Despite the fact that longtime East Bay musician Achi Ben Shalom was acquitted of a lewd acts charge on a minor, the prosecutor said she may still push to register him as a sexual offender and will argue for jail time for his conviction of two lesser crimes.
Ben Shalom, a longtime music teacher at Tehiyah Day School in El Cerrito and a fixture at Bay Area bar- and bat mitzvahs, was acquitted Aug. 22 of committing a lewd and lascivious act on a girl younger than 14.
The Israeli-born musician was found guilty, however, of a count each of battery and assault — meaning that the jury found inappropriate touching of the child did occur, though of a non-sexual nature.
Contra Costa County District Attorney Colleen Gleason expressed disappointment at the verdict, and said she plans to ask for jail time at Ben Shalom’s Sept. 14 sentencing hearing.
She also may attempt to have him registered as a sex offender, citing case law that mandates the perpetrators of non-sexual crimes such as residential burglary to register as sex offenders in outstanding circumstances; in the case she referenced, a man broke into a woman’s home and stole her underwear.
In Ben Shalom’s case, however, the jury specifically declined to convict him on sexual counts.
“She may try to have him registered as a sexual offender, but that’s not appropriate. That’s not what he was convicted of,” said Harold Rosenthal, Ben Shalom’s attorney.
Gleason had attempted to have Ben Shalom remanded into custody at the end of his trial in Martinez — a request denied by Contra Costa Superior Court Judge Leslie Landau.
Rosenthal said first-time offenders charged with assault or battery rarely get jail time, though the maximum sentence is up to a year for each count. Gleason admitted that jail time for offenses such as Ben Shalom’s would be a rarity.
Ben Shalom was arrested in November of last year after a former student, now 11, charged that he touched her inappropriately on five separate occasions in his Tehiyah classroom starting Oct. 11 of last year.
Ben Shalom does not deny touching her lower abdomen on one occasion — he testified he was applying a massage technique that he used on his own two children to relieve a stomachache.
Gleason said the Internet browser history on Ben Shalom’s work computer revealed that, following one of the alleged sessions, he visited a pornography Web site and read a story about two young teenagers having sex. Though the site was legal and in no way “child pornography,” Gleason claimed the timing of the Web visit was significant.
“They tried to smear him on that since day one,” Rosenthal said, “and the verdict clearly indicates the jury rejected this.”
Ben Shalom doesn’t deny visiting the Web site, but Rosenthal claims the teacher did so several hours after the student left his classroom, and, what’s more, spent only 20 seconds or so on the site.
And, in what Rosenthal believes was one of the keys to the acquittal, on one occasion when the accuser claims she was with Ben Shalom he was actually in Washington, D.C., on a school trip.
“I definitely feel very relieved at the situation,” Ben Shalom told j. after the verdict was reached. “It could have been much worse, of course.
“I am trying to go back to my life.”
Just what that life will be is yet to be determined. Ben Shalom acknowledged that he won’t even ask for his old job back at Tehiyah. And, though he was cleared of any sexually related wrongdoing, the stain of the accusation doesn’t figure to recede anytime soon.
When asked if Ben Shalom could reintegrate himself into the East Bay’s tight-knit Jewish community, Rosenthal replied, “I don’t think it’s possible, quite bluntly.
“I think the stigma of all this will follow him around to some degree. That’s a tragedy, but that’s what happens.”
Ben Shalom does not currently have an income, and said that he doesn’t know what he will do next for work.
“I am worried in finding a job, especially with all the things that went on the Internet,” said the El Cerrito resident.
“I don’t plan to move away or anything. My option is to go on with my life as much as I can.”