Tuesday, May 5, 2009

The Genie of Ochel Nefesh and the Markey Bill

As of late, Mondays have been my busiest week days. I recently undertook a course to be certified as a Rabbinic Marriage Counselor. The course meets on Mondays in Bayit VeGan. So now, on Mondays, I leave the Har Chotzvim office in the late afternoon, scoot over to Bayit VeGan where the course runs until 9:00 pm and then dash back to Har Nof to catch HaGaon Rav Asher Zelig Weiss's weekly shiur from 9:00 to 10:00. Then I have a personal chavrusa at 10:30 til 11:00 pm and then I can go home (and practice what I learned in the Marriage Counselling course).

In short, I had a long day yesterday.

Rav Asher Weiss's shiur typically analyzes a Halachic topic that is related to the relevant Parsha, and last night, in light of Parshas Emor, Rav Weiss chose to discuss Hilchos Yom Tov. The topic he focused on was not actually in Parshas Emor but rather in Parshas Bo (Shmos 12:16) which was the "hetter" of doing melacha for אוכל נפש . In the main, he analyzed various opinions of the rishonim as to exactly which melachos are included in this hetter and which are not and why.

In the course of the shiur, he discussed the concept of "mitoch she'huttra, huttra" - מתוך שהותרה לצורך אוכל נפש הותרה נמי שלא לצורך אוכל נפש . This means that there are a few melachos that one may do on Yom Tov even if their primary purpose does not relate to "ochel nefesh" once it is already permissible to do these melachos for the sake of "ochel nefesh". This is a very bold leniency that is very uncharacteristic to normative Hilchos of Shabbos and Yom Tov. Typically, the opposite is true and the Rabbanan forbid things that are not forbidden from the Torah (e.g., handling of muktza, engaging a non-Jew, climbing a tree, riding an animal, etc.). This Halacaha certainly goes against the tide and, accordingly, we have to be very specific as to where and how to apply it.

Some poskim say that "mitoch she'huttra, huttra" only applies to הוצאה and מבעיר and others hold that it applies to a much broader range of melachos. Still and all, this chiddush of the gemara is confined to Hilchos Yom Tov and that's where it is meant to stay. It is not employed in other areas of Halacha. You might say that "mitoch she'huttra, huttra" is a genie that grants special favors to its master. And its master is Hilchos Yom Tov.

I sense that in the non-chareidi world, there is a bit of jealousy over the Yom Tov genie of "mitoch she'huttra, huttra" and that they have let the genie out of its bottle!

The most obvious and relevant example is the propensity of the non-chareidi Jews to litigate civil disputes in secular courts.

The secular courts are what we call erkaos ha'ovdei kochavim and there is no love lost between chazal and this institution. In a perfect world where there are Halachic courts - batei dinim - qualified and empowered to manage civil affairs, chazal have nothing but the fullest contempt for those who seek redress outside beit din (see Rambam Hilchos Sanhedrin 26:7). Alas, we do not live in our "perfect world". The opening section of Choshen Mishpat expressly mandates that today's batei dinim are not as qualified as the proper ones (musmachim in Eretz Yisrael). What's more, qualifications aside, their power to enforce rulings is very limited.

As such, in certain circumstances, there may be a need - a צורך - to approach a secular court. Most commonly this occurs in a case of siruv and לא ציית לדינא where one party does not abide by the ruling of a beit din. In these cases, a plaintiff may approach a secular court after beit din issues a license (harsha'ah) to do so. Additionally, beit din can not deal with criminals so a Rav may issue a harsha'ah when there is a criminal complaint that may involve pikuach nefesh and does not constitute mesirah (a very touchy subject).

We see clearly that due to pressing need, siruv or pikuach nefesh, the erkaos are "huttra l'tzorech". However, we do not find any authority that says about erkaos that מתוך שהותרה לצורך פיקוח נפש הותרה נמי שלא לצורך פיקוח נפש . That genie is the exclusive property of Hilchos Yom Tov.

Evidently, somebody let the genie out of the bottle. And this has the potential of causing more harm than good.

I noticed this phenomenon when I was doing research about Agunah issues in the scope of my book. Every agunah episode is a tragic situation and we would all like to do away with these heartaches. Nevertheless, there are very few true Agunot. A true agunah is a woman whose husband is not in position to give a get because he is either physically or mentally AWOL (or MIA). This is rare. Most "agunah" cases are actually cases of recalcitrance - מסורבי גיטין - where the husband and wife are both at the table and know to follow the rules but one of them doesn't want to play.

For true agunot, some creative ideas have been put forth such as annulments or "conditional weddings" but, unfortunately, there is very little Halachic currency in these accounts. I wrote about this at length in a previous post (click HERE).

For the more common cases of outright recalcitrance, there is a large and growing movement for pre-nuptual agreements. The goal of the pre-nuptual agreements are to motivate the stubborn player to cooperate by imposing heavy penalties for continued recalcitrance. Now, in theory, these prenups should be effective because there is no Halachic problem with getting one to cooperate with beit din. HOWEVER, there is a very severe problem with artificially "motivating" one to issue a get without the sanction of beit din. This is called a "get meusah" (forced get) and it is a recipe for an illegitimate divorce and other illegitimate issues.

And herein lies the pitfall of some of today's prenups. They are very meticulously and properly composed. A bit too meticulously.

You see, the problem is that most batei din cannot really enforce the punitive terms of a prenup. No surprise, seeing as they are meant for people who do not really respect beit din. But the wizards who compose them make sure that they are enforcible in a secular court, a bona fide binding contract. Now, there is no problem with this as long as first beit din rules that the recalcitrant party is in breech of contract and issues a harsha'ah for the injured party to take the prenup to a secular court to enforce it on behalf of beit din. However, this does not always occur. Often, a beit din may feel that, even though the time deadline has come to pass, recalcitrance has not been proven or that both parties are equally recalcitrant (very typical scenario) and there is no Halachic justification to enforce the penalties of the prenup. Whereupon, one party (usually the female one) runs to the secular court with the legally binding prenup - with no harsha'ah from beit din - and has a liberal Western minded judge (usually a female one) enforce the prenup. Since beit din did not authorize this, any money extracted may be Halachic gezel and a resulting get may well qualify as a get meusah.

This is playing with fire. But I guess we established that מבעיר is one of the melachos that everyone holds we say mitoch she'huttra, huttra!

Speaking of מבעיר, I want to discuss the burning issue that inspired me to write this post. This is what is known as the Markey bill. This is a proposed bill pending in the New York legislature that aims to assist victims of sexual abuse by temporarily suspending the statute of limitations on criminal charges and civil claims. There is a bit of disagreement among Orthodox askanim on whether or not to support this bill.

It seems that even before the swine flu we have been faced with a growing pandemic of revelations of sexual abuse within the greater Orthodox community. I am as distressed as everybody else to read about these stories and I bemoan the weaknesses that far too many "frum" Jews have fallen prey to and more so the plights of those who have been victimized by them. It goes without saying that victims of abuse should have full access to every resource that can aid in healing and closure.

Still, when it comes to what can be presented and litigated in a secular court we must tread carefully. We must not lose sight of what is muttar and what is not.

Now, I have heard that numerous rabbanim have allowed people to report suspected sexual offenders to the police and to press charges. Quite obviously a sexual miscreant is a menace to society and it can be deemed a case of pikuach nefesh to take these fellows out of circulation. However, when it comes to suing in civil court for monetary compensation, I don't really see any real pikuach nefesh and I am not sure that many erudite poskim permit it.

So now, on one hand, I have no problem at all with the Markey bill. All it does is eliminate the statute of limitations on claims and offenses that were prosecutable before the expiration of the limitations. I have never been a great supporter of the whole concept of statute of limitations being that no such concept exists in Halacha. But we do need to take a good strong look at what we are allowed to bring to a secular court even if we are within the limitation period.

In other words, let us pretend that today (R"L) a young man is molested in an Agudah affiliated camp or in some Yeshiva or Torah U'Mesorah institution. And let us assume that to this point, the camp or yeshiva administration, and certainly the parent umbrella organization, is not currently aware that the perpetrator is a sexual offender. Now, I understand perfectly that many rabbanim will permit us to "throw the book" at the perpetrator and press charges both criminally and civilly. But, are there Halachic grounds to sue the administrators or the incorporated entity of the camp or organization?

We are all influenced by western society's dogma of "all associated parties are responsible" that is the basis of mountains of litigation in Western courtrooms. Negligence here, negligence there. Everybody is responsible for the miscreant behavior of their children and spouses and their children's spouses and their spouse's children and their employees and their employee's spouses and children and for their products and for what their products produce and for everybody who can't read instructions and doesn't know that coffee is hot. In the West there is never an ingrown toenail without somebody to sue.

Is that what the Halacha says?

Here's what the gemara says:

חרש שוטה וקטן פגיעתן רעה החובל בהן חייב והם שחבלו באחרים פטורין. העבד והאשה פגיעתן רעה החובל בהם חייב והם שחבלו באחרים פטורין

This means that from an Halachic perspective, when an person inflicts some damage, it doesn't matter who their spouse is, who their parent is, who their employer is, as long as the parent/spouse/employer did not actively aid and abet the perpetrator, and more so if they were not aware of their destructive tendencies, then there are no Halachic grounds for compensation from them.

As for the Markey bill - If it merely exposed the perpetrator and stopped there I would consider it worthy of undivided support. But, as long as the claims can be extended to the "she'ar yerakos", we are playing with fire. A yeshiva, camp, or frum organization can and should only be sued in Beit Din on Halachic grounds. If there are no grounds to sue in a beit din, then there are no grounds to sue anywhere.

Let's keep the genie in the bottle.


Anonymous said...

Chassid Shoteh! The purpose of the Markey Bill is to allow these victims a chance to come forward and expose their molesters. In California, over 300 of these rodfim were exposed. This is not about monetary compensation, as any monetary reward is highly unlikely with old cases. If this isn't a case of pikuach nefesh, I don't know what is.

Dov said...

Hello Yechezkel my friend, I saw by e-mail that your post today is on a subject that I'm also researching for my own next book, so I thought I'd take the time to read and reply.

First, archaos aren't mutar only for pikuach nefesh, they're mutar whenever there's no ability for a bais din to adjudicate successfully. Going to archaos isn't a lav, it's a bitul aseh of "lifneichem ve'lo lifnei acheirim." Whenever the Bais Din can't adjudicate successfully, and tzedek u'mishpat can't be brought about by a Bais Din, it's mutar to go to archaos. Choshen Mishpat discusses doing so for mamanus as well as pikuach nefesh.

Second, my understanding of the Shach in Choshen Mishpat is that there's no need to go to Bais Din for a heter in an areas that clearly require archaos to be effective. His case is where someone is the victim of violence that needs to be stopped by police, where Bais Din won't be able to stop it. I believe that going to Bais Din for a heter isn't a kiyum aseh, rather it's a safeguard to be sure that the person isn't going to archaos le'lo tzorech. Note that I'm not disagreeing that many people are in violation of the bitul aseh of going to archaos incorrectly, I'm just discussing the details.

Third, (mis)-use of archaos, particularly in the areas you're discussing, is rampant in the chareidi world as well as in the non-chareidi world. I believe that your posek will confirm this.

Fourth, I don't know much about the anti-aguna pre-nups, but I've heard that (a) they are written to require Bais Din before archaos, and (b) they have never gone to archaos in practice. So your objection appears to be theoretical. (If I'm wrong I'd like very much to know, please.) Also, there are dozens of girsaos of these pre-nups, I gather that in recent years some are considered effective and non-problematic. But again I've never looked into the details.

Lastly, we also see keivan de'hutra in other areas, eg eruvin if I'm not mistaken.

Kol tuv, and hope to see you in a few weeks....

Anonymous said...

A verbose essay where you disprove much of your thesis with the exact gemara that you are using to try and prove it.

You state:
"This means that from an Halachic perspective, when an person inflicts some damage, it doesn't matter who their spouse is, who their parent is, who their employer is, as long as the parent/spouse/employer did not actively aid and abet the perpetrator, and more so if they were not aware of their destructive tendencies, then there are no Halachic grounds for compensation from them."

If you read from the words as long as... in the above mentioned quote, that is where you hurt your argument. Much of the outrage that is presently going on (what brought us to markey in the first place) relates to the rabbinic leadership; menahels, roshe yeshivas, and camp counselors who 100% knew this abuse was going on and still did nothing to protect the abused. In fact in many cases they did the opposite. Wounded helpless children and parents were threatened and discarded from schools and communities like a rotten piece of garbage, while molesters were given seats on the mizrach wall and private offices and bathrooms in school basements. Sadly this happened to way to many children and clal yisrael is paying the price. I agree with you on many of the points in your essay, but this last point ruins it as many of these roshei yeshivas are "mamash" nogea bdavar and deserved to be treated as such.

Your next quote that i will take issue with.

"Now, I have heard that numerous rabbanim have allowed people to report suspected sexual offenders to the police and to press charges"

If you mentioned the names of several of these numerous rabbanim it would be a bit more helpful to us readers. We can start with R'Elyashiv for one. Your wording makes it seem like these are random joe rabonim who put shlita after their name for the heck of an it. The Gedolay hador (the real ones) all support this position. Please dont confuse the readers it is not fair.

Otherwise interesting post. It definetly did not hit an emotional note and feels overly technical for an issue that is causing so much controversy, but hey your a litvak and so am i. Your pilpul is good! Keep up the good work!!

Baruch said...

So I saw a RCA news release that read as follows:
"The prenuptial document currently in use by the RCA and its affiliated Beit Din of America was formulated by Rabbi Mordechai Willig of Yeshiva University, together with Rabbi Zalman Nehemiah Goldberg of Jerusalem..."
And then I saw that Rav Hershel Schachter signed on to the agremeent as well. So figuring that the above mentioned rabbanim weren't "playing with fire...[and had not] established that מבעיר is one of the melachos that everyone holds we say mitoch she'huttra, huttra," I decided to do a little google work. I saw that Rabbi Aryeh Klapper wrote as follows:
"[Q:]What legal problems are faced by such agreements?
[A:]a. American law, does not enforce penalty clauses. Penalty clauses are statements
of the form “If I don’t do x for you, then I will pay you y dollars”, as for example “If I don’t finish
building your new house by September, I will pay you one million dollars”. So a simple
contract in which the groom agrees to pay the bride a large sum if he fails to give her a get
upon request (“If I don’t give you a get upon request, I will pay you one million dollars”) would
probably not be enforced by American courts.
b. Constitutional law as currently interpreted prevents the courts from compelling
someone to perform a religious act. It seems difficult to argue that giving a get does not
require participation in a religious ceremony. So a simple contract to give a get or face
contempt of court sanctions would probably not be enforced by American courts."

For further reading:




Dov said...

Penalties would also probably be a forced Get. But I understand the latest versions of the pre-nup phrase things in terms of mezonos ("spousal support") which get around issues in US law and concerns of forced Get in halacha.

Regarding US law not forcing a Get, I understand the US law is only used to enforce the spousal support that the husband is agreeing to pay until a Get is given.

But again I haven't checked this issue in detail, and don't have an opinion, this is just my understanding.

Baruch said...

I apologize, but I did not copy everything from Rabbi Klapper's treatment I should've in my earlier comment. The problems he presented were were with earlier prenup proposals.

I also should've copied this statement as well, in regards to the current RCA prenup:
"A primary practical concern was to prevent husbands from using “rabbinic tribunal
shopping” and various other tactics that can stall halakhic courts so as to prevent the
agreement from being enforced. This could, of course, be avoided by bypassing rabbinic
tribunal altogether and allowing the contract to be litigated directly in secular court. However,
halakhah forbids Jews from litigating intra-Jewish cases in secular court unless the other
Jewish party refuses to appear in rabbinic tribunal. Accordingly, the agreement involves a
binding arbitration contract which specifies the rabbinic tribunal or rabbinic tribunals before
whom the agreement will be litigated. This contract also means that the rabbinic tribunal’s
decision will be enforced by the secular courts.
A second practical concern was to prevent women from using this agreement to extort
money from their husbands by invoking the agreement and then refusing to accept a get. To
prevent this, the agreement specifies that the husband’s obligation ceases should the wife be declared in contempt of rabbinic tribunal on any relevant issue, including refusal to accept a get when instructed by rabbinic tribunal to do so. A woman who refused to live with her
husband would be directed by rabbinic tribunal to accept a get."