Getting Hurt Where it Counts

Let’s briefly recap where we’ve been the last two posts.

We were discussing the Halachic phenomenon of forbidden marriages which, technically, need to be dissolved.  We noted that in almost all scenarios the forbidden status is in effect before the couple gets hitched so such a marriage can only occur among people who were not aware of the problematic status up front. Once a marriage is problem free, nobody will suddenly become forbidden. So, before you pick a spouse, open up a Shulchan Aruch or learn Yevamos and you’ll be all right.

We then noted that this is not always the case. Of course, if a woman is willfully unfaithful, she becomes forbidden to her husband. But this is very easily remedied – just stay faithful. Being unfaithful is a choice. Nobody can force a woman to be unfaithful, except…that’s right, we all know…if the husband is a Kohein.

In fact, let me relate as follows:

The Introduction of my book was meant to explain the reason I felt the urge to write it. I wrote that from the time I made Aliyah in 1997 I was disturbed (though not surprised) at all the negative propaganda and demonizing of the chareidi community that was prevalent in the general Israeli media. I felt that the chareidi world needed a public relations voice and an “Everything You Wanted to Know about Chareidim” digest to give some kind of counter-balance. Hence my book.

Among the countless examples of such demonizing propaganda was a news item that appeared in [Y]Idiot Achronot (now YNet) sometime around 1998 or so. A journalist reported that a man in Bnei Brak will need to divorce his wife, the mother of his nine children, because she was violated and the husband did not say “I don’t believe you”.

I don’t read [Y]Idiot Achronot so it must have been that the story was picked up second-hand by the J. Post or Arutz 7 but it was reported as a [Y]Idiot Achronot story. The story did not provide any details of the incident or of the people involved but it immediately drew a lot of skepticism. The obvious flaw is that if a woman is forcibly violated, even if the husband does believe her, she does not become forbidden unless he is a kohein; and there was no mention of such a thing in the story.

Sure enough, the paper I saw reported an update of the [Y]Idiot Achronot story that the husband was indeed a kohein but gave no further details. The skepticism didn’t stop for numerous reasons. Firstly, even in the case of a Kohein, as long as there are no witnesses, the husband does not need to pronounce “I don’t believe you.” The default is that the woman is not trusted to say she was violated regardless. It is only if the husband consciously chooses to accept her report that there may be a problem. But, if he likes his wife, why on earth would he do that?

There were other reasons for skepticism.  (1) No other medium reported the story firsthand. (2) Nobody in Bnei Brak was aware of the incident. (3) The logistics of a mother of nine being forcibly violated in Bnei Brak is exceedingly improbable. There were no details given of the incident so what precisely happened? Was it a home intruder? I don’t think so. Home intruders target women who are home alone at night. Married mothers of nine are not home alone at night and not too often alone during the daytime either. Was she on the streets going to the makolet or to a wedding? Let me assure you the streets of Bnei Brak are always filled with all types of women going to makolets or weddings, even, and especially, young, single or newlywed, well-endowed, supple ones. Do you mean to say that, from this crowd where young singles or newlyweds are the majority, some random rapist is going to pick out a late-30 or 40-something married lady who has gone through 9 childbirths and probably looks the part? Was this a blind rapist? And all this when right down the road we have Givat Shmuel and Bar Ilan U teeming with saucy tzatzkelach ripe for the picking with no husbands to look after them?

The whole story didn’t click.

Evidently, I wasn’t the only skeptic. The reporter was pressed for details by some other folks and he owned up that he fabricated the entire story. He apparently wanted to demonize the Torah community and lifestyle by showing how “mamzerush” our Halachos can be. But he couldn’t seem to find a real life case, so he had to make one up. As I recall, he was severely reprimanded but I don’t believe he was dismissed.

So, we have learned from this story that even though it is indeed true that if the wife of a kohein is publicly raped, she will be forbidden, it’s not very likely to happen. Boruch Hashem, Torah observant married women who live in Jewish communities and don’t wander about will not become first-string targets for a crazed rapist. But, more importantly, as long as the incident did not occur in the presence of two valid Jewish witnesses – and how likely is this to happen? – we can always get the couple off the hook.

So, as tragic as such an incident might be, I am personally not aware of any true life cases. I hope this applies to all my readers. So what’s left?

I gather that most of the learned male readers who are still reading this post know what’s coming. Likewise, I gather that almost all of those from the female persuasion cannot begin to guess.

This is going to be “below the belt”.

Many years ago in yeshiva, a chavrusa of mine told me about a boy he knew in camp who was hit by a baseball bat right between the legs. He finished the story by saying, “Now, he’s half the man he used to be.” To be candid, it means that one of his testicles was severely ruptured and needed to be removed.

The obvious sentiment was “Poor fellow…glad it didn’t happen to anybody I know…I hope he recovers okay and has a normal life…” But beyond that I didn’t think much of it. “Okay, he’ll look a bit different in an area that nobody really looks at anyway and hopefully, he’ll fly along nicely on a single engine. Shouldn’t be worse than having only one kidney. Everything else is still there. Life goes on. He'll get married.”

Not quite so simple.

How many readers know what a petzuah daka is? And how many readers, even those from my side of the mechitza, really know what it is?

Many of us haven’t learned through all of Yevamos and haven’t learned Even HaEzer (5). We only hear of this once a year when we read Parshat Ki Teitzei (Devarim 23:2) and then glance at Unkelos and Rashi who, thankfully, don’t go into much detail. Unkelos merely says “one who was emasculated”. Rashi is a bit more specific but mainly refers us to look up Yevamos. Almost nobody else comments on this pasuk. To be brief, it means one who has sustained a serious injury to one or both “stones”.

Many people assume that it refers to somebody born with a strange deformity where his system was never properly developed or some kind of hermaphrodite or somebody who has his entire reproductive apparatus removed. People also confuse it as if it is just another term for the other injury in the pasuk – krus shafcha – which means “Bobbitized”.  We don’t prefer to think of it as something that can happen to any normal, fully developed, productive person in summer camp as a result of a common injury or wound.

I think it’s important to go into a little into detail as to what is called a petzuah daka. I intend to do so and will try not to get too graphic. The reason it is so important is that it applies today as much as it ever has and the game is for keeps. Because, aside from being uninformed as to exactly what constitutes a petzuah daka, many of us don’t realize what is at stake.

A petzuah daka, like a mamzer, is a pasulei kahal. This means he is not allowed to be married to any regular Jewish woman. Period. It does not only mean that if he is single he cannot marry one. It means that even if he is married, with or without children, he must divorce his wife. Even if he has plenty of children and doesn’t want or need any more. Even if he still has plenty of working parts and is capable of carrying out sexual intercourse and intimacy. He is forbidden to have relations with her!

Even if he is old and, due to natural impotence (which does not make one a petzuah daka), he has no desire for marital relations and hasn’t conducted any for some time. According to the Halacha they must divorce. And all this is when his original marriage was perfectly kosher!

A bit shocking, isn’t it?

And after he divorces, no matter how distinguished he is, he cannot be married to anybody – except to a convert. According to the Rambam and Mechaber in Shulchan Aruch, he even cannot marry a mamzeret. (The Rem”a says that there are those who permit a mamzeret, so if one is, chas v’shalom, a petzuah daka, he’s better off an Ashkenazi one.)  

Get this? A mamzer, Mitzri rishon or sheni, and a Moavi or Amoni can all marry women like themselves besides a standard giyores. And if they do, they don’t have to worry about any heartbreaks because nobody’s status will change. Even if they later become a petzuah daka they don’t have to divorce because they are already married to a pasulei kahal. But the perfectly fine Jew from the most distinguished family who is married with children and suddenly becomes a petzuah daka must lose his wife and kids, and then what?

He cannot marry another petzuah daka because there is no such thing as a female petzuah daka. And, like the Rambam, not even a mamzeret! Only a convert or emancipated shifcha.

Even in a case where the wife of a kohein is violated and he must give her up (very unlikely and very tragic), but at the very least he can go on and marry any normal single Jewish girl and start again. There are lots of them. But this petzuah daka fellow – only a convert. If he can't find one or can't deal with one, he is stuck. No breaks.

A male Agunah!

And the wife that he was forced to divorce can go ahead and marry somebody else and have another brood of kids!

Oh, and by the way, if somebody did not start out with perfect anatomy and health but was born underdeveloped, totally sterile and totally impotent and missing all kinds of parts, as long as he is unquestionably a male, he may marry any eligible Jewish girl in the world; the daughter of the Gadol Hador, the Admor, or the Kohein Gadol! Yet, this fellow who was born whole and married whole and just got tzeklopped yesterday – he’s out of business.

As Jackie Mason – a Kohein who has been around the block with every type of person he cannot marry – would say: “Ya unduhstend dis??”

The prohibition applies to this very day to one who is unfortunate enough to be Halchically deemed a petzuah daka. Since it is rarely reversible, it is usually a life sentence to loneliness and isolation. Even when it is reversible, the status and all relevant halachos are in place until it is actually reversed!

I doubt that you or I or any of the Gedolei Yisroel can imagine anything worse. And so it is absolutely imperative to know exactly what counts as a petzuah daka and what doesn’t. Which cases can be easily and happily resolved, which cases need to depend on controversial rulings, and which cases are, R”L, too far gone. And, like the pots and pans in your kitchen, you need to know when there is a question to be asked. Many people are not aware of the issues with prostate surgery and that a vasectomy can terminate a lot more than the conception of future offspring.

I have been doing a ton of research and I hope to have some guidelines in the upcoming post. We’ll have a better idea if our friend who lost the ballgame in camp is really in the dugout (if he can function, he is most likely all right, but it’s still not simple). In the meantime, those of us who are whole in body and mind should thank Hashem every day for their health and their family and pray that things don’t change.

Don’t mess with the family jewels. They are worth more than you know.

Once a Mamzer, Always a Mamzer

In my last post I very audaciously referred to Masechet Yevamos as a “mamzer” Masechta. That is not a very nice term. This is because we all think of a mamzer as one who is not a very nice person.

When the term “mamzer” is used as a metaphor, we may have two concepts in mind. The first is that a mamzer is illegitimate. Trust me, chas v’shalom, this is definitely not the concept I was thinking about when I used the term here except, perhaps, in the sense of it being an outcast. Even that is not really true. Yevamos is in no way illegitimate and not really an outcast though I am sure that many people learning it would rather be learning something else.

The second concept is the more applicable one. A mamzer is one who is cold, conniving, and insensitive to anybody else. Very unsympathetic. Not only is he insensitive to the pain of others, he is not hesitant to inflict such pain himself. If you’ll pardon the expression, a real ba****rd!

When we open Masechet Yevamos we would expect it to begin telling us how and when to perform the great mitzvah of yibum. But it doesn’t. It opens by how and when not to perform the mitzvah of yibum. It begins that 15 types of relations are not marriageable and therefore it cancels the mitzvah even for a kosher tzara (step-wife). And thus Masechet Yevamos become our encyclopedia of forbidden relationships.

So now, a brief overview on forbidden relationships. For our purposes we can split these relationships into 2 categories:

·         Issur Misa/Kares – Calls for death penalty

·         Issur Lav – Calls for judicial flogging

All incestuous relationships, homosexuality, bestiality and eishes ish (adultery) go into the first category. The second category is a list of lesser “crimes” that include: Issurei Kehuna (Divorcee, Convert or “Zonah”), Machzir Grushaso, Yevama L’Shuk, and Issurei Kehal (Mamzer, Moavi, Mitzri Rishon and some others).

There are two basic distinctions between the two categories. The first and obvious one is the judicial penalty for a willful infraction. As noted, the first category calls for death or kares (which is close to the same thing). The second category is satisfied with 39 lashes. This has no practical ramification in today’s era because we have no judicial punishments of any type nowadays.

The second distinction is as follows. Although in all of these cases, marriage between affected parties is strictly forbidden, in the cases of Category 1 even if the pair attempts to get married (when possible), it doesn’t work. The marriage does not take hold and is automatically null and void. The second category is much different. In these cases, the marriage does take hold but is considered a forbidden unkosher marriage. The parties are halachically required to divorce (in all cases). In days of yore when our batei din were empowered, they would force the separation. Nowadays, although Beis din usually cannot actively force them to separate, they can decree it; as the requirement to do so is always still in effect. They can also apply all kinds of psychological, social or financial pressure. There is no such issue as a forced get in these kind of cases.

The upshot is that, in general, for Category 1 offenses, there is no such thing as marriage and, accordingly, no such thing as the tragedy of being required to dissolve a thriving marriage between two soulmates that may also involve children. In the cases of Category 2, it can happen that two people are happily married for quite some time and produce wonderful offspring and suddenly discover that their marriage is not halachically sanctioned. When this happens, as long as the criteria that caused the problem (e.g., his status as a Kohen and her status as a giyores) cannot be challenged, there is no kosher way to sustain the marriage. The couple must either divorce or flout the halacha and remain married “in sin”.

אהבתי את אדוני את אשתי ואת בני - לא אצא חפשי!

In real life cases, the rabbanim do everything in their power to invalidate a forbidden status which is sometimes successful in the case of Kehuna and oft-times successful in the case of Mamzerus. Sometimes they can “discover” that a giyores is really Jewish or that the supposed mamzer’s father (or mother) was really goyish (note Langer episode). They find all kinds of ways to invalidate a first marriage or, in a case of machzir gerushaso, the second marriage. But when the status is clear – a Kohen is a Kohen and a grusha is a grusha and a convert is a convert – there is no halachic way to fix the problem. With the exception of Yevama L’Shuk, all other statuses, once in place, are permanent.

When the chips are down, the halacha is firm. There is no way out. And in this sense, the halacha seems to be cold and heartless. Insensitive to the pain it causes. Very unsympathetic. Mamzerish.

Of course, Halacha is very firm and unyielding in every area. Kashrus, Shabbos, and certainly in Taharas HaMishpacha. But the stakes aren’t very high. Okay, so you have to kasher all your pots and throw out your dishes because of those mislabeled chickens. You’ll get over it. And so what if your house is burning down and there are no goyim around. It’s (partially) insured and its only eitzim and avanim. And as for your wife and what happened on the morning before your 25^th wedding anniversary – well, there’s always next year.

But to dissolve a marriage and break up a family? A loving thriving one? With no hope of any remedy?

Can there be a bigger tragedy?

I imagine that most of us are not aware of any first hand cases where this actually happened. But I suspect that it’s not because the cases do not occur. I think that they are either resolved using the most far-fetched shoe-string hetteirim or all relevant parties just look the other way and pretend the prohibition is not there. One person who was my personal physician in the US was from a very prominent Orthodox family but he wafted in and out. Yep, he is a Kohen and he is married to a giyores. He told me so. He knows everything. And he does want to be more religious but he is not about to give up his wife and nobody is going to interfere. When his father passed away he actually came to my shul to daven shacharis so he could say Kaddish. When krias haTorah came around he didn’t want to go up for Kohen (he knew he is not qualified to) but Mr. “Kaufman” insisted he goes up (he was also his patient.) Afterwards, I asked the rav, “Can he do that?” and he said, “Of course not.” But he wasn’t going to fight Mr. “Kaufman”.

In this regard, an observer may view our Halachic system as draconian. Do we need to join the Hindus with a caste system and “untouchables”? The Torah that is in general so compassionate and sensitive to Human emotions and shortcomings, that presents a myriad of laws revolving around ואהבת לרעך כמוך and, as Hillel said, “What is distasteful to you, do not do to your comrade - and the rest is commentary…” – how can it be so “mamzerish” when it comes to our most cherished relationships?

Well, the first thing we need to understand is that HKBH only wants what is best for us, and so, the Torah requires us to live in a cohesive family oriented society. What we call a “nuclear” family. Accordingly, HKBH gave us mitzvos “designed” to protect and preserve such a society. We must understand that what is necessary to protect such a society can inevitably be harmful to an individual.

Let’s discuss adultery.

In any civilized society, there must be a sense of title and order. If marital relations were to be open-ended, lustful men would steal away attractive wives one from another, fights would erupt and people would kill each other. It would be a jungle. So HKBH must decree that an eishes ish is forbidden to any other man under the most extreme penalty.

Moreover, in a family oriented society, it is imperative that a woman becomes and remains a man’s wife and bears and nurtures his children. This is by no means a glamorous job. If marital relations were to be open-ended, women would roam from hut to hut looking for a better deal. Husbands wouldn’t be husbands and wives wouldn’t be wives and siblings wouldn’t be siblings. It would be Sodom and Amora. So HKBH must decree that a woman can only change partners if her husband releases her. Until then, she remains an eishes ish.

Still and all, an envious man may lust after another’s wife (Lo Tachmod) and coerce him to release her to him by law (make him “an offer he can’t refuse”). So HKBH must decree that a man cannot be coerced to release his wife.

All of these laws are necessary in order to preserve a civilized, productive society. But what will inevitably happen is that a woman who cannot co-exist with her husband or who is abandoned by her husband may not be able to obtain a consensual release. And she will be chained.

And so we deal with the Agunah problem.

Activists claim that the laws of the Torah are unfair and need to changed. But, above all, we must acknowledge that these laws are very necessary for the good of society at large. And any magic-bullet solution that makes the basic intent irrelevant will do more harm to society than good. It is an unfortunate side-effect that in some cases, individuals must suffer. In truth, BTW, the batei denim can resolve most cases as long as misguided people do not interfere, so the Agunah problem is not as extensive as it is made out to be.

After all this, adventurous married men and women may still want to misbehave on a short-term basis without considering long-term repercussions. Or a restless “agunah” may not want to wait for things to get sorted out and jump the gun. So, to prevent this, HKBH must “up the ante” by decreeing that even for a short-term liaison, the resulting offspring will be permanently illegitimate (mamzer).

And so we see that the innocent offspring must carry the shame of his parents’ indulgences. He must suffer for what is in effect the greater good of society.

After all this, adventurous people may want to try to legitimize their indulgences by granting temporary short-term divorces and then remarrying their spouses - what is known as “wife-swapping”. So HKBH must decree that if one divorces their wife and she marries another, she cannot be remarried (machzir grushaso).

Again, this is necessary for the good of greater society; yet, one who hastily divorces and breaks up their family and later regrets their hasty departure and is aching for reconciliation will be forever barred from correcting their error.

All of these deviant practices along with the debauchery of incest, bestiality, homosexuality, and fire worship (Molech) comprise the maaseh Eretz Mitzrayim and Eretz Canaan that we must desist from or else we will become like them – and get spit out of our land.

Aside from the need to prioritize the welfare of society above the welfare of the individual, we must acknowledge that the Torah was written for those who keep its laws. And, more than not, the “FFB” Torah observant community is relatively immune from the problem of forbidden marriages. (Of course, we are not totally immune from anything, but I mean in a relative sense.) It is most often those who are from families where the previous generations were not observant and who are not aware of the full list of forbidden relationships when they marry who are vulnerable to suddenly discovering that their marriage may not be “kosher”.

This is because in all these cases, the prohibition is in effect before one gets married. A Kohein is born a Kohein and a mamzer is born a mamzer (though it is very possible that he won’t know it) and a giyores is born a non-Jew. A divorcee becomes a divorcee before they move on to the next marriage. As such, the problematic status is always in effect from the outset.

An observant Kohen knows all the rules. He knows what to look for and not to get stuck.* Or, if we are dealing with a shidduch where there is the slightest chance of mamzerus, such as a non-observant grandmother who was married twice, we know to check it out properly to determine the status or to avoid it. An observant couple knows that if the wife remarries after they divorce, the husband cannot take her back; so they are more cautious about deciding to divorce in the first place.

*[Of course, there is always room for mishaps; most likely in a case where a mamzer truly did not know they are a mamzer and when it is not obvious that a woman is unfit for a Kohein.
It is very important that a regular girl who is dating knows some of the rules. The main issue is that if a girl was adopted from a non-Jewish origin, she is unfit for a Kohen. There are situations where the girl either did not know she was adopted, or the girl or her family did not think it was necessary to inform the boy that she was adopted but the boy was a Kohen! Very unwise.
But there is another issue that doesn’t get much press. And since we have spoken so much in the past about child abuse, it must be brought up. If a girl above the age of three was molested by a father, grandfather, brother, or non-Jew (but not an uncle or cousin), and the abuse consisted of genuine sexual contact below the waste, front or back, if the activity meets the criteria of a halachic sex act (maaseh biah), she is unfit for a Kohein.
Obviously, a qualified Rav must be consulted to determine if the act meets this qualification, but it doesn’t take much since it does not require penetration or climax. This is imperative before one is married. If such a girl is already married to a Kohein and nobody else knows about it, then the status is similar to a woman who was unfaithful in that she is not trustworthy to say she was molested. So don’t tell anybody. If others know about it, she may, chas v’shalom, be in trouble. Call a Rav but don’t tell your husband first.]  

So, all told, we find that Yevamos is not so evil, after all. Of course, forbidden marriages that must be dissolved are devastating tragedies, but Yevamos tells us how to avoid them. Sadly, among the baalei teshuva, they are much more common. As unfortunate as this is, it is part of the baggage that those who have strayed – or their offspring – must carry. For perpetual Torah observant Jews, these occurrences are exceedingly rare. This is because, a forbidden marriage starts out forbidden, and stays that way for as long as the marriage is in effect. But a marriage that is on the up and up, stays kosher. Nobody who wasn’t already a mamzer can become a mamzer after they are married. Nor can somebody who wasn’t a Kohen become a Kohen. A born Jew can’t become a convert and a convert cannot become a born Jew. And nobody who initially married Reuven Cohen can suddenly become a divorcee from Shimon Stern in the middle of her first marriage.

This is almost fool-proof. Except that fools can be so crafty. Yes, there are a few exceptions. The obvious one is an unfaithful wife, but it doesn’t really count because I am writing about those who follow the rules, not those that violate them (and themselves). But there are some other exceptions that can apply even to those who have not broken any rules. And that is what I really have wanted to write about over these last two posts.

I can think of two such cases. But the exact details and the reason I decided to discuss it will need to wait for another post.

It is a matter of the utmost impotence.

The "Mamzer" Masechta

Purim is looming close so it may be appropriate to present one of my all-time hallmark tongue-in-cheek vertels; although my intention is to get very, very serious. Here it is:

The pasuk says in Bamidbar (11:10): וישמע משה את העם בכה למשפחותיו

And Moshe heard the nation crying about their families.

Rashi quotes the chazal in Yoma 75a: על עסקי משפחות – על עריות שנאסרו להם

They were crying regarding family matters; on the incestuous relations that were forbidden to them.

So, according to this chazal, our ancestors were crying over the freshly delivered prohibition of indulging in forbidden relations.

One may want to ask:  Why is this such a great tragedy? Polygamy was not forbidden and most women in the world are not close relatives. Most people wouldn’t want to get involved with their sisters, our aunts are usually older and our nieces are permitted. There’s plenty of “legal game” in the forest so what’s all the commotion about?

The answer lies in the far-sightedness of our ancestors. From the moment that they were forbidden incestuous relations they understood that we will now have to define the 15 types of relations that exempt the step-wives from yibum. We will now have to deal with the issues of Tzaras habas, achos tzara, aseh docheh lo taaseh, edus isha, etc. In short, we have just created a “monster” – Masechet Yevamos. And from now on for all generations we are condemned to being forced to study Masechet Yevamos. 

No wonder they were crying!

There is an adage that says that there are three masechtos in Shas that are so complicated that even after one studies them he is still called an עני – a poor person.  They are so hard to master and usually one remains bewildered, at a loss.  These three masechtos are indicated by the acronym ענ"י. They are:

Eruvin -  ערובין

Niddah – נדה

Yevamos – יבמות

I think that the connection between these three masechtos is that, aside from being complicated, they deal with some very unpleasant and unpopular aspects of Jewish life. They are all Torah decrees (Niddah and Yevamos) or Rabbinic decrees (Eruvin) that most of us would prefer not to have been incorporated into our Halachic database.  It is not only the burden of having to master the laws, but more so the burden of having to carry them out.

Life isn’t easy for the Torah observant Jews. Our ancestors sure knew what they were crying about.

Don’t get me wrong. Yevamos is still a “team” masechta and is among the “Yeshivisha” masechtas that make up the learning cycle in the great Litivishe yeshivos. But rarely does it get fully digested. The introspective (Iyun) programs never really get past the sugya of aseh docheh lo taaseh (folio 10). In the afternoons they will do HaIsha Shalom, but somehow, the dark recesses of Yevamos usually remain unexplored. The Litvishes don’t usually finish the masechta and those who learn daf yomi are normally studying too superficially to absorb the massive flow of material.

People tend to undermine the significance of this masechet because the main subject, Yevamos – levirate marriage, is all but irrelevant in today’s day and age. Of course, the rules still apply, so on very rare and tragic occasions, we need to conduct a chalitza. Yet, when we step back to look at the whole picture, we note that Yevamos is at the head of the four primary masechtos, Yevamos-Kesubos-Gittin-Kidushin, that comprise seder Nashim (Nedarim, Nazir and Sota are more or less tag-alongs). One way to understand the sequence is based on the rule that the masechet with the most chapters gets first billing. So Yevamos leads with 16, Kesubos with 13, Gittin with 9 and Kiddushin with 4.

But this just happens to “coincide” with another explanation for the sequence: Before one takes a wife in marriage he must know (1) who he is allowed to marry and who not (Yevamos), then (2) what are his rights and obligations in marriage (Kesubos), then (3) how to dissolve the marriage if things don’t work out as they should (Gittin), and finally, (4) only then is he ready to learn how to actually perform the marriage (Kiddushin).

So, all told, Masechet Yevamos doesn’t get much glory. I suppose it could be called a “mamzer” masechta; partly because it is so unpopular and partly because forbidden relationships and mamzerus is one of the subjects it deals with.

And this is the subject that I want to deal with, as well. So, stay tuned for the next post, one of the most neglected issues discussed in Yevamos, and why we neglect it. Stay tuned for “The Male Agunah”.

No, it’s not what you think…

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…