Mesira XIII: Thinking Like a Jew

Author’s note – This post speaks candidly about some very mature topics. It is still a kosher l’mehadrin post. Nevertheless, I needed to purposely misspell some words so the post will not be blocked by content filters.

After all the book reports that I presented in my last post, I would like to present just one more.

This is on a book titled: One Above and Seven Below by Yechezkel Hirshman and it is truly one of my favorites. I have read it cover to cover numerous times and I highly recommend it.

One Above and Seven Below has a subtitle: A Consumer’s Guide to Orthodox Judaism from the Perspective of the Chareidim. In the Intro chapter, the author explains the subtitle and bemoans the fact that many mitzvah observant Jews are simply consumers to Judaism. This means they really don’t know much about it.

He goes on to list a number of hazards that a consumer of Judaism is prone to (page 32). Hazard #3 is as follows:

·         Hazard #3 - Vulnerability for allowing concepts (read: propaganda) from non-religious sources to influence one’s position on religious issues.

What he means is that consumerist Jews who live in Western societies tend to develop their philosophies based on non-Jewish Western secular values. To be more blunt, this is saying that many American mitzvah observant Jews think more like a secular American than they think like a Jew.

The best example is that Westernized Jewish women tend be influenced by today’s more egalitarian philosophies when it comes to marriage roles and inheritance. Because the secular laws call for no-fault divorce and equitable distribution, this is what she expects. Then she files for no-fault divorce in a secular court or she gets a yerusha that is contested. When the case reaches a beis din she is shocked to discover that there is no such thing as no-fault divorce in Shulchan Aruch and inheritance rules are not as equitable as she thought.

All this time she was thinking like an American woman but she wasn’t thinking like a Jew. This is a consumer.

The author uses the term “hazard” because these consumerist shortcomings are not merely handicaps but they are truly dangerous. They can lead to a lot of needless damage in the form of monetary damage, injury, and death. I hope to elaborate more in the next post.

The purpose of this post is to present מראה מקומות – source material – for the upcoming post. It is meant to describe how the Torah, Talmud, and Halacha define legal concepts. In some cases the Halachic definition is very close to the Western one, which certainly adds to the confusion. Minor discrepancies can make big differences. 

Thus, as a public service and as a (second) preamble to the coming post, I am honored to present a “glossary” of both legal terms and Halachic terms and to present the Western and/or Halachic meanings and sources where applicable.

Let’s begin.

Seksual Act (Giluy Arayos)

In the Western world this generally means an activity between any two (or more) creatures under the sun (or under the covers) where any part of one creature’s body comes into contact with any part of another creature’s body – usually in an intimate manner.

In the Torah world it is limited to an activity where the reproductive organ of a male mammal comes into contact with an orifice of another mammal (male or female) below the waste. At least one of the mammals must be a human being. If the act does not involve the reproductive organ of a male mammal, it is not a seksual act in the eyes of the Torah.

Lezbian Activity

Lezbian activity is not a form of giluy arayos since it does not involve a male mammal. It is not subject to any of the extreme penalties of giluy arayos. Nevertheless, according to Rambam (Issurei Biah 21:8), this is forbidden under the category of Maaseh Eretz Mitrzrayim and those who engage in it are subject to Makkos Mardus. Still, he says clearly that there is no explicit prohibition for this in the Torah. Likewise, a lezbian act does not make a woman unfit to marry a kohein.

Pedophile

From a lot of news items that I have read, there seems to be a lot of confusion as to what this means. Let’s go with an official definition (From Wikipedia):

Pedophilia or paedophilia is a psychiatric disorder in which an adult or older adolescent experiences a primary or exclusive seksual attraction to prepubescent children. Although girls typically begin the process of puberty at age 10 or 11, and boys at age 11 or 12, criteria for pedophilia extend the cut-off point for prepubescence to age 13.

This tells us that a pedophile is one who lusts after children using the biological definition (which just happens to be the Halachic definition, as well). Amazingly, one who lusts after young women who have already attained puberty such as 14 or 15 years old and beyond, who has all the bells and whistles, is not a pedophile. Make a note of this.

Homophile – Gay or Lezbian

Homophilia (homoseksuality or Same Sex Attraction – SSA) is a psychiatric disorder in which an individual experiences a primary or exclusive seksual attraction to a member of the same gender. Very often homophiles like to dress and act in ways that resemble the norms of the opposite gender. In a clinical sense, one can be homoseksual even without doing a homoseksual act. 

If a person is by preference heteroseksual but, due to supply and demand, only has access to members of the same gender – such as those cooped up in segregated schools, the military, or prison – and they take advantage of a member of their gender as a substitute, and they do not adopt the mannerisms of the opposite gender, they are not clinically homoseksual. Hence, one can do a homoseksual act even if one is not homoseksual. This is especially true regarding lezbian activity since, halachically, it is not even a seksual act. Thus, in many cases, a woman who engages in lezbian activity is not truly a lezbian. Make a note of this, too.

Child

There are three definitions of a child – Halachic, biological, and Western legal.

Halachic definition of a child – A person who has not yet reached puberty

Biological definition of a child – A person who has not yet reached puberty

Western legal definition of a child – A person who is not considered old enough to know that he is not a child. This is better known as the “age of consent”. This depends on what somebody needs to consent to and varies from state to state. In “red” states it’s younger and in “blue” states it is older.

Age of Consent

For all judicial matters, the Halachic age of consent is the same as the transition from childhood to puberty. This would be the age of 13 for a male and the age of 12 for a female. For Western standards, see above.

Rape - Oness

The original Western legal definition of rape is the insertion of an object or body part into the orifice of another person without their consent. More recently, the legal term “rape” has been replaced by a more vague term “seksual assault” or “deviant seksual assault”. Nowadays, since the Western concept of “sex” has been expanded to mean any type of intimate contact, it has evolved that any type of unwanted intimate contact is now called “rape”.

In Halacha, rape is a [genuine] seksual act committed by a male toward a female or another male without the latter’s consent. A female cannot rape anybody.

Another very important distinction is that when I just wrote that the Western definition is "insertion...without their consent", I meant just that. It is enough for an act to be without consent even if not by physical coercion to be called rape. The Torah's standard of "without consent" really means by force, either brute physical force or the threat of physical force. Absence of force or the threat of force is construed as consent. I discuss this more in the next section on Pitui.

Interestingly, the Halacha is only concerned about the seksual aspect of rape in regard to the penalties of giluy arayos and eligibility to marry a kohein. In terms of the “violence” of rape, it is looked upon exactly the same as any non-seksual physical assault. Just as one needs to compensate another for personal injury - pain, medical expenses, loss of employment, disgrace - so the rapist must compensate monetarily. Personal injury is a financial matter, not a criminal one. Halachically, there is no call for corporal punishment or incarceration or other extreme punishment for rape. 

Thus, surprisingly, rape that is not incestuous, homoseksual, or adulterous is not a Halachic felony at all. It is merely a monetary tort. (Ironically, if it is a Halachic felony and there is a judicial penalty for giluy arayos, this may supersede the civil requirement for compensation and the victim gets nothing!)  

The only outstanding issue is if one deflowers a young single woman (up to 12 ½ years) without her consent, he is subject to a special fine payable to her father for taking her virginity and, if the young woman so chooses, life imprisonment as her husband.

Statutory rape (Pitui)

Statutory rape (or “Indecent liberties with a minor/child” or “Carnal knowledge of a minor/child”) is a situation of a male carrying out a seksual act with a female between the ages of puberty and the legal age of consent even if she professed her consent. For this, we usually fall back to traditional definitions of “sex”. If it is not a full seksual act it is usually only called “molestation”.

Interestingly enough, this offense may actually be modeled after the Halachic precedent of pitui (Shmos 22:15). Pitui is the same case as related above of deflowering a young woman up to 12 ½ years, but it was with her consent. In this case, the male can avoid the fine if both parties agree to marriage. If either side does not want a marriage, the male must pay the fine to the father.

We see from here that according to Halacha, a girl who has reached puberty is fully capable of consent.  Thus, from the viewpoint of Halacha, we consider any girl above the age of 12 to know what she is doing. The Rambam (Hilchos Naara Besula 1:2) says that the burden of proof to claim that the event was non-consensual is upon the 12 year old girl unless it took place in a secluded area where nobody could hear if she would scream.

More than this, in case the girl was betrothed or married, even at this age she is liable for the death penalty if she is seduced by a man but not forced by pain of death (or fear of death).

Nashim Daatan Kalos (Kedushin 80b)

This is a Talmudic dictum which tells us that women are vulnerable to seduction at any age.

The ramification of this combined with what I wrote in the previous topic is that Halachically, a 25 year old woman cannot complain of being taken advantage of at the age of 15 by professing “I was young and vulnerable” because she is just as vulnerable at 25 as she is at 15 and she is just as responsible at 15 as she is when 25.

Victim

Halachically, a victim is somebody who suffered a loss, injury, trauma, or whatever, at the hands of another person and who did nothing of substance to contribute to the event.  If they contributed to any degree, it is questionable if they can be considered a victim. (Rashi Devarim 22:23)

I wrote about this at great length in this post.

Secondary or Expanded Liability

The Western world believes in Secondary or Expanded liability. The Torah world does not. Secondary liability means holding a person responsible for an offense he did not commit solely because he is somehow associated with the real offender.

Here is what I wrote in my post about the Markey bill dated May 5, 2009:

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 (Baba kamma 87a): 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.

Neemanus (Devarim 19:15)

Substantiating facts by the word of somebody who is qualified to establish facts. Halchically, this means an adult male eye witness who is fully objective. To have complete neemanus this testimony must be corroborated by a second such eye witness.

Nogeah B’Edus (Sanhedrin 23b and 34a)

Having a stake in the case. This means that one cannot be objective and has no level of neemanus.

Adam Karov Eitzel Atzmo (Sanhedrin 10a)

Talmudic terminology to indicate that no person is objective enough to testify on his own behalf. This especially applies to alleged victims of wrongdoing.

Raglayim L’davar (Sota 3a)

A cheap substitute for neemanus that beis din can rely upon in a situation where an issue cannot be ignored but genuine neemanus is unavailable.

Raglayim l’davar means there are credible known facts or axiomatic circumstances that give a claim “legs” (raglayim) of support. One example is mesiach lefi tumo – if an objective person makes a casual statement without being aware of the ramifications of such statement. Another example is when a man violates hilchos yichud with a woman and the woman claims there was seksual activity. There is a raglayim l’davar that there was indeed such activity but no neemanus for her to claim that it was not consensual because adam karov eitzel atzmo.

Note – Raglayim l’davar is usually only adequate for protective measures such as to invoke a restraining order (tzav meniya) but not for punitive measures. For this we would need neemanus.

Umdenah D’Muchach (Baba Basra 146b – Shu”A Ch”M 61:9)

Irrefutable circumstantial evidence. Such as a smoking gun with a ballistics match or a DNA match in a seksual assault case. Another basis for a raglayim l’davar.

Dan L’Kaf Zechus (B’Tzedek Tishpot – Vayikra 19:16)

In Pirkei Avos and other places in Shas we are advised to judge people favorably. We can mistakenly look at this to be just a commendable personality trait but not an actual obligation. The Chofetz Chaim doesn’t see it this way. He maintains (Hilchos Lashon Hara 3:7) that in any situation where we see, hear or read about a misdeed, if there is any room to be dan the event l’kaf zchus, we are obligated to do so. He repeats this incessantly throughout his writings. According to him, this is not optional.

At the judicial level, both the Halachic system and the Western system promote presumption of innocence. The burden of proof is always upon the plaintiff.

Malshinus (Vayikra 19:16)

The act of disclosing the wrongdoings of one person to another. Alternatively, the act of disclosing the whereabouts of a person or property of a person who is being sought after as a wrongdoer.

Mesira (Shu”A Ch’M 388)

The act of malshinus directed to an entity that does not employ Torah sanctioned methods of dealing with the alleged wrongdoing. This usually includes any non-Jewish entity and quite a few Jewish ones.

Rodef (Sanhedrin 73a)

One who poses a clear and present danger to another. If it is unclear whether he poses a present danger (safek rodef) it may also be justified to apply the rules of rodef if there is a raglayim l’davar (but proceed with caution). However, if one clearly does not pose any danger at all at present, he is not a rodef and not subject to the rules. This should be crystal clear.

Nezek - Financial Damage (Shu”A Ch”M 378:1)

An action that directly causes a monetary depreciation. In a typical case where a grown person inflicts such damage, he will be liable for full compensation in beis din.

Gram Nezek – Inadvertant Damage (Bava Kamma 55b)

A roundabout action that indirectly causes a monetary depreciation to another. Such as opening the door to somebody’s barn and allowing the horses to flee and be lost. The perpetrator did not do any direct harm to the horses so he cannot be considered a true mazik. In this case beis din cannot make him liable but he is considered to be fully liable in the Heavenly court.

There are varying degrees of Gram Nezek. The simple case is like the above example where the mazik was simply negligent and his wayward action did not inevitably have to result in a damage. It just came out that way. Here, he will still be liable in a Heavenly court. There are more extreme cases where the mazik intended for the result and/or the resulting damage were an inevitable cause and effect. For example if Reuven takes an object from Shimon and intentionally lays it on a railroad track just in time for the 4:38 Express. This is called Garmi and is obviously more serious. According to Rabi Meir (Baba Kamma 100a), this damage can be ruled for liability in a standard beis din. Even though we do not generally pasken like Rabi Meir, today, many batei din use their judicial license to obligate the perpetrator to pay in cases like this.

The lesson is that just because a beis din cannot prosecute such a case does not mean that the perpetrator is not a mazik and there is no penalty. There is a Heavenly penalty which, likely as not, may be more severe.

We will demonstrate that the concept of chayav bidei shamayim – liable in a Heavenly court – applies to a whole slew of infractions between man and man.

Chavala – Personal Injury (Baba Kamma 83b)

An action that causes personal injury to another. This is a form of nezek as described above but it is expanded that it includes liability for collateral losses such as pain and embarrassment, medical expenses, and lost wages due to disability.

Since this goes into the category of monetary damage, the same rules of Gram and Garmi automatically apply. Actually, the gemara (Baba Kamma 56a) even presents a case of one who suddenly frightens his friend and, as such, indirectly causes an injury. This is likewise liable in the heavenly court.

Retzicha – Murder (Breishis 9:6)

An action that directly causes the death of another. This is a capital crime subject to the death penalty.

Here, as well, the death penalty in a beis din can only be carried out if the act of murder was direct and immediate. (Besides all the other stipulations of two witnesses and being forewarned, etc.) But what about somebody who is merely a “Gram” rotzeach such as one who hires killers or one who sics a wild animal on his victim? The gemara tells us that he is exempt so the unassuming scholar may conclude that this is OK. This is not murder. Let’s do it.

For this reason, the Rambam (Rotzeach 2:2) goes to great lengths to tell us that one who murders through hire or agency or indirect methods is “a spiller of blood and carries the sin of murder and is liable [for death] in a heavenly court.” In the next Halacha he presents the scriptural sources for this claim. In the next Halacha he states that “for all these types of murderers who are not liable in beis din” the king is allowed to impose the death penalty on his own, and even Beis din can make a special deterent case and execute him. Finally, in the next Halacha he states that even if beis din is unable to impose a judicial execution, they should "beat them within inches of their lives, imprison them for long periods under harsh conditions, and to find other means of distressing them" to deter others.

Gonev Nefashos (Gonev ish u’mecharo) - Kidnapping and False Imprisonment (Shmos 21:16 - Devarim 24:7)

The Western definition of kidnapping is: Transporting a person against his will.  In Halacha this is called Gonev Nefashos and is the prime intent of the prohibition of Lo Tignov in the Ten Commandments. This is also a capital crime.

Technically speaking, for one to be liable for death in a standard beis din, there must be three infractions: (1) Kidnapping – transporting the person from his home and (2) making use of his labor even for a value less than a peruta and (3) selling him into bondage. One action or two without the last is not sufficient to incur the death penalty – in a standard court. But we have learned from Nezek and Rotzeach that the Heavenly court also convenes. Even though for this transgression it does not say anything explicitly in Rambam about indirect involvement, there is absolutely no reason to say that this is any different. Does it need to be spelled out in every kind of sin?

Thus, it is reasonable to say that one who hires others to kidnap a Jew and sell him into bondage is liable in a Heavenly court. Likewise, one who kidnaps a Jew and does not profit from him, though he won’t be liable for death in a standard beis din, he is definitely a miscreant and is liable to whatever Heaven feels is coming to him.

The question is: Is turning another Jew over for incarceration at the hands of non-Jews also like “selling” him? Is the sinful aspect of selling only when there is profit or is it transferring him to another hostile party even without profit? Is an intangible “gain” from turning him over (i.e., revenge or personal satisfaction) considered having profited?

These details are not expressed in Halacha but my personal feeling is that anybody who willfully collaborates with any entity to transport a Jew from his home and incarcerate him where this action is in no way warranted by any Halachic premise, is worthy of death at the hands of Heaven.

Lo Tasgir Eved – Extradition (Devarim 23:16)

At face value, this pasuk is telling us not to return a runaway slave to his non-Jewish owner. But the gemara in Gittin 45a takes this beyond face value.

There are numerous statements in Shas which tell us how important it is for a Jew to live in Eretz Yisroel. The most famous are: אסור לצאת מארץ ישראל לחוץ לארץ אלא ללמוד תורה ולישא אישה (Avoda Zara 13a, Rambam Melachim 5:9) and הכל מעלים לארץ ישראל ואין הכל מורידין (Kesubos 110b). The gemara in Gittin tells us how far this goes (also see Shu"A Y"D 267:81-85). It tells us that even a Canaani slave that rightfully belongs to an observant Jew who lives in chutz l’aretz, if he runs to Eretz Yisroel it is forbidden to return him to his rightful Jewish owner. He must be freed and allowed to stay and reimburse his owner.

We cannot extradite a Canaani slave to Chutz l’aretz.

Now, the only pasuk that we have on this issue is this one about a Canaani slave. What about a Jewish slave (eved ivri)?

Well, we have a rule in the Talmud (Baba Kamma 74a): B’chlal maatayim mana – 100 is included in 200. If the Torah tells us that even a slave who is only partially Jewish cannot be extradited to chutz L’aretz, it is certain that a slave that is fully Jewish cannot be extradited to chutz l’aretz. And how much more so, it goes without saying that a freeman (ben chorin) who is Jewish cannot be forcibly extradited outside of Eretz Yisroel for any unholy reason. See Choshen Mishpat 420:1 for a parallel "kal v'chomer".

Besides all this, it escapes me (pardon the pun) how any ben chorin can be forcibly extradited outside of Eretz Yisroel without transgressing Gonev Ish U’Mecharo (kidnapping) which is a capital crime.

The upshot is that to extradite a Jew from Eretz Yisroel to chutz l’aretz is not something I would like on my record. But what about instigating others to extradite somebody to Chutz l’aretz? Or orchestrating it indirectly?

We have learned that for Nizkei mammon and Chovel and Retzicha that indirect involvement (gramma) is liable in a Heavenly court. We have no reason to think that Gonev Nefashos or Lo Tasgir is any different.


Second Degree Mesira 

After we know all this, we learn something more about Mesira.  We see that there are different degrees of Mesira. The standard Mesira that the Shulchan Aruch (Choshen Mishpat 388) and Rambam (Hilchos Teshuva 3:12) rant about that is the worst infraction imaginable and the transgressor forfeits his share of Olam Haba is only a simple low-level moser. This is one who merely discloses to the authorities the wrongdoing or the whereabouts of the subject. Thereupon, the authorities take matters into their own hands. Automatic transmission.

However, there is also a more sophisticated heavy-duty moser. This is one who, in addition to informing on the subject, aids and abets the prosecution by pressing charges, testifying, supplying evidence, petitioning the authorities for extradition or an indictment, etc. Manual transmission.  For such a person, losing his share in Olam Haba is getting off way too easy.

The final topic that I need to define is:

אף על פי שחטא, ישראל הוא

This concept goes together with: The soul of a human lusts for illicit wealth – gezel - and forbidden relations – arayos (Makkos 23b) and Most people stumble in gezel and some people stumble in arayos and all people stumble in [avak] lashon hara (Baba Basra 165a).

How many times have we been sitting at a Shabbos table or at a simcha discussing the latest scandal (avak lashon hara) and somebody mutters: “How can frum people do such a thing?” Whereupon some self-righteous person always exclaims: “I’ll tell you how, they are simply not frum!”

This is very wrong. People have lusts which they cannot always control and the gemara tells us that these two infractions, gezel and arayos, stand out at the top of the list. Yet, even if one stumbles in some of the 365 lo taasehs, this does not mitigate his Jewishness one iota. Anybody who believes in the 13 Ikarei Emunah and keeps Shabbos, wears tallis and tefillin and keeps all of the positive mitzvos is as “frum” as anybody else. He (or she) must obviously deal with their demons and make restitution to the people they hurt or be segragted from the community but it cannot be said that their service to HKBH in unrelated areas is at all defective. There are "frum" ganavim and "frum" molesters and their infractions do not inhibit their rights and responsibilities to daven and learn and keep Shabbos and Yom tov and kosher, etc.

(Note – I once had it out with a Rav after his shul sent a letter to a member who had been suspected of past abuse. The letter said that he can only daven there if this and that and he stays in his seat and…he is not entitled to get any kibudim or aliyos. I asked this Rav, “What are you going to do when he has yahrtzeit?” And this Rav just looked at me with a puzzled look on his face as if to say “It didn’t occur to me that he still has to be Jewish.”)

Thus, if a community must take measures to deal with a confirmed miscreant and certainly with one who is only suspected, there is no justification whatsoever to employ a method that will inhibit him from continuing to keep Torah and mitzvos faithfully as long as it can be avoided. I can assure you that anybody who participates in an action that impedes another Jew from continuing his (or her) observance of Torah and mitzvos will have to answer for it under a very, very hot lamp.

I certainly hope that I have clarified the Torah outlook on these topics and perhaps, more Jewish consumers can learn how to think like a Jew. If so, we are now ready to tackle current events.

To be continued…