Monday, April 19, 2010

Reporting abuse does not require a judicial procedure

[I need to clarify the original post - which has been understood by some to mean that one should simply call the police in all cases. That is not what I said or meant. My purpose of writing this post is to point out that the process of deciding what to do is not a judicial process - but one of defense against harm. The rules of evidence are much more lenient in an extra judiciary process, there is no inherent need for a beis din or even a rav. However unless there is concern for immediate danger - then one should consult with experienced experts - which includes psychologists, social workers, as well as rabbis who are experienced and are well aware of the surrounding issues. Furthermore regarding a case of a perpetrator  who abused  long ago and has not  repeated his crime and there is no danger to others - than a judicial procedure is required. There needs to be adequate considerations of proportionality - one does not  need to call the police if a neighbor allowed your son to watch a t.v. show or his rebbe gave him a hug. Nor should one use a shotgun against someone who might have molested your child. The halacha in the case of rodef requires a focus on doing that which is necessary to stop the harm. If you feel that protection can only be accomplished by the police - then call the police.  You do not need to accept the promises that the person did teshuva or assurances that the perpetrator will now have adequate rabbinical supervision. Also in a case of government mandated reporting which is enforced - it is different than where there is no mandated reporting or it is not enforced.  In sum - I am saying that focus on protection from danger is the prime concern and the halacha clearly allows a person to do that which is necessary to protect children from being molested. You do not need to get caught up in a complicated halachic piplul - but need to act to protect the children. However it is not a blanket allowance to use any and all means to accomplish it and a person should act responsibly and consult those who are  experienced and wiser in these matters - which is not necessarily a rabbi. In fact an inexperienced rabbi or one not knowledgeable in these matters might prescribe a course of action which is naive and harmful to both the perpetrator and the victim. On the other hand, calling the police or social services might also not protect the child and might cause harm. Protecting the children must be the prime focus. ]


One of the major problems in dealing with child abuse is the insistence that it is a very complex and difficult halachic issue that must be judged by a beis din or at least an experienced and competent rabbi. Going to the secular system is considered mesira or as a minimum a violation of the prohibition of going to a secular court.  It is also claimed that we need two adult male Jewish witnesses as well a warning and careful investigation and cross examination. Because often these can not be done - it is considered beyond out capability to do anything -if we want to remain loyal to the Torah.

In fact - according to the halacha the above is not so. Reporting child abuse to the police is not in fact a judicial issue. It is a question of self-defense, protecting others or stopping others from sin. These do not require judicial procedures. This is the view of Rav Yehuda Silman that was published in the current issue of Yeschurun. While a beis din or a rav can be consulted - there seems to be no inherent requirement for such. In other words it is no different than the question of whether a judge needs to be consulted as to whether you can deal with an assailant who is beating you or your children or your neighbor. Similarly a judge is not needed to give permission to react to someone who is involved in sin and it is in our power to stop him. Clear circumstantial evidence is enough to act defensively. Reporting a suspected perpetrator to the authorities is not a judgment or punishment - it is done to defend our children from possible harm. Of course it is best if those experienced in these matters - whether rabbis or social workers or psychiatrists - be consulted. But not if the delay would result in harm.  Thus the case of prevention of harm is different than punishment for sin - which in fact requires a beis din. This distinction between prevention of harm and punishment of past sin is very important and in fact is often blurred and confused.

Rabbi Yehuda Silman wrote:

Furthermore in the original article [Yeschurun 15] it was concluded that that it is obvious that there is no need to have witnesses that meet the standards required by the Torah but even less than that is sufficient and I cited a number of rishonim. The reason is reporting the teacher to the secular authorities is not punishment requiring a beis din but is an action mandated by secular law (in the Diaspora) or in order to separate the abuser from committing sin. In addition according to the reason that even in the case of a possible rodef it is permitted to inform the authorities – it is obvious that is permitted without proper witnesses since all that is required is that there be the possibility that he is an abuser.


11 comments:

  1. "...[I]t is no different than the question of whether a judge needs to be consulted as to whether you can deal with an assailant who is beating you or your children or your neighbor."

    This is an interesting point. Perhaps, on a related note, one could make the following kal vachomer: Murder is an issur of the highest order (one of the Big Three). However, one can extrajudically kill a person on the spot to prevent an assault he's about to commit (i.e., killing a rodef). If killing is allowed under such circumstances, then reporting to the police would certainly be allowed as well.

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  2. Thank you for publishing this!

    It is time for our Rabbis and our community members to stop punishing the victims, the parents and the witnesses of molestation.

    The Chillul Hashem is the perps and the Rabbis and others who facilitate them.

    It is NEVER mesirah to stop a rodef from destroying our precious children.

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  3. Daiyo leva min ha din....April 18, 2010 at 6:54 AM

    Tzurah,

    If that qal vechomer (from shedding blood to mesirah) were to prove good, it's scope would be pretty minimal (by "daiyo").

    I think DT means to make the case that we may turn to authorities (without recourse to beis din) "merely" in cases of molestation, whereas we may kill a rodef only for rape, not for molestation.

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  4. Daiyo - true. I was wondering along similar lines too.

    The rodef is pursuing "merely" molestation, rather than murder or rape. At the same time, all we need to do to protect the potential victim is to report the rodef to the police, rather than kill him. In the context of rodef, how do we balance the seriousness of the potential crime with the severity of the protective action?

    Also, in a rodef situation, we, by definition, don't know exactly what the rodef will end up doing to the potential victim. Does the rodef just want to beat the victim up, or is he attempting murder? Is the rodef desiring actual biah/miskav zachar, or merely molestation? How do these considerations balance out in the calculus?

    Another issue, which is raised in the more recent post, and raised by DT previously, is whether or not child molestation falls under nezikin at all. Is a molester merely a baal taivah, or is he a mazik as well? To me, it's as plain as day that someone attempting to molesting a child is of a similar status as someone chasing a child with a baseball bat, but as Marc Shapiro said in his comment, that sentiment does not appear to be universal held.

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  5. Daiyo leva min ha dinApril 19, 2010 at 4:25 AM

    Tzurah,

    Is "rodef" our only maqor for unilateral protective action? Because as it's presented (killing a rapist/murderer) it would seem to be a difficult concept to apply to mammonus.

    Yet if someone's imminently intent on destroying my property, presumably I can take all kind of preventive action, no?

    Are we to understand that the sevara of self-defense is pinned only to the concept of rodef? It seemed to me in reading this, on the other hand, that rodef was just meant to exemplify defensive considerations trumping judicial procedural requirements, itself a larger klal misevara (self-defense) presumably applicable across the board.

    As your questions suggest, Tzurah, rodef would be a more specialized concept, a situation in which we could apply unmitigated, irreparable force of the highest order based on nothing but our perception of the rodef's potential intent--yes, even possibly mistaken. A sort of special exemption against caution, as it were.

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  6. http://www.jpost.com/Opinion/Columnists/Article.aspx?id=171735

    Does the Rabbanut not hold these people require gerus or is Shavei Israel's Michael Freund not telling us the whole story?

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  7. While Nadler does have orthodox semicha, he is no longer frum. He also has an ax to grind and tries to dig up dirt on the Lakewood yeshiva which is occasionally published by the Forward. Keep that in mind when he tries to defend taking a Liberal approach to hilchos gerus in the rest of this article.

    http://www.sanfranciscosentinel.com/?p=69191

    Tropper’s enemies were not confined to the more progressive side of the religious spectrum. In Israel’s ultra-Orthodox enclaves, such as Meah Shearim and Bnai Berak, his downfall was unabashedly celebrated, boldly announced on broadsides with sensational headlines referring to Tropper as “Oto ha-Ish”—the traditional Jewish moniker for Jesus Christ—and sternly warning that they would publish photographs and videos of his decadent behavior. As it turns out, Tropper’s approach to conversions had long been considered a violation of Jewish law by these ultra-Orthodox Jews, largely because—even while adding all manners of new stringencies as preconditions for conversion—Tropper still encouraged potential converts and embraced already inter-married gentiles, both of which have long been matters of rabbinic controversy.

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  8. http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/09-1099.htm

    As was expected, Supreme Court Justice Samuel Alito has turned down Nat Lewin's frivolous appeal for Rubashkin.

    Just like it didn't stop the Agudah demanding that everyone pay into the bottomless pit defense fund at a time when yeshivos can't pay rebbeyim, the Agudah has now joined forces with Lubavitch and Satmar on a kol korei that trying to get leniency for Rubashkin is a chiyuv sheain kamohu of lo saamod al dam rayecha.

    Why don't the Agudah, Lubavitch & Satmar use such dire rhetoric to save children from molesters which is pikuach nefesh mamash?

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  9. Here is proof that Rubashkin is not the target of overt "anti-Semitism" which the rabbonim are allowing the Yated and the rabble on the street to shout at the top of their lungs.

    Prosecutors usually ask for an extreme sentence which they know will be whittled down by the judge.

    It is not necessarily the most fair way of going about it but Rubashkin is not being singled out.

    This guy, like Rubashkin is refusing to take achrayus for his crimes. But what makes him better than Rubashkin is that he is at least cooperating to make restitution. And still, the prosecutors won't give one ounce of leniency.

    http://seattletimes.nwsource.com/html/businesstechnology/2011556195_apuspetterssentencing.html

    A federal judge sentenced fallen Minnesota tycoon Tom Petters to 50 years in prison on Thursday for orchestrating a $3.7 billion Ponzi scheme that counted hedge funds, pastors, missionaries and retirees among its victims.

    U.S. District Judge Richard Kyle said he didn't believe Petters, the one-time owner of Polaroid and Sun Country Airlines, was unaware of the fraud within his operations at Petters Group Worldwide, as he has claimed.

    Prosecutors had argued that Petters deserved the statutory maximum of 335 years.

    Since Petters was convicted, he has cooperating with the court-appointed attorney attempting to recover losses in the scheme.

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  10. http://www.guidestar.org/FinDocuments/2008/134/077/2008-134077539-058fa44d-9.pdf

    Latest Tropper-Horizons filing has been made public.

    Latest recipients of Kaplan-Tropper largesse are R' Dovid Feinstein's yeshiva which the filing says was payment for researching seforim to justify EJF shitos, the DATA kollel in Dallas, Ohr Sameach (surprising Tropper would give them once cent), something called Roots Inc and outreach programs in various yehupitzvilles.

    A bunch of the grants were labeled as being for the purpose of doing outreach to intermarried couples. All the while EJF's rabbonim are in denial that this is so.

    Who is Rabbi James Burgess who is listed as co-director with Tropper?

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  11. Troppenstein's monsterApril 22, 2010 at 12:20 AM

    There are some people in Beit Shemesh who are very angry to see which rabbis in their town received Kol Yaakov's money.

    They say that the rabbis on the list are the instigators of the riots.

    ReplyDelete

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