Wednesday, February 17, 2016

Mesira IX.v: Adulterating the Truth


Author’s note: This post is not the continuation segment of my previous segmented post. It is a separate post that I think is necessary to provide the background to understand the continuation, which follows this post. This is one of the most compelling posts I have ever written. YH


Presumption of guilt!

This is what our community is guilty of. This is what is driving this entire debacle. When I criticized the Kol Koreh in Mesira VII, this problem was on the top of the list.

I launched this whole series way back in August when I objected to a popular notion that there is no issue of mesira for an Orthodox Jew to be a traffic cop or parking meter attendant. It is okay to report a civil lawbreaker. Rav Vosner, ZT”L even says so in a teshuva.

I opined: Fine and good, if he admits to breaking the law. But what if he disputes it (and has grounds to dispute it)? And it’s the frum cop’s word against his? Is there still no problem? Did Rav Vosner’s teshuva take such a case into consideration?

Not by the way it was written. The teshuva (regarding customs violations, by the way) never considered the side that the accused contested the charge or had grounds to. This, and other word of mouth stories take for granted that the person committed the misdeed exactly as reported. They only deal with whether it is permitted to report a guilty person.

Presumption of guilt. This is a plague.

Rabbi Dovid Lichtenstein, in his interview with Rabbi Nachum Eisenstein, which aired on Jan.23, 2016, can’t shake it. Rav Eisenstein was trying to say in the name of Rav Elyashiv, ZT"L, that in the absence of firsthand testimony, without an אומדנא דמוכח (irrefutable circumstantial evidence) we cannot treat somebody as a guilty person.

Says Rabbi Lichtenstein:

Why are you being machmir on the life of the rodef? Why aren’t we looking to be machmir on the hatzalah of the nirdaf…?

Excuse me? In what way have we confirmed that Ploni is a rodef? Aren’t we discussing that there is nothing better than an אומדנא? Why is he already guilty?

R. Lichtenstein has the answer:

…knowing a few facts:  One -That in 99% of these cases, children don’t accuse adults of molesting them…  (He expounds on this fact but does not offer any others)

99%! Whoa, that’s a big number! And Rabbi Lichtenstein knows it for a fact! Where he gets this from is a deep mystery (I asked him and got no response) but so he says without a doubt. Is it really true?

Lets examine it.

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This really happened…

Cast of characters:

Moshe – My oldest grandson, 3 ¾, goes to gan in Har Nof

Esti – My youngest daughter, 2 ½ (happens in productive families), goes to same gan

MM – Moshe’s Mother, my oldest daughter. Lives in the neighborhood with her family.

Chany – Esti’s big sister, my school age daughter. She attends nearby Beis Yaakov

Zaidy – Yours truly

Bubby – My better half (who keeps telling me not to write blogs…)

Plot:
On a regular Friday I do typical Friday errands. When gan finishes, Chany picks up Esti and takes her to our house where we all live. And MM picks up Moshe and takes him to her house where they live.

This past Friday, MM wasn’t able to pick up Moshe so she sent a message to me via Bubby asking if I could do it. I said I could only do it if I have completed my errands. Not to depend on me, MM called up the gan with instructions to release Moshe to Chany who would bring him to my house together with Esti. Nobody was certain that Chany would get the message and I indeed completed my errands so I was instructed to go to the gan anyway. When I arrived by car, Chany was already standing outside with Esti in the stroller and Moshe in hand (she got the message). I told Chany to go home with Esti and I will take Moshe to his house in the car. I put Moshe and everything he was holding into the car and brought him home.

A few minutes after Moshe got home he exclaims to MM, “Oh no, I don’t have my tik (schoolbag). We have to go back and get it.”

MM: “Well, where is it, Moshe? Did you leave it in Gan?”

Moshe: “No, I didn’t leave it in gan.”

MM: “Then where is it?”

Moshe: “It’s in the sky.”

MM: “Oh, come on Moshe. It’s not in the sky. Did you leave it in Zaidy’s car?”

Moshe: “Yes. I left it in Zaidy’s car.”

MM promptly called me and asked me to look for the tik in my car. Since I was still sitting in the car, I was able to quickly confirm that it wasn’t there. I told MM that it wasn’t there, so she was convinced that Moshe left it at gan even though he flatly denied it.

So, Moshe says it’s not in the Gan and Zaidy says it’s not in the car. MM doesn’t know what to think.
Am I telling the truth or is Moshe?

Two minutes later, the penny dropped. MM gets a call from Bubby to tell her that Moshe left his tik in Esti’s stroller!  

Now let’s analyze this story a bit.

MM has firsthand information on two facts: (1) The tik is missing and (2) Moshe came home in Zaidy’s car. She was not aware that Chany is the one who took Moshe out of gan, she thinks I did it. So she can only think of two logical conclusions: (1) Moshe left his tik in gan and is not telling the truth when he insisted that he didn’t; or (2) the tik is in Zaidy’s car and Zaidy is just starting to lose his marbles.

Since “in-the-sky”-Moshe also lives in a world of dragons, dinosaurs, and superheroes, and can spin fabulous tales, and since Zaidy hasn’t really lost it yet, it makes more sense that Moshe left the tik in gan. But, then why can’t he just admit it?

The answer is that this is the one thing that Moshe knew for sure (firsthand). So he can insist that it’s true. He wasn’t paying attention when Chany put the tik in the stroller so all he really knew was that he took it out of gan and nothing more. Regarding what he knew, Moshe could tell the truth, but regarding what he didn’t know, he couldn’t. MM couldn’t fathom why Moshe wouldn’t know if he left it in gan so she pressed him for the true answer. He couldn’t get off the hook by saying he doesn’t know (even though he really didn’t know), so he had to come up with something to satisfy his mother. His first attempt was a yarn – “It’s in the sky”. When he saw that MM won’t buy the yarn, and that she suspected it was in Zaidy’s car he had to tell her what she wanted to hear and what would stop the interrogation: “Yes, it’s in Zaidy’s car.”

But, guess what? Nobody was initially lying. Everybody’s first report was the truth. Both Moshe's and Zaidy's. And the real story was something that neither MM nor Moshe could fathom. Neither one of them suspected that Chany put it in Esti’s stroller. (Zaidy guessed it.)

But…Moshe’s second version wasn’t true. Once he didn’t know the true answer he used two other methods: (1) Make one up and, when that didn’t work (2) let the interrogator make one up and tell her what she wants to hear!

Cute story? Well, here is a “semi” fictitious story that’s not as cute.

Mrs. Nehrvin discovers some marks on her little four year old Avi in strange places. She asks him, “Avi, where do those marks come from?”

Avi answers, “I don’t know!”

“Avi, did somebody touch you in a funny way?”

“I don’t know.”

Mrs. Nehrvin’s mind is racing and she suspects the worst. Ah yes, there’s a sweet guy named Mr. Grossfinger who does activities with the boys ages 3-6 in the shul Social hall while the Rabbi is giving his winded speech on Shabbos mornings. There is always open access to the social hall, but…who knows? It seems to make a lot of sense especially since we all know that he is not on the best terms with his wife.

“Um, Avi, did Mr. Grossfinger bother you in any way?”

“No.”

“Come on Avi, you can tell me. Does Mr. Grossfinger sometimes touch you?”

“Yeah. Sometimes.”

“So, you are telling me that Mr. Grossfinger touched you here and here.”

“I guess so.”

This is all that Mrs. Nehrvin needs. She is convinced that Mr. Grossfinger is a molester on the prowl. To be sure, she even takes Avi to the doctor who confirms that those marks are a clear indication of foul play.

But she hasn’t lost it yet. Let’s be sure. So she calls up her close friend Mrs. Shpielkes and asks her if she knows anything suspicious about Mr. Grossfinger. Mrs. Shpielkes says: “Oh my G-d! My Ruby has been having these rashes that just keep coming back. Now I know what might be causing them!”

Mrs. Shpielkes calls her doctor. She is told that it is possible that the rash is caused by sexual contact but there can be other causes as well. She needs no further proof.

The two women spring into action and call other women. Some say they see no problems and can’t think anything ill of Mr. Grossfinger but Mrs. Frentig says that her Binny was in that group two years prior and all of a sudden the nightmares and bed-wetting he used to have came back. And Mrs. Schrier says that her Shloimy all of a sudden turned into a bratty monster. This must have something to do with it.

With such overwhelming proof, they turn to the city posek R. Dov Ber Kahan, Shlita and tell him everything they know. R. Dov Ber Kahan says: “You don’t have to ask a she’ayla. Go straight to the police. He should be put away for life! I’ve been paskening like this for 20 years.” This sounds right to them. Especially after they all saw a Kol Koreh printed in Mishpacha Magazine signed by 107 Rabbanim that says that they have a religious obligation to do just that.

And so, Mrs. Nehrvin goes straight to the police with a doctor’s report and whatever.

This ordeal up to this point has taken over three weeks.

And in all this time, not a single person breathed a word to Mr. Grossfinger!

The police open up a file on Mr. Grossfinger. They bring him in for questioning and put him through the ringer but they get nothing of substance. The police send him home with an admonition to keep his nose clean. He does but he is shamed and ostracized from the community. He is fired from his job. His difficult wife opens a tik in Beis Din. Eventually he has no choice but to leave the city without a wife and without a job.

Everybody is relieved, especially Mrs. Nehrvin. But should she be?

Not if she knew “the real story”.

What’s the real story?

Well, Shloimy Schrier turned into a bratty monster because he has a domineering father and a wallflower mother. Binny Frentig always had nightmares and enuresis, even earlier, and was never cured of them. Ruby Shpielkes, like the rest of his family, had very poor hygenic bathroom habits and was never clean and kept getting rashes.

And, as for Avi Nehrvin? Well, the story is not so simple for Avi. Poor Avi - he really was molested! You see his older brother Shimmy who can’t seem to find his place in any yeshiva, spends lots of time at home and is always glued to his I-Phone, he has some issues. And he needs to release those issues. Unfortunately, the most convenient target for his needs is his little brother Avi. He really loves Avi. A bit too much. But, not to worry. He made sure to get Avi to promise that he won’t tell anybody.

So Mrs. Nehrvin can sleep well at night because Mr. Grossfinger, who never touched anybody, is branded and living a loner’s life in Cleveland. Well, the police didn’t do anything. They had nothing on him, but these ladies with the blessing of R. Dov Ber Kahan, Shlita, ran him out of town. He’s Cleveland’s problem. She can relax at home with her husband and three daughters and Avi,,,

…and Shimmy.

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How’s that for a story?

I have seen this happen! Many years ago.  

A few small differences, perhaps. In the case I observed, “Mr. Grossfinger” did not have shalom bayis problems. He left town with his wife and kids. Also, he was initially confronted by a kangaroo beis din that did not allow him to plead innocent. Also, his involvement wasn’t a shul group. Minor differences.

But everything else is fairly accurate. The police part and even the incest part. This is where Rabbi Zvi Gluck tells us that it happens 90% of the time - at home!

This story has happened for real numerous times with all kinds of variations. And it shouldn’t happen. Ever. Shall we analyze?

Note some details:

·        Avi Nehrvin never came forward to his parents with any information at all. His mother discovered the marks when she was getting him ready for bed.

·        The only firsthand information that she had was that Avi has marks, nothing more.

·        Avi did indeed know where the marks came from, but he promised Shimmy not to tell anybody and Avi is a good boy.

·        When Avi’s mother asked him about the marks and wouldn’t let up (understandably so), Avi felt pressured and interrogated but had no alternative answer for his mother.

·        When his mother suggested that Mr. Grossfinger was the culprit, Avi had an out on the interrogation – just tell mommy the answer that she wants to hear!

·        If any objective person thinks about this and knows that Mr. Grossfinger is a gentle sweet and Yarei-shamayim type guy in his 40s with no previous history of accusations and consciously did his Shabbos activities with full exposure, and compares this with the fact that Shimmy is a troubled teenager and lives at home and shares a room with Avi at night and then throws in the statistic from R. Zvi Gluck that 90% of the cases that he deals with are homeschooled, it should emerge that the most likely candidate for hanky-panky is Shimmy by a landslide. But mothers are never objective, and even though Shimmy is going through a tough phase, Mrs. Nehrvin cannot conceive at any level that her Shimmy could be some kind of a predator.

As such, what happened? Mrs. Nehrvin took the limited amount of firsthand information that she had – that Avi had marks that strongly indicate (but do not confirm) molestation and tried to extend it to a conclusion for which she had no true information at all. So she took what looked to her to be the most probable target and overlooked the truly most obvious one. She pitched all kinds of flimsy circumstantial evidence and interrogated the victim to get a perp ID without a lineup!

And that's the night that the lights went out in Georgia Passaic.

The interesting thing is that Mrs. Nehrvin did not fly off the handle. In theory, her actions were fully justified. What she did was out of sincere love and concern and in a responsible way. She really believed that Mr. Grossfinger molested her son and others and was a threat to the community and even went to a Rav for guidance. And unlike the other mothers whose sons were never touched, her son was indeed truly molested (this is what makes debacle cases like this stick). Except for her motherly blindness to be open to additional closer-to-home explanations, she did almost everything right.

What went wrong?

For one thing, nobody confronted the suspect! Why should they, is there a question that he is guilty?

Well, if he really isn’t guilty, there must be somebody to ask the question. In this case, we have to point the finger at R. Dov Ber Kahan, Shlita. Had Mr. Grossfinger been confronted and allowed to say that he is absolutely unconnected, the “objective person” mentioned above in the list of details could discern that Mr. Grossfinger was not the most likely suspect. There is a closer suspect.
ועתה כי אמנם אם גועל אנכי, וגם יש גועל קרוב ממני!


Of course, under the circumstances we wouldn’t expect that Mrs. (or Mr.) Nehrvin should confront the suspect themselves. “Any objective person” would do. And it should be the responsibility of the Rav to be the objective one. Yet, Harav Dov Ber Kahan, Shlita, as so often happens, only listened to one side of the case and passed judgment in absentia. "Straight to the Police!"

But how could it be anybody else besides Mr. Grossfinger? Didn’t Avi single him out explicitly?

And doesn’t Rav Dovid Lichtenstein know for a fact that in 99% of the cases children don’t [falsely] accuse adults of molesting them?

Well, in this case, and in many others, and in the case of Moshe’s case (tik) above, the child did not accuse anybody. The child merely brought home a very limited piece of information.

Reb Lichtenstein may indeed be accurate that in “99”% of cases, information that a child brings totally unsolicited, is true, at least in the eyes of the child. But when any information is solicited from a child by an adult, it can be dinosaurs and dragons or whatever will satisfy the solicitor.

There is no doubt in my mind that MM would have no trouble getting a sworn statement from Moshe that Spiderman took his tik. Just by suggesting it. Whatever works.

What Reb Lichtenstein is overlooking is that while sometimes a child brings an accusation to a parent, it is never (let’s say 99% of the time) the child who brings a complaint to a Rav, a dayan, or a policeman. It is an adult that is representing the child. An adult who was not a witness to the alleged offense.

Many of them are fully sincere and unshakingly believe in the merit of the accusation. Just like Mrs. Nehrvin. And they will scream – “My child told me so!” “A child doesn’t lie!”

Well, when the information is unsolicited, the child does not lie. But when it is solicited…it’s like Las Vegas.

Unfortunately, parents are not objective players. This is really not so unfortunate, parents are not supposed to be objective when it comes to their children. But subjectivity comes with its baggage. Subjective people are prone to over-reaction, misinterpretation, misidentification, selective thinking, creatively filling in the blanks and just plain misunderstanding. And, when it serves their interests, some do lie through their teeth.

One of my favorite sayings is: I never heard anything said in a Beis Din that was 100% true and I never heard anything said in a mikveh that wasn’t. And I have spent enough time in both places.

An adult does not tell the real truth, even if he thinks he does. An adult, even an "honest" one, tells whatever "truth" he wants the listener to hear. 99% of the time.

There is a reason why, when somebody bends the truth, we say that the truth is adulterated.

אשר עשה האלקים את האדם ישר, והמה בקשו חשבונות רבים 

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I want to conclude all this by saying that it appears that I am coming down very hard on Reb Dovid Lichtenstein. It is clear that I strongly disagree with his position (as well as those of the Kol Koreh) and think this position needs to be re-evaluated.

I wish to reiterate what I wrote in a previous post: I think Rabbi Lichtenstein is a very brilliant, erudite and sincere individual and a great promoter of Torah and Chesed.

My opinion hasn’t changed. In general, I have nothing but admiration for R. Dovid. I knew him to some extent as a bochur and he was outstanding even then. He is a very shrewd and successful businessman and I assume an honest one. He comes across as a very heartzig and feeling person and wants only what is best for the Torah community. And he is a terrific moderator. He is usually very objective and evenhanded and presents a balanced picture.

This is a very emotional topic and I am certain it is his feelings of concern and compassion (and probably likewise of Rabbi Cohen, Shlita) that cause them to take this subjective viewpoint. But herein lies the rub.

Like Mrs. Nehrvin of our story, they and all those who endorse the Kol Koreh have been bitten by the “presumption of guilt” bug. This brings about the desire to be “machmir for the hatzalah of the nirdaf” before we have established if there really is a rodef and who it really is. “Come on, we know the guy is guilty, let’s dispense with the mandatory judicial procedure. If we require real proof, the guy may Ch”v get away!” There may be no real proof.

And there may be no real guilt.

In the story that I witnessed, there was a dayan for the “kangaroo” beis din who was bitten by this bug. He was a young rising star in the American rabbinical establishment. Subsequent to the injustice of this BD, the shul of this Rav sustained a devastating spontaneous non-arson fire that “just happened” to occur on Tisha B’Av. I believe it was a message (and I urged a prominent Gadol to convey it to him) but I don’t think it was absorbed. A few years later this young star contracted Hodgkin's Disease and his flame went out at 45 years old.

I vehemently disagree with R. Dovid Lichtenstein when he said (10/17 broadcast): The Rambam says if one has a bad midah he should go to the opposite extreme to gain equilibrium. As if to justify the abuse or dispensing of Halachic safeguards. The Rambam’s suggestion was for Bein adam l’atzmo or Bein adam l’Makom. For Orach Chaim or Yorah Deah. But for Bein adam l’chaveiro – Choshen Mishpat – you cannot go overboard for one side without injuring the other. There are no kulos or shortcuts in Choshen Mishpat (Takanas Kadmonim notwithstanding.)There is no justification for adulterating the truth and there is no justification for violating Halachic judicial process. Oslo didn’t work and prenups don’t work.
And these things can be dangerous (R"L).

To Reb Dovid Lichtenstein I have to speak like the Godfather. I admire you greatly. This is nothing personal. It’s business.

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