Guest post by Ploni
An excellent recent guest post pointed out the difference between the meticulous and transparent way how the Haifa Bais Din went about its business in granting an הפקעת קידושין, as compared to this case.
I believe that it’s time to “call a spade a spade”: This whole supposed “diagnosis” imbroglio is really EMBARRASSING.
Who says? Dr. Allen Frances, who was Chair of the Task Force that published DSM IV in 1994 and before that helped prepare DSM III (published in 1980) and DSM III R (published in 1987).
… Unless, of course our anonymous רופא מומחה knows more than Dr. Frances does.
THIS IS A MATTER OF GROSS INCOMPETENCE, which assumes the illusion that mental health is like any other medical field. Dr. Frances KNOWS otherwise. This is NOT a matter of שיקול הדעת – not even remotely. RABBONIM NEED TO KNOW THIS!
What is necessary is a major campaign to educate the ציבור, including Rabbonim, laymen and the CLINICIANS themselves - who often don't know better.
Here are some examples of what Dr. Frances writes, quoted VERBATIM:
1. "PSYCHIATRIC DIAGNOSIS IS NOT BASED ON ANY PRETENSION OF MEDICAL OR SCIENTIFIC CERTAINTY. It is a descriptive and fallible art, informed by research but RELYING HEAVILY ON SUBJECTIVE JUDGMENTS AND NOT SUPPORTED BY OBJECTIVE BIOLOGICAL TESTS".
2. ... "Before making a diagnosis of mental disorder that will be used for forensic decision-making, a high threshold should be established for what constitutes reliable and valid diagnostic evidence of clinically significant distress or impairment. THE DISTRESS AND IMPAIRMENT SHOULD BE SO EXTENSIVE AND OBVIOUS THAT MOST OR ALL OBSERVERS WOULD AGREE UPON IT. ... Ambiguous cases of possible disorder might qualify for a clinical diagnosis to permit and facilitate treatment but do not necessarily satisfy what should be a much more rigorous forensic standard".
3. ... "The creators of the various versions of the DSM have always been fully aware of the important role it plays in legal proceedings … (e.g., DSM-IV; American Psychiatric Association, 1994; Melton, Petrila, Poythress, & Slobogin, 2007) … but they could not possibly give this one arena their highest priority. THE USES AND POSSIBLE MISUSES OF DSM IN FORENSIC SETTINGS RATE NO HIGHER THAN A DISTANT FOURTH ON THEIR LIST OF PRIORITIES, following well behind DSM's role in clinical care, in research, and in education … inevitable difficulties arise when one manual is used to do so many different purposes" …
4. ... "DSM-III placed this short forensic caution in a prominent place at the front of the book: … The use of this manual for non-clinical purposes, such a determination of legal responsibility, competency or insanity, or justification for third-party payment, must be critically examined in each instance within the appropriate institutional context. (DSM-III, p. 12, American Psychiatric Association, 1980). This caution focused on the nonequivalence of DSM clinical definitions and the requirements of the legal system. … The cautionary statement has been lengthened and included as a separate section starting with DSM-III-R (American Psychiatric Association, 1987). The cautionary statement in DSM-5 (American Psychiatric Association, 2013) is significantly expanded".
5. ... "it is our experience that the diagnoses offered as “expert” testimony are often poorly done, idiosyncratic, and display a disheartening lack of attention to the careful evaluation and documentation of the presence or absence of the specific, pertinent DSM criteria".
6. ... "DSM terms have become so familiar to the mainstream population that THEY CAN SERVE AS CONVENIENT SLURS, SUBJECT TO ONGOING MISINTERPRETATION AND MISUSE IN THE SERVICE OF WHATEVER CURRENT BONE THE PRINCIPALS ARE CHEWING ON. The labels sometimes themselves become the bones. The diagnostic argument joins and aggravates all of the other arguments".
7. ... "Impressionistic, unsupported diagnosis are often inevitable in the rush of ordinary clinical practice, but such SLOPPY DIAGNOSTIC PRACTICE SHOULD HAVE NO ROLE WHATEVER IN FORENSIC WORK WHERE THE STAKES ARE MUCH HIGHER AND THERE EXISTS TIME AND RESOURCES FOR A THOROUGH EVALUATION".
8. ... "the psychiatric diagnosis may actually be WORSE THAN WORTHLESS since inaccurate psychiatric diagnosis is very misleading in legal decision-making".
9. ... "Custody battles can become the most painful, disorienting, and distressing of human experiences. The diagnostic evaluations typically take place at the worst period in the lives of the principals and often bring out the worst in them. BREAKUP OF A FAMILY IS A TREMENDOUS STRESS TO ALL CONCERNED AND CAUSES SYMPTOMS THAT MAY NOT BE TYPICAL OF THE INDIVIDUALS' PAST OR FUTURE FUNCTIONING … Even those who are usually resilient during times of great difficulty may now become anxious, sad, angry, scared, erratic, on a rollercoaster of emotions and impulsivity … Whatever are their usual cognitive and behavioral tendencies will be exaggerated … EVALUATORS MUST TAKE INTO ACCOUNT THAT PARTICIPANTS ARE OFTEN PRESENTING AT THEIR WORST"…
10. ... "The DSM's caveat that there are “significant risks that diagnostic information will be misused or misunderstood” is NOWHERE MORE APROPOS THAN IN CUSTODY BATTLES".
Source:
Frances, A., & Halon, R. (2013). The uses and misuses of the DSM in forensic settings. Psychological Injury and Law, 6(4), 336-34
The Heter is fraud and corruption and PRITZAS GEDER in this most important matter and not incompetence.
ReplyDeleteSotah 37b:
ReplyDelete“R. Judah b. Nahmani, the lecturer [It was customary
for a teacher to impart the lesson to a lecturer who delivered it to the
disciples.] of Simeon b. Lakish, expounded: The whole section [of the blessings
and curses] refers to none other than the adulterer and adulteress. [It
states,] “Cursed be anyone who makes a sculptured or molten image, abhorred by
the Lord, a craftsman’s handiwork, and sets it up in secret.—And all the people
shall respond, Amen” (Deut. 27:15). Does it suffice merely to pronounce cursed
with such a person! [The penalty is death] But it alludes to one who has
immoral intercourse, and begets a son who goes to live among heathens [Being
the offspring of an adulterous union, he is debarred from the Assembly and
cannot marry an Israelite woman.] and worships idols; cursed be the father and
mother of this man since they were the cause of his sinning. [And not only with
idolatry. His heathen association will lead him to commit the other offences in
this section, provoking upon his parents the enumerated curses; v., however,
Rashi.] Our Rabbis taught: “When the Lord
your God brings you into the land that you are about to enter and possess, you
shall pronounce the blessing at Mount Gerizim and the curse at Mount Ebal” (Deut.
11:29).
The Gamara teaches that
the curses at Mount Ebal were directed to a woman producing a ממזר. We need blessings and
not curses. Please, rabbis and others
that support the ridiculous heter for Tamar to remarry without a get---reverse
yourselves and speak up!
To be perfectly honest Simche, my intention with these last few posts is to separate the grossly incompetent from the purely EVIL.
ReplyDeleteHere's a simple experiment:
1) Please show what Dr. Frances says to a Rov who knows about the Heter and is "straddling the fence".
2) Watch and hear his reaction. Which may be:
a) Oy. I'm telling everybody. - he was incompetent. Okay, everybody makes mistakes. We just to admit them and fix them.
b) I don't know, it's okay, etc. - he is evil. Never talk to him again. Tell your friends, etc.
c) Yes, I know things are BAD, but I can't speak up because I'm afraid for my life and / or my livelihood - try getting into a conversation to find out if the fear is real or imagined. Then, if real, maybe he is allowed to stay quiet (see יו"ד ס' של"ד פ"ת סקי"ט) UNTIL HE GETS TOGETHER WITH OTHER NOT-EVIL RABBONIM AND PROTESTS. The reason is simple. Those that impose their will through terror, can only do so "in darkness".
As the excellent guest poster quoted "Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” Today we are forced to add other tools that work - like the טמא'דיגע internet!.
3)
AfterAll these Botei Dinim and gedoilei haposkim have denounced them, they are a bunc of dayonim mechutzofim. They did this in silence, so that after they come out of the woodwork can claim kvar nispashto halocho beYisroel. Ziknei mamre beloinei Mamre. Veda ki al kol ele.......
ReplyDeleteDear Mr. Ploni,
ReplyDeleteParagraph 1 which states that psychiatric diagnoses rely heavily on subjective judgments does not strengthen your argument that this case is not a matter of shikul hadaas. In fact, it seems to imply that all such cases are in fact a shikul hadaas, even under the best circumstances with the most meticulous examinations being performed.
In addition, the halachic standard may not correspond to any particular psychological condition. Being impossibly difficult to live with may be the halachic standard, regardless of whether any official psychological/psychiatric diagnosis can be made.
A few practical lessons that we can deduce from Frances, in direct relation to Aharon's case:
ReplyDeleteMany have noted that Tamar's diary entries, Bais Din & court appearances made no note of any illness, etc. Tamar's supporters might answer that she and they only found out later. However, as Frances says: "THE DISTRESS AND IMPAIRMENT SHOULD BE SO EXTENSIVE AND OBVIOUS THAT MOST OR ALL OBSERVERS WOULD AGREE UPON IT" In other words - a valid diagnosis is something that everyone can notice, so that excuse is out If it wasn't noticeable before, it doesn't suddendly become valid.
Another practical lesson that we can deduce from what Frances says here, in direct relation to Aharon's case:
ReplyDeleteAharon's purported רופא מומחה remains anonymous. We don't know if he has forensic expertise, (although in all likelihood he doesn't, because if he would he'd stay away from diagnosing without trying to see the patient, because he would know that could put him in legal trouble without disclosing limitations).
What we do know, is that this guy spoke to one of the therapists that the couple went to for MARRIAGE COUNSELING. So, it all depends on that guy.
Francis makes it clear that dsm diagnosis used in clinical work are no good for legal matters, and a marriage counselor isn't acceptable for forensics:
"The use of this manual for non-clinical purposes, such a determination
of legal responsibility, competency or insanity, or justification for
third-party payment, must be critically examined in each instance within
the appropriate institutional context. (DSM-III, p. 12, American
Psychiatric Association, 1980). This caution focused on the
nonequivalence of DSM clinical definitions and the requirements of the
legal system". THE USES AND POSSIBLE MISUSES OF DSM IN FORENSIC SETTINGS RATE NO HIGHER
THAN A DISTANT FOURTH ON THEIR LIST OF PRIORITIES, following well
behind DSM's role in clinical care"
Yet another practical lesson that we can deduce from what Frances says here, in direct relation to Aharon's case:
ReplyDeleteAhahron's "diagnosis" happened in the heat of a divorce and custody battle & it is not a good basis of a valid diagnosis:
"The DSM's caveat that there are “significant risks that diagnostic
information will be misused or misunderstood” is NOWHERE MORE APROPOS
THAN IN CUSTODY BATTLES"."
"BREAKUP OF A FAMILY IS A TREMENDOUS STRESS TO ALL CONCERNED AND CAUSES
SYMPTOMS THAT MAY NOT BE TYPICAL OF THE INDIVIDUALS' PAST OR FUTURE
FUNCTIONING … EVALUATORS
MUST TAKE INTO ACCOUNT THAT PARTICIPANTS ARE OFTEN PRESENTING AT THEIR
WORST"…
And yet another practical lesson that we can deduce from what Frances says here, in direct relation to Aharon's case:
ReplyDeleteTamar's supporters say they asked 10 ladies if they would marry someone with the PPD and OCD diagnosis. Never mind that the DIAGNOSIS itself is what makes someone marriageable. So they're using a bit of circular reasoning to besmirch Aharon. Frances hints that the diagnosis has its own power to destroy:
"DSM terms have become so familiar to the mainstream population that
THEY CAN SERVE AS CONVENIENT SLURS, SUBJECT TO ONGOING MISINTERPRETATION
AND MISUSE IN THE SERVICE OF WHATEVER CURRENT BONE THE PRINCIPALS ARE
CHEWING ON. The labels sometimes themselves become the bones".
Finally, yet another practical lesson that we can deduce from what Frances says here, in direct relation to Aharon's case:
ReplyDeleteFor those that believe that even if the evaluation wasn't great it's still something - like a rushed doctor who writes a prescription - it helps to note that Frances says otherwise:
""Impressionistic, unsupported diagnosis are often inevitable in the rush
of ordinary clinical practice, but such SLOPPY DIAGNOSTIC PRACTICE
SHOULD HAVE NO ROLE WHATEVER IN FORENSIC WORK WHERE THE STAKES ARE MUCH
HIGHER AND THERE EXISTS TIME AND RESOURCES FOR A THOROUGH EVALUATION".. "the psychiatric diagnosis may actually be WORSE THAN
WORTHLESS since inaccurate psychiatric diagnosis is very misleading in
legal decision-making"
Hi Barry. I still owe you a response on your "smelly socks" comment a while back. I hope iy"h to have time today to give it a try bs"d.
ReplyDeleteAs far as "Paragraph 1 which states that psychiatric diagnoses rely heavily on
subjective judgments does not strengthen your argument that this case is
not a matter of shikul hadaas":
Of course all diagnoses ends up subjective, but in order for a professional to be able to offer a valid, reasoned diagnosis he has to first have in his possession a certain amount of knowledge that is pertinent to the subject at hand.
It's true that I quoted pieces of what Dr Frances says out of context. Honestly, I did so because I saw that although last time I checked the stuff I posted on http://daattorah.blogspot.com/2015/12/tamars-use-of-secular-evaluations-for.html had over 6k page views, in had next to zero comments.
My purpose is in encouraging discussion of the substantive issues raised in the research.
Have you had a chance to look at those papers, especially the research of Kalmbach and Frances?
I think if you did, you'd agree that what was done in our case defies ANY reason.
The papers spell out the complexity involved in offering a valid MI diagnosis. The procedures followed in our case leave no doubt that these complexities never COULD HAVE been explored.
Although, the research is mostly preoccupied with procedural matters of HOW valid diagnosis need to be approached. It sounds like boring stuff, but just like in legislatures, it's all-important.
The analogy would be that I would diagnose you as suffering from stomach cramps because the chulent you ate Thursday night was too spicy, based on our dialogue here.
Had the question been about your being a reasonable person - great - I can see that you and me are both not prone to emotional demagoguery. but how can I know anything about the condition of your stomach, or that you even ate chulent Thursday night?
As to your second point " the halachic standard may not correspond to
ReplyDeleteany particular
psychological condition. Being impossibly difficult to live with may be
the halachic standard":
True. I think we've covered this this partially in our past discussion & I hope to cover some more dimensions when I iy"h get to address the smelly socks.
I also touched on why the "impossible to live with" is often questionable according to Frances, in another comment on this thread - the one concerning doing evals during heated custody battles ignoring context makes things seem worse than they are...
... and in several other posts, notably here:
Concerning ibid and treatability:
http://daattorah.blogspot.com/2015/11/about-aaron-friedmans-supposedly.html
Concerning what should be considered pro-social and the role of the lack of cultural competence when doing evals:
http://daattorah.blogspot.com/2015/11/is-aaron-being-punished-for-trying-to.html
Dear Reb Ploni, as usual I am nispael about your depth and bekius in halachic sources and in psychology. Nevertheless, I want to address a point which someone else brought up. He said Reb Moshe's psak was a chidush, and ein lcha bo ella chidusho, meaning we cannot extend further.
ReplyDeleteBut when you think about it, that is not the chidush. We know that a man can divorce for the most trivial reasons, like hikdicha tavshilo (she burnt his food) or even matza acheres naeh heymena (he found a more attractive woman).
So it doesn't bother anybody when a man wants out. But this entire topic here is to say that a woman can't get out of a marriage except for the most extreme reasons. Even if she is totally miserable, she can't leave unless there are extenuating circumstances. Now, that is the real chidush, it defies seichel. And that is the definition of a chidush. Like eidim zomemin is called a chidush, because kaasher zamam vlo kaasher asah makes no sense--it is a kal vachomer--a sevara. So a chidush is the opposite of a sevara. The Torah has created an extremely unequal system in the laws of marriage, for which there really is no sevara. That is the chidush. So when there is any way to help a woman, we should apply the rule of ein lcha bo ella chidusho, and find a way for her to go free.
Why do the posters here feel they are defending a righteous cause, when the simple sevara is that both parties should have rights to end the marriage. That would be what most of us would think is yashrus. It is a very big chidush that the system is different for men and women. It is a gezeiras hakasuv. But all these kannaim are lining up to defend a gezeiras hakasuv that they don't understand. Why not be kannaim for the woman? Like Reb Chaim said he was not a meikal on laws of yom kippur, but was a machmir on laws of pikuach nefesh. The laws of chesed and vahavta lreacha would seem to dictate that she not be forced to suffer.
Chazal were worried that shema eineha nasna b'acher, she may make up excuses to run off with someone else. But if nobody else is in the picture, and she is miserable, why all the clamoring for her to remain married, rather than looking for a heter to help her? The husband would be able to leave if he were that miserable.
Barry you gave a very articulate and cogent presentation of the secular point of view. But it clearly isn't the Torah point of view. There are countless derashos and halachos which make it the unavoidable conclusion - that G-d has created a system of inequality.
ReplyDeleteThere are times when the nature of the times motivated Chazal or the Gedolim of those times to compensate - but there is no getting around the fact that the Torah views inequality as inherent and ideal.
To put it another way - the Torah is more concerned with providing a stable relationship in marriage and family than it is in equality and self-actualization. You don't like that - but anyone who is familiar with Torah literature - starting with Chumash going through Talmud Medrash, Kabbala, Rishonim Achronim, Chassidus and Mussar - will reach the same conclusion
So what we have today is a secular society whose supreme values of individual freedom, equality, non-judgmentalistm, self-actualization and happiness/pleasure - contradict those of the Torah. Your solution is that we need to bend Torah as much as possible to fit secular values and ignore the deleterious consequences on what G-d wants for society. If Torah can't bend then you would have not problem of finding a gadol to abrograte them.
In short, is Torah to be viewed as a primitive and out of date guidebook that is inferior to those of our advanced society or is it that on occassion we need to make emergency provisions for a particular situation but that the Torah and its values are eternal?
Daas Torah says: “So what we have today is a
ReplyDeletesecular society whose supreme values of individual freedom, equality, non-judgmental,
self-actualization and happiness/pleasure - contradict those of the Torah. Your
solution is that we need to bend Torah as much as possible to fit secular
values and ignore the deleterious consequences on what G-d wants for society.
If Torah can't bend then you would have not problem of finding a gadol to abrogate
them.”
“Tamar Epstein's Heter: Let's call a spade a
spade - The "heter" is based on embarrassing incompetence” is not an
issue of bending Torah to fit secular values.
It is not an issue of failing to follow what Torah and Mishnah
prescribe. We could argue with people of
good intentions if we can bend Torah. We
could argue what does the Torah and Mishnah prescribe.
However, here, with Tamar’s husband alive and
well and free---this heter is an issue, of outrageous, ridiculous and evil
trick--- for Tamar to remarry without a get and without a bait din and without
Tamar’s husband to question Tamar.
How stupid are we suppose to be? No one held
a hearing with husband allowed to present his side. I quote:
“The first to plead his case seems right Till the
other party examines him” (Proverbs 18:17).
“Tamar Epstein's Heter: Let's call a spade a
ReplyDeletespade - The "heter" is based on embarrassing incompetence.” Maybe we should language of Shulamit
S. Magnus “Women, the Wall, lights and rights” December 6, 2015 Jerusalem Post:
“In response, Rabbi Rabinowitz instituted a clever maneuver, a mind game: he has removed the public ceremony from the
Kotel, Jewish sacred space, and scheduled it at a site in the Jewish quarter in
the Old City, at which he insists he will allow women…” Shulamit S. Magnus is one
of 4 women who filed suit in our Supreme Court. They dismiss what Rabbi
Rabinowitz does as a “a clever maneuver, a mind game.” Actually, the “heter” is “a clever maneuver, a
mind game” that no one should take serious and that we should dismiss. What Rabbi Rabinowitz does is brilliant and is
a good compromise that can bring peace.
How fitting is Perek 4,Mishna 7 in Pirkei Avos:
ReplyDelete"Rabbi Tzaddok said: Do not separate yourself from the community."
The adulterous couple and their future progeny have separated themselves from the community as have the rabbis who granted them permission.
"Do not act as a lawyer (in judgment)."
This would be those who unilaterally defamed Aaron Friedman.
"Do not make the Torah into a crown with which to
aggrandize yourself or a spade with which to dig. So too did Hillel state:
'He who uses the crown [of Torah] will pass on'. From this you
may learn that anyone who derives benefit from words of Torah takes his life
from the world."
Shalom Kaminetzky (SK) used the heritage from his grandfather as both a crown and a spade. I am certain that part of the reason Rabbi Greenblatt accepted SK's words was because SK is the grandson of Reb Yaakov Kaminetzky, zt'l. Reb Yaakov must be weeping in shomayim.
Dear Rabbi Eidensohn, and Reb Ploni,
ReplyDeleteYou will get no argument from me that everything possible should be done to save a marriage, and that divorce is a terrible thing for everybody, especially the children. It should only be used as a last resort. But although I don't have a Shulchan Aruch in front of me now, my impression is that it was giving mussar about not divorcing a wife for trivial reasons, based on the gemara of morid alav demaos. But the halacha stands that if a man did divorce his wife for a trivial reason, it is a valid divorce.
Simply because the halacha allows something or is a certain way, doesn't mean that the halacha recommends that thing. One is allowed to be mekadesh bviah, but I believe one amora would even give malkos for that. One is allowed to do yibum, but one amora said he would not allow, and require chalitza. A woman is allowed to choose her mate. She cannot be married against her will. We require ledaas. Even a minor daughter whose father is allowed to marry her off without her consent, the gemara discouraged until she is old enough to say bploni ani rotzeh. So the fact that the halacha is a certain way doesn't mean we resign ourselves to it and say it is a Torah value. Polygamy is permitted. Would you also accuse Rabbeinu Gershom of violating Torah values by forbidding it?
In a case where it becomes apparent that a husband has a personality issue that bothers the wife so much that she would never have married the fellow had she known, then I don't see why that is worse than a man who in the same situation would divorce his wife. Your emphasis on preserving family structure and stability of marriage is very laudable, but doesn't address why there exist two different standards for men and women.
Again, if it were up to me, I would require meah rabbonim to invoke mekach taus, so it is not used without following clear standards. But I am not at all bothered with the concept on an abstract level, any more than I would be bothered by a buyer complaining his new car is a lemon and wanting a refund. Yes, people are more complex, and one can't objectively categorize them very well. But certainly there are behavior patterns that nobody would put up with, and women should have some recourse.
I will say a short vort on mizbeach morid alav demaos. What does the mizbeach have to do with divorce? I think the answer is that the purpose of the mizbeach was to cleanse from wrongdoings, to be mechaper. In any marriage, inevitably one spouse will do something that might hurt the other spouse. A fight can happen and the couple thinks there is no way to save it. But in fact, a spouse can apologize and correct the mistake, and fix everything as well as if the fight had never happened. But when they decide to divorce, they are denying the ability to correct and clean things. So the mizbeach starts to cry, because that is its very job. To correct and cleanse the wrongdoings that klal yisroel does. Teshuva is always possible, but if one gives up, he is saying that things cannot be fixed, which contradicts the mizbeach's raison d'etre.
Barry, the halacha is if the brother insists on yibum, even if the woman wants chalitza she is required to accept marrying him via yibum.
ReplyDeletePolygamy is still acceptable in parts of klal yisroel that never accepted Rabbeinu Gershom takana (which only applied to Ashkenazim), i.e. teimanim and sephardim.
Everyone here agrees, I believe, that mekach taos is available to a woman in the very specific and rare circumstances that it applies. But in this case it wasn't even close to being applicable. And indeed it is extremely rare for it to ever be applicable to any marriage in general. But in those rare cases where it does apply, it could be utilized.