Tuesday, February 12, 2013

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.

16 comments:

  1. Whilst I am not a supporter of any side in this matter, I wish to raise a point that emerged from another discussion entirely.

    The Epstein series of articles was berating some gedolim, especially R Shachter, for certain new-ish approaches to inducing a Get.
    However, in the Vishnitz story (or was it the Syrian one?), you were quick to suggest that all communities, all rabbonim have used takkanos in the past, and continue to do so.

    Why, therefore, is a YU affiliated Rav not allowed to institute a Takkano? And Then R Belsky, who is mainstream Torah VoDaas, was attacked also for his approach to Gittin, as was R' Kamenetsky.

    Why are Takkanos OK for some, but not for others?

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    1. Eddie the issue of whether a Get is a get me'usa is a question of understanding a doreissa din. However saying that despite the fact that there is a conversion process in halacha but we will refuse to convert anyone since it is difficult to know the sincererity - is a takana. According to your sevora when the Conservative movement said it was permitted to drive to Shul on Shabbos it was o.k. because they are simply making a takana?!

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    2. That's a fair point, but I assume that those who have implemented this process do not see themselves as violating a D'Oraita halacha.
      The conversion issue you mention, is not as you describe. The reason for the ban was to prevent, forgive my metaphor "foreign imports" into the community, even if the conversion was valid through a recognized beis Din.

      Regarding driving on shabbos, I previously mentioned a case in Mexico, where gedolim said it is better for many to drive on shabbos, than for a d'rabbanan or even minhag of "barmitzvah" to be held on a sunday!

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    3. Eddie you succeeded in missing my point and simply used the fact that I made a comment as an excuse to get on your soapbox. I would appreciate it if you read my comments more carefully.

      Your description of the conversion process is wrong. Please produce documentation to support your version. You seem to prefer "reading between the lines" rather than the lines themselves.

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    4. DT, I accept your comments, and I did take my soap box a bit off topic.

      I don't believe we are discussing a conversion process, rather an issur on accepting kosher converts? This is how I understood the Syrian ban and the Persian copy of that ban.
      To ban a non-kosher convert is a truism, and doesn't need an extra ban.

      The letter published was about not allowing gerei tzedek to marry into a community, and only after 1 generation can they marry , under certain strict conditions.

      This seems to be borrowed from the restrictions on Mitzri and Edomi converts, except that Torah Law is 4 generations.

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  2. Give me a break! You write: "his case apparently does not even have the status ma'os alei (the thought of being with him disgusts me)"

    I am really surprised at you, cloaked in the clothing of "daas torah" -- have you lost your understanding of tznius????

    Do you think you know all the facts and that it is out there for everyone to read on the internet? DO YOU not consider that maybe there are private issues that go on in the bedroom that a bas yisroel is not going to make public, out of self respect and/or the respect of her child. Or maybe just respect for the klall.

    It's like you are running your own kosher version of a soap opera. You are so used to everything being exposed, hanging out for all to see, you forget what the brocha of "ma tovu ohalecha yaacov" was even about -- "It's not the neighbor's or the public's business to know what goes on within the privacy of someone's home."

    I am not saying Herzfeld is an authority, and I have found him to be someone of a caricature and seriously misguided at times. But who are you to be passing din on a bas yisroel based on articles you read -- without being on the inside chamber of a beis din where the rabbanim hear the actual details of what went on inside the daled amos of the couple's private life?

    Enough said.

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    1. Balak you have a rather obnoxious way of expressing your views. Esepcially since you insist on remaining anonymous your comments carry no authority.

      Your conjecture concerning the "real" reason for the breakup runs contrary to statements she has made not only in public but in private. Your arrogant rant doesn't help the situation.

      If you have something intelligent to contribute please do but other wise just be quiet.

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  3. (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.


    I don't get the logic here. Not at all.
    The Amish shun people all the time(at least that is what the sociological studies say) and it never winds up on in the NY Times, or prime time news. Or even splashed on the internet. Miriam-Webster regarding shunning: to avoid deliberately and especially habitually.

    No part of that definition is to embarrass or try to get fired. So I simply can't follow the logic, where it goes from distancing oneself from a person to character assassination.

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  4. "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"

    Can anyone please cite for me a single case where a YU - modern Orthodox type rabbi ever publicly condemned, embarrassed, and ostracized a Jewish wife for alleged misconduct in her divorce case, and where that same rabbi also informed the Jewish wife's employer that he has the right to fire the lady "today"?

    Exactly why should a militant feminist political activist be characterized as an Orthodox "rabbi" or "rabba"?

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  5. Since Rabenu Tam and the Gaon say that the pressure used in this case can not annul a get then it is Not a din Doreissa. Their is one Achron who said to be Machmir mesafek which is the basis of present day Poskim being Machmir . To annul a Get it takes the same thing as annulling any regular monetary contract , true force or clear proof that it was not in his interest to do so.
    I

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    1. Your assertions are not correct. This has been discussed in great detail in the past - just search for get me'usa in the archives. The majority of poskim- whether Rishonim or Achronim - indicate that there is at least a sofek doreissa whether the get is valid.

      Would you advise someone to marry a woman whose Get has a sofek doreissa whether it is posul?

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    2. The gemara in bava basra 48A talks about a forced GET by a secular court that ITS POSUL EVEN IN A CASE WHERE THE MAN WAS OBLIGATED TO GIVE A GET. Rashi there states "POSUL" " and if she remarries with such a GET she will need a new GET from both husbands. So you see how strict one must be in matters of Gittin. it is interesting to note that the AGUNA of the Gemoro wishes that her husband return alive and well. In contrast to the modern day Aguna, who wishes he were dead!!! I find it so interesting that no where in contemporary Jewish issues does a issue cause such a stirrup in the public as we see by GITTIN. Do you see rabbis getting all worked up against those guilty of molestation acts? Does ORA have any rallies to protest the rapes of our children? Do you see rabbis of shuls honoring seiruvim against men who were recalcitrant litigants in financial matters? of course not!!! The reason why we see this just by Gittin is for 2 reasons: 1) The Feminist revolution 2) millions are spent a year in matters of divorce and these corrupted rabbis who operate bais dins or their buddies are afraid to lose control where lots of money is at at stake when others dont follow their rulings, hence their bashing of other Bais Dins or husbands who go to those upright bais Dins. Unfortunately ORA and others like them have exploited the naive in society to believe that every woman without a Get IS A VICTIM! Many of these women are instigators and self made AGUNAS. The Gemoro quoted above has mentioned that the Tanaim had a hunch that one day women will resort to secular courts TO FORCIBLY EJECT THEIR HUSBANDS in their quest to have sex with other men. Therefore they forbade any secular court action to force a GET. Today In Ny it is happening especially in the Perlman case and the rabbis dont care and will allow her to remarry with such a GET!!!

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  6. i am not getting something. has the husband agreed, in principle, to divorce his wife?

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  7. Where did Herzfeld get semicha? Does the Wash rabbinate group accept him? Does the person who gave him semicha have the right to give Semicha?

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    1. http://en.wikipedia.org/wiki/Shmuel_Herzfeld

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