Seforim Blog New Writings from Rav Kook part 5. by Dr. Marc Shapiro
[I wish to thank Dr. Shapiro for drawing my attention to the following]
Let me also return to the issue of the Jewish masses’ natural morality vs. the rabbinically tuned morality of the scholars, and how according to R. Kook the former is superior to that of the latter. I was asked if I can provide some examples of this. I think the most obvious such example is the response to sexual abuse that we have witnessed in the Orthodox world. While the natural impulse of the masses was that abusers must be immediately removed from any contact with children, many of the learned rabbis were able to come up with all sorts of reasons why this was not necessary, and why the police should not be called. Over time the view of the rabbinic class has evolved and many of them now advocate a strong response to sexual abuse. However, what took them a long time to get to was immediately understood by the Jewish masses, and they understood it intuitively. Years from now people will wonder how it was that rabbis refused to protect children. It will be incomprehensible to them how this could have happened. We who lived through this experience know that it was precisely the pressure on the ground, from the Jewish laypeople (and the bloggers and newspapers), that forced changes in this matter.[3] Here I think is a good example where talmudic learning led scholars לטהר את השרץ בק"ן טעמים, while the Jewish masses, with their intuitive natural morality, saw that evil must be exposed and they emerged victorious.[4]
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Footnote 3
A friend insists that there is no difference between Klein's position and that of Agudat Israel. This is not true at all. Whereas Klein states that someone can never be turned in to the police, the Agudah position is that a molester can be turned in, but only after a rabbi gives approval. The Agudah position continues to develop, and I have no doubt that in the end the Agudah will end up holding a position identical to that of the RCA. I also think that it is public pressure that will move Agudah in this direction, as public pressure has been responsible for all the adjustments in the Agudah's position that we have seen until now.
Yet even without public pressure, the current Agudah position is so untenable, that is will have to be updated. For one, it asks people to violate the law. The law is clear that some people are obligated to contact the police when they suspect child abuse. By insisting that a rabbi be consulted before doing so, mandated reporters are being put in the position of being told by a rabbi to refrain from doing something that the law requires. Do the Agudah constituents realize that listening to the rabbi in these circumstances can open them up to both criminal and civil penalties? [...]
Finally, unlike so many of the cynics in our community, I don't think the Agudah position is all about protecting rabbis, guilty or not. I really do believe that the Agudah recognizes that there is a problem. It is convinced that the rabbis it will charge with examining abuse cases will indeed make sure that molesters are turned in. The problem, however, is that we have seen all this before. We have seen over and over again that it is precisely the rabbis who have failed in this matter, often because they are not willing to turn on their own. It was precisely because of this that the community of laypeople rose up and said "No more." One doesn't need to be a prophet to see that by relying on individual rabbis to determine if an accusation of sexual abuse is credible, there will continue to be cover-ups. (Am I wrong in assuming that these cover-ups never would have happened if women were in charge? Would mothers ever have permitted child molesters to continue to prey on the young?)
The Agudah position is thus both a public relations and legal disaster in the making. The Church tried such an approach already and it doesn't work. I don't understand why such smart people in the Agudah don't see how their new position is doomed to failure.
I think there is a communication gap.
ReplyDeleteThe Agudah's statement is not keeping the decision of whether or not to contact the authorities in the the hands of the rabbis. (And in R' Avi Shafran's variant, this is only when there is a question about the veracity of the claim.)
Rather, it's about limiting the role of rabbis to this decision. Much like RMS's position, posted here.
In the past, a rabbi would decide whether or not we needed authority involvement. This is what led to cover-ups, to cases mishandled by well meaning baalei chessed who simply don't know enough to handle it right, etc... The Agudah's statement doesn't mention all that -- only the risk of accusing innocents.
Given the starting point, this is a huge step away from the problems of the past. One may argue whether it goes far enough; but truth be told, it's not that far apart from what was advocated on these "pages". It's also a cry for less rabbinic involvement than what Israel's Dati Leumi community tried to set up with the Takanah forum. (If we were more unified, the forum's failed attempt to handle Elon themselves would be taken as an object lesson by the rest of us. Instead, their world is their world, and we don't think about it much.)
I admit that this is not their prior position, regardless of whether they are trying to portray it as such or not. I don't see much value on dwelling on that; if anything, it might lead Aggudistim to reassert some of the old guidelines.
With due respect to Dr Shapiro and Rav Kook, this tells us nothing about R' Kook's view on reporting such cases. It is simply a blurred derivation , which may be out of context.
ReplyDeleteA more accurate view would be if there is a Psak of RAYHK on "mesirah".
R' Kook was often very machmir on legal issues.
There is a balance between leadership and mass morality.
ReplyDeleteYes, in this instance the masses saw correctly and the leadership didn't.
However, how many instances are there in history where bloodthirsty mobs "clearly" saw a danger that needed to be eliminated while the leadership didn't?
There is a reason people elect governments and don't run a county by referenda as well.
I'm not trying to justify the current Agudah position (I agree they will eventually migrate towards the RCA position and what's more, they'll claim to have invented it in the first place!) but the whole "the masses are always right" cannot be used in such a blanket sense.
I don't think using R. Kook, of all people, is useful in your fight against the Agudah and its Moetzes Gedolei HaTorah.
ReplyDeleteYou are very mistaken in thinking the Agudah will come to follow the RCA's position. We all know the RCA will a lot sooner come to the Agudah's terms.
ReplyDeleteActually Rav Kook was not the first to propose this idea it is a verse in Koheles (7:29). I discuss this idea (not in the name of Rav Kook) in my book on abuse.
ReplyDeleteספר קהלת פרק ז
(כט) לְבַד רְאֵה זֶה מָצָאתִי אֲשֶׁר עָשָׂה הָאֱלֹהִים אֶת הָאָדָם יָשָׁר וְהֵמָּה בִקְשׁוּ חִשְּׁבֹנוֹת רַבִּים
micha said...
ReplyDeleteI think there is a communication gap.
The Agudah's statement is not keeping the decision of whether or not to contact the authorities in the the hands of the rabbis. (And in R' Avi Shafran's variant, this is only when there is a question about the veracity of the claim.)
Rather, it's about limiting the role of rabbis to this decision. Much like RMS's position, posted here.
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I agree with your point. I have heard that there are rabbis who are upset with the Aguda for "giving up" rabbinic supervision and allowing people to go to the police
We worked hard to get this Resolution at the May 2007 RCA Convention:
ReplyDelete"RCA Seeks to Combat Abuse of Children by Applying Public School Standards to Nonpublic Schools
May 1, 2007 -- Whereas, we, the Rabbinical Council of America, are deeply committed to the health, safety and security of all Jewish children attending yeshivas and Hebrew day schools, which includes their right to be free of any physical, emotional or sexual abuse or violence; and,
Whereas, we embrace the mitzvah of Lo ta'amod al dam ra'echa, (Do not stand upon the blood of your brother, Lev. 19:16), and we acknowledge the principle, BeHezaika DeRabim, Chaishinan Tfei (when there is an issue that affects the masses, we are vigilant), and how much more so does this principle apply when the health, safety and welfare of school children are affected; and,
Whereas, we acknowledge the devastating affect that even a single act of physical, emotional or sexual abuse can have upon a child, when inflicted by an adult authority figure, and such abuse can have long term serious physical and mental health consequences; and,
Whereas, we note that Rav Yosef Dov Soloveitchik, of blessed memory, writes in "Halachic Man", that his grandfather, Rav Chaim Soloveitchik of Brisk, of blessed memory, was once asked what the function of a rabbi is, and he replied: “to address the grievances of those who are abandoned and alone, to protect the dignity of the poor, and to save the oppressed from the hands of his oppressor”; and,
Whereas, we acknowledge the legal principle of in loco parentis, which provides that during the school day, the yeshiva and day school stand in the shoes of the parents, and owe the children the high degree of care in health, safety and welfare that parents owe their children; and,
Whereas, we acknowledge the legal principle of parens patrae, whereby the government always has a legitimate interest in the health, safety, and welfare of its children-citizens, regardless of whether they attend public or nonpublic schools, and this interest is reflected in numerous statutes and judicial opinions; and,
Whereas, we take note of the U.S. Congress-mandated report prepared by the U.S. Department of Education, "Educator Sexual Misconduct" (June 2004), which documents the extent of the problem, and at section 12 strongly recommends for all schools employee background checks, registries of abusive school employees, standardized abuse prevention policies, and other prophylactic measures
Now, therefore, it is resolved that
We reiterate support for our 2005 convention resolution, Criminal Background Checks for Workers with Youth; and
We generally support the enactment of decent and humane laws that seek to secure and enhance the health, safety and welfare of nonpublic school children; and
We support the application to the nonpublic schools of the health and safety laws currently applicable to public schools, including
mandatory employee fingerprinting and halachically or legally appropriate background checks;
mandatory written school plans and polices intended to safeguard the life, health, and safety of children, and to prevent physical, emotional and sexual abuse, including appropriate reporting guidelines; mandatory employee registration and disciplinary hearings; mandatory emergency health care, including nursing, modern first aid, and modern medical devices, including, defibrillators; and
We call upon members of the RCA to encourage awareness of these issues with their constituencies so as to facilitate detection of abuse in our community."
According to the most recent article in the Forward, Agudath Israel has still not made up its mind about these issues.
The RCA carries no water with the Chareidi masses.
ReplyDeleteHere is the Agudah statement by Rabbi Shafran:
ReplyDelete"There may be times when an individual may feel that a report or evidence he has seen rises to the level of raglayim la’davar; and times when he may feel otherwise. Because the question of reporting has serious implications for all parties, and raises sensitive halachic issues, the individual should not rely exclusively on his own judgment to determine the presence or absence of raglayim la’davar. Rather, he should present the facts of the case to a rabbi who is expert in halacha and who also has experience in the area of abuse and molestation."
R Dr Marc Shapiro writes: For one, it asks people to violate the law. The law is clear that some people are obligated to contact the police when they suspect child abuse. By insisting that a rabbi be consulted before doing so, mandated reporters are being put in the position of being told by a rabbi to refrain from doing something that the law requires. Do the Agudah constituents realize that listening to the rabbi in these circumstances can open them up to both criminal and civil penalties?
ReplyDeleteI fail to see the relevance. If they feel it's assur, then how is it different than willing to be incarcerated or fined rather than permitting chillul Shabbos?
I have a similar question about the RCA's recent statement: In addition and as a separate matter, those within the Jewish community whom secular law deem to be “mandated reporters,” must certainly obey the particular reporting requirements, which vary from state to state in the US. A person covered by mandatory reporter laws must comply with those laws, even in a case in which Jewish law might otherwise not require a person to report such child abuse or endangerment.
Aside from the cases referred to before this paragraph, which they said anyone is obligated to report, why would this be true? The presence of a civil law obligating reporting doesn't make mesirah permissable. Either this is a case where risk overrides mesirah, in which case halakhah requires reporting, or it's not, in which case we should be called upon to make the sacrifices and risk the effects of violating the law.
Dovid, in the old days, you'd be right. But times have changed.
ReplyDeleteElliot: I'm talking about today. It is as true as ever.
ReplyDeleteI can only testify based on my personal observations.
ReplyDeleteThis popular blog is one example. The author appears to be solidly in the yeshiva camp. R Eidensohn regularly consults with Rav Moshe Sternbuch. And consistently, favorable words are written here about the RCA approach to sex abuse.
micha said...
ReplyDeleteR Dr Marc Shapiro writes: For one, it asks people to violate the law. The law is clear that some people are obligated to contact the police when they suspect child abuse. By insisting that a rabbi be consulted before doing so, mandated reporters are being put in the position of being told by a rabbi to refrain from doing something that the law requires. Do the Agudah constituents realize that listening to the rabbi in these circumstances can open them up to both criminal and civil penalties?
I fail to see the relevance. If they feel it's assur, then how is it different than willing to be incarcerated or fined rather than permitting chillul Shabbos?
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Depends on how you view the basis of the prohibition. It could be doreissa mesira - then you could say that a Jew has to be prepared to die rather than report. But it could be that the prohibition is a rabbinic. Perhaps it is simply a chumra. There are various scenarios in which the transgression of mesira would be permitted in cases of hefsed meruba.
Messira is a code word that covers a variety of situations. For example it was recently reported that someone who "aired the community's dirty laundry" was a moser.
I'm talking mesirah, literally. Turning a guy over to a system where being beaten or raped by other men is a real possibility.
ReplyDeleteThe fact that people throw the word around flippantly has little to do with our conversation. Here we are talking about literally going to a prosecutor and risking the fellow going to jail. Real mesirah.
Now, to repeat after this clarification: Either the danger to the community is the overriding chiyuv, and mesirah is obligatory. Or mesirah is prohibited, and one would be obligated to violate the mandatory reporting law. Given the specifics of the particular case, I don't see how being a mandatory reporter would impact the pesaq.
micha said...
ReplyDeleteI'm talking mesirah, literally. Turning a guy over to a system where being beaten or raped by other men is a real possibility.
The fact that people throw the word around flippantly has little to do with our conversation. Here we are talking about literally going to a prosecutor and risking the fellow going to jail. Real mesirah.
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this is apparently the position of the Aguda. However if you go through the teshuva literature you see that it isn't so. For example
Rav Yehuda Silman (Yeschurun volume 15 page 662):. … 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.
Actually, my point was vague enough to be anyone's position on when to call the authorities. I just said that either one is chayav to call, or it's assur to call, and I don't see how civil law changes where that line should be.
ReplyDeletemicha said...
ReplyDeleteActually, my point was vague enough to be anyone's position on when to call the authorities. I just said that either one is chayav to call, or it's assur to call, and I don't see how civil law changes where that line should be.
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But we see that is no so. It is permitted to call in self defense and we do not have to be concerned about the consequence to the assailant.
Similarly in BM 83. When Eliyahu complained that Rav Yosse was reporting Jews to the authorities and he replied that he was mandated to do so. Eliyahu didn't say that it was prohibited and therefore he should take the consequences. He just said to run away.
There are poskim such as the Maharam Shick who say this is really not about the prohibition of moseir but rather about the propriety of squealing. The Maharam Shich says that we learn that a gadol doesn't do the reporting but that it is permitted for a lesser being.
"But we see that is no so. It is permitted to call in self defense and we do not have to be concerned about the consequence to the assailant."
ReplyDeleteWhat does that have to do with what I wrote? Again: There are cases where one has to call the authorities, and cases where one is prohibited. I didn't say anything about which cases are which, so I do not understand your "not so".
What I did say was that if the RCA puts the line in one place for the rest of us, why do they put the line in a different place for mandatory reporters? Either this is evil we must remove from our midst, or reporting someone on insufficiently supported rumor. The threat, not civil law, dictates whether or not we are obligated to report, and thus whether or not it is assur to report.
Your "not so" makes it sound like even after my clarification you still believe I said something about how much risk is necessary to override mesirah and thus obligate me to call the prosecutor's office. I did not; just said the grounds for deciding the call shouldn't depend on my state's reporting laws.
This is a fascinating post from R Shapiro, and spot on.
ReplyDeleteIts an old story, really, and part of human nature - seeing the trees, but not the forest.
As a young lawyer, I was taught an old expression I will never forget. I was at a commercial contract closing, and examining the document for negotiating points or flaws. I found a lot, and painstakingly pointed out each one to opposing counsel. The first few points and flaws I called attention to were grudgingly acknowledged by the other fellow, but after a while, he said something like this, "Any ordinary lawyer can break a deal, it takes a good lawyer to make a deal." I learned my lesson, and dropped the small points, and cut to the chase.
Just as a prospective deal can be over lawyered and broken up, Jewish life is being over rabbi'd.
How many angels can dance on the head of a pin?, is still another way of putting it.
The starkest difference to me between the competing and conflicting Aguda and RCA statements on mandated reporting (and unlike the 2007 and 2005 RCA Resolutions, I had no hand in this latest RCA statement), is that the RCA quotes G-d, and Aguda quotes two rabbis.
The RCA sees the big picture, the forest, and quotes verbatim the most relevant Torah pasuk, the emotionally driven and very demanding, Lo sa'amod al dam ra'echa, Do not STAND on the BLOOD of your BROTHER. Experience has shown that these are famous words that Jews naturally relate to - they're part of our very fiber, our essence, they're words that almost don't have to be taught to us.
Aguda, meanwhile, in their statement, cites two rabbis, excellent rabbis, respected rabbis, smart rabbis who have written teshuvas on the subject we're talking about, but, at the end of the day...they're rabbis.
So I agree - it is the "natural morality", in the words of Rav Kook, ztl, that Jewish people find so appealing, and that is what the RCA statement, quoting the Ribbono shel Olam himself, has tapped into.
>I don't understand why such smart people in the Agudah don't see how their new position is doomed to failure.<
ReplyDeleteTeretz: Because they ARE stupid!