Monday, March 6, 2017

That Kind of Person

Author's note - This post is the final and keynote post of the 5 part series on Forbidden Marriages and Petzuah Daka. To see the entire series (in reverse chronological order), click HERE.

In our previous two posts I lamented about the paradoxical nature of the prohibition of petzuah daka/krus shafcha (PD/KS). The paradox says to us that it is easy to assume that the prohibition is in effect in cases where it really isn’t and to assume that it does not take effect in cases where it really does.

The fact that a PD/KS can only take effect on a person who was born and grew up in good working order carries its own silver lining. Normally, for a Torah prohibition, the rule is that we must be stringent in a borderline case – a safek d’oraisa. Fortunately, in the case of PD/KS, since we are inevitably dealing with a person who until now was unblemished, we can rule leniently in a questionable case because we can rely on a “chazaka” that his initial status is in effect until proven otherwise.  Thus, a common way of dealing with the problem today is to rely on lenient opinions to declare a safek or sfek-sfeka to preserve the initial kosher status of a Jew.

Nevertheless, there may indeed be cases where there is not much safek. If one is truly emasculated involving the loss of significant parts, there is not much to debate. Likewise, I still haven’t uncovered a way to permit somebody who underwent a vasectomy. As such, I suspect that when issues like this arise, either most of us do not realize how serious is the situation and remain unaware, or they do realize it and just go on regardless.

It goes without saying that we will never know the scope of this issue because this is not a condition which those affected by it are eager to share. We never know who among us are not playing with a full [lower] deck.

Ever since I learned this topic in Yevamos – for the first time – a few years back, the frightening enormity of this paradoxical Halacha has been weighing on my mind. But there was no reason for me to discuss it as a topic in my forum. That is, until about two weeks ago.

We subscribe to the weekly Mishpacha magazine. When I look at it, one of the features I find most interesting is Lifelines. Most often it is a story about how people from our circles deal with very challenging issues. And they don’t always have a happy ending. This feature reminds me of the monthly Drama in Real Life feature that regularly appeared in the Reader’s Digests that we read in our younger years.

In the February 15 issue of Mishpacha (Issue 648) the Lifelines feature was titled: That Kind of Person. The story is written in first hand and seems to cover a time span of about ten years.

The story is about a young newlywed woman, “Yael”, whose husband, “Tuli”, was hit by a car just a month after their wedding. The accident totally debilitated “Tuli” and forced him to take painkilling medications to which he eventually became addicted. Throughout this time, his devoted young wife stayed fully committed to her marriage. She stood by his side to look after him at the expense of which she needed to drop out of college and rely on teaching.

When she recognized the harmful effects of his painkiller addiction, she refused to become co-dependent and insisted he seek out some help. At this stage he turned very belligerent and walked out on her and the marriage.

Initially, he commissioned a non-Jewish lawyer and filed a suit in secular court demanding an astronomical sum of money for “emotional torment” as a condition to his giving her a get. Conventional wisdom was for Yael to secure a similar lawyer and countersue. She considered this option and decided that she is not going to play the games that Tuli is playing.

After stating what route she is not going to take, she “admitted” that she had no idea what route she was going to take.

About two days after this, she received an email that Tuli was suddenly dropping the lawsuit and was prepared to give a get with no extreme conditions. She later found out that Tuli’s doctor, a necessary component in Tuli’s case, had refused to play along with his shenanigans. The doctor was fully aware of how devoted Yael had been and he let Tuli know that if he testifies at all, it will be on her behalf and not his.  

In the closing paragraphs, she tells us that shortly thereafter, she met a wonderful widower, married him and has been blessed with several children and a happy, normal life. She also mentions that “her decision” not to wage an all-out court battle against Tuli worked to her advantage in this respect because her new husband only agreed to meet her because she acted so honorably.

On the surface, “Yael” wrote a very inspiring story about tragedy and loss, devotion and sacrifice, perseverance and self-respect, hashgacha pratis and Yad Hashem, and caps it all off with a happy ending that she is now happily married and can be proud to look herself in the mirror. It is a story about triumph over adversity.  A real feel-good story.

But I wasn’t feeling so good after this story.

Like almost every reader, I am very happy for Yael. I have no reason to doubt any part of her story. I think she is a true eishes chayil and has wonderful midos. I wish her and “Yosef” and her children tremendous shefa and nachas and only the best. Boruch Hashem, she came out of the tragedy a much better person.

“Tuli” didn’t.

According to my calculations, we are now about ten years after the accident. Yael, the heroine, is happily married with children, but where is Tuli, the villain?

Most of us are probably thinking, “Who cares?” “Didn’t you read the story? Can’t you see what kind of good-for-nothing scumbag Tuli is? She sacrificed everything for him and to preserve their marriage and he turned around and walked out on her. Then he went and skirted Beis Din, hired a non-Jewish lawyer and tried to extort her for her get by suing her for emotional torment – after everything he put her through!” “Let the wicked mamzer rot!”

Yes, I read the story.

I also know from the sentiments of the masses and the feedback I got from my Mesira series that most people, even frum people who are likely to read Mishpacha magazine, live in a TV-land illusion of good guys and bad guys. I wrote about this problem in the past.

The good guys wear white hats and are totally virtuous and the villains wear black hats and are totally irredeemably wicked. The hero[ine] is undoubtedly the victim, so therefore, the other person is automatically the aggressor. A story needs to be balanced with pure virtue versus pure evil so we can cheer at the triumph of good over evil. Most of us can’t look at a story and say, “the good guy was a victim but the bad guy was also a victim.” It diminishes the triumph of the good guy. Stories like that don’t win Pulitzer prizes (and don't get printed in magazines).

I have also spent enough time in Beis Din to understand that no two people tell a true story the same way. One person can describe an actual event and a second one can describe the same actual event, but if their interests differ, so do the details and accents of the story. And they will sound like two different stories.

Yes, I read the story that Yael wrote. And I believe every word of it. But I am most curious about how the story would look if it was written by Tuli. Would we even think it’s the same story?

I will return to this point later. For now, let’s stick with Yael’s story. As true as it is, I think she overdramatizes a few things, and this gives the reader a false impression.

What are the flaws?

Flaw number one –

In the closing paragraphs of the story she writes: “In hindsight, the decision not to wage an all-out court battle against Tuli worked in my advantage…”

I think she is taking too much credit for her “decision”. Yael did not decide not to wage an all-out court battle. She merely decided that she is not “that kind of person” and that she does not want to wage an all-out court battle. She decided that she is not going to rush to wage an all-out court battle. But she cannot claim that she decided not to wage an all-out court battle as long as she did not make any other active decision. She wrote that she had no idea what route she would take and was “mulling her options”.  But she did not make any decision because she didn’t have to.

The article is giving us the impression that Yael is being extraordinarily virtuous for deciding not to wage a battle because she is not “that kind of person”. But I don’t think it’s extraordinary. Most of us are not “that kind of person”. Most of us would avoid mud-slinging and court battles. I certainly would. Most of us in a similar situation would initially seek out other options. But few of us would find any.

What is extraordinary is the tremendous hashgacha pratis and siyatta d’shmaya that she had that within two days of her dilemma, a rational third party, the doctor, intervened to alert Tuli and his lawyer that their plan for extortion would be an uphill battle and is not worth pursuing – thus taking the decision making out of her hands. It is certainly in the merit of her virtues that she was zocheh to such siyatta d’shmaya – kol hakavod! – but it was, nonetheless, this siyatta d’shmaya that relieved her from the onus of having to make a real decision.

Sadly, in the real world, miracles like this do not happen to everybody. And many are those who face similar dilemmas where people attempt to take advantage of them and to extort large amounts of money. In most of these cases, there are no more than two options: (1) to protect one’s self by fighting back even though it inevitably means an all-out court battle or (2) to capitulate and forfeit the money, although it is unjustified blackmail, because one is not “that kind of person”.

Let us be clear that there is nothing “low” or dishonorable in taking option 1. And it can be done without playing dirty or mud-slinging. In Yael’s case, I think that if she would have countersued for an equal or greater amount for four years of uncompensated nursing services and for the value of her sacrificing her potential career as an accountant, she would have readily neutralized his suit. Option 2 may be the nobler or more chivalrous route if one could afford it, but if it leads to financial ruin, lifelong resentment, and whetting the appetite of the aggressor, it can be seen as a fruitless and foolhardy step.

In any case, Yael has not proved to us that she is not “that kind of person” because, fortunate for her, she was spared from really having to make a decision at all.

Flaw number two – and this is what inspired me to write this entire 5-part series of posts

Earlier in the article Yael writes: “Tuli was suing me for half a million dollars! Until he saw the money, I would not receive my get.” And a bit later her friend Mimi tells her, “You have to beat him at his own game…Otherwise, you will be left an agunah…” And later when she was talking to her mother, “I have to fight back! Otherwise, I will be an agunah for the rest of my life.”

Yael is telling us what was at stake. If she didn’t fight back or pay up she won't be given a get and would be left an agunah. This is what makes the story so dramatic.

I am not so certain about that. As I said at the end of the last post, with the sting comes the honey.

Even though I am not a “baki” in Shas and poskim, the little that I know I try to carry around with me and use it to look at the world through the eyes of Chazal. Hence, bear with me as we read the very first paragraphs of the story:

On his way to the supermarket, a car hit him, resulting in multiple internal injuries and a permanent limp.

And two paragraphs later:

Much as I would have liked to have a normal life and a familywhich the doctors said would be impossible because of the accident – I never seriously considered ending the marriage. I couldn’t in good conscience abandon the person who stood beside me under the chuppa…Hashem had handed me this nisayon, I wasn’t going to run away from it. Apparently, I told myself, my tafkid in this world was to care for my husband, not to raise children.

I would be surprised if anybody in the world who read this column was thinking what I was thinking. (I don’t think like most people.)

I am sure just about every reader was thinking, “Oh what a terrible tragedy - and right after their wedding! But look at this saintly wife. How selfless, how devoted, how valiant! Willing to sacrifice her entire future to preserve her marriage. Isn’t that amazing?”

This is what I was thinking on reflex along with everybody else. But not all of my thinking is reflexive; actually very little of it. Most of it is reflective. So this is what I was also thinking:

Hold on, what do we have here? “Multiple internal injuries”? The doctors say a normal life and family “would be impossible because of the accident”? My tafkid was to care for my husband and “not to raise children”?

H-m-m-m…”accident” plus “internal injuries” plus “impossible to have a family” equals petzuah daka, does it not?! And, if this is so, is she being selfless and valiant for staying with him? Perhaps she is actually forbidden to stay with him?!

Anybody else thought the same thing?

Now, in order to determine if he is truly a petzuah daka, we need a qualified posek to look into exactly what part[s] of the anatomy were injured. Understandably, the article was not that specific. Perhaps there was only some kind of paralysis that prevented him from being [re]productive but the organs were left intact, which could be permitted. But from the way she described it and wrote that the doctors called the situation “impossible”, it looks to me like an awfully qualified candidate for a petzuah daka.

Did the couple look into it and ask a shaila? Maybe. But I am guessing that it did not occur to either of them any more than it occurred to any readers beside me. Very few religious men and almost no religious women are really aware of this situation. It is also quite likely that for the four years of their marriage post-accident, nobody except the couple and perhaps their parents knew about the condition.

Now, let’s suppose that we are dealing with permanent debilitating injury to the external reproductive organs (petzuah daka) and that this case came before a posek. How would it be handled?

I would love to know. But based on the Pischei Teshuva, I think that all of the poskim in his time would tell them that they must divorce. Especially since they do not have any children as of yet so a breakup would not be so devastating. Unfortunately, I think that even if there were a house full of kids, the poskim of old would not allow them to remain together.

In today’s generation, if they were already an established family with children, I suspect the poskim might find some lenient opinion to latch on to on the basis that, if they don’t, the couple will probably refuse to divorce anyway so let’s provide some Halachic premise to call it muttar. But in a case of newlyweds fresh out of the yichud room, would they also be lenient? We are talking about a Level 3 petzuah daka here and even Rav Moshe Feinstein did not cite a hetter that can be applied to such a case.

But all this is if the couple emotionally bound to each other and wish to stay married. But what if either partner – primarily the bereft wife – wants out?

In this case, if the husband meets the universal criteria of a petzuah daka, there is no reason not to declare him a petzuah daka and a pasul kahal. As such, divorce is imperative and is mandated by the Torah. A divorce under these circumstances does not require the consent of the husband and is not subject to the status of a get meuseh – a forced get. It is supposed to be forced.

Along these lines I was thinking that perhaps Yael did have another option. She could have gone to Beis Din and been toveah a get on the grounds that Tuli is a petzuah daka and that a get is mandatory mi’d’oraisa. If the Beis din would check out the medical condition and agree to the petzuah daka status, all bets are off. If Tuli won’t give a get unconditionally, they can call Mendel Epstein and he can come over with his cattle prods and bang him all he wants in the most sensitive spot – except that the driver of the car got there first –  and, for once, he would be doing a big mitzvah!

Of course, thanks to Dr. Zaidberg, the story came to a much more peaceful ending and even this option, if valid, did not need to be put on the table. Yet we see here another irony and why it is important to be aware of the Halacha of petzuah daka - as much as it is devastating to the affected person, there are times when it can be somebody's salvation!

And this brings me to the third flaw in the story, the one I alluded to above.

I was very much disturbed that, in such a story that does so much to leave us with such a positive impression on Yael that she rightly is entitled to, it has to leave us with such a negative impression on Tuli.

Granted that he was Yael’s adversary in the story – the bad guy – and granted that he was acting like a “mamzer” when he skirted the hazmana to Beis Din and got a non-Jewish lawyer in on an extortion scheme; but he was not the true aggressor in this story. He was a victim along with Yael, and in my opinion, the bigger victim. Although she suffered much while living with him, she always had the option to shed the heavy horns and grow new ones. And, in fact, the circumstances forced her to exercise this option. But Tuli never had that option and never will. He cannot go his own way and have a family, and, if he really is a petzuah daka, according to Halacha, he cannot even have another [Jewish born] wife. He is a walking dead man.

Most of us would say that his behavior at the end of the marriage was inexcusable. He was totally kafui tov and biting the hand that was feeding him. He was a dead man digging his own grave. And he was cruel and vindictive to boot. A real mamzer. He must really be a petzuah daka because a petzuah daka is just like a mamzer, isn’t it?

But I am a reflective thinker and something is bothering me (as usual). Tuli’s behavior was not just inexcusable. It was beyond that. It was irrational. How is it possible that someone so intelligent and sensitive as Yael could marry someone so irrational; someone with such bad midos?

The most likely answer is that Tuli was not irrational and a man of bad midos when they married. It all happened after the accident. We know the accident left him in great pain and we also know that it left him in great despair. “I have no life…no kids, no job, no hope.”

I have a strong suspicion that painkillers were not the only meds that he was taking. I am guessing that he was taking anti-depressants as well. If this is so, then it is an important element of the story and Yael is not justified to leave it out. We all know that just as painkillers are notorious for being addictive, anti-depressants are notorious for altering moods and personalities. And not for the better.

Too many of my readers have no sympathy for molesters even if they were molested themselves. The minute they hurt somebody else, they have no more rights and we have the right if not the obligation to write them off. “Put them in jail and give them an automatic life sentence…” They are no longer human and they are no longer Jews. They are monsters – forbidden to join the kehal.  Likewise with our Tuli, once he morphed into a belligerent fiend, we can forget about him. He ceases to exist. Indeed, he may actually be a petzuah daka. Forbidden to join the kehal.

In my opinion Tuli and Yael are both victims. The true aggressor in this story is the one who drove the car that hit Tuli. But he doesn’t play much into the story, and rightly so, for he must have been sent by the Hand of G-d. He and his car were only an instrument.

It seems that HKBH did not approve of the marriage between Tuli and Yael. He did not want them to stay together. Perhaps Tuli was already a pasul kehal for whatever reason and HKBH had to reassert this status. We’ll never know. But what is clear is that Tuli suffered more at the beginning and is suffering more to this day. Evidently, both of them needed to carry out a tikun.

Yael is a good person but I can’t say that she is a hero. Tuli is a “bad” person but I can’t say that he is a villain. The only winner is HKBH as he shows His right hand – chessed and midas harachamim – to Yael, and His left hand – gevurah and midas hadin – to Tuli. But the story is a tragedy.

There is no happy ending.

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