Friday, June 5, 2009

Rav Eliashiv - Abused child vs. suicidal parent


Rav Yitzchok Silberstein (Zohar #11 2003 pps 221-222): Removing an abused girl from her mother’s custody. Question: A nine-year-old girl is being severely beaten and her mother is suspected. Her mother is a widow who has psychological problems who sometimes gives her daughter sleeping pills because she works until midnight cleaning houses. There are also days where she doesn’t give her hot meals…. The question is whether to take the daughter from her mother’s custody and to put her in a foster home to improve the daughters life in that she will eat properly and have a warm and secure family and she will learn what normal behavior is – or perhaps not since the mother has threatened suicide if her daughter is taken away… It is important to note that the mother is opposed to all alternatives such as a boarding school or receiving help of any type and she threatens suicide. Answer: This is a very difficult question and I asked one of the gedolim who replied, That it was very difficult to avoid the tears of the mother and her threat to commit suicide. He said that it was beyond our ability to properly evaluate and weigh these issues. Thus we can do nothing.”

Let me clarify this psak. On the one hand, the daughter is not actually in mortal danger that we need to be worried that perhaps she will die from lack of food or from the beatings or difficult work. It also seems that the mother is not forcing her to swallow life-threatening pills. On the other hand, the mother has threatened to commit suicide if her daughter is taken from her. While it is true that people sometimes make threats that they don’t carry out (Shavuos 46), but the Chofetz Chaim (Be’er Mayim Chaim Rechilus 9:12) has ruled that concerning life and death issues we need to be concerned about threats. This is seen from the incident with Gedaliya who was told someone threatened to kill him. When it comes to life and death, we need to take seriously even an unlikely danger. Furthermore in our case the doctors have agreed that it is possible that the mother will commit suicide…. In this case where we want to remove her daughter from her custody when the daughter’s life is not actually being threatened – who says that the daughter’s life is more important than the mother’s? Perhaps the life of the mother is more in endangered than that of the daughter? This my explanation of the gadol’s ruling of not removing the daughter from the mother’s custody.

I presented the facts before Rav Eliashiv and he said the following. “Do not take the child from the custody of the mother who threatens to commit suicide – based entirely on circumstantial evidence of beatings that seem to done by the mother. As long as there are not actual witnesses that testify before us that they saw the mother cruelly beating her – it is impossible to remove the daughter from her custody. That is because it is a case of pikuach nefesh also for the mother – in particular since the daughter has not requested to be removed from her mother’s custody. Similarly it is impossible to remove money from another person based on circumstantial evidence as is explained in Bava Basra (93a)… It would be different if the circumstantial evidence is absolutely clear that the mother is beating her such as if we find that the daughter has bite marks on her back which obviously can not be self-inflicted. The fact that the mother gives her daughter sleeping pills is also not a reason to take the daughter from her custody – since it is not clear that it is dangerous. Therefore we must do everything possible through the neighbors and friends who can speak persuasively with the mother or threaten her. But it is difficult to remove the daughter from the mother.

However if witnesses comes and testify before us that the mother is viciously beating her daughter then we are obligated to remove her from her mother’s custody. This is so even though there is a small possibility that she might commit suicide. That is because it is not the daughter’s fault so why should she have her life endangered because of the concern that her mother might commit suicide. Therefore when there are witnesses the daughter should be removed from her mother’s custody.”

Summary: 1) If it is clear that the mother is viciously beating her daughter, the daughter should be removed from her custody and we are not concerned with the mother’s threat to commit suicide. 2) If no one has actually witnessed the mother beating her daughter but we deduce it from circumstantial evidence – there is no basis of removing the daughter from the mother. That is because the mother’s life is also possibly endangered. Thus we are forced to do nothing (shev v’al taaseh). All we can do is make efforts through talking and deeds to try to stop the mother from beating her daughter. Heaven should be merciful.

10 comments:

  1. I am curious about this line. in particular since the daughter has not requested to be removed from her mother’s custody.

    Does R' Eliashiv intend that if the daughter complains about her treatment and requests to be removed from the situation than this is enough to take the daughter from the mother?

    I understand the Rav's position, however I must ask how do we balance that position against the manipulative behavior that an abuser can demonstrate? My own mother threatened suicide to all who had ears, including myself, when I was removed from her custody. She is still with us today.

    Should an abusee surrender everytime their abuser makes a threat of personal harm? Do such threats ever gain a chazak of simply being a manipulative ploy?

    Stemming from that question I must ask is this psak to be applied broadly, or in such circumstances must such a gadol always be consulted?

    Personally my own instinct is the latter, however in the end this teshuva leaves me with more questions than actual answers.

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  2. Who am I to comment? Yet I find the entire responsa here to have been made with great wisdom and reason.

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  3. Garnel IronheartJune 5, 2009 at 8:35 PM

    After reading this psak, all I can say is "Thank God for the secular authorities."

    I mean, really! With all due respect to kvod Torato, a woman who threatens suicide is mentally unwell and requires treatment. Torah law demands that we take care of our bodies thus treatment does not always require the patient's permission, in contrast the Western concept of patient autonomy. And in any case, when it comes to mental illness Western societies generally dispense with autonomy and lock up the suicidal patient until treatment has taken positive effect.

    In short, if this woman is threatening suicide, she is mentally unwell and needs to be taken for treatment.

    If she is giving her daughter sleeping pills, she is handing her a potentially dangerous substance as well as creating the risk of addiction and sleep disturbances later in the child's life.

    This isn't a case of a poor mother barely scraping by and doing the best she can!

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  4. "After reading this psak, all I can say is "Thank God for the secular authorities."

    After reading that comment, all I can say is "Thank G-d for the fact that they brought this issue to Rav Eliashev, and not the secular authorities."

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  5. Nachum Klafter, MDJune 7, 2009 at 9:05 AM

    There are a few thinks I don't understand in this:
    1) If there are allegations of abuse of a child, then there at least needs to be an investigation (whether by social services or whether by a qualified agent of the beis din would probably not matter according to the halakha, though doing such an investigation requires special training which rabbonim generally have not received).
    2) A typical child has no ability to run away, defy parents, etc. Therefore, the child needs additional protection by the kehilla. Therefore, I would ask why we do not say the following: To do NOTHING when a child is complainig of abuse would not be "shev ve-al ta'asah", but would rather be a violation of "lo ta'amod al dam..."
    3) From a psychiatric perspective, the allegation of a child that she is being beating and neglected is credible, meaning that it is highly likely to be substantiated if there is a good investigation.
    4) "I"ll kill myself if you do x, y, or z" is generally not a very credible statement. There are no guarantees, but this is not how suicides generally occur.
    5) Afilu im naniach that there is a real suicide risk (which, again, I would not assume) then the proper thing to do is to commit the mother to a psychiatric hospital where she will be safe. Leaving the child in her custody is not a good way to reduce suicide risk.
    6) Since we say "yeherag ve-al ya'avor" for even the most remote cheshash derabanan of arayos (even for kol isha, according to the gemara), then it is all the more puzzling that we are going to be so concerned about a suicide threat to such an extent that we will leave a girl in her custody who is being abused.
    7) Children who are being beaten, physically neglected, given sedatives with no medical supervision, etc. are at high risk for serious illness or death. On what basis can someone decide that such a situation does not constitute a sakanas nefashos unless there has been a proper investigation?

    Perhaps there are addiitonal facts in this case which I am unaware of which would change the relevance of these questions?

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  6. I don't really do family law, but I do try to keep abreast of things.

    In NY, improperly medicating the daughter with sleeping pills, presumably intended to have her sleep and stay home alone while the mother is out working, would very likely be grounds for foster home placement. Leaving a 9 year old girl alone is a crime in NY. The severe beatings, if they resulted in hospitalization, would also be a crime.

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  7. ... which may explain why the psak din from Rav Eliashiv shlita was to not report it to the secular authorities.

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  8. This appears to be contrary to the Piskei Teshuva that talks about taking a daughter away from a mother who will influence her negatively, even when there is no pikuach nefesh involved. And the Rashba says all custody should be determined based on what's best for the child, and the Rama says that le'din based on the Maharam Mi'Padua.

    I of course know that Rav Elyashiv knows all these sources, so I conclude that either the facts presented to him or the public presentation of his psak are in error.

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  9. This seems to be a case child protective services witness every day.

    Why would a rabbi not defer his judgement to specialists, the way he does with doctors?

    Waiting for the mother to beat her child in front of two kosher witnesses and discarding all other evidence of beatings does not look like a very wise decision in my eyes.

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    Replies
    1. I had the same question - haven't heard a good answer. This is not the way the case should have been dealt with. Rav Zilberstein however has clearly stated that rabbis know best - this is clearly not the dominant view of today's rabbis

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