Mesira VII: The Heter Meah Rabbanim - The Genie is Back

אַבְטַלְיוֹן אוֹמֵר: חֲכָמִים, הִזָּהֲרוּ בְּדִבְרֵיכֶם, שֶׁמָּא תָּחוּבוּ חוֹבַת גָּלוּת וְתִגְלוּ לִמְקוֹם מַיִם הָרָעִים, וְיִשְׁתּוּ הַתַּלְמִידִים הַבָּאִים אַחֲרֵיכֶם וְיָמוּתוּ, וְנִמְצָא שֵׁם שָׁמַיִם מִתְחַלֵּל.

I am a typical Torah-minded baal-habos. I barely read magazines or other publications. I only pay actual money for two publications: Mishpacha Magazine at the behest of my eishes chayil, and Zman Magazine at the behest of my kids. The Zman Magazine I almost never look at, but Mishpacha Magazine usually gets a 15 min to half hour going over.

I read like most of us do – check out the columns and features that I usually like, ignore those that I don’t usually like, and as for the articles, just flip through the pages to see what catches my attention. Oh, and skip all the ads. Usually.

Well, in a somewhat recent issue (Issue 574 Aug. 26, 2015), something indeed caught my eye that was not a column, feature, or article. It was a three page ad on pages 53-55, just beyond the midpoint staples. All three pages were full of names and signatures. Nothing too remarkable by itself. But it wasn’t by itself.  It was under two paragraphs of text which was itself under the banner headline:

Kol Koreh –Important Announcement

So, I thought, if it is an “Important Announcement” (and warrants three pages) I suppose I should read this “Important Announcement”. So I did. I did not like what I read.

Then I wondered, what kind of person would affix their name to this “Important Announcement”? So, I looked over the list of names. I did not like what I read.

Then I wondered who is sponsoring this “Important Announcement”? So I glanced at the bottom of the page. There was almost nothing there to read. Only an email address for additional rabbanim and a fax number with a Lakewood area code "for more information". I sent an email to the printed email address requesting more information. I did not present my self as a Rabbi (I am not a Rabbi). I received a reply that they do indeed need more money to place more ads but no additional information.

This ad was signed by approximately 107 prominent Rabbanim from numerous American communities. (Curiously, every single signature was in English.) I am familiar with many of the names on the list. Some I know personally, such as those from my pre-Aliya community and some wayback Yeshiva acquaintances. A few are well known Roshei Yeshiva. Others are names that I have heard here and there along life’s yellowbrick road. A few are real heavyweights. And, of course, two Rabbanim in California are cousins to my wife.

So I got some kind of impression by noting the names of those who signed it – and I got another kind of impression by noting the names of countless other Rabbanim that I know or have heard of…who didn’t sign it (including the Rav in California who is a cousin from my side). As an example, the 732 area code of the printed fax number indicates some kind of base in Lakewood. Yet, only two Rabbanim from all of Lakewood Ir Hakodesh signed the Kol Koreh. And these two are not local heavyweights. This augmented my wonderment about those who agreed to sign it even more.

So, I called up one of the signatories on the list. An old Yeshiva chum of mine and spoke with him. He was able to reassure me that the signatories were not as outlandish as I feared and made me feel a little better about the whole thing. Still, I can’t imagine that I would ever sign such a document even (or, especially) if I had semicha and ran a shul or yeshiva.

What bothers me?

A number of things struck me. I was  a bit disturbed at the relative anonymity of the sponsors of the notice. But chiefly, what struck me was the crudeness of the letter, how indiscriminate it is, how it caters to a prevalent presumption of guilt and how it misrepresents Halacha.

Let’s look at the text of the Kol Koreh (main text in green and I will colorize the trouble clauses):

Over 100 Rabonim Urge Communities: Report Child Abuse to Civil Authorities

We, the undersigned, affirm that any individual with firsthand knowledge or reasonable basis to suspect child abuse has a religious obligation to promptly notify the secular law enforcement of that information. These individuals have the experience, expertise and training to thoroughly and responsibly investigate the matter. Furthermore, those deemed "mandated reporters" under secular law must obey their State's reporting requirements.

Lives can be ruined or ended by unreported child abuse, as we are too often tragically reminded. The Torah's statement in Leviticus 19:16, "Do not stand by while your neighbor's blood is shed," obligates every member of the community to do all in one's power to prevent harm to others. In conclusion, every individual with firsthand knowledge or reasonable cause for suspicion of child abuse has a Torah obligation to promptly notify the proper civil authorities.

In a nutshell, approximately 107 Rabbanim are telling us – that is, “any individual” – that if you so much as “suspect” any degree of “child abuse” whatsoever, even without any “firsthand knowledge”, the Torah obligates you to go be moser to the police without any compunctions whatsoever. Don’t bother asking any shaylos. It’s a Torah mitzvah! And what’s the mitzvah?

לא תעמוד על דם רעיך

It doesn’t matter how closely or loosely you are connected to the parties involved. No need to verify if the “suspect” is truly guilty. No need to distinguish what "class" of abuse we are dealing with. And, likewise, no need to be discriminate if this degree of “abuse” (which you merely suspect – with reason, of course) qualifies as rodef achar haervah or not. No need to confront or forewarn (hatraah) the suspect. No need to consider any other less severe and possibly more effective course of action. No Siree! Just turn him right over to “law enforcement” for prosecution (oops, I mean "investigation") in the non-Jewish penal system because “These individuals have the experience, expertise and training to thoroughly and responsibly investigate the matter”. We can depend on these goyim to do the right thing!

Open season. Report first and ask questions later (if at all). איש כל הישר בעיניו יעשה!   Endorsed (in English) by over 100 American Rabbinic community leaders!  Oh, and the mitzvah of  לא תעמוד על דם רעיך  has now been officially upgraded to a matir issurim (a tremendous chiddush endorsed by 107 Rabbanim).

Is this really going to make our communities a better place?

I don’t really want to clash with over 100 musmachim (I am not a musmach) including superiors, friends and relatives. Let me be 100% clear that I fully acknowledge that, when it is absolutely necessary, the option to call in intervention from secular law enforcement can be exercised. I wrote it in my post in 2008 and I wrote it in my post in 2009 and repeated it throughout the previous six posts that I have posted here. There are significant teshuvos to this effect.

Hence, if the Kol Koreh was a responsible set of guidelines, there would be no need to protest it. But this indiscriminate text goes way beyond these boundaries. And when boundaries are crossed, bad things happen.

  כיון שניתן רשות למשחית להשחית, אינו מבחין בין צדיק לרשע.   

Now, I did call one the signatories and we had a little schmooze. He initially told me what I wanted to hear: He and many other signatories had issues with the looseness of the language of the statement and were reluctant to sign it as written. In fact, several of his colleagues refused to sign it for this very reason.

But then he told me what I didn’t want to hear: He was urged to sign it “as is” by some of the senior Rabbanim, including one Torah sage who did not sign it himself, and he, as being in a more junior position, could not refuse their entreaties. At a different point I asked him if he felt pressured or compelled to sign it, meaning – under any level of duress, and he said: Not at all. Despite that, at this point he intimated there was substantial “peer pressure” and he otherwise may not have signed it.

I asked him who is behind this entire project? I had assumed that if so many communities coast-to-coast were reached, it must have been spearheaded by a sizable organization. He told me, to my surprise, that this is basically due to the efforts of a single devoted individual.

It truly scares me to discover that a single person could exert enough influence to get over 100 community Rabbanim to sign a Kol Koreh with such indiscriminate, ambiguous, and consequently, hazardous language.

Getting more to the point, I asked my Rabbinic friend the key question: What is the purpose of this Kol Koreh? What is its objective?

He told me a number of things:

• The Rabbanim have been receiving a lot of criticism for being too lenient with predators.
• Victims or parents of victims are regularly discouraged from reporting the predators because it’s “lashon hara” or “mesira”.
• Too many predators are just getting away scot-free because they do not fear being turned over to the police.
• Apparently, these Rabbanim felt that if there were to be a united voice throughout the country that sanctions reporting predators to the police, these people will be more motivated to curb their activities and possibly to voluntarily apply for rehabilitation.

This is all very commendable. Yet, one question still stood out: Couldn’t we accomplish all this with a statement that reflects the Halachic complexity (and limits) of this issue instead of an indiscriminate, loosely worded text that is asking to be misused by the trigger-happy masses?

He did not offer to me a satisfactory answer to this question. He did say that this Kol Koreh is not intended for irresponsible people – i.e., those I called the “trigger-happy masses”. It is for level headed people who want to do the right thing and are reluctant or feel they are being stonewalled by the Rabbinic establishment.

He went on to say that the current situation is as hefker as the Wild West. Though he acknowledges the flaws in the language of the Kol Koreh, if it prevents one person from being molested, it would justify the Kol Koreh. Then he said that he was told that there have already been dividends; in one community a suspected child molester voluntarily turned himself into the Rav for rehabilitation on account of this Kol Koreh.

As he told me this I wondered: If there were any negative dividends, such as if somebody, on account of this Kol Koreh, was turned over to “law enforcement” when it was not really warranted (perhaps this Kol Koreh negates such a possibility since it states unequivocally that it is always warranted – even a Torah obligation) or if a case that could have been handled quietly and did not need public exposure received an inordinate amount of public exposure thus causing an unnecessary chillul Hashem on account of this Kol Koreh, would he be told about it as well?

In any case, this basically sums up the highlights of our conversation. He did not explain to me why it is not mesira or lashon hara – though, in fairness, I did not ask him to. I did learn the following:

• He (and presumably some of the others) are fully aware of the flaws and potential pitfalls in the document but agreed (or felt compelled) to sign it anyway.
   
• One reason for this Kol Koreh is a window dressing for the Rabbinic community to counter the shouts of complacency. כי יראתי את העם !
  
  
• Because the situation is reminiscent of the Wild West, the proper response is to just form a posse and head ‘em off at the pass. As of now, the “responsible” level headed people are being urged to behave like the “trigger-happy masses” with the blessings of 107 Rabbanim (plus Harav Dovid Cohen, Shlita).

• Oh, and about Lo Taamod, I gather that not one of the 107 Rabbanim looked up the gemara in Sanhedrin 73a before they signed it.

This friend is not the only person I spoke to (or, more accurately, listened to). I also heard a 13:52 minute interview with Harav Dovid Cohen. There were some things he said that I could agree with (like this Kol Koreh is totally unnecessary) but some things I found shocking. Primarily the contradiction between what he said at 1:23 to what he said at 7:28. Likewise, I read a statement from Harav Yechiel Perr which I found to be incomprehensible. I cannot elaborate on these in this post.

I understand that I have not been specific about the issues with the Kol Koreh. I basically covered them all in the 3 paragraphs above that begin with “In a nutshell…” And if you have been following my previous six posts, the issues should be self-explanatory. Perhaps I will elaborate in future posts.

The alarming thing is that the problem with the Kol Koreh is not with its basic message or intent. If somebody is proven to be an incorrigible child molester, let's get rid of him. It’s the broad brush it was painted with along with the anonymity of the sponsorship. The same Kol Koreh with the same basic intent could have been written properly and more openly and, thus, secure the dividends without the pitfalls; without misusing Halachic instruments for a seemingly virtuous cause. (And perhaps it would have merited many more signatures.)

But it wasn’t. And this spells out an agenda. And, just as with the Patriot Act where constitutional rights are trampled upon because that’s the way we get bad guys, but then they are no longer upheld for the general population; so too, when Halachic restrictions can be trampled upon for the purpose of routing out bad guys, then they can be trampled on in any situation – with you and me on the short end.

This is the Genie of Ochel Nefeshמתוך שהותרה, הותרה.

מתוך שהותרה כשברור שהוא רודף שא"א להצילו בדבר אחר, הותרה כשלא ברור ולא רודף

Mitoch she’hutra mesira as a last resort, hutra mesira as a first resort!

107 (108?) Rabbanim are supporting it as written! This is scary. The Genie has come to the chareidi community. And he will not go back into his bottle.

 I can tell you three Rabbanim who would never sign this Kol Koreh:

• Rambam (Hilch. Rotzeach 1:7)
  
  
• Chafetz Chaim (Shmiras Halashon 10:2)
  
  
• Harav Moshe Feinstein, ZT”L (Igros Moshe Ch”M 1:8)

But they are all in Olam HaEmes.

חבל על דאבדין ולא משתכחין

אַבְטַלְיוֹן אוֹמֵר: חֲכָמִים, הִזָּהֲרוּ בְּדִבְרֵיכֶם, שֶׁמָּא תָּחוּבוּ חוֹבַת גָּלוּת וְתִגְלוּ לִמְקוֹם מַיִם הָרָעִים, וְיִשְׁתּוּ הַתַּלְמִידִים הַבָּאִים אַחֲרֵיכֶם וְיָמוּתוּ, וְנִמְצָא שֵׁם שָׁמַיִם מִתְחַלֵּל.

Mesira VI: The Last Al Cheit and Child Abuse: A Guide for the Baffled and Confused

Author's note - I am not sure if I will have time to compose a meaningful post about the Kol Koreh before Yom Kippur or even before Sukkos. Meanwhile, I re-discovered a post I wrote on this subject seven years ago almost to the day. It explains why the chareidi world has not put out any such Kol Koreh as they did last month. This obviously raises the question as to why they felt it was a toelles to do so now.

The following is the exact post that was written in Sept. 2008. Nothing is changed except that I removed a few lines which referred to an activist organization which no longer exists. Bear in mind that the events mentioned transpired seven years ago. You can see the original post HERE.

Gmar Chasima tova --- Yechezkel 

Estardition: The Heart that is Baffled

: יככה י-ה-וה בשגעון ובעורון ובתמהון לבב

:על חטא שחטאנו לפניך בתמהון לבב

I have often held that Chapter 6 is the most essential chapter in my book (with the possible exception of any of the other 9 chapters). This is the chapter entitled "Getting to the Heart of the Matter" and it emphasizes the principle that, at any given moment, a person must either be situated in the One Above camp (Im Bechukosai Telechu) or in the Seven Below camp (V'Im Bechukosai Timasu) but there is no neutral middle ground (Yalkut Shimoni Vayikra 26:671).


The chapter is sub-divided into four parts:

• The Heart Beats...the Odds
• Pulling at the Heartstrings
• Home is Where the Heart(h) Is
• A Heart Filled with Anxiety

All these are meant to reflect some aspect of the pure Yiddishe heart that we pray for when we say:

...לב טהור ברא לי אלקים

When we understand the Heart of the Matter, the heart beats in perfect rhythm and so, any Jew who internalizes the true implications of Anochi Hashem and Lo Yihiyeh Lecha is a true "chareid l'dvar Hashem" because, after all, the "word of G-d" is Anochi Hashem and Lo Yihiyeh Lecha - which are the only actual words that Klal Yisrael heard from Hashem. This is what Moshe Rabenu called a "heart that can know and eyes that can see" (Devarim 29:3).

Unfortunately, things are not always perfect. When we have a "heart that can know and eyes that can see" (Devarim 29:3) we are in good shape. But when we "stray after our hearts and after our eyes" (Bamidbar 15:39), instead of a "heart that knows", we wind up with a "heart that is baffled" (Devarim 28:28) – Timhon Levav.

What does this mean?

There is no question that the chareidim are the most sinful segment of the Jewish people. How do I know?

Because the chareidim invest the most time, concentration, and emotion in saying the vidui on Yom Kippur. If we say the "al cheit"s with the most ferver, it goes without saying that we must have committed the worst sins.

Of the 44 alphabetically arranged "al cheit"s, the final one, the grand coda of our confessions is: על חטא שחטאנו לפניך בתמהון לבב
For transgressions that we have committed in Timhon levav.

What is Timhon levav?*

The first pasuk of the Torah says that G-d created the heavens and the earth. This means to say that if we were standing around to see it, there would be no doubt that G-d created it all. There was a great Light that it all came from and it was unequivocally clear.

The second pasuk changes all that. All of a sudden, there is tohu va'vohu - wonderment and emptiness - and darkness on the earth. G-d has concealed the great Light. The observer can no longer unequivocally perceive G-d, and so there is tohu - wonderment - the observer is baffled. He cannot make out what he is seeing. So says Rashi: Tohu - An expression of wonder and desolation...estardition in vernacular (Old French).

When one cannot see G-d, he is baffled and confused.

Fast forward to Devarim 28:28: G-d will strike you with madness, blindness, and timhon levav - confusion.

Says Rashi: Timhon levav - a sealed heart...estardition in vernacular.

When we do not think rationally (shigaon - madness), when we do not see clearly (ivaron - blindness), then our hearts are sealed and we are confused and baffled.

As a result of not being committed to Torah and mitzvos, we get stricken with a sealed heart - a heart that is baffled and confused. And it comes together with being irrational and blind.

The Netziv in Haamek Davar (Devarim 28:28) says it with a bit more spice:

Shigaon (Madness) – Kilkul hadaas – Breakdown of sanity – Being out of touch with reality so that one cannot even comprehend a potential threat from hostile entities. This will apply to the general population. (And to the leftists, the Prime Minister, and the entire cabinet.)

Ivaron (Blindness) – A small segment of the population (and a few right wing members of Knesset) are not insane and they can comprehend a threatening situation if they see it. Still, they will be blind to what is going on and not see it.

Timhon Levav – A smaller subset (the Dattim) that will see the danger and comprehend it. Still, their hearts will be sealed and become like stone because they are powerless to do anything about it.

It looks to me that these principles can apply to community politics, as well.

The headlines of some of the most popular blogs (Hirhurim, Rabbi Horowitz, Emes V'Emunah, Cross-Currents) as well as some popular Jewish publications have been focusing of late on issues of sexual impropriety within the greater Orthodox community. And I have been mulling over whether I should address the subject.

On the one hand, I don't really think that I should. Some of the reasons:

• I am not an expert in this topic, so what is my opinion worth?
• I have barely 30 regular readers (AFIK), most of who are related to me, so I am basically preaching to empty seats.
• It's a messy issue, so why get involved?
• I can't win. If I go with the flow and join the wolf-pack, I am not contributing anything. If I take a more excusatory position, I become a naive apologist (עורון ) who is out of touch with reality (שגעון)and lose every ounce of credibility (תמהון לבב).

On the plus side, it is a very hot topic and how can I pass up an[other] opportunity to earn intercyber notoriety and condemnation? (I'm on a roll!)

But, seriously, I cannot be silent because it is the Torah world that is on trial. The term chareidi, as I write profusely, is just a battle-worn synonym for the Torah community and my [self-appointed] task is to put Torah ideals in proper perspective so that people can see them for their true value and not get carried away by sensationalist issues that hog the spotlight.

That said, I might say that the best reason for not discussing this topic is that I don't see this as a chareidi issue. In my book project, I define a chareidi as one who opens up Chumash and Rashi and follows what it says. There is nothing in chareidi ideology that promotes sex abuse.

Sexual predators pop up all the time. And they always will. Rambam told us this over 800 years ago in Mishna Torah Hilchos Issurei Biah 22:19:

And the sages have said that larceny and promiscuity are things that a man's life-spirit craves and covets. And there is no community to be found at any time period that will not have people who are loose in immorality and forbidden relations...

It was going on then and it goes on now. Things haven't changed that much.

We know that the chareidi perpetrators always grab the headlines. In one sense it is actually a compliment that a chareidi miscreant is newsworthy – a man bites dog phenomenon. But, compliments aside, when it occurs in a Torah environment (a school, yeshiva, camp, or schul) and is perpetrated by a religious role model – be it a Rav or Mechanech, a Kiruv professional, Kosher butcher, or frum therapist – the Chillul Hashem is augmented and the innocence of a Torahdika upbringing is shattered.

Despite this, this is not a chareidi issue, it's a human society issue and a community issue. It exists in every community. In a chareidi community, it may involve some chareidim. In a non-chareidi community it involves non-chareidim. In a mixed community, there will be all types. Indeed, based on the lists of "offenders" that appear on the State of NY Sex Offender Registry, a chareidi molester is quite the exception rather than the rule.

It is unfortunate that schools and camps (and therapists' offices) are fertile breeding grounds for aspiring sex fiends and some of the few high profile (alleged) offenders within our own have gravitated to these posts. Still, the scant research I have done indicates that there is at least as much hanky-panky going on at home.

It seems that many of the more level headed pundits are quite aware of all this. It doesn't pay to blame the chareidim that, say, 3 people out of 1000 may be a sex offender if that's an unavoidable fact of life (note Rambam referenced earlier) and more so if in the general population, let's say, it's 5 out of 1000 (I am making up these statistics up but I believe the point is valid).

And so, the chareidi bashing has to be shifted into the management phase. How can the chareidi establishment let the known offenders off the hook?

Admittedly, it is difficult to offer a clear answer. But I will say this:

It's not because they want to.

There seems to be an inordinate amount of criticism leveled at the chareidi leaders of the various communities for not dealing with the problem. Firstly, I see in this a silver lining – the chareidim are looked up to as the community leaders. As such, these messes invariably fall upon their shoulders. But, let's be clear. Rabbanim do not create or encourage miscreants. Even the Rabbanim that have appeared to be the most negligent and inept and may have actually been protective did not ask for this headache.

Every time a new (or recurring) situation arises, people run to the Rabbanim and beseech them to “do something”. The first question is: do what?

Before anything else, the allegations need to be substantiated. Many victims and their supporters do not understand that barring a confession from the offender, they need to prove the offense. Just because they say so, or have anonymous “reliable” information, or “everybody knows it’s so” doesn’t make it so. Rabbanim are asked to take action against people based on unproven accusations. They will be in no hurry to do so.

Even when there is a confession or clear evidence, there are severe limitations as to available options. Obviously, one can report the offense to the police. That’s cool, you don’t even need a Rav for that (except, perhaps, to give the OK). Problem is, the police have the same problem as the Rav. The victim must press charges. No victims, no case.

If the offender has a position in chinuch or other community service, he can be removed from his post. This actually is frequently done except it often is accompanied by warnings, probations, negotiated clemencies and “pardons” which have traditionally rendered the whole situation ineffective. If he has a community business, you can boycott the business – if it is expendable.

The key problem is that "doing something" all too often comes at a price. And for anything that has a price, people need to do cost/benefit analyses. Exposing and punishing the offender almost always comes with collateral damage. The prime subjects are the perpetrator’s immediate family who may be enduring tremendous turmoil even without public exposure and they certainly do not need, nor deserve any more. Moreover, there are the victims themselves who stand to lose from public exposure. And in the ugliest cases, the offenders and the victims are related to each other. The Rabbanim are responsible for everyone. In many cases, for every person pressuring the Rav to “take action’ there are 10 people pressing the Rav to keep quiet.

Sof davar, we have noted a few legitimate reasons that the Rabanim do not take an active role: lack of effective options, concern for victims and other korbanos, lack of reliable information, and we can add to this threats and intimidation. Undoubtedly, leaders have been known to look the other way for less than legitimate reasons, as well: weakness of character or negligence, intentional foot-dragging (ignore it and it goes away), bribery, or complicity. But, again, the fact that they do not necessarily solve the problem, or even prolong it in some cases, does not make them responsible for its existence.

None of this should astound any of us. Except that the events of the past few weeks are a new twist. Evidently, Assemblyman Dov Hikind of Brooklyn, New York wants to establish a layman's "task force" to deal with the issue. I am not clear as to what is the prime task of the task force. I assume that it will be a repository to lodge complaints and a resource center for assistance for victims. It's a clearinghouse where people can call up and kvetch about an offense or an offender and can listen to somebody tell him, "Sure, we've gotten complaints from other people about this fellow. We will register the complaint. You are welcome to call the police and press charges (you'll be the first one) and in the meantime, call this number for free counseling. Have a nice day and remember elections are coming up…."

Anyway, it sounds like a positive thing. What harm can it do? However, it's been reported that surreptitious forces of evil are trying to sabotage the task force and have intimidated a respected and qualified chareidi psychologist to the point of abdication.

Who did it and why? Were they "chareidi"?

I would venture to say that they are certainly not the first degree "One Above" chareidim that I define in my book as the adherents of "Im Bechukosai Telechu". It doesn't matter how they dress, what they don't eat or what their mama lashon is. And if one is not in the "One Above" camp, he is by default in the "Seven Below" camp. When we venture into the Seven Below camp, HKBH pulls away from us and leaves us to the forces of keri. We cannot see Hashem anymore and our hearts become sealed and baffled. Estardition in the vernacular. We will have shigaon - meshugaim who perpetrate this madness, we will have ivaron – blind people who do not acknowledge it. And the rest of us will be stricken with timhon levav - baffled and confused because we don't know what to do about it. Estardition.
May Hashem reveal Himself b'karov and save us from our estardition.

:ו ומל יהוה אלהיך את לבבך ואת לבב זרעך לאהבה את יהוה אלהיך בכל לבבך ובכל נפשך למען חייך
*Credit – Rabbi Doniel Rubin and Rav Shlomo Volba in Alei Shur II, Fourth Gate Chapter1

Mesira V: Mesira vs. Lashon Hara – What’s at Stake

Case 1 - The year is 2015 in Manhattan, NY. Moshe is employed by Finkelstein, a decent Jewish boss. But Moshe isn’t the best of workers. He slacks off a lot and abuses his computer privileges and his productivity is nothing to be admired. Yankel, who works long and hard, gets a bit irritated with Moshe and feels that Mr. Finkelstein should be aware of Moshe’s antics. So he informs Mr. Finkelstein about Moshe and Moshe gets fired or passed up for a raise.

How would we view the actions of Yankel?

I think most of us would agree that this is a classic case of Lashon Hara.

Case 2 - The year is 1941 in Mauthausen Concentration Camp. Moshe is assigned to quarry work under SS Guard Obersturmführer Frankenstein, a diabolical Nazi monster. But Moshe isn’t the best of slave workers. He slacks off a lot and hides whenever he can and his productivity is nothing to be admired. Yankel, who works long and hard, gets a bit jealous of Moshe and feels that Obersturmführer Frankenstein should be aware of Moshe’s antics. So he informs Obersturmführer Frankenstein about Moshe and Moshe is never seen again.

How would we view the actions of Yankel?

I think most of us would agree that this is a classic case of Mesira.

Wow, what a difference 74 years can make!

But, really, what is the difference? Why would we call the first case simple Lashon Hara but the second case we call Mesira? In both cases, Yankel did exactly the same thing! So what is the difference?

Well, there are some obvious differences. In the 2015 case the informee was a nice Jewish fellow. In the 1941 case the informee was a murderous gentile. Also, in the 2015 case, Moshe was being paid fair money to do the job he wasn’t doing. In the 1941 case, he was forced into unpaid slave labor.

But still, Yankel did the exact same thing in both scenarios. In both scenarios he was still Halachically improper, even in 2015. Yet we give these two scenarios different labels: One we call Lashon Hara and one we call Mesira. So what is really the difference?

The answer is: There really is no difference - except for the stakes.

What happened to the Moshe of 2015 was a slap in the wrist compared to what became of the Moshe of 1941. When the repercussions are exceedingly severe and disastrous, so is the infraction of the informer. And so, in a case where the stakes are high and are subjected to the graces of people who have no yiras shamayim, the Lashon Hara becomes Mesira.

Now, what happens in a middle-of-the-road case? The stakes are severe but not that high and are subjected to the graces of people who may have some yiras shamayim and are not monstrously harsh. Is this also Mesira?

Depends who you ask.

According to the Aruch Hashulchan, it may not be.

My distinguished friend, Reb K. showed me the Aruch HaShulchan in Choshen Mishpat 388:7. The Aruch HaShulchan says that “All who know history are aware that in previous times in distant lands a man had no security …from bandits and land grabbers and even today in the African countries this piracy is rampant…so it is with appreciation that we mention the European Kings and especially the Czarist regimes and the British kings that have spread their sovereign wings upon the distant lands (i.e., colonized) so that every man can be secure from such banditry …and on this revolves all of the laws of Moser and malshin in Shas and poskim …for one who is moser or malshin a person to one of these types of bandits is certainly considered a rodef and it is permissible to save the victim with the life of the moser.”

This passage is very hard to comprehend on numerous points.

Firstly, after investing a lot of ink to make a distinction between the bad old days and his times, he concludes by telling us when a moser is a rodef but does not really elaborate on when one is not. He praises contemporary Europe but falls short of exonerating them explicitly.

He goes so far as to name two of the praiseworthy regimes – Russia and Britiain, and I am scratching my head. The Aruch HaShulchan (Harav Hagaon Yechiel Michel Epstein, ZT”L) lived from 1829-1908. I must say that although he was a gaon in Halacha, I think for his history lessons he had a very short memory.

He praises Britain. Britain? Isn’t this the country that was known for over 200 capital offenses through the 18^th century? They were hanging pickpockets and shoplifters until 1832 – three years after he was born. It took until 1868 before they abolished hanging for all petty crimes and just left murder and treason. This means that at least for some of his lifetime one could snitch on a pickpocket and he would swing.

And Russia? They had the Cantonist army laws until 1857 – 28 years after his birth. Just wiggle your finger at an 8 year old Jewish kid and the kid gets 25 to 30 years in Gehinnom. The Gedolei Torah of Russia dealt with no other subject than mesira. Mesira to who? To those thoughtful Russians!

So perhaps, because he first wrote Aruch HaShulchan in the 1880s and these wonderful countries had done teshuva for a whopping 25 years, they are now the champions of Human rights. But he wasn’t a prophet. We must note that the Aruch HaShulchan literally lived (in Lithuania) during the golden age of Western Europe and the “renaissance” of Czarist Russia. He passed away in 1908, 6 years before the ravages of WWI and 9 years before the Bolshevik revolution that brought about Lenin and Stalin and the purges and the gulags and Siberia and the KGB (and NKVD). This was also 9 years before the British Mandatory government where, despite all their previous teshuva, they went hanging any Jew who held a gun. Just tell the Brits that Dov over there is packing heat and Dov goes swinging (he actually did but I don't think  it's because anybody snitched on him). Twelve others went swinging, too. And then came the good ol' Gestapo. 

The Aruch HaShulchan missed all of the fun!

And throughout all of this, he does not even consider his brethren in Eretz HaKodesh who, for his entire lifetime, lived under the domination of the ultra-corrupt Turks. 

So I am not sure if Harav Epstein, ZT”L was here today and had a broader view of world history, that, in hindsight, he would write the same thing. In fact, I have a very strong feeling that even when he wrote it, he was playing for the audience. 

But, what’s most important, when he suggests a distinction that the laws of moser and malshin revolve around this, what laws does he mean? What are the laws of mesira?  Does he mean that it’s not mesira and it’s muttar l’chatchila? Is he saying that if Yankel snitches to the nice Humanistic Russians or Brits, that this is more lenient than him snitching to Mr. Finkelstein? All right, we know the Aruch HaShulchan did not always agree with the Chofetz Chaim on every psak in Orach Chaim but did he differ with him about anything in Shmiras Halashon? Has anybody differed with the Chofetz Chaim on Shmiras Halashon?

So we need to understand what mesira is. Mesira is an enhanced version of Lashon Hara. It is Lashon Hara with higher stakes.

Because of the higher stakes, there are more severe repercussions to mesira. The Shulchan Aruch mentions three:

• The moser has no portion in the World to Come. Truthfully, there is no Hilchos Lashon Hara in Shulchan Aruch, only in Rambam Hilchos Deos (Chapter 7.) The Rambam writes there that one who speaks Lashon Hara likewise has no portion in Olam Haba. Nevertheless, the Rambam implies that this only applies to a “baal Lashon Hara” a repeat offender. The implication of the Shu”A (and Rambam) by a moser, is that one good mesira is all it takes.
  
  
• The moser is considered a rodef and may be preemptively killed. We have no Halacha allowing us to kill a baal Lashon Hara.
  
  
• The moser must, by force of Beis Din, reimburse the victim for whatever financial losses he incurred due to the mesira. This, by the way, is the intent of writing these Halachos in Choshen Mishpat. In any case, we have no such Halacha by Lashon Hara. In our 2015 scenario, there is no clear Halacha that Yankel will need to reimburse Moshe for his financial losses (though it would probably be a good idea for him to do so.)

So, basically, if Lashon Hara is a bowl of forbidden vanilla ice cream, Mesira is the chocolate syrup, whipped cream and cherry. It is plain vanilla Lashon Hara plus.  

Which means that even when a case of being Malshin (an umbrella term which more or less encompasses all levels of informing on somebody) doesn’t make the ugly grade of mesira, it is still never less than plain vanilla Lashon Hara. For, why should it be anything less?

And so, if it is not classified as mesira it may not be subject to the scary repercussions of losing Olam Haba, forfeiting one’s right to live, or having to reimburse the victim; but in what way does it become muttar? It's not less than Lashon Hara and is Lashon Hara ever muttar?

Well, the answer is: Yes, sometimes it is. We know that there are times when it is permitted to speak Lashon Hara and the prevailing condition is that it is a “toelles” meaning for the greater good.

But this is not the only condition. This is one of seven conditions. And the Chofetz Chaim tells us that all seven conditions must be met in order to permit Lashon Hara.

And so, informing on somebody can run a spectrum. At the worst extreme it is mesira. At the meekest extreme it is “merely” Lashon Hara. But it is never less.

And so the seven conditions always apply. Always.

Something to think about over Rosh HaShannah. After Rosh HaShannah we can finally examine the Heter Meah Rabbanim – the Kol Koreh of sweettorah.

May we all be inscribed in the book of life.

לשנה טובה תכתבו ותחתמו לאלתר לחיים טובים ולשלום.

תהא שנת עושר ואושר

Mesira IV: Child Abuse and Fire

I just spent three posts talking about Jewish policemen, traffic laws and fines all under the heading of “Mesira”. I am sure most readers realize that this isn’t really the main topic I wanted to write about. I as much as said so in the first post which I called a “preamble”.

Yet it took me three lengthy posts to adequately cover this “preamble”. I was hoping I was ready to move on to the main subject which – if you haven’t figured it out – is the hot topic of mesira vis a vis child abuse.

Now, I haven’t spoken about it much in the past for a number of reasons.

• It’s a very touchy subject
  
  
• It’s been dealt with to death by other bloggers (so what does anybody need me for?)
  
  
• I am not a professional in the field – although I certainly know enough to write what I plan to write
  
  
• By itself, it’s not really a chareidi issue – it’s a social issue and a community issue. There are chareidi pedophiles and non-chareidi pedophiles. There are not any more per-capita pedophiles in the chareidi world than in the non-chareidi world. Perhaps there are less. There is nothing in chareidi hashkafa that sanctions pedophilia or that will cause somebody to become one.

The only real issue is: how does the chareidi world deal with the issue?

In this vein, I did write about it over six years ago in my post about The Genie of Ochel Nefesh (well worth looking at). My purpose in that post was to help people understand the hashkafic premise that would lead Agudas Yisroel to oppose the proposed Markey Bill. Why should they oppose any bill intended to alleviate the plight of se%ual abuse survivors?  The answer is that the Markey Bill was slightly off the Mark(ey).

That was the only time I previously dealt with this issue. So, why bring it up now?

Well, what has triggered this entire thread of posts is the Kol Koreh that was printed in the Aug. 26 issue of Mishpacha Magazine. If you haven’t seen this Kol Koreh yet and don’t know what I am referring to, be patient. I will (bl"n) provide a copy when I discuss it, but I cannot really go into it yet. There needs to be at least one more preamble post.

I was hoping I was ready to write the main post – the Big one – about the Kol Koreh. I wanted to discuss what is right with it – which led 107 Rabbanim to sign it; and what is wrong with it – which is probably why a far greater number of Rabbanim did not sign it.

If I only wanted to write what is right about it, it wouldn’t be such a long post. But, since I also want to write what is wrong with it, it would by itself become an exceedingly long post. And I need to at least try to cut my posts down to bite-size pieces. This would be impossible if I don’t invest at least one more post on some more “basics”. After investing three long posts on examining the basics of mesira, if I intend to write a post about mesira vis a vis child abuse, we must likewise examine the basics of child abuse.

We will discuss the following topics;

• Classes of child abuse
• Degrees of child abuse
• Courses of Action for Dealing with child abuse

Ready? Here goes:

Classes of Child Abuse

Child Abuse is like fire. A very destructive element. And fire is fire. The best way to deal with fire is to extinguish it. Like to douse it with water. So, any time you see a fire the best thing to do is douse it with lots of water, right?

Not always. Anybody who knows anything about fire knows that there are several classes of fires. A Class A fire is ordinary combustibles and can be safely extinguished with water. But a Class B/C fire (Flammable liquid or gas) is very different. We are told not to use water, but that’s not all. We are told that not only do we not expect the water to work, but that water will very likely spread the burning material and make things a whole lot worse. So, a remedy that will have a positive result for a Class A fire will not only not have a productive result for a Class B/C fire, but will likely have a counterproductive result. Yep, both kinds of fires look more or less the same – fire is fire; but if you don’t know what it really is that caught fire, you can wind up doing more harm than good.

Well, child abuse is child abuse…or, is it?

No, not really. There are different classes of child abuse
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Now, since I am not a professional and don’t know professional jargon, I will make up my own terms. There are basically two classes of child abuse:

• Class A that I will call Domestic Child Abuse
• Class B that I will call Pedophilic Child Abuse

The defining distinction between the two classes is that in Class A – Domestic – the primary caregiver of the child (i.e. parent[s] or legal guardian) is the one (or ones) perpetrating the abuse. In Class B – Pedophilic – the perpetrator of the abuse is somebody other than the primary caregiver of the child (though it may be an authority figure like a teacher/rebbe or a counselor).

After the defining distinction, there are many other distinctions. I will list those that come to mind. (Note – The following are merely generalities that are most frequently at play. Obviously, nothing is absolute and there is plenty of cross-over.)

In the case of Class A abuse:

• The motive of the perpetrator is control and domination, not se%ual urges (even if se%ual abuse is involved). The perpetrator is commonly suffering from one or more of: low self-esteem, depression, narcissism, schizophrenia, BPD, or Peter Pan Syndrome. Even when the abuse is se%ual, it does not indicate that the perpetrator is pedophilic; he may be equally attracted to any se%ual target. The perpetrator does not abuse anybody outside of his immediate family – the home is the arena of the abuse.
  
  
• In the case of Class A abuse, there are three possible remedies:

1. Separate the abuser from the victim by removing the abuser from the arena.
2. Separate the abuser from the victim by removing the victim from the arena.
3. Do not separate the abuser from the victim, but rather implement methods to stop or lessen the abuse. Treat the underlying cause.

Each remedy has its pros and cons. And, as is usually the case, the one that is the most beneficial to all parties - option #3 - is the most risky and difficult to implement.

• In the case of Class A abuse, the authorities that are called upon to intervene are usually social services and not law enforcement. The perpetrator is deemed to be an abusive person but is not automatically looked upon as a criminal. Social services is focused on assisting the victim, not on prosecuting the offender.
  
  
• In the case of Class A abuse, mandated reporting is almost always applicable.

In the case of Class B (Pedophilic) abuse it is almost the complete opposite:

• The perpetrator may not be suffering from the above list of dysfunctions (low self-esteem, etc.). His motive is indeed se%ual satisfaction. He is primarily - and possibly exclusively - attracted to children (i.e. pedophilic). In many cases, he will davka not abuse anybody from his close family or who he cares for personally. He will target an unlimited number of victims. The arena for abuse can be anywhere.
  
  
• In the case of Class B abuse, the above three remedies are not as effective. Option #3 is usually not successful because the underlying cause is a fetish and not a treatable dysfunction. In this case, the abuser must be either relocated or restrained and potential victims need to avoid encountering the abuser. However, if the abuser is enabled by virtue of a position of authority, it may be sufficient to relieve him of his position.
  
  
• In the case of Class B abuse, the authorities that are called upon to intervene are usually law enforcement and not social services. The perpetrator is usually immediately cast as a criminal. Law enforcement is focused on prosecuting the offender, not on assisting the victim.
  
  
• In the case of Class B abuse, it is not clear if and when mandated reporting is applicable.
  
  

To summarize, we see a vast, almost diametrically opposed, distinction in these two classes. It tells us that different cases can have different causes and call for different courses of action. And what is effective in some cases may be disastrously counterproductive in others. Although they are often shoved into one basket because they carry a common umbrella term – child abuse. As such, to the untrained eye they may look identical just as most fires do.  

Degrees of Child Abuse

This is a much shorter topic. Generally, it is only relevant to Class B (Pedophilic) abuse. But it is the classic issue with any type of molestation – even adult molestation:
At what stage is an unwanted or prohibited se%ual encounter severe enough for Halachic or legal intervention?

Of course a full blown verified act of giluy arayos (k’kanah b’shfoferes) must be prosecuted to the nth degree with community or legal action. There is every justification to “throw the book” at the fellow. But, short of this, while there is no argument that even a subtle non-invasive act such as groping, fondling, caressing, stalking, peeping, etc. is totally unacceptable and would qualify the perpetrator to be called a “creep” and a “skunk”, nevertheless, at what point does “unacceptable” become “impeachable” at a criminal level? And are Torah standards and legal standards in sync on this? And, while we’re at it, are your standards and my standards in sync on this?

Courses of Action for Dealing with child abuse

Earlier, when I discussed the two main classes of child abuse, I talked about the remedial options from a “scientific” perspective. But, because all this is a preamble to discuss the issue of mesira, we have to look at our options from a practical and Halachically sound perspective.

Realistically, or scientifically, we may have a number of options. Like the three options that I mentioned for a Class A abuser. But Halachically, we only have one option – whichever is the best one. And, only after the best one doesn’t work, are we allowed to try the next best one.

In this subject, the concept of Rodef is repeatedly called upon. This is our go-to heter for reporting an abuser. Alas, there is a catch. We have a known rule in Hilchos Rodef (see Rambam H. Rotzeach 1:13) that if one is able to save the victim by only maiming the Rodef (or disarming him), he is not allowed to "go the distance" and bump him off. Doing so is capital murder.

Evidently, Halacha does not allow us to indiscriminately "throw the book" at an abuser.

Likewise, the gemara (Bava Basra 57b) tells us that if a man passes through a road where the women are doing laundry, if there was an alternate road (a “darcka achrina”) but he chose this one, even if he closes his eyes he is considered a rasha (wicked). A simpleton may ask: Does this apply even if the alternate road is considerably longer or much more difficult? We know that this is a fool’s question because it is obvious that we are talking where the alternate road is longer or more inconvenient than the chosen road. Why? Because if the chosen road with the un-tznius women was the less convenient or longer one and yet he still chose that road, he has no justification at all to take this road. Do we need the gemara to tell us that he is a rasha?

We learn that when Halachic considerations dictate a course of action, it is not necessarily the easiest and most convenient one. Very often it is not. Yet we cannot pass up this course for another just because the other one is easier.

Go back to the concept of Rodef and the Rambam I referenced a few paragraphs ago. Note the terminology of the Rambam (free translation):

All who can save [the victim] by disabling one of his limbs and he did not bother himself with this but rather saved the victim by killing the pursuer, behold he has spilt blood and is worthy of death.

We just can't take the easy way out simply because we "don't want to be bothered" when there is an alternative less damaging to the pursuer. Why? Because our goal right now is not to put the pursuer out of business but to protect the victim.

Hence, in Class A abuse where I presented three possible options, there is no question that if option #3 is doable (without prolonging danger to the victim), we must take that course. Even though it is usually the most difficult one to implement. Why? Because it will have the best result. Only, if we are convinced that it won’t work or won’t be safe enough for the victim can we choose one of the other two. (If it’s up to us.)

So, now let’s look at the Class B scenario – the community pedophile. Undeniably it is a much stickier situation. Definitely, the easiest most convenient option is to get rid of the guy. Either run him out of town or turn him in and get him locked up. Unfortunately, the easiest option is not always the one we are allowed to try first. Since there is something intrinsically wrong with turning somebody over to secular authorities, just like there is something intrinsically wrong with travelling a road where women are doing the laundry, if there is a “darcka achrina” with an equal, if not better, result, even though it isn’t nearly as neat and quick, we may be required to take that route.(I wrote earlier that if he is in an authority position, it may suffice to relieve him of his position.)

So, in the case of the Class B (Pedophile) abuser, I wrote that is some cases he is only a threat to outsiders but not a threat to his immediate family. As such, a solution that leaves him and his family intact while restraining him from getting involved with outsiders is the preferred solution. This will doubtless require prolonged supervised therapy with general community supervision which will amount to a heavy imposition on some community members, but if it's doable, it may be the inconvenient "darka achrina "course that we need to take (or rule out).

As a Torah community we don't always have the luxury to take the easy way out. 

Let's say Joe's house catches fire and there are no other houses nearby. Left to itself Joe's house will eventually burn to the ground and burn out.

Now the house is totally insured but some of the costly electronics inside are not. Joe thinks he can safely remove the electronics within a half hour but this means allowing the house burn for another half hour. Well, Joe may not rush to call the fire department. Joe knows that when the fire department comes, what they will do is indiscriminately douse the entire place with water. They don’t care about what’s in it. They may save half the insured house but they will ruin the expensive uninsured items.

So if, let's say, some do gooder neighbor gets on the phone and calls the fire department, is this neighbor doing anybody a favor?

Obviously not. As long as there was very little risk that the fire would spread beyond Joe’s house, then what is the whole purpose of putting out the fire at all? (It will eventually go out by itself.) Isn’t it only to preserve Joe’s property? So, if by some ironic twist, rushing to put out the fire may cause more damage, why do it?

Likely, the neighbor did not want to chance the fire of spreading even if Joe’s house was far from others. But Joe is interested in suffering the least amount of personal damage. And, ironically, allowing the house to burn for thirty minutes longer would cause less damage to Joe than if it was put out right now.

Well, a fire is a fire and child abuse is child abuse. But if it’s a Class B fire and you try to douse it with water. You may end up doing lots of damage and not even put out the fire. But even if it’s a Class A fire and water will put it out. If you are too quick and freehanded with the water, you may succeed in putting out the fire but also inflict with the water more damage than the fire would have done.

And all this is to keep in mind that when we deal with alleged (or actual) child abuse – we are playing with fire.

Related Post:

The Genie of Ochel Nefesh and the Markey Bill