Mesira XVIII(a): A Concise Guide to the Laws of Mesira (1) - Mind Your “P”s and “C”s

Author’s note -- For the benefit of those who are not familiar with my Mesira series, I highly recommend to read the following two posts of the series: Child Abuse and Fire and Desperate Measures.

I have been writing about this sordid topic for well over a year and the insight that I have gleaned from it has enabled me to compose a concise set of guidelines - a kind of general summary.

I have wanted to write this post for some time but the subject seemed to have played itself out and gone dormant in the Jewish blogosphere and I had no desire to revive it. You might say that I needed to wait for a "trigger" to come back to it.

Well, the “trigger” came over Chanukah when several very popular blogs (HERE and HERE) that specialize in this issue embedded a video of a telecast given by Harav Shraga Feivel Zimmerman, Shlita of Gateshead. This telecast was made for the benefit of Kollel Beth HaTalmud in Melbourne, Australia (of all places). The telecast carries the title: “Halachic Obligation of Reporting Abuse to Authorities.”  

As the title implies, the telecast was focusing on the “Obligation”, i.e., the hetteirim, for Mesira that are supported within Halacha.  Rabbi Zimmerman spent most of the shiur emphasizing the tzad hetter - all of the sources and circumstances that mattir and even obligate one to report confirmed predators to secular authorities in cut and dried cases. He did not spend much time emphasizing the tzad issur - the risks and dangers, Halachic and otherwise, that are inherent when the circumstances do not meet the criteria of the sources – which I happen to believe are the majority of cases. As such, it was somewhat imbalanced.

So it seems that his lecture requires a little bit of balance. And since nobody else is doing it, I shall volunteer for the job. Trust me, there is no glamor in it (glamour, if you are from Gateshead or Melborne). It’s not a pretty job but…someone’s gotta do it.

I plan to discuss his telecast in detail in a future post, but for now, I think it is important to summarize the basic tenets of the Halachos of Mesira that were scattered throughout the previous 18 or so Mesira posts. I call the guide Mind your “P”s and “C”s. (You can probably substitute “Q”s for the “C”s since they basically sound the same.) This is because there are two categories.

P – Prerequisites (or Protective Options)

C – Conventions (or Chofetz Chaim)

Each category has three rules. The 3 “P”s and the 3 ”C”s. In this post, we will examine the “P” category. The “C” category will require a second post. Here we go:

P – Prerequisites (Protective Options):

Proximity – Publicity – Punishment

Before there can be any hetter to be moser, there must be a need to be moser. In other words, why should I want to be moser someone to secular authorities in the first place?

The short answer is that there is supposedly some sexual abuse going on and I want to put a stop to it. But why?

Because the victims are getting hurt. I want them to stop getting hurt. Or, in other words, I want to protect the actual or potential victims.

Okay, so our goal is protection. What do we need to do to accomplish this goal?

We need to take protective measures. But the forcefulness and degree of these protective measures depends on how serious the situation is. Thus, we can assign protective measures at three levels (in order):

1.   Proximity (Prevention)

2.   Publicity (Pirsum)

3.   Punishment (Police and Prison)

As you can probably guess, #3 is the ultimate protective measure that requires the Hetter Mesira. What is just as obvious, but most kanayim don’t want to admit, is that in many cases, measures #1 and/or #2 is sufficient to achieve the necessary protection. In these cases, there is no need to resort to measure #3 and, consequently, no excuse to actively facilitate it through mesira.

What are these measures? Let’s see.

Proximity

There are two types of proximity: Distance (location) and Time.

Distance - Abuse occurs when a predator and a victim are in the same location (at the same time). Hence, there can be a very simple method of preventing abuse.  Simply, see to it that the predator and the past or potential victim are not secluded in the same proximity (or location). I wrote about this in detail in my post about Child Abuse and Fire. In many cases, especially what I called Class A Child Abuse (Domestic) the abuser has a fixed domain for perpetrating the abuse such as a father or big brother in a home situation and likewise a Rebbe in a school or a counselor in a camp.

I wrote that in cases like these, there is a relatively simple remedy for protecting the victims which is to distance one party or the other from the hazardous domain. In the case of a Rebbe or counselor (or peeping Tom rabbi), it may be sufficient to relieve them from their post. In a domestic case involving young children, it will require removing either the abuser or the victim(s) from the home.

This is obviously not as simple as I am making it. Frequently, it requires the intervention of secular authorities (though not necessarily the police) to accomplish this separation. I would say that if this intervention is necessary and it is the sole purpose of contacting the authorities, this is not considered mesira because there is no intention of causing any harm to the alleged perpetrator. (See Tzitz Eliezer 19:52)

If the victims are teenage children or adults (spouse), it might be emotionally difficult to relocate but logistically not very hard to do.

Time – Here I am referring to a situation when one was abused in the past but is no longer in danger. Thus, time creates the necessary separation between the victim and the abuser. At least in the case of this victim, there is no current need for further protection.

But this is only from the perspective of the victim. From the side of the abuser, I had another factor in mind. To explain this, I must refer to a startling statistic stated by Rav Yehoshuah Berman of Maaneh Institute in his Headlines interview with Reb Dovid Lichtenstein Nov. 19, 2016 (47:15). He stated as an unconfirmed statistic that more than 60% of sexual abusers are minors with about 50% being aged 14 or younger!

I always suspected something along these lines (not as drastic) but this is the first time I heard it said from the mouth of a real askan. What it says is that most sexual abusers of young children are not pedophiles nor are they even sex addicts or dysfunctional. These are youngsters who are first coming to terms with their own sexuality or may have been freshly introduced to p0rnography and have no kosher outlets to deal with their new-found lusts. This is called “acting out” and from a legal standpoint it is called “sexual impropriety”. What it says is that, for many of them, it is only a matter of maturity and the opportunity for a healthy sexual relationship to straighten them out. It means they may actually grow out of their abusiveness and are highly curable.

This case won’t reduce the trauma of the victim and we still need to deal with the abuse but I hope we can all agree that measure #3 is not an option in these [60% of] cases.

Publicity

Now many of you will ask: we can fire the Rebbe or get the father or brother out of the house, but these folks still harbor the tendency to abuse others and will probably seek out other targets in other venues. Likewise, we cannot expect this to work in the case of full-grown Communal or Pedophilic abusers (what I called Class B Child Abuse).  How do we protect potential future victims?

Aside from the fact that there will never be a fool-proof method (see HERE), even  when we use the most extreme measures, but we all know that an ounce of prevention is better than a pound of cure. As long as we have identified a predator, it is relatively easy to protect potential victims by ensuring that they steer clear of the predator. Of course, this means letting as many people as possible know that this person is a risk, so it is often necessary to supplement measure #1 with a good dose of measure #2 - Publicity. This means maintaining sex offender registries and perhaps posting notices (dropping leaflets from helicopters?) that a confirmed predator is in the area.

Aside from alerting the public, this measure carries the added advantage that the predator is put on notice that he/she is being watched. People generally behave much better under these conditions.

Of course, this also must clear the hurdles of Lashon Harah and malshinus but it is certainly not malshinus at the level of mesira to non-Jews and as such, is not too difficult to permit.

Needless to say, we can include in this measure proper child safety education which has shown to be extremely effective.

Punishment (Police/Prison)

Aside from enforcing a separation or restraining order when an abuser refuses to comply with this requirement, as indicated earlier, there is only one reason to involve law enforcement in a case of sexual abuse: to “solve” things once and for all by getting the predator locked up.  

I think that in most cases, little to nothing is accomplished because the predator does not wind up getting locked up or it’s not for a significant amount of time. In so many cases of sexual abuse (as I am led to believe in the case of the older Kolko), the nature of the abuse did not reach true sexual contact and was merely “inappropriate touching” which, in the US, is usually 2^nd degree sexual abuse – a mere misdemeanor. Though the victims in cases like this are genuinely devastated (as one testified to Dovid Lichtenstein), the offense is not overly jailable. Lastly, jail is not likely to happen unless the victim is prepared to press charges (and actually does so), which opens the door to emotional and Halachic issues (לא יקום עד אחד) that go beyond simple day-to-day mesira.

Hence, resorting to this extreme measure does not offer much in terms of protection.

Of course, there are extreme cases where the predator is completely sociopathic, aggressive, and incurable and needs to be locked up. There are even cases of abusers who tell the authorities or their handlers that they need to be locked up. But from what I have been hearing and reading, this extreme is a very minute percentage of actual cases.  

The real reason people want to resort to this measure is to punish the predator and see that he pays for his actions. They use the need to protect victims as the justification for taking this step. If it is truly necessary to resort to this measure for protection – i.e., the previous two measures are not sufficient – then, and only then, can we explore the stipulations of mesira. If it is not necessary, then it is merely nekama couched as “bringing the predator to justice”.

In our generation we are not authorized to dan dinei knasos, administer corporal punishments, or mete out “justice”. And even in the “good old days”, this was for beis din to do, not the individual.

So before we consider mesira to the non-Jewish authorities, we have to use the 3 “P”s to determine if it the mesira is really called for. In the event that it is called for, we must familiarize ourselves with the 3 “C”s.

Stay tuned…