Diametrically Opposed

Most of us do not think that the latest anti-Israeli UN Resolution was appropriate, but there are some exceptions:



(If you cannot see the embedded video, you can click HERE for a direct link.)


Thankfully, not every [anti-]Israeli thinks that way. Just ask Ahmed the construction worker:

כי דור תהפוכת המה, בנים לא אמן בם

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

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

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

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

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

And the 3 “C”s are (in order):

1. Confirmation
2. Confrontation
3. Common Sense

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

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

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

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

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

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

4.   There must be a constructive toelles.

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

6.   One may not be malshin if it will cause a repercussion that is beyond what is called for (i.e., what a Beis Din would hand down).

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

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

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

Conditions 1 and 2                  > Confirmation

Condition 3                             > Confrontation

Conditions 4, 5, and 6              > Common Sense

And for this we can thank         > Chofetz Chaim

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

Confirmation

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

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

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

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

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

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

Confrontation

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

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

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

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

Common Sense

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

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

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

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

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

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

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

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

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

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

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

Why?

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

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

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

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

וגם כל העם הזה על מקומו יבא בשלום!

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

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

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

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

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

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

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

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

P – Prerequisites (or Protective Options)

C – Conventions (or Chofetz Chaim)

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

P – Prerequisites (Protective Options):

Proximity – Publicity – Punishment

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

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

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

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

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

1.   Proximity (Prevention)

2.   Publicity (Pirsum)

3.   Punishment (Police and Prison)

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

What are these measures? Let’s see.

Proximity

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

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

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

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

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

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

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

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

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

Publicity

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

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

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

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

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

Punishment (Police/Prison)

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

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

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

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

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

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

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

Stay tuned…