Daas Torah - A Refutation of a proposed Heter]
Shalom Aleikhem R. Daniel Eidensohn, shlit"a,
I wept as I read your moving essay today regarding the agunah tragedy in Philadelphia.
You will also recall that you generously showcased my prenup agreement on a past occasion, thereby highlighting (what is in my opinion) the optimal way to prophylactically prevent agunah tragedies:
2016/01/prenuptial- agreementrabbi-shalom-spira. html
Accordingly, I just wanted to present a possible solution to Ms. Epstein's tragic plight, since (though I have no personal knowledge of the Philadelphia community) I am distantly spiritually related to one of its poskim. Namely, my semikhah (a copy of which is presently appended) is from the late R. Joshua H. Shmidman, zatza"l, whose son (presently carbon copied) is the Mara de-Atra of the Lower Merion Synagogue.
My impression is that, [...], it appears that Ms. Epstein is anoosah, having honestly thought she was acted correctly, as per the derashah on "ha-adam bi-shevuah" (Leviticus 5:4) presented by the Gemara, Shevu'ot 26a. That derashah exculpates
people who become confused by honest emotions beyond their control. Or Zaru'a. Hilkhot Yibbum ve-Kiddushin no. 637, employs this very derashah to exonerate from all sacrificial liability a gentleman who waits the statutory three months of clarification after his (apparently) childless brother died to wed the widow through levirate marriage, and then some time later discovers that the widow had been pregnant all along from her original husband, with the fetus being concealed. Since the brother acted in good faith, his unlawful incest is deemed to be anoose, not shogeg.
Therefore, I would argue that Ms. Epstein has been anoosah until now, honestly believing that she was following a legitimate heter, and she should be allowed to return to her original husband, and not be asurah la-ba'al as would normally be the case for an adulterous lady. [And I am sure an appropriate replacement shiddukh can be found for the second husband, who in fact no longer appears to be a husband altogether, if your refutation of the heter is accurate.] If matters would be explained to all the principals of the case in this manner, it may be possible to convince them to return to Beth Din as early as tomorrow, thereby bringing about a productive resolution.
Thank you and best wishes,