Rabbinic Council of America This statement adds requirement to comply with mandated reporting compared to what I had previously reported Daas Torah 2011 and the declaration of 2010 which is included in Child& Domestic Abuse Vol I.
Consulting with experts in a case of uncertainty whether rabbis and legal - is merely to clarify and does not make the rabbi the gatekeeper as it does in the case of the Aguda. I assume that this view also is that of Rav Herschel Schachter 2006- even though he says to got to a rabbi in case of doubt
Jul 25, 2011 -- The Rabbinical Council of America has today reaffirmed its position that those with reasonable suspicion or first hand knowledge of abuse or endangerment have a religious obligation to report that abuse to the secular legal authorities without delay. One of the unique features of Jewish law is that it imposes upon every member of the community an obligation to help others avoid danger. The biblical verse “do not stand by while your neighbor’s blood is shed" is understood by Jewish Law to mandate that one must do all in one’s power to prevent harm to others - even if monetary harm, but certainly physical harm.
Consistent with that Torah obligation, if one becomes aware of an instance of child abuse or endangerment, one is obligated to refer the matter to the secular authorities immediately, as the prohibition of mesirah (i.e., referring an allegation against a fellow Jew to government authority) does not apply in such a case.
As always where the facts are uncertain one should use common sense and consultations with experts, both lay and rabbinic, to determine how and when to report such matters to the authorities. False accusations are harmful to those falsely accused – but unreported abuse or endangerment can be life-threatening, as we have recently been tragically reminded.
In addition and as a separate matter, those within the Jewish community whom secular law deem to be “mandated reporters,” must certainly obey the particular reporting requirements, which vary from state to state in the US. A person covered by mandatory reporter laws must comply with those laws, even in a case in which Jewish law might otherwise not require a person to report such child abuse or endangerment.
Consistent with that Torah obligation, if one becomes aware of an instance of child abuse or endangerment, one is obligated to refer the matter to the secular authorities immediately, as the prohibition of mesirah (i.e., referring an allegation against a fellow Jew to government authority) does not apply in such a case.
As always where the facts are uncertain one should use common sense and consultations with experts, both lay and rabbinic, to determine how and when to report such matters to the authorities. False accusations are harmful to those falsely accused – but unreported abuse or endangerment can be life-threatening, as we have recently been tragically reminded.
In addition and as a separate matter, those within the Jewish community whom secular law deem to be “mandated reporters,” must certainly obey the particular reporting requirements, which vary from state to state in the US. A person covered by mandatory reporter laws must comply with those laws, even in a case in which Jewish law might otherwise not require a person to report such child abuse or endangerment.
Let me preface my comments by stating that they refer to "borderline" cases of abuse - I'm just as concerned as the RCA is about known abusers "floating around" without repercussion. My main concern is handing the decision making process concerning the definition of "reasonable suspicion" of abuse to those unlearned in Halachic intricacies or to those with open or hidden contempt to Halachic intricacies.
ReplyDeleteDT is right - The RCA guidelines definitely don't seem to make Rabbonim "gatekeepers", since they say "where the facts are uncertain one should use common sense and consultations with experts, both lay and rabbinic, to determine how and when to report such matters to the authorities".
One deduction would be that if facts ARE certain one need NOT consult with either experts or Rabbonim. A Second (and more troubling) deduction would be that even when in doubt "common sense" and/or consultation with ONLY a lay expert, would also suffice.
The only "little" problem we have is that in his lecture Rav Shechter CLEARLY states that Rabbonim should first be consulted, and declines to "take the bait" when a questioner goads him TWICE to let accusers take things into their own hands. Listen at approx. min. 36-39. Using אפילו אומרים לך על ימין שהוא שמאל is "heavy stuff", that most definitely DOES make the Rav the gatekeeper. He just strongly encourages finding a Rav that knows Shulchan Aruch (I point I wholeheartedly agree with).
It's fair to say that Rav Shechter knows about the RCA guidelines. If so, HE IS CONTRADICTING himself in a BIG way.
Okay, you say, people CAN change their minds. True. This however brings us to another problem: The line of reasoning he uses in his lecture seems to be much more SOLID that those used in the RCA guidelines. I believe that he guidelines also suffer from some glaring errors of omission.
1) He states that the prohibition of Mesira stands if no Aveira was transgressed. As I've mentioned in other posts, this seems to be extremely relevant in cases of physical/emotional abuse allegations which may in many cases actually be permissible when done for Chinuch purposes according to many Poskim. Usually, there is no Mitzvahs תוכחה in such cases, so it would be hard to justify Mesira. This is especially so in cases were one spouse wants to change after the marriage. Also, as the Chofetz Chaim states, this would be a problem if party "B" defends him/herself from party "A" that was the instigator, and party "A" calls authorities. In SA cases this would seem simpler as far as the עבירה involved. From my interactions with both accusers and lay experts, I can state unequivocally that both groups DO NOT use such guidelines in day-to-day practice.
ReplyDelete2) He states that the prohibition of Mesira stands if the accused is put in a position where he's punishment will be beyond what secular law allows. He cites two cases: 1) Where an anti-Semitic judge would punish the accused more harshly than usual, because of his religion. 2) Having him committed to a State prison, where assaults, etc. on fellow prisoners are common. It takes a bit more than "common sense" to ascertain that such problems don't exist, but the RCA guidelines make light of these problems, by simply ignoring them.
3) The implication of his lecture are that contacting authorities is warranted in one of two scenarios: 1) The accused is a danger to an individual in the future, or 2) The accused may have committed a "pattern" of abuse, thus becoming a public menace. (There's also the issue of first being מוכיח the accused, which needs further research). This is another area that somehow the guidelines didn't feel important enough to mention.
4) Another VERY IMPORTANT issue RS clearly states in his lecture that is ignored in the guidelines: : If someone contacts authorities and the accused is later found innocent, the Accuser is liable for all monetary damages because of דינא דגרמי (see חו"מ ס' שפ"ח). Once someone is officially accused (I imagine) he will have major financial expenditures in order to organize his defense. The prospect of the accuser being Halachacilly liable for hundreds of thousands of dollars is daunting. Doing "due diligence" BEFORE contacting authorities, based on the criteria I mentioned, is simply crucial FOR THE ACCUSER wellbeing.
To sum it up, I think the words of the Chofetz Chaim concerning Loshon Horah לתועלת, in כלל י' הי"ד of הלכות לשהון הרע should be our guide:
שֶׁלֹּא לְהַחְלִיט תֵּכֶף, שֶׁדָּבָר זֶה הוּא בִּכְלַל גֶּזֶל וְהֶזֵּק וְאוֹנָאַת דְּבָרִים וּבֹשֶת וְכַיּוֹצֵא בָּזֶה, רַק יִתְבּוֹנִן הֵיטֵב מִתְּחִלָּה עַל פִּי דּרְכֵי הַתּוֹרָה, אִם הַדִּין עִמוֹ, וְהַשֶּׁכְּנֶגְדּוֹ הוּא הַגַּזְלָן וְהַמַזִּיק וְהַמְבַיֵּשׁ וְכַיּוֹצֵא בָּזֶה, וְכִמְעַט פְּרַט זֶה קָשֶׁה לְצַיֵּר מִן הַכֹּל, כִּי אֵין אָדָם רוֹאֶה חוֹב לְעַצְמוֹ, וְכָל דֶּרֶךְ אִישׁ יָשָׁר בְּעֵינָיו, וְאִם יִכָּשֵׁל בָּזֶה מִמֵילָא הוּא בִּכְלַל מוֹצִיא שֵׁם רָע, אֲשֶׁר הוּא חָמוּר מֵאִסוּר לָשׁוֹן הָרָע.
Ploni your comments are interesting - but they clearly indicate that you have no idea what has happened in the last few years and the futility of rabbis trying to act as gatekeepers in this disgusting area - as well as showing ignoraous of the whole field of abuse.
ReplyDeleteYou are a diletante looking consistencies and intellectual purity.
It is equivalent to using an umbrella to protect against rain and maybe a bit of caulking compound against leaks in the basement. However when the full extent of the tsunami of abuse becomes known - these formal procedure as revealed as useless as is all the condescending talk about the alleged abuser can't be guilty because "he is a talmid chachom and such a refined person can't be a molester."
In short Rabbis are discovering that abuse is not something you can understand and deal with based on commonsense and religious authority.
"You are a diletante looking consistencies and intellectual purity".
ReplyDelete1) You probably meant "dilettante" , not "diletante".
2) Instead of attacking me personally "you are...", you'd be on much firmer ground if you attacked my ideas instead. Time and again you I've offered up concrete and I believe valid points. Your unwillingness or inability to address the details is troubling.
I've personally emailed you asking that someone SPEAK DIRECTLY to Rav Shechter or at least another prominent RCA Rav. THIS is the way of Torah, not personal attacks - which only show the weakness of YOUR stance.
3) I won't comment on what the connotations are of equating Halacha to "intellectual purity". That is PRECISELY the line Reform took.... It's not a stretch to equate this issue (at the very least!) To RS's stance vs-a-vis women's ordination, which he considers הריסת הדת.
4) Here is my main point: You think I'm pushing inaction. No way. EVERY pointer I mentioned has a TORAH-BASED SOLID solution: 1) Only report עבירות. Solution: Educate the lay experts AND the Rabbonim on Halachic parameters of abuse. Get someone to write a well-researched Sefer and get good Haskomos. Problem solved. 2) Punishment exceeding civil law: Perhaps the powers-that-be can steer cases to a-federal prisons, and b-judges with a reputation for being fair and not anti-Semitic. 3) This is included in #1, educate on this Halacha, too.4) Monetary damages if found innocent: Vet every allegation to make sure it meets the criteria for "reasonable suspicion". This would alleviate the worry of being liable for monetary damages.
DT - Before you pounce - think! Explain why solutions like these could not offer a possible way out of the intractable logjam we currently face, and allow YOU to remain Torah-True?