Tuesday, February 12, 2019

Update to Prenups V - Stretching the Hechsher

Author’s note – This post is a review and extension on the issue of endorsements for the BDA prenuptial agreement. It is a follow-up to my post on November 7, 2018. I recommend reading that post first.

One of my long time Yeshiva buddies comes from an East Coast “out-of-town” community. Back when we were in Yeshiva, he told me this story about the local bakery. 

This bakery had the hechsher of the local kashrut vaad but the Jews that owned and operated it were not very Orthodox. It seems the non-religious owners were confused about how many days there are in Pesach and began baking the chametz in advance of the conclusion of the Yom Tov. The aroma alerted the entire neighborhood.

The owners were indeed Jewish and, as such, this infraction would render the resulting baked products as unfit for consumption by G-d fearing Jews (actually, by any Jews). As to be expected, some concerned community members voiced their complaints to the local kashrut vaad. How can they certify that the products of this bakery can be eaten if some of them certainly cannot?

The response of the vaad was to brush off the complaint by saying: our Hechsher applies only to the ingredients.

This story opened my eyes to a kashrut “alert” that is, quite unfortunately, all too common. Sometimes the endorsement only goes part way. In order to make it fit the entire product, it needs to be stretched.

This happens a lot in regard to food kashrut. A restaurant claims to use only Mehadrin products. But is there anybody who makes sure that vegetables are checked, dishes are toveled, and that the cooking process is not conducted exclusively by non-Jews? The butcher claims to be under the hashgacha of Rabbi Ploni but Rabbi Ploni is actually the mashgiach in the slaughterhouse where the meat comes from. Or Rabbi Ploni is only certifying that the meat comes from reliable sources. Nobody is certifying that the butcher kashers or trabers properly. Or a vaad gives a hechsher on one branch of a restaurant or bakery chain or one product of a food line and there is some kind of an implication that the hechsher is in effect for other branches or other products. This misconception is bolstered by a lack of clear communication from the vaad.

It even happens that some people assume that one can eat at the affairs in a given hotel because last month another [more] trustworthy Jewish person or organization had an affair there using a private caterer.

The point is that the hechsher per se may be totally authentic and trustworthy, but they only go part way. They don’t cover the finished product. Whether the intentions are sinister or not, the hechsher is “stretched” to cover the deficit.

The concept of “kashrut” does not apply only to what we eat. There are other Jewish paradigms that must be “kosher”. Tefillin and mezuzos, mikvaos and eiruvim.

Eiruvim in particular suffer from incomplete kashrus standards. This was the message I related in a post I wrote long ago about the eiruv controversy in my home town back in the 1990s. You can see the entire story in this post.

To summarize, the story tells of a local Rabbi that I called Rabbi Rosencrantz. Rabbi Rosencrantz initially supported the construction of the eiruv but he later withdrew his support. In a Shabbos morning speech in his shul, he presented three reasons for withdrawing support:

1.   The purpose of the eiruv was to enable women with small children to attend shul and kiddushes and simchas, thus enhancing the Shabbos experience. It was not intended to enable people to play tennis or to go rollerblading in the parks on Shabbos afternoon or to use umbrellas. These activities weaken the Shabbos experience. The eiruv committee had assured him that they will ensure that the eiruv is not used for the wrong reasons. His support was based on this assurance. However, it seems that the abuses were being committed and the committee was not taking any of the promised measures. He could not let himself be seen as one who can look the other way when the eiruv is being abused and Shabbos is being denigrated.

2.   The eiruv was erected in compliance with the halachic standards of HRHG Rav Moshe Feinstein, ZT”L.  However, some breaches developed and, instead of being properly repaired, they were neglected by relying on some lenient shitos which did not live up to the Halachic standards of Rav Moshe, ZT”L. Thus, although the eiruv was built in accordance to the standards of Rav Moshe, ZT”L, it was not being maintained in accordance to those standards.

3.   There was a movement to link this eiruv with those of some adjacent neighborhoods to form one big “kosher” domain. Unfortunately, the Halachic standards of the other eiruvim did not match up to those of the original eiruv. As such, Rabbi Rosencrantz was afraid that his endorsement of the original eiruv will be seen as if he likewise endorses the kashrut of the newer eiruvim. He could not allow this, either.

Amazingly, all of the three reasons had one common denominator. They were all different examples of “stretching the hechsher” or something I call “kosher by association”.

In the first case, the “hechsher” on the appropriate activities was being “stretched” to give an ipso facto hechsher to the inappropriate activities. In the second case, the hechsher on the construction was being stretched to give an ipso facto hechsher to the maintenance. And in the third case, the hechsher on the original eiruv was being stretched to give an ipso facto hechsher on the other adjacent eiruvim.

And now we come to the main topic that I wanted to discuss. The BDA prenuptial agreement.

If you are a loyal follower of my blog, you may be having a case of déjà vu. Yes, I already discussed all of this in my blog post last November. In that post, I strongly criticized the impression of endorsements that is presented on the BDA Prenup web site. I described two problems with the “endorsements”. The first is that there does not seem to be any endorsements by the renowned Gedolim on the “finished product”. Here is what I wrote:

Well, it is definitely true that Rav ZN Goldberg, Shlita, Rav Ovadiah Yosef, ZT”L, Rav Chaim Zimbalist and Rav AZ  Weiss, Shlita endorse the concept of the PNA. Further, the basic language of the agreement, more or less a copy of the Toras Gittin, was endorsed by Rav ZN Goldberg, Rav Ovadiah and three others back in 1992. Rav Asher Zelig Weiss wrote an undated letter where he outlined the mechanics of reasonable mezonos and ruled that there is no problem of coercion in this case. He clearly implies that if the allowance for mezonos is not reasonable, we are in trouble. We have no idea from his writing at what point the mezonos are considered unreasonable. Of course, we can always ask him (AMV”Sh).

However, there have been a few changes since 1992. Did anybody endorse those?

What we have here is that we may have a reliable hechsher on the ingredients – dated 1992, but not on the current finished product of 2019. This is akin to Rabbi Rosencrantz’s second issue with the eiruv. There may have been an “Igros Moshe hechsher” on the initial construction but not on the current status.

The second endorsement issue concerned how the prenup is used. I wrote:

There was a strong resolution in 2006, another in 2013 and the strongest yet in 2016. Each one takes the question of get meuseh up one notch. Did any Gadol endorse any of these resolutions?

The resolution in question, that of 2016, is one that mandates all RCA Rabbis to insist that a chosson should sign a prenup such as the BDA one. Here is what I wrote in the previous post:

The 2016 resolution that mandates all RCA Rabbis to require a PNA for every wedding they officiate at, or refuse to officiate, is very scary. As it is, the PNA is treading on thin ice in the area of coercion and many are those who invalidate it for this reason. But even those who do not – and we know that Rav Asher Zelig Weiss’s letter of endorsement only addressed the issue of coercion – may feel that this resolution crosses the line. It certainly invokes the words of the Rema in Even HaEzer 134:4 who stated that bidiavad, if the husband gives a get while under the influence of a self-imposed penalty, the get is still valid “since initially he was not compelled to do this…”. The obvious implication is that if the fellow was compelled to accept this fine, it is a forced get by all opinions. In line with this remark in the Rema, even though we are now dealing with mezonos and not a fine, for one to be compelled to accept upon himself an exaggerated amount of mezonos is very problematic to say the least.

So here we have an example of Rabbi Rosencrantz’s first issue. The eiruv may be kosher l’mehadrin when used properly. But it can also be abused to include activities that are not Halachically sanctioned (or at least, אין רוח חכמים נוחה בם). Here, as well, perhaps the prenup is kosher if used properly. But if it is used in a way that reinstates the problem of get meuseh, the endorsement won’t apply.

As such, I thought it is a good idea to check it out. So I accessed the website for the Beis Horaah of HRHG Rav Asher Zelig Weiss, Shlita and asked this question. Here is my exact question (you can see it online HERE):

Many of us have seen the teshuva from Moreinu Harav that states that an agreement for a husband to provide reasonable mezonos for his wife even after they separate will not facilitate a get meuseh. It seems that Mo”HR encourages this procedure.

We are aware that numerous poskim of today’s generation indeed view this payment of mezonos to be a “Knas in disguise”. It appears that Mo”HR does not agree with this shita.

However, the Rema in 134:4 that is quoted, when he says that bediavad the get is valid, ends his words: “since he was not initially forced into this.”

In light of this, my question is: it seems that some rabbinic bodies are making this agreement compulsory as opposed to voluntary. They state that a member Rabbi must refuse to be mesader kiddushin if the groom refuses to sign this agreement.

Does Mo”HR maintain that since this is mezonos it does not adversely affect a get even if the agreement was compelled, or do we need to be choshesh like the other poskim that this is truly a knas and as such even the Re,ma will not validate a get bediavad because the groom was forced? Or does Mo”HR maintain that this type of compulsion is not considered being “initially forced into this” and is not the intent of the Rema?

In short, does the endorsement of Mo”HR stand even in a case where the groom is pressured or compelled to sign the agreement or only if it is totally voluntary?

And here is his exact answer (through an emissary):

The Rav’s endorsement for this practice is only when it is done voluntarily. The choson should in no way be compelled or forced into this agreement.

I rest my case.

Or so I think. But the promoters of the BDA prenup do not back down very easily. One person to whom I sent this teshuva put up a battle. He wrote:

I am confused.  Everyone agrees with Rabbi Asher Weiss's response.  No one is forcing or coercing.  Rabbis are refusing to perform seder kidushin without it -- but that is hardly "force" or "coercion" either as a matter of halacha or as a matter of secular law in America. 

Indeed, one who reads this English teshuva sees exactly that Rabbi Asher Weiss approves of the use of the agreement when voluntarily entered into.  The desire to have "Rabbi X" perform one's seder kidushin is NOT COERCION AT ALL.  Consider the following case: I want Rabbi X to come to my son's brit, but he tells me that he will only come the brit if I give him $100.  Is that coercion?  Of course not.  This is halacha 101. 

In brief, he wants to claim that the RCA approach would not be considered coercion. The chosson is free to choose another Rabbi.

I responded:

I incorporated your view in the question. I was hoping he would be more specific, but I guess he doesn't want to. In any case I gave him a full "out" to be able to declare that this practice does not constitute coercion and he did not want to take this route. My personal feeling is that many MO boys do not have rapport with a long list of Rabbis and are not in a position to go shopping for a non-RCA (or Young Israel) rabbi. Also, the choice of rabbis may not even be theirs (it could be their parents and sometimes from the other side). Also, chassanim are often married in the girls' town, not on home field. This cannot be brushed off by "just find another Rabbi." Also, there is obviously a collusion of Rabbis to insist on signing.  

I am not with you.  

Regardless, at the very least, BDA has a responsibility to formally assert that it must be voluntary and that nobody should sign it if he doesn't want to. They are treading on very thin ice. 

My correspondent simply wrote me back that he does not agree with me. Still one thing is certain – regardless of whether the RCA resolution is Halachically considered coercion, Harav AZ Weiss, Shlita does not endorse it. 

My purpose in these posts is not to discredit the validity of the BDA prenup. It is to explain why the Chareidi community will not sign on to it. Both Rabbi Rosencrantz and HRHG Rabbi Weiss have illustrated our problem:

When one stretches a hechsher, the hechsher is on a stretcher.

Sidenote – I contacted my cousin who is a West Coast RCA Rabbi. He told me that the RCA has no means or program to enforce their resolutions and that this resolution is largely ignored by most RCA Rabbis. He has never implemented it personally.

Tuesday, December 18, 2018

Golden Oldies for Parshat Veyechi - Yair (ben Menashe) ben Yosef

I was thinking that Parshat Vayechi is a good week to get back to the Techeiles series because of the (puzzling) reference to Zevulun having his province on the shores of the Mediterranean - where the chilazons grow. Alas, I am very preoccupied with many things and have to forgo intensive blog writing for the time being. 

So to keep the ball rolling, and to address the unending coalition crisis, I am reposting my politically charged post on this parsha from 5775 (2014).


Yair (ben Menashe) ben Yosef 

The gemara in Baba Basra 121b discusses that there is a chain of seven people whose lifespans overlapped to collectively cover the entirety of world history:

  1. Adam Harishon lived 930 years
  2. Mesushelach was alive to see Adam Harishon
  3. Shem ben Noach was alive to see Mesushelach
  4. Yaakov was alive to see Shem
  5. Amram was alive to see Yaakov
  6. Achiya Hashiloni was alive to see Amram
  7. Eliyahu Hanavi was alive to see Achiya Hashiloni

And our tradition is that Eliyahu Hanavi is still alive.


In some cases the overlap is explicitly stated in the pasukim but in other cases it is attributed to "gemara" which means oral tradition (Rashbam ibid).

Further on, the gemara notes that Yair ben Menashe, the grandson of Yosef, was alive to see Yaakov Avinu. Here, as well there is no conclusive proof from the Torah itself and, as such, Rashbam explains that this is likewise "gemara" – a tradition.
Comes Rabbi Mordechai Aronovsky in his work Niflaos M'Torasecha and he points out that although there is no explicit source for this assertion about Yair ben Menashe, there is a fascinating remez (hint) to this claim.
He says that in all of the five books of Torah there is only one sequence of words where the Roshei Teivos spell out the word "Yair" and it is in this pasuk (Breishis 48:11):
ויאמר ישראל אל יוסף ראה פניך לא פללתי והנה הראה אותי אלקים גם את זרעך.

Yaakov says to Yosef in jubilation: I did not aspire to see your face (again) and behold, G-d has shown me even your offspring.  Meshech Chochma points out that the added word גם (even) is intended to extend this phenomenon to include "even" the next generation – i.e. Yair ben Menashe. And, sure enough, we see the name "Yair" encoded in this very pasuk, the only such Roshei Teivos in all of the five books!

One minor question may cross our minds. If Yaakov is applauding his good fortune and the graciousness of HKBH for allowing him this unforeseen delight, why does he allude to G-d with the term "Elokim" which typically implies harshness and midas hadin? He should have used the four letter name that implies benevolence, kindness, and midas harachamim?

Well, my 20 year old Eli is very tuned to current events. And he is suggesting that there may be a dark side to this remez as it can be applied to our generation as well.

You see, Tommy Lapid, who was no friend to the chareidim l’dvar Hashem, was really Yosef Lapid. Last decade, he had a brief, yet turbulent, stint as a policy maker in the Israeli political arena. He came in with a platform of "saving" the nation from the "parasitic" chareidim and at the same time he didn’t even claim to have anything to offer or contribute to society in general. Since he had no success in his exclusive anti-chareidi agenda, he petered out accomplishing absolutely nothing.

Now, just when we thought we could say Baruch She’p’tarani on his anti-chareidi-and-nothing-else agenda, we get his offspring Yair to come in on an identical platform. Yair ben Yosef may have been slightly more effective in making life more challenging for the chareidi tzibur, but in the larger picture, he has produced nothing positive for any member of Israeli society.

And thus there may be a second, more contemporary, application of the remez of this pasuk:

ויאמר ישראל אל יוסף >  and the nation of Israel says to Yosef (Tommy) Lapid

ראה פניך לא פללתי> to see your face in the Knesset is something we would never aspire to

והנה הראה אותי אלקים גם את זרעך > and, behold, to our great consternation, Elokim (midas hadin) has decreed upon us to see your offspring as well.

Woe is to us!

וליכא מידי דלא רמיזי באורייתא

Wednesday, December 5, 2018

The "Fall" Guy plays Simon Says

David Stav - Chief Rabbi of Shoham

Before I wrote my primary posts about the Malka Leifer episode, I wrote two preamble posts to set the stage. The second of which is titled Thinking Like a Jew. This is basically a digest of all the Halachic concepts that relate to this case, with sources and everything. It was meant to serve as what people call a “moral compass”. If one reads and understands the Halachic foundation, all of the positions I make fall into place with Halachic support.

This is not the only time I have written such a digest. Way before I wrote Thinking Like a Jew, I wrote a very comprehensive two-part Halachic digest on the halachos of mesira – the 3 Ps and the 3 Cs. And, even before that, I wrote a comprehensive digest on the halachos of rodef titled Blood Labels.

The purpose of writing all these posts is two-fold: (1) To help the reader understand all the relevant halachos that apply to these cases. (2) To dissuade dissenters. Once these halachos are cited and catalogued, we have established what a dissenter must dispute if he thinks otherwise. This ups the ante and makes life harder for him.

Any lawyer, posek, dayan, or toen knows that anything he writes as a claim or a ruling must reference the exact legal or halachic source material. If one wants to file a lawsuit, he must write in the suit that the defendant is in violation of Article 7, Section 2a, Subsection 8, Paragraph 6, Line C, twelfth word, indicated by the comma, of the criminal code or the tort law or whatever. He is even expected to quote it. And a respondent must do the same.

Same goes for Halachic litigation. The nitvah should say, “I am not obligated because the Rema in Choshen Mishpat 123:4 (according to the SMA’s clarification) clearly states that this is called an asmachta…” or say “kim li like the distinction of the Noda Beyehuda cited in Pischei Teshuva 15 in siman 87:6 which says that the Shach is really arguing with the Mechaber…”

When a legal professional states: “The law says…”, or a posek says “the Halacha is…” and they cannot quote the law or the Halacha, it’s as good as saying “Dr. Seuss says…” or, as we did in nursery school, “Simon says…”

A lawyer or judge who cannot quote the law is a fraud and a “Rabbi” who cannot source the Halacha is an am haaretz – especially if the true Halacha says differently. Hence, when a genuine Orthodox Jew says “Halacha”, he means what is stated in Rambam and Shulchan Aruch and Mishna Berura and all those teshuvos seforim from renowned poskim – those guys. When an “open” Orthodox Jew (i.e., a Hellenist) says “Halacha”, he means what it says in “my book”.

In my travels through the laws of rodef, mesira, and extradition, I have stumbled across a few charlatans who cannot quote Halacha. The main culprits to date are the Rabbinical Council of Australia and New Zealand (RCANZ) who range from Open Orthodox to quite Modern. These am haaratzim released a ridiculous statement in June of 2017 that posited my “Halachic assertions” to be “fundamentally flawed” and “misguided”.

When I asked them very nicely to point out the “fundamental flaws” and explain what is “misguided”, they went eerily silent and remain so to this day. I am still waiting for them to explain or retract.

Well, it looks like the RCANZ has a sister MO/OO organization here in Eretz Yisroel and it is called Tzohar, run by David Stav, Chief "Rabbi" of the settlement of Shoham. Like most of the RCANZ members, I cannot call this fellow a “Rabbi”. A Rabbi is one who knows and disseminates actual Halacha.

David Stav is an ultra-liberal left wing “Rabbi” who is a colleague and disciple of ultra-liberal Shlomo Riskin (Mr. Marriage Annulments). He serves in the spiritual advisory board for Rabbi Riskin’s Ohr Torah Stone Institution. In 2013, David Stav announced his candidacy for Chief Ashkenazi Rabbi of the Israeli Rabbinate, R”L. At the time, he claimed, “I am flexible with people, I am not flexible with Halacha.” Seems like he’s changed his spots.

The Sapper sisters who just now concluded their visit, are having a hard time contending with folks like me who can point out the Halachic infractions they are violating (as well as encouraging others to do). To offset this, they are searching for someone who carries the title of Orthodox Rabbi who can overlook everything it says in Rambam, Shulchan Aruch and Chofetz Chaim and make up new halachos. And one who has very little regard for the kedusha of Eretz Yisroel, owing that it is an essential factor in this case. They certainly found one in Israel Chief Rabbi candidate David Stav who seems to have become a bit more flexible with Halacha since 2013.

After a meeting with the Sapper sisters, David Stav wrote a letter he should be totally ashamed of. The letter was posted in Dassi Erlich’s Facebook page and hardly anywhere else. It is not on Tzohar’s FB page, not on their web site, nor is it on David Stav’s FB page. I couldn’t find a copyable version, so I needed to use Google Voice Typing (a great tool!).

As I have done in the past, I will first post the entire letter and then rewrite the key points with my comments. Here is the letter:

Following a meeting with Dassi Erlich, Nicole Meyer and Elli Sapper, three sisters from Australia who have accused Malka Leifer of sexual abuse while the three were her students, the Tzohar Rabbinical Council issued the following statement:

Halacha does not allow us to forgo the pain of victims nor can we shamelessly protect the actions of an accused criminal who has not been forced to face a system of justice. Halacha requires that the accused be afforded a fair trial but that if proven guilty they must be punished for their crimes. Halacha also mandates those who are aware of abuse of any kind, to report this to the relevant secular authorities.

In today's day and age, it is the responsibility of secular authorities -  the police and the secular courts -  to enforce and prosecute crimes in the jurisdictions in which the alleged acts took place. In this case, in the interests of Halacha and caring for Torah values and the integrity of each and every person, we call upon the Israeli authorities to immediately allow for Malka Leifer’s extradition to Australia.

The pain that these sisters, and others, have experienced at the hands of this woman require that all who appreciate justice and love their fellow man, support this campaign.

We call upon all fellow rabbis, In Israel, Australia and across the diaspora to join us in this effort and together bring Justice to the accused and a measure of closure for the victims.

[Signed] Rabbi David Stav

Chairman of Tzohar

To lighten the mood, it’s time for a joke:
Four youths were brought to the security head of the local zoo for rowdy behavior. He wanted to create “records” of these guys so he could inform their parents and maybe ban them from future visits. So he asked each one for his name and why the security officer brought him here.

Says the first: My name is Steve, and all I was doing was throwing peanuts to the elephant.

Says the second: My name is Bob, and all I was doing was throwing peanuts to the elephant.

Says the third: My name is Ernie, and all I was doing was throwing peanuts to the elephant.

Says the fourth: My name is Pete, but all my friends call me “Peanuts”.

End of joke. [Laugh now!]

I gather that David Stav has a close friend whose real name is probably Simon who he likes to call by the nickname “Halacha”. So when David Stav says “’Halacha’ does not allow…”, “’Halacha’ requires…”, “’Halacha’ mandates…” he is really saying “Simon does not allow...”, “Simon requires…” – “Simon mandates…”
Simon says...

I am past nursery school so I don’t play this game. I don’t do things just because “Simon” says so even if he calls himself “Halacha”. Simon, or Halacha, needs to display his credentials and prove that he is authentic. David Stav doesn’t do this in his letter. He knows that the unschooled masses (Dassi’s supporters) will blindly trust him. But a genuine Torah scholar will not.

So let’s look at David Stav’s Halachic chiddushim and check out their credentials:

Halacha does not allow us to forgo the pain of victims…

What "Halacha" is he citing? Lets open Rambam and Shulchan Aruch and try to find out. I am thus far totally stumped. What does he mean by “forgoing the pain of victims?”

The true Halacha does not allow us to address anyone’s pain or injury at the hands of another without a din Torah.

ואצוה את שופטיכם בעת ההיא לאמר, שמע בין אחיכם ושפטתם צדק, בין איש ובין אחיו ובין גרו.
 כי יהיה ריב בין אנשים ונגשו אל השופט ושפטום והצדיקו את הצדיק והרשיעו את הרשע. 

There are two parties at odds here and they are both just as Jewish. Halacha (real Halacha) does not allow us to lynch anybody just because someone cries foul even if there are grounds to believe them. But this is what spiritual advisor David Stav is “calling for”. (See my first preamble post - Justice is Blind) David Stav does not  claim that he met with Mrs. Leifer who is sitting put in Neve Tirtza. This is in Ramla which is a mere 16.5 km from Shoham (25 min in current traffic) and only 5 km (walking distance) from Lod where Tzohar offices are. Mrs. Leifer is very accessible and I am sure she would love visitors, especially if they are compassionate people and have any ahavas Yisroel.

Now I have seen many piskei din from Batei Din and they usually begin with “לאחר שמיעת הצדדים” which means “after we heard all the sides”.  David Stav’s Halachic claim makes no mention of such a thing. Note that the Chief Rabbi of Israel is expected to be a dayan and know how to conduct a dispute between Jews!

What’s just as important is that here is what the Halacha really says: If two people are having a fight and a third party intervenes in favor of one side and takes measures that do not need to be taken – i.e., below the belt (literally) – the interloper pays dearly for this. In fact, according to the Sifri, Rambam, Sefer HaChinuch and other rishonim, the interloper is called a rodef!

This is in the Torah I live by (Devarim 25:11,12), but it must not be in David Stav’s Ohr Torah Stone edition.

Now, he may be referring to the Halacha of Lo taamod al dam reyecha, but it is hard to believe that even David Stav is that misguided. Lo Taamod simply means that we must come to the aid of a Jew who is in danger and make sure they are not harmed. Certainly, we cannot forgo their distress of danger and cry for rescue. But nowhere does “Halacha” say that we should not forgo someone’s lingering (self-perpetuating) pain for long ago events to help them harass and prosecute a fellow Jew. It doesn't matter what he or she claims the fellow Jew did ten years ago.

nor can we shamelessly protect the actions of an accused criminal who has not been forced to face a system of justice.

This one really baffles me.

When an accused criminal is actively engaging in criminal actions, we ought not protect those actions. However, if the accused criminal is no longer engaging in the criminal actions, then there are no criminal actions to “shamelessly protect”.

David Stav is reframing the situation in a very deceptive and distorted manner. This is disgraceful.

All this has little to do with the accused criminal himself (or herself). In today’s day and age, we have no authority to force anybody to face any system of justice. Today there are no punishments of knasos (punitive financial cases). According to the very first Halacha in Choshen Mishpat (1:1), we can only take a person to Beis Din – or any court – for financial disputes, unpaid debts, spousal payments, inheritances, and personal injury or property damage. We can also turn to courts to be mesalek (neutralize) an ongoing damage or threat. This includes reporting an active sex offender.

But for punishment or “justice” for bygone events, we have absolutely no authority or permission. We cannot try or report crimes that happened yesterday. Not in our generation. You don’t need to hear it from me. You can take it from HRHG Dovid Cohen, one of the leading advocates of turning in molesters, that we can only do this for protection and not for punishment (3:30 and 4:16).

It’s a shanda that Israel Chief Rabbi candidate David Stav does not know siman 1 of Choshen Mishpat and he doesn’t know siman 388, either.

Halacha requires that the accused be afforded a fair trial but that if proven guilty they must be punished for their crimes.

I dealt with this just a minute ago. There is no such Halacha in all of Shulchan Aruch. David Stav is living in the past. In the past, Beis Din (and BD only) was authorized to punish people for crimes if they were proven guilty. Not now. Regardless, we were never authorized to invite non-Jews to punish any Jew for a crime under any circumstances in all of our 3300 years of nationhood.

But, let me play along with this for a moment. My Torah tells us, even in the good old days, what punishments people get for whatever crimes. And it says that if a woman should engage in another woman, this is called “maaseh eretz mitrayim” and is punishable only by Rabbinic lashes after being warned to desist. If a woman “molests” another, it’s no more than personal injury from a Torah perspective. The Sappers and their supporters don’t like this, but this is what the Torah and poskim say. See Rambam Issurei Biah 21:8.

David Stav must have a different version of Rambam.

In any case, it is forbidden and disgraceful for any Jew to advocate using the goyim to carry out punishments for crimes at any time under any circumstances, and more so, if the punishments are way, way, way beyond what a Beit Din would do in Talmudic times. Prison is much worse than getting Rabbinic lashes and going right back home.

Halacha also mandates those who are aware of abuse of any kind, to report this to the relevant secular authorities.

“Halacha” mandates nothing of the kind. Perhaps Simon “Halacha” but not Shas and poskim. I mentioned Choshen Mishpat 388 which clearly states in seif 9:

It is forbidden to turn in a Jew to the hands of the non-Jews neither his person nor his property and even if he is wicked and even if he causes an individual personal distress…and anyone who turns in a Jew…has no share in the world to come.

This is the default. It was written a mere 500 years ago and nothing about it has changed. There are indeed conditions where we may overrule the default which basically hinges on the halachos of a rodef. So when there is abuse that meets the criteria of rodef, there is an exception to the law of mesira. But when it does not meet the criteria of rodef, it does not overrule the law of mesira. And one who performs it is subject to the repercussions stated in Shulchan Aruch (R”L).

This is the Halacha.

As such, David Stav is quite wrong when he writes that the Halacha mandates those who are aware of “abuse of any kind, to report…” It only applies to the “rodef” kind. Not the not-rodef kind. I already wrote why there is certainly no rodef in Australia (as if such a discussion should really be necessary).

What is just as troubling is that David Stav writes “those who are aware…” Now, a victim can be considered aware, but one who is not a victim is certainly not aware even if they heard things second hand or from a victim. The Chofetz Chaim writes this as does Rav Elyashiv, ZT”L. This is what is called Halacha.

Of course, we know that many governments mandate such reporting, but the Halacha does not. Mandated reporting is a very complicated sugya. I haven’t covered it yet, but it may be next on my list (I haven’t finished techeiles or prenups). In a nutshell, the halachos of mesira that I covered in my posts stand firm. When the mesira is permitted it is permitted with or without mandated reporting laws and when it is forbidden, it is forbidden with or without mandated reporting laws. One cannot be moser another Jew to keep himself out of trouble. This will obviously cause a number of cases of people in tight spots and in each and every case, a qualified Rav must be consulted. This is clearly stated by Rav Elyashiv ZT”L. There are no blanket global hetterim and no shortcuts. Sorry.

In today's day and age, it is the responsibility of secular authorities -  the police and the secular courts -  to enforce and prosecute crimes in the jurisdictions in which the alleged acts took place.

I do not think David Stav grasps that precisely because "it is the responsibility of secular authorities to enforce and prosecute crimes in the jurisdictions in which the alleged acts took place", that this is why the Halacha forbade us from voluntarily cooperating with these authorities. This is called “mesira” and it is unequivocally forbidden anywhere in the world for the sake of “justice”, punishment, or closure. It is only permitted for protection from continued activity, when there are no other options.

So, from our perspective, the hetter for mesira, when it is permissible, is on account of potential future activities, not past ones. Thus, the only secular jurisdiction that we are allowed to cooperate with is that of the potential future activities, not the secular jurisdiction of the past activities.

Now that we have cleared this up, here comes the most horrendously appalling issue with David Stav and what he calls “Halacha”.

David Stav actually once upon a time announced his candidacy for Chief Rabbi of Israel. Of Israel! Sounds a bit nationalistic, doesn't it? One would expect such a person to at least know the halachos that pertain to kedushas haaretz and harbor a love for this land. One who does not, sincerely deserves the epithet “am haaretz”.

So, all throughout this episode I have been incessantly quoting the Halacha clearly stated in Yoreh Deah 267:84-5. The Halacha clearly states as follows:

(84) A canaani servant who wishes to immigrate to Israel, we force his master to go with him…if the master wants to emigrate from Israel, he cannot force the servant to go unless he agrees. This law applies even in our times when the land is under the rule of the non-Jews.

(85) A servant who fled from the diaspora to Israel, we do not send him back. And this is the Torah prohibition of Lo Tasgir eved

From these two Halachos together we learn that:

·         A “partial” Jew (canaani servant) cannot be forcibly extradited from the land.

·         This is not just a Rabbinic “Halacha” but an overt Torah prohibition (לא תעשה מדאורייתא).

·         This even applied in pre-1948 and certainly it applies after 1948.

A Torah prohibition on a partial Jew that is clearly in effect today! Is a full Jew any less protected?

In case you may believe so, in defiance of all logic (see Choshen Mishpat 420:1), let me cite another Halacha that I have thus far overlooked (hat tip my soldier son, Eli). It is not in Shulchan Aruch, it is only in the Rambam from the gemara Makkos 7a. Rambam states (Sanhedrin 13:8):

One who was convicted in a Beit Din in chutz l’aretz and he flees to another Beit Din in Eretz Yisroel, his verdict is automatically overturned and he must be tried anew [in Eretz Yisroel]…

Jurisdiction “in which the alleged acts took place”?? David Stav, are you kidding me? Even if the accused was totally convicted in the “jurisdiction in which the alleged acts took place”, if he comes to Eretz Yisroel, he gets a brand new trial here in Eretz Yisroel! How much more so if he (or she) was never tried in the first place and is now here in Eretz Yisroel!

Mr. Stav, do you have another version of Rambam? Do you have another version of gemara Makkos? Do you know any Halacha whatsoever?? (I am quite a bit perturbed at this point!)

In this case, in the interests of Halacha and caring for Torah values and the integrity of each and every person, we call upon the Israeli authorities to immediately allow for Malka Leifer’s extradition to Australia.

No, my friend. You are not speaking in the interests of Halacha or kedushas Eretz Yisroel. You are speaking in the interests of yourself and of the Sapper sisters. And, don’t you dare speak for the integrity of genuine Torah observant Jews. 

The pain that these sisters, and others, have experienced at the hands of this woman require that all who appreciate justice and love their fellow man, support this campaign. 

Ahem, how do you know they suffered any pain at the hands of this woman? Were you there? Did you hear the case from both sides? Did this woman confess? Is there any physical evidence?

In any case, neither the Halacha nor their pain requires this campaign to violate our Halacha forbidding extradition.

I am done with this letter. But to conclude, I want to comment on what David Stav said in a J-Wire interview:

"I don’t have the words to express my embarrassment for people who would use Torah to defend the actions of people who have acted in such a way,” he said. Comparing sexual abuse to a type of emotional murder, Rabbi Stav said, “Those who prohibit a man or woman to complain to the police are responsible for future cases.  They will not be able to say we didn’t know.  The blood of the future victims is screaming from the earth to say ‘you are responsible’”.

I will, for now, skip the first line and deal with the rest.

Comparing sexual abuse to a type of emotional murder,…

Romantic comparisons are nice, but one cannot turn them into Halacha if they are not genuine.

Murder means when you kill someone and they are dead. Not breathing or eating or maintaining a normal family (re: Nicole), or jet setting and taking holidays to Ventnor, Phillip Island and going around making public appearances and TV documentaries. DEAD! These girls are very much alive physically and emotionally (though not spiritually, but that is their own doing). Nobody was murdered. Not physically, not emotionally. At best, injured, but not murdered.

The Torah compares some types of sexual abuse to murder to teach the laws of rodef but there are two main stipulations: it must be giluy arayos, and it must be forced. Neither of these apply here. 

“Those who prohibit a man or woman to complain to the police are responsible for future cases…etc.

It is the Rambam, Shulchan Aruch and Chofetz Chaim and even Rav Elyashiv who prohibit a man or woman to complain to the police in cases such as this. If you wish to blame them for future cases, be my guest, but do so at your own riskin’.

Now, the first line:

“I don’t have the words to express my embarrassment for people who would use Torah to defend the actions of people who have acted in such a way,”

I do have the words to express my embarrassment for people like David Stav. Disgraceful, appalling and  מגלה פנים בתורה שלא כהלכה.

Here, once again, David Stav is reframing the situation in a very deceptive and distorted manner. This is equally disgraceful.

My friend, nobody is using Torah to defend the alleged actions of 2002-2007. I am only using Torah to criticize the actions of the Sapper sisters and their supporters in 2018 and to bemoan the wanton and unjustified chillul Hashem that is occurring as a result of these 2018 actions.

Sof davar, I call on (Rabbi) David Stav, if he has any Halachic integrity and any regard for kedushas haaretz, to either verify his Halachic assertions in the face of my challenges – i.e., refute my Halachic sources – or to retract his letter.

As for the Sapper sisters, if they want to make a Halachic case to justify their activities, they need to find someone who is really a Rabbi and really Orthodox.

כי הנה הסתיו עבר הגשם חלף הלך לו...וקול התור[ה] נשמע בארצנו!

Wednesday, November 28, 2018

Your Friendly Jewish Community Kangaroo Court

The reports are that the long awaited hearing for Mrs. Malka Leifer took place today as scheduled. According to Dassi Erlich, Mrs. Leifer herself did not show up in court. The entire session was a cross-examination of the state psychiatrist by the defense. Future dates have been designated for further cross-examinations.

In short, this debacle has developed into a "war of attrition". It's going nowhere slowly. But, it's not a total loss. The Sapper sisters got to meet lots of nice MKs and got great coverage from ABC News. And their trip was paid for by a generous sponsor.

In the meanwhile, someone sent me a link to a very recent (Nov. 21, 2018) interview of Jewish Community Watch (JCW) COO Shana Aaronson by Rabbi Scott Kahn. All in all, the interview is very impressive and informative. Shana Aaronson is a top notch spokesperson and as child abuse advocates go, she is a superstar. I think it is well worth listening to the interview and you can access it HERE.

So much for the compliments.

Unfortunately, my humble unpopular opinion is that for all the good that JCW does under the illustrious guidance of the lamed vavnik Avraham Meyer HaKohen Seewald and HRHG Rabbi Yosef Blau, Shlita, they do quite a bit of damage. I have written about it in the past and intend to write about it some more in the future. My overall assessment is one of יצא שכרו בהפסדו - the damage far outweighs the benefits.

In terms of Mrs. Aaronson's interview, I thought it was somewhat deceptive due to a number of half-truths and I felt duty-bound to point out these deceptive half-truths. So I set out to write a comment on the page. 

Of, course, as usual, the text grew and grew and I exceeded the 5000 character limit. So I will post the intended comment right here and I will put a summary and link onto the page. Here is the intended comment:

Mrs. Aaronson is a very eloquent speaker and has a lot of professional knowledge, expertise and true-to-life experience. As such, she comes across as very professional, sincere and genuine. Still, she is concealing from her listeners the dark side of JCW and uses at least two deceptive half-truths.

A “half-truth” is being defined as: a statement that is totally true in and of itself but it only reveals half the story so as to be passively deceptive.

Half-truth number one: “We have never been sued”.

I presume this is a true statement, but she says so in a context as to ensure us that the rigorous professional standards of JCW’s shaming process is impeccable and we should not be concerned about wrongful listings. The proof to the pudding and their badge of pride is that, to date, they have not been sued.

If one understands the logistics of lawsuits, it becomes clear that this is a vacuous statement for the following reasons:

·        For secular court in the US, one must have conclusive proof of monetary damages in order to claim monetary compensation for defamation.  For lack of such proof, the most one can win is a court order for the listing to be rescinded. No money. For this reason it is almost impossible to sue on a contingency. This means a tremendous outlay of legal expenses with little to no hope of any financial redress whatsoever. For this reason, even if one is confident that he has a valid case, it is all too often financially prohibitive.

·        In the US (and in Israel), freedom of speech statutes and “good faith” criticism clauses make defamation cases hard to win. Not because it isn’t genuine malicious defamation (and certainly Halachic motzi-shem-ra), but because it is hard to establish that this defamation is illegal. Thus, even if one retains a very skilled lawyer – who will not work on contingency and does not come cheap – it is hard to prove a violation of law even if the person is clearly maliciously defamed.

·        Perhaps the biggest legal obstacle in the US is that there is a very short statute of limitations (SOL) on defamation claims. In New York state, it is only one year. And it counts from the time the defamation is posted and expires after a year. One cannot claim that since the offending material is “still up there”, the defamation is perpetual and perpetuates the SOL. There is yet good news for those affected by JCW. JCW is incorporated in Florida which has a two year SOL on defamation, so you can get a second year - but you will have to sue them in Florida. Regardless, JCW very slyly does not put a date on their WOS listings so they can always claim – true or not – that it was posted more than one or two years ago and the claimant will need to prove otherwise.

·        Beth Din does not count for this because BD is merely arbitration, and a plaintiff cannot force a defendant to show up. In fact, one “offender” did summon JCW to a Din Torah very recently and JCW refused to acknowledge that Beth Din nor to do a Zabla. Perhaps their reason for refusal is justified but the fact that they always have the option to refuse – with or without an excuse - indicates that they cannot be forcibly sued in a Beth Din.

·        In Israel, it is easier to prove defamation but here we have another problem that Mrs. Aaronson has not revealed to us. JCW is not a legal organization in Israel as they have not registered in their business or non-profit registry (Rishut HaTaagidim). Officially, in Israel JCW only exists on the cloud. They do not post any land address and only in a recent brochure have they put up a Jerusalem area phone number for contact. This number does not appear on their US URL. They have a single page Israeli URL which has been “Under Construction” since 2016. The only hot link on the page (besides Contact Us) takes you to their US URL. Sof davar, here in Israel, unless you know where to find Shana Aaronson, there isn’t anybody to sue.

What emerges from all this is that, for logistical reasons, JCW all but has artificial immunity from being sued. This gives them protection to be the bullies that they are. This is not something to be proud of.

After all this, I do indeed agree with Mrs. Aaronson's prediction that JCW is going to be sued sooner than or later.

Half-truth number two: “The statistics for false accusations are only 1-4%”.

Again, by itself, this may be totally true. However, this statistic only relates to those who are totally innocent of any wrongdoing whatsoever and are totally railroaded. And even in this case, we have as much as 4% false allegations. If we settle for 3.3%, this means that one out of every thirty people accused are totally innocent. This works to ten out of 300, etc. and this is not something to dismiss.

But what comes at a much higher rate are cases where there may have been some type of incident which, by itself can be verified, but it is exaggerated, overblown or misinterpreted to become something way beyond what it really is (or was). When we add these to the pile, we are somewhere in the 20% range (rough estimate).

I explained this in detail in my 2016 blog post VictimTurned Predator (this post, incidentally, made Mrs. Aaronson very angry – sorry about that).

Summary of Half-Truths

Once we know these half-truths, we see the dark side of JCW. Their activities to help victims and referral services are very admirable and commendable and it would be great if they stopped there. But their methods of dealing with [suspected] offenders are horrendous and dispicable. Their Wall-of-Shame program comes across as a virtuous enterprise but it is very dishonest, irresponsible and lacking in integrity.

JCW wantonly and impudently passes judgment on people without any benefit of what can be called “due process”. JCW assumes no accountability or oversight whatsoever. Zero! They pass judgement on others with no confrontation or warning, no self-exposure, no redress, no cross-examination or scrutiny of evidence by an objective or defensive party whatsoever. They pass judgement with no method of appeal. There is no transparency of process and the accused or his agent cannot request a transparent review. In short, they are running a Kangaroo Court!

Their panel may be composed of esteemed “Rabbanim”, “professionals”, mental health experts, lawyers, I don’t care who. They are passing judgment on people’s lives in absentia. Not the accused, nor any agent of the accused, is invited to participate. These anonymous cowards hide in the cocoon of logistical immunity from being sued to sentence people to all the indignities and direct and collateral repercussions of being shamed with no consideration for time or weight. All prison sentences have time limits for understandable reasons. Long sentences for more severe crimes and short ones for lesser crimes. There is no parole from the WOS and no distinctions between heavier or lighter cases.

All of this from their unchallengeable and indefensible self-appointed Kangaroo court justice. Of course, according to Mrs. Aaronson, the process is meticulous and the decision (i.e. judgment) must be unanimous. But all of these people pay homage to Meyer HaKohen Seewald and Rabbi Blau and their policies and mindset. They are the proverbial all-white jury in the deep South. (I also suspect that Meyer Seewald and/or Rabbi Blau are members of this panel.)

Of course, it is all seems justified when they provide true case examples and describe how horrible these offenders are and they make it seem as if every “offender” on their radar screen is just as unequivocally monstrous as the undisputable ones they singled out. But the truth is that there are very, very many questionable cases and they use the indisputably clear-cut cases to mask all of the questionable ones. And this becomes another half-truth.

JCW is in dire need of oversight and accountability. Any system without checks and balances is dangerous and immoral. If we allow judges of Jews and their families to appoint themselves, the Jewish Community had better Watch out!

ושפטו העדה והצילו העדה