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."
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.
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 Mishpat, siman 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
