Monday, June 4, 2012

Reporting Abuse:At last - R Zwiebel clearly explains the Aguda's view


[This is a an interview I posted a year ago - which has direct relevance to the current interview I just posted- see comments]

[Since this is of great importance for all Jews and since this is the first time the Aguda has clearly stated their position - I am presenting the entire halachically important article from Mishpacha for critical examination and enlightenment]

 A few Minutes With...
Rabbi Chaim Dovid Zwiebel [pages 30-31 Mishpacha Magazine August, 3 2011] 

Agudath Israel of America recently clarified its position on when one is halachically permitted to or required to report suspicions of any form of child abuse to authorities. That clarification led to further debate on a potential clash between halachah and secular law. Agudah's executive vice president, Rabbi Chaim Dovid Zwiebel, discussed this further with Mishpacha's news editor; Binyamin Rose

Would the Agudah support the formation of or put resources into a hotline or a board of rabbanim with the knowledge and expertise to guide people who suspect abuse?

We are definitely looking into this. I had a discussion with a member of the Moetzes Gedolei HaTorah about how we should be following up. There are some concerns about a hotline in light of the fact that the sensitivity of the issues might require a face-to-face conversation rather than just an anonymous call over the phone. Certainly we believe that in light of everything that's going on in the world today, rabbanim should familiarize themselves with the signs and symptoms of abuse, as well as the issues involved in how and when they should be reported, and to whom. Agudath Israel has organized conferences and seminars for rabbanim and mental health professionals. We feel there is room to expand such forums to include a wider list of rabbanim who would familiarize themselves with all the issues and who would then be qualified and capable of providing guidance to Klal Yisrael who have these kinds of sh'eilos.

 What categories of people are considered by law to be mandated reporters, and what happens if there is a clash between the law of the land and the halachah? Does dina d'malchusa dina prevail?

 This is something that is usually subject to state law jurisdiction, so each state will have its own laws and regulations. The law that applies in New York, in general, lists a dozen or so categories, including teachers, pediatricians, and other health providers, who encounter children in their professional capacities and have reasonable cause to suspect that a child has been abused. Other people, such as the next-door neighbor, are not mandated reporters under the secular law. They are permitted and maybe even encouraged to report, but there is no New York statute that requires them to do so.
Regarding the second part of your question, I think those clashes will be few and far between. The secular law in New York State mandates you to make a report if you are on their list of categories and have "reasonable cause to suspect." Under the guidelines of Rav Elyashiv shlita and other gedolim, raglayim I'davar comes mighty close to "reasonable cause to suspect." They are so very close in my opinion, that I don't envision frequent clashes between the secular law and the halachah.
Where a conflict could arise would be in a case where a rav says not to report, but the person's lawyer says he must. In that case, I suppose part of the process of the sh'eilah to a rav could also be where the person goes back to the ray and says, "You told me not to report, but my lawyer says I have to, so does that in any way affect your psak?" The moreh hora'ah will then have to decide how that fits in with the overall equation in determining his final answer to the sh'eilah. 

Wouldn't the requirement to consult with rabbanim first delay the reporting process, thus leaving children at greater risk? 

Under secular law you are required to report promptly according to the statute. Even under secular law, if an inexperienced pediatrician sees something that makes him nervous, he may wish to consult with a more experienced doctor. Senior law enforcement officials have told me that such a consultation does not conflict with the law.
Where the process outlined by the gedolim under raglayim I'davar requires consulting with a rav first, a conflict might arise if that consultation would interfere with the immediacy of a report, but it should not delay the process any longer than the length of time it would take for two doctors to discuss the case between themselves. 

Are there efforts underway to reconcile the reported differences on this issue between the Agudah and the Rabbinical Council of America? 

We haven't had formal conversations with the RCA, but there are rabbanim engaged in informal discussions at all times. But I would also like to clarify what we have been referring to as the Agudath Israel position. We don't take positions. AII we did was present the issues at a halachic conference a few months ago and then issue a synopsis of the written teshuvos of gedolei haposkim, mostly in Eretz Yisrael. Not withstanding the very serious prohibition against mesirah, where there is raglayim l'davar, the gedolei haposkim are telling us today that we should report. While this is something very important that we wanted to bring to the community's attention, at the same time, we need to recognize the weightiness of the matter. People should be consulting with a ray who is knowledgeable in this area before coming to conclusions of their own. There is still an attitude that exists in certain quarters of the chareidi world that these matters have to be handled internally and not by the authorities. But today, the mainstream chareidi authorities hold that if there is raglayim I'dav ar, it should be brought to the authorities. In that respect, l don't think the position of the gedolei haposkim is substantively different from that of the RCA. 

People are concerned that incidents of abuse have been swept under the carpet and that victims were even hushed up by prominent community members. Since this feeling has gained validation in people's minds, is there anything in the new Agudah guidelines that alleviates these concerns?

 To the extent that the hushing up that may have taken place was a byproduct of halachic concerns about mesirah, I think the teshuvos of the gedolei haposkim that we brought out in our statement should provide the framework that will at least minimize such instances. We can no longer hide behind a blanket prohibition against reporting to the authorities if the gedolei haposkim are saying you should report to the authorities. That was one of the reasons we decided to publish our statement, even though we knew it would generate some backlash and controversy. 

It is clear that allegations of abuse can destroy a person’s reputation and family forever, and that people have misused the system to exact revenge. ls this due to a flaw in the system, and is it correctible? 

One of the advantages of the raglayim l'davar standard is that the halachic authorities are telling us you need to be very careful before you report. If it is eizeh dimyon, as in the phrase Rav Elyashiv used- mere conjecture – or if you have some vague sense, that's not enough. Part of what Rav Elyashiv and the other poskim are telling us is, this is dinei nefashos on both sides of the equation and we have to find a balance. We are concerned about some of the statements made by a few advocates for the victims, because there seems to be a lack of appreciation that sometimes allegations of this nature can be destructive to people who are entirely innocent. 

Is there any community-wide effort to raise awareness among children and parents, or is this just up to devoted volunteers?

 Over the last number of years, this issue has come out of the closet and has become a part of our community's consciousness. The Moetzes Gedolei HaTorah took a step, which would have been unimaginable 10 or 15 years ago, to encourage parents to talk to their children about good touch and bad touch and what to do if someone touches them inappropriately. There are seminars for summer camp personnel on this subject. I don't know that we are where we need to be yet, but I think very meaningful movement has been made, and further steps are under consideration.

53 comments :

  1. I thought his name was Zwiebel, like onion (in GErman)

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  2. I like the last answer:

    "The Moetzes Gedolei HaTorah took a step, which would have been unimaginable 10 or 15 years ago,..."

    I call this progress. Perhaps others will call it "reform"?

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  3. dinei nefashos on both sides of the equation???

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  4. Even under secular law, if an inexperienced pediatrician sees something that makes him nervous, he may wish to consult with a more experienced doctor. Senior law enforcement officials have told me that such a consultation does not conflict with the law.
    That's very different from a ruling from a clerical authority about whether one can report.

    It's a free country and the Agudah is entitled to this sort of civil disobedience where the standards of the law are placed second to the (unknown) standards of raglayim lidavar as interpreted by rabbis. But while Rabbi Zwiebel wrote that he thinks cases where the law and halacha contradict will be few and far between, he didn't say they will be nil. He is now endorsing potential law breaking and therefore he should be voluntarily disbarred.

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  5. this is rather embarrasing reading - when compared to the early versions. Originally he claimed there was no conflict with mandated reporting. Now he is claiming that there is no conflict since it is no different than a doctor consulting is senior. But this is a clearly a false analogy. He needs to get a statement that allowing a rabbi to moderate mandated reporting is acceptable to the secular authorities. He obviously can not get it so he presents a false analogy.

    He also hasn't explained what the rabbi is doing. He clearly isn't paskening the guilt or innocence - since he isn't functioning as a beis din. That requires hearing testimony. If he is determining that there is a reasonable danger - but the rabbi doesn't have special competence in this area and obviously needs to consult a genuine expert.

    Finally his assertion that it is nefashos on both sides - is not a relevant. The issue is how a person can protect himself against real or even possible harm. The poskim clearly state that to protect yourself and others that you can take measures such as calling the police even if the possible damage to the perpetrator is greater than the potential Torah punishment. BM (83) Even a sofek rodef can be killed

    In short this is an embarrassing mixture of halachic half truths and false logic while avoiding presenting a genuine halachic view.

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  6. I wish there was a like button for your comment Daas Torah.

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  7. Finally his assertion that it is nefashos on both sides - is not a relevant.

    Incorrect. It is very relevant. Falsely reporting sexual abuse bu an innocent person will ruin that man's life and reputation permanently.

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  8. Thank You HaRav C. D. Zweibel shlit"a and the Gedolei Yisroel on the Moetzes to consistently standing up to the pressure from the left wing so-called modern "Orthodox" who try to negate halacha with their own senses.

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  9. Daas said...

    Finally his assertion that it is nefashos on both sides - is not a relevant.

    Incorrect. It is very relevant. Falsely reporting sexual abuse bu an innocent person will ruin that man's life and reputation permanently.

    -------
    Daas you are mistaken and obviously haven't seen the relevant Torah sources. Take a look at BM 83a where the result of turning the Jewish thief over to the Romans was death based solely on circumstantial evidence - and yet he did it and the gedolim pasken like this gemora.

    Minchas Yitzchok (8:148): Is it permitted to report to the police reckless drivers who are a danger to other motorists and pedestrians? Concerning the question regarding motorists who drive their vehicles in a manner which endangers all those who are on the road with them by means of the means different scenarios that are described in his letter. Is it permitted to report them to the police? This will typically result in a monetary punishment or the cancellation of their driver’s license for a fixed period or incarceration in jail and it serves as a deterrent to actions which endanger others. Answer: Even though halacha prohibits causing a Jew to be given bodily or financially to the secular justice system, nevertheless a Jew who endangers other people is not included in this prohibition. This is explicitly stated by the Rambam (Hilchos Chovel u’Mazik 8:11) and Shulchan Aruch (C.M. 388:12): “All those who disturb the community and cause it distress it is permitted to give them over to the secular government to be punished whether by beating, imprisonment or fines…” It is obvious that all those who drive carelessly and in a wild manner, endanger the lives of all those are near them. We in fact have been commanded to avoid danger and to prevent it from happening. Perhaps by taking actions against these drivers it will prevent danger and reduce the number of accidents. …

    Rav Silman says we posken like the view that a sofek rodef can be killed. There is a general principle that a person's life takes precedence of that of others

    Bottom line a person is allowed to defend himself and others against perceived danger - even if it is possible that he is mistaken. And it doesn't require a beis din to make the decision.

    For additional sources see Child and Domestic Abuse Volume II - in particular Rav Silman's discussion of sofek rodef - an issue that the Aguda says is irrelevant!

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    Replies
    1. I was giving up the possibilityto hear an orthodox rabbi saying those words. You mechazek me. Thank you.

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  10. daas, you can no longer play the "left wing, modern" card.

    This is a serious halachic issue, RDE is bringing mainstream sources, not lefty/modernish sources.

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  11. 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.

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  12. Rav Elyashev said (which is what the Agudah and others rely on) that "raglayim ladavar" must be met in order to be able to report someone.

    Rav Elyashev further said a posek must be consulted to determine if raglayim ladavar was met.

    So if you have any issues, take it up with Rav Elyashev shlit"a.

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  13. Ben Torah said...

    Rav Elyashev said (which is what the Agudah and others rely on) that "raglayim ladavar" must be met in order to be able to report someone.

    Rav Elyashev further said a posek must be consulted to determine if raglayim ladavar was met.

    So if you have any issues, take it up with Rav Elyashev shlit"a.
    --------------------
    Rav Eliashiv's teshuva which mentions raglayim ledaver is not dealing with the case of mandated reporting. In other teshuvos where there is pikuach nefesh he does allow a doctor to report even if the child might be placed in a non religious foster family.


    In addition R Gottesman said that the Aguda poskens like the Yam Shel Shlomo. Who - contrary to what was stated as the Aguda position - does not require a rav but says a distinguished person should report to the police.

    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.

    The issue is to be objective - and this is also what Rav Eliashiv states that we don't want reporting because of some fantasy or vendetta.

    In contrast if you read the Aguda position you see that the prime consideration is that a rabbi must moderate the position - even if he is not an expert and not objective.

    In sum - the issue is whether a rav is required to moderate reporting in the case of mandated reporting. Rav Eliashiv does not address this issue. Secondly the main concern of the Yam Shel Shlomo is objectivity - not whether a rav is involved

    Yam Shel Shlomo (Bava Kama 3:9): … We see also in Erchin (16b) that it is permitted to hit another to chastise them. However this permission to hit another Jew for the sake of chastisement is not given to all Jews but only those who have a reputation for integrity that it is clear they are only doing it for the sake of Heaven. And he must also be a very distinguished person. But an ordinary person is not allowed because if so than there would be anarchy and society would be ruined. Every low life will go and hit his fellow and claim it is chastisement because in fact there is no perfect tzadik. In truth the Torah only gives permission for judges to hit other people or an important person whose words should be listened to – if he sees his fellow attempting to commit a sin he is permitted to stop him by hitting him. All depends on what the judges see fit to do. This that there is a restriction that only judges or very important people are allowed to hit others to stop them from sinning is in regards to mitzvos concerning man and G d. However concerning issues between men – for example if a person witnesses another person hitting someone – it is permitted for all men even the most simple – to save their fellow. To save a person from a beating it is permitted to beat the attacker in order to save the victim, as I will explain.

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  14. Rav Elyashev's psak always requires a posek, including in the physician's case where the child may be placed in a non-Jewish home.

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  15. Rav Elyashev's psak always requires a posek, including in the physician's case where the child may be placed in a non-Jewish home.

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  16. "So if you have any issues, take it up with Rav Elyashev shlit"a."

    You write that as if he was the last word in the Jewish world. News flash: He isn't.

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  17. Ben Torah said...

    Rav Elyashev's psak always requires a posek, including in the physician's case where the child may be placed in a non-Jewish home.

    ======================
    what is the psak? That the accused is guilty? that it is likely that the accused is guilty? In fact the rabbi is not equipped to conduct an investigation and if he is declaring guilt - then he really needs to accept witnesses and the accused has the right to defend himself. But the Aguda says there is no need for a beis din.

    Is the psak that this is not a violation of mesira? But as I pointed out if a person has a reasonable suspicion that abuse is going on - that is enough to activate the obligation to protect. As Rav Silman notes - if the person is in fact innocent than it is likely that the government agencies will determine this fact. If you think that your house is being burgarlized - you do not need to ask a rav to call the police. If you suspect that the Jew next to you is carrying a bomb - you do not need to call up Rav Eliashiv for permission to call the police.

    The sole issue seems to be that you need to be as objective as possible given the circumstances. Why does that need for objectivity necessarily mean calling a rabbi rather than a psychologist or hotline or the police?

    The rabbis have a very poor record of protecting victims and stopping abuse - as R Zweibel acknowledges in this pronouncement.

    In addition you need to explain why I need to ask a rabbi when there is mandated reporting. Rav Moshe Feinstein clearly states that mandated reporting - as seen from BM 83 - must be complied with.

    Also why does R Zweibel insist that there can be a situation that a rabbi can tell you not to comply with mandated reporting - what circumstances would justify this?

    In sum - R Zweibel and the Aguda is playing and has been playing a shell game. This issue has very clear sources and psakim which enable clear guidelines to be drawn up - which enable compliance with seichel and mandated reporting - without violating the halacha.

    The only real justification for claiming that only a rabbi can determine whether there is raglayim l'davar - is to maintain rabbinic authority and control. While this is clearly a desirable goal - it is not justified by the poor record of protecting victims from sexual abuse which Rav Eliashiv has declared to be pikuach nefesh.

    The Aguda is clinging desperately to control of the situation and is being forced to relinquish their grip finger by finger. It is not the Aguda which has taken the lead in this area but rather the layman- including bloggers



    I have already gathered together the relevant sources and published them in three volumes. Anyone - Rabbi or layman - who wants to become acquainted with the issues need only read them.

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  18. Rav Eliashiv (Divrei Sinai page 45-46): …See Panim Me’eros (2:155) concerning our issue in which someone found an open chest from which much was stolen. There is reasonable circumstantial evidence that one of the workers was the thief. He was asked whether it was permissible to inform the secular authorities and that this will lead to him to confess … However at the end the Panim Me’eros concludes, “It is improper to turn a Jew over to secular authorities as our Sages say they will treat him like a trapped animal and there is concern that if he confesses they will kill him.” From here it is clear that this ruling is not applicable in our times. Therefore it is permitted to turn to the police.

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  19. Rav Eliashiv notes that in a case of mandated reporting it is necessary to report - but even when it is not mandated it is permitted for tikun olam when there is a reasonable basis.
    =======================
    Rav Yosef Eliashiv (Kovetz Teshuvos 3:231): … 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 83b) 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 – even though he is innocent. Therefore I do not see any justification for calling the authorities in such circumstances.

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  20. .

    Rav Yosef Eliashiv (Yeschurun 15:642): Question: In a case where the parents are abusing the children physically the secular law requires that the matter be reported to the police and the secular government might take the children from the parents custody to place them with another family – possibly even a non Jewish family until they can investigate the matter – is it permitted to report the matter to the police when it is known that the child is in fact being abuse? Answer: The answer to the question is dependent on a number of factors. If the child’s parents are observant of Torah and mitzvos and they have raised the child to be observant then to given the child to a non Jews family or even a secular Jewish family is giving the child over to idolatry. That is because there is no doubt that this will damage the soul of the child even if it is for a short period of time and this will have harmful consequences also on his future upbringing. [We are only talking about a case of abuse which is not life threatening]. We also have to evaluate what is meant by abuse since the secular perspective is entirely different than ours. Because of the complexity of the issue every case needs to be evaluated carefully by a talmid chachom who is great in scholarship and fear of heaven.

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  21. This is the Hebrew to the translation I posted to comments ago. It has the phrase of raglayim ledavar and is not dealing with mandated reporting.

    הגרי"ש אלישיב (קובץ תשובות ג:רלא):
    ... תוכן השאלה אחד יודע שמישהו מתעלל בילד או בילדה בעניני מין, ובאופן שאין בידינו לעצור בעדו שלא ימשיך במעשיו הרעים, האם מותר להודיע על כך לפקיד הממשלה?
    והנה ז"ל הרשב"א בתשובה (ג:שצג): "רואה אני שאם העדים נאמנים אצל הברורים רשאים הן לקנוס קנס ממון או עונש הגוף הכל לפי מה שיראה להם וזה מקיים העולם שאם אתם מעמידין הכל על הדינין הקצובים בתורה ושלא לענוש אלא כמו שענשה התורה - נמצא העולם חרב - ונמצאו פורצין גדרו של עולם נמצא העולם שמם, וכבר קנסו קנסות במכה את חבירו וכו' בכל מקום ומקום דנין לגדור את הדור וכן עושין בכל דור ודור ובכל מקום ומקום שרואין שהשעה צריכה לכן - והנה אמרו דרב הונא שהיה מבבל קץ ידא - ולפיכך ברורים אלו שעשו זה אם ראו צורן השעה לתיקון המדינה - כדין עשו, - וכ"כ בדאיכא הורמנא דמלכא וכענין שעשן ר' אלעזר בר"ש בר"פ הפועלים" [בבא מציעא פג.]
    מתוך דברי הרשב"א שמעינן דבדבר שיש בה משום תיקון העולם יש כח לחכמי ישראל שבכל דור ודור לגדור גדר ולעמוד בפרץ גם במקום שאין לנו צירוף של הורמנא דמלכא וממ"ש הריטב"א בחי' לבבא מציעא[פד:] משמע לכאורה דכחו של הורמנא דמלכא הוא וזל"ש יאמר להן תפסוהו, והא דדאין בלא עדים והתראה, ושלא בזמן סנהדרין, שאני הכא דשליחא דמלכא הוא ומדיני המלכות להרוג בלא עדים והתראה לייסר העולם כמו"ש בדוד שהרג גר עמלקי ושלוחו של מלך כמותו -", אך כפי האמור בדבר שיש בו משום תיקון העולם א"צ בקבלת הורמנא דמלכא.
    אכן כ"ז להתיר להודיע לממשלה הוא באופן שהדבר ברור שאכן ידו במעל, ובזה יש משום תיקון העולם אך באופן שאין אפי' רגלים לדבר, אלא איזה דמיון אם נתיר הדבר לא רק שאין בזה משום תיקון העולם אלא הרס העולם יש כאן ויתכן שבגלל איזה מרירות של תלמיד כלפי המורה מעליל על המורה או בגלל איזה דמיון שוא מכניסים אדם למצב שטוב מותו מחייו. - על לא עול בכפו, ואין אני רואה שום היתר בדבר.

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  22. I can't believe the Aguda said itAugust 8, 2011 at 6:43 PM

    After reading the statements of R.Zweibel, I seriously wonder what is the matter with these people. Nothing they say seems to correspond with the truth. Since when is the idea of raglayim ldavar some major revelation? Without this bolt of mental lightning from the gdolim we thought that you should call the police when you had absolutely no basis for complaint at all! And of course the hushing up which "may" have occurred was just due to mesirah concerns! I can't believe he said that! Before this halachic revelation it was ossur to ever call the police ?! The reason you have to ask a rav has nothing to do with what he knows because now he doesn't know anything. So you have to ask him even if he becomes acquainted with the issues of abuse - what will educating him add to the situation? Doe he hand out dispensations like a priest to allow you to do the sin of mesira?

    I think that this will be the end of the Agudah as any authority in the community. Listening to the pretense of leadership wears thin after a while.

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  23. Halacha, and Rav Elyashev's psak, makes no distinction whether one is a mandated reporter or not. If someone is not a mandated reporter and raglayim ladavar applies (per the psak of a posek) then the non-mandated reporter must report to the authorities -- even though he has no legal obligation to. If someone is a mandated reporter and raglayim ladavar does not clearly apply (as determined by a posek), then the mandated reporter is prohibited al pi din -- as per hilchos mesira -- to report to the secular authorities. Irregardless of how the secular law views the mandated reporter being halachicly unable to engage in mesira.

    In short, if there is a conflict between Torah law and secular law, Torah law prevails. So if a mandated reporter has a Torah obligation not to report and a legal obligation to report, he cannot report.

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  24. R Eidensohn,

    I'm certainly in accord with your comments.

    Can you also elaborate on your view that based on Baba Metza 83, or otherwise, Rav Moshe Feinstein holds that mandated reporting laws must be complied with.

    Elliot Pasik

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  25. Daas Torah said...

    Elliot Pasik said...

    R Eidensohn,

    I'm certainly in accord with your comments.

    Can you also elaborate on your view that based on Baba Metza 83, or otherwise, Rav Moshe Feinstein holds that mandated reporting laws must be complied with.
    ----------------------
    Rav Moshe was very machmir on mesira. Here he is saying don't bring a proof against me that mesira is permitted in general because R Eliezer did it. He only did it because he was mandated by the government.

    Igros Moshe (O.C. 5:9.11): Question: Concerning the matter of a thief who stole a sefer Torah and silver ornaments from the synagogue. Is it permitted to hand him over to the police since it is known that they exact judgment through physical pain and imprisonment for many years? Answer: It would seem obvious that it is not permitted – even if there was no prohibition at all of judging cases before a non Jewish court according to the law of the land [rather than according to the Torah]…From all this it follows that it is not possible to permit turning in a thief to the government to be judged with a jail sentence and other physical punishments…. In addition there is no refutation to this conclusion from the incident concerning R’ Eliezer ben R’ Shimon (Bava Metzia 83b) [where R’ Eliezer informed on thieves to the police.] That is explained by the Beis Yosef (C.M. 388) as being only because the king had appointed R’ Eliezer to that job – but in normal circumstances it would not be permitted. The Beis Yosef is based on a Rashba that he cites.

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  26. In other words, Rav Moshe never said a mandated reporter must report.

    ReplyDelete
  27. The teshuva doesn't even say a mandated reporter may necessarily report.

    ReplyDelete
  28. The key proof here that they're worried more about protecting their own interests than doing what's right is that they think a rav is more qualified to determine "raglayim ladavar" than a professional like a therapist or a doctor.

    ReplyDelete
  29. Daas said...

    In other words, Rav Moshe never said a mandated reporter must report.

    August 8, 2011 2:56 PM
    Delete
    Anonymous Daas said...

    The teshuva doesn't even say a mandated reporter may necessarily report.
    ===================

    Daas you seem to have trouble reading. Rav Moshe said don't bring a proof that you should report from R eliezer since that was mandated reporting. If you remember the gemora when R Yosse gave the excuse for reporting as being mandated he was asked by Eliyahu why don't you run away so that you aren't required to report. This gemora from which Rav Moshe and Rav Eliashiv bring a proof clearly indicates that one needs to comply with mandated reporting and the alternative is to run away to another country.

    Rav Eliashiv also says, that he doesn't need mandated reporting as a reason to report abuse since tikun olam alone is enough. Which implies that if it were mandated that it would be required even if it weren't tikun olam.

    You might also want to see Rav Wosner's discussion of the necessity of obeying laws of the country.
    ==============
    Bava Metzia (83b): R’ Eleazar the son of R’ Shimon once met a Roman official who job was to catch thieves. He asked him what he was looking for? … He suggested that perhaps the Roman official caught innocent people and let the guilty escape. The Roman official said he did the best he could but he was required by the kings command to catch thieves. R’ Eleazar told him how to catch thieves. R’ Eleazar told him to go into a tavern at the fourth hour of the day. “If you see a man dozing over a cup of wine you should asked him what his profession is. If he is a scholar than you can assume that he woke very early for his studies. If it is a worker than he must have gotten up early to do his work… If he doesn’t have these excuses for being tired than you should arrest because he is a thief.” The Roman government heard about this conversation and they decided that since R’ Eleazar had such good advice he should be given the job of catching thieves and he was duly appointed to the task. R’ Yehoshua ben Karcha was upset with R’ Eleazar and sent him a message, “Vinegar son of wine how much longer are you going to deliver the people of our G d to be killed?” R’ Eleazar replied, “I am just weeding the thorns from the vineyard.” R’ Yehoshua replied, “Let the owner of the vineyard himself [G d] come and weed out the thorns.” One day he met a certain laundryman who called R’ Eleazar, “Vinegar son of wine.” R’ Eleazar said that since he is so rude he must be a wicked person so he gave the order to arrest him. After R’ Eleazar had calmed down he went to have the laundryman released from jail – but he was not able….Then the Romans hanged the laundryman and R’ Eleazar stood under the gallows and wept. His students told him not to be upset by the laundryman’s death because he and his son had sexual intercourse with a betrothed maiden on Yom Kippur…. A similar thing happened to R’ Yishmael the son of R’ Yosse. One day Eliyahu met him and criticized him. “How long will you hand over the people of our G-d to execution?” R’ Yishmael replied, “What can I do since the king has ordered me to do it?” Eliyahu replied, “Your father fled to Asia so why don’t you flee to Ludkiah?”

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  30. Rav Wosner (Shevet HaLevi 2:58): … Concerning the issue of reporting the tax cheat to the government see Bava Metzia (83b) concerning R’ Eliezer the son of Rav Shimon bar Yochai. The gemora reports that he reported thieves to the government. This is proof that where the government has authorized a Jew to report thieves that it is permitted. Even though he was criticized “how long are you handing the people of our G d to be killed” – because the punishment for thieves in those days was death. This is relevant also for a similar criticism from Eliyahu Hanavi to R’ Yishmael which is reported in that gemora. However the actual halacha seems that even when it results in the death penalty it is considered “the law of the land is the law.” See the Ritva on that gemora which is found in the Shita Mekubetzes. …Also look at the Responsa of the Alshech who states that a person is not considered an informant for those things required by the law of the land….It is also obvious that this is not comparable to the case of R’ Eleazar ben R’ Shimon (Bava Metzia 83a) which involved danger to the person arrested. In contrast in our case here when they will just punish the person arrested and there is never a threat to life.

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  31. Rav Elyashev: "Because of the complexity of the issue every case needs to be evaluated carefully by a talmid chachom who is great in scholarship and fear of heaven."

    There you have it. Rav Elyashev could not have been clearer. You must first consult a Rov to determine if it is permissible to report to the secular authorities.

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  32. Recipients and PublicityAugust 9, 2011 at 11:03 PM

    What is going on here, why are so many words being used?

    If a child is being molested and the parents know it, they should call the police. This does not take a posek or rocket scientist to figure out because it is no different to the child being mugged or robbed.

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  33. Nowhere in any of Rav Elyashev's applicable teshuvos does he say one needn't ask a rov.

    ReplyDelete
  34. Dovid said...

    Nowhere in any of Rav Elyashev's applicable teshuvos does he say one needn't ask a rov.
    ================================
    Nowhere does he say that you can't report abuse when mandated even if a rav tells you not to.

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  35. Ben Torah said...

    Rav Elyashev: "Because of the complexity of the issue every case needs to be evaluated carefully by a talmid chachom who is great in scholarship and fear of heaven."

    There you have it. Rav Elyashev could not have been clearer. You must first consult a Rov to determine if it is permissible to report to the secular authorities.
    ===================
    that teshuva is not dealing with mandated reporting and it is not dealing with sexual abuse but rather physical non life threatening abuse. It is not relevant to the topic under discussion. He also doesn't say what the purpose of the rabbi is and whether that purpose can be fulfilled by an expert in child abuse. He also doesn't say that a person commits any sins if he doesn't consult with a rabbi first

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  36. DT wrote: "that teshuva is not dealing with mandated reporting and it is not dealing with sexual abuse but rather physical non life threatening abuse. It is not relevant to the topic under discussion..."

    Child abuse and sex abuse are the same in regards to this point (of being or not being a physical/life threatening abuse.) And Rav Elyashev makes no distinction in any of his teshuvos whether a case is or is not a mandated reporting under secular law.

    "... He also doesn't say what the purpose of the rabbi is and whether that purpose can be fulfilled by an expert in child abuse..."

    Rav Elyashev specifically says " a talmid chachom who is great in scholarship and fear of heaven." Can't be much clearer than that.

    ...He also doesn't say that a person commits any sins if he doesn't consult with a rabbi first... Nowhere does he say that you can't report abuse when mandated even if a rav tells you not to.

    He says to consult a big rabbi first. Otherwise you may commit mesira, a sin, if you either don't consult or disregard the rabbis instructions.

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  37. Ben Torah said...

    DT wrote: "that teshuva is not dealing with mandated reporting and it is not dealing with sexual abuse but rather physical non life threatening abuse. It is not relevant to the topic under discussion..."

    Child abuse and sex abuse are the same in regards to this point (of being or not being a physical/life threatening abuse.)

    ================
    Absolutely not so. See the Nishmas Avraham where he contrasts the views of Rav Eliashiv and the Tzitz Eliezar.

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  38. Ben Torah you are simply not reading what I am posting and you seem to be unaware of the literature or a pretending that there are no distinctions. There is in fact a significant difference between sexual abuse and physical abuse. The poskim clearly differentiate a case of mandated reporting and one which is not.

    You can't quote Rav Eliashiv in a case of non-mandated reporting non life threatening abuse and simply say that this is exactly what he would say with mandated reporting when it is life threatening abuse. That is merely your opinion of what he would hold.

    Mesira is not eliminated merely because you consulted a rabbi. Nor is it necessarily a problem if you don't consult one.

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  39. Rav Eliashev never brought up whether a case is or isn't mandated reporting and Rav Eliashev makes no distinction in treating it differently whether it is or isn't mandated reporting under civil law.

    ReplyDelete
  40. Ben Torah said...

    Rav Eliashev never brought up whether a case is or isn't mandated reporting and Rav Eliashev makes no distinction in treating it differently whether it is or isn't mandated reporting under civil law.
    =====================
    You are wrong. Rav Eliashiv does in fact distinguish based on whether it is mandated reporting. As I note before he states that the gemora BM(83) is a case of mandated reporting. But that even if it weren't - reporting is permitted because of tikun olam.

    The Ritva (Bava Metzia 83b) 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].

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  41. Rav Eliashev, in none of his teshuvos on the issue, makes any distinction whether contemporary American or other secular laws consider a case to be mandatory reporting.

    ReplyDelete
  42. Ben Torah said...

    Rav Eliashev, in none of his teshuvos on the issue, makes any distinction whether contemporary American or other secular laws consider a case to be mandatory reporting.
    =====================
    Why don't you acknowledge that you were wrong?

    I didn't say anything about whether he mentioned contemporary mandated reporting. I said that the basis of his teshuva is the gemora BM 83 where it mentions the issue of mandated reporting and that Rav Eliashiv says that even without mandated reporting tikun olam is sufficient to allow reporting.

    You have the burden of proof that he doesn't think that secular law requires a person to report - unless given permission by a rabbi.

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  43. You're missing the point. BM 83 doesn't address the issue of first asking a Rov/Posek to determine whether the variables of the case meet the halachic requirement to report. Sure, when there is mandated reporting AND tikun olam would be to report, one must report. But you still need a Rov/Posek to make that determination. Rav Elyashev does not give license in any of his relevant psak's to not first ask a rov/posek if in fact the halachic necessary attributes of tikun olam apply in that particular case at hand.

    SECONDLY, Rav Eliashiv in the very teshuva we are discussing (Kovetz Teshuvos 3:231) clearly and unambiguously makes the following disclaimer that proves my points:

    "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."

    (Note the portions I emphasized with capitals. There must be proof that is certain in order to report someone to the secular authorities, according to Rav Eliashev shlit"a.)

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  44. Recipients and PublicityAugust 10, 2011 at 10:14 AM

    Can't believe all this verbiage and stonewalling.

    The era of the shtetels is over. Slavery, Feudalism, Czarism, Fascism, Nazism, Communism and Bolshevism are all gone now.

    Jews no longer live in old Eastern Europe or the Oriental countries. Everyone is in the open liberal Western democracies, including Israel where it is common practice to go to the police and to court for the most minor "infractions".

    If two cars scrape each other, the police are called or a police report is filed. If a neighbor blocks a driveway people call the police. If someone sees a shadow in their garage or hears a bump in the night the police are called, even if there is nothing to fear, and rabbis are not called or consulted first as they would do the same thing if their cars were scraped or their driveways blocked.

    So how much more so if one's child comes home, or goes to school, with signs and symptoms of sexual or physical abuse, either teacher or parent are obligated to report it to the police. Not to do so is to act stupid and recklessly.

    Similarly people go to court to sue each other every day. Rabbis do it and geonim do it. People hire frum lawyers yet to rush to take to court their neighbors or anyone that can be sued or pay insurance claims, the bigger the case and the jury the bigger the case.

    If one trips and falls on the holiest neighbor's property that neighbor gets sued and dragged to court whether they like it or not, no ifs ands or buts from rabbis, in fact the Satmar Rov, Rav Yoelish z"l is reputed to have instructed followers that they have a chiyuv to sue in court to get compensation (maybe that's why his great-nephews never cease to fight each other in court) so why should an abused or violated Jewish child, a wife, a young woman or vulnerable boy not get his or her day in court, sue the perpetrators, or even get them arrested by the police and thrown in jail (there is kosher food and and daf yomi there too in modern jails, so it's not so bad) for violating human and civil rights not to mention many prohibitions in the Torah and Chazal to watch over the weak such as the "Ger, Yasom, Ve'Alamanah", exhortations to do Chesed and Tsedek and not to be a menuval birshus haTorah to hide behind the Torah to avoid ridding Jewish society of its malcontents etc?

    ReplyDelete
    Replies
    1. Let's rephrase some of the previous comments:

      (1) Instead of taking R'Moshe Feinstein's words out of context, why not say - suppose R'Feinstein were asked if it's permitted to report an abuser, at risk of his/her child's being further abused? R'Feinstein IMO would have responded, by all means, remove the child from further painful experiences (this would have been consistent with R'Feinstein's psak that you should not be moser a thief, at risk of thief enduring PHYSICAL PAIN at the hands of the penal system.
      So whoever quoted R'Moshe above, PLEASE think it over again? Thank you.

      (2) Re: the one who quoted R'Elyashiv (which i'll copy/paste below) - oh? And what about abuse affecting a Jewish child's soul for eternity? Therefore, imo, there should have been "kibbutzim" set up for kids involved in such a situation. Kibbutzim run by a group of empathetic types of young couples, say, sets of 2 couples assigned to twenty kids. After all, there are group homes organized by Hamaspik, so why not this as well?

      NOW HERE'S THE COPY/PASTE:
      Rav Yosef Eliashiv (Yeschurun 15:642): Question: In a case where the parents are abusing the children physically the secular law requires that the matter be reported to the police and the secular government might take the children from the parents custody to place them with another family – possibly even a non Jewish family until they can investigate the matter – is it permitted to report the matter to the police when it is known that the child is in fact being abuse? Answer: The answer to the question is dependent on a number of factors. If the child’s parents are observant of Torah and mitzvos and they have raised the child to be observant then to given the child to a non Jews family or even a secular Jewish family is giving the child over to idolatry. That is because there is no doubt that this will damage the soul of the child even if it is for a short period of time and this will have harmful consequences also on his future upbringing. [We are only talking about a case of abuse which is not life threatening]. We also have to evaluate what is meant by abuse since the secular perspective is entirely different than ours. Because of the complexity of the issue every case needs to be evaluated carefully by a talmid chachom who is great in scholarship and fear of heaven.

      Delete
  45. Ben Torah said...

    You're missing the point. BM 83 doesn't address the issue of first asking a Rov/Posek to determine whether the variables of the case meet the halachic requirement to report. Sure, when there is mandated reporting AND tikun olam would be to report, one must report. But you still need a Rov/Posek to make that determination. Rav Elyashev does not give license in any of his relevant psak's to not first ask a rov/posek if in fact the halachic necessary attributes of tikun olam apply in that particular case at hand.
    ====================

    You still don't get it. BM 83 establishes that where the government requires reporting that one needs to report. It doesn't say that you need to ask a rabbi first.

    Where does Rav Eliashiv say that getting a psak from a rabbi is an absolute prequisite of calling the police - even when there is mandated reporting?

    What is the purpose of asking the rabbi for permission? Does the rabbi grant dispensation? Does he determine guilt or innocence? Does he interrogate the victim and accused perpetrator?

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  46. DT: What is the purpose of asking the rabbi for permission?

    For the same logic that Rav Eliashiv insists a Talmid Chochom first approve of the action in the psak at Yeschurun 15:642.

    ReplyDelete
  47. You've also ignored my point that Rav Eliashev shlit"a, in his psak at Kovetz Teshuvos 3:231, insists that in order to report to the police/government it can "ONLY" be done if the "PROOF" is "CERTAIN". (Quotes from Rav Eliashev's psak.)

    ReplyDelete
  48. Ben Torah wrote: SECONDLY, Rav Eliashiv in the very teshuva we are discussing (Kovetz Teshuvos 3:231) clearly and unambiguously makes the following disclaimer that proves my points:

    "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."

    (Note the portions I emphasized with capitals. There must be proof that is certain in order to report someone to the secular authorities, according to Rav Eliashev shlit"a.)

    =====================
    If there is tikun olam for reporting even a suspicion would Rav Eliashiv allow it?
    Is their tikun olam of avoiding the chillul haShem of advising an Orthodox Jew to violate the law of the land and being viewed as being more concerned for the negative publicity than the welfare of our children?[a comment that a judge actually made in an abuse case]

    Is Rav Eliashiv assuming that reporting automatically gets the person arrested even without any valid evidence? It is clear from the literature that if there is suspicions of abuse that a person can be fired from their teaching job or any job which involves contact with children.

    As I have repeatedly stated, Rav Eliashiv is only making this condition in a case where it is not mandated reporting but simply the possibility of tikun olam.

    Why don't we try a different approach. According to you, is there a requirement to go to jail rather than report what the secular law requires when a rabbi has not given permission? Do you hold that unless a rabbi gives permission by definition it is a case of mesira or it is merely a breach of respect for rabbinical authorities?

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  49. Ben Torah said...

    You've also ignored my point that Rav Eliashev shlit"a, in his psak at Kovetz Teshuvos 3:231, insists that in order to report to the police/government it can "ONLY" be done if the "PROOF" is "CERTAIN". (Quotes from Rav Eliashev's psak.)
    ===================
    Rav Eliashiv only requires a reasonable basis to suspect abuse is occurring. He explains that there has to be raglayim ledavar and not just imagination - because that is needed for tikun olam. You need to look at his entire statement

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  50. Ben Torah said...

    DT: What is the purpose of asking the rabbi for permission?

    For the same logic that Rav Eliashiv insists a Talmid Chochom first approve of the action in the psak at Yeschurun 15:642.

    ======================
    which is?

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  51. I tend to agree with Recipients and Publicity regarding the fact that so many people are "hung up" on convoluted words which complicate and obfuscate issues. That's exactly what causes the Satan to be full of glee - the fact that people stymie themselves with debates and counter-debates ad nauseum, instead of seeing things clearly and straightforwardly, avoiding the use of double-negatives which make one's head swim.

    I'll offer some ideas for resolving Orthodox Jewish societal issues, though I doubt any of this will be taken seriously, just as happened with some prominent publications I'd written to over the years.

    (1) Kibbutzim should be set up (reminiscent of Ir Miklot) for people who are in troubled situations to run to. They can be called "YeshivAmish". Just like Hamaspik has been addressing the issues of special needs kids, similarly, Orthodox Jewish society should address the needs of any troubled people in their midst who have fallen between the cracks, no matter whether young or old. Pain is pain! The YeshivAmish Kibbutzim can be assigned to empathetic couples, sort of like a permanent summer camp. The structure of the YeshivAmish kibbutzim should be flexible, rather than rigid, addressing each person's needs. When he/she wishes privacy, they should have a private room (or cubicle) to retreat to and sleep in. When they wish to socialize or educate or entertain themselves at various on-site facilities, they can do so. If they wish to practice their green thumb, or even milk cows, that would be available as well. All this requires money, and above all chochma to set up - the sort of chochma which is required of programmers and engineers.

    (2) As for bringing TRUE perpetrators to justice - I.E. how to quickly determine who is guilty? The answer has been there for years. Just research QXCI/SCIO which based on quantum physics, and therefore is akin to accessing The All Knowing. That's the extent of its accuracy, both in diagnostics and other areas. If whoever is reading this is a non-believer, that would make you irrational, unless you actually try it yourself. Here's how: If you know of anyone who has a type of unusual pain THAT HAS NEVER BEEN PICKED UP ON BY CONVENTIONAL PRACTITIONERS, such as continually achy muscles in left calf, or continuous cold-sores somewhere in mouth, have them visit a legitimate SCIO practitioner (another such system is LIFE system). Then just see what quantum-physics discloses, that your doctor has not. You'll be amazed.

    ReplyDelete

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