorney's office an investigation was launched. However, for various reasons it wasn't possible to take a deposition from the complainants, and as a result the investigation did not progress.
Although the defendant tried to repress the events she lived through in the presence of her grandfather/the defendant, she did not succeed. The emotional damage from the criminal actions of the defendants seeped through her and haunted her. On the night of 10/27/96, when she was about 16 years old, she decided to end her life. Before she attempted suicide, that luckily was not successful, she wrote in her diary a chapter of farewell from her family, and sort of a will. From her words, which make the reader shudder, it can be seen and understood how much damage the deeds of the defendant did to her:
"I stayed until the last night was swollen by the night. There is no symbolism in it. My colors faded and did not get swollen, but it doesn't matter. I am calm now, I have no anger at anyone and I hope that I brought the best and as much joy as possible to whoever I could. I am saying goodbye and asking that you not be angry. It is no one's fault. I have never seen myself being an adult, and now I know why. I will never be one. In spite of what I wrote earlier, I am not departing in sadness and pain, this is not a moment's decision, but something that has been in my for years and today reached it's end. I feel that I have finished my job and that there is not reason to linger in this borrowed time, happy I will never be. I am going happy now. I am filled with peace and I am feeling complete with myself. The only thing that I am sad for is that I will not be able to say goodbye to everyone, but I want to say thank you from the bottom of my heart...."
Later on, the complainant bids goodbye to her family members, and in the end, she addresses the defendant:
"And finally, I just wanted to tell my grandfather: I wanted you to know that I forgive you. I don't know, maybe this is just a generous moment before the end, and maybe it is my famous forgiving nature. But I forgive you. I hated you for a long time, I thought of sweet revenge, toyed with ideas about placing complaints and hate letters, but no more. You did something that cannot be forgiven, a terrible, horrible thing. I want you to feel the deep pain of my parting. I want you to feel the deep and painful disgust of your deeds. That you'd ask yourself every morning how could you do what you did, But you are my grandfather, and in spite of it all I love you. Although you do not deserve it, I lighten your punishment and forgive you. Know that I dies with no hostility toward you. Now I will finish the book I am reading and take all the pills I have and some others I will find in the room—Acamol and Aspirins of kind. I am not sure where, but it will be tonight."
In the end, the complainant writes things (as she saw them then):
"Farewell to you, I lived with you like a wild flower,
I took the pills and it was so easy and simple.
Now I am going to sleep, good night world."
From the multitude of problems that accompanied the complainant through her childhood, it can be assumed that not only the deeds of the grandfather and his hurting of her were damaging. Her mother's double divorce, her violent stepfather, and the many hardships of the family contributed their own damage. However, it is especially in such a situation that the defendant, who raised the granddaughter as a child and father figure, had to know that he is the man she trusts and therefore that his hurting her and his exploiting her intensify the damage he did to her.
From looking at the multitude of evidence presented to us and from watching the confrontation video, a little of the terrible fracture in the complainant's soul can be felt, and one can try to estimate the intensity of damage that the defendant did to her in his deeds. We are talking about a youngster whose world was in ruins so much that she was ready to end her life. For all these years she needed various psychological treatments, and it seems she'll need support in the future as well. We are talking, and this is without exaggerating, of a soul that was murdered in a body that goes on living.
3. The defendant's character:
The defendant in this case is a special character. We are talking about a father of seven girls from his first marriage, and a grandfather to grandchildren, one of whom is the complainant. A learned man, with a BA and MA in law, degrees in literature, mathematics and philosophy. A second degree in bible, and a Ph.D. in Theology. In the past he was a known lawyer. He was a teacher and educator. In his past he served—before the state was established—in the Lechi, and in the army, in many public roles, some undercover. And more and more. No wonder that the learned defense attorney described him as "Ish Eshkolot."
According to him, the defendant was a victim of prolonged sexual abuse as a child. He claims that he did not know the impacts of his childhood events until, of his own will, and after he ceased contact with the complainant, he went for lengthy psychological counseling during which various events from his childhood were uncovered, including felonies that happened to him. And that maybe created what he calls "his soul corruption", and resulted in his hurting the complainant whom he defined in the confrontational video "a victim of a corrupted man who loved her."
From the facts as they were presented to us, it is seen that during the time the defendant sexually hurt his minor granddaughter, he developed a relationship with a young woman who was several years before that his student in school where he had taught. Later on, he separated from his wife and the mother of his daughters, and married that woman who testified before us. From his second marriage he has two children: A girl about 12 years of age and a boy whose 4th birthday will be celebrated in a few days. During his second marriage he underwent the lengthy psychological treatment, the same one he says uncovered the hurts he claims to have absorbed in his childhood.
The defendant does not try to reduce the severity of his deeds. According to him, he has no explanation to the hurt he inflicted in her granddaughter. He defines himself as having a corrupted soul and refers his deeds to the hurts he had as a child and which corrupted his soul. He does not wish this to be seen as justification, but an explanation. Otherwise, he says, he cannot explain how he—a man of law and books—who knew the severe taboos in the bible and in the religion and the law, would do the things he did.
To the defendant's credit, it should be noted that even at the opening of the confrontation with the complainant and before the accusation was presented to court, the defendant told the complainant that he will not make her be interrogated in court. His specific declaration that he believes her and will not put her through a cross-examination, stands to his credit when we come to judge him.
At the same time, we would like to press that while watching the video, we could not avoid feeling that even at this stage the defendant is trying, in a manipulative, complex way, through use of ambiguous language, to have his granddaughter, the complainant, to change the way she relates to him. It seems that the defendant is trying, along with taking responsibility for the complainant's loss, to place on her and on society the responsibility for his fall. It seems that he puts himself in the shoes of Jan Batist Klemens, the hero of Alber Kami's book "The Fall", where he desperately calls:
"Oh, young woman, throw yourself into the water again, so that I can have a second chance to save us both."
In fact, the defendant is asking, himself and through his wife who testified before us, that when we come to state his sentence, we think not only of his granddaughter as a victim, but also of him as a victim and of his two children from his second marriage. These children, too, are victims, having their father picked at noon from his family, without any previous planning and no explanation (as far as it such sad circumstances can be explained to children).
4. The court's considerations regarding the severity of punishment:
Sentencing is always hard, and ten times harder this time. As we said, the evidence is complex and we need to judge between options that each come with a heavy price and have painful impacts on the souls connected to the defendant, and who all will be, against their will or fault, victims of his criminal deeds.
In her opening for her statements regarding sentencing the defense attorney attempts to say, without reducing from the severity of the felonies committed by the defendant, that the defendant's deed might be a step less than those of other rapists. As said above, this is not a case of rape in the popular definition of the term, but under the circumstances that are defined in the law as rape. Under these circumstances, it was stated to us, the deeds need to be looked at as less than other rapes and the sentencing needs to be decided upon appropriately.
We think that it in not up to the court to place itself into the gradients of evil and to try and distinguish between degrees of depravity. It is not accidental that the law-maker defined various actions that involve penetration of the genitals as rape, and decided upon punishment that is appropriate for such actions. It is the direction of the law—which leads us as we come to give judgment—that we do not engage with the way and amount of penetration into the body. The punishment decided upon in the law it due to the depth of harm to the soul. And in that case, as is seen in the evidence before us, the severity of the defendant's actions is the maximal known to the law, and that we, too, who judge in similar cases, know.
The law-maker determined that long prison times be given for felonies that like the ones the defendant was convicted of. The ceiling of punishment for such felonies need to be our starting point, which we need to keep in front of us when we come to place our judgment. The law-maker determined a deterrent punishment so that criminals—either actual or potential—would see and beware. When we come to place our judgment we need to bring into manifestation the meaning of the law and it's goal in a way that the law will not be an empty slogan. This is especially true when we have in front of us a defendant that made serial offenses and who can never make up the accumulated punishment for all his actions, even if he was born today. What we are talking about it an accumulated jail time that exceeds the life expectancy of a man. Under these circumstances, and in order to clarify society's repulse of his actions, and to deter, it is the court's duty to judge in the severity determined by law. See:
(a reference to precedent case)
Beyond that, it is the duty of this court to protect the victims of the felony. Just as the defendant has the right that his rehabilitation and the needs of his family be taken into account as part of the reasons for the sentencing, so do the victims—those actually harmed by the defendant's actions—have the right for the court's protection. The more severe the actions of a defendant, the greater the need to put the emphasis on protecting the victims. See:
(a reference to precedent case), page 8-9, where the following was said, and that guides us when we come to place the judgment:
"When it comes to the public's interest, it is not enough to impress into the law standards of behaviors. The public needs to see them manifested at all times and to see them as an inseparable part of accepted social standards that protect the body, property, and dignity of each one in it. A forgiving punishment in cases of severe criminal behavior might result in a collapse of moral defenses and might be interpreted as compromising values and norms. It can damage the trust in the reality of the threat of punishment being manifested, and give a negative message to potential criminals predisposed to do similar felonies. In the same way that giving a real punishment is a sharp social manifestation of the condemnation that severe actions deserve, adopting a forgiving strategy would weaken the acknowledgment of the wrongness of the behavior."
But punishment is not only a matter of arithmetic. We are not dealing with the multiplication of evil, as it was detailed in the segments of the accusation, in years in prison mandated by the law, and then getting at a mathematical sum. We have to examine the punishment with its relative weight while also paying attention to the circumstances in each case and with each defendant.
In order employ the direction of the punishment law to the matter of the appropriate punishment, one needs to examine it in light of the legal directions of a constitutional law: man's dignity and freedom. The constitutional law declares guidelines that lead us in the process of manifesting the directions of the punishment law and determining the appropriate amount of punishment. The relevant directions for our matter are in the following segments:
(4) Protection of life, body, and dignity—Every person is entitled for protection of his life, his body, and his dignity.
(5) Personal freedom—One does not take away or limit the freedom of a person through imprisonment, lock-up, extraditing, or any other way.
(8) Damaging rights—One does not harm the basic rights in the constitutional law unless with a law that is appropriate to the values of the state of Israel, and that is meant for a good cause and in an extent that does not exceed what is needed or is according to the law and the power clearly invested in that law.
The constitutional law declares that the yardstick for punishment must balance the two that sometimes clash. On the one side, the duty in segment 4 is to protect society from the criminal. On the other hand, there is a rule about not limiting a person's freedom. It is understood that punishments, and especially punishments that include prison time, damages the basic right in segment 5. Therefore, the law-maker ordered that taking away the right for freedom—which is the criminal's right as well—will be done to manifest the legal duty in segment 4 of the constitutional law, to protect victims from the bad harm of the criminal. And would be done with attention to the direction in segment 8. That is, "to an extent that does not exceed what is needed."
Employing the fundamentals of the constitutional law onto the judgment calls for attention in sentencing, among other things, to the personal danger of each criminal. The amount of punishments needs to guarantee that the criminal will not harm others and will not offend again. When we come to judging the sentencing, we are not acting as the victims' messengers of revenge at the defendant. We judge the sentencing in a way that will guarantee, as much as it is possible—that the defendant will not be able to harm again. There are times when the personal details of a defendant will call for less punishment to reach that goal, and there are times when the personal details of a defendant make it necessary to sentence a longer imprisonment period.
This is especially true for sexual offenses. It these offenses the matter of age is a significant detail when we come to determine how dangerous the defendant is and how much to keep him away from society. Accordingly, we will not avoid making a difference between punishing a young man, who might repeat his offenses, and punishing an elderly man, whose chances of continuing his criminal deeds after completing the allotted jail time, are slight.
We reason that the duty of the law calls for a deterring punishment that sends an equivocal message: Whoever murders the souls of his children and/or grandchildren and does sexual offenses in them, be his social status as high as it might, one will be their judgment—be taken away from society and lengthy prison time. But the duration of the jail time will be derived also from the life expectancy of each defendant, and even more so, from their dangerousness expectancy.
Accordingly, and if a young criminal will come in front of us, we reason that under the right circumstances, and especially in cases like the one before us now, one should not keep from giving a long jail time, even longer than what is given to those with life-sentences. (See a reference to a file from 11/26/01). However, when in front of us is an elderly man of about 70 years, we surmise that we can accomplish the goal of law and the purpose of the punishment also by sentencing for jail time that is mathematically milder, but that for this defendant means, actually, a life sentence.
In summary, and when we come to sentence this defendant, we believe that he should be given a long prison time. This sentence will clarify that the policy for punishment is clear and consistent—removing rapists, especially those who hurt their children and grandchildren, from society. At the same time, the amount of the sentencing, and for this matter, the length of jail time, will be examined carefully so that it does not exceed what is needed. When the defendant is elderly, this amount is less than what he would be sentenced for had he been younger, since we reason that by the time he completes his jail time this defendant will not be able to repeat his actions.
Additionally, and against the severity of his actions, we suppose that two important factors need to be brought into the equation in regards to lightening the defendant's sentence. The first factor is his immediate admittance of the felonies applied to him, which beyond the legal meaning of saving a lengthy process was deeply significant for his granddaughter, the complainant. The other factor is the fact that the events that are the subject of this law suit happened over ten years ago. In the time since then, the defendant voluntarily went to psychological treatment and this after he realized that his deviation calls for appropriate treatment. Granted, this does not reduce the severity of the things he did, but we believe that a sex offender who acknowledges his deviation and seeks appropriate treatment, without any connection to a criminal process and when he has no threat of investigation or trial, needs to be given credit for.
We cannot ignore the request of the defendant and his wife, and to bring into our considerations the defendant's small children. Our heart goes out to his young daughter, who is yearning for his coming home, and to his son, who asked that his dad come to his preschool for his birthday, which falls soon. We are aware of the disaster that came onto these children, whose father was arrested and kept away from the family unit, without any warning. Truly, reality had made these children, too, victims of their father's criminal behavior, because of the things he did in his granddaughter from his first marriage and before these children even came to the world. We know that in this serious case we cannot sentence the defendant to a punishment that will reduce their pain even in a little bit. Our hope is that when it is time they will understand (even if not agree) that against us stood the duty to protect the dignity, freedom, and safety of every child and grandchild against harm and torment by a parent or grandparent or stranger.
5. Compensating the complainant.
The prosecution asks to require the defendant to compensate the complainant. The defense claims that the defendant himself did not negate the idea but claimed that the defendant gave all his assets to his daughters from his first wife and is today without any property. And that he especially would not be able to compensate the complainant if he is given a long jail sentence.
We are aware of the practical hardship of a prisoner to compensate the victims of his crime. However, the policy of appropriate punishment must establish yardsticks that would deter any criminal. One of which is the knowledge that the person who harms will have to compensate the victim for the damage he did.
In the case in front of us, no monetary compensation will even compensate for the damages incurred. At the same time, we believe that it is appropriate to judge in this procedure monetary compensation to the complainant that will take into account requiring the defendant to participate in the immediate costs of repairing the damage done. The complainant had needed years of psychological treatments and will need them in the future. It would be only right if from already at this phase we require the defendant to participate in these costs.
In is clear that in ruling for penalty we are not presuming to rule a compensation that reflects the magnitude of the damages. The complainant holds the right to pursue this matter in a civil suit in the appropriate court.
6. Summary of sentencing-
In summary, and after we weighed the multitude of factors above, we decided to sentence the defendant in the following way:
We sentence the defendant to 19 years imprisonment, our of which 16 are for active jail time, and the rest, 3 years probation. The probation being that the defendant will not commit any sexual offense within three years of his release from jail, including during vacations, if he gets one.
The counting of jail time is from 3/14/01, the date when the defendant was arrested.
The secretary will prepare a prison order accordingly.
We have to point out that if it wasn't for the defendant's old age and his guilty plea; and the fact that at least as this stage he decided to make things easier for his granddaughter and not put her on the stand, and not cause her further suffering—we wouldn't have hesitated from giving him a more severe sentence. And even then we wouldn't have assumed that it would express even a little of the suffering he caused her.
Additionally, we require the defendant to pay the complainant a compensation that will be a symbolic compensation only, in the sum of 50,000 shekels. This sum will carry interest and inflation rates according to the law from today and until the time it is actually paid.
Due to the nature of this procedure, the discussion in this case was done behind closed doors. However, now that the judgment was made, we believe that indeed the goal of this sentencing is to deter others so that they see and beware. Accordingly, we allow publication of this judgment.
If it were possible, we would have allowed the publication of the defendant's name and this is so that beyond the jail time we sentenced him for, his deeds would be public knowledge so that the sigh of Cain would be branded on his forehead. However, exposing his name would necessarily mean that the identity of his granddaughter, and would add onto the already great harm for his young children. Therefore, and to protect the complainant and the rest of his family, it is forbidden to publish any identifying details of the defendant and the family members.
At the end of this painful procedure, we want to address the complainant, the defendant's granddaughter. We do not presume with this punishment or any other punishment to heal the wound that the defendant did to your soul. It is not always possible to mend a wrong that was done by one man by the deeds of another man. Our hope is that the courage you had to bring this affair in front of the court and the deterring punishment, would save a similar fate, and even if for one girl or boy, and that this would be your comfort.
It was explained to the defendant that he has the right to appeal to the supreme court within 45 days from today.
It was given today, the twenty-first of Kislev, December 6th 2001, in the presence of the defendant, the defense attorney, and the representative of the prosecution.
Authorized for public from 12/6/01.
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