Tuesday, January 10, 2017

Mesira XVIII(b): A Concise Guide to the Laws of Mesira (2) - Mind Your “P”s and “C”s


Author’s note – This is the continuation of my previous post, so please read that one first. For the benefit of those who are not familiar with my Mesira series, I recommend to read the following posts of the series: Mesira vs. Lashon Hara, Adulterating the Truth and No Chochma, No Tevunah - 2nd Segment.



Welcome back, loyal readers. (If you are still reading this kind of posts, you are definitely a loyal reader).

In the first segment of the Concise Guide to the Laws of Mesira we discussed the Three “P”s. The Three “P”s are the prerequisites to being moser that pertain in particular to cases of physical or psychological abuse that predators perpetrate when they prey upon pure pious people. Not exclusively sexual, but that is what sells.

In this segment we will discuss the Three “C”s which are the necessary conventions for complaining to the secular authorities (i.e., cops) in any case of criminality: cash cleaning, counterfeiting, customs clearing, careless car cruising, as well as child molesting. As I stated in the last post, these conventions are based on the teachings of the Chofetz Chaim.

And the 3 “C”s are (in order):

  1. Confirmation
  2. Confrontation
  3. Common Sense

To understand these, let us recall what I wrote previously that just like an alley-cat and a lion are members of the feline (cat) family, only you wouldn’t want to meet a lion in an alley, so, too, are Mesira and household Lashon Hara both members of the malshinus family. It’s just that household Lashon Hara is what they say to your mother (or wife) and Mesira is what they say to the judge (or sherrif or IRS). Mesira is Lashon Hara on steroids.

We know from the Chofetz Chaim just how difficult it is to get a hetter for household Lashon Hara so it follows (kal v’chomer) that to get a hetter for a much more drastic activity – mesira – must be no less difficult.

Now, I wrote about all this in the second part of my post about No Chochma, No Tevunah. This post is merely a summary of that one. So we are going to go back there and retrieve the seven conditions that are imperative to allow any form of malshinus. But for our purposes, I will change the order a bit. The seven conditions are:

1.   The malshin must have his information first-hand.

2.   The malshin cannot infer conclusions beyond the first-hand information that he has.

3.   The malshin must first reproach (confront) the wrong-doer.

4.   There must be a constructive toelles.

5.   If there is another way to achieve this toelles that does not require malshinus, it is forbidden to be malshin.

6.   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).

7.   The malshin cannot embellish or exaggerate the severity of the offense.



For this discussion we will ignore the last condition (#7) because there is a distinction between this condition and the previous 6.  The first 6 conditions are conditions that must be met before one may actually perform the mesira (Setup). The last one is only in effect at the point of actually doing the mesira (Run Time). Notwithstanding, it will be exceedingly important if and when we discuss mandated reporting (not in this post).

So if we focus on the first 6 conditions and recognize them as mandatory stipulations, we can break them down into three categories:

Conditions 1 and 2                  > Confirmation

Condition 3                             > Confrontation

Conditions 4, 5, and 6              > Common Sense

And for this we can thank         > Chofetz Chaim



Now, at this point, it is all really self-explanatory and if you have read my previous posts, specifically those noted in the Author’s Note above, you probably already caught on. You can already drop this blog and go to your other emails or to FaceBook. But for new readers or those who want more details, I will elaborate as briefly as I can.



Confirmation

If anybody is wondering why I personally am such a zealot for these guidelines and have invested countless payless hours to write these posts in the face of some Rabbanim and poskim who are very permissive about this, it is because I have seen first-hand the damage that can be done by false accusations. These false accusations come about due to either malicious intent (see Victim Turned Predator)or faulty judgment due to jumping to conclusions, misevaluating the facts and/or believing unsubstantiated rumors and “reliable” information from unreliable sources (see Adulterating the Truth).

Many people are skeptical about this as if it can’t happen – where there is smoke there is fire. Those who think so should google “Wrongful convictions” and “Innocence Project” and I guarantee you, you won’t be bored.

Since I have seen the korbanos first-hand I will vehemently oppose any flawed psak that paves the way for more such korbanos.

The second kind of korban will be the well-meaning person who mahssers on a guiltless person and causes serious damage. According to Rambam and Shu”A, it will take an eternity for him/her to compensate.

So the Chofetz Chaim is telling us that if you plan to be moser, make sure you know unequivocally what was done and who did it. And the only way you can really know what happened and how is if you witnessed it personally. That’s condition #1.

For sure, it is inevitable that, in some cases, action must be taken despite having a first-hand witness. In this case, we may be forced to rely on raglayim l’davar, umdena d’mukchach, or a confession from the accused. But, if you didn’t see it, even if you are sure who “did it”, you cannot be sure exactly what he did. And the devil is in the details. So the Chofetz Chaim tells us, if you are not sure it happened this way or that way, you cannot assume that it did. That’s condition #2.





Confrontation

Confrontation serves a triple purpose. First and foremost, it gives the accused the opportunity to confirm that he is indeed a predator which is instrumental in meeting the Confirmation convention; or, conversely to contest the charges and possibly prove his innocence, thus saving the potential moser from a long stay in the Celestial Crockpot. Thus, it is in the best interest of you, the potential moser.

The second purpose is, in case there is no chance that he is innocent, to avoid the need to mahsser him to secular authorities by giving him the chance to come clean and comply with whatever non-punitive, rehabilitive measures are warranted by the community. Remember, we cannot be moser somebody unless there is no other alternative and you can never be sure there is no other alternative until you give them a chance. Thus it is in the best interest of the accused predator.

Lastly, confrontation is Hasra’ah, an official warning which is a Halachic imperative to taking any steps against a Jew that involve punitive loss, injury or death. This really encompasses the first two purposes: to distinguish between shogeg and mayzid (or total innocence, in some cases) – which was our first purpose; and to get him to desist from further criminal activity – which was our second purpose.

Aside from the fact that Chofetz Chaim lists this as condition #3, this is clearly stipulated in Rambam (Rotzeach 1:7), Shu”A (Ch”M 425:1 and 388:10), and for more recent psak, see IgM Ch”M 1:8.



Common Sense

This is the big one that I really wanted to discuss. But before I deal with it specifically, I want to give a brief preface.

In a long forgotten post I embedded and linked to an unpublished chapter meant for the never-published second volume of my book. It was called Strings Attached and you can see it HERE (only the link works).

This chapter told the story of the eruv controversy that took place in my home town before I made Aliyah. As in all controversies, there were cliques for and cliques against. I was a supporting member of the local Community Kollel which did not interfere but was predominantly non-supportive. I wrote that I was present when somebody asked the Rosh Kollel, who I referred to as Rabbi Zussman, to explain the non-supportive position of the Kollel. The wisdom of his explanation made a profound impact on me and I have reveled in it ever since (which is why I am applying it here).

He said that a Torahdika decision is not merely bare-bones Halacha. It really comprises three factors: Halachic, social, and practical. He went on to explain that the Halachic factor is as it sounds – can we depend that the eruv will meet our Halachic standards and be maintained that way? The social factor is: will it cause social strife in the community? Will it cause machlokes and frumma elitism and alienate neighbors one from another?

The practical factor is: assuming the first two factors get passing grades, is it a good idea? Will it enhance Shabbos or defile it? Why do we want to have an eruv? What do we gain with it and what do we lose? Is it going to help more people attend shul to daven or to eat at a Kiddush? Will it cause less observant people to play basketball and tennis in the park or go rollerblading? In short, is it a tikun or a kilkul?

The Kollel wasn’t convinced that any of the factors would receive passing grades. So they sat it out with an implied thumbs down.

So let’s get back to Mesira. Let’s assume we cleared Confirmation and Confrontation, the first three conditions of the Chofetz Chaim. But now we need to ask the same questions: is this mesira a good idea? What do we want it to accomplish? What is the toelles of being moser this person? What is going to happen if we are moser? Will we accomplish this toelles or not? What will this Mesira fix and what will it break? Is this our only option? Is this our best option? Will it fix something in the short run but make more problems in the long run?

And, in the case of sexual abuse, this takes us now right back to the Three “P”s of the previous post. Can we fix this with P #1? P #2?

These questions address conditions #4 and #5 of the Chofetz Chaim. And then he adds condition #6: Perhaps it is overkill? Perhaps it is beyond what is called for? Do we need to resort to P #3? Perhaps this measure will have a price to pay? And who is going to pay it?

Once we ask ourselves these questions, the answers we get may point us in a different direction. But we need to ask them and use a bit of common sense.

In my Chanuka post, I wrote about the Maapelim. The Maapelim were very contrite and meant well. They had pure intentions, but they had a tragic end.

Why?

Because the Aron Bris Hashem and Moshe were not with them. When this is the case, we are doomed.

This does not only apply to making Aliyah. It applies to every single thing that we do. I wrote in Chapter 6 of my book (page 170): Everything we do is either a fulfillment of Anochi Hashem or a transgression of Lo Yihiye Lecha. Everything!

So when we are facing something so serious as being moser a Jew to secular authorities, even a bad Jew, use a little common sense. Will this accomplish what we want it to accomplish? Is this a tikun or a kilkul? Is this daas Torah – Anochi Hashem, or is it atzas hayetzer – Lo Yihiye Lecha? Is the Aron Bris Hashem, Chofetz Chaim and Rav Moshe with you, or are they in another camp?

Speaking as one who has been oved all of the avoda zaras, please take my advice.

וגם כל העם הזה על מקומו יבא בשלום!


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