R' Herzfeld's "heter" to publicly embarrass Aaron Friedman

In the course of investigating the question of using emotional abuse for educational purposes and chastisement, I came across this essay on the internet by Rabbi Shmuel Herzfeld. Besides directly addressing the issue - it also involves an issue which has been hotly debated on this blog - the demands of Tamar Epstein that her husband Aaron Friedman give her a Get. It is important to note that Rabbi Herzfeld nowhere establishes that a man whose wife demands a Get - simply because she doesn't want to be married to him - has a right to a Get. This case apparently does not even have the status  ma'os alei (the thought of being with him disgusts me) and therefore according to the vast majority of poskim there is absolutely no obligation for the husband to give a Get and surely no one has the right to pressure him. According to the traditional understanding of these issues she does not even have the status of Aguna.  In spite of this failure of showing the applicability of his halachic analysis and source to the Friedman Epstein case he asserts : "So from the perspective of Jewish law the matter is clear: If a person is not giving his wife a Get and is using it as leverage, one can (and depending on the circumstances, should) embarrass him publicly even to the point of threatening his livelihood. "His quote from Rav Herschel Schachter is likewise problematic. He has posted the full letter on the interenet here - When is it permitted to publicly embarrass someone publicly?   I have provided links to other examples of his thinking here: Open Letter to House Ethics Committe against Aaron Friedman          Why being gay is not immoral  Why boss has right to fire him for not giving get

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And yet, all this being the case the rabbis tell us that under certain conditions one must embarrass another person publicly. [...]

In other words, the Sefer Hachinuch draws a distinction between a personal sin where one should refrain from embarrassing a person, and a sin between man and God where one is obligated to embarrass the sinner.[...]

The Minchat Chinuch comments on this as follows:

“The distinction that Maimonides and Sefer Hachinuch draw between sins against a fellow man and –where it is prohibited to embarrass and shame someone publicly—and between sins between man and God—where we do shame people publicly—is specifically between two people.  That is if one sins against another person, then the person who is wronged should not embarrass the other person publicly, as it is better for him to forgive the sin.  However (when a third party is involved) if one sees that a member of the community is sinning by hurting another person then one may shame him.  Indeed the prophets used to shame people publicly for sins that were committed against fellow men.  The books of the prophets are filled with these examples.  It is just the wronged person himself who is prohibited to shame the other person and who is encouraged to forgive.”

In other words the Minchat Chinuch is teaching us that if we are a third party that is witness to a wrong being done against a person the laws of embarrassing someone publicly do not apply.

Now we must be very, very careful before applying these laws and acting upon them.  The potential for a misreading of the law, of the situation and of our own intentions is very great.  And of course, the potential damage to another and to our own spiritual well being is enormous and should cause us to shudder in fear before intentionally embarrassing someone in public.  

However, at times we are compelled to do so.There is a biblical injunction “lo taamod al dam rei-ekhah,” do not stand by the blood of your brother.  This injunction requires us to not be passive bystanders in the world.  When a person is being hurt or attacked, if we say, “we will sit this one out; it doesn’t affect me personally,” then we are directly violating a biblical commandment.

And while this injunction is true in general it is even truer as it relates specifically to a Get.

Recently the following question was posed to the Erz Hemdah Institute, a scholarly academy in the land of Israel.  Someone asked about a man who was not giving his wife a Get and was then being shunned by the rabbi.  The questioner wrote: 

“I question whether our rabbi has the halachic right to treat him so harshly.” 

This was the answer of the Erez Hemda Institute(Living the Halachic Process, 2007):  “One of the people who we are most required to help…is an aguna.  At different times and place in history, religious courts had the ability to physically coerce a stubborn husband to give a get, when a get was mandated in the most clear-cut manner…In cases that are a little less clear-cut a harchaka d’Rabbeinu Tam can be employed.  This is a painful form of publicly shunning the husband, not only in shul but also in commercial and public settings.”

This position is codified in the Rema’s gloss on the Shulchan Aruch where he writes (Even Ha-Ezer 154): “In any circumstance where we cannot force the husband to give Get by beating him or excommunicating him, we can nevertheless tell people not to do business with him or to do any favor for him in the world (she lo laasot lo shum tovah or lisah ve-litten immo).

So from the perspective of Jewish law the matter is clear: If a person is not giving his wife a Get and is using it as leverage, one can (and depending on the circumstances, should) embarrass him publicly even to the point of threatening his livelihood.  

While this is never a pleasant thing to do; it is also not pleasant to live with the pain of not being able to remarry or go out on a date by virtue of the fact that you are being chained to a recalcitrant spouse.

Although, the halacha is clear I still felt trepidation in this area.  Perhaps I was misreading the sources or perhaps there were other factors that I did not consider.  So I personally discussed this case with Rav Hershel Schachter, a leading authority at Yeshiva University, who is directly involved in this exact case.  He encouraged me to continue on this path.  I specifically asked Rav Schachter if I should let all of Aharon’s colleagues on the Hill know about his behavior and he said, “yes.”

Subsequent to our conversation, Rav Schachter wrote a psak on this matter where he wrote: “Limnoa mei-habaal she-lo ye-agen et ishto—inyan zeh eino tzarikh pesak beit din, upeshita desaggi behoraat chacham, to work to prevent the husband from chaining his wife—this matter does not require a ruling from a Beit Din, and it is obvious that all that is required is a ruling from a single Torah scholar.”  He further noted that the great Rabbi Akiva Eiger also ruled that if we know a man is planning on making his wife an Agunah we can even throw him into jail on the Shabbat itself.  So in this case specifically it is appropriate to convince Aharon to give a Get.

The Halakhah on this matter is clear: Aharon should give the Get immediately and not hold it as leverage.  Until he does that it is permissible to embarrass him into doing so.

Of course, at the end of the day it is not just Aharon who is embarrassed publicly.  The New York Times article did not just embarrass Aharon, it also embarrassed the Torah; it is a Chilul Hashem to see such behavior being conducted under the auspices of the Torah.

But that is not the fault of the New York Times.  That is the fault of our own community for not being strong enough in this area.  

Aharon still has many supporters who are encouraging him in his recalcitrance either explicitly or implicitly through smoke screens and redirected, irrelevant complaints about his ex-wife.  And so Tamar Epstein’s status as an Agunah continues, and for that we should all be embarrassed.