Mesira XI: Epilog - Getting Involved

By now, I am more or less done with the topic of Mesira and Child Sex Abuse. There is nothing more to add but I do need to make a closing statement.

From the moment I first noticed this Kol Koreh, my mind was boggled. It had a one-time appearance in a few publications but it seems to have made only a brief splash and then fade into dreamstuff. It was so brief that most American Jews didn’t even notice it except for a few sharp-eyed (bored?) bloggers. Yet, I could not let it pass because, in my eyes, this edict is not merely unnecessary and unhelpful, but it is actually counterproductive and potentially harmful. I saw it as something more insidious than a lame attempt to pacify the armchair quarterbacks who call out, “Why don’t the Rabbis do something?” I saw it as a travesty of Halacha and common sense.

An indictment of the Kol Koreh is an indictment on the ones who signed it. Some of whom are friends of mine past and present, some are venerable leaders of the chareidi community considerably older than I, some are related to me and at least two of them have been proposed as potential mechutanim. These are my peers. This is not a group that I wish to lock horns with.

Anyone who has followed my writings knows that my primary agenda is to hold aloft the banner of Torah and Yiras Shamayim. As a rule, I come to praise Talmidei Chachamim, not to bury them. Taking the confrontational stance that I have on this issue, normally goes against my grain. Yet, as long as I have a blog dedicated to pursuing the “emess” – that barely anybody reads – I will not abstain from presenting the truth as I see it. In this case, I have really merely taken the side of a “silent majority” including the gedolim of past generations and even many contemporaries who dissociated themselves from this Kol Koreh.

Thus, it is with much reservation that, in the course of my postings (Mesira VII), I singled out two very chashuva Rabbanim to challenge their public statements. One is Harav Dovid Cohen, Shlita with regard to his contradictory position. I dealt with it at length in my previous post. The second of whom was Harav Yechiel Perr, Shlita, with regard to the statement quoted in the Jewish Press. In my post, I called this statement “incomprehensible”. Ever since I posted it, I thought that I am not being fair to Harav Perr if I do not explain why.

Let’s have a look at the quote (all emphasis mine – YH):

“When the Torah commands us ‘Lo sa’amod al dam rei’echa” it teaches us also that what people tend to do is to stand by watching the harm being done to others and to do nothing to stop it,” said one of the document’s most prominent signers, Rabbi Yechiel Perr, rosh yeshiva at Yeshiva of Far Rockaway/Derech Ayson Rabbinical Seminary. “People stand by and do nothing because they don’t want to get involved. It’s not their business. But it is! The Torah has made it everyone’s business when a Yid is being harmed.”

On the surface of things, this all sounds very reasonable. Like Reb Dovid Lichtenstein said (in the name of Harav Dovid Cohen, Shlita): “When you see somebody running after somebody with a gun or a knife, do you call a Rabbi or do you go to the police?”

But things are not the same beneath the surface. This is not how things happen in real life. It is hard to understand why these highly intelligent people are so detached from real life as opposed to Harav Doniel Neustadt, Shlita who said: “The analogy of somebody breaking down your door is misleading. Because this is not happening right now. This is not an emergency situation which is happening at the moment…”

What Rabbi Neustadt is saying is that our decisions are not made during "play action" but rather between innings.

Nobody ever literally “watches” anybody being harmed. Molesters do not invite spectators. We are not there “when a yid is being harmed”. It just doesn’t happen. At best, we may actually see the aftermath of somebody who has already been harmed (R”L) and we see a damaged victim, but, unfortunately we never see an offender actually doing damage. What Rabbis Cohen and Perr and Reb Lichtenstein are doing is taking a metaphor ("watching") and treating it as a literal reality.

Incredibly, these Rabbanim use this rationale to advocate a drastic action against an “offender” who has not been positively identified and who has not even been confronted regardless of whether this action is actually helpful to the victim! Evidently, our priority is not the proven damagee but the unproven damager.

This is Lo Taamod?!

Says Harav Perr, all this is because “People stand by and do nothing because they don’t want to get involved. It’s not their business.”

Hold on there! What kind of people are we discussing? Are we talking about victims and/or their parents? Aren’t they already involved??

No. We are talking about friends and neighbors who have no firsthand knowledge of what took place or by who; and who were not asked by the victims to intervene. Maximum, they “heard about it”.

Have they “watched” anything? Definitely not.

Can they testify against anybody? Not if they haven’t watched anything.

So how are they supposed to get involved?

It’s not that they “don’t want to get involved“. They are in no position to get involved!

But don’t be discouraged. Because contrary to what Rabbi Perr is implying, this Kol Koreh is not instructing us to get involved. It is instructing us to call in (involve) “law enforcement” and to personally stay uninvolved.

So now I have a big surprise for anybody still reading this: I and my fellow "detractors" (Rabbi Neustadt, Rav Eisenstein, and a silent majority of community Rabbanim) are not saying to not get involved. We are saying not to get the secular authorities involved. We should definitely get involved – k’mo she’tzarich!

Behold the true meaning of לא תעמוד על דם רעיך.

Based on the underwhelming feedback that I have gotten on my blogsite, at my site meter, and personally from my nearest and dearest, I can safely conclude there aren’t a whole lot of people who actually read my posts and certainly nobody is rushing to establish the neighborhood panels that I have been calling for. But this is what “getting involved” really means.

Getting involved means seeing to it that the community has some kind of a vaad and program to deal with predators. It does not mean forcibly chasing them out to Florida to be rid of them only to subsequently import different ones from California on the inter-city molester exchange program. Getting involved means being willing to invest time and energy to participate in such a vaad.

Getting involved means approaching the players of the drama, not avoiding them. It means confronting the molester to be certain that he is a molester.  And perhaps to ascertain why he is a molester.

Getting involved means to approach the victim to be certain that he or she is a victim.  And perhaps to ascertain why he or she is a victim.

This last passage may sound derisive, but it’s really not. Fully understanding the problem is essential to implementing the most effective solution. As such, getting involved means to make the effort to understand what is going on - from all sides - before deciding what to do about it. Before doing something that is more harmful than helpful. And before doing something that cannot be rectified.

This is not easy and this is not pleasant but this is what getting involved really means.

If this is what Rav Perr, Shlita had in mind, then Kol Hakavod. He is certainly correct that people don’t want to get involved. Luckily for them, this Kol Koreh instructs us not to get involved. It tells us to pass the buck to the secular authorities who "know better" and then to pat ourselves on the back for maintaining לא תעמד על דם רעיך and ובערת הרע מקרביך as we waltz into shul and daven for good health, parnassah, and the best shidduchim --- for ourselves.

My signatory friend claimed that these Rabbanim were at least brave enough to take a stand. My impression is that these were the ones timid enough to follow the herd.

Klal Yisroel needs people who really know how to get involved.

Mesira X.ii: No Chochma, No Tevuna and No Eitza Against Hashem - 2nd Segment: Eitza and Conclusion

Author's note - This post is the second segment to Mesira X essay. The complete essay can be accessed in PDF format. To access -click HERE.

Part 4 – Eitza: How to Apply the Lessons - Let the Chofetz Chaim be our Guide

I have written in several posts that I am convinced that the Chofetz Chaim would never sign the Sweet Torah Kol Koreh as written. I also added to this the Rambam and HRH”G Rav Moshe Feinstein. I am sure there are many others but these are rather easy to substantiate.

The Chofetz Chaim writes that any hetter to be malshin must meet as many of seven conditions as apply. These conditions are (in the order that I wish to analyze them):

1.   There must be a constructive toelles.

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

3.   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).

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

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

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

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

We can now analyze these conditions and see if and how they are respected by the Kol Koreh.

Conditions 1 and 2 – Toelles

To Halachically justify being malshin (moser) a Jew to the secular law enforcement there must (a) be some constructive toelles that (b) cannot be achieved without being moser.

What could such a toelles possibly be?

The only possible toelles is that this is the only method that will cause him to desist from harming others. Yet we have learned in Lesson 1 that less than 15% of offenders are arrested and of those, less than 10% are incarcerated. So this does not stand to be too effective.

So, now, let me ask, if more than 98.5% of the offenders are not taken off the streets, what are we to do with them?

There is no easy answer. And I wrote in my previous post that we cannot solve this problem. We can only “treat” it. There must be alternatives, and there are some. There are social services and rehabilitation programs (12-step) that the offender can be compelled to attend under threat of further action. And there can be community sanctions for proven offenders – i.e., removal from high exposure positions, not allowed to use the mikva, etc. likewise with the threat of mesira if they are violated. Of course there is no guarantee of success with these, but Rav Eisenstein wasn’t wrong, either, when he said the court system is “like Las Vegas”.

So, once there is no choice but to have alternatives, then condition number 2 automatically precludes the Halachic justification of going straight to the police because there are alternatives that can be implemented first.

Thus, the Kol Koreh is definitely in breach of Condition #2 and in most cases (98.5 out of 100) does not even meet Condition #1.

Note that R. Moshe Feinstein, ZT”L wrote in his teshuva (IgM Ch”M 1:8) concerning one who counterfeits kashrus stamps on meat, that the offender can be reported to the authorities only if the Beis Din cannot stop him from continuing. In other words, if BD can stop him (i.e., an alternative to calling secular authorities), there is no justification for mesira. This is one proof that Rav Moshe would not sign this Kol Koreh as written.

Condition 3 – Overly Severe Repercussions

By itself, if Condition #2 is met, meaning there is truly no other way to stop the molester, this condition is usually not very relevant. We have to do what needs to be done to protect people from harm. This is when the din of rodef applies.

However, taken in conjunction with Condition #6, which is a heavy-duty one and will be analyzed shortly, we need to watch our step.

Condition 4 - Verifying the Information

Conditions #4, 5, and 6 are variations of the same problem: Is the report truthful? They interact to create what is obviously one of the key points of contention in this whole shooting match. The Kol Koreh, by its lack of discrimination, is opening the door to false accusations.

Condition #4 tells us that we cannot be malshin (or moser) on anybody unless the one who wants to be malshin is absolutely certain that the offense being reported actually took place.  “Certain” means the malshin witnessed it personally.

Understandably, this could be difficult. When molesters do their mischief, they typically do not invite spectators. Invariably, the victims do not have much company. So, how on earth, can somebody other than a victim have first-hand knowledge like the Chofetz Chaim requires?

They can’t.

Any person who is not the victim or a first-hand witness (virtually non-existent) cannot know exactly what happened (if anything).

The Kol Koreh indicates that one has a Torah obligation to mahsser on the alleged molester even if he has nothing more than “reasonable suspicion”. This and the term “every individual” indicate that this Kol Koreh is targeted to people other than the victim him/herself! It says that a non-victim has an obligation to report a molester for committing an offense he hasn’t witnessed.

So how does he know what happened?

Obviously, the victim or some other reliable source told him so. And he depends on what they say. Or what he thinks they said. Or what he “heard” them say. Perhaps, this may be bolstered by some genuine testimony that the offender “blew in her ear” or “patted him on the backside”, which may have really happened.

But actually, the non-victim “agent”, whether it is a parent, relative, friend, or clergyman, is judging the case. He is hearing testimony from one side, and most likely, not only does he not confront the offender to see “how he pleads”, but he does not even cross examine the victim or source to make sure there are no holes in the story. The testimony goes unchallenged and as such is “stamped” authentic. Thus, the malshin convinces himself that the report is impeccably true. An example of all this is the story of Mr. Grossfinger that was presented in my previous post.

In any case, the Chofetz Chaim does not allow such a thing. The Kol Koreh does. 

Condition 5 – “Interpreting” (or Misinterpreting) incomplete evidence

Condition #5 tells us even if we possess verified (first-hand) partial information, i.e., circumstantial evidence, which supports an allegation but does not irrefutably ensure that it is true, this is not sufficient to satisfy condition 4.

This is the problem of irresponsibly “filling in the blanks”. There are numerous variations of this phenomenon.

One variation is fully illustrated in the Mr. Grossfinger story in which Mrs. Nehrvin may have had firsthand evidence that there was abuse, yet she had no firm evidence as to who was the abuser. She recklessly took it upon herself to solve the “whodunit” with disastrous results.

In a second form, this problem rears its ugly head at a more insidious stage. Before there is any proof that an offense was committed at all. This is reflected in the reactions of the three other women in the Mr. Grossfinger story who jumped to conclusions based on sheer hearsay. In that case, not one of the mothers observed Mr. Grossfinger doing anything objectionable. They chose to misinterpret (or imagine) unrelated symptoms on the alleged “victims”.

In a third variation, the accused perpetrator indeed committed some confirmed misdemeanor, but nothing close to the degree that he is being accused of.

This goes back to the line I wrote in the previous condition about if one actually sees the offender “blow in her ear” or “pat him on the backside”. The onlooker makes the subjective decision to interpret this in the worst possible light and concludes on his own that the person is a serial rapist.

This issue brings to light what I wrote in Mesira IV about degrees of child abuse. I wrote there that while a non-invasive act (groping, stalking, blowing in the ear, etc.) is unacceptable and may be indicative of even worse behavior, by itself, it is not Halachically impeachable. Even if one actually witnessed such an act, but nothing more, the offender cannot be deemed a “רודף אחר הערוה לבועלה”.

To illustrate this, in the true version of the story that I was involved in, a complainant (who was not a victim but apparently a parent) tried to convince the Rav of a shul that a mispallel (the accused) was a confirmed molester. The Rav was prudent enough to ask the caller how he (or she) knew. The caller responded, “Once when I came to pick up my kid, they didn’t answer the door for fifteen minutes.”

In this statement, the caller is admitting that they did not witness any abuse. If they had, that’s what they’d say: “I saw it with my own eyes, Rabbi!” But the most damaging thing that they saw with their own eyes was perhaps that they had to wait quite some time until the family opened their door. Yet, amazingly, this parent was convinced that their child was molested. Parents can be that way. (Incidentally, there was no basis to any accusations against this person. It’s a long story.)

The Kol Koreh tells “every individual” to report “abuse” while allowing “every individual” to rely on their own definition of “abuse”. 

Condition 6 - Ensuring that the facts are not distorted

Condition #6 tells us that even if every condition to this point is met, the offense is confirmed and the malshinus is justified, the malshin is forbidden to enhance or embellish the information in any way.

This is almost identical to the previous condition. The previous condition is that the malshin, before he reports, cannot bend the facts to convince himself that an unsubstantiated event occurred. This condition says that the malshin, when he reports, cannot bend the facts to convince the listener that an unsubstantiated event occurred.  Also, he cannot over-sensationalize or over dramatize the report to make it sound more horrendous than it is.

This reflects the line I wrote in the Mesira IX.v that an adult will invariably tell the truth the way he wants the listener to hear it. Sometimes a report is distorted from one end to the other simply by adding an extra word or omitting one. I wrote an entire post on this subject alone many years ago [sub]titled: The Objective of the Subjective Adjective (a fun post to read).

This was the main sin of the meraglim. They didn’t say anything that wasn’t true, they merely accentuated the negative and eliminated the positive. It’s not what you say, it’s how you say it.

To illustrate this, as well, I will go to the true story I related in the last condition. When the parent told the Rav that they were forced to wait for 15 minutes, the Rav responded, “So, what does that prove?” A good lawyer would have responded with a different question: “How are you sure it was 15 minutes?”

It’s not very likely the delay was 15 minutes and probably not more than three minutes. But when somebody is standing there waiting, a short time seems like forever. But I am certain the complainant said it because three minutes wouldn’t make the story stick. “So what does it hurt if I pad the details a bit? I am only telling the truth anyway, I just need him to believe me.”

As I wrote above, this condition can interact with Condition #3 because if one overstates the offense, it will invariable overstate the repercussions.

The only positive thing I can say is that these two conditions are the only two that the Kol Koreh does not explicitly urge us to violate. 

Condition 7 – Confronting the Offender

I saved this condition for last because, in my personal view, this is the most serious and neglected issue of them all.

The Chofetz Chaim tells us here that one can never be malshin on another under any circumstances before he confronts and reproaches the offender.

For what purpose?

I hardly think that the purpose of confronting the offender is so to first scold him and call him a “bad boy” and then to promptly go ahead and report him. It is to get him to desist and change course and thus to obviate the need to be malshin (moser) at all. It could also be to give him the opportunity to let you know that he hasn’t been doing what you think he has.

The Chofetz Chaim is in good company. Firstly, we have the Rambam who, when explaining the rules of rodef (Rotzeach 1:7), states: כיצד? אם הזהירוהו והרי הוא רודף אחריו  - "How so? If he was warned but he is still pursuing the victim…"

Likewise, Harav Moshe Feinstein writes in his teshuva (IgM Ch”M 1:8): It is only when they have observed that the Jewish courts cannot deter him is there any hetter [for mesira], after they warned him that they will file a suit in secular court…

When I wrote previously that not the Chofetz Chaim, Rambam, nor HRH”G Moshe Feinstein would endorse this Kol Koreh, my assertion was based on this condition. These three giants contend that to confront the offender is an absolute imperative. The Kol Koreh and the 107 Rabbanim who signed it wantonly disregard it.

The effects of direct confrontation are underrated. But they are very powerful. When I was taking courses on counseling, we covered this subject:

Q. If you suspect that your client may be contemplating suicide, what do you do to find out?   

 A. Ask him!

There is nothing to lose. If he is truly suicidal, he will more likely than not say so. He knows you suspect him. If this happens, you can surely believe him. If he says he isn’t, you can probably believe him, too, but you can judge his tone and body language to see if they allay your suspicions or exacerbate them, and act accordingly. The point is that most of the time, they tell the truth, and even if not, you haven’t hurt anything by asking him. If he’s bent on doing it and doesn’t want to tell anybody, he’ll do it anyway. You haven’t made anything worse.

It’s very much the same with somebody suspected of indecent acts. Just ask him! There is nothing to lose. Recall facts 10-14 that the majority of molesters are former victims who never got the help they needed. Many have a “death wish” to be caught and restrained. So, if they are really guilty, and they feel that the accusers have solid evidence and the “jig is up”, the majority will cave in.

If he denies guilt and you have no solid evidence (and you are not the victim), there is a good chance that he isn’t guilty. Whether he is or not, we are back to the Chofetz Chaim’s Condition #1 which isn’t being met.

If you do have irrefutable evidence and he still denies guilt, at least at this point you have met all seven conditions. Under these circumstances the mesira can now (and only now) be justified.

Confronting an alleged molster is not a comfortable thing to do. But it must be done. The Grossfinger story in Mesira IX.v illustrates how devastating it can be to neglect this step.  

Of course a victim should not need to do it him/herself. An agent, parent or a Rav should do it for them. But, somehow, in cases that I have followed, the “reliable information” of unequivocal guilt is freely offered to everybody under the sun (Rabbanim, principals, policemen, social services, mechutanim) except to the offender. When the offender wants to know where these accusations come from and on what basis, there is a sudden wall of silence – or case of amnesia - from very loose lipped people.

The bottom line is that according to the gedolim of the previous generations, there is absolutely no hetter under any circumstances to turn a molester over to secular authorities before he is confronted and given the opportunity to either clear himself or accept rehabilitative measures. No excuse whatsoever!

To my great consternation, both the revolutionary Kol Koreh and Rabbi Dovid Cohen, do not seem to acknowledge any of these seven conditions and especially this last one. The Kol Koreh explicitly instructs us to violate this condition when it says: “Any individual with firsthand knowledge…has a religious obligation to promptly notify the secular law enforcement…”

Likewise, Harav Dovid Cohen, Shlita is very puzzling. Initially he tells us (1:20): “I have paskened to go straight to the authorities, you don’t have to ask a she’ayla…”. There is no mention of any of the seven conditions of the Chofetz Chaim and no need to confront the offender. Later, he seems to have a brief moment of lucidity when he says (7:29): “There is a consultation. The person is given a fair chance to defend himself…”

Wait a minute, Rabbi Cohen! “The person is given a fair chance to defend himself…” when?? When is this “consultation”? Do you mean before you “go straight to the authorities”? This hasn’t been indicated by anything you have said to this point. In fact, it seems to contradict your earlier “psak”.

Or, do you mean that there will be a consultation without his participation, and he will have a chance to defend himself to the judge after he has been turned over to the authorities? What happened to the Chofetz Chaim, Rambam and Rav Moshe Feinstein?

חבל על דאבדין ולא משתכחין.

עד כאן עצה

Part 5 – Conclusion

I have had numerous personal conversations with the editor-in-chief of Mishpacha magazine wherein I voiced my objections to his stance on Mesira in general and to the Kol Koreh that his magazine carried in August. I know he has read some of my posts and at some point he said to me, “I’ve heard enough from you about what we shouldn’t do. Tell me your plan about what we do need to do!”

I wrote the Mesira IX post to express the point that, like cancer and other ills, we will not eradicate this plague by legislative means or magic bullets. The issue of sexual child abuse is far too complex for quick one-size-fits-all fixes. Once we know this I must strongly question the liberal psak of Harav Dovid Cohen, Shlita.

This Kol Koreh is advocating only one thing – to prosecute suspected molesters whether they are guilty or not. It is not designed to protect anybody, because damage is done by unknown and unsuspected molesters. Prosecution is done to known or suspected molesters. Hence, this edict will not prevent damage and it will not repair damage.

To prosecute a person who does not deserve to be prosecuted is wrong no matter how many suicides there are. As I wrote, the suicides happen at the hands of Phase 1 molesters. Prosecution happens to Phase 2 molesters. Thus, prosecution will not reduce suicides. It merely closes the barn door after the horse has escaped.

And, Rabbi Zvi Gluck tells us that 98.5% of these guys aren’t going to jail anyway. They won’t even be prosecuted. The barn door won’t be closed even after the horse is gone!

So, obviously, we need to put our efforts into doing what will help. It is imperative that every community have a vaad consisting of a Rav, a lawyer, various mental health professionals, and some laymen to oversee a rehabilitation program. It’s not a bad idea for this vaad to have a direct link with both secular social services and law enforcement. Many large communities have Jewish social welfare programs such as Amudim, Shalom Task Force and Project Relief in the East Coast and Magen Yeladim in California. There is no reason that these organizations cannot provide or oversee rehabilitative programs for offenders (if they don’t already do so). But if not, some other organization or community body must oversee them.

Once there is a vaad and a rehabilitation program, there is an alternative for Phase 2 molesters. Remember, most of them cannot or will not be prosecuted by the law enforcement anyhow. And now that there is an alternative, there is no excuse whatsoever to turn anybody straight over to the police.

I do not care what Rav Dovid Cohen, Shlita or 107 community Rabbanim say. I know what the Chofetz Chaim says along with the Rambam and Rav Moshe Feinstein, ZT”L.

So, here is my psak. And I can pasken this way even though I am not a Rav because this is זיל קרי בי רב :

Unless you are the victim and feel imminently threatened, every individual who suspects anybody of child abuse should promptly report them to the local vaad. The person must be immediately confronted by the vaad to determine if there are grounds to the suspicions.

If there are, he must be given the opportunity to cooperate with whatever rehabilitative measures are called for. Only if he is deemed to be non-cooperative and a continuing threat is there any toelles – and hetter to call in law enforcement.

This is what the Kol Koreh should be advocating. But it isn’t. And, for the life of me, I can’t figure out why not. I only spoke with two of the signatories and neither one could answer this question.

Who can?

אין חכמה ואין תבונה ואין עצה לנגד השם

The Opposite of Right is...

A quick check in at Emes V’Emunah and he is back at the Jewish-cliques-jockeying-for-position game.

I think he’s on to something. Rabbi David S. Farkas has written a thoughtful essay in Cross-Currents that echos some of my own thoughts. In a recent essay, Professor Marc Shapiro had warned that Modern Orthodoxy (MO) and their flagship institution, Yeshiva University (YU) might become the next target of the right (Agudah) after it finishes off Open Orthodoxy (OO). Rabbi Farkas disagreed and came up with his own assessment about where MO stands with the right. The relationship has improved. Significantly.

I don’t know about you, but this looks to me like a bunch of bookmakers making out the odds for a numbers racket. A bunch of grown men wearing suits and yarmulkas speculating on who is going to be the winner at the Hashkafa Sweepstakes.

Okay we got Agudah as the clear favorite. MO comes in second at 3 to 1. Open Orthodox limping in at 10 to 1. Conservative just behind OO. Reform doesn’t place but we’ll give her 30-1. Atheism pulled from the race and Gut in Himmel the wild longshot at 60 to 1.

Or is it stock speculation?

AGDI: 52.16  +1.35…MDOX: 34.22  no change…OPOX:12.54  -2.38...CNSV:  4.27 -0.03… ATHS:  96.23 +4.83… RFRM: 73.65 +2.96…

I suppose they mean that after AGDI forces OPOX into bankruptcy they will then swallow up MDOX in a hostile takeover. All this to counter the merger between ATHS and RFRM.

As such, everybody’s market predictions are different (though the races can be fixed).

Can everybody stop bickering and grow up? Cut the labels and look at the substance? (Wake up and smell the kefira?)

What caught my attention about this is the accolade chosen by Rabbi Maryles for “our team” (or is it “our horse”?) – the favorite. Here he calls us the “right”. This is not the term that Rabbi Farkas used in his Cross Currents piece. My assumption is Rabbi Maryles used it for brevity sake. It’s a short term. But I read more into it than he probably intended.

You see, all of these philosophical figures try to identify the diversity in Judaism using a lateral spectrum. Left to Right. So at the extreme left is Atheism and not as left is Reform and then comes Conservative and now a new player, Open Orthodox,  then there’s Modern Orthodox to the right of that with "Centrist" in there somewhere and then Chareidi (or Agudah) or Ultra Orthodox to the extreme right with Neturei Karta off the deep end.

As such, the opposite of right is left.

But these guys all missed the boat because it’s not a lateral spectrum. It’s a vertical one. It doesn’t go from left to right. It goes from up to down. And it doesn’t use any of the terminology that these guys insist on using. It uses the terminology that the Torah and chazal use. And if we look at it properly, there is no need to speculate or worry who the “right” is going after. We are not going after anybody. We will not destroy anybody. There will be no need to. It will happen by itself.

Imagine a stack of acrobats (think Yertle the Turtle) standing in a deep empty swimming pool quickly filling up with water. As the water level rises, those at the top of the stack will stay above the tide, but those at the bottom…bd"e

So, let’s look at the stack. Incidentally, I have written this numerous times over 10 years and very recently in my posts about Open Orthodoxy and the Great Gap Year but the wise men at EE and CC who darshan OO vs MO vs UO never seem to get it so I will continue to repeat it as many times as necessary.

Here goes - top to bottom:

1.   Torasam Umnassam – Life dedicated to learning - The best -  Shitas Rabi Shimon Bar Yochai in Brachos 35b

2.   Torascha Keva u’ Melachtecha Arai – Life dedicated to support learning  - The next best - Shitas Rabi Yishmael ibid

3.   Melachtecha Keva v’Torascha Arai – Learning takes a back seat - Rejected shita (זו וזו לא נתקיימו בידן) ibid

4.   Lo Lamad – Mitzvos Anashim Melumada – Doesn’t learn even though he does mitzvos -  No good – Rashi Vayikra 26:15

5.   Lo Oseh – Doesn’t even do mitzvos - Even worse - ibid

6.   Moes B’Acherim HaOsim – Can’t stand those who do learn and do mitzvos – very bad - ibid

7.   Soneh es Hachachamim – Can’t stand Rabbis – terrible - ibid

8.   Moneah es hacherim – Actively prevents others from study and mitzvos – horrible - ibid

9.   Kofer B’Mitzvos - Denies the Obligation to Study and do Mitzvos – devastatingly bad - ibid

10.        Kofer B’Ikar - Denies the existence of G-d – ghastly - ibid

So, there we have it. Ten levels from floor to ceiling. Thus, we don’t need any of these English/Greek terms at all. Not Reform not Conservative, not any flavor of Orthodox and not even Atheist. Instead of Atheist we can say Kofer B’Ikar just like Rashi does. And instead of Reform we can say Kofer B’Mitzvos.

Now, it’s not my job or my place to assign levels to people but, just follow definitions and the assignments come all by themselves. Hence, those that call themselves Open Orthodox are those that hang around from 4 down to 8 with some even getting as low as level 9. Take whatever label fits. Those that call themselves Modern Orthodox today (and Centrists) are usually hovering between levels 3 and 4. Not because I say so, because this is how they live. There are some who call themselves MO who reach level 2 and they stand a chance (though I would not call them Modern Orthodox). Orthoprax are at level 5.

The Chareidim who are for real are at levels 1 and 2 and if they are just going through the motions they are at level 3 to 5.

I don’t need to be called chareidi. My lifestyle is at level 2 so I am happy to be called whatever label applies to level 2. Call me a "Torascha Keva".

It’s as simple as that. It’s not up to me to decide who you are, it’s up to you. And with these definitions, there is no fudging.

So when people speculate whether the “right” is trying to finish off the MO or the OO or the AO or BO or CO and who comes next, etc., this is total naarishkeit.

The mabul is coming and it is going to finish off everybody who is lower than level 2. The “right” isn’t going to do it because there is no lateral “right”.  But there are vertical levels and only levels 1 and 2 are Im Bechukosai Teleichu. Everything else is V’im Bchukosai Timaasu. 1 and 2 are Bracha and Chaim. Everything else is Kellala and Maves. Level 3 may be kind of sitting on the fence but when the water level really rises they will need to choose between Chaim and Maves. I expect most to make the “right” choice.

HKBH will do all the starting and finishing off, not the “right”. But it’s a good idea to start climbing the totem pole. Still and all, it feels good to be labeled on the "right". Because, for a vertical spectrum, the opposite of “right” is not “left”.

The opposite of right is wrong.

אל-תירא כי עמך-אני אל-תשתע כי-אני אלהיך אמצתיך אף-עזרתיך אף-תמכתיך בימין צדקי

Mesira IX.v: Adulterating the Truth

Author’s note: This post is not the continuation segment of my previous segmented post. It is a separate post that I think is necessary to provide the background to understand the continuation, which follows this post. This is one of the most compelling posts I have ever written. YH

Presumption of guilt!

This is what our community is guilty of. This is what is driving this entire debacle. When I criticized the Kol Koreh in Mesira VII, this problem was on the top of the list.

I launched this whole series way back in August when I objected to a popular notion that there is no issue of mesira for an Orthodox Jew to be a traffic cop or parking meter attendant. It is okay to report a civil lawbreaker. Rav Vosner, ZT”L even says so in a teshuva.

I opined: Fine and good, if he admits to breaking the law. But what if he disputes it (and has grounds to dispute it)? And it’s the frum cop’s word against his? Is there still no problem? Did Rav Vosner’s teshuva take such a case into consideration?

Not by the way it was written. The teshuva (regarding customs violations, by the way) never considered the side that the accused contested the charge or had grounds to. This, and other word of mouth stories take for granted that the person committed the misdeed exactly as reported. They only deal with whether it is permitted to report a guilty person.

Presumption of guilt. This is a plague.

Rabbi Dovid Lichtenstein, in his interview with Rabbi Nachum Eisenstein, which aired on Jan.23, 2016, can’t shake it. Rav Eisenstein was trying to say in the name of Rav Elyashiv, ZT"L, that in the absence of firsthand testimony, without an אומדנא דמוכח (irrefutable circumstantial evidence) we cannot treat somebody as a guilty person.

Says Rabbi Lichtenstein:

Why are you being machmir on the life of the rodef? Why aren’t we looking to be machmir on the hatzalah of the nirdaf…?

Excuse me? In what way have we confirmed that Ploni is a rodef? Aren’t we discussing that there is nothing better than an אומדנא? Why is he already guilty?

R. Lichtenstein has the answer:

…knowing a few facts:  One -That in 99% of these cases, children don’t accuse adults of molesting them…  (He expounds on this fact but does not offer any others)

99%! Whoa, that’s a big number! And Rabbi Lichtenstein knows it for a fact! Where he gets this from is a deep mystery (I asked him and got no response) but so he says without a doubt. Is it really true?

Lets examine it.

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This really happened…

Cast of characters:

Moshe – My oldest grandson, 3 ¾, goes to gan in Har Nof

Esti – My youngest daughter, 2 ½ (happens in productive families), goes to same gan

MM – Moshe’s Mother, my oldest daughter. Lives in the neighborhood with her family.

Chany – Esti’s big sister, my school age daughter. She attends nearby Beis Yaakov

Zaidy – Yours truly

Bubby – My better half (who keeps telling me not to write blogs…)

Plot:

On a regular Friday I do typical Friday errands. When gan finishes, Chany picks up Esti and takes her to our house where we all live. And MM picks up Moshe and takes him to her house where they live.

This past Friday, MM wasn’t able to pick up Moshe so she sent a message to me via Bubby asking if I could do it. I said I could only do it if I have completed my errands. Not to depend on me, MM called up the gan with instructions to release Moshe to Chany who would bring him to my house together with Esti. Nobody was certain that Chany would get the message and I indeed completed my errands so I was instructed to go to the gan anyway. When I arrived by car, Chany was already standing outside with Esti in the stroller and Moshe in hand (she got the message). I told Chany to go home with Esti and I will take Moshe to his house in the car. I put Moshe and everything he was holding into the car and brought him home.

A few minutes after Moshe got home he exclaims to MM, “Oh no, I don’t have my tik (schoolbag). We have to go back and get it.”

MM: “Well, where is it, Moshe? Did you leave it in Gan?”

Moshe: “No, I didn’t leave it in gan.”

MM: “Then where is it?”

Moshe: “It’s in the sky.”

MM: “Oh, come on Moshe. It’s not in the sky. Did you leave it in Zaidy’s car?”

Moshe: “Yes. I left it in Zaidy’s car.”

MM promptly called me and asked me to look for the tik in my car. Since I was still sitting in the car, I was able to quickly confirm that it wasn’t there. I told MM that it wasn’t there, so she was convinced that Moshe left it at gan even though he flatly denied it.

So, Moshe says it’s not in the Gan and Zaidy says it’s not in the car. MM doesn’t know what to think.

Am I telling the truth or is Moshe?

Two minutes later, the penny dropped. MM gets a call from Bubby to tell her that Moshe left his tik in Esti’s stroller!  

Now let’s analyze this story a bit.

MM has firsthand information on two facts: (1) The tik is missing and (2) Moshe came home in Zaidy’s car. She was not aware that Chany is the one who took Moshe out of gan, she thinks I did it. So she can only think of two logical conclusions: (1) Moshe left his tik in gan and is not telling the truth when he insisted that he didn’t; or (2) the tik is in Zaidy’s car and Zaidy is just starting to lose his marbles.

Since “in-the-sky”-Moshe also lives in a world of dragons, dinosaurs, and superheroes, and can spin fabulous tales, and since Zaidy hasn’t really lost it yet, it makes more sense that Moshe left the tik in gan. But, then why can’t he just admit it?

The answer is that this is the one thing that Moshe knew for sure (firsthand). So he can insist that it’s true. He wasn’t paying attention when Chany put the tik in the stroller so all he really knew was that he took it out of gan and nothing more. Regarding what he knew, Moshe could tell the truth, but regarding what he didn’t know, he couldn’t. MM couldn’t fathom why Moshe wouldn’t know if he left it in gan so she pressed him for the true answer. He couldn’t get off the hook by saying he doesn’t know (even though he really didn’t know), so he had to come up with something to satisfy his mother. His first attempt was a yarn – “It’s in the sky”. When he saw that MM won’t buy the yarn, and that she suspected it was in Zaidy’s car he had to tell her what she wanted to hear and what would stop the interrogation: “Yes, it’s in Zaidy’s car.”

But, guess what? Nobody was initially lying. Everybody’s first report was the truth. Both Moshe's and Zaidy's. And the real story was something that neither MM nor Moshe could fathom. Neither one of them suspected that Chany put it in Esti’s stroller. (Zaidy guessed it.)

But…Moshe’s second version wasn’t true. Once he didn’t know the true answer he used two other methods: (1) Make one up and, when that didn’t work (2) let the interrogator make one up and tell her what she wants to hear!

Cute story? Well, here is a “semi” fictitious story that’s not as cute.

Mrs. Nehrvin discovers some marks on her little four year old Avi in strange places. She asks him, “Avi, where do those marks come from?”

Avi answers, “I don’t know!”

“Avi, did somebody touch you in a funny way?”

“I don’t know.”

Mrs. Nehrvin’s mind is racing and she suspects the worst. Ah yes, there’s a sweet guy named Mr. Grossfinger who does activities with the boys ages 3-6 in the shul Social hall while the Rabbi is giving his winded speech on Shabbos mornings. There is always open access to the social hall, but…who knows? It seems to make a lot of sense especially since we all know that he is not on the best terms with his wife.

“Um, Avi, did Mr. Grossfinger bother you in any way?”

“No.”

“Come on Avi, you can tell me. Does Mr. Grossfinger sometimes touch you?”

“Yeah. Sometimes.”

“So, you are telling me that Mr. Grossfinger touched you here and here.”

“I guess so.”

This is all that Mrs. Nehrvin needs. She is convinced that Mr. Grossfinger is a molester on the prowl. To be sure, she even takes Avi to the doctor who confirms that those marks are a clear indication of foul play.

But she hasn’t lost it yet. Let’s be sure. So she calls up her close friend Mrs. Shpielkes and asks her if she knows anything suspicious about Mr. Grossfinger. Mrs. Shpielkes says: “Oh my G-d! My Ruby has been having these rashes that just keep coming back. Now I know what might be causing them!”

Mrs. Shpielkes calls her doctor. She is told that it is possible that the rash is caused by sexual contact but there can be other causes as well. She needs no further proof.

The two women spring into action and call other women. Some say they see no problems and can’t think anything ill of Mr. Grossfinger but Mrs. Frentig says that her Binny was in that group two years prior and all of a sudden the nightmares and bed-wetting he used to have came back. And Mrs. Schrier says that her Shloimy all of a sudden turned into a bratty monster. This must have something to do with it.

With such overwhelming proof, they turn to the city posek R. Dov Ber Kahan, Shlita and tell him everything they know. R. Dov Ber Kahan says: “You don’t have to ask a she’ayla. Go straight to the police. He should be put away for life! I’ve been paskening like this for 20 years.” This sounds right to them. Especially after they all saw a Kol Koreh printed in Mishpacha Magazine signed by 107 Rabbanim that says that they have a religious obligation to do just that.

And so, Mrs. Nehrvin goes straight to the police with a doctor’s report and whatever.

This ordeal up to this point has taken over three weeks.

And in all this time, not a single person breathed a word to Mr. Grossfinger!

The police open up a file on Mr. Grossfinger. They bring him in for questioning and put him through the ringer but they get nothing of substance. The police send him home with an admonition to keep his nose clean. He does but he is shamed and ostracized from the community. He is fired from his job. His difficult wife opens a tik in Beis Din. Eventually he has no choice but to leave the city without a wife and without a job.

Everybody is relieved, especially Mrs. Nehrvin. But should she be?

Not if she knew “the real story”.

What’s the real story?

Well, Shloimy Schrier turned into a bratty monster because he has a domineering father and a wallflower mother. Binny Frentig always had nightmares and enuresis, even earlier, and was never cured of them. Ruby Shpielkes, like the rest of his family, had very poor hygenic bathroom habits and was never clean and kept getting rashes.

And, as for Avi Nehrvin? Well, the story is not so simple for Avi. Poor Avi - he really was molested! You see his older brother Shimmy who can’t seem to find his place in any yeshiva, spends lots of time at home and is always glued to his I-Phone, he has some issues. And he needs to release those issues. Unfortunately, the most convenient target for his needs is his little brother Avi. He really loves Avi. A bit too much. But, not to worry. He made sure to get Avi to promise that he won’t tell anybody.

So Mrs. Nehrvin can sleep well at night because Mr. Grossfinger, who never touched anybody, is branded and living a loner’s life in Cleveland. Well, the police didn’t do anything. They had nothing on him, but these ladies with the blessing of R. Dov Ber Kahan, Shlita, ran him out of town. He’s Cleveland’s problem. She can relax at home with her husband and three daughters and Avi,,,

…and Shimmy.

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How’s that for a story?

I have seen this happen! Many years ago.  

A few small differences, perhaps. In the case I observed, “Mr. Grossfinger” did not have shalom bayis problems. He left town with his wife and kids. Also, he was initially confronted by a kangaroo beis din that did not allow him to plead innocent. Also, his involvement wasn’t a shul group. Minor differences.

But everything else is fairly accurate. The police part and even the incest part. This is where Rabbi Zvi Gluck tells us that it happens 90% of the time - at home!

This story has happened for real numerous times with all kinds of variations. And it shouldn’t happen. Ever. Shall we analyze?

Note some details:

·        Avi Nehrvin never came forward to his parents with any information at all. His mother discovered the marks when she was getting him ready for bed.

·        The only firsthand information that she had was that Avi has marks, nothing more.

·        Avi did indeed know where the marks came from, but he promised Shimmy not to tell anybody and Avi is a good boy.

·        When Avi’s mother asked him about the marks and wouldn’t let up (understandably so), Avi felt pressured and interrogated but had no alternative answer for his mother.

·        When his mother suggested that Mr. Grossfinger was the culprit, Avi had an out on the interrogation – just tell mommy the answer that she wants to hear!

·        If any objective person thinks about this and knows that Mr. Grossfinger is a gentle sweet and Yarei-shamayim type guy in his 40s with no previous history of accusations and consciously did his Shabbos activities with full exposure, and compares this with the fact that Shimmy is a troubled teenager and lives at home and shares a room with Avi at night and then throws in the statistic from R. Zvi Gluck that 90% of the cases that he deals with are homeschooled, it should emerge that the most likely candidate for hanky-panky is Shimmy by a landslide. But mothers are never objective, and even though Shimmy is going through a tough phase, Mrs. Nehrvin cannot conceive at any level that her Shimmy could be some kind of a predator.

As such, what happened? Mrs. Nehrvin took the limited amount of firsthand information that she had – that Avi had marks that strongly indicate (but do not confirm) molestation and tried to extend it to a conclusion for which she had no true information at all. So she took what looked to her to be the most probable target and overlooked the truly most obvious one. She pitched all kinds of flimsy circumstantial evidence and interrogated the victim to get a perp ID without a lineup!

And that's the night that the lights went out in Georgia Passaic.

The interesting thing is that Mrs. Nehrvin did not fly off the handle. In theory, her actions were fully justified. What she did was out of sincere love and concern and in a responsible way. She really believed that Mr. Grossfinger molested her son and others and was a threat to the community and even went to a Rav for guidance. And unlike the other mothers whose sons were never touched, her son was indeed truly molested (this is what makes debacle cases like this stick). Except for her motherly blindness to be open to additional closer-to-home explanations, she did almost everything right.

What went wrong?

For one thing, nobody confronted the suspect! Why should they, is there a question that he is guilty?

Well, if he really isn’t guilty, there must be somebody to ask the question. In this case, we have to point the finger at R. Dov Ber Kahan, Shlita. Had Mr. Grossfinger been confronted and allowed to say that he is absolutely unconnected, the “objective person” mentioned above in the list of details could discern that Mr. Grossfinger was not the most likely suspect. There is a closer suspect.

ועתה כי אמנם אם גועל אנכי, וגם יש גועל קרוב ממני!

Of course, under the circumstances we wouldn’t expect that Mrs. (or Mr.) Nehrvin should confront the suspect themselves. “Any objective person” would do. And it should be the responsibility of the Rav to be the objective one. Yet, Harav Dov Ber Kahan, Shlita, as so often happens, only listened to one side of the case and passed judgment in absentia. "Straight to the Police!"

But how could it be anybody else besides Mr. Grossfinger? Didn’t Avi single him out explicitly?

And doesn’t Rav Dovid Lichtenstein know for a fact that in 99% of the cases children don’t [falsely] accuse adults of molesting them?

Well, in this case, and in many others, and in the case of Moshe’s case (tik) above, the child did not accuse anybody. The child merely brought home a very limited piece of information.

Reb Lichtenstein may indeed be accurate that in “99”% of cases, information that a child brings totally unsolicited, is true, at least in the eyes of the child. But when any information is solicited from a child by an adult, it can be dinosaurs and dragons or whatever will satisfy the solicitor.

There is no doubt in my mind that MM would have no trouble getting a sworn statement from Moshe that Spiderman took his tik. Just by suggesting it. Whatever works.

What Reb Lichtenstein is overlooking is that while sometimes a child brings an accusation to a parent, it is never (let’s say 99% of the time) the child who brings a complaint to a Rav, a dayan, or a policeman. It is an adult that is representing the child. An adult who was not a witness to the alleged offense.

Many of them are fully sincere and unshakingly believe in the merit of the accusation. Just like Mrs. Nehrvin. And they will scream – “My child told me so!” “A child doesn’t lie!”

Well, when the information is unsolicited, the child does not lie. But when it is solicited…it’s like Las Vegas.

Unfortunately, parents are not objective players. This is really not so unfortunate, parents are not supposed to be objective when it comes to their children. But subjectivity comes with its baggage. Subjective people are prone to over-reaction, misinterpretation, misidentification, selective thinking, creatively filling in the blanks and just plain misunderstanding. And, when it serves their interests, some do lie through their teeth.

One of my favorite sayings is: I never heard anything said in a Beis Din that was 100% true and I never heard anything said in a mikveh that wasn’t. And I have spent enough time in both places.

An adult does not tell the real truth, even if he thinks he does. An adult, even an "honest" one, tells whatever "truth" he wants the listener to hear. 99% of the time.

There is a reason why, when somebody bends the truth, we say that the truth is adulterated.

אשר עשה האלקים את האדם ישר, והמה בקשו חשבונות רבים 

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I want to conclude all this by saying that it appears that I am coming down very hard on Reb Dovid Lichtenstein. It is clear that I strongly disagree with his position (as well as those of the Kol Koreh) and think this position needs to be re-evaluated.

I wish to reiterate what I wrote in a previous post: I think Rabbi Lichtenstein is a very brilliant, erudite and sincere individual and a great promoter of Torah and Chesed.

My opinion hasn’t changed. In general, I have nothing but admiration for R. Dovid. I knew him to some extent as a bochur and he was outstanding even then. He is a very shrewd and successful businessman and I assume an honest one. He comes across as a very heartzig and feeling person and wants only what is best for the Torah community. And he is a terrific moderator. He is usually very objective and evenhanded and presents a balanced picture.

This is a very emotional topic and I am certain it is his feelings of concern and compassion (and probably likewise of Rabbi Cohen, Shlita) that cause them to take this subjective viewpoint. But herein lies the rub.

Like Mrs. Nehrvin of our story, they and all those who endorse the Kol Koreh have been bitten by the “presumption of guilt” bug. This brings about the desire to be “machmir for the hatzalah of the nirdaf” before we have established if there really is a rodef and who it really is. “Come on, we know the guy is guilty, let’s dispense with the mandatory judicial procedure. If we require real proof, the guy may Ch”v get away!” There may be no real proof.

And there may be no real guilt.

In the story that I witnessed, there was a dayan for the “kangaroo” beis din who was bitten by this bug. He was a young rising star in the American rabbinical establishment. Subsequent to the injustice of this BD, the shul of this Rav sustained a devastating spontaneous non-arson fire that “just happened” to occur on Tisha B’Av. I believe it was a message (and I urged a prominent Gadol to convey it to him) but I don’t think it was absorbed. A few years later this young star contracted Hodgkin's Disease and his flame went out at 45 years old.

I vehemently disagree with R. Dovid Lichtenstein when he said (10/17 broadcast): The Rambam says if one has a bad midah he should go to the opposite extreme to gain equilibrium. As if to justify the abuse or dispensing of Halachic safeguards. The Rambam’s suggestion was for Bein adam l’atzmo or Bein adam l’Makom. For Orach Chaim or Yorah Deah. But for Bein adam l’chaveiro – Choshen Mishpat – you cannot go overboard for one side without injuring the other. There are no kulos or shortcuts in Choshen Mishpat (Takanas Kadmonim notwithstanding.)There is no justification for adulterating the truth and there is no justification for violating Halachic judicial process. Oslo didn’t work and prenups don’t work.

And these things can be dangerous (R"L).

To Reb Dovid Lichtenstein I have to speak like the Godfather. I admire you greatly. This is nothing personal. It’s business.