Monday, February 22, 2016

Mesira X.ii: No Chochma, No Tevuna and No Eitza Against Hashem - 2nd Segment: Eitza and Conclusion

Author's note - This post is the second segment to Mesira X essay. The complete essay can be accessed in PDF format. To access -click HERE.

Part 4 – Eitza: How to Apply the Lessons - Let the Chofetz Chaim be our Guide

I have written in several posts that I am convinced that the Chofetz Chaim would never sign the Sweet Torah Kol Koreh as written. I also added to this the Rambam and HRH”G Rav Moshe Feinstein. I am sure there are many others but these are rather easy to substantiate.
The Chofetz Chaim writes that any hetter to be malshin must meet as many of seven conditions as apply. These conditions are (in the order that I wish to analyze them):
1.   There must be a constructive toelles.
2.   If there is another way to achieve this toelles that does not require malshinus, it is forbidden to be malshin.
3.   One may not be malshin if it will cause a repercussion that is beyond what is called for (i.e., what a Beis Din would hand down).
4.   The malshin must have his information first-hand.
5.   The malshin cannot infer conclusions beyond the first-hand information that he has.
6.   The malshin cannot embellish or exaggerate the severity of the offense.
7.   The malshin must first reproach (confront) the wrong-doer.

We can now analyze these conditions and see if and how they are respected by the Kol Koreh.

Conditions 1 and 2 – Toelles

To Halachically justify being malshin (moser) a Jew to the secular law enforcement there must (a) be some constructive toelles that (b) cannot be achieved without being moser.
What could such a toelles possibly be?
The only possible toelles is that this is the only method that will cause him to desist from harming others. Yet we have learned in Lesson 1 that less than 15% of offenders are arrested and of those, less than 10% are incarcerated. So this does not stand to be too effective.
So, now, let me ask, if more than 98.5% of the offenders are not taken off the streets, what are we to do with them?
There is no easy answer. And I wrote in my previous post that we cannot solve this problem. We can only “treat” it. There must be alternatives, and there are some. There are social services and rehabilitation programs (12-step) that the offender can be compelled to attend under threat of further action. And there can be community sanctions for proven offenders – i.e., removal from high exposure positions, not allowed to use the mikva, etc. likewise with the threat of mesira if they are violated. Of course there is no guarantee of success with these, but Rav Eisenstein wasn’t wrong, either, when he said the court system is “like Las Vegas”.
So, once there is no choice but to have alternatives, then condition number 2 automatically precludes the Halachic justification of going straight to the police because there are alternatives that can be implemented first.
Thus, the Kol Koreh is definitely in breach of Condition #2 and in most cases (98.5 out of 100) does not even meet Condition #1.
Note that R. Moshe Feinstein, ZT”L wrote in his teshuva (IgM Ch”M 1:8) concerning one who counterfeits kashrus stamps on meat, that the offender can be reported to the authorities only if the Beis Din cannot stop him from continuing. In other words, if BD can stop him (i.e., an alternative to calling secular authorities), there is no justification for mesira. This is one proof that Rav Moshe would not sign this Kol Koreh as written.

Condition 3 – Overly Severe Repercussions

By itself, if Condition #2 is met, meaning there is truly no other way to stop the molester, this condition is usually not very relevant. We have to do what needs to be done to protect people from harm. This is when the din of rodef applies.
However, taken in conjunction with Condition #6, which is a heavy-duty one and will be analyzed shortly, we need to watch our step.

Condition 4 - Verifying the Information

Conditions #4, 5, and 6 are variations of the same problem: Is the report truthful? They interact to create what is obviously one of the key points of contention in this whole shooting match. The Kol Koreh, by its lack of discrimination, is opening the door to false accusations.
Condition #4 tells us that we cannot be malshin (or moser) on anybody unless the one who wants to be malshin is absolutely certain that the offense being reported actually took place.  “Certain” means the malshin witnessed it personally.
Understandably, this could be difficult. When molesters do their mischief, they typically do not invite spectators. Invariably, the victims do not have much company. So, how on earth, can somebody other than a victim have first-hand knowledge like the Chofetz Chaim requires?
They can’t.
Any person who is not the victim or a first-hand witness (virtually non-existent) cannot know exactly what happened (if anything).
The Kol Koreh indicates that one has a Torah obligation to mahsser on the alleged molester even if he has nothing more than “reasonable suspicion”. This and the term “every individual” indicate that this Kol Koreh is targeted to people other than the victim him/herself! It says that a non-victim has an obligation to report a molester for committing an offense he hasn’t witnessed.
So how does he know what happened?
Obviously, the victim or some other reliable source told him so. And he depends on what they say. Or what he thinks they said. Or what he “heard” them say. Perhaps, this may be bolstered by some genuine testimony that the offender “blew in her ear” or “patted him on the backside”, which may have really happened.
But actually, the non-victim “agent”, whether it is a parent, relative, friend, or clergyman, is judging the case. He is hearing testimony from one side, and most likely, not only does he not confront the offender to see “how he pleads”, but he does not even cross examine the victim or source to make sure there are no holes in the story. The testimony goes unchallenged and as such is “stamped” authentic. Thus, the malshin convinces himself that the report is impeccably true. An example of all this is the story of Mr. Grossfinger that was presented in my previous post.
In any case, the Chofetz Chaim does not allow such a thing. The Kol Koreh does. 

Condition 5 – “Interpreting” (or Misinterpreting) incomplete evidence

Condition #5 tells us even if we possess verified (first-hand) partial information, i.e., circumstantial evidence, which supports an allegation but does not irrefutably ensure that it is true, this is not sufficient to satisfy condition 4.
This is the problem of irresponsibly “filling in the blanks”. There are numerous variations of this phenomenon.
One variation is fully illustrated in the Mr. Grossfinger story in which Mrs. Nehrvin may have had firsthand evidence that there was abuse, yet she had no firm evidence as to who was the abuser. She recklessly took it upon herself to solve the “whodunit” with disastrous results.
In a second form, this problem rears its ugly head at a more insidious stage. Before there is any proof that an offense was committed at all. This is reflected in the reactions of the three other women in the Mr. Grossfinger story who jumped to conclusions based on sheer hearsay. In that case, not one of the mothers observed Mr. Grossfinger doing anything objectionable. They chose to misinterpret (or imagine) unrelated symptoms on the alleged “victims”.
In a third variation, the accused perpetrator indeed committed some confirmed misdemeanor, but nothing close to the degree that he is being accused of.
This goes back to the line I wrote in the previous condition about if one actually sees the offender “blow in her ear” or “pat him on the backside”. The onlooker makes the subjective decision to interpret this in the worst possible light and concludes on his own that the person is a serial rapist.
This issue brings to light what I wrote in Mesira IV about degrees of child abuse. I wrote there that while a non-invasive act (groping, stalking, blowing in the ear, etc.) is unacceptable and may be indicative of even worse behavior, by itself, it is not Halachically impeachable. Even if one actually witnessed such an act, but nothing more, the offender cannot be deemed a “רודף אחר הערוה לבועלה”.
To illustrate this, in the true version of the story that I was involved in, a complainant (who was not a victim but apparently a parent) tried to convince the Rav of a shul that a mispallel (the accused) was a confirmed molester. The Rav was prudent enough to ask the caller how he (or she) knew. The caller responded, “Once when I came to pick up my kid, they didn’t answer the door for fifteen minutes.”
In this statement, the caller is admitting that they did not witness any abuse. If they had, that’s what they’d say: “I saw it with my own eyes, Rabbi!” But the most damaging thing that they saw with their own eyes was perhaps that they had to wait quite some time until the family opened their door. Yet, amazingly, this parent was convinced that their child was molested. Parents can be that way. (Incidentally, there was no basis to any accusations against this person. It’s a long story.)
The Kol Koreh tells “every individual” to report “abuse” while allowing “every individual” to rely on their own definition of “abuse”. 

Condition 6 - Ensuring that the facts are not distorted

Condition #6 tells us that even if every condition to this point is met, the offense is confirmed and the malshinus is justified, the malshin is forbidden to enhance or embellish the information in any way.
This is almost identical to the previous condition. The previous condition is that the malshin, before he reports, cannot bend the facts to convince himself that an unsubstantiated event occurred. This condition says that the malshin, when he reports, cannot bend the facts to convince the listener that an unsubstantiated event occurred.  Also, he cannot over-sensationalize or over dramatize the report to make it sound more horrendous than it is.
This reflects the line I wrote in the Mesira IX.v that an adult will invariably tell the truth the way he wants the listener to hear it. Sometimes a report is distorted from one end to the other simply by adding an extra word or omitting one. I wrote an entire post on this subject alone many years ago [sub]titled: The Objective of the Subjective Adjective (a fun post to read).
This was the main sin of the meraglim. They didn’t say anything that wasn’t true, they merely accentuated the negative and eliminated the positive. It’s not what you say, it’s how you say it.
To illustrate this, as well, I will go to the true story I related in the last condition. When the parent told the Rav that they were forced to wait for 15 minutes, the Rav responded, “So, what does that prove?” A good lawyer would have responded with a different question: “How are you sure it was 15 minutes?”
It’s not very likely the delay was 15 minutes and probably not more than three minutes. But when somebody is standing there waiting, a short time seems like forever. But I am certain the complainant said it because three minutes wouldn’t make the story stick. “So what does it hurt if I pad the details a bit? I am only telling the truth anyway, I just need him to believe me.”
As I wrote above, this condition can interact with Condition #3 because if one overstates the offense, it will invariable overstate the repercussions.
The only positive thing I can say is that these two conditions are the only two that the Kol Koreh does not explicitly urge us to violate. 

Condition 7 – Confronting the Offender

I saved this condition for last because, in my personal view, this is the most serious and neglected issue of them all.
The Chofetz Chaim tells us here that one can never be malshin on another under any circumstances before he confronts and reproaches the offender.
For what purpose?
I hardly think that the purpose of confronting the offender is so to first scold him and call him a “bad boy” and then to promptly go ahead and report him. It is to get him to desist and change course and thus to obviate the need to be malshin (moser) at all. It could also be to give him the opportunity to let you know that he hasn’t been doing what you think he has.
The Chofetz Chaim is in good company. Firstly, we have the Rambam who, when explaining the rules of rodef (Rotzeach 1:7), states: כיצד? אם הזהירוהו והרי הוא רודף אחריו  - "How so? If he was warned but he is still pursuing the victim…"

Likewise, Harav Moshe Feinstein writes in his teshuva (IgM Ch”M 1:8): It is only when they have observed that the Jewish courts cannot deter him is there any hetter [for mesira], after they warned him that they will file a suit in secular court…

When I wrote previously that not the Chofetz Chaim, Rambam, nor HRH”G Moshe Feinstein would endorse this Kol Koreh, my assertion was based on this condition. These three giants contend that to confront the offender is an absolute imperative. The Kol Koreh and the 107 Rabbanim who signed it wantonly disregard it.
The effects of direct confrontation are underrated. But they are very powerful. When I was taking courses on counseling, we covered this subject:
Q. If you suspect that your client may be contemplating suicide, what do you do to find out?   
 A. Ask him!
There is nothing to lose. If he is truly suicidal, he will more likely than not say so. He knows you suspect him. If this happens, you can surely believe him. If he says he isn’t, you can probably believe him, too, but you can judge his tone and body language to see if they allay your suspicions or exacerbate them, and act accordingly. The point is that most of the time, they tell the truth, and even if not, you haven’t hurt anything by asking him. If he’s bent on doing it and doesn’t want to tell anybody, he’ll do it anyway. You haven’t made anything worse.
It’s very much the same with somebody suspected of indecent acts. Just ask him! There is nothing to lose. Recall facts 10-14 that the majority of molesters are former victims who never got the help they needed. Many have a “death wish” to be caught and restrained. So, if they are really guilty, and they feel that the accusers have solid evidence and the “jig is up”, the majority will cave in.
If he denies guilt and you have no solid evidence (and you are not the victim), there is a good chance that he isn’t guilty. Whether he is or not, we are back to the Chofetz Chaim’s Condition #1 which isn’t being met.
If you do have irrefutable evidence and he still denies guilt, at least at this point you have met all seven conditions. Under these circumstances the mesira can now (and only now) be justified.
Confronting an alleged molster is not a comfortable thing to do. But it must be done. The Grossfinger story in Mesira IX.v illustrates how devastating it can be to neglect this step.  
Of course a victim should not need to do it him/herself. An agent, parent or a Rav should do it for them. But, somehow, in cases that I have followed, the “reliable information” of unequivocal guilt is freely offered to everybody under the sun (Rabbanim, principals, policemen, social services, mechutanim) except to the offender. When the offender wants to know where these accusations come from and on what basis, there is a sudden wall of silence – or case of amnesia - from very loose lipped people.
The bottom line is that according to the gedolim of the previous generations, there is absolutely no hetter under any circumstances to turn a molester over to secular authorities before he is confronted and given the opportunity to either clear himself or accept rehabilitative measures. No excuse whatsoever!
To my great consternation, both the revolutionary Kol Koreh and Rabbi Dovid Cohen, do not seem to acknowledge any of these seven conditions and especially this last one. The Kol Koreh explicitly instructs us to violate this condition when it says: “Any individual with firsthand knowledge…has a religious obligation to promptly notify the secular law enforcement…”
Likewise, Harav Dovid Cohen, Shlita is very puzzling. Initially he tells us (1:20): “I have paskened to go straight to the authorities, you don’t have to ask a she’ayla…”. There is no mention of any of the seven conditions of the Chofetz Chaim and no need to confront the offender. Later, he seems to have a brief moment of lucidity when he says (7:29): “There is a consultation. The person is given a fair chance to defend himself…”
Wait a minute, Rabbi Cohen! “The person is given a fair chance to defend himself…” when?? When is this “consultation”? Do you mean before you “go straight to the authorities”? This hasn’t been indicated by anything you have said to this point. In fact, it seems to contradict your earlier “psak”.
Or, do you mean that there will be a consultation without his participation, and he will have a chance to defend himself to the judge after he has been turned over to the authorities? What happened to the Chofetz Chaim, Rambam and Rav Moshe Feinstein?
חבל על דאבדין ולא משתכחין.

עד כאן עצה

Part 5 – Conclusion

I have had numerous personal conversations with the editor-in-chief of Mishpacha magazine wherein I voiced my objections to his stance on Mesira in general and to the Kol Koreh that his magazine carried in August. I know he has read some of my posts and at some point he said to me, “I’ve heard enough from you about what we shouldn’t do. Tell me your plan about what we do need to do!”
I wrote the Mesira IX post to express the point that, like cancer and other ills, we will not eradicate this plague by legislative means or magic bullets. The issue of sexual child abuse is far too complex for quick one-size-fits-all fixes. Once we know this I must strongly question the liberal psak of Harav Dovid Cohen, Shlita.
This Kol Koreh is advocating only one thing – to prosecute suspected molesters whether they are guilty or not. It is not designed to protect anybody, because damage is done by unknown and unsuspected molesters. Prosecution is done to known or suspected molesters. Hence, this edict will not prevent damage and it will not repair damage.
To prosecute a person who does not deserve to be prosecuted is wrong no matter how many suicides there are. As I wrote, the suicides happen at the hands of Phase 1 molesters. Prosecution happens to Phase 2 molesters. Thus, prosecution will not reduce suicides. It merely closes the barn door after the horse has escaped.
And, Rabbi Zvi Gluck tells us that 98.5% of these guys aren’t going to jail anyway. They won’t even be prosecuted. The barn door won’t be closed even after the horse is gone!
So, obviously, we need to put our efforts into doing what will help. It is imperative that every community have a vaad consisting of a Rav, a lawyer, various mental health professionals, and some laymen to oversee a rehabilitation program. It’s not a bad idea for this vaad to have a direct link with both secular social services and law enforcement. Many large communities have Jewish social welfare programs such as Amudim, Shalom Task Force and Project Relief in the East Coast and Magen Yeladim in California. There is no reason that these organizations cannot provide or oversee rehabilitative programs for offenders (if they don’t already do so). But if not, some other organization or community body must oversee them.
Once there is a vaad and a rehabilitation program, there is an alternative for Phase 2 molesters. Remember, most of them cannot or will not be prosecuted by the law enforcement anyhow. And now that there is an alternative, there is no excuse whatsoever to turn anybody straight over to the police.
I do not care what Rav Dovid Cohen, Shlita or 107 community Rabbanim say. I know what the Chofetz Chaim says along with the Rambam and Rav Moshe Feinstein, ZT”L.
So, here is my psak. And I can pasken this way even though I am not a Rav because this is זיל קרי בי רב :
Unless you are the victim and feel imminently threatened, every individual who suspects anybody of child abuse should promptly report them to the local vaad. The person must be immediately confronted by the vaad to determine if there are grounds to the suspicions.
If there are, he must be given the opportunity to cooperate with whatever rehabilitative measures are called for. Only if he is deemed to be non-cooperative and a continuing threat is there any toelles – and hetter to call in law enforcement.
This is what the Kol Koreh should be advocating. But it isn’t. And, for the life of me, I can’t figure out why not. I only spoke with two of the signatories and neither one could answer this question.
Who can?
אין חכמה ואין תבונה ואין עצה לנגד השם

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