Thursday, June 2, 2011

Reporting even a suspected abuser to the police

For those who wish to see additional sources they are in my books on child abuse


Rav Yehuda Silman(Yeschurun volume 15 page 662): 5) It is obvious in these matters of child abuse that it not necessary to have formal witnesses. As we see in Bava Metzia (83) that R’ Eliezer bar R’ Shimon had the Romans arrest those who were drinking in the tavern and were sleepy. … The commentaries explain that the obvious reason for not needing witnesses but they could rely even on circumstantial evidence is because this was not a court procedure to punish wrongdoers. Rather it was either done to obey the law of the kingdom or it was to stop someone from sinning. The Rashba is cited in the Beis Yosef that witnesses are not needed in such a case…”. That is because we are concerned only with the knowledge of truth in order to stop the harm and to make protective measures against iniquity. Furthermore according to what I said that even a doubtful rodef is permitted to be killed it is obvious that it is permitted for us to take protective action even if we have unresolved doubts.

Rav Yehuda Silman(Yeschurun 15): Nevertheless the decision to report the perpetrator to the police is not given to everyone to decide. Rather as the Yam Shel Shlomo has said it is given to a rabbi or to a distinguished layman who will judge the matter objectively.[ R' Gottesman of the Aguda said we posken like this Yam Shel Shlomo and don't require a beis din]

Rav Yehuda Silman(Yeschurun 22): Question: I had previously received a query from America concerning the issue of informing the government authorities in a case of a teacher sexually abusing his student. The question was whether it is permitted or even a mitzva to be involved in reporting the matter to the secular authorities. I replied [Yeschurun 15 page 661] that there are number of different ways to judge the matter. 1) Viewing the abuser as a rodef (pursuer) [I mentioned in the previous article that this does not apply in the case of a male above the age of 13 or a girl above the age of 12 when the adult does it with their consent.]. 2) Stopping the abuser from sinning. I brought the dispute between the Ketzos and the Nesivos HaMishpat…and the Yam Shel Shlomo and the Chasam Sofer. However it is agreed by all of these sources is that a person of distinguished status (chashiv) is able to stop another from committing a prohibited act. 3) The position of Shulchan Aruch (C.M. 2) that a beis din is able to flog and punish in order to protect society – in a manner which is not prescribed by the Torah. Therefore in a case like ours in which experience has shown that a sex abuser is able to ruin many people – everyone agrees that beis din can punish in ways not prescribed by the Torah.[In the earlier article I pointed out there are significant differences between these approaches. If you take the perspective of separating the abuser from sinning then if the teacher is fired then there is no longer a need to act since he has lost his primary opportunity to sin but of course it depends on the nature of the crime. In contrast if the concern is protecting society then the perpetrator should still be reported even if he has been fired.] 4) The view expressed in Bava Metzia (83b) concerning R’ Eliezar bar Rav Shimon who was involved in capturing thieves because the king had commanded him to do so. I brought the dispute amongst the rishonim was to whether or not the halacha is in accord with R’ Eliezar or not. In the original article I was inclined to the view that in the case of sexual abuse since the perpetrator is not executed but is imprisoned to protect society then perhaps all would agree that it is permitted to report him to the authorities.
  
Rav Yehuda Silman(Yeschurun volume 15 page 663): The laws that have emerged from our discussion concerning child molesters. We see that there are two separate issues 1) Concerning removing the perpetrator from his job. In this issue we establish that the halacha follows the view of the Sho’el u’Meishiv that it is enough that there are bad rumors and there is concern because of doubts. It seems that in such a case where there seems to be a basis for these rumors it is possible to remove him from his job even in the middle of the year and he does not receive any compensation for the remainder of his contract or for loss of job. 2) Concerning reporting him to the secular authorities. If the circumstances are that it is sufficient to remove him from the job and there is no concern that he will continue attacking children, then that is what should be done and he should not be reported. 3) However if there is a concern that he will continue to molest children, then at least because of the requirement to stop him from sinning it is permitted to report him even if he does not molest in a way that he transgresses actual Torah prohibitions and is therefore not considered a rodef. But since in our days prison is not considered life threatening it is permitted to cause him to be imprisoned. 4) However the decision as to whether to report a molester is not given to everyone as the Yam Shel Shlomo said Rather it is given to a dayan or an important person.  5) Furthermore, the understanding of the facts of the situation as to what actions are needed can be based upon the evidence of children or any other evidence which arouses a serious question such as tape recordings, letters, or polygraph tests. In general without this - if there is no evidence even according to what is accepted by secular law – there can be no punishment. The point is that there is no requirement that the evidence must be valid according to the Torah. 6) However if the suspect is prepared to accept therapy that will make him better - such as psychotherapy, or chemicals which suppress his sex drive – if it seems to the dayan that he will do what he promised [and sometimes with appropriate supervision] then treatment is preferable to reporting him to the police. However even if the molester is given the alternative of treatment and supervision instead of jail - he needs to quit his job which involves contact with children. 7) Outside of Israel where secular law is relevant there are additional reasons to be lenient and allow reporting to the police. 8) It is a good idea to establish a dayan or a beis din to make the decisions about the above issues and therefore men should be selected for this purpose who are experienced in these matters because of the serious of the matter which requires special expertise.

7 comments :

  1. The first citation of Rav Silman allowing reporting based on a doubtful case based upon circumstantial evidence, goes against the vast majority of Chareidi Psak Din.

    I also note the second citation:

    Rav Yehuda Silman(Yeschurun 15): Nevertheless the decision to report the perpetrator to the police is not given to everyone to decide. Rather as the Yam Shel Shlomo has said it is given to a rabbi or to a distinguished layman who will judge the matter objectively.[ R' Gottesman of the Aguda said we posken like this Yam Shel Shlomo and don't require a beis din]

    which actually puts lie to the claims put on this blog that one may report to the police WITHOUT FIRST going to a Rabbi. The Agudah, like Rav Silman, said a Rabbi must first approve. The blog owner disagreed with the Rav Silman and the Agudah.

    And in the third citation here, Rav Silman specifically says if you can sepearate the alleged abused from access to who he is allegedly abusing, you must do that and NOT report him to secular authorities. Plus Rav Silman writes you must offer an abuser (even a known and proven abused) therapy INSTEAD of calling the police.

    This is also against the claims that have been advanced on this blog.

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  2. josh werblowsky m.d.June 3, 2011 at 4:24 AM

    Rabbis are not trained to determine the recidivism rates of molesters.
    Rabbis do not have the investigative tools,including subpoenas to determine suspicion.And certainly even if one is fired from a teaching position they still can continue molesting children fror ex.in shuls and the community.
    Furthermore without having legal sanctions including being under legal jurisdiction therapy,including chemical treatment will not work.This is documented clearly in the professional literature.
    Also doing teshuvah is important,but treatment under legal jurisdiction is required.
    Pedophiles have the highest recidivism rate.

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  3. We do what we can. The rabbinate does not have a law enforcement arm, and so sending someone to therapy doesn't mean they go, doesn't mean the therapy is of any quality, doesn't mean they can keep him from future victims...

    The Religious Zionist community tried keeping Alon from his victims by getting him to quietly take leave from his yeshiva. Didn't work, and eventually they did have to turn to the state.

    -micha

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  4. Micha: Nice thoughts. But Rav Silman says otherwise without all your quantifications.

    Rav Silman writes:

    "However if the suspect is prepared to accept therapy that will make him better - such as psychotherapy, or chemicals which suppress his sex drive – if it seems to the dayan that he will do what he promised"

    So perhaps your RZ or MO community has its own standards. Don't expect the Chareidi community to adapt them.

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  5. Frank,

    Don't guess about who I am. My community, Passaic, NJ, doesn't have a RZ or MO contingent large enough to "have its own standards". This is a matter of halakhah, not community. (As for whether I myself am MO or chareidi, the answer is "neither". If you care, see my blog entry
    Modern Orthdoxy, Chareidism and Mussar for why. I take pride in being as impossible to pigeonhole as my rebbe, R' Dovid Lifshitz zt"l, was.)

    WRT to what you commented on in the earlier post... You wrote (copying here for ease of following the discussion):

    Micha asks: "In what sense is jail piquach nefesh?"

    In the same sense that you asserted above that abuse is pekuach nefesh.

    [Micha again:] "The risk of accusing the innocent is reduced by the fact that you are handing the problem over to investigators, not the penal system."

    These career prosecutors seeking a conviction (whether the accused is innocent or not) to boost their reelection bids is well known and discussed. Searh Lexis-Nexis for numerous such cases, including many where the conviction was later overturned after the innocent was falsely convicted.

    The gentiles have no compunctions in jailing the innocent.

    And please stop downplaying the terrible crime of putting an innocent man accused of abuse in jail, whether pre-trial or post.


    I did not play down the problem of innovent people ending up in jail. Rather, I said that if your suspicions are deemed plausible by an objective party, the risk to the victim and potential victim far outweighs it.

    For a number of reasons:

    1- Jail isn't as bad. It isn't piquach nefesh, despite your hand-waving. Most people who end up in jail don't have the same lasting damage to their psyche.

    2- Going to someone (RMS says a rav) to check your concerns means that the odds of erring are far less.

    3- Comparing the two errors. If you let a guilty man free, the danger is certain, and the violation of uvi'arta hara miqirbekha is also certain. If you err in reporting an innocent man, jail isn't a certain outcome.

    4- Non-Jews and the gov't aren't demons, despite your prejudices against them. An innocent man is unlikely to fail the psychometric testing, for example. And the prosecution's case becomes very weak once the psychologist testifies he doesn't have the psyche of an offender.

    And I think this last point gets to the core of the matter. You do not believe in the value of the established system, and therefore think that handling it internally is better -- even though we lack real tools to handle it anyway. History shows, however, that cases turned over to the system have actually had a better outcome.

    -micha

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  6. Still waiting for a real psakJune 5, 2011 at 7:39 AM

    This subject is very emotionally tinged, and many who discuss it get into debates on either end of the extremes. The consensus seems to be that one must report to authorities, but that there needs to be certainty of sorts concerning the allegation. That makes logical sense. The trouble we all have, regardless of which extreme we favor, is that we lack such a person or group that can provide this initial verification to move the case onward. Rabbonim lack the training to evaluate. No beis din exists (in US) that is qualified. There is no Rav in America that is widely recognized as an authority. So much of the chewing about the poskim and teshuvos written is of great heuristic value. We can all conclude that our leadership have failed to give us the "halacha lemaaseh" we seek and so desperately need. Meanwhile, we continue the "Ish kol hayashar be'ainov", evoking controversy with every incident of abuse complaint that arises.

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  7. josh werblowsky m.d.June 6, 2011 at 2:14 AM

    Parents know their children best.Rav Nebenzahl,shlita,talmid muvhak of Rav S.Z.Aeubach ZT"L
    considers parents the Rav Muvhak of their chidren.(see Sefer Assia 6,p145)
    So as their rav muvhak they can determine best if authorities must be notified.
    The sad part is that families are reluctant and need and can benefit from communal support systems.

    ReplyDelete

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