Supreme Court President Miriam Naor issued a rare public response Thursday to public criticism of a lower court judge who imposed an unusually lenient rape sentence. Last month, a bench headed by Tel Aviv District Court Judge Zion Kapah sentenced Yaniv Nahman to six months of community service after convicting him in a plea bargain of one count of rape and one count of forcible sexual assault.
Since then, “The judge has been smeared on the Internet and in print, including calls to fire members of the bench because of the sentence and the use of insulting terms I won’t repeat here,” Naor said at a swearing-in ceremony for new judges in Jerusalem. She stressed that she was expressing no opinion on the propriety of the sentence, since the Supreme Court might ultimately have to rule on it if the prosecution appeals.
“But I do want to use this opportunity to object vehemently to ad hominem smears against any judge in Israel, and to calls for firing a judge because of a sentence he handed down. In Israel, we don’t dismiss a judge because of a judicial decision he made, even if it is found to be mistaken.”
Naor said she had no objection to substantive criticism of Kapah’s reasoning, but “I can’t accept allegations made without reading the ruling and its reasoning and without addressing them.” In particular, she objected to several articles that claimed that Nahman will spend no time in prison, when he actually spent six months in jail during the legal proceedings — a fact that Kapah took into account in his sentencing.
“It’s obviously possible to argue that half a year in jail ... followed by community service isn’t enough,” she said. “But an article claiming that no jail time was imposed doesn’t reflect the facts.”
She also blasted critics who accused the lower court of ignoring charges that were ultimately dropped from the plea bargain. “A judge can’t impose a sentence for a crime on which there was no conviction; that’s obvious,” she said. “It’s unacceptable to take things out of context, and it’s certainly unacceptable to use crude language that isn’t fit to print. This is not appropriate criticism.”
Over the past few months, Naor and one of her Supreme Court colleagues, Justice Uzi Vogelman, have themselves received threats over the Internet for rulings on the demolition of terrorists’ homes. She also addressed this issue in her remarks.
“Incitement, threats and unbridled verbal attacks aren’t within the bounds of appropriate criticism and could even constitute a criminal offense,” she said. “Unfortunately, today’s public discourse frequently includes the violent language of threats, smears and incitement. We are encountering a new level of ad hominem smears against judges, and even threats against judges and their families.”
While judges and courts are well-guarded, she added, the guards “unfortunately have a lot of work to do.”
Nahman was charged initially with four counts of rape, one count of attempted rape and two counts of forcible sexual assault against three different women, as well as dozens of counts of violation of privacy and sexual harassment against two other women. But one of the alleged rape victims refused to testify in court and a second’s testimony proved problematic, so the prosecution ultimately signed a pared-down plea bargain that included only one count of rape and forcible sexual assault against a single woman.
According to the revised indictment, Nahman and the complainant had conducted a consensual sexual relationship for several months. On one occasion, after they both drank to excess and fell asleep naked on the bed, he woke up and inserted a finger into her vagina without her consent, refusing to stop even after she asked him to do so. That incident occurred six years ago. The plea bargain included no agreement on the sentence, but the prosecution sought at least a four-year prison term. Judges Kapah, Miriam Diskin and Raanan Ben-Yosef, however, sentenced Nahman only to six months of community service, 30,000 shekels ($7,600) in compensation to the victim and a 10,000 shekel fine.
The judges said they decided on this lenient sentence in part because during the legal proceedings, Nahman spent six months in jail, in conditions much worse than those in a prison for convicts, and a long time under house arrest thereafter. Moreover, they said, he admitted his actions and thereby spared the complainant from having to testify in court, he is in therapy and he “expressed a genuine and sincere desire to compensate the complainant [financially] for the harm she suffered.”
They also noted that Nahman has not committed similar offenses in the six years since.
Finally, they said, the police’s improper conduct during the case justified leniency. The police repeatedly leaked details about the case, including Nahman’s name and picture, and portrayed him as a serial rapist, thereby “causing devastating and unnecessary damage to his reputation, for a length of time and to a degree that it’s doubtful he can ever recover.” The discrepancy between the offenses described in the police leaks and the eventual conviction “is vast and significant, and under the circumstances, this constitutes a weighty factor in the sentencing considerations,” they wrote.
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