Thursday, October 27, 2016

The stench of corruption keeps growing: ‘Bill Clinton, Inc.’ Memo Reveals Tangled Business, Charitable Ties

A 2011 memo made public Wednesday by Wikileaks revealed new details of how former President Bill Clinton made tens of millions of dollars for himself and his wife, then Secretary of State Hillary Clinton, through an opaque, ethically messy amalgam of philanthropic, business and personal activities.

The memo was written by Bill Clinton’s longtime aide, Doug Band, and is among tens of thousands of emails apparently stolen from Hillary Clinton’s campaign chief, John Podesta, in what U.S. officials believe is part of a massive Russian-backed attempt to disrupt the U.S. election.

The Band memo came in response to an investigation undertaken by a law firm, Simpson Thatcher, into the activities of the Clinton Foundation at the behest of its board. The board was concerned that some of the activities undertaken by Band and others on behalf of the President could threaten the Foundation’s IRS status as a charity, according to Band’s memo. Chelsea Clinton had also reported concerns to Podesta and other Clinton advisors that Band and his recently-launched consulting firm, Teneo, were using her father’s name without his knowledge to contact British lawmakers for clients, including Dow Chemical.

In the 12-page memo, Band describes how he and several colleagues spent much of the years after Bill Clinton’s presidency working to fund the Clinton Foundation, which has raised nearly $2 billion from individuals, corporations and governments for charities focusing on climate change, economic development, health, women and girls issues and other causes. Band claims in the memo that from 2006 to 2011, he and a colleague, Justin Cooper, raised $46 million for the Foundation through the Clinton Global Initiative, an annual networking conference that is one of the Foundation’s big sources of income.

But the Foundation work was just a part of what Bill Clinton did during his wife’s time as a Senator and Secretary of State, and it wasn’t always clear where the former president’s non-profit activities ended and his for-profit ones began. Five months before he wrote the memo, Band joined forces with a recently retired State Department envoy, Declan Kelly, to form Teneo, which Band said provided merchant and investment banking services, corporate restructuring, public relations and communications services and strategic advising services to 20 clients, including Coca-Cola, Dow Chemical, UBS, Barclays and BHP Billiton, among others. Over that period, Band says in the memo, Teneo raised $8 million for the Clinton Foundation.

And Band was also organizing personal income directly for Clinton. Under the heading, “For-Profit Activity of President Clinton (i.e. Bill Clinton, Inc.),” Band wrote, “We have dedicated our selves to helping the President secure and engage in for-profit activities—including speeches, books, and advisory service engagements… In support of the President’s for-profit activity, we also have solicited and obtained, as appropriate, in-kind services for the President and his family—for personal travel, hospitality, vacation and the like. Neither Justin nor I are separately compensated for these activities (e.g., we do not receive a fee for, or percentage of, the more than $50 million in for-profit activity we have personally helped to secure for President Clinton to date or the $66 million in future contracts, should he choose to continue with those engagements).”

Band mentions four such “arrangements” without naming them. Bill Clinton was paid nearly $18 million to be “honorary chancellor” of a for-profit college, Laureate International Universities, according to reports and the family’s tax returns. A Dubai-based firm, GEMS Education, paid Bill Clinton more than $560,000 in 2015, according to the tax returns. Band also lists a variety of speaking fees, previously disclosed by the Clintons, including hundreds of thousands of dollars each from UBS, Ericsson, BHP and Barclays. In 2011 alone, according to the Clinton’s tax returns, Bill Clinton earned $13,454,000 in speaking fees.

No evidence has been found to support allegations of a quid pro quo of official acts by Hillary Clinton as senator or Secretary of State in exchange for the money received by the Clintons or the Clinton Foundation. However the messiness and opacity of the relationship between Clinton’s personal, business and philanthropic undertakings detailed in the memo raises new questions about Bill Clinton’s activity. In the email to which Band’s draft memo was attached, Band tells Podesta he has removed the “lasry section all together.” Marc Lasry is a hedge fund manager and Clinton donor who funded an unsuccessful investment vehicle launched by Chelsea Clinton’s husband Marc Mezvinsky.

Other questions arise in the penultimate paragraph of the memo, entitled “Other Matters.” Without providing details, Band writes that since the end of Bill Clinton’s presidency he and Cooper had served as the primary contact and point of management for President Clinton’s activities, including political, business and Foundation matters, speeches, books, and family/personal needs, including “securing in-kind private airplane travel, in-kind vacation stays, and supporting family business and personal needs.” [...]

Don't suppress the truth of Torah - even regarding your own rebbe or gedolim

Recently a prominent rav told me that it is critically important not only to keep the Torah but also not to be afraid of any man in reporting the truth - and that I should keep up what I am doing

Devarim (1:17) states, you shall not be afraid of the face of man; for the judgment is God’s. Rashi (Devarim 1:17), Lo Saguru - Do not be afraid of any man. Another explanation is one should not hold back your words before any man. The Tosefta (Sanhedrin 1:8), What is the sources that says that if you are sitting before the judges and you know a merit for the poor and and liability for the rich that you can not remain silent? Because the Torah say, You shall not be afraid of the face of man (Devarim 1:14). That means that you should not hold back your words before any man. Sotah (47b), When they who displayed partiality in judgment multiplied, the command you shall not be afraid [of the face of man] became void and you shall not respect [persons in judgment] ceased to be practiced; and people threw off the yoke of heaven and placed upon themselves the yoke of human beings. The Yerushalmi Sanhedrin (1:1), When two litigants come before you – one who is powerful and one who is weak – prior to hearing their claims it is allowed for a judge to say he doesn’t want to deal with the case out of fear that if he finds the strong one guilty it will make the strong one his enemy. However once he has heard their claims it is not allowed to say that he doesn’t want to deal with the case because it says in Devarim (1:17), Do not be afraid of any man and suppress your views against him. Rather the judges need to know who they are judging and before Whom they are judging…

Sifri Devarim (17): Do not be afraid of any man. Perhaps a judge will say that he is afraid that one of the litigants will kill his son or burn down his harvest or destroy his crops – the Torah say, Do not be afraid of any man because judgement belongs to G-d… And that includes one’s own teacher as it states in Tanchumin (Mishpatim) What is the source that says if a student is sitting before his Rebbe and he sees a merit to the poor and an obligation to the rich that he should not be silent? Because it says in the Torah, Do not be afraid of any man.

Avoiding Coke, pastry, candy, pizza, burgers and other things that are primarily for physical pleasures

Chinuch (117):The prohibition of offering up leaven or honey… Now concerning the rejection of honey, we would say to the tender children in order to discipline them, that it is to influence one’s concepts so that a person will minimize his striving after foods that are sweet to his taste, in the way that gluttons and guzzlers are always drawn after everything sweet. Thus let him set his heart only on foods that are beneficial to his body and necessary to his sustenance, and that maintain the health of his limbs. Hence it is fitting for every intelligent human being to set his intention in his food and drink not towards the purpose of the tactile sensations of his throat. If people were but wise they would understand this (Devarim 32:29) – that the entire matter of the tactile sense is shameful for them. Then all the more certainly is it not fitting for them to aim for it and to take pleasure in it, but only what nature makes absolutely necessary. It was some of the men of wisdom who wrote that the tactile sense is something shameful for us (Aristole cited by Rambam in Moreh Nevuchim 2:36).

Rambam (Hilchos De'os 3:2): A person should direct his heart and the totality of his behavior to one goal, becoming aware of God, blessed be He. The [way] he rests, rises, and speaks should all be directed to this end. For example: when involved in business dealings or while working for a wage, he should not think solely of gathering money. Rather, he should do these things, so that he will be able to obtain that which the body needs - food, drink, a home and a wife. Similarly, when he eats, drinks and engages in intimate relations, he should not intend to do these things solely for pleasure to the point where he will eat and drink only that which is sweet to the palate and engage in intercourse for pleasure. Rather, he should take care to eat and drink only in order to be healthy in body and limb. Therefore, he should not eat all that the palate desires like a dog or a donkey. Rather, he should eat what is beneficial for the body, be it bitter or sweet. Conversely, he should not eat what is harmful to the body, even though it is sweet to the palate. For example: a person with a warm constitution should not eat meat or honey, nor drink wine, as Solomon has stated in a parable: The eating of much honey is not good (Proverbs 25:27). One should drink endive juice, even though it it bitter, for then, he will be eating and drinking for medical reasons only, in order to become healthy and be whole - for a man cannot exist without eating and drinking. Similarly, he should not have intercourse except to keep his body healthy and to preserve the [human] race. Therefore, he should not engage in intercourse whenever he feels desire, but when he knows that he requires a seminal emission for medical reasons or in order to preserve the [human] race.

Rambam (Moreh Nevuchim 2:40): In order to be enabled to answer this question, we must examine the merits of the person, obtain an accurate account of his actions, and consider his character. The best test is the rejection, abstention, and contempt of bodily pleasures: for this is the first condition of men, and a fortiori of prophets: they must especially disregard pleasures of the sense of touch, which, according to Aristotle, is a disgrace to us: and, above all, restrain from the pollution of sensual intercourse

Shulchan Aruch (O.C. 231:1): If it is impossible for a person to learn Torah without taking a nap during the day – he should take a nap. Rema: ... The permissibility of taking a nap during the day is only if he doesn't take a long one because it is prohibited to sleep during the day more that more than the sleep of a horse which is 60 breaths. And even a short nap should be minimized because his intent in taking the nape is not for physical pleasure but to strengthen his body to be able to serve G d. In general in partaking of all the pleasures of this world he should not focus on the physical pleasure but rather that it enables him to serve G d as it says (Mishlei 3:6), In all your ways you should know Him.. Our Sages explain this to mean that all your deeds should be for the purpose of serving G-d (leShem Shamayim) – even though activities which are optional (reshus) and not a mitzva. For example eating, drinking, walking, sitting, standing, sexual intercourse, converstaion and all physical needs – they should all be done for the purpose of serving G d or something which will lead to serving G d. Therefore even if a person is thirsty or hungry, if he eats or drinks in order to get pleasure – it is not praiseworthy. He should instead have intent to eat and drink in order to live so that he can serve his Creator. Similarly even to sit in the private meeting of upright men or to stand in the place of the righteous or to follow the advice of fair men – if he does it for his own pleasure and to fulfill his desires and lusts – it is not praiseworthy unless he does these things for the sake of Heaven. The same is true for sleeping. It is obvious that even when a person studies Torah and does mitzvos that he should not be involved in sleeping to give himself pleasure, But even at a time when he is exhausted and needs to sleep in or to rest from his exhaustion – if he sleeps for the sake of pleasure it is not praiseworthy.Rather his intent should be to give rest to his eyes and his body for the sake of his health so that he won't get confused in his Torah studies because of his lack of sleep. And similarly concerning marital relations according to the time and frequency that the Torah teaches – if he is doing it for his own physical pleasure – that is disgusting. Even if his intent is to have children who will serve him or to fill his place – this is not praiseworthy. Rather his intent should be that he wants to have children who will serve G d or to fulfill the mitzva of onah (conjugal rights of his wife) – and he does it in the manner of one who is paying back a debt. It is exactly the same regarding conversation - even in discussing matters of wisdom – his intent needs to be for the sake of serving G d or something which will lead to serving G d. The fundamental principle in this matter is that a person should pay full attention to what he does and carefully evaluate all his deeds objectively. If he sees that something will lead to serving G d he should do it but otherwise he should not do it. One who is guided by this principle will constantly be serving G d.

Wednesday, October 26, 2016

Bereishit - Mistakes are our friends by Allan Katz

Guest post by Allan Katz

R' Shimon ben Pazzi pointed out a contradiction in a verse. The verse says ' And God made 2 great luminaries - lights … and immediately the verse continues ... the greater light and the smaller light. The moon complained to God by saying how can 2 kings wear one crown, how can the sun and the moon rule the skies together. God acknowledges the moon's objection by answering -Go then and diminish yourself. The moon complains – because I made a proper and valid point, must I make myself smaller? God then tries to appease the moon because of its grievance and says that the moon will rule also during the day- we see the moon during the day, the Jewish calendar follows the moon, and great people will compare themselves to the moon. The moon is not appeased and consoled until God says to the children of Israel – on the new moon bring atonement for me for making the moon smaller. Only here with regard to the new moon sin offering, is it emphasized that the sin offering is a sin offering for God. – Hulin 60:b

תלמוד בבלי מסכת חולין דף ס/ב - רבי שמעון בן פזי רמי כתיב ויעש אלהים את שני המאורות הגדולים וכתיב את המאור הגדול ואת המאור הקטן אמרה ירח לפני הקב"ה רבש"ע אפשר לשני מלכים שישתמשו בכתר אחד אמר לה לכי ומעטי את עצמך אמרה לפניו רבש"ע הואיל ואמרתי לפניך דבר הגון אמעיט את עצמי אמר לה לכי ומשול ביום ובלילה אמרה ליה ..... זיל לימנו בך ישראל ימים ושנים ........זיל ליקרו צדיקי בשמיך ......חזייה דלא קא מיתבא דעתה אמר הקב"ה הביאו כפרה עלי שמיעטתי את הירח והיינו דאמר ר"ש בן לקיש מה נשתנה שעיר של ראש חדש שנאמר בו לה' אמר הקב"ה שעיר זה יהא פרה על שמיעטתי את

The Talmud here is problematic because we cannot associate with God mistakes, admitting mistakes and a need for atonement. The commentators talk about not taking this piece literally and that we are talking about a parable, where the moon is a metaphor for the people of Israel. One commentary suggests we bring atonement before God and not for God. Another commentary suggests that there are important lessons to be learned from this text. God is compromising Himself in order to teach us- דרך ארץ derech e'retz – the way of the world, that when a master needs to punish or discipline a servant, he should try and compensate and appease the servant. This is an important lesson even for parents who try to parent in a collaborative and ' working with ' way and find mutually satisfying solutions to problems. Sometimes we have to insist on kids doing things our way and thwart their autonomy. We should then try to appease them and compensate for their loss of autonomy in other areas. Before the creation of man, God consulted with the angels about creating man. God did not need to consult the angels. He did so in order to teach the way of the world דרך ארץ, derech e'retz that people with power should consult with their subordinates. Maybe, here God is trying to teach us an important lesson – that making mistakes and admitting to them is part of creation, learning and the growth process. Also we see that Teshuva – the process of repentance whereby we admit mistakes and make amends, was created before the world was created. Mistakes are part of the learning process and arriving at the truth, without them there is no progress. - אין עומדים על דברי תורה עד שנכשלים בהם - we don't become proficient in Torah until we make mistakes. Mistakes indicate that our actions were lacking. They can be lacking because we did something wrong or they can be lacking because they lack a certain quality, energy or engagement etc. In a sense God's actions were lacking when he created a physical universe that could not live up to spiritual ideals and He had to make the moon smaller and that its light would totally disappear at certain times of the month. In an ideal world both the sun and moon could share their crown by focusing on a unity of purpose and serving the ultimate king and ruler God. Then, there would not be a problem of idolatry – sun worship – as the sun alone did not rule the skies. When we have materialism, human fallibility and weakness, jealousy and arrogance, 2 kings cannot share one crown. The Maharal explains that what was lacking in the creation of the moon was not only its lacking in size, but the light from the moon, because of the phases of the moon would eventually disappear towards the beginning of the month. The atonement – kapparah for this lack of light would be the removal of this lack, shortcoming and inadequacy by man bringing the sin offering at the moment when there is no light from the moon. The sin offering does not come as a punishment or a consequence for a mistake in attempt to appease and placate an angry God, but it is a means to focus on our humility and inadequacy like the moon on Rosh Chodesh – the beginning of the month and connect to God. A man who thinks he is a gadol, a great luminary is unable to repent and do teshuva. The word sacrifice in Hebrew is 'korban – קרבן ' becoming closer to God and in this way he brings more spiritual light to the world. The imperfection and compromise in the moon's capacity now became the catalyst for more light and growth and in this way man would begin to remove the lack until in time the lack is removed and the glory of the moon is restored. We pray for this in the Kiddush levanah – sanctification of the moon prayer – ' may it be the will of God to fill the flaw of the moon that there will be no diminution in it. May the light of the moon be like the light of the sun and like the light of the 7 days of creation, as it was before it was diminished as it is said – the 2 great luminaries. '

The Bible has examples of great people who gained credibility when they admitted mistakes and did teshuva – repented – the brothers of Joseph, Yehuda, and David. In a political climate and an educational system where mistakes are punished we need more than these examples. We need God to teach us the way of the world – derech e'retz that not only does admitting mistakes and doing teshuva gives people credibility , but mistakes are part of the learning and creative process. In today's world and punitive environment, we would never have had the opportunity to learn from a king David how to repent and do teshuva and see the courage of Yehuda as he was prepared to expose his vulnerability and admit his mistake. Yehuda was given a leadership role because of this courage. The approach of punishing mistakes rather than encouraging the admitting of mistakes and doing teshuva promotes immoral behavior, lying, cover-ups and hoping that issues will simply die , impacts on the public system, schools and families.

In academic learning we need to go beyond the right answer to a deeper thinking. Jerome Bruner said – Knowing is a process, not a product. Confusion, mistakes and the more sophisticated the mistakes lead us to deeper thinking. Ted Sizer said that good schools promote displays of incompetence in order to help students find their way to competence. The focus should be on the student's thinking on how they got the answer and not the answer itself. Good teachers will challenge students with questions and even mistaken ones. In this respect, God himself did something similar. The Gemorrah Bava Metzia 59a relates a halachic dispute between Rabbi Eliezer and the sages. Rabbi Eliezer calls upon the carob tree, a stream and the walls of the study hall to perform miracles in order to prove that he was right. He then said, ‘If the law is as I say, let it be proved from Heaven,’ whereupon a heavenly voice cried out: ‘Why do you dispute with Rabbi Eliezer, seeing that in all matters the law is as he says!’ But, Rabbi Yehoshua arose and exclaimed: ‘It [the law] is not in heaven’ (Devarim 30:12). What is meant by this? Rabbi Yirmiyahu said: ‘It means that the Torah has already been given at Mount Sinai; we pay no attention to a heavenly voice, because You, God, have long since written in the Torah at Mount Sinai, “One must incline after the majority” (Shemot 23:2)'” “Rabbi Nathan met Eliyahu [the prophet, who is considered to be immortal] and asked him: ‘What did the Holy One, Blessed be He, do at that moment [when Rabbi Yehoshua declared that he would not obey His heavenly voice]?’ He replied, ‘He smiled [with joy], saying, my sons have defeated me; my sons have defeated me'. Students who are afraid of making mistakes are unlikely to ask for help when they need it, unlikely to feel safe enough to take intellectual risks and are unlikely to be intrinsically motivated. For the sake of deeper learning and understanding God deliberately makes a mistake to challenge man's thinking and in a sense admits his mistake by acknowledging Rabbi Yehoshua's thinking.

We need to change our attitude to mistakes and see that mistakes are our friends that give us opportunities for growth, teshuva and arriving at the truth.

Monday, October 24, 2016

Torah Temima pays 2 million dollars to settle with 2 victims of Kolko

A prominent Orthodox Jewish school in Brooklyn agreed to pay an unprecedented $2.1 million to two former students who charged their teacher — accused serial molester Rabbi Joel Kolko — of sexually assaulting them, The Post has learned.

Kolko’s case marks the first time a New York yeshiva has paid off victims of sex abuse, experts said.

“This is unheard of. I am not aware of any other settlements,” said Rabbi Yosef Blau, a spiritual adviser at Yeshiva University in Manhattan and longtime victims advocate.

Secret settlements between Yeshiva Torah Temimah on Ocean Parkway and two boys — 6 years old when molested — were filed in Brooklyn Supreme Court a week ago when the yeshiva failed to make payments.

Lawyers for the two plaintiffs filed a judgment for $1 million — the total the yeshiva still owes both boys for the trauma they suffered.

Both lawsuits alleged the yeshiva and its leader, Rabbi Lipa Margulies, knew for decades that Kolko was molesting students, but chose to keep him on as an elementary teacher and “give him unfettered access to young children.” [...]

In the newly revealed settlements, Torah Temimah in November 2014 paid one ex-student $900,000 and the other $1.35 million. The school admitted no wrongdoing. [...]

Four other ex-students have previously sued Torah Temimah as adults, charging Kolko molested them at ages 11 to 13, but the courts tossed their cases as filed too late. [...]

Sunday, October 23, 2016

Kaminetksy-Greenblatt Heter: The rabbinical leadership is greatly embarrassed and hopes for collective amnesia

Over Yom Tov I have made inquiries about the deafening silence regarding the Kaminetsky-Greenblatt heter for adultery. The consensus seems to be that a horrible error in judgment was made by the Kaminetskys and Rav Greenblatt. But since they refuse to acknowledge it the only alternative is to forget about it and pretend it never happened. 

A relative who learns in Lakewood told me that everyone is aware of the issue - but the majority deliberate avoid learning the details. "If my rabbeim felt there was something I should know about or do they would have told me. Every time someone puts a notice about this on a bulletin board it is immediately torn down.  I don't know the details but don't you think that Rav Shmuel Kaminetsky knows more than you do? How can you question a gadol? Especially when no one else is?" 

My response was that the major poskim of our generation have publicly said there is no heter and that this is clearly not even a machlokes haposkim. It is simply that the rabbonim of our generation do not want to hold Rav Kaminetsky accountable for promoting adultery and hope the issue will be forgotten. They view that preserving Rav Shmuel's status as gadol hador is more important that stopping adultery or the damage done to emunas chachomim.

I heard from other sources that it is not just the avreichim of Lakewood who have their heads stuck in the sand and don't want to know the details - but the gedolim in our generation are doing the same thing.

In short, the Kaminetskys and Rav Greenblatt have played a game of chicken with the rabbis of our generation and the rabbis were the one's who blinked and conceded defeat.  Or put another way, collectively the brilliant dedicated wonderful Torah teachers, role-models and  leaders  of our generation have regressed to the mental status of a baby and think that if they close their eyes and pretend they don't know about adultery the problem will go away. They think that  have succeeded in training their students only to think when given permission. Unfortunately for everyone - there is a significant minority who are well aware of all the facts and this has destroyed their emunas chachomim. 

This is not a machlokess of halacha - it is a monumental example of cowardice and failure of nerve - which I know of no historic precedent. They have covered up their failure by claiming that only gedolim can deal with this issue and at the same time they refuse to deal with it! The damage will be for all future generations who will not recover from this betrayal.

Is there anyone still surprised why our children are going off the derech? Why we have so much bad news? (Hint - it is not because of the Internet nor the bloggers who simply reveal the elementary truth.)

Please show this letter to your rabbis and ask them to defend their inaction in the fact of the perversion of halacha and the promoting of adultery by the gadol hador. If they want documentation tell them it is in the upper right hand corner of my blog. It contains links to all the major documents in this case.

Friday, October 21, 2016

Convicted pedophile: Serving a long jail sentence which will be commuted if he agrees to castration

update: Medical Daily
Castration is not a cure for sexual attraction to children - but it does reduce the sex drive and thus the likelihood of sex abuse. However it doesn't work with everyone and while recidivisim rate is lower in castrated patient - a certain percent (less than 10%) repeat their crimes. It is best combined with psychotherapy. With chemical castration - it works only if the drugs are taken for a lifetime and thus careful monitoring is required.
I was recently asked about the permissibility of a Jewish sex offender being treated with castration. As I have noted there are European countries and American states which give a sex offender the choice of jail or castration. Can he take the castration option to gain his freedom from a long jail sentence? Furthermore if he is castrated - is there a difference between physical or chemical castration?

I was told in the name of Rav Shlomo Zalman Auerbach that sex offenders in Europe were castrated by the Jewish community - though I could not find a discussion in the rabbinic literature. One posek I asked said that if it is demanded by the authorities it is permitted -  but should be done by drugs.

Rav Moshe Feinstein (E.H. III 15): Permits chemical sterilization if there is no direct impact on the reproductive organs themselves.

שו"ת אגרות משה אבן העזר חלק ג סימן טו

בענין זריקת איזה משקה בגוף האיש שעושה שלא יוליד ששה חדשים ואח"כ חוזר כבתחלה אם יש ע"ז איסור סירוס עש"ק ור"ח אלול תשכ"ה. מע"כ ידיד אהובי הרה"ג מהר"ר אפרים גרינבלאט שליט"א.

בדבר ששמעת שהמציאו הרופאים מחדש זריקה בגוף אנשים שמועיל זה לששה חדשים שלא יוליד ואח"כ חוזר לכתחלה שיכול להוליד שדעת כתר"ה שאסור משום שפשוט לך שאסור גם סירוס לזמן, וממילא יש לאסור גם זריקות אלו דהוא סירוס לזמן וכוונת כתר"ה דאף דלא עביד כלום באברי הזרע אסור דהא משקה כוס של עיקרין נמי אסור.

והנה לא ידוע לי מאין פשוט לך שסירוס לזמן נמי הוא בלאו דסירוס דהא לא מצינו בגמ' שאיכא סירוס לזמן, ואדרבה הא מפורש במתני' יבמות דף ע"ט שסריס אדם אין לו רפואה, והוכיח מזה הר"א ממיץ שהביא בנ"י בדף ע"ו שהא דאר"י אמר שמואל שם בניקב ונסתם דכשר לקהל וכן בברייתא שם ניקב פסול מפני שהוא שותת נסתם כשר מפני שהוא מוליד וזהו פסול שחוזר להכשירו, הוא רק לענין הולד שבשעה שהיה הנקב הולד פסול משום שברור שאין הולד ממנו וכשנסתם והוליד כשר, משום דאין לפרש שהוא פסול לקהל כשהיה הנקב דפצוע דכא אין לו רפואה ובהכרח ניקב שמתרפא ע"י סתימה אינו הפצוע דכא שבקרא עיין שם, ופשוט שר"א במתני' שאיירי בחליצה שסובר שלא חולץ ולא חולצין לאשתו בסריס אדם מפני שאין לו רפואה אין כוונתו דוקא על הקרא דפצוע דכא וכרות שפכה שנאמר לענין דפסול לקהל בפרשת תצא אלא הוא גם על הקרא דומעוך וכתות ונתוך /ונתוק/ וכרות שבפרשת אמור שאין להם רפואה ואף ר' יהושע לא פליג בזה, וממילא בקרא דובארצכם לא תעשו שאוסר לסרס הוא רק באופן זה שאין לו רפואה, הרי ראיה להרא"מ שלנקב הגיד שהוא סרוס שיש לו רפואה בסתימה ליתא ע"ז לאו דסירוס, וכ"ש שליכא הלאו בסירוס שא"צ רפואה שיעבור מאליו לאחר זמן להרא"מ.

ורק שיש לדון אליבא דרוב הפוסקים החולקים עליו ופוסלין ניקב הגיד כל זמן שהוא נקוב לקהל אף שאית לו רפואה בסתימה וכן איפסק ברמב"ם פט"ז מאי"ב ה"ה ובטור וש"ע סימן ה' סעיף ד' ויפרשו דר"א שאומר בסריס אדם שלא חולץ ולא חולצין לאשתו איירי ברוב סריסי אדם שאין להם רפואה, אולי אסרי לסרס גם באופן שיש רפואה בסתימה מאחר דהקרא דפצוע דכא איירי לדידהו אף באופן שיש לו רפואה. והנה לכאורה כיון דאיסור סירוס נאמר בקרא דפסולין למזבח, ומשמע מרמב"ם פ"ז מב"מ ה"ח שלא נפסל בניקב למזבח שהרי בהדברים שפסול למזבח בניקב הזכיר בכל אחד, ובאברי הזרע כתב רק נפצע ונידק וניכרת שפסולין ולא כתב גם ניקב, ואולי הוא משום שנקב לא נחשב ניכר אף בגיד, ולכן אף שודאי לא שייך ענין ניכר לאיסור סירוס ומטעם זה אף שלראב"י אינם מומין בביצים ולר' יוסי בנחתך וכרות אינם מומים בביצים כדאיתא בבכורות דף ל"ט משום שלא נחשבו ניכרין, מ"מ ודאי מודו דאיכא גם בביצים איסור סירוס בדברים אלו, וכן בחוטי ביצים שמשמע שאינו מום גם לדינא שאיפסק כר' יהודה שכולן אף בביצים שהרי לא חשיב הרמב"ם לענין מומים שם אלא הגיד והביצים ולא החוטי ביצים וגם כתב שרק י"ב מומים באברי הזרע ואם גם בחוטי ביצים היו מומין הי"ל לומר ט"ז מומין, שהרי חוטי ביצים אינו בכלל ביצים דבט"ז /דבפ' ט"ז/ מאי"ב ה"ג שגם בחוטי ביצים נפסל לקהל, כתב הרמב"ם ובשלשה אברים אפשר שיפסל הזכר בגיד ובביצים ובשבילין שבהן תתבשל ש"ז והן נקראין חוטי ביצים, ומ"מ באיסור סירוס מפורש ברמב"ם פט"ז מאי"ב הי"א שאסור גם בחוטי ביצים, והוא משום דענין לא ניכר לא שייך לענין לאו דסירוס, וא"כ ודאי גם ראב"י ור' יוסי מודים שאיסור סירוס הוא אף בביצים וחוטי ביצים אף שהאיסור נאמר בפ' מומין למזבח שלא נפסלו בחוטי ביצים ואף לראב"י שלא נאמר כלל בביצים מאחר דליכא הטעם שחלוק לענין מומין. מ"מ בניקב הגיד שאיכא טעם שלא לאסור אף בסירוס משום דאית לו רפואה אפשר שכיון שנכתב האיסור בפרשת מומין למזבח אין לאסור בניקב אף שהם משני טעמים דלמזבח הא היה פסול מצד שאית לו רפואה דהא גם מום עובר פסול למזבח ומה שאינו מום וכשר למזבח הוא משום שאינו ניכר, ולענין איסור סירוס אינו כלום זה שאינו ניכר אלא משום שאית לו רפואה שלא נאסר, מ"מ אין לנו לאסור יותר ממה שנוכל למילף מהקרא אף שהם משני טעמים משום דעכ"פ הרי הקרא לא נאמר אלא מה שפסול למזבח ורק שילפינן ממה שנאמר גם מה שדמי להא שנאמר דאין מולידין כמוהו והרי אין למילף ניקב שאית לו רפואה מאלו שנאמר בקרא דאין להם רפואה.

וכן לכאורה משמע מהרמב"ם שנקט במסרס אחר מסרס שלוקה כיצד בא אחד וכרת את הגיד ובא אחר וכרת את הביצים או נתקן ובא אחר וכרת חוטי ביצים וכן נקט כולן בגיד באחד מעך ואחד נתק ואחד כרת ולא נקט גם בא אחד ונקב, שהוא משום דעל נקב ליכא הלאו משום דאית לו רפואה בסתימה. ואף שלא נקט גם בביצים שנקבן ולא מצינו שיש גם בנקיבת ביצים רפואה, אולי הוא איידי דגיד או הרמב"ם ידע דגם בנקיבת ביצים איכא רפואה ע"י סתימה שיפתחו הכיס ויסתמו הנקב שבהביצים ויסתמו פתיחת הכיס ע"י תפירה או איכא רפואה אחרת, שלכן ליכא איסור סירוס בנקב גם בביצים. ויותר משמע זה בטור שהוא לא כתב הלשון אסור להפסיד אברי הזרע כלשון הרמב"ם והש"ע שהיה משמע כל עניני הפסד שאפשר לומר זה גם על עשיית נקב, דהא כתב אסור לפצוע הגיד או הביצים או הגידים התלוין ולא נקט גם ניקב אף שסמוך לעיל מזה איירי בניקב שפוסלו לקהל כל זמן שלא נסתם כהרא"מ שהביא, הרי משמע קצת שלא נאסר בניקב. אך ודאי אינו ראיה גדולה אבל משמעות לסלק הפשיטות שכתב כתר"ה לאיסור ודאי איכא וגם קצת משמעות להתיר. וגם כיון שלהרא"מ ודאי ליכא איסור אין לנו לומר שפליגי עליו במה שלא מצינו כיון דאין הכרח שיהיו תלוין זב"ז אין להרבות מחלוקת.

אך אף אם נימא דבניקב שצריך למעשה רפואה יסברו שפסול לבא בקהל כל זמן שלא נסתם ואיכא גם הלאו דסירוס בכה"ג, מ"מ באם יעבור בלא שום מעשה רפואה במשך זמן, כהא דמצינו בכה"ג בהכהו על ידו וצמתה וסופה לחזור בב"ק דף פ"ה, אולי איתא זה גם באברי הזרע שהכהו על גידו וביציו וצמתו וסופם לחזור במשך זמן ממילא מסתבר שהיה כשר לבא בקהל אף שנעשה המעשה בהאברים, דכיון דיעבור ממילא במשך הזמן אין להחשיב זה כפצוע דכא, דהא בפציעה ובכריתה ליכא ענין זה דיעבור ממילא, ואין שייך לפרש זה בהקרא, דבשלמא הא דניקב שייך לומר שהוא בכלל פציעה וכריתה הנכתב לפסול, אבל הכאה על האברים ויהיו צמותין מזה אינו בכלל לשון הקרא, רק שאולי ניליף מפציעה וכריתה במה מצינו כיון שהטעם הוא משום דאינו מוליד הרי גם כשצמתו אינו מוליד, ולכן שייך למילף רק צמיתה דאין סופה לחזור דאף שגם ניקב הוא בכלל פציעה הרי צריך דוקא למעשה רפואה ואין ללמד גם לסופה לחזור מעצמה במשך הזמן. ונמצא שאין גם לאסור אף לרוב הפוסקים החולקים על הרא"מ כשיעבור מאליו בלא רפואות, אף אם נימא שפליגי בצריך לרפואה שאיכא גם הלאו דסירוס.

ולכן אף אם נסתפק עדיין קצת שמא להחולקים על הרא"מ אסור גם בצמתה באופן שסופה לחזור בלא מעשה רפואה, יש לסמוך עכ"פ בכוס של עיקרין בכה"ג שהוא רק לזמן שיעבור ממילא בלא רפואה שאין לאסור משום דהוא רק מדרבנן שספק להקל, ואף אם נימא שכוס של עיקרין נמי הוא מדאורייתא מקרא דמשחתם ואין לוקין משום שלא נאמר לאו ע"ז כדסובר הגר"א בס"ק כ"ח, מסתבר דכיון שסופה לחזור ממילא לא הוי זה השחתה. ובפרט שחזינן שלא מרבין כל דבר ממשחתם שהנקבה מותרת בכוס עיקרין דמאחר שכל איסורה הוא רק ממשחתם לא ילפינן גם כוס עיקרין, לכן אף לאיש שאסור כוס עיקרין הוא רק בנתעקר לעולם, ואולי גם לעובר אם הוא דוקא במעשה רפואה ולא לעובר ממילא בלא מעשה. והא דזריקת משקה לתוך בשר הגוף שכל הנידון עליו הוא רק לאסור מדין כוס עיקרין שאין לאסור כיון שיעבור ממילא.

והנה לולא דמסתפינא הייתי אומר דכוס של עיקרין שאסור הוא דוקא כשנעשה ע"י זה סריס באבריו, ל"מ כשנעשה ע"י זה היכר קלקול בהאברים ממש, אלא אף הקלקול שלא יכול להתקשות כראוי שהוא ג"כ קלקול, אבל אם הוא כוס עיקרין כזה שאינו עושה שום קלקול אלא שהסיר כח החיות בהזרע אבל הוא מתקשה כראוי ויכול לבעול כמתחלה ליכא איסור דאין זה ענין סירוס כלל. ומשמע לי זה מהא דשבת ריש דף קי"א שמצד הא דארחב"א א"ר יוחנן דהכל מודים במסרס אחר מסרס שהוא חייב אוסר נמי לסריס לשתות כוס עיקרין והזכיר זה הב"ש /אהע"ז סי' ה'/ ס"ק י"ג שכתב ואפילו אם הוא סריס אסור, דבשלמא אם הכוס עיקרין עושה איזה שינוי בהאברים אף רק השינוי שאינו מתקשה שייך לאסור גם לסריס דהא מסרס אחר מסרס אסור ואף אם כוס עיקרין הוא רק מדרבנן אסרו כעין דאורייתא, אבל אם הכוס עיקרין אינו עושה שום שינוי בהאברים רק שעושה שאינו מוליד הרי נמצא שבסריס אינו עושה כלום שבלא"ה הא אינו מוליד, ואין לומר שאיירי הגמרא בסריס חמה שיש לו רפואה ובהכוס עיקרין עושה שלא יהיה לו רפואה, דהא האיסור אמר בגמ' שהוא מדין מסרס אחר מסרס שהוא דין הנאמר במעוך וכתות שאין לו רפואה אף אם נעשה ע"י חולי או אף נולד כן. וניחא לפ"ז מה שזקן היה מותר לשתות כוס עיקרין כדאיתא בשבת שם /דף קי"א/ דהוא זקן כזה שלא מתקשה שוב שנמצא שהכוס עיקרין לא עשה כלום ורק שהקשה מר' יוחנן שאיכא רפואות לזקן שיתקשה וע"י הכוס עיקרין לא יועילו הרפואות שלכן אסור. ועיין ברש"י שכתב אלמא זקן מוליד ונראה פשוט שלאו דוקא שאף אם יחזירו הרפואות רק להתקשות שיוכל לבעול ולא להוליד נמי היה אסור מאחר דמועיל הכוס עיקרין בהאבר שלא מתקשה דלא גרע ממסרס אחר מסרס ועוד כ"ש שיש לאסור, אך האמת נקט דגם מוליד. ועיין בתוס' שתירצו הכא לא שייך למיסר משום מסרס אחר מסרס דזקנה לאו סירוס הוא שלא מובן כלל לכאורה דכי האיסור הוא דוקא בסירוס אחר סירוס הא בשלם ודאי אסור וממסרס אחר מסרס ראיה שאף באין ראוי להוליד אסרה תורה לחתוך ולקלקל אותם אברים מגזה"כ וא"כ כ"ש זקן, ועיין ברשב"א שהקשה זה ותירץ דאפשר רק בבחור שכמותו מוליד וזה מסרסו אין ניכר שהיה סריס תחלה ונראה דמסרסו עכשיו ולא בזקן שניכר, ופירושו דחוק, דמן התורה לא ניליף זקן לומר שעל אלו אברים הקפידה תורה ואולי סובר שבעי טעם, וגם זה שלא ניכר ונדמה לאינשי דמסרסו עכשיו שהוא כמין גזירה נמי הוא טעם, א"כ ודאי הוא דוקא כשעשה הכוס עיקרין קלקול בהאברים ממש ששייך לטעות שבכוס עיקרין נעשה הסירוס שרואין בו. והנכון כדבארתי. וזריקה זו דבשבילה לא יוליד ששה חדשים הרי אינו עושה שום קלקול דהא יוכל לבעול כמתחלה בקישוי אבר רק שמחליש וממית החיות בזרע שלו וכדומה לזה שזה מסתבר שלא היה נאסר לפ"ז אפילו כשהיה נעשה סריס לעולם.

ואולי כן הוא כוונת הרמ"א בסעיף י"ג /אהע"ז סי' ה'/ שכתב מותר ליטול כרבלתו של תרנגול אף על גב דמסתרס ע"י זה וכל כיוצא בזה דלא עביד כלום באברי הזרע, שתמוה טובא כדהקשה בט"ז סק"ח ובהגר"א ס"ק ל"א שההיתר דנטילת כרבלתו א"ר אשי בשבת דף ק"י משום שמונעו מתשמיש משום רמות רוחא הוא דנקיטא ליה דמשמע דאם היה נעשה סריס היה אסור אף שלא עביד המעשה באברי הזרע, וה"ה דהיו יכולין להקשות ממשקה כוס עיקרין שאסור אך דעדיפא הקשו מאותו הדין עצמו. אבל אין כוונת הרמ"א שמצריך לעשות מה שעושה לסרס באברי הזרע דזה ודאי לא צריך דאף כשעושה ע"י אברים אחרים אם נעשה מזה סריס אסור, אבל כוונתו הוא דנטילת הכרבלתא לא עשה שום שינוי באברי הזרע דמה שלא ירצה לשמש הוא רק משום שמתאבל על שניטל הודו, דאם מה שלא משמש היה זה משום שנעשה שינוי באברי הזרע ומחמת זה פסק ממנו כח התאוה לתשמיש היה אסור. וממש כן הוא בשתיית כוס עיקרין להרמ"א שאיסורו הוא משום שעושה שינוי באברי הזרע אבל אם יהיה כוס עיקרין כזה שלא עביד שינוי באברי הזרע יהיה מותר לשתות כוס עיקרין כזה. ולפ"ז לא שייך כלל לחוש בהזריקה אף אם היה נעקר לעולם. אבל אף שמוכרח זה לדעתי כיון שלא נמצא חלוק זה בפירוש בפוסקים לא הייתי סומך ע"ז, אבל מ"מ אין לאסור הזריקה כיון שיעבור זה ממילא בלא שום רפואה כעבור הששה חדשים כדלעיל.

ועיין בחת"ס אה"ע ח"א סימן י"ז ד"ה והנה תוס' סוטה שכתב ראיה שהתוס' סברי דהתחלה בידי אדם ע"י כוס עיקרין כיון שאין עושה מעשה בכלי ההולדה עצמם מיקרי בידי שמים, אף שנתבטל עי"ז כח אברי ההולדה כמו בזקן ומותר בקהל, אף שלרבא יבמות דף ע"ט נחשב זקן קודם המיתה סריס חמה, שא"כ בידי אדם שהיה נעשה כמו בסמוך למיתה שזה נעשה ע"י כוס עיקרין היה לן לאסור, ואם ע"י כוס עיקרין ראוי לבעול ליכא ראיה, אלמא דמפרשי כדבארתי שכוס עיקרין מבטל כח האברים. 

Does anybody have any sources? This is not a theoretical question

Thursday, October 20, 2016

Kaminetsky-Greenblatt Heter: Tell your Rav or Rosh Yeshiva you are adopting the Kaminetsky approach to halacha

Since the day that the Temple was destroyed, the Holy One, blessed be He, has nothing in this world but the four cubits of Halachah alone. (Berachos 8a).

It is clearly not enough to serve G-d simply by davening or just keeping Shabbos. It is not enough even if you also believe  the 13 principles of faith It is still not enough even if you learn Torah day and night.The reason for the creation of the world and man was to keep Torah The commandments of the Torah must be obeyed - the mitzvos done and the prohibition obeyed. And they must be done properly

We all know that there are different degrees of keeping mitzvos even though as a minimum all the commandments must be kept. The chareidi world prides itself on not looking for the easy solution to halachic question – but rather our concern is to try make sure that we do what G-d expects of us – no matter how difficult or what sacrifices have to be made. We are not like the Conservative that only keep that which is convenient or the Reform that only keep that which they want at that moment. We are not even like the Modern Orthodox who seem to believe that anything which is pleasurable must be permitted. If there is a question of whether a Torah mitzvos is being kept it is necessary to be machmir while a sofek derabbon we can be meikel.. In cases where the appropriate halacha for a particular situation is in doubt there are a number of strategies. In a dispute of poskim we can follow the majority or follow the greatest posek or follow the local minhag. Alternatively in a dispute in halacha we can try to act in a way that fulfills the requirements of most poskim.

In general we look to gedolim to provide role models of how to observe halacha. In general they don’t say it enough to simply pick a view of any posek. Thus the Mishna Berura paskens in a way that it fulfills the views of the major poskim. Or the Aruch HaShulchan argues for the view that he finds most convincing or what is local practice. Rabbi Akiva Eiger and Rav Moshe Feinstein say psak is following what is considered the strongest sevara . Rav Ben Tzion Abbah Shaul says that psak is finding a strategy for minimizing error. He notes the exception of the views of the Shulchan Aruch which are authoritative because they have been accepted by the Jewish people. While the strength of  the kabbalistic views of the Arizal is that they are based on ruach hakodesh.

Bottom line we see a great concern of poskeim and gedolim in all ages to take great care to minimize the likelihood of erring in halacha and to focus on ascertaining what G-d wants – and not simply what the daughter of an important supporter wants.

In view of this taking great care not to violate halacha – even for a minhag and surely for a rabbinic law and it goes without saying not a Torah law. – what we find in the production and protection of the Kaminetsky-Greenblatt Heter is simply astounding. The Kaminetkskys contacted poskim all over the world – not to ask them what to do but to ask them to agree that Tamar did not need a Get based on phony psychiatric report that the husband was crazy. They carefully described in their letter that in addition to the husband being crazy, that no woman would want to be married to him and that Rav Moshe Feinstein had said in such a case that there was no valid marriage.

However they neglected to mention that the psychiatric diagnosis that the psychiatrist gave – based on the wife’s testimony without speaking to the husband – even if accurate was not severe enough that a wife typically would want a divorce. They neglected to mention that the wife had not mentioned any problem of mental illness in discussions with the Baltimore Beis Din. Nor did they mention that she did not mention any problem of mental illness during the years she claimed to be an agunah because her husband refused to give her a get prior to certain custody issues being resolved. 

Thus the Kaminetskys went posek shopping with false information about the husband. Nonetheless they  were rejected by most of the poskim they contacted. It was only when they reached out to Rabbi Nota Greenblatt who was willing to pasken solely on the facts he was given - without an independent investigation or even contacting the husband because he believed he was obligated to accept everything that Rav Kaminetsky told him – that they got a heter.

We all know those who have been criticized by gedolim for posek shopping. For demanding a specific psak rather than going to a posek to ask him what the halacha is. We have heard of gedolim criticizing those who make up facts in order to get a desired psak. And yet despite the fact that the Kaminetskys did all of these transgressions - there is a determined silence by our rabbinic leadership.

Furthermore after the firestorm of protest from major poskim around the world against the Kaminetsy-Greenblatt Heter and after asking for and getting a similar rejection of the heter from Rav Dovid Feinstein and even after acknowledging that the heter was no good – nothing was done to get the couple to separate. Rav Shmuel Kaminetsky said it is not his job to tell this couple that he persuaded to commit adultery – to separate. He claims it is Rav Nota Greenblatt’s job! Rav Greenblatt refuses to withdraw his heter – despite the fact that he was informed that the facts he had received were not true. He says he had enough justification for issuing the heter and he isn't concerned with investigating whether the facts are false. Thus these two tzadikim declare themselves to be free of an elementary Torah obligation to protest and separate sinners from their sin - an exemption which doesn't apply to the rest of us.

If a yeshiva bachur was found to be eating meat of a questionable hecher – it is inconceivable that he would not be told by his rosh yeshiva and friends to stop. If an avreich went shopping for a heter to enable him to marry a questionable convert – there is no question that this would be criticized. If any other case where a woman tried for years to receive a Get and then suddenly announced she was remarrying without one – there would be world wide protests and the couple would be ostracized by the community.

Please ask your local rabbi – why the perversion of halacha done by Rav Kaminetsky has not generated world-wide protests? Ask him if you decided to act in a similar manner regarding your halachic questions of nida, kashrus or Shabbos – would he also be silent? Better yet ask him if he has any problem if you planned on adopting the Kaminetsky-Greenblatt approach to halacha? What would he say if you told him that from now on you were simply going to pick as halacha the most lenient view or you will make up facts to convince a posek to give you a heter – because that is what the Kaminetsky’s did? Ask him why the Kaminetskys are not being held accountable for perverting halacha and causing adultery and possible mamzerim. Ask him why no gedolim are protesting a blatant and well publicized transgression? Ask him if preserving Rav Kaminetsky's reputation is more important to Yiddishkeit than G-d's Torah?

======================Important comment by Joe Orlow===============

After talking several times to Rabbi Shmuel Kamenetsky, and repeatedly trying to speak by phone to Rabbi Dovid Feinstein, and also trying to get Rabbi Feinstein to respond to an email I sent him, I now present "Joe's Take":
The party line is the following:
(1) Rabbi Feinstein and his special Bais Din ruled that Tamar Epstein is married to Aharon Friedman.
(2) Rabbi Shmuel Kamenetsky accepted this ruling. That is, if you ask him, he'll tell you there are Rabbis who hold that Tamar Epstein is married to Aharon Friedman.
(3) Rabbi Nota Greenblatt is a recognized expert in marriage and divorce. Rabbi Shmuel Kamenetsky, and possibly Rabbi Dovid Feinstein, hold that Rabbi Greenblatt is an authority that may be relied on.
(4) Thus, Rabbi Greenblatt's performing the second marriage of Tamar Epstein is not something to be toyed with, questioned, second-guessed, or undone. It must stand.
(5) Otherwise the whole house of cards comes tumbling down. Rabbi Greenblatt has apparently released other women from their marriages but who seemingly needed a Get. DO YOU REALIZE WHAT A MESS WILL ENSUE IF WE HOLD THAT HE MADE A MISTAKE HERE?!
(6) Thus, all apparatchiks must play along or risk losing their jobs, their reputations, and even the possibility of any of their unmarried offspring ever getting married.
(7) Here is how to play. (a) You must believe that Tamar Epstein is legitimately married to her second "husband". (b) You must hope and pray and hold on to the desperate dream that Aharon Friedman will give Tamar Epstein a Get real soon, so that WE CAN JUST PUT THIS WHOLE AFFAIR BEHIND US AS SOON AS POSSIBLE!!!

Wednesday, October 19, 2016

Unilateral Divorce against the Husband’s Will

The following is interesting - but contains nothing new. He seems to think that halachic options that were once available can be made available - but provides no mechanism. This is the wishful thinking of feminism - "where there is a halachic will there is a halachic way." However that is not the way halacha works. If the majority of contemporary rabbis agreed to a particular view - then these ideas are relevant. But who decides that the majority has decided? How do you change the normative halacha which has been accepted for hundreds of years.

Jewish Ideas by Rabbi Marc Angel

1. Does Such a Possibility Exist under Torah Law?

The Torah (see Deut. 24:1) describes a divorce occurring through a “writ of [marriage] termination” (sefer kritut) given by the husband. Indeed, the Mishnah (Yevamot 14:1) states: “A woman can be divorced when she agrees and when she does not agree; but a man divorces only at his will.” Thus, there seems to be no way in which a woman can receive a divorce if her husband is recalcitrant.

However, our most ancient rabbinic sources state that such a possibility exists. In vaYikra 1:3, the Torah notes that in certain circumstances, a person must bring a sacrifice, and he is required to do so willingly (yakriv oto lirtzono). This seems to be an oxymoron: Either an act is mandatory and one is obligated to perform it, or one is free to act at one’s own personal discretion; can these seemingly contradictory elements be reconciled? The ancient halakhic Midrash answers in the affirmative: “We apply pressure upon him, until he says ‘it is my will to do so.’”[1] In other words, an act that is mandated by the Torah will be considered as having been performed willingly even if such “will” was formed under pressure by legitimate agents of Torah. The Sifra does not extend this principle beyond the issue of sacrifices, but the Mishnah (‘Erkhin 5:6) does. After stating that a sacrifice is considered as brought willingly after the person was pressured until he says, “It is my will to do so,” the Mishnah adds: “and the same is true for women’s bills of divorce.” [2]

Several explanations may be offered for this principle. One explains this in light of the general halakhic principle, “What a person harbors in one’s heart is halakhically irrelevant.” [3] Thus, when the Mishnah refers to “will,” it is not relating to an internal psychological disposition, but rather to an externally verified condition. Thus, if a person declares: “I do not want to do X”—we hold that performing X is against his will, and are not concerned with his internal thoughts. Conversely, if he declares: “I want to do X”—we hold performing X to be in accordance with his will.[4] Others suggest that if a husband refuses to divorce a wife who hates him and will in no case remain with him, he is acting only out of spite in order to deny her to others.[5] Such behavior, denying to others something that in any case cannot bring the individual any benefit, is halakhically unacceptable; we can therefore apply the general principle kofin ‘al middat Sedom. A third explanation was given by Maimonides:

Since he was compelled, why is this divorce not invalid? … Because a person who was overcome by his evil inclination to desist from performing a positive mitzvah or to commit a transgression, and who was then coerced [by the authorities] until he did what he ought to do or desisted from what he was forbidden to do, is not considered to be acting under compulsion …since he does want to be a Jew, he ipso facto wants to fulfill the commandments and to refrain from sin, but his evil inclination overcame him. When he was beaten, his evil inclination weakened, and so when he says “I want [to divorce]”—the divorce is in accordance with his will. (Laws of Divorce, 2:20)

Maimonides has a theory of human personality that recognizes several “levels” of will that can be in simultaneous conflict. The “will” required for divorce is not a subjective feeling but an objective mental position, which is assessed according to the overall context of a person’s life choices. A person who wants to be a Jew, surely consents at heart to what is entailed by being a Jew. If according to Torah he should in the case at hand divorce his wife, his refusal to do so is in conflict with what he deeply assents to. By physical coercion, the court is merely enabling him to overcome a powerful urge that conflicts with his own deeper and more serious will.

2. Who May Coerce a Husband to Divorce?

Having seen that Torah law contains the option for coercing a husband to divorce, the question arises: Who may do so? It should be pointed out that today, with a get regarded as a document required only because of adherence to a religious tradition, physical coercion to give a get flies directly in the face of the principle of freedom of religion. When we discuss today physical coercion of a get, we are therefore arguably doing something analogous to discussing the death sentence as a punishment for adultery, i.e., marking certain actions as worthy of extreme censure. With this in mind, let us return to the question: When physical coercion was a real operative option, who might be involved in this? The upshot of the talmudic discussion in Gittin 88b seems to be that physical coercion of divorce is not a matter that should (or may!) be undertaken by individuals. No matter how much I personally may be convinced that Zalman (for example) should really divorce his wife Rivka, I am not allowed to take matters into my own hands and beat him up in order to get him to agree to do so. Indeed, if he does give a divorce after being manhandled by self-appointed guardians of Torah (or by thugs they employ), the get thereby produced may well be halakhically invalid. Rather, it is only legitimately appointed communal leaders who were authorized to decide to apply such physical coercion. Having reached such a decision, they could appoint agents—whether Jews or non-Jews—to actually do so (in much the same manner that civil courts today direct law-enforcement officials to act against those who refuse to follow court rulings).

3. What Circumstances Justify Coercion of a Husband to Divorce His Wife?

If in general a husband divorces his wife only at his will, but in certain cases legitimate community leaders may coerce him to do so, the question arises: What are those “certain cases”? The Mishnah (Ketubot 7:10, cited at Bavli Ketubot 77a) gives a very specific and very short list of men whose extreme objective physical repulsiveness justifies coercing them to divorce if their wife demands a get. The more interesting case, however—not discussed by that Mishnah—is when a wife declares that her husband is subjectively repulsive to her and demands a get. This matter comes up with regard to a “rebellious” wife, i.e., a wife who openly refuses to have intimate relations with her husband. The Mishnah (Ketubot 5:7 cited at Bavli Ketubot 63a) states, that the communal authorities are not allowed to physically force her to change her mind, but that economic sanctions may be employed to cause her to reconsider, i.e., they may sanction her by impairing her right to payment of ketubah, thus threatening her with a situation in which her husband can divorce her not only against her will, but at no cost to himself. However, in the talmudic discussion Ameimar (c. 400 CE) states, that the above does not apply to a wife who justifies her refusal to remain with her husband by explaining that she finds him repulsive (ma-ees ‘alai). Well then, what is to be done when a woman so declares? Here the picture becomes really interesting, because we have at least three variant wordings of the talmudic phrase defining what is to be done in such a case. The printed text of the Talmud (based of course on manuscripts the first printers had before them), states:

But if she says ma-ees ‘alai—we do not coerce her.

On this version, it is not the business of the court to in any way pressure such a woman to have sex with her husband. If he is fed up with such a situation, he can divorce her. Of course, in those times, polygamy was also an option: if he was sufficiently well to do, the husband could simply take a second wife. But the court will take no sides in this marital crisis. This version seems to have been the one known to most rishonim, including Rabbenu Hananel (d. 1055), Rabbi Yitzhak AlFasi (1103), and many others.
However, a second version exists, in a talmudic manuscript known as ms. Firkovich-Leningrad. In that manuscript, the Talmud states:

But if she says ma-ees ‘alai—we coerce him.

On this version, the court will actively intervene on behalf of the rebellious wife who declares her husband repulsive, and coerce her husband to divorce her! Thus, in addition to the short list in the Mishnah of physically repulsive men who are coerced to divorce, a husband who is subjectively repulsive to his wife is also so coerced. Rabbenu Gershom, “Light of the Exile” (c. 960–1028), the greatest scholar of Ashkenazic Jewry of his time, ruled that if a woman found her marriage so unbearable that she was willing to totally forfeit her ketubah if only her husband would divorce her—the court is required by Torah law to coerce her husband to do so. As he writes (Teshuvot Rabbenu Gershom Meor haGolah, #42):

If she wants to be divorced and forfeits her ketubah, and he does not want to divorce her, the authorities must coerce him to give her a get. As the rabbis taught […] “We apply pressure upon him, until he says ‘It is my will to do so.’” And such is the actual halakha.

Note that the Mishnah stating that a husband could be coerced to give a get when the Torah mandates this, did not state when the Torah so mandates a divorce; it is Rabbenu Gershom who determined that Torah so requires whenever a woman is so desperate for a divorce that she is willing to forfeit her ketubah!

Another great authority who held this to be Torah law was Maimonides, who ruled that coercion of a divorce when a woman declared ma-ees ‘alai was mandated by the Torah (Hilkhot Ishut/Laws of Relationships, 14:8; note that at 14:14 he rejects post-biblical legislation on this issue):

If a wife declares “I find him repulsive, and am unable willingly to have sex with him”—the authorities immediately coerce him to divorce her. For she is not a captive of war, who must have sex with a man she despises.

This brief ruling reflects Maimonides’ assumptions about the basics of marriage. He holds that the status of a married woman is not like that of a captive enemy, and that she is under no obligation to submit to the sexual advances of a man she finds repulsive—even if that man is her lawful husband. He also clearly assumes that sex is an essential component of marriage, that a woman cannot be expected to be bound in a sexless marriage, and that divorce is therefore an absolute necessity in such situations. Now, the Torah never expressly states either of these things about marriage. While some biblical passages might seem to support such views of marriage, others might be cited against them, as in Psalms 45:11 where the bride is enjoined, “He is thy lord, and do homage to him.” Clearly, Maimonides’ decision that the Torah here requires an immediate, forced divorce is dependent upon his value-laden understanding of what marriage is all about—an understanding that informs his reading of the Torah no less than it derives from such reading. And such an understanding may well have been what led Rabbenu Gershom to also mandate coercion in such cases—and what informed the talmudic author of ms. Firkovich-Leningrad, who wrote: “But if she says ma-ees ‘alai—we coerce him.”

A third variant of this talmudic phrase was proposed by Rabbenu Yaakov ben Meir (also known as Rabbenu Tam, France c. 1100–1171), but it can be understood only after tracing developments in the halakhic history of coerced divorce from the time of Ameimar to the twelfth century.[...]

8. Conclusion

When I was growing up, I was taught that the holiness of Jewish marriage is based on the serious commitment of man to woman and of woman to man, expressed (inter alia) in their entering a relationship in which neither party can cast off the other against his or her will. Later, when I leaned in the Yeshiva, I became aware that such had not always been the case: Originally, “in the time of the Torah” (and indeed, also the time of Hazal and the first millennium of the Common Era), a husband could arbitrarily be rid of his wife whenever he wanted. Only later, in the eleventh century CE, did Rabbenu Gershom decide to come to the aid of Jewish women and defend them against such a possibility by forbidding divorce without the woman’s consent. From time to time, a strange question would pop up in my head: Did Torah and Hazal not know that a true Jewish marriage means a serious commitment that cannot be unilaterally terminated by one of the parties?

Subsequently, I became more acquainted with the sources, and realized that over the course of time, holy Jewish marriage with huppah and kiddushin has undergone many metamorphoses. Originally, a husband could divorce a wife against her will, but a wife could not be divorced without her husband’s agreement (pace, e.g., Rabbenu Gershom and Rambam, who hold that under original Torah law any woman really fed up with her husband could forfeit her ketubah and receive a coerced divorce). Later, at the end of the talmudic period or at least from the seventh-century Rabbanan Sevora’ei, halakha moved to a symmetrical situation: Not only the husband but also the wife could unilaterally end the marriage. Then, after Rabbenu Gershom forbade the husband to unilaterally divorce his wife, the pendulum swung to the opposite pole: For about a century, only the wife could coerce the husband to divorce her, while he was forbidden to do so against her will. At this time, halakha (at least in Ashkenaz) was directly contrary to Torah law. After that, Rabbenu Tam restored symmetry between the spouses—but in a manner opposite to what had been the case until Rabbenu Gershom: Now, not only the man but also the woman could not exit the marriage unless the partner concurred. For the first time since Mount Sinai, both partners entering a Jewish marriage knew that they might become hostage to the other.

In recent years, the ideal of no-fault divorce has become prevalent in many societies around the globe: Marriage should not be a prison in which each side holds the only key to the other’s freedom. Hearing rabbis speak (nay, sermonize), one gets a clear message: Such is not the way of the Torah. Our marriage is holy, and that is why it is called kiddushin. And marriage cannot be holy unless it is a total, unconditional commitment that can be abrogated only after much travail and by mutual consent. No-fault divorce is thus a halakhic non-starter.

After reading this article, one thing should be clear: Whatever this or that rabbi may think of no-fault divorce, such was exactly the character of Jewish divorce for a very long time. According to Rabbenu Gershom and Maimonides (et al.), this was original Torah law from the time of Moshe Rabbenu (and according to many others, from the sixth or seventh century until Rabbenu Tam, i.e., for at least half a millennium). Was Jewish marriage not holy then? Similarly, if today, or in several years, halakhic authorities find the will and the courage to (re)institute halakhic no-fault divorce, this will not at all undermine the holiness of marriage under huppah and kiddushin. In fact, the opposite may well be true.

[1] “Kofin oto ‘ad she-yomar rotze ani.”Sifra, ad loc. (Dibbura di Nedava, 3).
[2] “veKhen b’gittei nashim.”
[3]“Devarin she-baLev einam devarim.”
[4]See e.g., Tosafot on Gittin 32a s.v. mahu de-teima.
[5]See Rashbam on Bava Batra 48a s.v. hatam nami neima.
[6]Responsum of Rav Sherira Gaon, Otsar HaGeonim to tractate Ketubot, no. 478. This responsum was known to the rishonim. See e.g. Rabbi Yesh’aya di Trani (thirteenth-century Italy), Tosfot RID on Ketubot 64a–b.
[7]Responsum of Rav Sherira Gaon, Otsar HaGeonim to tractate Ketubot, no. 478.
[8]Rabbi Yitzhak AlFasi (Morocco and Spain, 1013–1103) ruled that the takanah was in force throughout the Jewish world. Rabbenu Hannanel (d. 1055) does not mention the takanah, and thus some have held that he rejected its validity. But this is not self-evident.
[9]To prove the categoric difference between talmudic and post-talmudic authority, Rabbenu Tam cites the talmudic statement (Bava Metzi’ah 86a) “Ravina and Rav Ashi are the termination of instruction (sof horaah).” However, the notion that these words teach that after the Talmud no enactments authorizing coerced divorce are possible—may well be an original interpretation of Rabbenu Tam.
[10]Responsa of Rabbi Asher ben Yehiel section 43:8.

Is 60 days jail sentence appropriate for a rape and incest conviction?

An online petition with more than 14,000 signatures calling for the impeachment of a Montana judge over the sentencing of a 40-year-old man to 60 days in jail in an incest case involving a 12-year-old girl has been sent to the state’s governor and other officials.

The man was sentenced to the jail time, plus a 30-year suspended prison term last week as part of a plea deal with prosecutors. The man also was ordered to complete community-based sex-offender treatment and register as a sex offender.

District Judge John McKeon has defended himself against criticism, saying a plea agreement that recommended a 25-year minimum sentence allowed for a lesser one, depending on the results of a psychosexual evaluation. He said that evaluation found the defendant could be safely treated and supervised in the community. McKeon also notes the victim’s mother and grandmother asked that the defendant not be sentenced to prison. [...]

Originally, Deputy Valley County Attorney Dylan Jensen recommended a 100-year prison sentence with 75 years suspended - as called for in state law - as part of a plea agreement that recommended the dismissal of two other incest charges.

“A father repeatedly raped his 12-year-old daughter,” Jensen said during the Oct. 4 sentencing hearing.

A licensed clinical social worker testified that the man was a low-risk to re-offend and that it would be important for him to have social support while he received treatment. The social worker, Michael Sullivan of Billings, said the man did suffer a “collapse of social support” when he lost his family and job.

Court records said the girl’s mother walked in on one of the sexual assaults.

Public defender Casey Moore argued there was more than one way to hold a person accountable.

“I’m not asking that he be given a slap on the wrist,” Moore said. “He did spend 17 days in jail and he did lose his job,” and will be on supervision for the rest of his life.

McKeon said he diverted from the recommended sentence because the man had support from his family, friends, church and his employer. The girl’s mother and grandmother were reportedly among those supporting a community-based punishment. Someone wrote that “he was a good father for 12 years,” and another said he was not a monster, but a man who had made a mistake.[...]

Tuesday, October 18, 2016

One big reason the WikiLeaks emails aren't as damaging for Hillary Clinton: Donald Trump

When Donald Trump charges that the media are plotting against him, he often points to the hacked private emails of Hillary Clinton’s campaign chairman, now available for the world to see on WikiLeaks.

A bewildered Trump asks repeatedly how these disclosures are not dominating the news cycle.

In another presidential election, they just might be. Tucked into the thousands of mundane exchanges that Russian hackers allegedly extracted from John Podesta’s inbox are some revelations embarrassing to the Clinton campaign.

But Trump has seen to it that they are never dwelt on for long. As with so many other issues that have emerged in this race — including those where Trump would probably benefit from voters focusing on them — the WikiLeaks disclosures are getting eclipsed by Trump himself.

“Who knows what valid issues might in fact be being actually discussed right now if we didn't have a volatile, churning Category 5 media hurricane stalled over the entire country?” Democratic pollster Cornell Belcher said of Trump in an email.

Even when Trump manages to pause and shine the spotlight on WikiLeaks, he often weakens his argument.

The emails often don’t prove what Trump says they do: that the Clinton campaign hates Catholics, that Clinton allies were preparing an Islamophobic smear campaign against President Obama, that Clinton “openly colluded” with the Justice Department during its investigation of her private email server.

But they undermine Clinton in other ways, such as showing the inner workings of a campaign so cautious that several top advisors weigh in before it settles on the joke the candidate will tell at a dinner. The emails also revealed something Clinton had tried to keep under wraps: transcripts of remarks during highly paid engagements at major investment banks, where her chummy tone didn’t always mesh with the tougher line on Wall Street she’s taken during the election.

Some of the exchanges released by WikiLeaks support, to an extent, Trump’s interpretations, such as one email he tweeted about Monday:

“Crooked Hillary Clinton even got the questions to a debate, and nobody says a word,” Trump wrote. “Can you imagine if I got the questions?” [...]

t’s unclear how another Republican candidate would handle the situation. Some party strategists were reluctant to discuss the leaks because they don’t want to encourage foreign meddling in an American election. Soon after the Obama administration accused Russia of hacking into Democratic National Committee emails, Podesta’s emails were published.

And they saw irony in Trump’s inability to leverage the WikiLeaks disclosures for more political gain. The outlet, they say, may not have bothered to acquire and release the messages were Trump not the nominee. Russian operatives and WikiLeaks founder Julian Assange might have been less motivated to help candidates like former Florida Gov. Jeb Bush and Florida Sen. Marco Rubio, who are arguably even more hostile adversaries to them than Clinton.

But Trump is different. He is an admirer of Russian President Vladimir Putin. Former top Trump advisor Roger Stone, who now runs a pro-Trump super PAC, boasted of back-channel conversations with Assange.

It’s not a media conspiracy but Trump’s lack of discipline that has made his WikiLeaks attacks unsuccessful, said Tim Miller, who advised Jeb Bush in his presidential run.

“WikiLeaks would be one thing in a list of issues that Trump is failing to prosecute because he creates a news cycle by calling beauty queens fat,” Miller said. Trump is also busy disparaging the women who accuse him of groping them, feuding with the Republican speaker of the House and alleging the election is about to be stolen from him.

Clinton’s advisors have, meanwhile, capably made the case that the disclosures reflect more poorly on Trump than Clinton. Highly credentialed national security experts have emerged to warn the disclosures show Trump is being manipulated by the Russians.

Among them is Michael Morrell, a CIA veteran who served in high-ranking positions under Presidents George W. Bush and Obama. “I can’t remember a single time in American history where the American government has accused another government of trying to interfere in our elections,” Morrell said Friday on a conference call organized by the Clinton campaign.

“This is really unprecedented. As a national security person, it shakes me to my core.”