Hon. Judge Hanan Ephrati in C 1152/08 State v. Haim Nissim raised a few legal issues which weren’t even mentioned in the 3 page decision, not even in the brief opinion [Hebrew] by Adv. Aviv Eylon which was published on Ynet earlier this week.
Haim Nissim was just one more of the victims suspects of Dov Gilhar‘s remake of “To Catch a Predator”, who were arrested, humiliated and afterwards charged by humorous crimes. The “Indecent Act in Public” and “Attempt to sexually harass” were the charges brought against Nissim, who, alledgedly, chatted with Sivanush while masturbating in front of a webcam. The Israeli police thought that they can charge Nissim with at least attempted rape or indecent acts in a minor, however, these were replaced with the minor crime of “Indecent act in Public”.
Nissim asked the court to strike the “indecent act in public” charge, as the act was not done in a public place, but in a chat room (and if this reminds you reminds you the court decision regarding selling Hametz in passover, C 4726/07 State v. Terminal 21, then it’s not a coincedence).
In C 1454/92 State v. Joseph Virtgeim the defendant was acquitted from the same charges as not all of the crime’s elements were me. Virtgeim masturbated in from of his apartment’s window while his neighbor watched from the next building. While the court asserted that this was not made in public, it stated:
For this matter, it is certain that the defendant executed the indecent act in the confinement of his apartment, and his private apartment is certainly not a public place. In this case the prosecution hasn’t proven otherwise. If, however, you’d state that the second alternative of “public” would come into force, then it is required that a “person positioned in a public place would see the act”. In this case, it is quite obvious that the plaintiff standing in her apartment – is not in a public place, anyways the prosecution hasn’t proven otherwise. Even if you’d say that there is no need that the plaintiff would actually be situated in a public place and it is sufficient that a person in a public place may see the act, the prosecution has still not proven that this is actually the case.
In plain English: As long as the spectator is in his own home, and not in a public place, then the indecent act is not in public.This perquisite came following Hon. Judge Bechor’s ruling in CA 383/80 Simon Palker v. State where the three elements of Indecent acts in Public were asserted (See also: C (TA) 9163/98 State v. Nemirovsky): (1) The act is committed in a public place OR (2) in a public assembly or rally OR (3) in a place where a person in a public place may see it.
It’s quite obvious that a person in a public place could have browsed Nissim’s chat room (assuming it’s not a private chat, which is not stated in the decision) or from any Internet Cafe, but in order to establish all the elements there are a few more requirements. If we’ll return to Virtgeim, where the defendant’s window was visible from outside, the prosecution still needed to prove that it actually was.
In a sidenote, we need to consider the meaning of a “public place” on the net when our public spaces are being taken from us every day. I mean, if a couple would have had sex in the middle of the desert, which is government property and a public place, no one would have charged them for this crime; even in the public sphere there are discrete places like forests, caves, lakes and isoteric places where a person could expect privacy.
And, Like the real world, there are places on the net which are not “Public”, the fact that a chat room is open to all doesn’t actually mean that they’ll get there and doesn’t mean that the public would watch the chat room. Relative Intimacy is actually the case here, from the numerous chat rooms and the relative anonymity.