Wednesday, November 20, 2013

Reporting abuse: Did Rav Eliashiv require a psak from a rabbi to call police?

I received the following letter requesting my response to Rav Feivel Cohen's assertion that Rav Eliashiv required that a person needs explicit permission from a rabbi to report abuse to the police in each case. Click here for translated letters and quotes of Rav Eliashiv

Rav Feivel Cohen states it is based on the "Rashba [which] posits that any rav or group of rabbanim who have rabbinical jurisdiction over any locale have the Torah-authorized power to go beyond the punitive measures—both corporal and financial—generally set forth in the Torah for malefactors and impose such penalties as they deem appropriate."

There are two letters - the first one deals with sexual abuse and does not mention consulting with a rabbi. The second one dealing with physical abuse by parents and the possibility that the children will be taken from parent's custody states "In every case it is necessary to obtain the evaluation and decision from talmidei chachomim who are great in Torah and fear of G-d"

Rabbi Feivel Cohen deduces the basis for rabbinical authorization from the Rashba cited by Rav Eliashiv in the first letter. Rav Eliashiv in the first letter noted two sources for reporting abuse to the police. He states that the Rashba says if reporting to the police is tikkun olam [preserving the welfare of socity] one can go beyond that which the Torah permits. He cites the Ritva as indicating that reporting can also be done if there is mandated reporting (based on Bava Metzia 88). If there is no tikun olam and no mandated reporting - such as when there is no reasonable evidence - one can not go to the police.

The Rashba indicates that the rabbis have the obligation to declare that something is a danger to the individual and/or society (i.e., the police need to notified) - even though this might lead to punishment not prescribed by the Torah. That is because of tikkun olam. As the Rashba notes - if we insist on only following the Torah - the world will be destroyed (Aruch HaShulchan C.M. 2). Therefore the police must be informed when it is clear or even reasonable that someone is an abuser. 

In addition Rav Eliashiv considered child abuse as pikuach nefesh as opposed to the Tzitz Eliezer. With this rabbinic acknowledgment of abuse as pikuach nefesh, there is no requirement of a rav's permission in each and every case. Rav Feivel Cohen's understanding of Rav Eliashiv's view would be appropriate if abuse was only a moral issue but didn't involve pikuach nefesh

Furthermore contrary to what Rav Feivel Cohen's understanding of Rav Elieashiv's view - reporting abuse to the police is not inherently a punitive measure. As Rav Silman and others have pointed out - reporting is simply a means of stopping harm to another. The purpose is not to cause punishment against that which the Torah prescribes. This is Bava Metzia (88) where Rav  Elieazar ben Rav Shimon brought about the death of thieves (not a Torah punishment) by reporting them to secular authorities. This is also discussed in Shulchan Aruch (C.M. 388). Reporting is done because of the din of rodef because of pikuach nefesh and Rav Eliashiv viewed abuse as pikuach nefesh. There is no special requirement to get a psak to stop harm to another. As Rav Silman has noted - the police don't automatically declare an accussed molester as guilty and imprison him. Instead they carefully weight the evidence and only if it is convincing to that have him tried in court. If the court finds him innocent he goes free.

In contrast to Rav Feivel Cohen's understanding of Rav Eliashiv's view - Rav Sternbuch told me that one should go to a rav before reporting so that the world should not be hefker. But if the rav told you not to go that one was required to ask another rav since by saying not to go - he was not acting as a rav. Thus in Rav Sternbuch's view it is not because of a unique authority to rabbis to permit something not normally permitted by the Torah. Furthermore since the abuser has the status of rodef - if there is any possibility that going to the rav will endanger children - one should go directly to the police. It is no different than if you see a fire or a burglar breaking into a house. I don't see there is any reason to assume that Rav Eliashiv's view is different than Rav Sternbuch's. 

Furthermore the Aguda view - which Rabbi Zweibel claims based on Rav Eliashiv's psak - says said that if a person has directly knowledge of abuse he can go directly to the police. That the  requirement of going to a rav only was for a case in which there is only reasonable certainty (raglayi l'davar) that this person is an assailant. They claim that only a rabbi can ascertain if there is reasonable evidence. However this understanding for raglayim l'davar is problematic  since in other cases of pikuach nefesh (or sofek pikuach nefesh) and rodef - there is no requirement to ask a rav's permission.

Bottom line. Rav Eliashiv doesn't mention the need for rabbinical authorization in reporting abuse as based on rabbinical authority.  Rabbi Feivel Cohen deduces this need for rabbinical authorization from the Rashba cited by Rav Eliashiv. However Rav Eliashiv states that the reason for reporting clear cases of abusers is either because of tikkun olam or mandated reporting - not because of rabbinical authority.  Even according to Rav Feivel Cohen's view that a psak is required in each case - that would only apply if there was no pikuach nefesh involved. However Rav Eliashiv held that child abuse was pikuach nefesh. According to Rav Eliashiv and Rav Sternbuch - there is no inherent halachic obligation to get a heter to report abuse to the police - if this would cause even possible danger to a child. Going to a rav when there is no perceived danger is not because of the need for unique halachic authorization to allow punishing a person beyond that which the Torah prescribes. The  purpose of reporting is to stop harm - not to punish (tikkun olam). In fact Rav Sternbuch says if the the rav tells you not to report - when you feel otherwise - the obligation is on you to ask another rabbi as long as that doesn't involve even sofek pikuach nefesh.
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Rabbi Eidensohn,
In the latest issue of the OU's magazine, Jewish Action (Winter 5774), there is a letter to the editor from Rav Feivel Cohen in which he describes his understanding of  Rav Elyashiv's opinion on reporting abuse.  Jewish Action Magazine
It appears from his letter that Rav Cohen bases the requirement to get permission from a Rov to report abuse on these words of the tshuva (your translation): "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"
My understanding from your recent post is that Rav Elyashiv's opinion was that a Rov need not be consulted.
I would be very interested in seeing your response to Rav Cohen's letter. 
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Rav Feivel Cohen wrote:
This letter is in response to a request from Jewish Action that I state my view and, to the best of my knowledge, that of Rav Yosef Shalom Elyashiv, zt”l, concerning the topic of reporting molestation.

What prompted this request was a letter published in the winter issue, in which the writer purports to set forth both my view and, more importantly, that of Rav Elyashiv on this topic.
Firstly, I thank the editorial board for making this request.

In order to set the record straight, I need to preface my comments with the following:

As is made clear in Rav Elyashiv’s written response (of which I have the original copy, and which was subsequently printed in Kovetz Teshuvos, a compendium of Rav Elyashiv’s responsa), his answer to the question posed to him is based on Teshuvas HaRashba (volume 3, siman 393; also quoted in the Beis Yosefon Choshen Mishpatsiman 2), in which the Rashba posits that any rav or group of rabbanim who have rabbinical jurisdiction over any locale have the Torah-authorized power to go beyond the punitive measures—both corporal and financial—generally set forth in the Torah for malefactors and impose such penalties as they deem appropriate.

This special empowerment is where one’s malfeasance tends to endanger the desired and called for societal contract among men.

It goes without saying that the aforementioned rav, or his appointed agent (“bo’rrim” in the Rashba’s parlance—not to be confused with the same term when used in the context of a beis din), must practice due diligence in determining the veracity of one who reports such conduct.
All of the above is adduced by the Rashba from numerous citations from the Gemara.

After quoting the Rashba, Rav Elyashiv clearly states that all of the above (that is to say both the nature of the penalty and the determination of the report’s veracity) is at the sole discretion of the rav, and at times, with the appointed agent.

The rav may find that it would be most valuable to seek the input of the secular authorities who have much experience in these matters and also to seek the input of individuals who are privately engaged professionally in these matters.

In conclusion, it is abundantly clear to me that according to Rav Elyashiv, it is absolutely forbidden for any individual to report any malfeasance to the secular authorities without prior authorization from a rav empowered to do so as described above.

Rabbi Feivel Cohen
Brooklyn, New York

28 comments :

  1. Your understanding of the halacha is consistent with that of R' Dovid Cohen of Gvul Yavetz who holds that one does not have to ask a rav before reporting. Even when it is a third party reporting, he said that there is no need to ask but that it is "good discipline" to consult with a rav when one is not sure if the allegations rise to the level of "raglayim ladovar".

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  2. Where did R' Elyashiv say that this is a matter of Pikuach Nefesh? The letters mention tikkun ha'olam etc., but I didn't see pikuach nefesh spelled out. In fact, the implication is just the opposite -- if he held there was a possible life-threatening danger, why would he need to base his psak on the Rashba?

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    1. The Nishmas Avraham(4:208-211) reports a parallel report of what Rav Eliashiv held. He clearly distinguishes between sexual abuse and physical beatings which are not clearly pikuach nefesh.

      There is disagreement between Rav Eliashiv and the Tzitz Eliezar regarding the case of a teacher who rapes his students. The Tzitz Eliezar says that this is a care of rodef and it can be reported to the police - but it is only a case of rodef for male students not for female. Rav Eliashiv says there is no difference between male and female children - that both are rodef because sexual abuse because this is פגיעה נפשית חמורה וכן סכנה לרבים The current Bostern Rebbe also told me that he heard from Rav Eliashiv that sexual abuse is pikuach nefesh "It destroys the nefesh of the person"

      Bottom line - sexual abuse is pikuach nefesh - and Rav Eliashiv doesn't mention going to a rav. In the case where the child is being beaten by the parents and there is a possiblity of them losing custody and going into a non-religious home or non-Jewish home - there is a need for consultation as with rabbis as to which is the least worse of these options.

      The Rashba is generally not understood in Choshen Mishpat 2 that where there is a special takana for tikkun olam for a particular community - that a rav needs to be consulted each time. If the community makes that as part of the takana that is something else.

      In our days there has not been a specific takana made, people are not living in isolated communities. Therefore the interpretation that Rav Feivel Cohen gives to the Rashba is a major chidush in the understanding of the Rashba.

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    2. 1) I looked in the Nishmas Avraham you cited (incidentally, in the second edition the relevant part starts on page 100). It doesn't clearly say that this is an issue of pikuach nefesh, just that it's very serious and harmful. If he meant Sakanas Nefashos, why did he need to cite the Rashba there?

      This is what I asked before -- how do you square the views you are attributing to R' Elyashiv with the fact that he bases his psak on the Rashba and Ritva rather than just being mattir on account of pikuach nefesh?

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    3. 2) I did not understand the point you were trying to make in the last two paragraphs of your response.

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  3. I generally agree with you but it should be noted that the letter in question was addressed to Cohen. He may have some insight into Rav Elyashiv's position.

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    1. Rabbi Feivel Cohen is clearly relying soley on what is in the letters - otherwise he could have simply said "Rav Eliashiv said in all cases of abuse you must go to a rav first" but he doesn't say that. Rav Feivel does not refer to the Nishmas Avraham I mentioned above or the distinction between sexual abuse and non life-threatening beatings as topics of the two letters - and only the latter is there mention of going to a Rav..

      It is also important to note that Rav Feivel ignores the Ritva cited by Rav Eliashiv where he says reporting can be done on the basis of mandated reporting. No mention in the Ritva or Rav Eliashiv that mandated reporting case must be taken to a rabbi first.

      Finally the Aguda says that in their consultation with Rav Eliashiv the only need for a rav is in a case of raglayim l'davar in order to clarify there is solid enough evidence. They mention nothing about this Rashba requiring every case of abuse going to a rav first - as Rav Feivel Cohen asserts.

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  4. I recently saw published someone wrote (R. Yair Hoffman perhaps? It may have been someone else) that they directly spoke to Rav Eliashev on this point, and Rav Eliashev specifically said outright to him that it is mandatory to first ask a shaila and first receive halachic permission whether it is permissible or not to report to the secular authorities before reporting it.

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    1. You need to clarify your source. Furthermore whether we are talking about pikuach nefesh or beating. Is this a case of rodef or not.

      There is no question that there is no clear evidence from the printed sources that Rav Eliashiv required getting a hetter from a rav before going to the police. therefore a vague memory of someone assertion that he heard from Rav Eliashiv - does not supercede the clear written record.

      As was noted in the Jewish Action - even if it can be proven that Rav Eliashiv psakened that one must always go to a rav first - there clearly are authoritative rulings that even if it is sofek rodef - one should go directly to the police.

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    2. I heard the opposite. Tzvi Gluck was with a group of people who asked this of Rav Elyashiv point blank and he said that there is no need to consult a rabbi. They asked him "what if they are not sure if the accused is really guilty?" He answered that the authorities are the ones that can determine that.

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  5. Bottom line. If a religion says you cannot report child rape etc to the police, then I do not want to be part of that religion or cult. I am glad that there are a few people like yourself with an ounce of sechel.

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  6. You can't mess with Reb FeivelNovember 20, 2013 at 7:28 PM

    No matter how much you and your brother dance around your credentials and secular education, I, and most others, will take Reb Feivel's opinion, psakim and his word as the last word and final psak of what Reb Eliyashev said, wrote, meant or otherwise is attributed to him.
    There is not much to be said after he speaks - particularly from the Eidensohn brothers.
    Reb Feivel is a genuine posk and is very careful of what he says and poskens. He research is legendary and especially meticulous.

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    1. you are 100% correct. Reb Feivel is a genuine posek and I am only a psychologist who has a blog.

      However please point out the gedolim who wrote about child abuse in the Yeshuren article that understand the Rashba the way that he does.

      Furthermore - which posekim understands the Rashba as he did?

      One would think if you are asking Rav Eliashiv what to do about child abuse you would ask him about the role of the rabbi - but he didn't.

      I find it strange that Rav Eliashiv only mentioned consulting with a rabbi regarding beating and not sexual abuse.

      Bottom line - Rav Feivel's views on this matter are not that of most of the poskim who have dealt with the issue.

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    2. If, based on the Ritva, Rav Elyashiv says that "in which the Rashba posits that any rav or group of rabbanim who have rabbinical jurisdiction over any locale have the Torah-authorized power to go beyond the punitive measures—both corporal and financial—generally set forth in the Torah for malefactors and impose such penalties as they deem appropriate.",
      then why all the fuss about the Roshei Yeshiva in America , on forced Gittin?

      It seems that the Ritva has a few conditions:

      a) The Rabbis, regardless of their stature, have to be authorities of a certain locale.

      b) They are authorised by the Torah, to go beyond the prescribed punishment (eg in Shulchan Aruch) as they deem fit for the occasion.

      c) Even a greater authority in another locale, presumably, cannot object to their actions.

      So, according to this Ritva that R @Feivel cites, it appear that there is no basis to attack Roshei yeshiva in America, if it is their judgment to go beyond the Shulchan Aruch. Or, that there may be grounds to criticise, but ultimately, the Rabbis are authorised by the Torah to do according to their own judgement, even if it doesn't quite agree with the S.A. It is not reform, and the offspring are not mamzerim.

      The same might apply to the Rabbanut for example. even though they have the same physical locale, they have a different kehilla to say, the Eda, or the Aguda, or Degel, or Badatz.

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    3. Eddie, you are mixing apples and oranges. The Rashba says that rabbanim have jurisdiction to impose penalties and punitive measures. Nobody says that they are authorized to change any laws of the Torah! If the halachah is that excessive pressure causes a get to be deemed as "forced," there is no extra-judicial process of modifying that halachah, regardless of how pressing the need appears to be.

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    4. Zundel, I appreciate what you are saying, and I agree there is no authority to change the Laws of the Torah. For Rambam, the halacha was not like that. So it is not absolute, and presumably the Get is invalid according to later poskim. So you are suggesting the geder, or parameters of Rabbanim is strictly when it comes to fines, lashes etc? It seems to me that it suggests they can go beyond the strict measure of law in imposing a punishment , and this might apply to pressure on "a" husband. I am not speaking about any specific case, or justifying one side or other. I am suggesting that rabbanim may have extensive leeway according to this Rashba.

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    5. Eddie, who were they punishing? The husband didnt even exist, they didn't inquire about the other side of the story, they took money and accepted one side for a contract hit. Did this Ritva give rabbanim authority to have kangaroo courts and attack people physically for money while claiming it's some kind of "punishment?" No, he gave no such authority. The Ritvahad integrity. Please open your eyes.

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  7. Some thoughts on the issue:
    1. Reb Elyashiv was weel known for answering the question at hand and only the question at hand. Consequently, the one who asked the question should be the authority as to when the pesak should apply.
    2. The question posed to Reb Elyashiv was that the Torah does nor proscribe the punishment of jail for any sin. Therefore placing an abuser in jail should be ossur. He answers with the Rashba that the punishment need not be deserved in order for it to be implemented for the good of society.
    3. The Rabbonim necessary for the Rashba to be implemented should only be for the general rule. If the Rov/Rabbonim of a city get together and decide that sexual abuse is a danger to society and that the punishment of placement in stocks or the removal of the perpertrator's nose (both mentioned in Rishonim) is appropriate, we should not need individual permission for each case.
    4. Reb Elyashiv did not mention an opinion as to the dangers of sexual abuse. He answered according to the information presented to him that a victim is damaged for life and that the perpretrator will not willingly change his ways. If this is truly an expert consensus, his pesak stands. Otherwise, his pesak is irrelevant.
    5. The halocho is הרודף אחר הזכור ניתן להצילו בנפשו. Therefore the damage caused by sexual abuse is unimportant. The act of fornication of a male with another male is in itself the damage.
    6. The Shulchan Aruch (Ch"m 388), when he quotes the Rashba, does not mention Rabbonim. A person who was beaten by another person, may go to the police/authorities for protection.
    7. We have yet to hear of a pesak from Reb Elyashiv that we should rely on the investigations of the government to accurately denounce someone as an abuser. Especially when the government persists on using state witnesses, something that was strongly condemned by all who were asked about it.
    I know that some of the points I made are contradictory to the others, but I am just suggesting some matters for pondering.

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    1. Rav Feivel Cohen is not just telling us what Rav Eliashiv said he is interpreting it like Rashi would a gemora. It is that interpretation which is problematic since it is not consistent with the language of the letter nor with Rav Eliashiv's discussion of the issues found in Nishmas Avraham.

      You obviously have not read the Yeshurun vol 15 regarding dealing with child abuse.

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    2. @yankel "5. The halocho is הרודף אחר הזכור ניתן להצילו בנפשו. Therefore the damage caused by sexual abuse is unimportant. The act of fornication of a male with another male is in itself the damage."

      Not sure that your statement is logical. Nor factual. There is much damage that can occur from sexual abuse. 50-60 years ago, it was still imagined by some, that smoking tobacco does not cause any damage. There is serious damage, and usually abusers carry on to find more victims until they are stopped.

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    3. Jail was frequently used by Sanhedrin, so I don't understand #2. In fact, RYSE says that beis din has the duty to involve the civil authorities because they have an obligation to the safety of the community and to remove the evil from our midst. Which is eactly what justified the Sanhedrin's kippah ("domed" jail) as well.

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    4. Eddie - I did not say the damage does not exist. I said it makes no difference. Long before experts proved the damage done by sexual abuse the halocho was that ניתן להצילו בנפשו because of the din rodef. The long-term damage from sexual abuse, contrary to public opinion, may not be absolutely proven. There is much research to show that this fact is not absolute. I am not ch"v justifying abuse, but any decision should be based on the full facts. This halocho of rodef should be part of the equation in case it is necessary.

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    5. Micha - that is precisely what I said. The question was that we don't have such an onesh in our repettoire. The answer was that we do.

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  8. I read the Teshuva again and I am not sure what mistake I could have made. The Teshuva only answers how we can deliver a punishment that is not proscribed in the Torah. I have heard askonim here in Lakewood asking "Where does it say in the Torah the punishment of jail?" (This was two days before the S - K trial. I walked into a meeting of two askonim who support K and I asked them if his inocence is clear. The above was the answer. I printed the Teshuva from R' Elyashiv from my computer right there and the askan admitted he had never heard of it!)
    I am in the middle of looking for the Nishmas Avrohom. Your Mareh Makom does not seem to be accurate. Could you link to the Hebrewbooks page?

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    1. It's on page 100 in the edition on Hebrewbooks.

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  9. The Qovetz Teshuvos, "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." is clearly referring to a question of what the rabbanim should do. Not that he was saying only the rabbanim should do it!

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  10. R' Eidensohn - you didn't respond to my earlier question, which addresses the core assumption of your post. You object to R' Cohen's understanding with the argument (thrice repeated) that R' Elyashiv held such actions to be pikuach nefesh. Yet, I have not seen any convincing evidence that this was his view. The psakim in both Kovetz Teshuvos and Nishmas Avraham do not speak in terms of rodef and pikuach nefesh, but rather in terms of "sakanah l'rabim" which is apparently a lower level danger that can only be dealt with inside the framework defined by the Rashba.

    I'm aware that numerous poskim do use the rodef paradigm, and it's a view I fully appreciate. But the focus of the present conversation is specifically on defining R' Elyashiv's view, and so far nothing you've said has convinced me that R' Elyashiv shared this perspective.

    Please clarify, as this point is critical to the integrity of the discussion. Thanks.

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  11. I spoke to R' Dovid Cohen who agrees with everything you say here.

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