A man who sent a picture of a penis to someone he believed to be a 13-year-old girl was acquitted of attempted indecent assault because the image was not of his penis. Despite this, Judge Itai Hermelin convicted him of attempted sexual harassment.
According to the indictment, a police officer acted as an agent on the Internet in an attempt to locate pedophiles. The policeman enters the lobby of a website called Total Chat, using the alias "Jasmine 13." When he entered the site, the policeman was registered as an 18-year-old girl, since this is the minimum age that can be entered at the entrance. The defendant, who was 22 years old at the time and lived in central Israel, accessed the site under the pseudonym PORF, describing himself as a 22-year-old man from central Israel.
Police arrest suspects for distributing nude photos and videos (archive) // Police Spokesperson's Office
About twenty minutes after the policeman logged into the site as "Jasmine 13," the defendant contacted Jasmine 13 and a chat conversation of about <> messages took place between them. Towards the end of the correspondence, he asked her for her phone number in order to continue the conversation on WhatsApp. As soon as the chat on the website ended, the defendant made contact on WhatsApp and a chat conversation took place between them with dozens of additional messages.
In addition to the fact that the name of the profile that includes the number 13 appears next to each of the dozens of messages sent by Jasmine 13 in correspondence on the website, throughout the correspondence she "wrote" to the defendant five times explicitly that she was 13 years old and twice even mentioned that she was a seventh grade student. Almost ten times she "wrote" that "she" was "small." About 30 times, she mentioned her mother as someone who "wouldn't let her" and was afraid she would be "caught."
Police Cyber Unit. The subjects have no connection to the article (archive), photo: Police Spokesperson's Office
The defendant, who consulted with defense attorneys Shai Roda and Yaron Forer even before his interrogation, adhered to a consistent version during the interrogation stage and at trial. According to him, on the Total Chat website, people play role-playing games, "fantasies" as he puts it - "like reading a book", and according to him, in real time he was completely convinced that he was corresponding with an adult. Attorneys Rohde and Forer added that the photo sent by his client was not of his penis, but rather he used a database of photographs in his possession. He said he himself did not want to see a picture of a 13-year-old and asked for one as part of doing "all the actions that fit the character."
Judge Harmelin acquitted the defendant of attempted indecent assault and noted: "Since it has not been proven that the photo sent is of the defendant's penis, and since this was heterosexual sexual harassment, the defendant's claim that sending a picture of the erect male penis was done in order to arouse the person to whom the image was sent and in the faint hope of receiving a picture from the other side cannot be ruled out." However, the judge convicted him of attempted sexual harassment.
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