On December 19, 2021, Israel’s justice minister, Gideon Saar, approved new regulations that aim to reduce the trauma of complainants providing ex parte testimony in sexual offense trials. (Regulations Amending Procedures (Interrogations of Witnesses) (Obtaining Testimony of a Complainant of a Sexual Offense Not in the Presence of the Defendant) (Amendment), (5782-2021) (2021 Amending Regulations).) The 2021 Amending Regulations amend the original Ex Parte Testimonies Regulations in effect from January 1, 1997.
Background to the New Regulations
The Ex Parte Testimonies Regulations and the 2021 Amending Regulations were based on the Rules of Procedure (Interrogation of Witnesses) (Amendment) Law, 5718-1957. As a rule, witnesses in a trial must testify in the presence of the defendant. A court adjudicating a criminal trial involving an accusation of a sexual offense, however, may allow the hearing of a complainant’s testimony not in the presence of the defendant. The court may do so
either on its own initiative or at the request of a party or the complainant, and if the complainant was a minor, at the request of the minor’s parent, before or during testimony … if it found that giving the testimony in the presence of the defendant is likely to harm the complainant or impair the testimony; testimony not in the presence of a defendant will be given outside the courtroom or in another way that will prevent the witness from seeing the defendant. (Rules of Procedure (Interrogation of Witnesses) (Amendment) Law, 5718-1957 § 2 B (a).)
In practice, ex parte testimonies have usually been heard in the courtroom in the presence of the judge, the victim of the offense, the defense, and the prosecution, while the defendant is in another courtroom. The defendant watches the testimony and can communicate with his attorney during the hearing.
Before the 2021 Amending Regulations entered into force, in order to allow ex parte testimony, the prosecution was required to present written evidence, most often requiring the submission of the opinion of a psychologist, doctor, or social worker, to prove that testifying in the presence of the defendant could cause harm to the complainant. This requirement has reportedly resulted in most of the adult victims testifying in the presence of the defendant.
Under the 2021 Amending Regulations, whether the defendant’s presence will likely harm the complainant or impair the testimony should be determined before the prosecution begins presenting its case in court. Furthermore, a decision to allow ex parte testimony may be based on information provided by the prosecution, on the litigants’ claims, and, only when necessary, on evidence provided in writing.
Impact of the 2021 Amending Regulations on Making Testimony by Complainants Less Traumatic
The 2021 Amending Regulations were adopted in response to a recommendation contained in a December 2019 report by the Inter-Ministerial Committee for Examination of the Treatment of Victims of Sexual Offenses in the Criminal Process, headed by retired Tel Aviv District Court President Deborah Berliner. According to the report’s recommendations, given the special characteristics of testimony by complainants of sexual offenses, it was appropriate to allow complainants to make an oral declaration regarding the difficulties of testifying in the presence of the defendant. Unless the court determined otherwise, there was no need for requiring evidence in writing to support the complainant’s request. (Inter-Ministerial Committee report at 21.)The requirement introduced by the 2021 Amending Regulations that the court make a decision on allowing ex parte testimony before the prosecution starts presenting its case, and not on “the same morning of the testimony,” aims to further decrease “the tension among the complainants, at a time when the procedure is difficult for them anyway.”