I find it amazing that most of the famous Aguna cases seen in this blog lay the blame on the man. Yet after learning Mishlei and other Torah works one can see that Shlomo Hamelech and Chazal refer allegorically to "evil" emanating from women. Yes there are evil men too, But why do we see in Mishlei countless references to "evil" as the woman? Why do chazal say Isha Raah(evil) but not Ish raah? So Ploni the author of this post raises a very good point. No one looks at Tamar as the root cause here just as no one looks at other cases at the woman being the root cause? Once again the feminist minds of today learned how to manipulate minds today by using stigma as a weapon to lay blame on the man. So THE STIGMA OF AGUNA automatically means the man is to blame! This is synonymous to the stigma of "black lives matter" or anti "african- American",which gets in the way of good police officers doing their job out of fear of being falsely accused of abusing someone. We saw mass protests across the country and especially in Ferguson, Missouri, and you know what, that has changed many police department protocols and has now endangered the lives of many police officers who when justified to draw their pistols ,are afraid to do so! This has occurred all the while security camera footage showing moments before the police shooting, that Michael Brown had robbed a store! Then you have ORA another organization that uses young innocent Stern teenagers for their rallies! Not to mention that they are worsening the shidduch crisis for these girls by poisoning their minds against men at this young age, but they use them to create a FALSE FLAG panic amongst us to believe that this man is cruel for not giving a GET and we must ostracize him at all costs! So we have a generation today that believes that police officers are brutal for being a "little too harsh" on a black man who just robbed a store and a generation of jewish people who are brainwashed By ORA that we have an AGUNA CRISIS when in reality there is no crisis as many know that ORA and some rabbis are encouraging women not to settle cases early on for selfish reasons, thereby delaying their own Get and therefore they are SELF IMPOSED GOONS! (they dont deserve the title aguna) !!!
I did not suggest that a woman's anxiety is grounds for mekach ta'us. I simply said that with respect to a finding of mekach ta'us on mental grounds, what is significant is not how the patient feels, but how the wife feels about the patient (i.e. her husband); meaning, whether he's a person she can live with or not. That's the whole point of סברה וקיבלה -- he might have a serious מום, but she can live with it. Mental illness may or may not be a basis for mekach ta'us in marriage, but if it is, that's the important issue -- whether or not the wife can live with it. I don't see this as a data point in the vast divide between Jewish hashkafas hachaim and that of the DSM, which means your pie-in-the-sky (or crystal-ball if you prefer) hypothesis about what went on in this unhappy marriage is irrelevant.
I'm obviously totally on your side as far as the importance of bringing Halacha, ethics & morals into the therapist's office and training frum therapists how to navigate the moral quandaries.
However, I have to disagree with the line of blaming women. Putting aside political correctness, I don't think it tells the whole story.
Not every therapist is a raging feminist, even if they slant leftwards more often than not. If we were going to "turn around" the story, where Aaron was the one advocating "go with the flow" and Tamar was the idealistic, principled one - I think many would actually support Aaron.
Think about the typical left-leaning therapist's PRIORITIES. As I mentioned, I think it's a mindset with several "working parts":
* Unfettered self-expression is very important.
* Validation and unquestioning support is very important.
* Never show that you mistrust anything a client (or friend) tells you. Always BE NICE!
* We don't want to cause pain. Moral quandries cause pain, so we don't seal with them.
* Act as an advocate for your client, and always seek to maximize his/her pleasure and minimize his/her pain, thus advancing Happiness! (With a Capital "H")!
It just happens to be that most female homo sapiens tends to gravitate more to the social aspects of life than most of the male homo sapiens. We men have our נסיונות and women have their own (not to mention that I've met plenty of each gender that defy the norm, and my guess is that so have you!
I agree with what you say - Rav Moshe Zatzal alludes to that in ס"פ when
he brings the Gemara in Yevomos קיב: concerning why unlike חרש וחרשת where Chazal where מתקן קידושין מדרבנן, by שוטה Chazal didn't do so. So the Gemara says שוטה דלא קיימא תקנתא דרבנן דאין אדם דר עם נחש בכפיפה אחת לא תקינו רבנן נשואין Rashi explains: שוטה אפילו בפקחת לשוטה ושוטה לפקח אין שלום ביניהם
My point is that just as we instinctively understand that "שלום ביניהם" doesn't mean that the wife can טענה מקח טעות if the husband doesn't assuage her stress caused by feeling like an outcast for not having this year's model of Hermes handbag, so to if he doesn't want to "go with the flow" when the dinner conversation enters questionable Halachic/moral & ethical boundaries.
Think about it in the greater context. This whole ביטל קידושין thing was predicated on הרי את מקודשת לי ... כדת משה וישראל.
Doesn't כדת משה וישראל REQUIRE prioritizying Halacho, ethics & morals?
(Hey, THAT would make a good heading for this post: "What מקח טעות - Wasn't the מקח done כדת משה וישראל?" I guess it's too late now to change it!)
And FYI: I think the therapist is on VERY shaky ground. I don't know if you're in the line or not. regardless of what goes on "in the braech", this רופא מומחה is on VERY shaky legal ground לפענ"ד for doing a forensic evaluation without seeing Aaron. It would never fly in acustody case, etc. (with all the garbage that goes on, they would at least "make believe" they included Axis IV and a full psyco-social workup. Besides, assuming hubby had good counsel, I believe courts would throw out the forensic רופא מומחה eval for some other good reasons, for example, because he based his info on a marriage counselor's eval. which is done with totally different rules. Are you familiar with the Daubert-Joiner-Kumho trilogy ,that forensics have to meet?
a) I agree, it's not a hefker velt. I'm talking about the woman's feelings only in the context of an actual מום, not as a reason for bitul in and of themselves.
b) I agree the therapist is on very shaky ground (although my understanding is that the earlier therapist saw both of them together, a point R' Feldman wasn't sure about), but I think lots of therapists are on very shaky ground, as is the whole DSM enterprise.
c) I am not in the line. I am not familiar with the trilogy you mention -- would be interested in hearing more about it.
d) I consider your analysis "pie-in-the-sky" b/c it's a complex narrative with underlying motives attributed to the parties based on nothing more than a few lines in the diary of a woman you've never met, regarding her husband whom you've never met either. That's what happens, I guess, when therapist meets blog meets scandal.
Another relevent point is whether the poskim who were mattir Tamar even made an attempt to ask the husband Aharon if he suffers from any mental health issues or if he would be willing to be evaluated or if he had any evaluations showing the status of his mental health. Surely he had the right to have his own claims of the status of his mental wellness taken into consideration on a מקח טעות determination that hinges on the status of his wellbeing.
Famously, during the 1964 Presidential race, a number of psychiatrists signed an advertisement stating that Barry Goldwater, whom they had never met, was unfit to be President. That travesty led to the adoption of the Goldwater Rule, stating that commenting on a patient one has never examined is an ethical violation. https://en.wikipedia.org/wiki/... So how can a posek, or a bais din, rely on an expert who is in violation of the precepts of his profession?
You also cant rely necessarily on the psychiatrists determination of personality disorders. I say this because the DSM3 or 2 (The psychiatry bible) once upon a time listed homosexuality as a "disease", and now it is no longer a disease? Yes there are known universally accepted personality disorders such as borderline, paranoid, OCD etc,, But you get into a very controversial plane when you start saying that a person who is shy or doesnt speak much in public is a personality disorder. To some yes but to many no. Therefore to render it a blemish for GET purposes is ridiculous at best and an outright false psak!
Great to reach some consensus. Let's go point by point.
Regarding a) That the feelings are important in context of a real מום. It's vicious cycle thing. As I posted in the other thread, often the label CAUSES the stigma, which in turn could easily have caused Tamar to dehumanize Aaron and feel the stress that she did indeed feel. This is solid research, and the reason why the UK is tilting towards abandoning labels altogether. I admit I didn't post much about this yet.
Regarding b) The fact that a therapist saw both of them together SHOULD mean nothing IMHO. Here's why: Maryland has no-fault divorce. Unless explicitly told to do so, he had no reason to "evaluate" Aaron. Marriage "mediation" is very different than mental health assessment. i doubt either of the two did any written assessments. Not so the רופא מומחה his obligation is much different & much more stringent. HE DID need to use the best tools available to assess Aaron. That only proves that he didn't do his job. The חידוש to me is why this fiasco didn't already fall apart yet...
Regarding c) If you're okay with reading research articles, here's a one of many places where the trilogy is mentioned:
Zimmerman, J., Hess, A. K., McGarrah, N. A., Benjamin, G. A. H., Ally, G. A., Gollan, J. K., & Kaser-Boyd, N. (2009). Ethical and professional considerations in divorce and child custody cases. Professional Psychology: Research and Practice, 40(6), 539.
Regarding d) Of course I've never met them. But if you've read the ARA ethical rules you'd see that it was the רופא מומחה's job to address alternatives. Do you think therapist #1 even mentioned the things I wrote to therapist #2? Furthermore, the rules tell him to keep paperwork. If I'd be him and I read this, I'd take off a day from work and start put everything in writing.
I still hope IY"H to post evidence that he would never have said what he did if he was up-to-date on recent research.
100%. Besides, אין לכך מכנה שם רע לחבירו גדולה מזו, which Chazal say - אין לו חלק לעולם הבא!
... And the ביטול מצות עשה of בצדק תשפוט עמיתך by things that are בספק (see ח"ח הל' לשה"ר כלל ד' ה"ג).
And I think the idea that context matters, and a counter party can never ever be expected to impartially state issues that go against their נגיעות - all of this is basic Halacho.
On איסור לשון הרע based on exaggerating "context clues", see ח"ח כלל ד' ה"ט: אָסוּר לְגַנּוֹת אֶת חֲבֵרוֹ לְסַפֵּר עָלָיו מִדּוֹת הַמְגֻנּוֹת שֶׁיֵּשׁ לוֹ, כְּגוֹן שֶׁרָאָה עָלָיו שֶׁנִּתְגָּאָה, אוֹ כָּעַס בְּדָבָר שֶׁלֹּא כַּהֹגֶן אוֹ שְׁאָרֵי מִדּוֹת מְגֻנּוֹת, במ"ח ס"ק ל"ח באמצע: לא התיר ר' יונה במאמר רי''ט רק אם אינו נזהר מעבירה אשר כל שער עמו יודעים שהיא עבירה ... על אחת כמה וכמה בעניני המדות, שידוע שיש בהן הרבה גדרים שפעמים מצוה להתנהג בהן באופן זה ופעמים להפכו, והם מתחלפים לפי האיש והענין והמקום והזמן, ורגילין לטעות בהן מאד
If my hypotheses is correct, there would be the Halachic obligation to find out if his purported lapse in midos is indeed something negative, or if it's a case of פעמים מצוה להתנהג בהן באופן זה ופעמים להפכו (for example, to avoid לשון הרע).
FWIW they gave Aaron a diagnosis of paranoia and OCD - these aren't personality disorders. But your point is well known and accepted in the highest echelons.
In a major discussion involving 25 top psychologists including Allen Frances (chair of DSM IV task force) this came up.
A Dr. Walkenfeld writes that if we follow Dr. Frances of requiring a "cost-benefit analysis" of determining who is mentally ill, we might end up using the MI label as a means of social control. He writes:
"our intuitions are that entire cultures can be incorrect about their disorder judgments ... some ante-bellum Southern physicians considered slaves who ran away from their masters to be psychiatrically disordered ("drapetomania"), and Soviet psychiatrists treated political dissidents as disordered. We believe that these diagnostic judgments, although consistent with the respective cultures' values, were incorrect -- not correct "for them" and incorrect for us, but just plain wrong".
and:
"reframing the process of deciding whether to pathologize a condition as a cost-benefit analysis, if taken seriously, is not only intellectually unsupportable but dangerous, for the same reasons why one would not want cost-benefit analysis to determine whether an accused was judged guilty in a trial - namely, one loses any protection against social control aspirations".
Dr, Frances concurs, and writes:
"Dr Wakefield seems to accept the necessity of my less abstract “cost/benefit analysis” approach for reducing the reckless DSM 5 diagnostic exuberance at the fuzzy boundary with normality. But he goes on rightly to criticize its susceptibility to misuse in the service of social control or economic manipulation".
The REAL רופאים מומחים know about these problems, which לפענ"ד are a מצוה לפרסם.
I have no argument with almost all of this. I don't buy the mumcheh who went by someone else's interview w/o meeting the husband, nor do I accept that a psychiatrist's diagnosis necessarily means anything (as may have been evident from my comment re. the DSM). I think it's clear that the matirim's work to establish the existence of an invalidating מום (as well as whether this particular מום has halachic significance), was not done properly. They did not perform their due diligence in establishing the facts. At the same time, I see your reading of tea leaves in the same light: An overreaching diagnosis made on almost no evidence in service of a predetermined opinion.
My "pie-in-the-sky" comment was made regarding your assessment of the husband-wife relationship, not regarding the correctness of the "mumcheh's" (mis)behavior. To the contrary, I find your argument in that area convincing.
He has no obligation to give his wife a Get. And his wifr has an obligation to use a beis din to adjudicate custody and not utilize a non-Jewish court.
"My "pie-in-the-sky" comment was made regarding your assessment of the husband-wife relationship" ... "I consider your analysis "pie-in-the-sky" b/c it's a complex narrative with underlying motives attributed to the parties based on nothing more than a few lines in the diary of a woman you've never met"
I'm not about to testify in court based on my analysis.
The burden of proof is always on the one denying someone his/her rights - in this case, Aharon's rights. I pointed out that this burden was most definitely not met. Not only because of the lack of due diligence, which is reason enough, but also because of misinterpretation. I don't claim to know all the facts, but any perceptive eye can see that there where certain issues between them and that there is room to interpret these facts in ways that none of the Teshuvos seemed to notice. The fact that it's only a few lines in a diary doesn't change Tamar's own analysis of her relationship.
The gist of my post was that we need to stop focusing on the degree of the purported illness and instead focus on the travesty of turning positive traits into negatives. I hope to still iy"h write another post about this, because it's a known flaw in the diagnostic system and likewise in what needlessly caused Tamar to get stressed..
It seems there's backtracking on the 'mumche' therapist claim. After all, if his name comes out, he may very well lose his license, his client base, and most importantly to him, his / her referals.
Question: assuming a proper bet din can be arranged, are the K family, the therapist, liable to aharon f (and mr Fle..., if he decides to leave the marriage; or even Mrs tam....) for wrong advice, wrongful release of private information, wrongful diagnosis, etc.?
He is 100% correct. The husband most certainly did object to her going to and using the secular court. But even if he didn't object, she is still halachicly prohibited from using a secular court. But in fact he did object. He wanted to use the beis din. She ran away from the beis din.
And in any event, since no beis din ever said he is required to give a Get, he has no obligation to give a Get. Until and unless a beis din who heard both sides rules otherwise.
David get a life, she dosent want him, she will never go back, give a get and move on BTW, I see no objection from him about going to court, hence the rule of אין נזקקים applies
Some batei din will enforce a civl law tort of this type. (Its a 'gramah' that the gemarah says 'gramah patur miNezikin', but many rishonim still disagree.
So write your own Torah and make your own Halachas as you like them. The Torah the RBS"O gave us at Har Sinai and the Shulchan Aruch say the husband is not required to give a divorce. And they do so it is prohibited to use non-Jewish courts.
What is the liability of rabbi qua judge whose misapplication or misinterpretation of Jewish law causes unlawful financial loss? What if the rabbi settles a monetary dispute improperly? What is his liability if he certifies non-kosher food as kosher, causing financial loss by rendering unusable the vessels in which such food was subsequently cooked?
Shulchan Aruch, Choshen Mishpat no. 25, codifies the parameters of judicial malpractice. If the rabbi's decision contradicts explicit legal decisions of the Talmud or Codes (devar mishnah) the decision is reversed and proper judgment enforced.14 If such damages are non-recoverable - such as by the absence of the person to whom the improper award was originally made, or because the non-kosher foodstuffs were mixed with kosher, rendering the entire mixture unfit - the rabbi is not liable for the damages he caused. The reason for this exemption is to protect competent, licensed professionals from fear of litigation due to nonnegligent errors.15 Ramo (R. Moses Isserles, 1525-1572), however, maintains that rabbis are liable for unrecoverable damages caused by their misapplication of law.16
If the rabbi's error was discretionary (shikul hada'at), i.e., due to his interpretation and resolution of conflicting opinions in a manner contrary to legal tradition, liability is a function of both his expertise and his authority. If he is an expert in the area of law in dispute and either has official license to exercise judicial authority or serves by consent of the litigants, the erroneous decision is reversed, and the rabbi is not liable even if proper restitution cannot be made to the damaged party. If, however, the rabbi as an expert judge acts without either proper license or consent, or if he is a non-expert whose judgment is accepted by the parties, a mistaken interpretation is upheld; however, if the rabbi personally enforces his erroneous ruling, he is liable. If he did not personally enforce his decision, he is liable only if the damages are unrecoverable. Ramo obligates him in the latter case, maintaining that the original ruling is upheld and that the judge is liable for damages.
The halacha in malpractice by a rabbi in his judicial function is, thus, fairly clear cut. That is not the case with regard to his role as a counselor.
What is the liability of a rabbi qua counselor for the advice he gives? What would be the outcome of the Nally case if it were presented to a Jewish court? A halachic inquiry into such rabbinic malpractice must evaluate the nature of the counsel offered by a clergyman to the individual seeking his counsel as well as the advisor-advisee relationship.
The dispensation of bad advice falls under the general biblical proscription, "Thou shalt not place a stumbling block before the blind" (Lev. 19:14). The Sifra, the halachic Midrash to the book of Leviticus, maintains that in this verse blindness is not a physical ailment, but rather a trope for ignorance, and the "stumbling block" is a metaphor for bad advice. Thus,
"Before the blind." Should he ask you: "Is the daughter of so and so qualified to marry a Cohen (i.e. descendant of the priestly family)?" do not answer him "Yes, she is qualified," when she is really unfit. If he comes to consult you do not give him wrong advice. Do not say to him: "Go out early," when robbers would waylay him: "Go out at noon," that he should get sunstroke. Do not say to him: "Sell your field and buy yourself a donkey," and then by a trick take it from him.17
What is R. Dratch's sources? And is he referring to bad judgement in a beis din of three or a single rabbis judgement? If a bad beis din judgement, when the beis din is liable, is the liability evenly split between all three dayanim?
I wouldn't call it "displeasure." More in the way of pointing out an inconsistency.
Anyhow, I'm very much in tune with you regarding how diagnoses are misused, and regarding their tenuous nature, as must anyone be who has looked into the bad joke known as the DSM. I see the entire ADD/ADHD enterprise as a form of social control. It's perfectly possible that this is what's happening here with Mr. Friedman. Or not. Sometimes a cigar really is a cigar. Abusive and mentally ill husbands do exist. They are not merely invented for purposes of social control. Mr. Friedman has been accused by his wife of being one such. She feels, as does her "mumcheh," that she has valid grounds for these claims. The accusations may or may not be true, but they cannot be dismissed out of hand with theories of social control, as you wish to do. Nor can they be dismissed on the basis of a conversation with the husband, which proves absolutely nothing. Just as the truth cannot be ascertained by a psychiatrist who has never spoken to Mr. Friedman, so too it cannot be ascertained by one who has spoken only to Mr. Friedman and not his wife.
I think your definition of "inconsistency" isn't accurate. You didn't address my burden of proof argument. And I think I offered up just a itsy-bitsy more than social control theory in all my posts, unless only the last line counts.
I guess it's time to move on, anyway.
One thing I'm curious about tho - would you accept a face-to-face interview as proof? What happens if MH experts offer up different opinions, which is the norm? Who decides which facts are important? Who decides how to interpret agreed upon facts? Can the expert ignore the diary? The fact that in neither court nor B"D did she mention this stuff?
My response to the burden of proof argument is (and was) that where husband and wife are feuding, and the wife makes claims of mental illness and has a professional judgment to back it up, this creates a significant ריעותא in the husband's חזקת כשרות, one that he needs to address. A wife's claims are not "proof," but they are not nothing either.
I'm not sure why you imagine that I would have answers to your concluding questions. I'm sure I could come up with some ideas, but so far as I'm concerned, these are questions for serious poskim doing a serious investigation, which I am not.
that is why dayanim (practically) refuse to do a din torah on din, require pshara (or pshara krovah leDin). so that they are not liable for their errors.
And to that I respond: In no way is such a ריעותא created. Both halachicaly and based on common sense, in cases where conflict preceded the claim. did you forget the Mishna, יבמות קיד: also brought להלכה קטטה בינו לבינה ושלום בעולם ובאתה ואמרה מת בעלי אינה נאמנת
This is what consistency really means -EVEYTHING has to fit, without ignoring info that doesn't fit the theory. . You may not be familiar with the dirty underbelly of politics and עסקנות, so it doesn't occur to you to connect the dots. when a person with a vested interest creates problems after the fact, as many here have mentioned - that she never brought up mental illness, and she brings up a notoriously easy to forge problem ... c'mon ... give me a break .... Yes - consistency.....
I am sadly all too familiar with what you call the dirty underbelly of these things. I disagree regarding the ריעותא. There's no question this was an unhappy marriage before askanim got involved. You may be right that her therapy made her more unhappy, but you may be wrong. Without a thorough investigation with the cooperation of both parties, the truth will remain elusive. None of this changes the fact that when a woman complains about abuse and mental illness, the husband must respond. He cannot hide behind a chezkas kashrus, nor can he hide behind a complaint about dirty politics and askanus.
This is a very important and valuable post. Thank you!
ReplyDeleteThank you. I just updated it and added and fixed some things. I hope RDE will repost the new version.
ReplyDeleteI find it amazing that most of the famous Aguna cases seen in this blog lay the blame on the man. Yet after learning Mishlei and other Torah works one can see that Shlomo Hamelech and Chazal refer allegorically to "evil" emanating from women. Yes there are evil men too, But why do we see in Mishlei countless references to "evil" as the woman? Why do chazal say Isha Raah(evil) but not Ish raah? So Ploni the author of this post raises a very good point. No one looks at Tamar as the root cause here just as no one looks at other cases at the woman being the root cause? Once again the feminist minds of today learned how to manipulate minds today by using stigma as a weapon to lay blame on the man. So THE STIGMA OF AGUNA automatically means the man is to blame! This is synonymous to the stigma of "black lives matter" or anti "african- American",which gets in the way of good police officers doing their job out of fear of being falsely accused of abusing someone. We saw mass protests across the country and especially in Ferguson, Missouri, and you know what, that has changed many police department protocols and has now endangered the lives of many police officers who when justified to draw their pistols ,are afraid to do so! This has occurred all the while security camera footage showing moments before the police shooting, that Michael Brown had robbed a store! Then you have ORA another organization that uses young innocent Stern teenagers for their rallies! Not to mention that they are worsening the shidduch crisis for these girls by poisoning their minds against men at this young age, but they use them to create a FALSE FLAG panic amongst us to believe that this man is cruel for not giving a GET and we must ostracize him at all costs! So we have a generation today that believes that police officers are brutal for being a "little too harsh" on a black man who just robbed a store and a generation of jewish people who are brainwashed By ORA that we have an AGUNA CRISIS when in reality there is no crisis as many know that ORA and some rabbis are encouraging women not to settle cases early on for selfish reasons, thereby delaying their own Get and therefore they are SELF IMPOSED GOONS! (they dont deserve the title aguna) !!!
ReplyDeletedone!
ReplyDeleteI did not suggest that a woman's anxiety is grounds for mekach ta'us. I simply said that with respect to a finding of mekach ta'us on mental grounds, what is significant is not how the patient feels, but how the wife feels about the patient (i.e. her husband); meaning, whether he's a person she can live with or not. That's the whole point of סברה וקיבלה -- he might have a serious מום, but she can live with it. Mental illness may or may not be a basis for mekach ta'us in marriage, but if it is, that's the important issue -- whether or not the wife can live with it. I don't see this as a data point in the vast divide between Jewish hashkafas hachaim and that of the DSM, which means your pie-in-the-sky (or crystal-ball if you prefer) hypothesis about what went on in this unhappy marriage is irrelevant.
ReplyDeletethanks
ReplyDeleteI'm obviously totally on your side as far as the importance of bringing Halacha, ethics & morals into the therapist's office and training frum therapists how to navigate the moral quandaries.
ReplyDeleteHowever, I have to disagree with the line of blaming women. Putting aside political correctness, I don't think it tells the whole story.
Not every therapist is a raging feminist, even if they slant leftwards more often than not. If we were going to "turn around" the story, where Aaron was the one advocating "go with the flow" and Tamar was the idealistic, principled one - I think many would actually support Aaron.
Think about the typical left-leaning therapist's PRIORITIES. As I mentioned, I think it's a mindset with several "working parts":
* Unfettered self-expression is very important.
* Validation and unquestioning support is very important.
* Never show that you mistrust anything a client (or friend) tells you. Always BE NICE!
* We don't want to cause pain. Moral quandries cause pain, so we don't seal with them.
* Act as an advocate for your client, and always seek to maximize his/her pleasure and minimize his/her pain, thus advancing Happiness! (With a Capital "H")!
It just happens to be that most female homo sapiens tends to gravitate more to the social aspects of life than most of the male homo sapiens. We men have our נסיונות and women have their own (not to mention that I've met plenty of each gender that defy the norm, and my guess is that so have you!
I agree with what you say - Rav Moshe Zatzal alludes to that in ס"פ when
ReplyDeletehe brings the Gemara in Yevomos קיב: concerning why unlike חרש וחרשת where Chazal where מתקן קידושין מדרבנן, by שוטה Chazal didn't do so. So the Gemara says שוטה דלא קיימא תקנתא דרבנן דאין אדם דר עם נחש בכפיפה
אחת לא תקינו רבנן נשואין
Rashi explains: שוטה אפילו בפקחת לשוטה ושוטה לפקח אין שלום ביניהם
My point is that just as we instinctively understand that "שלום ביניהם" doesn't mean that the wife can טענה מקח טעות if the husband doesn't assuage her stress caused by feeling like an outcast for not having this year's model of Hermes handbag, so to if he doesn't want to "go with the flow" when the dinner conversation enters questionable Halachic/moral & ethical boundaries.
Think about it in the greater context. This whole ביטל קידושין thing was predicated on הרי את מקודשת לי ... כדת משה וישראל.
Doesn't כדת משה וישראל REQUIRE prioritizying Halacho, ethics & morals?
(Hey, THAT would make a good heading for this post: "What מקח טעות - Wasn't the מקח done כדת משה וישראל?" I guess it's too late now to change it!)
And FYI: I think the therapist is on VERY shaky ground. I don't know if you're in the line or not. regardless of what goes on "in the braech", this רופא מומחה is on VERY shaky legal ground לפענ"ד for doing a forensic evaluation without seeing Aaron. It would never fly in acustody case, etc. (with all the garbage that goes on, they would at least "make believe" they included Axis IV and a full psyco-social workup. Besides, assuming hubby had good counsel, I believe courts would throw out the forensic רופא מומחה eval for some other good reasons, for example, because he based his info on a marriage counselor's eval. which is done with totally different rules. Are you familiar with the Daubert-Joiner-Kumho trilogy ,that forensics have to meet?
a) I agree, it's not a hefker velt. I'm talking about the woman's feelings only in the context of an actual מום, not as a reason for bitul in and of themselves.
ReplyDeleteb) I agree the therapist is on very shaky ground (although my understanding is that the earlier therapist saw both of them together, a point R' Feldman wasn't sure about), but I think lots of therapists are on very shaky ground, as is the whole DSM enterprise.
c) I am not in the line. I am not familiar with the trilogy you mention -- would be interested in hearing more about it.
d) I consider your analysis "pie-in-the-sky" b/c it's a complex narrative with underlying motives attributed to the parties based on nothing more than a few lines in the diary of a woman you've never met, regarding her husband whom you've never met either. That's what happens, I guess, when therapist meets blog meets scandal.
Another relevent point is whether the poskim who were mattir Tamar even made an attempt to ask the husband Aharon if he suffers from any mental health issues or if he would be willing to be evaluated or if he had any evaluations showing the status of his mental health. Surely he had the right to have his own claims of the status of his mental wellness taken into consideration on a מקח טעות determination that hinges on the status of his wellbeing.
ReplyDeleteOn the other thread, Avigdor mentions this, too:
ReplyDeleteFamously, during the 1964 Presidential race, a number of psychiatrists
signed an advertisement stating that Barry Goldwater, whom they had
never met, was unfit to be President. That travesty led to the adoption
of the Goldwater Rule, stating that commenting on a patient one has
never examined is an ethical violation. https://en.wikipedia.org/wiki/...
So how can a posek, or a bais din, rely on an expert who is in violation of the precepts of his profession?
You also cant rely necessarily on the psychiatrists determination of personality disorders. I say this because the DSM3 or 2 (The psychiatry bible) once upon a time listed homosexuality as a "disease", and now it is no longer a disease? Yes there are known universally accepted personality disorders such as borderline, paranoid, OCD etc,, But you get into a very controversial plane when you start saying that a person who is shy or doesnt speak much in public is a personality disorder. To some yes but to many no. Therefore to render it a blemish for GET purposes is ridiculous at best and an outright false psak!
ReplyDeleteGreat to reach some consensus. Let's go point by point.
ReplyDeleteRegarding a) That the feelings are important in context of a real מום. It's vicious cycle thing. As I posted in the other thread, often the label CAUSES the stigma, which in turn could easily have caused Tamar to dehumanize Aaron and feel the stress that she did indeed feel. This is solid research, and the reason why the UK is tilting towards abandoning labels altogether. I admit I didn't post much about this yet.
Regarding b) The fact that a therapist saw both of them together SHOULD mean nothing IMHO. Here's why: Maryland has no-fault divorce. Unless explicitly told to do so, he had no reason to "evaluate" Aaron. Marriage "mediation" is very different than mental health assessment. i doubt either of the two did any written assessments. Not so the רופא מומחה his obligation is much different & much more stringent. HE DID need to use the best tools available to assess Aaron. That only proves that he didn't do his job. The חידוש to me is why this fiasco didn't already fall apart yet...
Regarding c) If you're okay with reading research articles, here's a one of many places where the trilogy is mentioned:
Zimmerman, J., Hess, A. K., McGarrah, N. A., Benjamin, G. A. H., Ally, G. A., Gollan, J. K.,
& Kaser-Boyd, N. (2009). Ethical and professional considerations in divorce and child custody cases. Professional Psychology: Research and Practice, 40(6), 539.
Download from:
http://ift-malta.com/wp-content/uploads/2012/08/Ethical-and-professional-considerations-in-divorce-and-child-custody-cases..pdf.
Regarding d) Of course I've never met them. But if you've read the ARA ethical rules you'd see that it was the רופא מומחה's job to address alternatives. Do you think therapist #1 even mentioned the things I wrote to therapist #2? Furthermore, the rules tell him to keep paperwork. If I'd be him and I read this, I'd take off a day from work and start put everything in writing.
I still hope IY"H to post evidence that he would never have said what he did if he was up-to-date on recent research.
100%. Besides, אין לכך מכנה שם רע לחבירו גדולה מזו, which Chazal say - אין לו חלק לעולם הבא!
ReplyDelete... And the ביטול מצות עשה of בצדק תשפוט עמיתך by things that are בספק (see ח"ח הל' לשה"ר כלל ד' ה"ג).
And I think the idea that context matters, and a counter party can never ever be expected to impartially state issues that go against their נגיעות - all of this is basic Halacho.
On איסור לשון הרע based on exaggerating "context clues", see ח"ח כלל ד' ה"ט: אָסוּר לְגַנּוֹת אֶת חֲבֵרוֹ לְסַפֵּר עָלָיו מִדּוֹת הַמְגֻנּוֹת שֶׁיֵּשׁ לוֹ, כְּגוֹן
שֶׁרָאָה עָלָיו שֶׁנִּתְגָּאָה, אוֹ
כָּעַס בְּדָבָר שֶׁלֹּא כַּהֹגֶן אוֹ שְׁאָרֵי מִדּוֹת מְגֻנּוֹת,
במ"ח ס"ק ל"ח באמצע: לא התיר ר' יונה במאמר רי''ט רק אם אינו נזהר מעבירה אשר כל שער עמו יודעים שהיא עבירה
... על אחת כמה וכמה
בעניני המדות, שידוע שיש בהן הרבה גדרים שפעמים מצוה להתנהג בהן באופן זה ופעמים
להפכו, והם מתחלפים לפי האיש והענין והמקום והזמן, ורגילין לטעות בהן מאד
If my hypotheses is correct, there would be the Halachic obligation to find out if his purported lapse in midos is indeed something negative, or if it's a case of פעמים מצוה להתנהג בהן באופן זה ופעמים
להפכו (for example, to avoid לשון הרע).
FWIW they gave Aaron a diagnosis of paranoia and OCD - these aren't personality disorders. But your point is well known and accepted in the highest echelons.
ReplyDeleteIn a major discussion involving 25 top psychologists including Allen Frances (chair of DSM IV task force) this came up.
A Dr. Walkenfeld writes that if we follow Dr. Frances of requiring a "cost-benefit analysis" of determining who is mentally ill, we might end up using the MI label as a means of social control. He writes:
"our intuitions are that entire cultures can be incorrect about their disorder judgments ... some ante-bellum Southern physicians considered slaves who ran away from their masters to be psychiatrically disordered ("drapetomania"), and Soviet psychiatrists treated political dissidents as disordered. We believe that these diagnostic judgments, although consistent with the respective cultures' values, were incorrect -- not correct "for them" and incorrect for us, but just plain wrong".
and:
"reframing the process of deciding whether to pathologize a condition as a cost-benefit analysis, if taken seriously, is not only intellectually unsupportable but dangerous, for the same reasons why one would not want cost-benefit analysis to determine whether an accused was judged guilty in a trial - namely, one loses any protection against social control aspirations".
Dr, Frances concurs, and writes:
"Dr Wakefield seems to accept the necessity of my less abstract “cost/benefit analysis” approach for reducing the reckless DSM 5 diagnostic exuberance at the fuzzy boundary with normality. But he goes on rightly to criticize its susceptibility to misuse in the service of social control or economic manipulation".
The REAL רופאים מומחים know about these problems, which לפענ"ד are a מצוה לפרסם.
I have no argument with almost all of this. I don't buy the mumcheh who went by someone else's interview w/o meeting the husband, nor do I accept that a psychiatrist's diagnosis necessarily means anything (as may have been evident from my comment re. the DSM). I think it's clear that the matirim's work to establish the existence of an invalidating מום (as well as whether this particular מום has halachic significance), was not done properly. They did not perform their due diligence in establishing the facts. At the same time, I see your reading of tea leaves in the same light: An overreaching diagnosis made on almost no evidence in service of a predetermined opinion.
ReplyDeleteMy "pie-in-the-sky" comment was made regarding your assessment of the husband-wife relationship, not regarding the correctness of the "mumcheh's" (mis)behavior. To the contrary, I find your argument in that area convincing.
ReplyDeleteHe is being punished for being מעגן his wife, he should give a get and move on, the judge decided what visitation he is allowed to have and thts it
ReplyDeleteHe has no obligation to give his wife a Get. And his wifr has an obligation to use a beis din to adjudicate custody and not utilize a non-Jewish court.
ReplyDelete"My "pie-in-the-sky" comment was made regarding your assessment of the husband-wife relationship" ... "I consider your analysis "pie-in-the-sky" b/c it's a complex narrative
ReplyDeletewith underlying motives attributed to the parties based on nothing more
than a few lines in the diary of a woman you've never met"
I'm not about to testify in court based on my analysis.
The burden of proof is always on the one denying someone his/her rights - in this case, Aharon's rights. I pointed out that this burden was most definitely not met. Not only because of the lack of due diligence, which is reason enough, but also because of misinterpretation. I don't claim to know all the facts, but any perceptive eye can see that there where certain issues between them and that there is room to interpret these facts in ways that none of the Teshuvos seemed to notice. The fact that it's only a few lines in a diary doesn't change Tamar's own analysis of her relationship.
The gist of my post was that we need to stop focusing on the degree of the purported illness and instead focus on the travesty of turning positive traits into negatives. I hope to still iy"h write another post about this, because it's a known flaw in the diagnostic system and likewise in what needlessly caused Tamar to get stressed..
It seems there's backtracking on the 'mumche' therapist claim. After all, if his name comes out, he may very well lose his license, his client base, and most importantly to him, his / her referals.
ReplyDeleteQuestion: assuming a proper bet din can be arranged, are the K family, the therapist, liable to aharon f (and mr Fle..., if he decides to leave the marriage; or even Mrs tam....) for wrong advice, wrongful release of private information, wrongful diagnosis, etc.?
ReplyDeleteNiggle away to your heart's content. Your diyukim resemble an excursus in "The Making of a Godol," but if they make you happy, who am I to demur?
ReplyDeleteWrong again moe, if he didn't object to Tamar going to court, then that is what he has to stick with, since it is as קיבל עליו
ReplyDeleteAron should stop being a idiot, and move on with his life
ReplyDeleteI'm beginning to think that he suffers from IDP, besides his other ailments
Halacha dosent really provide for monetary compensation for these kinds of offenses, some may apply the rules of קנס, which is very rare
ReplyDeleteHe is 100% correct. The husband most certainly did object to her going to and using the secular court. But even if he didn't object, she is still halachicly prohibited from using a secular court. But in fact he did object. He wanted to use the beis din. She ran away from the beis din.
ReplyDeleteAnd in any event, since no beis din ever said he is required to give a Get, he has no obligation to give a Get. Until and unless a beis din who heard both sides rules otherwise.
David get a life, she dosent want him, she will never go back, give a get and move on
ReplyDeleteBTW, I see no objection from him about going to court, hence the rule of אין נזקקים applies
Some batei din will enforce a civl law tort of this type. (Its a 'gramah' that the gemarah says 'gramah patur miNezikin', but many rishonim still disagree.
ReplyDeleteSo write your own Torah and make your own Halachas as you like them. The Torah the RBS"O gave us at Har Sinai and the Shulchan Aruch say the husband is not required to give a divorce. And they do so it is prohibited to use non-Jewish courts.
ReplyDeleteAny many don't i would say most don't
ReplyDeleteThe defendent could say Kim Li to halachicly sauccessfully avoid paying.
ReplyDeleteRabbi Mark Dratch writes
ReplyDeletehttp://www.jlaw.com/Articles/clergy_malpractice1.html
What is the liability of rabbi qua judge whose misapplication
or misinterpretation of Jewish law causes unlawful financial loss?
What if the rabbi settles a monetary dispute improperly? What is
his liability if he certifies non-kosher food as kosher, causing
financial loss by rendering unusable the vessels in which such food
was subsequently cooked?
Shulchan Aruch, Choshen Mishpat no. 25, codifies the
parameters of judicial malpractice. If the rabbi's decision contradicts
explicit legal decisions of the Talmud or Codes (devar mishnah) the
decision is reversed and proper judgment
enforced.14
If such damages are non-recoverable - such as by the absence of the
person to whom the improper award was originally made, or
because the non-kosher foodstuffs were mixed with kosher,
rendering the entire mixture unfit - the rabbi is not liable for the
damages he caused. The reason for this exemption is to protect
competent, licensed professionals from fear of litigation due to
nonnegligent errors.15
Ramo (R. Moses Isserles, 1525-1572),
however, maintains that rabbis are liable for unrecoverable damages
caused by their misapplication of law.16
If the rabbi's error was discretionary (shikul hada'at), i.e., due
to his interpretation and resolution of conflicting opinions in a
manner contrary to legal tradition, liability is a function of both his
expertise and his authority. If he is an expert in the area of law in
dispute and either has official license to exercise judicial authority
or serves by consent of the litigants, the erroneous decision is
reversed, and the rabbi is not liable even if proper restitution cannot
be made to the damaged party. If, however, the rabbi as an expert
judge acts without either proper license or consent, or if he is a
non-expert whose judgment is accepted by the parties, a mistaken
interpretation is upheld; however, if the rabbi personally enforces
his erroneous ruling, he is liable. If he did not personally enforce
his decision, he is liable only if the damages are unrecoverable.
Ramo obligates him in the latter case, maintaining that the original
ruling is upheld and that the judge is liable for damages.
The halacha in malpractice by a rabbi in his judicial function
is, thus, fairly clear cut. That is not the case with regard to his role
as a counselor.
What is the liability of a rabbi qua counselor for the advice he
gives? What would be the outcome of the Nally case if it were
presented to a Jewish court? A halachic inquiry into such rabbinic
malpractice must evaluate the nature of the counsel offered by a
clergyman to the individual seeking his counsel as well as the
advisor-advisee relationship.
The dispensation of bad advice falls under the general biblical
proscription, "Thou shalt not place a stumbling block before the
blind" (Lev. 19:14). The Sifra, the halachic Midrash to the book of
Leviticus, maintains that in this verse blindness is not a physical
ailment, but rather a trope for ignorance, and the "stumbling
block" is a metaphor for bad advice. Thus,
"Before the blind." Should he ask you: "Is the
daughter of so and so qualified to marry a Cohen (i.e.
descendant of the priestly family)?" do not answer
him "Yes, she is qualified," when she is really unfit.
If he comes to consult you do not give him wrong
advice. Do not say to him: "Go out early," when
robbers would waylay him: "Go out at noon," that he
should get sunstroke. Do not say to him: "Sell your
field and buy yourself a donkey," and then by a trick
take it from him.17
What is R. Dratch's sources? And is he referring to bad judgement in a beis din of three or a single rabbis judgement? If a bad beis din judgement, when the beis din is liable, is the liability evenly split between all three dayanim?
ReplyDeleteBTW, I spoke to Aharon. He concurs. Religious/ethical/moral issues did play a large role, in his opinion.
ReplyDeleteYou can throw away those tea leaves.
Aren't you now doing from AF's side what the "mumche" did from TE's side? That is, diagnosing after speaking to one side only.
ReplyDeleteA retort by definition must be short.
ReplyDeleteI wouldn't call it "displeasure." More in the way of pointing out an inconsistency.
ReplyDeleteAnyhow, I'm very much in tune with you regarding how diagnoses are misused, and regarding their tenuous nature, as must anyone be who has looked into the bad joke known as the DSM. I see the entire ADD/ADHD enterprise as a form of social control. It's perfectly possible that this is what's happening here with Mr. Friedman. Or not. Sometimes a cigar really is a cigar. Abusive and mentally ill husbands do exist. They are not merely invented for purposes of social control. Mr. Friedman has been accused by his wife of being one such. She feels, as does her "mumcheh," that she has valid grounds for these claims. The accusations may or may not be true, but they cannot be dismissed out of hand with theories of social control, as you wish to do. Nor can they be dismissed on the basis of a conversation with the husband, which proves absolutely nothing. Just as the truth cannot be ascertained by a psychiatrist who has never spoken to Mr. Friedman, so too it cannot be ascertained by one who has spoken only to Mr. Friedman and not his wife.
I think your definition of "inconsistency" isn't accurate. You didn't address my burden of proof argument. And I think I offered up just a itsy-bitsy more than social control theory in all my posts, unless only the last line counts.
ReplyDeleteI guess it's time to move on, anyway.
One thing I'm curious about tho - would you accept a face-to-face interview as proof? What happens if MH experts offer up different opinions, which is the norm? Who decides which facts are important? Who decides how to interpret agreed upon facts? Can the expert ignore the diary? The fact that in neither court nor B"D did she mention this stuff?
My response to the burden of proof argument is (and was) that where husband and wife are feuding, and the wife makes claims of mental illness and has a professional judgment to back it up, this creates a significant ריעותא in the husband's חזקת כשרות, one that he needs to address. A wife's claims are not "proof," but they are not nothing either.
ReplyDeleteI'm not sure why you imagine that I would have answers to your concluding questions. I'm sure I could come up with some ideas, but so far as I'm concerned, these are questions for serious poskim doing a serious investigation, which I am not.
that is why dayanim (practically) refuse to do a din torah on din, require pshara (or pshara krovah leDin). so that they are not liable for their errors.
ReplyDeleteAnd to that I respond: In no way is such a ריעותא created. Both halachicaly and based on common sense, in cases where conflict preceded the claim. did you forget the Mishna, יבמות קיד: also brought להלכה
ReplyDeleteקטטה בינו לבינה ושלום בעולם ובאתה ואמרה
מת בעלי אינה נאמנת
This is what consistency really means -EVEYTHING has to fit, without ignoring info that doesn't fit the theory. . You may not be familiar with the dirty underbelly of politics and עסקנות, so it doesn't occur to you to connect the dots. when a person with a vested interest creates problems after the fact, as many here have mentioned - that she never brought up mental illness, and she brings up a notoriously easy to forge problem ... c'mon ... give me a break ....
Yes - consistency.....
I am sadly all too familiar with what you call the dirty underbelly of these things. I disagree regarding the ריעותא. There's no question this was an unhappy marriage before askanim got involved. You may be right that her therapy made her more unhappy, but you may be wrong. Without a thorough investigation with the cooperation of both parties, the truth will remain elusive. None of this changes the fact that when a woman complains about abuse and mental illness, the husband must respond. He cannot hide behind a chezkas kashrus, nor can he hide behind a complaint about dirty politics and askanus.
ReplyDelete