Sunday, August 25, 2019

Yuchsin and Genetic Testing Part 4: When "Truth" Conflicts with Halacha - The Grey Zone (or Don't Ask, Don't Tell)

Author’s note – This post serves a dual purpose. It is intended as the closing post of this series, but it is also a very belated introductory post to the entire topic. As I tried to cut to the chase and reach my conclusions about DNA mapping for Yuchsin, it became evident that it required a more thorough overview on the fundamental Halachos that were in effect until now. In short, one can’t discuss how things should [or should not] change with modern technology if we are not clear on how things work before this technology was available.

So I had to devote a lot of text to the basic Halachos of mamzerus before devoting a lot more text to covering the more modern issues. Of course, this resulted in an exceedingly long post. I considered cutting it into two parts but couldn’t find a place to make a clean break and, besides, I really need to close this topic and move on.

I apologize for the lengthiness. My sensors (or censors) tell me that only my most devoted readers read through my posts anyway, so I am going for broke. If you haven’t read the previous posts in this series, please see them HERE. Happy reading.

The odds are that you probably don’t know a bona fide halachically “certified” mamzer (all jokes aside). I certainly don’t.

(Disclaimer – I do have a relative in my extended family – working-class Orthodox – who is divorced from his first wife. The family gossip was that she was involved with another man and there was a son born that my relative suspected was not his. I was told that he confirmed this with a blood test. This story goes back about 25 years and the child in question would be about 30 by now. I tried to follow up to see if this person ever had his status ruled in a Beis Din and if he is married to a regular Jewish girl. I was not successful. The mother and child are no longer part of my family in any case and I do not know them.)

It goes without saying that I can’t imagine anything more devastating than for one to be labeled a true mamzer. It is a social death sentence. I don’t even think an abusive childhood compares to this. This is because one can always heal from abuse. No matter how bad it was, the door is open. But for a mamzer, there is no open door and no way to heal. Not now and not ever. For all generations.

He/she is a social leper. Chazal tell us that a leper is compared to a dead person (actually, Moshe Rabbenu said it in Parshat B’Haaloscha). And even a leper can be healed. But not a mamzer. It’s forever.

It’s one thing if one knows he is a mamzer from his early childhood. At least he is resigned. But how about if one discovers this status suddenly right when they are ready to get married? Or worse, after they are engaged (as in Case X, the chayelet) or, worse, after they are already married and perhaps have children?

What a disaster!

And it is quite understandable that this status can bring one to suicide (ch”v). If one is already [socially] dead, there is no reason to live.

And the saddest thing about all this, as we all know, is that the mamzer in question has done absolutely nothing to bring this calamity upon himself. He/she is paying the price for the transgression of his/her forebears.

So we understand that a concerned posek or Beit Din will perform extensive Halachic maneuvers and employ all kinds of Talmudic “mechanisms” (i.e., chazakos, rubos, disqualifications of status or neemanus) to declare one free of this status. It is truly a situation of pikuach nefesh.

Many of us are not aware of the basic Halachos of mamzerus. There are some surprising twists – some are good news and some are bad news. First, the good news:

We all know that if a lawful married woman has a baby from a man who is not her husband, the child is a mamzer. Well, not always. This is only if the outside man is Jewish. If he is a non-Jew, the child is absolutely kosher. Many of us don’t know this minor point. This is very helpful in a situation where the unfaithful woman lives in a region where most males in the area are not Jewish. In such a case, even if it is certain that the husband is not the father, we may be able to pre-suppose that the child was fathered by a non-Jew.

Another piece of good news is the sages established a rule that when a man and wife are living together, we can take for granted that any child is the husband’s because we assume that even if his wife misbehaves, the frequency of marital relations between him and his wife clearly outnumbers the frequency of illicit relations. This is called רוב בעילות אחר הבעל.

A third piece of good news is that in a case where we have no reason to start suspecting that one may be a mamzer and, “out of the blue”, a mother confesses to being adulterous and that a child is definitely as mamzer (she is the one who knows for sure), we do not give her any Halachic credibility.

Now, the bad news:

The Din of a Safek Mamzer:

When we do have a reason to suspect a mamzer – such as where the mother is separated from her husband, was known to be adulterous, or had previously undergone a questionable marriage or questionable divorce and subsequently took up with another man – the rules are different. And here is a very strange twist.

Even though we have a rule that a safek in a Torah law has to be ruled strictly, there is a special drasha in Kiddushin that says that this does not apply to a mamzer. The gemara says that only a definite mamzer is excluded from the “masses” but an uncertain mamzer is not excluded. The Torah allows such a person to marry a regular Jew!

Sounds great, right? But…stop the show! The same gemara immediately concludes that, “Nevertheless, the sages made a takana (ma’ala) to protect pedigree, and ruled that even an uncertain mamzer is forbidden to the masses”.

Whoa-a-a! The Torah would let so many of these people off the hook, but Chazal felt is was necessary to protect the integrity of our nation and put them out to pasture. It evolves that in the case of a safek mamzer, he is acceptable min ha’Torah and ostracized m’d’rabanan!

What makes this even stranger is that in cases where we may want to help the questionable person by calling it a “safek d’rabbanan” wherein we always rule leniently, we can’t do that in this case because the whole essence of the takana of the sages is to be machmir in a case of safek!!

So, at the end, by Torah law, the person is accepted, but Chazal rule that we need to reject him as an “enhancement” and we cannot even say “safek d’rabbana l’kula”. Bum deal!

The Din of Yakir:

A very helpful Halachic foundation is that we need valid proof that this child is indeed an illegitimate child to declare him a mamzer. Technically, it would require eidus which is a first-hand statement by two observant adult males to the circumstances that warrant mamzerus. In practical terms this is almost impossible to occur because how can two detached people be able to testify that this baby is the product of an adulterous tryst? Even if they actually eye witnessed the illicit tryst, perhaps the child was conceived at a different occasion and the “donor” was the husband or a non-Jew?

Moreover, I wrote earlier that a statement made by the mother of the child who may be absolutely certain of no other trysts is not admissible so long as there is no other supporting evidence or witnesses. All this is very helpful. BUT…

There is a special Halacha straight from the Torah which states that a husband is believed on his own without any supporting evidence to declare that one that we take to be his child is, in fact, not his child! This is the Halacha of Yakir that is understood from the pasuk in Devarim 21:17. The poskim elaborate that the husband is only believed to say that the child is not his. He is not believed to say it is the child of any other specific person. Thus, in a situation where we can pre-suppose that the real father may be a non-Jew, Yakir does not stand in the way. There is a great debate as to if a husband says a child is not his, and then another Jewish man says the child is his, does the second man have a din of Yakir to make this child a certain mamzer as opposed to a safek?

The Din of “Prutza b’yoter” or “Davar mechuar”:

If you recall earlier there is a very lenient Halacha that when a woman is properly married, we naturally assume all children are from the proper husband because he gets to her most. This goes so far that even if the husband has been away from home for up to twelve months, we still “presume” the baby is his and she must have had a delayed conception (Even HaEzer 4:14).

But, there are limitations.

In the case where the husband was away for more than nine months, we only make this liberal presumption if there is no open sign of promiscuity (davar mechuar) on account of the wife. If there is, we “suspect” mamzerus.

The next Halacha (EHE”Z 4:15) discusses the normal case of a married woman where the whole town is talking about her infidelity. We still say that her babies are kosher even if we see a “davar mechuarunless she can be called “prutza b’yoter” (i.e., very promiscuous). In this case we also suspect mamzerus. Comes the Rema and clarifies that this is only if the mother is not available for comment. But if the mother is here and says that the child is kosher, she is believed.

This opens the door to countless obscurities. What does it mean to “suspect” mamzerus? Is the offspring allowed to marry or not?? What is the difference between a “davar mechuar” and a “perutza b’yoter”? Where does one end and the other begin? If the mother is believed to say the child is kosher even if we know she is a “tramp”, is she not also believed to admit that the rumors are true and the child is a mamzer? Note – This is not the same as a mother who “out of the blue” denounces her child, here there is a “raglayim l’davar” and we are already in the “suspect” mode. And neither of these two dinim in Shu”A seem to deal with a case of Yakir.

How does this all play out?

Well, back in the old days, before there was such a thing as blood tests or genetic testing, every case of mamzerus by way of adultery revolved around these three questions:

A.   Is the mother an eishes-ish?

B.   Are there sufficient grounds to say the husband is not the father?

C.   If there are such grounds, is it certain that the real father is Jewish?

As such, the poskim were able to happily resolve many of the cases by retroactively invalidating the woman’s marriage, or somebody’s Jewishness or by saying that the lawful husband is the real father “against all odds”. Thus, Rav Ovadia, ZT”L, was able to clear the girl from Detroit by employing A plus B. And Rabbi Goren, in the famed controversial Langer case, was able to get them off the hook by employing A plus C (though here it was not the real father’s Jewishness but the first husband’s) – he retroactively abrogated the first husband’s conversion, thus invalidating the first marriage.

The interesting thing is that when we can put factor A into the equation, it doesn’t matter who the real father is (unless you need it for a sfeik sfeika). The marital status of the mother is always a question of Halachic jurisprudence. A posek’s opinion is all that goes into the case, no lab technicians need apply.

But when the mother is certainly an eishes-ish, then the question doesn’t ride only on Halachic jurisprudence. It rides on the identity of the father. And here is where the dilemmas start.

Our rules of “eidus” are very strict. And the Torah tells us על פי שתים עדים יקום דבר. We need two “kosher” eye witnesses to establish anything as an absolute fact. But, do we need the facts to be so “absolute”?

It’s easy for poskim to make halachic equations on paper. And it works as long as we don’t have a prime candidate for an illicit father and as long as we don’t take a look at the kid. But what happens when Delilah admits to the affair and Shmendrik admits to the affair and the whole neighborhood knows about the affair and Shimshon believes them and the kid looks and acts just like Shmendrik and not a bit like Shimshon? (This was the obscurity question I posed earlier.)

Sure, technically a posek can disregard everything and say that nobody is Halachically reliable and the rule is that most [marital] relations are with the husband and declare that the child is מותר לבא בקהל. But we kind of “know” that this is not “the truth”.

Well, maybe we still don’t “know” for sure. But, let’s up the ante. What if we don’t have the whole regalia of two kosher eye witnesses, but we have irrefutable circumstantial evidence such as photographic evidence or reliable eye witness testimony from people who are, for technical reasons, not Halachically kosher – i.e., they happen to be related or female? And, of course, what about genetic (DNA) or other forensic evidence?  

What precedents do we have?

The Shas and poskim do not talk much about irrefutable circumstantial evidence. Before photography, fingerprints and forensics, there was not much available by way of example. There is a good deal of discussion regarding missing husbands that are presumed dead and here we have a concept of “siman muvhak” – a unique identifying characteristic. So we see that for agunah situations, forensic or genetic evidence counts for something. We also rely on non-kosher witnesses for eidus isha.

The difficulty is that we are dealing in a situation where the default status of the woman is one of eishes ish (thus, an agunah) and we are trying to free her from this status. We are trying to help her, and assuming the husband is truly dead, it is to nobody’s detriment. So, paying attention to photographs and recordings and blood tests and dental records does no harm. There is no reason to close our eyes and pretend these things don’t exist.

Mamzerus is a lot different. We already said it is a veritable social death sentence. All this circumstantial evidence is going to “kill” this person. How can we accept it?

But it’s there for the taking. How can we ignore it?

What do we know about accepting irrefutable circumstantial evidence for life and death cases?

To start with, let’s discuss monetary cases. On this the only precedent we have is the story in Baba Basra 93a:

If an ox is grazing and there is a dead ox nearby. Even though the live ox is prone to goring and the dead one was gored, or this ox is prone to biting and the dead ox was bitten, we do not conclude that this ox gored or bit the dead one. Likewise if a male camel is kicking wildly (in heat) and there is a dead camel nearby, we do not assume that the wild camel killed the dead one (Rabi Acha disagrees in the case of the camel).

Rashbam suggests that there were other oxen or camels around, but these were the most likely suspects. However, most other Rishonim adamantly reject this suggestion and maintain that this is the Halacha even if there were no other possible aggressors and, presumably, even if the dental records of the ox prone to biting match the bite of the dead one! Nothing less than two kosher witnesses can cause a monetary obligation no matter how strong the circumstantial evidence. So rules the Shulchan Aruch (Choshen Mishpat 408).

Hard to say what they would think if they got the whole event on the surveillance video.

Let’s move on to life and death. The gemara in Sanhedrin 37b and in Shavuos 34a compares this case of ox-icide and camel-icide to an almost identical case of homicide. It relates:

Rabi Shimon ben Shetach said – I swear that I once saw one person chasing another into a desolate place and I ran after him and saw him with a sword in his hand from which blood was dripping and a murdered man quivering. And I said to him, “Wicked one! Who killed this man? It could only be either me or you? But, what can I do, that your fate is not subject to my testimony alone as the Torah says, ‘Upon the word of two witnesses shall a dead man be executed.’ The One who knows all thoughts will exact justice from you.”

The gemara concludes that, sure enough, Heavenly justice was swift in coming. Nevertheless, for lack of Heavenly justice, the flesh and blood Beit din is powerless.

Again we have to wonder what the gemara would say about state-of-the-art video surveillance cameras in the run down shack. For lack of such clarification, we need to stick with the default that nothing less than two live kosher witnesses will send this guy to the chopping block.

Or, is this so?

The Rambam in the second perek of Hilchos Rotzeach tells us something interesting. In Rotzeach 2:2, he talks about proxy murderers who hire hit men or sic wild animals on a person or tie them to the train tracks but don’t kill them personally, and he says that they are full scale murderers who are not subject to judicial execution. But, in Halacha 2:5, he says that even though they cannot be executed, “Beit Din must beat them to within an inch of their lives, and to imprison them for many long years, and to give them all kinds of distress…

He explicitly is talking about proxy murderers or delayed action murder which may still mean that there are two kosher witnesses who observed the indirect crimes. Yet, would Rambam say anything different about a real first-hand premeditated murderer where there are not kosher witnesses but his guilt is absolutely proven by a hundred unkosher witnesses (let’s say women), or video surveillance or in a case like that of Rabi Shimon ben Shetach?

It’s hard to know. But, worse comes to worse, if we ignore the circumstantial evidence, we are letting a criminal back onto the street but we are not compromising the halachic status of anyone else. (I suppose we need to keep an eye on his so he shouldn’t hurt anybody else but this is common sense and not Halacha.)

Mamzerus is a more serious dilemma, because it directly impacts the community. If the person is indeed a mamzer and we “let him go” and allow him/her to marry, we are facilitating a non-Halachic marriage and the procreation of more “hidden” mamzerim. Many will argue that the psak din of “muttar lavo l’kehal” essentially erases the mamzer status but, when the “truth” is apparent, is this really the case?

Note that there are many types of scenarios of an invalid divorce in which we rule that the woman can no longer marry a Kohen. This is called “reyach haGet” (the “smell” of a get). Even though the woman was not really divorced, Chazal still apply the prohibition for a Kohen to marry her as if she really is divorced because of the “enhancement (ma’ala)” that is put into the Kohen status which is akin to the “ma’ala” that is put into Yuchsin (for mamzerus) that was mentioned earlier. If this is so, do we not also say there is a “reyach” of mamzerus?

Let’s look at the cases that we have been discussing and ask a few more questions.

Is the psak of “muttar lavo l’kehal” final?

In the case of Rav Ovadia ZT”L about the girl from Detroit, Maran was able to mattir because we did not have enough evidence that the mother is an eishes ish. The first marriage must have been about 30 years earlier and the mesader kiddushin was in Olam HaEmess. They had no kesuba and no known kosher eidim to the wedding. So with this and a side argument that the first husband was still getting in trysts with the mother (so he may be the father), he paskened she is good to go.

What if she goes and gets married and then they find the kesuba in a trunk in the attic? What if some kosher eidim all of a sudden materialize? What if the husband who wouldn’t cooperate suddenly cooperates later on and emphatically denies any relations with the ex-wife at the time the girl was conceived (remember the din of Yakir)?

Does the hetter become retroactively nullified and all resulting offspring determined to be mamzerim, or do we say “a psak is a psak”? In other words, does the person in question need to live every day of their lives in fear of the true circumstances coming to life?

RavBobliel suggested that we can invalidate the din of Yakir by saying that since the question of paternity and child support rides on it, a husband won’t be believed to say the child is not his because he has a financial stake. He is a “nogeah b’davar” and loses credibility.

Well, this may hold true until the child is eighteen years old, but there will come a time when the financial stake is no longer in effect. So suppose a husband has been saying all the time that the child is not his and we used the “nogeah b’davar” approach to reject his claim in order to save the child from mamzerus. Now, he is no longer nogeah b’davar and he is not changing his story. What happens now?

All these questions are magnified in today’s world when so many issues conflict with ignoring probabilities and genetic evidence. I mentioned them in my second post in this series: yerusha, aveilos, pidyon haben, Kohen/levi status, yibum, not to mention the interesting din of kibud Av in Yoreh Deah 240:18. In all these situations, if we can verify the status, we really need to. So, what if these things show up at our door at a later time?

And, of course, what about medical emergencies where genetics plays a role, such as if the child, a “sibling”, or one of the potential fathers comes down with leukemia (R”L) and the only treatment is a bone marrow transplant which usually are only found with close relatives?

Incidentally, we all know that HKBH has a very keen “sense of humor” when it comes to revelations such as these.

One final dilemma.

Let us say, in the face of all this, the poskim are very firm that we don’t look at anything that is not Halachic eidus. And we will employ all of our sfeik-sfeikos, chazakos, and rubos and give a “paper psak” that the child in question is “muttar lavo l’kehal” even though all circumstantial evidence indicates otherwise. Technically, they are free to marry anyone they want. And now, they are in the parsha of shidduchim. I am talking about cases like those of X, Y, and Z in my previous posts.

Do they need to inform the people they are dating of this questionable status?

In the chareidi world, we want everything to be Kosher l’mehadrin. This means kosher l’chatchila. Not subject to any doubts in the kashrut. The tefillin, mezuzos, mikvaos, and eiruvin need to be kosher to the highest standards. People who live this lifestyle will ask and investigate and, they should be able to expect direct answers. This have the endorsement of so and so but that only has the endorsement of so and so who holds from particular leniencies.

For a kashrut agency to call a chicken “Kosher l’mehadrin” it means that this chicken did not need to be brought to a posek who said that “it’s kosher b’shaas hadchak” or due to “hefsed meruba”. This cannot be called Mehadrin. And those who live by Mehadrin standards are entitled to maintain it and they are willing to pay more for it. Is a spouse any less?

In the Case X of the chayelet, she was very fortunate that the problem arose after she was in a strong relationship and the man was not so concerned that she be kosher l’mehadrin. It seems that as soon as they got the green light from Rav Bobliel a la Rav Ovadia, they were good to go.

Good for them.

But, let’s say she did not have a suitor waiting in the wings, or her boyfriend would not want to continue the relationship with a girl who is most likely illegitimate yet has a “hetter”. Does she need to inform any new potential suitor that her kashrus is not l’chatchila? Or do we tell her, “Hush up. Don’t say anything to anyone. You have a hetter. Keep quiet.”

Mamzerim are created through deceptions and cover-ups. Do we sanction more deception and cover-ups in order to protect them? Is this the ratzon ha’borei?

This is a heart-wrenching question.

The conventional Halacha when it comes to shidduchim is as follows. Any piece of information that carries a legitimate excuse to break off a shidduch must be disclosed in advance of the shidduch. Also, any information that will cause most people to turn down a shidduch must be disclosed prior to the shidduch.

The modern day teshuvos that this is based on are referenced in the Dirshu edition of Chofetz Chaim in Tziurim note 11. The cases discussed there are if, for example, the girl’s (or boy’s) father isn’t Jewish. This is where there is no question that the child is a kosher Jew. Is the Halacha any different if the child’s father admits to paternity while the mother was married to somebody else and the child needed a psak from a major posek to mattir l’kehal?

Rav Tzuriel Bobliel seems to maintain that whenever a “problem” arises, 90% of the time it can be resolved favorably within the parameters of Halacha. He seems to imply that even for many of those that we “know” are illegitimate, we can find solutions. But we cannot ignore Arthur Bloch’s famous corollary: Every problem has a solution, and every solution makes new problems.

After all is said and done, even if we sanction the “don’t ask, don’t tell” approach, is the problem solved?

My Conclusion

We are nearing the end of a long, dark galus. Many Jewish thinkers have suggested that every “galus” (exile) ends with a “hisgalus” (a revelation). Chazal tell us that b’ikvesa d’meshicha – in the preliminary footsteps of the Moshiach – “truth” will disappear in droves. But the sign of the “geula” is a gilui – a revelation. When hidden truths will be revealed.

Right before we were redeemed from Egypt there was the Makkas bechoros. The Midrashim say that in many houses lots of children died because the wives were not faithful and this child was her husband’s first born and that child was another man’s firstborn. Sometimes the oldest did not die because the husband had his first born somewhere else. I recall seeing a midrash that many husbands killed their wives in fits of rage when the death toll indicated they were unfaithful (I could not locate this Midrash anywhere – it may be a false recollection).

In better times, when there are no real witnesses, HKBH takes over. He gave us the sotah waters to check out an accused adulteress. The mahn would tell us who the slave belonged to and reveal other secrets. The Amud HaEish was like an x-ray machine. The ark of the covenant told us which of Shaul’s descendants must die and the ark of Noach told us which animals did not crossbreed. The Torah “understood” that there won’t be human witnesses to sins done in private and it gave us some divine assistance.

With all the falsehood and deceit that characterizes our generation, HKBH is beginning to level the playing field. We haven’t gotten back the sotah waters, the mahn or urim v’tumim. But HKBH gave us photography, audio and video recording, fingerprints and DNA mapping. It must be here for a reason. לא בשמים היא !

We cannot ignore modern technology. I think we need to embrace it and work with it and not against it.

I have no answers for the unfortunate plight of a mamzer. But this is nothing new. We have never had a way to comfort them for all of our generations. But it is hard to say that finding tenuous Halachic hetterim truly solves their problem. In even the best cases of “don’t ask, don’t tell” they are being sentenced to live their whole lives with a dark ugly secret for them and their offspring. And, even after a hetter, it can all “hit the fan”. The “solution” won’t automatically solve the problem. Honesty is always the best policy.

Oh, what a tangled web we weave, when ourselves we do deceive.

Monday, August 12, 2019

Revisiting Kamtza and Bar Kamtza --- or Kamtza and (Bar)Bat Kamtza Revisiting Us

Author’s note – I initially wanted to title this post “Because of Kamtza and Bnot Kamtza was the House Destroyed”. But I had used that title for an overview of the Miriam Shear incident that I wrote eleven years ago [almost] to the day. I went with an alternative post title. This only enforces the message of this post which is that Bar Kamtza (or Bat Kamtza) is with us today.
All information in this post is the [alleged] truth. It is based on information publicly available on Internet forums and media and has been mentioned and sourced in previous posts.

Last Motzaei Shabbos (Tisha B’Av), I was sitting on the floor with absolutely nothing to do but to reflect on why we have not yet merited redemption and why we must still observe it today. My thoughts made me face up to a very unpleasant reality.

We know the famous Yerushalmi that says, כל מי שלא נבנה ביהמ"ק בימיו כאילו הוא חורבו . Any person that in his days the Temple was not built, it’s as if he destroyed it himself. Do we really destroy it ourselves?

The sad answer lies in the well-known adage: Those who forget the past, are condemned to repeat it. If we see that we are making the same mistakes, we have not yet learned our lesson.

Even after all this time!

Let’s think. Why was the last Temple destroyed to begin with? Of course, the quick answer is Sinas Chinam. But to understand what this is, the gemara in Gittin tells us the familiar story of Kamtza-Bar Kamtza. I fear that we have Bar Kamtzas in every generation. True or not, we certainly have some in ours. And, as long as they are here, we can never be worthy of geulah.

First, let’s review the narrative:

There was a man whose friend was Kamtza and whose enemy was Bar Kamtza. Once, he made a banquet and he told his attendant to bring Kamtza but he brought Bar Kamtza. When the host saw him, he told him, “Look, you are not my friend. Why are you here? Get up and leave.” Bar Kamtza responded, “Well, I am already here so if you allow me to stay, I will pay for my portion.”  The host said, “No.” “I will pay for half of the banquet.” The host said, “No.” “I will pay for the entire banquet.” The host said, “No.” In fact, he grabbed Bar Kamtza and escorted him out. Said Bar Kamtza, “Since the Rabbis were there and they did not object, I can infer that they approve of this treatment. I will go and make a denouncement to the king.” 

And so he did. The story continues that he went to the Roman Caesar and told him that the Jews are rebelling. To prove it, he persuaded the Caesar to send an offering which he sabotaged to make it unfit to bring. This was seen as an insult to the Caesar who then sent a repression force which eventually destroyed the Temple.

Rav Yosef Chaim, the Ben Yehoyada, notes that the story does not say that the Rabbis were aware of what was going on. It only says that this was what Bar Kamtza was thinking. Ben Yehoyada refuses to accept that the Rabbis were aware of this drama. He says that they weren’t aware. It was only that Bar Kamtza presumed that they were. He continues that even according to the version in the Midrash which may indicate that the Rabbis heard the conversation, it is still not likely that they saw Bar Kamtza being led out.

We may wonder that Ben Yehoyada certainly wasn’t there, so how could he be so sure?

I think Ben Yehoyada is trying to teach us a lesson. He has no problem judging the Rabbis l’kaf zchus. But Bar Kamtza did. He also had no firm grounds to blame the Rabbis. Why did he need to take this derogatory judgmental stance?

Obviously, he chose to do it. He did it because it served his purpose.

He certainly wasn’t a friend of the host nor of the Rabbis even before this incident. He was always an outcast. He was full of hatred, anger and bitterness at the “community” and he wanted to hurt them. But he needed a trigger. He needed to be able to justify his devastating actions. This incident was all the justification he needed. He was hurt, he was humiliated, he was “molested”, he was traumatized. He was a “victim”!

When Bar Kamtza hatched his sinister plot, whose “honor” was he trying to avenge? The honor of his fellow Jews? The honor of the sages? The honor of the Torah? The honor of G-d?

None of the above. He was concerned for nothing but his own honor. The honor of Bar Kamtza and nobody else. He needed to wreak vengeance and “justice”. For who? Was he a selfless altruist who just wanted to make sure that this host would never do this to anyone else? Was he caringly trying to protect others from this same “molestation”?

Not at all. If he was, this would be a community issue, and the Roman Caesar is hardly the address for such an endeavor. He should have rallied the Jewish “askanim” to enlighten the “misguided” Rabbis.

He didn’t want to fix anything or anyone. He didn’t want to improve anything or anyone. He was acting for nobody but himself. And for his own personal gratification he stooped so low as to cut a deal with Edom. To go to the non-Jewish “superpower” to sell out his own people. He wanted “justice”, he wanted “closure”. He wanted international acclaim (I suppose he wanted to be enshrined in the Gemara Gittin for all generations). He went to the non-Jewish government and tattled for one purpose. To do damage.

And he succeeded. Why?

I can’t say for sure, but it is partially because HKBH gives a free hand to wicked people to stir up trouble in this world. And partially because we were a fractured nation. And perhaps, he was not really alone. There was very likely an entire “community” of disenfranchised Jews who backed him up and cheered him on and maybe even participated in his scheme. 

This is the Bar Kamtza that lived two thousand years ago. And, because of him and his treachery, our Beis Hamikdash was destroyed. A generation that can raise and nurture a Bar Kamtza cannot sustain a Beis Hamikdash. It’s just impossible. And if there is a Bar Kamtza in our generation, it doesn’t only tell us that we are not worthy of a Beis HaMikdash; it tells us that if we were to have a Beis HaMikdash in this time, it would be fit to be destroyed.

Do we have Bar Kamtzas in our generation? People who are quick to run to the non-Jewish authorities and sell out fellow Jews to settle a personal score? (See my first post in 2008).

All of my readers know that over the past few years I have been following an ongoing saga. The story of Bnos Kamtza. The Bnos Kamtza are three sisters that live in the land of Victoria. We can call them Bat Kamtza A – the oldest, Bat Kamtza B – the loudest (the spokesperson for the trio), and Bat Kamtza C- the youngest.

The narrative of the Bnos Kamtza goes as follows:

In the Land of Victoria there was a hostess who liked to make her own quiet “parties”. And she sent her attendants to bring Bat Kamtza – sometimes A, sometimes B. And they always brought the right person. She never asked them to leave the “banquet”. In fact, she always asked them to stay. The allegations are that the hostess was very warm and friendly toward the Bnos Kamtza. But they later claimed they did not like the “parties”. They were too private and too invasive. Hence, they felt violated. They were hurt, they were humiliated, they were “molested”, they were traumatized.

This was not a one-time event. This happened lots of times over at least four years. Bat Kamtza A was about 17 when this started and within a year, she was a full consenting adult. Bat Kamtza B was about 15 but kept coming to these “parties” for four years (whereupon, she was also a full consenting adult). Nobody forced her to come. About two years later, Bat Kamtza C started to go to the private parties on her own. Bnos Kamtza A and B claimed that they tried to warn her, but they didn’t stop her, and she would not listen to them – even though she was warned!

Of course, there were Rabbis. But were the Rabbis aware?

No, they were not.

The Bnos Kamtza did not tell the rabbis. Did they tell their parents so they could inform the Rabbis? No, they were not on good terms with their parents. Did they tell their older sisters who they are on good terms with? Doesn’t look like it. And if they did, did their responsible mature adult older sisters tell the Rabbis? No, they did not.

So the Rabbis were not aware.

Eventually, somebody told the Rabbis and the Rabbis took immediate action and saw to it that these private banquets do not go on another day. They saw to it that all of Victoria will be rid of this hostess and there were no more parties ever since. This was in the year 2008. Incidentally, it appears that the Bat Kamtza sisters A and B stopped going to these “parties” as of 2006. As far as Bat Kamtza C, it isn’t clear, but if she was still at it after 2006, she must have been having a good time.

The hostess left Victoria forever and returned to the land of Israel to which she is a born native citizen. There were no more traumatic parties after March of 2008. The Bat Kamtza sisters and all of the young maidens in Victoria were absolutely safe from this friendly hostess as of March 2008.

Yet the Bat Kamtza sisters felt hurt and traumatized. They were victims. They were victims in 2006 and in 2007 and in 2008 and in 2009 and in 2010 and in 2011 even though nobody had bothered them for at least three years and probably for five. But they were (are?) still professional victims. They felt hurt and rage and hatred, anger, and bitterness against the community and the Rabbis whom they never told. By then, at least two of these three siblings threw off the yoke of Torah observance.

Now, in 2011, the hostess has been back in Israel for no less than three years and has no plans to return. She is absolutely no threat to anybody in Victoria. But the sisters said: “Since the Rabbis weren’t there and, therefore they did not object, I can infer that they approve of this treatment. I will go and make a denouncement by the Police of Victoria (and the Prime Minister). And we will sue the Rabbis to boot! 

And so they did. The story continues that in 2011, Bat Kamtza C, the youngest one who went on her own volition, was the first to go to the Victorian Chief of Police and tell him that the Jews of Victoria are rebelling by [three years ago] sending off their hostesses to where she came from and to ask for the hostess back (she was also a rebel). Of course, they couldn’t prove it because it happened so long ago, but in Victoria, one does not need to prove anything. The word of a “victim” is sufficient.

Why do they want the hostess brought back to Victoria?

Is it to caringly protect the young maidens of Victoria from suffering the same “molestation”?

This is quite impossible because there is no danger to any maidens in Victoria. Period.

Perhaps it is a selfless altruistic effort to protect the young maidens in the Land of Israel?

Not at all. If it was, this would be an Israeli community issue, and the Victorian Caesar is hardly the address for such an endeavor. They should have rallied the Israeli “askanim” and law enforcement authorities to protect the Israeli public. Trust me, they are more than capable.

Does the Halacha permit extraditing a Jew (even a dangerous one) outside of the land of Israel to the hands of Edom so that they can claim that they are avenging the he honor of the Jewish people? The honor of the Torah? The honor of G-d?

G-d forbid! Because G-d forbids extradition of any Jew, and even half a Jew, outside of the land of Israel. (See HERE and this teshuva from a former Dayan in the Rabbanut Beit Din HaGadol).

No. The Bnot Kamtza want to punish her for her crimes - for "justice" and "closure". 

They are concerned for nothing but their own honor and of nobody else. They need to wreak vengeance and “justice”. They don’t want to fix anything or anyone. They don’t want to improve anything or anyone. They are certainly not interested in educating the hostess to mend her ways. They are acting for nobody but themselves. 

And for their own personal gratification they need to cut a deal with Edom. To go to the non-Jewish “superpower” and to sell out the Rabbis who they deceived. They need “justice”, they need “closure”. They need international acclaim. They went to the non-Jewish government and tattled for one purpose. To do damage.

All this could be overlooked if these were just three Bat Kamtzas on a low-key personal mission that weren’t dragging the nation down with them. However, in the year 2016 they spearheaded a campaign to enlist the support of the public at large with two online petitions. The bigger of the two garnered almost 17,000 signatures (let’s presume all those who signed the second one, about 5,000, also signed the first). Even if we allow for double-dippers, it’s a lot of uninvolved people who support the Bnos Kamtza’s abrogation of Torah values and involving the nations of the world in a Jewish affair. This obviously gives much momentum for the Roman Victorian Caesar to make an international fuss.

Also, in 2016, the Royal Victorian Supreme Kangaroo court appeased the Bnot Kamtza and ordered the Rabbis who were not aware to pay off Bat Kamtza B to the tune of 1+ Million Australian dollars. As I wrote in a different post, whoever pays for this appeasement will not be the “hostess”.

In 2017, Bat Kamtza B opened a public Facebook page to further enlist the support of the secular and naïve Jewish masses to their alliance with the Caesar. Currently, there is an entire “community” of disenfranchised Jews who back them up and cheer them on and maybe even participate in their scheme. And it is amazing and frightening how many Orthodox Jews are on board with this alliance with Edom.

In 2018, it was bothering them so much that their quest for extradition wasn't bearing fruit, that they schemed with a renowned Child Safety Advocacy organization to hire a private investigator to follow this hostess around for 200 hours to prove to the world that she is fit to be extradited. Incidentally, the 200 hours did not catch any of these type of "parties" private or public. This did succeed in generating publicity and some public outrage, so the Israeli authorities put the hostess in a cell for safe keeping. 

Ever since, the publicity – and chillul Hashem – has snowballed. More and more journalists speaking their minds and more and more politicians getting involved. With the observant politicians who have tried to quietly oppose the Halachically forbidden extradition and stop this debacle having been vilified by the masses (and interrogated by the police).

So far nothing was gained. Well, they indirectly achieved getting their “hostess” incarcerated. But it is not for hosting parties. It is for not wanting to go back to Victoria after eleven years of absence (and quiet). But they have created a big media circus and international brouhaha which is helping nobody.

How and when is all this going to end? This remains to be seen, but I can promise this. It won’t end nicely for the Jews in general, not those in Israel and not those in Victoria and it certainly will not end well for the Bnos Kamtza.

It will only be a Churban!

Yesterday was another Tisha B’Av. A recurring theme that we always hear in the inspirational speeches that we listen to on Tisha B’Av is our inability to personally relate to the destruction. After all, we never knew the splendor of the Temple and the events all took place so long ago. To us it is all so distant.

Somehow, for me, as I follow these events, it doesn’t seem so distant at all. I had no trouble observing Tisha B’Av this year. It’s like I can see the Churban unfolding right before my eyes.

Related Posts:

Tuesday, July 23, 2019

Update on Hot Car Deaths

A bit more than a year ago, I posted a special post about the tragedy of hot car deaths. I tied it into Parshat Naso. You can see the original post HERE.

The purpose of the post was to present an idea that I heard which can help reduce these kinds of tragedies. Here is precisely what I wrote:

We are all aware of hot car deaths. They are among the most heart-wrenching tragedies imaginable. Especially since they are 100% avoidable. It can happen to anyone. The most caring, conscientious, and experienced of parents (or older siblings). All it takes is a very fleeting understandable bout of absent-mindedness and one’s life is lost (a recent news item actually mentioned two twins, R”L), at least two others are ruined and a marriage, even if it survives, is irreparably damaged.

There seems to be an organization that keeps track of these incidents. You can find it HERE. They claim that since they started tracking in 1998 they have documented 749 cases in the US. Comes out to almost 40 per year. This is in the US. Here in E"Y it is even hotter and there's less shade. We are not strangers to these tragedies.

These are the known cases and these are the ones that ended badly. I am certain the number of cases which had a happier ending, but were just as perilous, is in a multiple of – who knows? – 5 or 10 times. I can even attest to perhaps two minor (B”H) incidents involving my own children under my care.

The reason I am writing this is that I very recently saw in a news write-up a very effective method of minimizing these devastatingly tragic incidents and I cannot hold back from sharing it. If it prevents even one incident, it is mekayam an olam malei.

The method is this:

When you strap your child into the car seat in the back, take something you cannot be without such as your wallet, your pocketbook, your cellphone (if you can spare it), or even one of your shoes, and wedge it underneath or behind the child’s car seat.

This way, in case you forget to drop the kid at the babysitter or nursery and go on to your personal destination, when you get there, you will want to retrieve your missing accessory and VOILA! –there’s the baby - quiet as a mouse!

A shoe is a bit awkward but is relatively fool-proof. Wallets and cell phones may still be overlooked (I have left them in my car plenty) but still you will discover it’s absence [hopefully] soon enough.

May we all have a great and safe summer and never ever hear of these needless tragedies.

Well, it happened again just yesterday in Kiryat Sefer (bDH"E). There is even legislation being proposed in the Knesset to force people to install warning devices (see HERE). 

This may not be necessary. I want to share another similar trick that somebody just sent to me. It is amazingly simple and amazingly inexpensive. It is demonstrated in a Hebrew language video but you don't really need to know Hebrew to follow it.

Please watch this:

(Note - In case the video does not show up in the email version of this post, you can see it on the actual blog site HERE.)

Of course, those of you with large minivans who keep the car seats at the back row or who don't have bucket seats up front will need to climb a little to get this done. Also you may need a longer coil. It may be easier if you attach the car seat side first when you insert the child and toss the attached keys up front. It's definitely worth the trouble.

One thing is certain, it's only going to work if it's put to use!

Now that the three weeks are here, we need to really be on guard. Please have a safe summer, and...
don't forget the kids!

Monday, July 15, 2019

Yuchsin and Genetic Testing – Part 3: Kasher Lavo – Whitewashing the “Blacklist”

Author’s Note – This is the third installment of what looks like a four part series. If you haven’t already, please see Part 1 and Part 2.

Welcome [back]!

In this post, I want to pick up from exactly where we left off, so it may pay to review the previous post. For those who only need a brief refresher, here are the key things to remember: 

We are going to analyze how a modern DNA test might impact three sample cases:

Case X – 19-year-old female Israeli soldier who discovered after her engagement that she is on the Rabbanut “blacklist”.

Case Y – Jewish man with pregnant wife who looks at the wife’s Facebook page to discover she is involved with another man, possibly the father of her baby.

Case Z – A woman from a chareidi background whose husband left her and she never received a get. She remarried civilly and had a daughter who she raised as a chareidi Jew.

I will also present the list of characters described in Case Y, though they can be applied to the same roles in any of the cases:

Shimshon – lawful wedded husband

Delilah – Shimshon’s hairdresser and unfaithful wife. The only one who “knows for sure”.

Shmendrik – the “other” guy.

Nimrod (or Nimroda) – offspring of Delilah and “Who-knows?”, the potential mamzer[et] in question.

Let’s get started.

From a Halachic standpoint, what does genetic testing do for paternity anyway?

One thing is certain, the mitochondrial DNA, which is the only portion that is absolutely conclusive, is totally irrelevant for paternity issues. We know who the mother is and that doesn’t matter. Then, what does count?

Interestingly, paternity is approached from two directions:

·         Positive – who the father is.

·         Negative – who the father isn’t.

The common genetic paternity tests of the past (and even today) were geared to rule out an individual from fatherhood. Before there was DNA testing there were some lower level types of genetic testing. Initially there was ABO blood typing. This was only about 40% effective to rule out fathers. But, in those 40%, it is absolutely conclusive. Any high school biology student could administer this test. It would not serve to rule in anybody.

About the 1970s, other blood components called HLAs were added to the blood tests and it brought up the rule-out percentage to 80-90% of scenarios. What this did was inadvertently give anybody who did not flunk the HLA test a 90% chance of being the real father. Especially if there are not too many other candidates.

Starting in the 1980s came the exact match rule-in tests - DNA Markers and Electropheresis (see this article). Currently, it is claimed that these tests can establish paternity with more than 99% accuracy.

So, how should the Halacha view the reliability of these tests?

First, the disclaimer that I am not a posek and it is not my place to suggest to poskim how to paskin. Nevertheless, I am a Halachic scholar (or student) and it is open to analyze what makes sense.

It seems simple that the HLA test and the DNA tests, even the mitochondrial tests, cannot be called “eidus”. This is because, despite all the precautions that are taken to make the tests reliable, we (Beit Din) do not see the samples taken and those same samples being analyzed in our presence. We only see a report of what was claimed to be done in a lab. Nobody can assure us that the samples were not mixed or substituted or that the results weren’t botched or falsified. Of course, these labs are all reputable and have no reason to falsify anything, and every reason not to, so I suppose we can give them a status of מסיח לפי תומו – declaration in good faith. Even then, the results are merely indicative of high probabilities but are not totally conclusive, with the possible exception of the mitochondrial DNA which Rav Yehoram Ulman (in the Headlines interview) wants to call a siman muvhak.

Hence, for paternity issues which don’t involve mitochondrial DNA, it is easy to Halachically dismiss the results even if a DNA test is done. The test results only serve as an umdenah and raglayim l’davar.

The simple ABO blood typing test is very different. Not only is blood typing absolute, but any person can see the test being done. All you need is a piece of paper 3 inches square, a pin, two bottles of anti-coagulate (A and B) and your customers – Shimshon, Delilah, and Nimrod.

All three walk into Beis Din and they can give their blood samples (two drops each) right in front of BD. Then we administer the anti-coagulates right in front of BD. We don’t even need to know which bottle we are using, only that the drops from one bottle are added into one drop of blood from each contestant and that the drops from the other bottle are added to the other set of blood drops. Then BD themselves can see the results. Takes a minute.

If either of Nimrod’s blood drops congeals and, at the same time, both drops of the parents from that same set do not congeal, it tells us unequivocally that Nimrod has either a type A allele or a type B allele that he didn’t get from either parent. It had to come from somebody else. Ergo, Shimshon is not the father. Likewise, if both of Shimshon’s blood drops congeal (he’s an AB) and none of Nimrod’s (he’s an O) or vice versa. According to my source, one of these discrepancies happens in about 40% of cases.

What is happening in this 40% is that the blood drops are witnesses who are testifying that Shimshon cannot be the father. I think it’s the same as when the gemara says הרי כריסה בין שיניה – her belly is between her teeth. This means that a pregnant woman’s belly speaks for her that she is not a virgin (no immaculate conceptions by us). Also, בנים עדיפי מסימנים – conceiving children is a better indicator than physical features to tell us that this person has achieved puberty. We call this “anan sahadi” – we ourselves (i.e., the Beit Din) are witnesses to this fact.

I think that in these 40% of cases, we have solid Halachic proof and there is no way to dismiss the results. There is no reason to avoid this test if the husband wants it and Beit Din should mandate it. This is because we are not allowed to rely on any chazakos or rubos if the status can be unequivocally resolved. Moreover, we usually won’t even need to perform a blood type test because everyone’s blood type is listed in their medical records. This is readily available information and a milsa d’avida l’gluyei.

In summary, the ABO test, if “negative” should have a status of eidus but the more advanced tests do not. So does it really help us to use them? Does it really hurt us to use them? If they are not really Halachically conclusive why does the Rabbanut forbid these tests in most cases (according to Reb Tzuriel Boblil)?

I think the answer to the last question is that the Rabbanut is inexorably intertwined with the secular court. If the secular court declares a person’s paternity based on genetic testing, the Rabbanut will need to recognize it. In his talk, we see that Reb Boblil is advocating for more “separation of church and state” in regard to paternity. It is important to point out that this relationship is not in effect outside of Eretz Yisrael.

So now, let’s have a look at our three cases – X, Y, and Z – and see what genetic testing may accomplish.

We will start with Case Z, the Wikipedia case featuring Rav Ovadia Yosef, ZT”L.

I noted earlier that Maran used a two-prong approach. (1) Perhaps the mother was not an eishes-ish and (2) perhaps the husband who never gave her a get is the real father. I posed the question as to whether he needed both of these factors or if even one alone would suffice.

If the eishes-ish question would by itself be grounds for a hetter, then the issue of who is the girl’s father is totally irrelevant. As such, DNA testing will not play a role in this case. Even if a DNA test confirms that the second husband is the real father – which is anyway our default assumption – Maran could still rule the girl Kosher l’Kehal because he will apply an uncertainly if the mother was married.

But I think it would be a big stretch to rule a hetter on this premise alone since (a) despite being able to locate enough witnesses to the marriage, the woman was still known to be an eishes-ish married in a chareidi wedding (chazaka) and (b) additional witnesses, or the ketuba itself, could materialize at any time and thus, retroactively nullify this premise. In fact, I surmise they could have come up with enough witnesses to confirm the marriage if they really wanted to. 

To rely solely on the second premise that perhaps the first husband is the real father, is also a stretch once the mother is openly living with another man. See Even HaEzer 4:14 (Rema).

Hence, I am assuming that Maran needed both premises. While each one by itself is very weak, when combined they create a sfek-sfeika (double doubt) which may be employed to rule leniently even if the chances for each doubt are quite remote. And here is where the genetic testing will make a big difference. Although it will not impact premise 1 (perhaps the mother isn’t married), it would certainly impact premise 2 (perhaps the true husband is the father). If we would positively rule out husband 1 as the father, we lose our sfek-sfeika.

Thankfully, this case was dealing with a grownup girl and, aside from the mamzerus question, paternity is not a legal issue. The second husband is not claiming paternity and, good for her, the first husband is not renouncing it, either. Furthermore, he is not cooperating with the Halachic inquiry. Because of this, we can afford to “not be bothered” to check out his blood type and, even if his blood type is on record, it may have fallen into the 60% which do not rule out paternity. There is nothing to be accomplished with any other DNA tests, because even if they positively rule out the first husband, I highly suspect that Maran would not accept the tests anyway because they are not eidus but rather just an umdenah.

One puzzling thing is that in chutz l’aretz there is a much more popular method of freeing a suspected mamzer. This is to assume that if the mother was loose against her husband for the known lover man, she may have also opened herself to additional other men. Since most men in the diaspora are not Jewish and a non-Jewish man does not produce a mamzer even from a genuine eishes-ish, the chances are higher than 50-50 that the child is not a mamzer.

Let’s move on to Case X, the 19-year-old chayelet. After holding us all in suspense throughout his talk, Reb Tzuriel told us that he worked on her case for over a year and came up with some formula of sfeikos and rubos that could be used as a hetter and that Harav Ovadia Yosef gave it his stamp of approval. He proudly announced she is now happily married with children and all is well.

This case is very similar to Case Z in that we are discussing a grown girl. Aside from inheritance, there are no longer any legal issues that hinge on paternity. Also, many of the Halachic issues that apply to boys (kahuna, yibum, etc.) do not apply to girls, which gives us more room to be flexible.

Since we don’t know what the hetter is based on, we don’t know if any of the genetic tests would impact the outcome. What we have learned from Case Z is that there can be grounds to free a questionable mamzer even if it is almost certain that the lawful husband is not the father.

Still, this case is a mystery because, as far as I can see, all of Maran’s tools that he used in the US case are not applicable in this one in Israel. It is much harder to question a woman’s marital status here in Israel being that all marriages are approved and registered in the Rabbanut. Though I don’t know for sure, it is more likely than not that the mother’s first husband is accessible to the Beit Din and that he renounced paternity to this girl. This makes it much harder to suggest that he may be the real father. Even the approach that he didn’t use – to suggest the real father may not be Jewish – doesn’t work here in Israel where most men are Jews.

All told, we don’t really know if and how genetic testing would impact this case.

So, finally, we look at Case Y – the young married fellow who saw what his wife wrote to another fellow on her Facebook page. Reb Tzuriel did not tell us at all what became of that case. We also don’t know if the child turned out to be a boy or if either of these men is a kohein which complicates matters even more. One thing is certain, if this case reached Reb Tzuriel, it must have reached the Rabbanut.

Now, if I was presiding on this case, I would definitely look at the blood types. They are probably all on record anyway and cannot be ignored. If this positively rules out Shimshon, then we have to accept this. If we can still get the kid off the blacklist by invalidating Shimshon’s  marriage or finding a swarm of non-Jews, let’s go for it. The only DNA test that will give us any more information is if we test Shmendrik for a match. He would need to consent to this but he probably doesn’t want to pay for eighteen years of child support either, although it’s almost certain that this is his kid. The court would have to order a test and it is quite possible that they would indeed since the ABO test ruled out Shimshon, Delilah owned up to the affair on Facebook, and somebody has to carry child support.

However, if the Rabbanut can find a way to save Nimrod from the blacklist as long as it is not confirmed that Shmendrik is the father, they may block the court from ordering a DNA test and the court may force Shmendrik to pay child support anyhow.

The question is: what to do if the blood types do not rule out Shimshon as the father?

As far as the court is concerned, Shimshon is the father by default. Right now, he does the paying. Shimshon obviously wants advanced genetic testing, but the Rabbanut won’t be happy about it. I am not sure why not. I previously indicated that the HLA or DNA tests cannot have a status of eidus because we can always question the reliability. So, I think we should at least do the HLA test. If it proves Shimshon the father, we’re all happy (well, maybe not Shimshon, but nobody makes the blacklist). If it rules out Shimshon, we can call it “inconclusive”.

Perhaps, the Rabbanut does recognize it as eidus since the margin of error is miniscule. Also, since the courts will certainly recognize this test, the Rabbanut will have to go along with it as well. In addition, the Torah gives a husband the special right to renounce his paternity without any other supporting proof. This is called “Yakir”. So, if Shimshon wants to claim the kid is not his, and he has an “inconclusive” HLA test to back him up, Nimrod is in hot water.

However, if we do these tests and they point to Shimshon, it’s good for everyone even though Shimshon may not be thrilled about it (Shmendrik will be overjoyed). The court and the Rabbanut will gladly accept the results. And we’ll apply it for bechora and kahuna and yerusha and everything!

Thus, my vote is to do the HLA test because it may prove Shimshon the father. But the Rabbanut’s vote is not to do it because it may prove him not the father.

What a dilemma!

Reb Tzuriel wanted to try to separate the legal status from the Halachic status of this kid. His idea is to force Shmendrik and not Shimshon to submit to a DNA test. But not to check it for the full range of markers (16 markers), only for about 60% of the markers. If the 60% of markers (9 markers) match Shmendrik, the court will have legal grounds to call Shmendrik the father and make him pay child support. Meanwhile, the Rabbanut will not accept these partial results and will uphold the chazaka that Shimshon is the father to keep Nimrod off of the blacklist. He claims that there are poskim who back his idea but not as many (or as prominent) as he needs to have.

I am very confused about why the Rabbanut would acknowledge a match of 16 markers to “paternalize” Shmendrik but not 9 markers. Why can’t they reject the results as a mere umdenah even if it’s a complete match? Moreover, how is this going to solve any of the other social and moral problems that are comprised in this case?

The truth is that I don’t really know what became of this case. I am assuming that Reb Tzuriel found a way to keep the child off of the blacklist just like he did for the chayelet and like Rav Ovadia did for the American girl.

But does not being on the blacklist mean that one is a-okay on the “white list”? Or is there a grey zone? Personally, I don’t think this is all just black and white.

So, stay tuned for…

…The Grey Zone.