Pure Torah law vs. pragmatic "weeding out the thorns" - BM 83b

[updated again June 18th] There is an underlying issue in my debate with those who insist that the rabbis are the best address for dealing with child abuse. Those who insist that rabbis should take care of abuse are claiming that the Torah has its rules which we are to follow. They assert that we can not modify the Torah to get certain results - but rather we must follow precisely the path prescribed by the Torah. Thus Torah provides a protective barrier against action for them. Action only occurs if that barrier is surmounted by the path defined by Shulchan Aruch.

Rav Sternbuch told me that the welfare of the child is first priority. Thus a community focused on protecting the innocent focuses on "not to stand idly by the blood of your fellow man." We don't sacrifice a child to preserve the image of the community. We don't sacrifice a child to preserve the financial well being of a yeshiva. We don't sacrifice a child to preserve rabbinic authority. That theoretically should be agreed to by everyone - but it isn't. The ones who feel that the community image is first priority, or we must be 100% sure that the innocent aren't slandered or that the welfare of the family of the abuser is first - will look at the situation differently.

Rav Sternbuch also told me that the first task of a posek is to  establish the fact of what is happening. Is a child being threatened or harmed? Who is apparently the perpetrator? Only after the facts are gathered do you go to the Shulchan Aruch and see what the Torah allows you to do in that particular case. The obligation to investigate is required even if the posek/menahel/parent/neighbor needs to listen to rumor and lashon harah to clarify the matter. Those who focus on the image of the community - work the other way. They have a high barrier that much be passed before they get involved. 1) Are there proper witnesses - if not nothing can be done. 2) Is there a crime that is punishable by the Torah? 3) Secular government can't be used if the punishment is greater than that prescribed by the Torah. 4) Using social agencies and the police constitute mesira. 5) use of secular courts is prohibited
 
However if you accept that protecting  the child is first priority a number of apparent halachic problems arise. 1) Most of the time there are  not proper witnesses according to the Torah which requires 2 frum adult males. Those whose prime value is protecting the child utilize the Rema that permits testimony of women and children in situations where men are not found. Those who focus on the image of the community or avoidance of involvement with secular government insist that the strict Torah law be followed and thus since most of the time there are not proper witnesses - their hands are tied which allows them to do nothing while following the laws of the Torah. 2) In addition the advocates for children use the concept of rodef which removes the necessity of formal witnesses and allows the use of circumstantial evidence. Rodef is non-judicial - it simply means you can protect yourself if you think you are threatened or someone else is threatened. However the Rav M. Klein - who is a clear example of following Torah law to do nothing - objected to this approach because he said minimal force is not used to stop the rodef - but rather the police are called. In fact Gedolim such as Rav Eliashiv are well aware that the community is often not effective in stopping a molester and therefore permit the police  be called in and that is in fact the minimum force needed to protect the child. 3) However the concept of Rodef has significant limitations. It is useful to stop perpetrators or suspected perpetrators only when it involves a sin punishable by capital punishment - such as sodomy. But rape of little girls is not such a crime. Rav Eliashiv gets around that objection by categorizing child abuse as pikuach nefesh - which is an implicit acknowledgement of the view of mental health professionals. Therefore the victim is to be saved even when there rodef would normally not apply because of the type of sin or lack of physical harm. (The Tzitz Eliezar results to the use of the Rambam - about one who torments the maases for a heter in this case - see Shulchan Aruch C.M. 388) However the ones defending the community image say - there is no pikuach nefesh because they say an increase in suicide rate 20 years later amongst abuse victims doesn't constitute pikuach nefesh. They don't view psychological destruction as pikuach nefesh. 4) Mandatory reporting - it is clear from BM 83b that if reported required by secular government is obligatory and one does not have to suffer the penalties for non reporting. However those who focus on community image and rabbinical status - argue that only a rabbi can decide the complicated interaction of factors to decide to call police. The child centered advocates says that mandatory reporting can be decided by the average adult and that there is nothing in BM 83b which requires consulting with a rabbi. 5) Community image focused rabbis focus on the serious prohibition of lashon harah as described by the Chofetz Chaim with all the conditions. Rav Sternbuch has written a teshuva strongly criticizing using the prohibition of listening to lashon harah to avoid protecting the children. 6) Using the approach of self-defense rather than the judicial model of guilt or innocence enable the utilization of circumstantial evidence as well as involving the police. The community defenders insist that the community can handle the problem internally and that the prohibition of mesira and use of secular courts is too great a sin. And so the argument goes back and forth.

 A clear example of the pure Torah law versus pragmatic goal oriented halacha - is found in the beginning of Shulchan Aruch Choshen Mishpat.  Shulchan Aruch (C.M. 1) goes through all the things we can't do today without semicha which is required by the pure Torah law. However  Shulchan Aruch (C.M. 2) provides an alternative pragmatic system focused on results not procedures. In fact the Aruch HaShulchan (C.M. 1:1) it cites the Rashba that the Temple was destroyed because of the insistence on following the strict letter of the law - instead of focusing on necessary goals.

Consequently a very functional defense of the victim happens when these alternative Torah paths are followed. However focusing on protecting the innocent rather than focusing on the strict parameters of Torah law takes power away from the rabbis - as Rabbi Zwiebel succinctly summarized the issue.

It is important to be aware that the argument between the goal oriented halachacists and those who view the halacha as a barrier to prevent action -  has been going on for a long time. Here is the granddaddy of them all. R' Eliezar is cooperating with the government to catch thieves who will be crucified. He took the job to prevent the innocent from suffering. However Torah procedure is not being followed. Goyish government is heavily involved. Death penalty is utilized by the Romans for stealing which is not what the Torah prescribes. A prominent rabbi is cooperating with the government and is moser Jews. He justifies it by saying that he is just weeding out the thorns - tikkun olam. The reply of his opponents is that the strict laws of the Torah must be followed and it really doesn't matter whether they are helping the individual or society - any injustice is up to G-d to correct. We are soldier's in G-d's army and our job is not to second guess the will of G-d which is manifested in the Torah.

Bava Metzia(83b): R. Eleazar, son of R. Simeon, once met an officer of the [Roman] Government who had been sent to arrest thieves, ‘How can you detect them?’ he said. ‘Are they not compared to wild beasts, of whom it is written, Therein [in the darkness] all the beasts of the forest creep forth?’ (Others say, he referred him to the verse, He lieth in wait secretly as a lion in his den.) ‘Maybe,’ [he continued,] ‘you take the innocent and allow the guilty to escape?’ The officer answered, ‘What shall I do? It is the King's command.’ Said the Rabbi, ‘Let me tell you what to do. Go into a tavern at the fourth hour of the day. If you see a man dozing with a cup of wine in his hand, ask what he is. If he is a learned man, [you may assume that] he has risen early to pursue his studies; if he is a day labourer he must have been up early to do his work; if his work is of the kind that is done at night, he might have been rolling thin metal. If he is none of these, he is a thief; arrest him.’ The report [of this conversation] was brought to the Court, and the order was given: ‘Let the reader of the letter become the messenger.’ R. Eleazar, son of R. Simeon, was accordingly sent for, and he proceeded to arrest the thieves. Thereupon R. Joshua, son of Karhah, sent word to him, ‘Vinegar, son of wine! How long will you deliver up the people of our God for slaughter!’ Back came the reply: ‘I weed out thorns from the vineyard.’ Whereupon R. Joshua retorted: ‘Let the owner of the vineyard himself [God] come and weed out the thorns.’

One day a fuller met him, and dubbed him: ‘Vinegar, son of wine.’ Said the Rabbi to himself, ‘Since he is so insolent, he is certainly a culprit.’ So he gave the order to his attendant: ‘Arrest him! Arrest him!’ When his anger cooled, he went after him in order to secure his release, but did not succeed. Thereupon he applied to him, [the fuller] the verse: Whoso keepeth his mouth and his tongue, keepeth his soul from troubles. Then they hanged him, and he [R. Eleazar son of R. Simeon] stood under the gallows and wept. Said they [his disciples] to him: ‘Master, do not grieve; for he and his son seduced a betrothed maiden on the Day of Atonement.’ [On hearing this,] he laid his hand upon his heart and exclaimed: ‘Rejoice, my heart! If matters on which thou [sc. the heart] art doubtful are thus, how much more so those on which thou art certain! I am well assured that neither worms nor decay will have power over thee.’ Yet in spite of this, his conscience disquieted him. Thereupon he was given a sleeping draught, taken into a marble chamber, and had his abdomen opened, and basketsful of fat removed from him and placed in the sun during Tammuz and Ab, and yet it did not putrefy. But no fat putrefies! — [True,] no fat putrefies; nevertheless, if it contains red streaks, it does. But here, though it contained red streaks, it did not. Thereupon he applied to himself the verse, My flesh too shall dwell in safety.

     A similar thing befell R. Ishmael son of R. Jose. [One day] Elijah met him and remonstrated with him: ‘How long will you deliver the people of our God to execution!’ — ‘What can I do’, he replied, ‘it is the royal decree.’ ‘Your father fled to Asia,’1 he retorted, ‘do you flee to Laodicea!’