The Jerusalem District Court yesterday upheld former minister Yitzhak Mordechai's conviction on two counts of indecent assault, but accepted his appeal against his conviction on a third count. Because of the partial acquittal, the court also rejected the prosecution's appeal against the leniency of the former minister's 18-month suspended sentence.
Mordechai, dissatisfied with his partial victory, pledged upon leaving the courtroom to carry his appeal to the Supreme Court. "I will do everything in my power to prove my innocence at the highest levels," he said.
In contrast, prosecutor Eli Abarbanel said he was satisfied with his loss, as the district court's verdict had not been "significantly" different from the ruling of the lower court.
The Jerusalem Magistrate's Court had convicted Mordechai of indecent assault against two women on three different occasions: Two occasions in 1992, when Mordechai was head of the Israel Defense Forces' Northern Command, against a female officer who served under him; and one occasion in 1996, while Mordechai was a Likud MK and defense minister, against an activist from his party.
In the first two cases, the lower court found that Mordechai had used force against the victim, and this became the main focus of the appeal - because if he did not use force, he was guilty of a misdemeanor rather than a felony, and the five-year statute of limitations on a misdemeanor had already run out by the time his trial began last year. He would therefore have to be acquitted on these two counts.
In a split decision, the district court decided that Mordechai had indeed used force in one incident. In this incident, Mordechai lured the officer to his Netanya apartment on a false pretext, and as she waited for him on the sofa, he emerged from the shower, wearing nothing but a towel, lay down on top of her and tried to undress her. He also kissed her and rubbed his penis against her groin before she managed to flee.
Judges David Cheshin and Yehudit Tzur, with Vardi Zeiler dissenting, agreed with the lower court that lying down on top of a woman to prevent her from fleeing constituted the use of force.
But in the other incident, Cheshin and Zeiler, with Tzur dissenting, accepted Mordechai's appeal. In this case, the lower court found that on the way back to base from a restaurant late at night, Mordechai had stopped his car in a deserted area, leaned over the officer, kissed her and tried to unbutton her blouse. When she refused to acquiesce, he squeezed her cheeks tightly to force her to open her mouth, and when she still refused, he abandoned her to walk back alone to the base.
Zeiler and Cheshin, however, ruled that the officer's memory of this incident was cloudy, and it was impossible therefore to conclude definitively that Mordechai had squeezed her cheeks to force her to open her mouth.
In both cases, Zeiler argued that the force Mordechai had applied was too minor to constitute "coercive force," which is the only type that justifies conviction on a charge of indecent assault involving the use of force.
Tzur disagreed, arguing that "the level of force needed for an indecent act is not necessarily high." However, she added, Mordechai's actions were far from borderline: In both incidents, he used "significant coercive force."
All three judges rejected Mordechai's appeal in the case of the Likud activist.
However, they split again over another key defense argument - the claim that police did not properly document their conversations with the officer, and that prosecutors did not inform defense attorneys of the content of their talks with the woman.
Cheshin and Zeiler agreed with the defense on this, rejecting the prosecution's argument that some of the conversations were irrelevant to the investigation, and therefore did not need to be documented or handed over to the defense. Tzur, however, found no significant flaw in the behavior of the police and prosecution: Though the conversations should have been documented, she said, this lapse in no way impaired the officer's credibility.
Finally, in line with their differences of opinion on the conviction, the judges also disagreed about the sentence. Cheshin and Zeiler upheld the lower court's decision, but Tzur argued that Mordechai should be sentenced to six months of community service, to send a message about the type of behavior expected from senior officers. "We send our children to the army, and we must ensure that the IDF maintains appropriate norms of behavior, so that the children will not be abandoned," she wrote. A suspended sentence, she added, shows that "the system does not relate to serious sexual offenses with the appropriate severity."
Should Mordechai appeal to the Supreme Court, the latter could opt not to hear the case, as the law guarantees a defendant only one appeal. But the Supreme Court often does hear cases in which the first appellate court was split on an important legal issue; and in this case, the district court was split on two such issues: The question of what constitutes the use of force in a sex crime, and whether police and prosecutors are required to document all conversations with a witness, even if they appear unrelated to the investigation.