Monday, November 24, 2008

Child Abuse - Calling Police /HaRav Eliashiv shlita II


This is my copyrighted translation of the teshuva which I previously posted

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Question: If someone is sexually abusing a boy a girl in circumstances which we can’t stop him from continuing his evil deeds – is it permissible to notify the government authorities?

Answer: Rashba (3:393) states:
“My view is that if the witnesses are believed by the judges, then it is permitted to punish the accused financially or physically depending upon what the judges think is appropriate to be beneficial to society. Because if we insist on doing only what is specified by Torah law and not to punish except as specified in the Torah – the world will end up destroyed. That is because the elementary rules of a functioning society will be breached and consequently it will be ruined. It is an established practice to punish those who physically harm others…Every community makes judgments in order to preserve it and this is true in every generation and every place according to what is perceived as the needs of the times. For example we see (Sanhedrin 58b) that Rav Huna, who was in Babylonia, would amputate hands as punishment. Therefore these judges you referred to who punished the accused not in accord with Torah law – if they saw the need for it to preserve the society – they have correctly acted according to the halacha. This is true when there is a specific order from the king as we see in the case of R’ Eliezar the son of R’ Shimon bar Yochai in Bava Metzia (83a).”
We learn from the Rashba’s words that when action is needed for the well being of society (tikun olam), that the Jewish sages have the ability in every generation to act to preserve the society and to repair breaches – even when there isn’t a specific order from the king. The Ritva (Bava Metzia 84a) has stated that this order of the king is:
"if the king says to capture certain criminals, even though the government will judge without witnesses and warning [as required by Torah law] and there is no functioning Sanhedrin [as required by Torah law] – it is still permitted since he is acting as the agent of the king. Since it is the law of the land to execute criminals without the testimony of witnesses and warning - as it states [Shmuel 2’ 1:5-16] that Dovid killed the Amalekite ger who had acceded to Shaul’s request to kill him -the agent of the king is like him.”
However according to what has been said, in a matter which is needed for the well being of society (tikun olam), it is not needed to have been ordered to act by the king [in order to act as needed].

However, it is permitted to notify the government authorities only in the case which it is certain that the accused has been sexually abusing children. Informing the authorities in such a case is clearly something for the well being of the society (tikun olam). However in a case where there is no proof that this activity is happening but it is merely a conjecture or suspicion, if we permit the calling of the authorities - not only would it not be an improvement (tikun olam) - but it would destroy society. That is because it is possible that allegations are being made solely because of some bitterness the student has against his teacher or because of some unfounded fantasy. As a result of these false allegations the accused will be placed in a situation for which death is better than life. Therefore I do not see any justification for calling the authorities in such circumstances

4 comments :

  1. For the sake of Kavod HaRav I am going to tread very lightly here. MaRan Eliashiv is a torah genius, of that there can be no doubt, and certainly he made this decision based on the best information that he had available to him.

    First there are questions that this ruling raises, but leaves unanswered. Most glaring to me is what constitutes certainty in sexual abuse? Considering that allegations from a child or children seems to later be ruled out, we must ask then what constitutes certainty wherein we may contact the authorities according to his opinion.

    Therefore, I am thus compelled to say that he has been misinformed as to the nature of abuse and allegations. It has been a while since my abnormmal psych classes, but I seem to remember that in most cases abused children do not want to come forward. Even in secular socieity where things such as homosexuality and other sexual deviance are not anathema children are afraid as to how they will be viewed in light of having been a participant(however unwilling) in a sexual act. Lacking hard proof from studies, I can only offer my well reasoned opinion, but it seems to me according my poor knowledge, that the inhibition to report would only thus be heightened in the religious society. To then state that the we start from a point of disbelief and distrust of the reporting child, is to then in my mind open the door for the destruction of the lives and innocence of countless children.

    Because of his station and his learning I cannot believe that R' Eliashiv would knowingly put children in such danger. Therefore as I stated before, I am forced to say that he is horribly misinformed, though well intended.

    I am afraid that this sort of misunderstanding will lead to incredible harm. It is this type of misinformation that caused the religious world to shield R' Yehuda Kolko and R' Avrohom Mondrowitz(both of whom claimed that the allegations were comming only from bitter students). I do not see this as a preventative or curative. Rather, as much as I am sure the Rav would be deeply hurt to find that this is the case, I fear that this ruling may actually enable child sex offenders to continue their criminal behavior with little fear of repercussion.

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  2. However, it is permitted to notify the government authorities only in the case which it is certain that the accused has been sexually abusing children.
    This makes little practical sense, since certainty is established by the government authorities. Before prosecuting, they investigate.

    However in a case where there is no proof that this activity is happening but it is merely a conjecture or suspicion ... it would destroy society. That is because it is possible that allegations are being made solely because of some bitterness the student has against his teacher or because of some unfounded fantasy.
    The authorities - the police, in the U.S. - investigate to discover this proof, if any exists. The government does not prosecute on allegations alone. Furthermore, especially with cases of child sexual abuse, they are experts in the field and are more competent than the general public to make these investigations. In many areas, there are specialists who deal only with these kinds of cases. It will be easier for them to discover the necessary proof than for laypersons. Thus, failing or refusing to notify the appropriate authorities will result in a greater probability of a child sexual abuser avoiding punishment - and in the continuation of the abuse, whether against the same victim and/or others in addition.

    This risk is exacerbated by the fact that proof of such abuse is nearly impossible to obtain without the intervention of the authorities, since the production of evidence must often be compelled or otherwise involve persons in a position of authority - doctors, to obtain medical evidence from the victim, and potentially compelling the production of evidence - e.g., DNA samples - from suspects. These often critical pieces of evidence normally cannot be obtained by laypersons without the suspect's consent, and both guilty and innocent suspects alike will withhold that evidence.

    While it is certainly true - and has been true - that false allegations will be made due to malicious motives or mental illness of some kind, the reality is also that fewer abuse cases are reported than exist in total. It is no more proper to assume, for purposes of informing the proper authorities, that an alleged victim is lying, than it is to assume a person is guilty by virtue of an accusation alone. And in comparing relative risk of harm, it is better a person be wrongly accused but ultimately exonerated, than that a child should continue to be abused through fear of making a report to authorities that may to one's present knowledge be wrong.

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  3. I would have a question for Kavod HaRav: the law in the North America mandates reporting in cases of suspicious. Charges are not laid but an investigation is conducted.
    Is Kavod HaRav therefore advising us to disobey the law of the land in which we live?

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  4. I personally believe that Garnel's question is a very good one. Many states in the US have mandatory reporting. For instance New Jersey and Pennsylvania. In those states if there is an allegation which is not reported, for instance if a child tells a teacher or Rabbi or some other adult, who then in turn does not report to the authorities. That person is held as an accomplice to the crime, as well as numerous other charges.

    This psak then has the ability to make someone, as innocent as they may be, as they are only following the ruling of the Rav, into a criminal who will then be imprisoned and listed as a child sex offender. As well as actively disobeying laws that have been put in place for the betterment of society as a whole.

    One way to handle this is to say that R' Eliashiv's psak is only for Israel, and more specifically only for Ashkenazim in Israel. As he is their Gadol and Posek. Related to that one should then ask their local Rabbi.

    On the flip side we can give respect to the Rav and yet say that he was misinformed. For instance R' Yosef does the same with some of the shulkhan Arukh. He simply says if MaRan Karo had the information that we have, he would not have ruled this way. In which case I would say that if MaRan Eliashiv knew that in the US you could be convicted and sentenced to prison and be listed as a sex offender for following his ruling, he would not have ruled this way.

    Anyway we go this is a very difficult psak. Given my psychological training as well as experience working in youth institutions in Pennsylvania and New Jersey, I have a hard time understanding this ruling. Given my halachic training, most especially in Hoshen HaMishpat, I have a hard time understanding this ruling from a halakhic perspective.

    Consider that, as has been discussed here before, some Gedolim are reported to support these "modesty squads" which will even carry out violence against a fellow Jew on as little as a suspicion. Finding their Halakhic support in Siman 2 of Hoshen HaMishpat. Which says, my paraphrase, In extreme times we may even kill a person based on a suspicion even without true eidut. If this is used as the justification for things these modesty squads reportedly do, as in one case recently reported, because a woman was suspected of talking immodestly with other men, why then can we not report to the authorities someone suspected of child sexual abuse, even if we are not sure? This is very difficult to understand.

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