Friday, August 6, 2010

Abuse: Disagreement about facts or Police say there is no case


There are three types of cases that are important. 1) There are suspicions that abuse took place or there are suspicions that someone is an abuser. What is missing is evidence but the evidence can be obtained by competent investigation. 2) the facts are well known or the evidence is solid that abuse took place and the identity of the abuser is known. The problem is what to do with this according to the halacha and secular law. These two cases are dealt with at length in my book. However there is a 3) third type of case which is much more problematic. That is where the evidence is not known - either regarding whether abuse happened or whether the suspect in fact abused the child. Or alternatively there  is conflicting evidence. This happens in divorce cases where where the wife accuses her husband of abusing the kids. She might even claim that she witnessed it. The husband denies it. In addition there are cases of abuse where the police investigate and say that they don't have sufficient evidence and therefore close the case.
In both these cases claims have not in fact been disproven - but they haven't been proven either. Many times the beis din, police or the secular court system will simply say there is nothing that they can do because of lack of evidence and they close the case.
The suspect has not in fact been declared innocent. What should be done with the suspect?
According to the judicial model (both Jewish and secular)- since there is no case it is equivalent to saying he is innocent. In fact if there aren't two kosher witnesses - the charges are not allowed to be made public. However according to the defense against harm model - the suspected abuser can not be trusted and restrictions or supervisions are necessary.
If he is a teacher or someone who deals with children - he can not be allowed unrestricted access to the children and there are solid grounds for dismissal simply because of the charges. If he is a parent then there needs to be careful monitoring of the children. These are difficult cases to deal with - especially since both sides usually have proponents who feel very strongly that they have the truth.

2 comments :

  1. In the 3rd type of case (aside from WHETHER to do anything) there is no legal mechanism - Jewish or secular - TO do anything. So there is nothing to discuss.

    ReplyDelete
  2. Asher Lipner, Ph.D.August 24, 2010 at 4:16 AM

    Dan,

    There are mechanisms that are legal but are not mandatory.

    For example, a school is allowed to do their own investigation and decide not to keep the rebbe. Contracts with moral turpitude clauses give employees a lot of leeway against being sued, if they have reasonable suspicion "raglayim ladavar" even without proof "beyone a reasonable doubt" that is needed in criminal court.

    Furthermore, there are investigative techniques that communities can require such as psychiatric evlauations and lie detector tests that courts do not always mandate in family custody battles. A school, shul or community organization can legally insist on someone who works with children being evaluated in this way.

    It is very hard to sue for slander or libel when there is serious reason to believe that the person is guilty or a danger. Wrongful firing is not so easy to sue for either, especially in yeshivas where they usually do not even give contracts.

    The bottom line is, where there is a will there is a way.

    Unfortunately, in our community we do not yet have sufficient will.

    ReplyDelete

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