The Supreme Court on Monday sent back for renewed review the fight over whether to permit publication of the name of the man suspected in the rape complaint filed by singer and October 7 survivor Shaylee Atary, ruling that the lower court had erred in treating a psychiatric opinion as the only acceptable way to substantiate claims that publication could lead the suspect to take his own life.
In a decision by Justice Alex Stein, the court partially accepted the suspect’s appeal, canceled the Tel Aviv District Court ruling that had allowed publication of his name, and also set aside the earlier Magistrate’s Court decision that had barred it, ordering that the matter be reheard from the beginning in the lower court. Until a new decision is issued, the suspect’s name remains under a gag order.
The case centers on a clause that allows a court to prohibit publication of a suspect’s name before indictment if publication is liable to cause “serious harm” and if preventing that harm outweighs the public interest in disclosure.
In this case, the alleged serious harm raised by the suspect was the possibility that public identification could trigger suicide. Stein made clear that such a scenario, if proven, can qualify as serious harm, but stressed that the burden remains on the suspect to prove that the risk is real and concrete rather than speculative.
At the heart of the appeal was the District Court’s conclusion that only a psychiatrist’s opinion could support such a claim. Stein rejected that approach, ruling that a clinical psychologist or another qualified therapist, including a social worker with appropriate training and experience, may also provide admissible expert evidence on suicidality.
He added that while a properly prepared expert opinion is generally preferable, courts are not categorically barred from considering other forms of evidence as well, including treatment records, institutional records, testimony, or letters from treating professionals, with the weight of each piece of evidence to be determined by the trial court.
Still, Stein did not determine that the suspect had actually proven such a risk. Instead, he found that the legal and evidentiary framework had not been sufficiently clarified or fully exhausted in the proceedings below, making a rehearing necessary.
As part of that rehearing, he said the suspect may be required to submit to examination by an independent expert or by an expert for the opposing parties, and that refusal to do so could undermine the evidentiary basis for his request to keep his name secret.
The push of public interest in sexual offense cases
The ruling also gave unusual emphasis to the competing public interest in publication in sexual offense cases. Stein wrote that naming a suspect can encourage additional complainants to come forward, serve the principle of open justice and the public’s right to know, and can help shift shame and blame away from victims and onto the suspect – a point he described as significant for many victims’ healing process.
The proceedings began after Atary publicly exposed both her identity and the severe sexual assault she says she suffered, and then, together with the Association of Rape Crisis Centers in Israel, sought to lift the publication ban shielding the suspect’s identity.
The Magistrate’s Court denied that request in February out of concern over possible self-harm by the suspect, while the District Court later reversed that decision and allowed publication. Monday’s ruling wipes out both decisions and sends the case back to the Magistrate’s Court for a do-over under the Supreme Court’s clarified evidentiary rules.
Atary, a singer and creator, survived the Hamas massacre at Kibbutz Kfar Aza on October 7, 2023, escaping with her infant daughter while her husband, filmmaker Yahav Wiener, was killed trying to hold off the attackers. In recent months, she has also emerged as a prominent public voice in the fight to loosen gag orders in sexual assault cases so that additional complainants, if any, can come forward.
Following the ruling, Orit Sulitzeanu, CEO of the Association of Rape Crisis Centers in Israel, harshly criticized the outcome.
“The court’s decision once again places the interests of the suspect above those of the victims,” she said. “The decision is disappointing and frustrating, particularly in light of the fact that additional testimonies against the suspect are already known, and exposing his name was intended to greatly ease the burden on the complainant, but also to allow others to make their voices heard.
“The Supreme Court held that the evidence brought by the suspect is not sufficient on its own, but unfortunately sent Shaylee back to continue exhausting legal proceedings, and does not allow her and the other victims to continue with their lives. The harm caused to them is also very grave, unreasonable, and unacceptable. In light of the suspect’s manipulative conduct in the past, we fear he will continue dragging out proceedings, causing Shaylee further harm.”