Wednesday, June 3, 2009

R' Klein - Abusers don't threaten society

Regarding my recent posting of Rav Menashe Klein's teshuva regarding child abuse, he accurately notes that the Torah requires two valid witnesses and other restrictions which make it obvious that the Torah can not deal with the plague of child abuse. He is in essence saying since we are halachic Jews - we can not violate the halacha just because we have a problem that can't be dealt with by halacha.

On the other hand Rav Eliashiv (click the link) and many other gedolim note that we are not allowed to let our society be destroyed by following the law of the Torah. There is a second mode of judicial operation called ais la'asos or migder milsa which must be invoked. This approach is clearly stated in the gemora and openly discussed by many rishonim and achronim and is codified in the Shulchan Aruch Choshen Mishpat 2. The Tzitz Eliezer has a long and learned discussion of this in 19:51.

Thus the issue is: 1) is our society threatened by child abuse? 2) who is authorized to prescribe extra legal procedures? Rav Klein clearly doesn't feel that our society is seriously threatened by abuse and he seems to feel that the rabbis who permitted extra legal procedures are a greater danger to Judaism.


  1. First and foremost as Rov Gedolim are against his position it would appear obvious whose position is not the true Torah position.

    Ultimately what this boils down to is what determines a threat to society, and whether we can rely on the behavioral sciences to determine such a threat. One extreme of this is the absolute rejection of what the behavioral sciences say, and thus abuse would not be a threat to our society in that it can not be shown to have any actual lasting effect. Granted perhaps some children were exposed to ideas of sexuality far too young, but overall what they do with those ideas is their choice. Thus we never move past the individual fight between a person and his sitra achra.

    On the other side we have an acceptance of behavioral science as at least a source of information that can help guide our halachic decisions. In which case we can say that abuse has far reaching lasting effects far beyond the immediate act, or even the exposure of children to ideas of sexuality far too young. We can see that abused people are far more likely to get divorced, and also to become abusers themselves. Thus we see abuse not simply as an individual fight against his sitra achra but rather as a problem with a propensity for exponential growth and damage throughout our socieity. For instance the Kolko case. Psychology tells us that 50% of abused individuals will become abusers. Let's say that through the holiness of Torah we can take that down to even 1 in 10. If only 1 in 10 of the children he abused themselves become abusers, and if only 1 in 10 of them get away with it as long as he did, we are still seeing 3-4times the number of children abused in the next generation.

    The problem at hand is that before we can recognize that our society is threatened by abuse, we must let the outside world, to a certain degree influence our society. As we are dealing with a seemingly relatively new phenomenon, or at least one that the Torah seems to have been greatly silent, we must thus decide whether we may seek for information about the problem also outside the strict boundaries of Torah. If the answer to that is "No" than our society is in no danger as the Torah has not told us that this is a danger. If the answer to that is a "Yes" then our society may be in danger.

    As far as who gets to determine that, and who can prescribe extra legal procedures, it it seems that the Torah as already answered that question in Choshen Mishpat 2. Now if you are asking in modern times who has the status of Tuvei HaIr or Gedolei HaDor, when for instance in Brooklyn there are any number of Chassidishe Rebbeim and even a wide divergence in misnagid groups who all see their own Rabbis as Tuvei HaIr and Gedolei HaDor, then yes there is a difficulty. Overall however, I think that the Shulchan Aruch and the meforshim are fairly clear as to who wields these powers.

  2. "whose position is not the true Torah position."

    No such thing. All positions are Torah True positions.

    BTW, a major element missing from most recent discussions on the abuse issue, is the FACT that children have been shown to have vivid imaginations when recalling these past events that have resulted in innocent adults being falsely accused AND convicted.

    The Wall Street Journal (amongst others) ran many many articles documenting this fact back in the '90's and early part of this decade (mostly about cases occurring in the '80's and '90's.)

  3. Joseph said...

    "whose position is not the true Torah position."

    No such thing. All positions are Torah True positions.

    BTW, a major element missing from most recent discussions on the abuse issue, is the FACT that children have been shown to have vivid imaginations when recalling these past events that have resulted in innocent adults being falsely accused AND convicted.

    The Wall Street Journal (amongst others) ran many many articles documenting this fact back in the '90's and early part of this decade (mostly about cases occurring in the '80's and '90's.)
    I am assuming you are referring to induced memories. There is a large literature on the subject. There are clear cases where a therapist managed to convince a client that their problems were the result of being molested by a parent as a child. These were clearly false memories.
    There is also the issue that children below 6 have trouble clearly differentiating fact from imagination. This is why anyone interviewing a potential victim has to be very careful not to implant ideas.

    It has been clearly asserted by psychologists that the majority of claims are found to be true because unless they were true most people find it to embarrassing. We do need to be careful of false claims - as Rav Eliashiv notes in his teshuva

  4. a major element missing from most recent discussions on the abuse issue, is the FACT that children have been shown to have vivid imaginations when recalling these past events that have resulted in innocent adults being falsely accused AND convicted.

    I don't know that this is such a fact. While it has been shown that children can be lead into "remembering" things, Janet Reno was famous for this, children rarely imagine abuse has happened to them in the first place. Be it physical or sexual.

    Neither has the suggestion been that we hand someone over to the police on the statement of a single child. Even the Gedolim that permit handing a predator over to the police insist on some protections for the accused. Read R' Eliahsiv's psak for example.

  5. Yes, induced memories.

    And prosecutors have used these false memories to convict innocent adults.

  6. Here's the point. When you have many children claiming abuse it is unlikely that all of them were imagining it or were manipulated into fabricating it. The cases of abuse were not individual cases they were cases spanning years and they were community wide. Firing a pedophile is ineffective they will just move on to another school and find fresh victims. The Teshuva from Menashe made me sick to my stomach. Enabling Molesters is a serious sin and he may be guilty of doing just that. He should recant his so-called Teshuva immediately. His Teshuva is so absurd. If we need two Ediem (we don't have a Sanhedrin) we could no action on anyone for anything. All Batei Dinim should close down all civil cases brought to Beit Din must be dissmissed. All claims of domestic abuse must not be believed. In fact noone has any right toi claim anything unless there are two Kosher Witnesses and we may only have a handful of those these days.

  7. Many of the cases of induced memory that caused innocent adults to serve years in prison based upon false memories of children, were in fact based on the false testimony of multiple children. Our Torah has safeguards built in to protect the innocent from false prosecution for good reason.

    One of many cases you can research is the case of Gerald Amirault and the false (yet succesful) prosecution of him and his family on child abuse charges. The Wall Street Journal has many many articles documenting the prosecutorial abuse in this and many other similar cases of falsely accusing adults of child abuse.

    Some quotes from the Journal:

    WSJ Editorial 8/24/99:
    That the Amiraults' trials were held amid a wave of child-abuse prosecutions -- a time when it would have taken a rare juror to resist the reigning imperative to "believe the children," the children who had so bravely stepped up to the witness stand, and "children don't lie" -- evidently did not enter into the justices' concerns. Neither, apparently, did all the available evidence that the investigative tactics employed in the Amiraults' prosecution drove the children to extremes of fantasy, charges of marauding robots, murdered squirrels, attack by butcher knife -- none of which seem to have raised any questions about the credibility of the child witnesses. For it was understood, thanks to the strange new legal standards in evidence in American courtrooms during the great mass-abuse trials pitting toddlers against the accused -- most of them nursery school teachers -- that the jury should feel free to disregard any parts of the witnesses' testimony that were clearly incredible, the witnesses being children.

    In such a time and atmosphere, in courtrooms where such standards for witness credibility prevailed and jurors were repeatedly reminded by the prosecutors of how much courage it had taken for these children to come forward, jurors voted to believe the children. In such ways did the false facts delivered by child witnesses result in convictions of the innocent, a matter with which the justices -- engaged with their higher duty to the doctrine of finality -- were not disposed to concern themselves.+

    Across the nation courts have taken account of these matters. Kelly Michaels was freed from prison in New Jersey after serving five years, her conviction reversed. A federal courts freed Grant Snowden, the target of State Attorney Janet Reno prosecutions, after he served 11 years. And in Massachusetts, lower ourts freed Cheryl Amirault and her mother, Violet (who died after release).

  8. WSJ Editorial 10/20/03:
    By now, too, the recognition that this prosecution -- and other child abuse cases like it around the country -- was built on concocted testimony has become widespread. So widespread that it is now the sort of thing studied in colleges and universities. The 49-year-old Mr. Amirault is about to finish his liberal arts degree in prison. Not long ago he had the surprising experience of opening a sociology textbook, and finding there -- in a list of hysteria-driven prosecutions -- the Amirault case. Things have certainly come far since the day he was carted off to do 30-40 years, a despised cast-off from society.

    WSJ Editorial 4/30/04:
    Today he leaves prison, after serving 18 years on phony charges.

    At 10 o'clock this morning, Gerald Amirault will walk out of his Massachusetts jail, a free man.

    It is a joyous day for this prisoner, behind bars for 18 years after his 1986 conviction on charges of child sex abuse based on fantastical testimony dragged from pre-schoolers. Gerald's mother Violet and his sister Cheryl served eight years before their convictions were overturned in 1995.

    Our system isn't always immune to destructive pressures, and the child-abuse prosecutions of the 1980s were one such instance. Mr. Amirault's prosecution was driven by the passions of the times -- in this case, the belief that child predators lurked everywhere and that the child "victims" must be believed at all costs.

    Along the way, the law was stood on its head. The rules of evidence were changed to accommodate the prosecution; the burden of proof was put on the accused. Four- and five-year-olds were coached to say what adults wanted to hear. All this was done in the name of virtue, with the result being the kind of catastrophic miscarriage of justice we saw in Mr. Amirault's case. There never was any truth to the charges brought against him. Nor was there anything that would, in saner times, have passed for evidence in an American courtroom.

  9. Is there any case of Frum people informing the authorities and it was based upon fabrications?
    In the Frum world the perpetrator often admits to the behavior and is still accepted.

  10. Joseph,

    All that you brought were editorials. Editorials are people's opinions they are not facts. You have a series of editorials centered around one person. You need to come up with something more than that to be very convincing that against Rov Gedolim, these children need to be left in danger.

  11. All that you brought were editorials.

    Indeed. Editorials that are poingant, on the point and correct.

    You have a series of editorials centered around one person.

    This is one, of many, prominent examples of this that is easily researchable.

    You need to come up with something more than that to be very convincing that against Rov Gedolim, these children need to be left in danger.

    This is precisely in line with the Torah and the Gedolim. It is the other side that is claiming we must shove aside standard Torah rules of evidence.

  12. Like most Rabbis, this one isn't going to think that this issue can or will threaten our culture until one of his own kids or grandkids gets delicate attention from a pervert. Then, suddenly, it will be the biggest issue facing Judaism. The lack of consideration for the suffering of the victims and the harsh treatment of their families by the schools and shuls when the perversion is discovered is a large part of the reason no one trusts the Rabbis anymore - and if that isn't a threat to our culture, then I can't imagine what really is.

  13. Just to clarify - I'm not trying to voice my own opinion one way or the other. But I am voicing strong points on behalf of Gedolim, such as expressed in the original post here, that is very infrequently voiced in the blogosphere.

  14. "This is precisely in line with the Torah and the Gedolim. "

    What about Rav Eliyashiv?

    Does Rabbi Menashe Klein have a monopoly on Torah?

    Please define "Torah" and "Gedolim"

  15. I wouldn't call S.Z. Auerbach, Sho'el UMashiv, Rema, Shach, R' Eliashiv, R' Moshe Halberstam, Tzitz Eliezer, R' Ovadiah Yosef, and Minchas Yitzchok, the other side. They are Gedolei Yisrael. Rather we have one posek going against them. Who admittedly didn't read their works as to why they ruled the way they did.

  16. Um, has this R Klein ever read about how the Rabbanim used to imprison people that they knew were murderers, but there was no hasra or eidim and feed them barely until their stomachs exploded? Is he aware of that? Or how the king has the right to punish people as he sees fit. Or the fact that chazal were able to give lashes when they saw fit? Is he aware of any of these gemorahs?

    Also, according to him, if only one person saw a murder and all the evidence points to this guy being a mrderer, heck even if he is on video tape, we should treat him like a regular Jew?? What is Rabbi Klein talking about?

  17. R' Klein definitely knows of those Gemorrahs. As I am certain that he knows of the many places and instances where less than 2 Halakhic eidim are accepted, such as eidus nashim, and eidus katanim. What he is saying, between the lines, is that abuse, of any type, does not pose as much of a threat to society or do as much damage to the individual. Which is part of what I find frightening.

    Take the specific halakhot of hasgacha over kosher food. In such instances we trust katanim and nashim. The witness of a single child or woman, al pi halacha, is enough to render food un-kosher and to, in today's world, strip an establishment of its hescher and ruin its reputation.

    Apparently abuse, in his estimation, rates as a lower threat to both individuals and society than the possibility of a person unknowingly eating treif. To me that is very disturbing.

  18. "it would appear obvious whose position is not the true Torah position". ----- The beauty of Halacha is that there can be two or even more torah true positions.

    "is the FACT that children have been shown to have vivid imaginations"
    At a conference of rabbanim regarding child abuse, Rav Avigdor Miller zt"l STATED that children must be BELIEVED, when reporting abuse.

  19. "At a conference of rabbanim regarding child abuse, Rav Avigdor Miller zt"l STATED that children must be BELIEVED, when reporting abuse"

    What was Rav Miller's precise words (full quote)? Where is it documented?

  20. Joseph, if you were provided a tape of the shiur would you change your opinion onthese matters? Its not enough what Rav Eliyashiv said?

  21. Or Rav Ovadiah Yosef, or Rav S.Z. Auerbach or Rav....

    The list goes on of Rabbanim and Gedolim that have opposed the position taken by Rabbi Klein.

    In Joseph's defense Rabbi Klein is a Gadol in his own right and thus Joseph can hold by him.

  22. Please direct me to an authoritative full quote text of Rav Miller zt'l, Rav Eliyashev shlita, and the other mentioned Gedolim's statements.

  23. Joseph if you go to the original post and read R' Klein's teshuva, on the very first page you will see that he admits to taking issue with all of these Rabbis and not bothering to read their teshuvot.

  24. Rav Klein's psak refers to a passage by Dr. Abraham in Nishmas Avraham quoting Prof. Sofer quoting Rav Eliashev's psak. So let us go to directly to the source rather than third or fourth-hand citations.

    From Rav Eliashev's psak:

    Rashba: "My view is that if the witnesses are believed by the judges, then it is permitted to punish the accused financially or physically depending upon what the judges think is appropriate to be beneficial to society."
    Rav Eliashev: However, it is permitted to notify the government authorities only in the case which it is certain that the accused has been sexually abusing children.
    However in a case where there is no proof that this activity is happening
    I do not see any justification for calling the authorities in such circumstances.

  25. The Rashba is in part the source of the halakha found in the second siman of Choshen Mishpat of the Shulchan Aruch.

    Any Beis Din (1) [1], even one whose judges lack semicha attained in the Land of Israel [2], if it sees the nation wantonly sinning (2) [3] (and emergency measures are necessary) (Tur), it can punish with death, monetary measures [4] or other means of punishment, even in the absence (3) [5] actual eidus[6]. If the accused is strong and violent, the court can call in non-Jews to beat him [7]. (The courts also have the power to divest people of their property [8], or destroy belongings, as the judges see fit as essential temporary measures to control the generation) (Tur in the name of
    the Rambam, Laws of Sanhedrin Chap. 24). All of their actions must be for the sake of Heaven. Such powers, however, rest only with the greatest Torah authority of the generation, or with a city’s finest citizens [9] when the
    community appoints them over them as a court. Rama: Such is the custom everywhere [10] – that in their own city, a city’s finest citizens are like the greatest Beis Din, giving lashes and other punishments, and divesting people of belongings (making their property hefker -- ownerless), according to the custom.

    To which the Sm"a S"K 8:
    AND EVEN WITHOUT PROPER EIDUS This also includes without giving warning. Thus without warning and without eidus they are able to judge Torah laws, but for someone who trangesses the laws of the secular government they are able to do as they see fit at that time. This is the proper way to understand the teshuvot of the Rashba 3:393 and Ramban 379.

    As Rav Eliyashiv is quoting this Rashba it is essential to have the proper understanding, and as the Shulchan Aruch thus tells us the proper understanding, we must understand R' Eliyashiv's words accordingly.

    Thus we have these differences:
    Rabbi Klein Child abuse does not require tikun olam.
    MaRan Eliyashiv Child abuse does require tikun olam.
    Rabbi Klein Halakhic eidus of two shomer mitvot males is needed.
    MaRan Eliyashiv True eidus is not needed, circumstantial evidence and other convincing factors suffice.
    Rabbi Klein The laws of the land do not factor.
    MaRan Eliyashiv The laws of the land are a factor.
    Rabbi Klein We are forbidden to hand a person over to the secular authorities even with proper eidus.
    MaRan Eliyashiv We are required to hand the offender over to the secular authorities even without proper eidus.
    Rabbi Klein A B"D cannot hear such a case without proper eidus as it would be Motzei Shem Ra
    MaRan Eliyashiv A B"D is required to hear such cases even without proper eidus to determine if a crime has been comitted in order to properly act.

    Quite simply I don't think their opinions can be much more at odds.

  26. You may have overlooked the very first 3 words in the Rashba you quoted:

    "Any Beis Din"

    (and "Such powers, however, rest only with the greatest Torah authority of the generation...")

    So under any circumstance you must have first have the unambiguous impetus of Beis Din.

    Additionally Rav Eliashev shlita (perhaps the greatest sage of our generation) as quoted directly above in his psak (translated by R. Eidensohn) concluded that the secular authorities could NOT be notified.

  27. NO! He concluded that one should call the authorities if there is reasonable evidence that abuse is occuring.

    It is when there is significant reason to believe that the child is acting out of spite that he concluded that the authorities should not be called.

    I did not quote the Rashba, I quoted Siman 2 of Choshen Mishpat. If you see the Rama there, you will find that the cities finest citizens are also equal to a Beis Din.

    I am beginning to think that either you have a reading comprehension problem or that you intentionally are trying to misunderstand these texts.

  28. As a PS

    If you look at the comments here
    You will see R' Eidensohn and I hashing out the exact meaning of R' Eliyashiv's words.

  29. There is an immense literature on false memory syndrome. For the casual reader, I would suggect The Demon-Haunted World by Carl Sagan. Sagan connects the phenomenon with the closely associated issue of accusations of "Satan-worship" (there was a rash of these accusations in the 80s and 90s - see (He also demonstrates that both of these phenomena are related to claims of alien abduction.)

    In trial settings, prosecutors would carefully control childrens' testimonies (often given by video) to omit the more bizarre and implausible accusations (such as ritual sacrifice) so that the testimonies would be accepted by juries.

    One critical aspect of this phenomenon is that the accusations were frequently made by multiple children.

  30. Again, directly quoted from Psak Rav Eliashev shlita:

    However, it is permitted to notify the government authorities ONLY in the case which it is CERTAIN that the accused has been sexually abusing children... However in a case where there is no PROOF that this activity is happening... I do not see any justification for calling the authorities in such circumstances.

  31. LazerA,

    I've been trying to communicate much of the same point above.

    Thank You

  32. if my parents had waited around for "proof" in the sense that you are saying, you know what would have happened one fine day before pesach ten years ago? i would have most likely been raped, possibly pregnant. THIS IS WHY CHILDREN MUST BE TAKEN SERIOUSLY! thank God, my parents took me seriously when i called for help. otherwise...who knows where i'd be today. most likely, not a frum girl who is trying to help others in similar positions.

  33. Yes and that certainty can be reached through circumstantial evidence. As this psak

    You will note that his only reason for not contacting the authorities and having the child removed from the mother here, is on account of her suicide threats, and thus the need to balance pikuach nefesh.

    However, you will also note that if the child says she is being abused and requests to be removed that also changes the circumstances.

    Sorry Joseph any way you try to bend it R' Eliashiv does not agree with you.

  34. mekubal,


    I merely provided you a verbatim quote of Rav Eliashev shlita's psak, in my previous comment to you, without any commentary from myself. (And the psak of Rav Eliashev I quoted had nothing to do with suicidal threats.)

    I cannot add any more to the conversation other than say sorry that you didn't like Rav Eliashev shlita's psak.

  35. Yosef - we are dealing with two different principles of halacha

    Rav Klein is following the straight din of Torah which requires two kosher witnesses.

    Rav Eliashiv is consistently utilizing a totally different principle which is elucidated in simon 2 of Choshen Mishpat - which is based on tikun olam as expressed by Bava Metzia 83. His sole restriction is that the evidence has to be clear. That clarifty is not defined as limited to two witnesses as Rav Klein requires. It could be a single witness or very clear circumstantial evidence or even the testimony of a child or woman.

    Both agree that where the evidence is not clear - according to Rav Klein because there are not two witnesses or with Eliashiv because the circumstantial evidence lends itself to alternative explanation - than one can not call the police.

    Other poskim utlize the principle of rodef - which does not require two witnesses - but it does require that you see with your own eyes that a crime is about to be committed of killing someone or sexual sin involving kares or misus beis din. Rav Klein argues that if the guiding principle is the Torah law of rodef - then one can only do the minimum necessary to stop that crime. That does not involve necessarily involve calling the police. Thus Rav Klein is upset with the poskim who utilize the principle of rodef in a way which is not justified. Rodef also only works if it is before the crime is committed but not afterwards - unless it is clear that the perpetrator has a history of these crimes or has said he plans to do it again.

    In sum, Rav Klein is taking a very conservative position which indicates that he see no emergency which requires ignoring the Torah laws. Rav Eliashiv and most other poskim agree that these cases require utilizing principles such as tikun olam because of the devastating nature these crimes have on society.

  36. R' Eidensohn,

    Ich farshtay.

    Yasher koach for putting in a clear & brief comparison of the two approaches.



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