Arrur Makkah Re’eihu B’Seter – Part 1: Good Faith

Author’s note – This is more of an Ellul post than a chol hamoed post. I am aware that Ellul 5779 is behind us and Parshat Ki Tavo was a few weeks ago. We are now in the midst of our zman simchasenu. But recent personal events have made this post necessary and now is when I have time to write. Can’t put this off until next Ellul!



ארור מכה רעהו בסתר – פירש"י: על לשון הרע הוא אומר.

Cursed is he who smites his fellow in secret (Devarim 27:24) – This is referring to Lashon Hara (Rashi)

I opened this blog in July 2008, eleven years and 358 posts ago. Spiritually, a blog can be a very risky venture and I acknowledged it in my very first post when I wrote:

You may ask - how can one keep his balance on a blog without transgressing 14 assehs and 17 lahvim?
I'll tell you, it isn't easy!

Lashon Hara is a very serious issue. And I take it (or, perhaps give it) very seriously. What is my approach?

I have two mentors. One is the Chofetz Chaim. I will refer to his rules a bit later. The second is the Tanna Rabi Yosi ben Chalafta. Here is what he says (T.B. Shabbos 118b and Arachin 15b):

אמר רבי יוסי, מימי לא אמרתי דבר וחזרתי לאחורי

Rabi Yosi proclaimed, never in my life did I say any remark and turned backward…

What does Rabi Yosi mean “turned backward”?

Without checking any commentaries, it’s a sure bet that most people will understand the term חזרתי לאחורי (turn backward) to mean he never retracted anything he ever said. It means everything he ever said was measured and thought out and did not cross any lines, so he never had to eat his words and retract.

So, let’s go with this meaning and see how I have been doing on my blog.

I have to admit, I am not batting 1.000 but I am pretty close. I recall retracting a complete blog post which was totally inappropriate sometime in the blog’s very first year, but I don’t think I have ever retracted a complete post since. Of course, I constantly do revisions on lines or phrases to correct errors and improve comprehension and sometimes to reduce the tone or cynicism. Very often I do this on my own and sometimes people have approached me with requests or suggestions for modifications. When it is warranted and does not disrupt the flow of the text, I do my best to comply. I try to be friendly to friendly people.

But it really very rarely happens. So, including that one post in 2008 (1 in 358), I figure I’m batting around 0.950.

I do wish I had more feedback. I welcome comments, questions, criticisms and complaints. This is why I put my 1A7B email address in my book (twice) and on my blog template (which is on every page). The Comments section on my blog is always open for business. But business is slow.

When writing on a topic that involves real live people, lashon hara and judicial slander and defamation are always a big concern. I joked about it on my very first blog post. So I do my best to follow the rules.

On the Halachic end of things, the Chofetz Chaim lists seven conditions for writing (or saying) something that can affect another person. Basically, there must be some constructive purpose to it (toelles) and you have to know and be able to verify your facts, no filling in blanks, no overstatements, and you need to notify the person you are talking about if at all possible. (This is not the complete list but these are what is relevant to a blog).

This last detail of notifying the person is a central theme in this post. More on it later.

On the legal side of things, I am [allegedly] careful to use “journalistic license”. As a rule, I don’t make statements, I make opinions. I don’t write that something or someone “is a problem” but rather, something or someone “appears problematic” or “seems to be an issue”. I am stating an observation and an opinion, I am not creating or stating facts. I am not looking for trouble.

So, despite the fact that there are those who may be uncomfortable with the critical and polemical nature of a blog that, by its nature is meant to be critical and polemical (mussardig), I really don’t think there is anything written on my blog that Halachically or legally needs to be retracted.

So, if Rabi Yosi means what we all think he means, I can call myself a contender. I can’t say that I have never “turned backward” but I can say I’ve come close.

But, truth be told, this isn’t at all what Rabi Yosi means. At least, not according to Rashi it isn’t. Let’s look closer.

Rashi, on this passage in Shabbos 118b, writes as follows:

וחזרתי לאחורי -  לראות מי יעמוד אחורי שאף בפני הבעלים אני אומרה אלמא לאו לישנא בישא חשיבא 

Turned backward – to see who is behind me, for I would say it even in the presence of the subject. We see that this [type of talk] is not considered lashon hara.

Rabi Yosi is giving us a litmus test to distinguish what counts as lashon hara. He is of the opinion that if it is something that one is not afraid to say in the presence of the subject, it isn’t lashon hara.

I think Rabi Yosi is trying to tell us the key factor of what makes “evil speech” so evil:

Makka Re’eihu b’Seter – Smiting your fellow in secret.

Remember Rashi’s commentary on this pasuk: It is discussing lashon hara.

Rashi does not seem to be quoting a chazal or a Midrash. It seems to be Rashi’s personal perspective. Where does Rashi learn this from?

I think he learned it from Rabi Yosi.

No doubt, when someone wants to say something defamatory, malicious, and degrading about another person, he will certainly not want to say it in that person’s presence. Aside from the fact that it will anger that person and who knows what may happen as a result, there is something else. The gossiper does not want the person to be able to contradict him and to defend his position or to set the record straight. The gossiper wants all his listeners to take him at his word and not to question what he says.

So he makes sure to say the gossip where it won’t readily get back to the subject. He will say it at a gathering or on a forum at which the subject has not been invited to participate. Where the subject is not present or invited or even allowed to respond. The gossiper doesn’t want to be tripped up and he wants whatever evil can befall the subject due to the gossip to come to fruition.

Thus, Rabi Yosi is saying to us that “I never spoke about anybody this way. I never said anything that was so malicious and untruthful that I didn’t want the person to hear. I never said anything in a situation where I was afraid to allow the person to respond. I never had to look over my shoulder to see who was listening.”

But there is no reason that this is limited to patently evil, malicious, purposely degrading gossip. It can even turn the tables on “gossip” that is not meant to be malicious or purposely degrading and damaging.

This is what is known in Slander Law as “good faith”.

Sometimes one feels the need to castigate and criticize someone for doing things that do not conform with Torah values and laws. This is called “tochacha” or “giving mussar”. In a Halachic sense, if one is doing it for a positive outcome, it is actually a big mitzva. And in a civil legal sense, it is called “criticism in good faith” and is not liable for defamation action. This is noted in paragraph 15 of the Israel Law of Lashon Hara.

Thus, both Halachically and legally, one may give mussar and criticism if it is in good faith.

But, what constitutes “good faith”?

Well, I just now wrote that we must be clear of problems both from a Halachic perspective and a legal one. Fortunately, here in Israel, these two entities are intertwined and there is a lot of overlap. So, let’s first take our rules from the Chofetz Chaim.

The Chofetz Chaim presents seven conditions to call something “good faith”. I summarized them earlier and here is a repeat of the main ones: There must be some constructive purpose to it (toelles), i.e., no intent to damage. In addition, you have to know and be able to verify your facts, no filling in blanks, no overstatements, and you need to notify the person you are talking about (if at all possible).

The last one is condition number 3 on the Chofetz Chaim’s list (Hilchos Lashon Hara 10:2). Why is this so important?

The Chofetz Chaim writes an obvious explanation. The person should be notified in advance so that perhaps he will desist from the activities that you want to call him out on, in which case, there would be no further need to say the degrading information and it can be avoided.

This is as much as he writes about it, but I think that there is another purpose included in this: You must notify the person in order to allow him to explain himself and justify his actions or clarify misconceptions. As I said earlier, to allow him to set the record straight. The person needs to be notified that you are saying this about them and given the opportunity to respond.

If you skip this step, even if your intention is pure and you meet every other condition of the Chofetz Chaim, your speech is still Lashon Hara. This is because it is מכה רעהו בסתר. If the person does not know what is being said and cannot respond, one can no longer assert that his slander was “in good faith”.

This is the core problem of Lashon Hara. And it turns over the whole deal even if everything else passes the test. And certainly when it doesn’t. The criticism can be whitewashed as tochacha, but if it doesn’t reach the person involved, it’s not a tochacha. This failure to notify actually displays that it was not meant to be a tochacha; only a malicious defamatory statement, a stab in the back. It is now a “makka re’eihu”, and a "secret" one at that.

ארור מכה רעהו בסתר!

So this is what Rabi Yosi is telling us when he said that he never said anything for which he needed to look over his shoulder hoping the person in question won’t hear. Everything derogatory that he says is something that he would want the person in question to hear so that he could change his ways or clear up any mistakes. Not only is it not מכה רעהו בסתר, it isn’t “makka re’eihu” at all.

According to Rashi, this is what Rabi Yosi really means. And I can proudly say, that in this department, I follow Rabi Yosi 1000%!

If I ever write anything critical (i.e., mussardig) about anyone that can have some negative repercussions, I absolutely, positively want that person to see it. I am not hiding my posts from anybody and I am not looking over my shoulder. I am not ashamed of anything that I have written and I welcome any kind of feedback – good, bad, indifferent, questions, corrections, compliments, complaints, whatever. I am not trying to be “makka re’eihu”. And I certainly will not be מכה רעהו בסתר.

This is why I have my email distribution policy.

For many years I have been using one of those free email services (MailChimp) to distribute my blog posts as emails. Obviously, I do it because I want my posts to reach people and be read and this is how I notify prospective readers that there is a new post to read. Who is signed up to my list?

Well, anybody who I feel may be interested. This includes the usual suspects, family, friends and well-wishers. Some people have signed up on their own, but most are people I signed up myself. It’s like a free trial subscription to a magazine and if you don’t like it, please feel free to unsubscribe. Many do unsubscribe. This is to be expected and respected.

When I say that I sign up anybody who I think may be interested, this includes people who may be directly or indirectly referenced in the posts. I want these people to know that I wrote a post which may concern them. This is partially just plain mentschlichkeit and partially to protect myself both Halachically and legally.

By “Halachically” I mean exactly what I just wrote – I do not want to be guilty of מכה רעהו בסתר (it’s a curse, after all). By “legally”, I mean that, in case somebody does think I may have crossed a line into judicial defamation (chas v’shalom), I can always claim that they were notified of the existence of the material and they had every opportunity to lodge a complaint or correction and request a revision. Like I said, I don’t look for trouble.

So if I sign someone up and they unsubscribe, they will no longer automatically receive my blog emails for every new post. But if a new post in some way concerns them, then I will still send them the email manually. I am doing it not only for their benefit, but for mine as well.

I will have no מכה רעהו בסתר.

My project calls for criticizing a lot of behavior and outlook that does not conform with Torah ideals. This is the purpose of my blog – to educate, defend, and to preach the Torah viewpoint to others. And there are often real people on the receiving end of the preaching; those who engage in the activities and/or convey the faulty outlook. My criticism inevitably concerns them. So I need to be sure that they are aware of what I wrote so they may recant or refute.

Over the 358 posts I have taken issue with numerous fellow bloggers. The most frequent is (or was) Rabbi Harry Maryles at Emes V’Emunah. He happens to be a personal acquaintance and I think that (off-line) he is a wonderful person, a devoted Jew and a real mentsch. But I have strong issues to what he writes and I have said so in the strongest of terms. He is on my email list. So far, he hasn’t unsubscribed and Mailchimp’s built in tracker tells me he opens almost every post (this does not mean the post was read) . We have sparred both on each other’s forums and behind the scenes. This is the way it should be.

I have placed other fellow bloggers on my email list, such as Headlines Reb Dovid Lichtenstein, Daas Torah Rabbi Daniel Eidensohn, Rafi from Life in Israel, Yaakov from Yeranen Yaakov and Dvash from Tomer Devorah. Of these, three have unsubscribed; the other two are still with me. Those who unsubscribed no longer receive my post emails except that if the post concerns them, I send them a copy manually. I feel it is a favor and an obligation. I will not be guilty of מכה רעהו בסתר.

I have critiqued – both “for” and “against” – writings or statements from outspoken colleagues such as Rabbis Jonathan Rosenblum, Dovid Orlofsky, and Moshe Grylak. (These three happen to be neighbors, as well.) They are all on my list and they open on occasion. As for the “debate” between Rabbi Ahron Feldman, Shlita and Rabbi Ahron Lichtenstein, Z”L, I managed to find an email address for Rabbi Feldman but not for Rabbi Lichtenstein.

With regard to the Prenups controversy, I subscribed Rabbi Michael J. Broyde and emailed Rabbi Mordechai Willig, Shlita and the BDA. I actually got some feedback from Rabbi Broyde but nothing from the BDA. Likewise, I have taken issue with Rabbi Shlomo Riskin on his stance on annulments. I emailed my post to micky@ohrtorahstone.org.il. No response.

On the 107 Rabbis Kol Koreh controversy, I subscribed the sponsor, Monsey Yid – sweettorah@gmail.com. He almost never opens but I did receive one correspondence from him.

The list goes on. As you may guess, Miriam Shear (imahawk@aol.com) unsubscribed. I had to manually send her a copy of Judging the Judges – Part 1.

It goes without saying that the Malka Leifer extradition episode is the most controversial topic I have discussed and has ruffled the most feathers. Once again, I firmly stand behind everything I have written and have followed the directives of Rabi Yosi. I haven’t “turned backward”.

This applies to both connotations that I discuss in this post. Everything I write is from a verified source, is not exaggerated, and is written in “good faith”. It is all done with the goal of giving this controversy a speedy and happy ending for all involved and to mitigate the chillul Hashem.

Likewise, I stick to my email notification policy. I will not be guilty of מכה רעהו בסתר.

It just so happens that I have Rav Yosef Blau on my email list for quite some time. Way before I took on this topic. Thus far, he has not unsubscribed and the tracker says he regularly opens the posts. Of course, this does not necessarily mean that he actually read them. Most of the other JCW personnel – Meyer Seewald, Shana Aaronson and their address at info@jewishcommunitywatch.org all unsubscribed.

It goes without saying that my correspondence with the RCANZ was through email. I tried to get the emails of as many individual members that I could (Rabbi Yaakov Glasman, Rabbi Benjamin Elton, Rabbi James Kennard, and Rabbi Alon Meltzer) and sign them up. Yep, most of them unsubscribed. So if I write a relevant post and have to send manually, I have a separate list of recipients just for that.

The post about Rav Yitzchok Dovid Grossman was sent to info@migdalohr.org. His office unsubscribed. I could not find an email address for Rav Mendel Shafran, Shlita. The post about “The Fall Guy” (David Stav) went to davidstav@shoham.muni.il (no response). I did not subscribe him.

And what about the Sapper sisters?

Believe it or not, Nicole Meyer actually contacted me before I knew who she was. I eventually subscribed her. She is still subscribed and the posts are opened on a regular basis. If it’s a post on the topic, I usually see multiple opens.

Dassi Erlich inadvertently posted her email address on her Facebook page in a letter she got from some Australian politician. I sent her an email saying that if she doesn’t want people like me finding her email, she may want to delete that letter. No response. In any case, I subscribed her and she unsubscribed immediately after the next post came. So now I only send her posts on the topic. I never found an email address for Elly Sapper but I don’t think it matters at this point.

You will notice that I have gone to great lengths to assure my readers that I adhere to the lessons of Rabi Yosi. I write polemical posts because I believe that daas Torah and Halacha are not adequately presented on the Internet. The posts need to be written. These posts challenge the positions and statements of other people, but this is no reason not to write them. Only they have to be written in “good faith.” This means out in the open with no backstabbing. Where the person being written about can respond. Without מכה רעהו בסתר.

This is how I write. But this is not how others write about me. I won’t dish out מכה רעהו בסתר but I sure get a lot of it. And it is alarming how many very Torah observant web sites are not mindful of what truly constitutes lashon hara – מכה רעהו בסתר.

In Part 2 of this post, we will visit some of those “frum” Internet web sites.

Just cover your ears eyes…

תכלה שנה וקללותיה - תחל שנה וברכותיה

Chag Sameach!

The "Fall" Guy plays Simon Says

David Stav - Chief Rabbi of Shoham

Before I wrote my primary posts about the Malka Leifer episode, I wrote two preamble posts to set the stage. The second of which is titled Thinking Like a Jew. This is basically a digest of all the Halachic concepts that relate to this case, with sources and everything. It was meant to serve as what people call a “moral compass”. If one reads and understands the Halachic foundation, all of the positions I make fall into place with Halachic support.

This is not the only time I have written such a digest. Way before I wrote Thinking Like a Jew, I wrote a very comprehensive two-part Halachic digest on the halachos of mesira – the 3 Ps and the 3 Cs. And, even before that, I wrote a comprehensive digest on the halachos of rodef titled Blood Labels.

The purpose of writing all these posts is two-fold: (1) To help the reader understand all the relevant halachos that apply to these cases. (2) To dissuade dissenters. Once these halachos are cited and catalogued, we have established what a dissenter must dispute if he thinks otherwise. This ups the ante and makes life harder for him.

Any lawyer, posek, dayan, or toen knows that anything he writes as a claim or a ruling must reference the exact legal or halachic source material. If one wants to file a lawsuit, he must write in the suit that the defendant is in violation of Article 7, Section 2a, Subsection 8, Paragraph 6, Line C, twelfth word, indicated by the comma, of the criminal code or the tort law or whatever. He is even expected to quote it. And a respondent must do the same.

Same goes for Halachic litigation. The nitvah should say, “I am not obligated because the Rema in Choshen Mishpat 123:4 (according to the SMA’s clarification) clearly states that this is called an asmachta…” or say “kim li like the distinction of the Noda Beyehuda cited in Pischei Teshuva 15 in siman 87:6 which says that the Shach is really arguing with the Mechaber…”

When a legal professional states: “The law says…”, or a posek says “the Halacha is…” and they cannot quote the law or the Halacha, it’s as good as saying “Dr. Seuss says…” or, as we did in nursery school, “Simon says…”

A lawyer or judge who cannot quote the law is a fraud and a “Rabbi” who cannot source the Halacha is an am haaretz – especially if the true Halacha says differently. Hence, when a genuine Orthodox Jew says “Halacha”, he means what is stated in Rambam and Shulchan Aruch and Mishna Berura and all those teshuvos seforim from renowned poskim – those guys. When an “open” Orthodox Jew (i.e., a Hellenist) says “Halacha”, he means what it says in “my book”.

In my travels through the laws of rodef, mesira, and extradition, I have stumbled across a few charlatans who cannot quote Halacha. The main culprits to date are the Rabbinical Council of Australia and New Zealand (RCANZ) who range from Open Orthodox to quite Modern. These am haaratzim released a ridiculous statement in June of 2017 that posited my “Halachic assertions” to be “fundamentally flawed” and “misguided”.

When I asked them very nicely to point out the “fundamental flaws” and explain what is “misguided”, they went eerily silent and remain so to this day. I am still waiting for them to explain or retract.

Well, it looks like the RCANZ has a sister MO/OO organization here in Eretz Yisroel and it is called Tzohar, run by David Stav, Chief "Rabbi" of the settlement of Shoham. Like most of the RCANZ members, I cannot call this fellow a “Rabbi”. A Rabbi is one who knows and disseminates actual Halacha.

David Stav is an ultra-liberal left wing “Rabbi” who is a colleague and disciple of ultra-liberal Shlomo Riskin (Mr. Marriage Annulments). He serves in the spiritual advisory board for Rabbi Riskin’s Ohr Torah Stone Institution. In 2013, David Stav announced his candidacy for Chief Ashkenazi Rabbi of the Israeli Rabbinate, R”L. At the time, he claimed, “I am flexible with people, I am not flexible with Halacha.” Seems like he’s changed his spots.

The Sapper sisters who just now concluded their visit, are having a hard time contending with folks like me who can point out the Halachic infractions they are violating (as well as encouraging others to do). To offset this, they are searching for someone who carries the title of Orthodox Rabbi who can overlook everything it says in Rambam, Shulchan Aruch and Chofetz Chaim and make up new halachos. And one who has very little regard for the kedusha of Eretz Yisroel, owing that it is an essential factor in this case. They certainly found one in Israel Chief Rabbi candidate David Stav who seems to have become a bit more flexible with Halacha since 2013.

After a meeting with the Sapper sisters, David Stav wrote a letter he should be totally ashamed of. The letter was posted in Dassi Erlich’s Facebook page and hardly anywhere else. It is not on Tzohar’s FB page, not on their web site, nor is it on David Stav’s FB page. I couldn’t find a copyable version, so I needed to use Google Voice Typing (a great tool!).

As I have done in the past, I will first post the entire letter and then rewrite the key points with my comments. Here is the letter:

Following a meeting with Dassi Erlich, Nicole Meyer and Elli Sapper, three sisters from Australia who have accused Malka Leifer of sexual abuse while the three were her students, the Tzohar Rabbinical Council issued the following statement:

Halacha does not allow us to forgo the pain of victims nor can we shamelessly protect the actions of an accused criminal who has not been forced to face a system of justice. Halacha requires that the accused be afforded a fair trial but that if proven guilty they must be punished for their crimes. Halacha also mandates those who are aware of abuse of any kind, to report this to the relevant secular authorities.

In today's day and age, it is the responsibility of secular authorities -  the police and the secular courts -  to enforce and prosecute crimes in the jurisdictions in which the alleged acts took place. In this case, in the interests of Halacha and caring for Torah values and the integrity of each and every person, we call upon the Israeli authorities to immediately allow for Malka Leifer’s extradition to Australia.

The pain that these sisters, and others, have experienced at the hands of this woman require that all who appreciate justice and love their fellow man, support this campaign.

We call upon all fellow rabbis, In Israel, Australia and across the diaspora to join us in this effort and together bring Justice to the accused and a measure of closure for the victims.

[Signed] Rabbi David Stav

Chairman of Tzohar

To lighten the mood, it’s time for a joke:

Four youths were brought to the security head of the local zoo for rowdy behavior. He wanted to create “records” of these guys so he could inform their parents and maybe ban them from future visits. So he asked each one for his name and why the security officer brought him here.

Says the first: My name is Steve, and all I was doing was throwing peanuts to the elephant.

Says the second: My name is Bob, and all I was doing was throwing peanuts to the elephant.

Says the third: My name is Ernie, and all I was doing was throwing peanuts to the elephant.

Says the fourth: My name is Pete, but all my friends call me “Peanuts”.

End of joke. [Laugh now!]

I gather that David Stav has a close friend whose real name is probably Simon who he likes to call by the nickname “Halacha”. So when David Stav says “’Halacha’ does not allow…”, “’Halacha’ requires…”, “’Halacha’ mandates…” he is really saying “Simon does not allow...”, “Simon requires…” – “Simon mandates…”

Simon says...

I am past nursery school so I don’t play this game. I don’t do things just because “Simon” says so even if he calls himself “Halacha”. Simon, or Halacha, needs to display his credentials and prove that he is authentic. David Stav doesn’t do this in his letter. He knows that the unschooled masses (Dassi’s supporters) will blindly trust him. But a genuine Torah scholar will not.

So let’s look at David Stav’s Halachic chiddushim and check out their credentials:

Halacha does not allow us to forgo the pain of victims…

What "Halacha" is he citing? Lets open Rambam and Shulchan Aruch and try to find out. I am thus far totally stumped. What does he mean by “forgoing the pain of victims?”

The true Halacha does not allow us to address anyone’s pain or injury at the hands of another without a din Torah.

ואצוה את שופטיכם בעת ההיא לאמר, שמע בין אחיכם ושפטתם צדק, בין איש ובין אחיו ובין גרו.
and
 כי יהיה ריב בין אנשים ונגשו אל השופט ושפטום והצדיקו את הצדיק והרשיעו את הרשע. 

There are two parties at odds here and they are both just as Jewish. Halacha (real Halacha) does not allow us to lynch anybody just because someone cries foul even if there are grounds to believe them. But this is what spiritual advisor David Stav is “calling for”. (See my first preamble post - Justice is Blind) David Stav does not  claim that he met with Mrs. Leifer who is sitting put in Neve Tirtza. This is in Ramla which is a mere 16.5 km from Shoham (25 min in current traffic) and only 5 km (walking distance) from Lod where Tzohar offices are. Mrs. Leifer is very accessible and I am sure she would love visitors, especially if they are compassionate people and have any ahavas Yisroel.

Now I have seen many piskei din from Batei Din and they usually begin with “לאחר שמיעת הצדדים” which means “after we heard all the sides”.  David Stav’s Halachic claim makes no mention of such a thing. Note that the Chief Rabbi of Israel is expected to be a dayan and know how to conduct a dispute between Jews!

What’s just as important is that here is what the Halacha really says: If two people are having a fight and a third party intervenes in favor of one side and takes measures that do not need to be taken – i.e., below the belt (literally) – the interloper pays dearly for this. In fact, according to the Sifri, Rambam, Sefer HaChinuch and other rishonim, the interloper is called a rodef!

This is in the Torah I live by (Devarim 25:11,12), but it must not be in David Stav’s Ohr Torah Stone edition.

Now, he may be referring to the Halacha of Lo taamod al dam reyecha, but it is hard to believe that even David Stav is that misguided. Lo Taamod simply means that we must come to the aid of a Jew who is in danger and make sure they are not harmed. Certainly, we cannot forgo their distress of danger and cry for rescue. But nowhere does “Halacha” say that we should not forgo someone’s lingering (self-perpetuating) pain for long ago events to help them harass and prosecute a fellow Jew. It doesn't matter what he or she claims the fellow Jew did ten years ago.

nor can we shamelessly protect the actions of an accused criminal who has not been forced to face a system of justice.

This one really baffles me.

When an accused criminal is actively engaging in criminal actions, we ought not protect those actions. However, if the accused criminal is no longer engaging in the criminal actions, then there are no criminal actions to “shamelessly protect”.

David Stav is reframing the situation in a very deceptive and distorted manner. This is disgraceful.

All this has little to do with the accused criminal himself (or herself). In today’s day and age, we have no authority to force anybody to face any system of justice. Today there are no punishments of knasos (punitive financial cases). According to the very first Halacha in Choshen Mishpat (1:1), we can only take a person to Beis Din – or any court – for financial disputes, unpaid debts, spousal payments, inheritances, and personal injury or property damage. We can also turn to courts to be mesalek (neutralize) an ongoing damage or threat. This includes reporting an active sex offender.

But for punishment or “justice” for bygone events, we have absolutely no authority or permission. We cannot try or report crimes that happened yesterday. Not in our generation. You don’t need to hear it from me. You can take it from HRHG Dovid Cohen, one of the leading advocates of turning in molesters, that we can only do this for protection and not for punishment (3:30 and 4:16).

It’s a shanda that Israel Chief Rabbi candidate David Stav does not know siman 1 of Choshen Mishpat and he doesn’t know siman 388, either.

Halacha requires that the accused be afforded a fair trial but that if proven guilty they must be punished for their crimes.

I dealt with this just a minute ago. There is no such Halacha in all of Shulchan Aruch. David Stav is living in the past. In the past, Beis Din (and BD only) was authorized to punish people for crimes if they were proven guilty. Not now. Regardless, we were never authorized to invite non-Jews to punish any Jew for a crime under any circumstances in all of our 3300 years of nationhood.

But, let me play along with this for a moment. My Torah tells us, even in the good old days, what punishments people get for whatever crimes. And it says that if a woman should engage in another woman, this is called “maaseh eretz mitrayim” and is punishable only by Rabbinic lashes after being warned to desist. If a woman “molests” another, it’s no more than personal injury from a Torah perspective. The Sappers and their supporters don’t like this, but this is what the Torah and poskim say. See Rambam Issurei Biah 21:8.

David Stav must have a different version of Rambam.

In any case, it is forbidden and disgraceful for any Jew to advocate using the goyim to carry out punishments for crimes at any time under any circumstances, and more so, if the punishments are way, way, way beyond what a Beit Din would do in Talmudic times. Prison is much worse than getting Rabbinic lashes and going right back home.

Halacha also mandates those who are aware of abuse of any kind, to report this to the relevant secular authorities.

“Halacha” mandates nothing of the kind. Perhaps Simon “Halacha” but not Shas and poskim. I mentioned Choshen Mishpat 388 which clearly states in seif 9:

It is forbidden to turn in a Jew to the hands of the non-Jews neither his person nor his property and even if he is wicked and even if he causes an individual personal distress…and anyone who turns in a Jew…has no share in the world to come.

This is the default. It was written a mere 500 years ago and nothing about it has changed. There are indeed conditions where we may overrule the default which basically hinges on the halachos of a rodef. So when there is abuse that meets the criteria of rodef, there is an exception to the law of mesira. But when it does not meet the criteria of rodef, it does not overrule the law of mesira. And one who performs it is subject to the repercussions stated in Shulchan Aruch (R”L).

This is the Halacha.

As such, David Stav is quite wrong when he writes that the Halacha mandates those who are aware of “abuse of any kind, to report…” It only applies to the “rodef” kind. Not the not-rodef kind. I already wrote why there is certainly no rodef in Australia (as if such a discussion should really be necessary).

What is just as troubling is that David Stav writes “those who are aware…” Now, a victim can be considered aware, but one who is not a victim is certainly not aware even if they heard things second hand or from a victim. The Chofetz Chaim writes this as does Rav Elyashiv, ZT”L. This is what is called Halacha.

Of course, we know that many governments mandate such reporting, but the Halacha does not. Mandated reporting is a very complicated sugya. I haven’t covered it yet, but it may be next on my list (I haven’t finished techeiles or prenups). In a nutshell, the halachos of mesira that I covered in my posts stand firm. When the mesira is permitted it is permitted with or without mandated reporting laws and when it is forbidden, it is forbidden with or without mandated reporting laws. One cannot be moser another Jew to keep himself out of trouble. This will obviously cause a number of cases of people in tight spots and in each and every case, a qualified Rav must be consulted. This is clearly stated by Rav Elyashiv ZT”L. There are no blanket global hetterim and no shortcuts. Sorry.

In today's day and age, it is the responsibility of secular authorities -  the police and the secular courts -  to enforce and prosecute crimes in the jurisdictions in which the alleged acts took place.

I do not think David Stav grasps that precisely because "it is the responsibility of secular authorities to enforce and prosecute crimes in the jurisdictions in which the alleged acts took place", that this is why the Halacha forbade us from voluntarily cooperating with these authorities. This is called “mesira” and it is unequivocally forbidden anywhere in the world for the sake of “justice”, punishment, or closure. It is only permitted for protection from continued activity, when there are no other options.

So, from our perspective, the hetter for mesira, when it is permissible, is on account of potential future activities, not past ones. Thus, the only secular jurisdiction that we are allowed to cooperate with is that of the potential future activities, not the secular jurisdiction of the past activities.

Now that we have cleared this up, here comes the most horrendously appalling issue with David Stav and what he calls “Halacha”.

David Stav actually once upon a time announced his candidacy for Chief Rabbi of Israel. Of Israel! Sounds a bit nationalistic, doesn't it? One would expect such a person to at least know the halachos that pertain to kedushas haaretz and harbor a love for this land. One who does not, sincerely deserves the epithet “am haaretz”.

So, all throughout this episode I have been incessantly quoting the Halacha clearly stated in Yoreh Deah 267:84-5. The Halacha clearly states as follows:

(84) A canaani servant who wishes to immigrate to Israel, we force his master to go with him…if the master wants to emigrate from Israel, he cannot force the servant to go unless he agrees. This law applies even in our times when the land is under the rule of the non-Jews.

(85) A servant who fled from the diaspora to Israel, we do not send him back. And this is the Torah prohibition of Lo Tasgir eved…

From these two Halachos together we learn that:

·         A “partial” Jew (canaani servant) cannot be forcibly extradited from the land.

·         This is not just a Rabbinic “Halacha” but an overt Torah prohibition (לא תעשה מדאורייתא).

·         This even applied in pre-1948 and certainly it applies after 1948.

A Torah prohibition on a partial Jew that is clearly in effect today! Is a full Jew any less protected?

In case you may believe so, in defiance of all logic (see Choshen Mishpat 420:1), let me cite another Halacha that I have thus far overlooked (hat tip my soldier son, Eli). It is not in Shulchan Aruch, it is only in the Rambam from the gemara Makkos 7a. Rambam states (Sanhedrin 13:8):

One who was convicted in a Beit Din in chutz l’aretz and he flees to another Beit Din in Eretz Yisroel, his verdict is automatically overturned and he must be tried anew [in Eretz Yisroel]…

Jurisdiction “in which the alleged acts took place”?? David Stav, are you kidding me? Even if the accused was totally convicted in the “jurisdiction in which the alleged acts took place”, if he comes to Eretz Yisroel, he gets a brand new trial here in Eretz Yisroel! How much more so if he (or she) was never tried in the first place and is now here in Eretz Yisroel!

Mr. Stav, do you have another version of Rambam? Do you have another version of gemara Makkos? Do you know any Halacha whatsoever?? (I am quite a bit perturbed at this point!)

In this case, in the interests of Halacha and caring for Torah values and the integrity of each and every person, we call upon the Israeli authorities to immediately allow for Malka Leifer’s extradition to Australia.

No, my friend. You are not speaking in the interests of Halacha or kedushas Eretz Yisroel. You are speaking in the interests of yourself and of the Sapper sisters. And, don’t you dare speak for the integrity of genuine Torah observant Jews. 

The pain that these sisters, and others, have experienced at the hands of this woman require that all who appreciate justice and love their fellow man, support this campaign. 

Ahem, how do you know they suffered any pain at the hands of this woman? Were you there? Did you hear the case from both sides? Did this woman confess? Is there any physical evidence?

In any case, neither the Halacha nor their pain requires this campaign to violate our Halacha forbidding extradition.

I am done with this letter. But to conclude, I want to comment on what David Stav said in a J-Wire interview:

"I don’t have the words to express my embarrassment for people who would use Torah to defend the actions of people who have acted in such a way,” he said. Comparing sexual abuse to a type of emotional murder, Rabbi Stav said, “Those who prohibit a man or woman to complain to the police are responsible for future cases.  They will not be able to say we didn’t know.  The blood of the future victims is screaming from the earth to say ‘you are responsible’”.

I will, for now, skip the first line and deal with the rest.

Comparing sexual abuse to a type of emotional murder,…

Romantic comparisons are nice, but one cannot turn them into Halacha if they are not genuine.

Murder means when you kill someone and they are dead. Not breathing or eating or maintaining a normal family (re: Nicole), or jet setting and taking holidays to Ventnor, Phillip Island and going around making public appearances and TV documentaries. DEAD! These girls are very much alive physically and emotionally (though not spiritually, but that is their own doing). Nobody was murdered. Not physically, not emotionally. At best, injured, but not murdered.

The Torah compares some types of sexual abuse to murder to teach the laws of rodef but there are two main stipulations: it must be giluy arayos, and it must be forced. Neither of these apply here. 

“Those who prohibit a man or woman to complain to the police are responsible for future cases…etc.

It is the Rambam, Shulchan Aruch and Chofetz Chaim and even Rav Elyashiv who prohibit a man or woman to complain to the police in cases such as this. If you wish to blame them for future cases, be my guest, but do so at your own riskin’.

Now, the first line:

“I don’t have the words to express my embarrassment for people who would use Torah to defend the actions of people who have acted in such a way,”

I do have the words to express my embarrassment for people like David Stav. Disgraceful, appalling and  מגלה פנים בתורה שלא כהלכה.

Here, once again, David Stav is reframing the situation in a very deceptive and distorted manner. This is equally disgraceful.

My friend, nobody is using Torah to defend the alleged actions of 2002-2007. I am only using Torah to criticize the actions of the Sapper sisters and their supporters in 2018 and to bemoan the wanton and unjustified chillul Hashem that is occurring as a result of these 2018 actions.

Sof davar, I call on (Rabbi) David Stav, if he has any Halachic integrity and any regard for kedushas haaretz, to either verify his Halachic assertions in the face of my challenges – i.e., refute my Halachic sources – or to retract his letter.

As for the Sapper sisters, if they want to make a Halachic case to justify their activities, they need to find someone who is really a Rabbi and really Orthodox.

כי הנה הסתיו עבר הגשם חלף הלך לו...וקול התור[ה] נשמע בארצנו!