May 30, 2011
Rabbi Yosef Shalom Elyashiv, the chief posek for the Charedi non Chassidic community, especially in Israel, issued the following ruling in 2004 in Yeshurun. The translation below is from Rabbi Dr Asher Lipner. The original question and answer is here.
BS”D Fast of the Tenth (Month) 5764
To my friend etc. Rabbi Shraga Feivel Cohen etc.
I received his letter in its time and was unable to respond until “a day on which scholars take a holiday.” The essence of the letter: one knows that someone is sexually abusing a boy or a girl in a manner in which we are incapable of stopping him from continuing his evil deeds, is it permissible to report such a matter to a government official?
This is the language of the Rashba (Rabbi Shlomo ben Aderet, Spain, 1235-1310, one of the foremost authorities in Jewish law) in his Responsa, III no. 393, “It appears to me that if the witnesses are believed by the selected judges, [these judges] are permitted to impose a monetary fine or corporal punishment, all in accord with their evaluation; and this maintains society. Because if you will adjudicate based only on the laws established by the Torah, society will be destroyed… And, therefore, those judges who did this, if they saw that the situation required [such action] for communal welfare, they acted legally, and certainly when they have been authorized by the government (to impose such punishment)…”
From the words of the Rashba we learn that in matters that concern societal welfare the Sages of Israel of every generation have the authority to make fences (to extend their authority and decide matters according to their best judgment) and to stand in the breach, even without government authorization. And concerning that which the Rashba wrote in his novel insights to Baba Metzia (84b) implies that this is (based on) governmental authority: “If they say to him ‘Arrest him,’ and we are dealing in a case in which there are no witnesses or forewarning and in which there is no Sanhedrin (Supreme Court that has the authority to impose capital punishment) [and therefore according to strict Jewish law a Jewish Court cannot convict such a person], this case is different because they (the members of the Jewish Court) are agents of the king (government) and the king’s law allows for capital punishment even without witnesses and forewarning, in order to discipline the world…” Accordingly, in matters of societal welfare it is not necessary to receive prior governmental approval.
The permission to report (an abuser) to the government is when one is certain that he transgressed, in this there is benefit to society. However, when there is no substance or foundation [to the allegation] but merely a dimyon (presumption), if we would allow (reports to the government) not only is this not for societal welfare, but this is societal destruction. It is possible that [a student may make false allegations] because of some bitterness that the student holds against the teacher or for some meaningless presumption that causes a person to think that his death is better than life—through no fault of [the teacher]. I do not see any permission in the matter.
Yosef Shalom Elyashiv
Rav Elyashiv’s willingness to permit cooperation with authorities diminishes when it comes to parental abuse of children. This has to do with the concern that the child will be removed from the parental home and given to a foster family that is either xtian or secular. “There is no doubt that this would harm the soul of the child, even if for a short while,” in such a situation, R’ Elyashiv stated that qualified Rabbis must be consulted in each case of parental abuse.
None of the above is new. What is new, however, is the recent Charedi Agudas Yisrael pronouncement:
But at a panel discussion titled “Molestation Issues and Reporting: Current Halachic Thinking,” the panel’s leader, Rabbi Shlomo Gottesman, cautioned that Elyashiv never explained what constitutes “reasonable suspicion.” To establish this, Gottesman said, a person should consult a rabbi “who has experience in these issues” before going to secular authorities.
“If [the rabbi] thinks reasonable suspicion has been met, then you would be allowed to overcome mesirah and report,” said Gottesman, a board member of Torah Umesorah, the National Society for Hebrew Day Schools.
Rabbi David Zwiebel, Agudah’s executive vice president, told the conference that even mandated reporters — teachers, social workers and people in certain other professions who are required by law to promptly report any suspected cases of sexual abuse — should consult a rabbi before going to the police.
This qualification by Agudas Yisrael brings us back to square one! In fact, it might be worse because even they acknowledge that nobody knows who the so-called qualified Rabbis are, Rabbi Yosef Blau of Yeshivah University, who was originally involved in the ill-fated case involving the guilty Baruch Lanner stated:
“There is no decent justification why anybody in their right mind should think rabbis are qualified to make that judgment.”
Indeed, check out this recent farcical case in Lakewood, where the Beis Din had to call a social worker to make the detemination and wasn’t even available to later hear what the social worker had unearthed!
Melbourne has its share of alleged predators, some of whom walk around in our community with impunity. Yes, it is true that in most cases victims will not formally go to a court of law and press charges. I am not here to judge them. However, I do have the following question, which is bothering me.
If I am a Rabbi, and I have undergone specialist training on abuse and I have seen victims who have testified to me about crimes a Melbourne predator has allegedly committed, and I believe those victims but I cannot convince the victims to go to the police, would I do everything in my power to make sure that those alleged predators
are not given opportunities to address youth in our community
are not able to sit on boards of community organisations
Sadly, in our own Melbourne community, there are alleged predators who continue to speak to our youth in both formal and informal manners presenting as some sort of “expert” as well as alleged predators who continue to sit on the boards of community organisations. Should those people be encouraged to remove themselves from such positions? The predators need to seek help. They need to admit what they have done and be under a supervised treatment regimen. We must protect society in whatever way we can. Some of these predators masquerade as if they never perpetrated any crime.
Surely, if we can’t get victims to press charges, removing alleged predators from positions of power or influence is the least we can do to protect the vulnerable ones in society?