By Rabbi Daniel Eidensohn (Daas Torah blog)
October 2, 2013
There have been a number of anonymous individuals who have repeatedly insisted - without offering any evidence - that the Aguda's policy on reporting child abuse is identical with Rav Eliashiv's written teshuva on the matter. For someone who has patience and a strong stomach - I would suggest rereading the posts linked below. 1) Rav Eliashiv deals with the issue of tikun olam as a justification for allowing things such as reporting molesters to the police. He mentions the issue of mandated reporting but then says that he is dealing with the issue of tikun olam. 2) He clearly states that if it is definitely a case of molesting that the police can be called. 3) He says the police can be called if there is raglayim ledavar ( reasonable evidence). The Aguda claims that only a rabbi can determine whether the level of raglayim ledavar exists (Rav Eliashiv does not write that). 4) He does say if there is no raglayim ledavar then the police can not be called. 5) The Aguda claims there is no conflict between having a rabbi decide whether you can go to the police and the requirements of mandated reporting. Rav Eliashiv does not say that and says that if there is justification from tikun olam to call the police one does not need the heter that the king ordered it (mandated reporting) in order to call the police. He indicates based on the Ritva that it is necessary to obey the mandated reporting law if it exists which is also the position of Rav Moshe Feinstein based on BM 83
Rav Eliashiv's position
Rav Eliashiv (Kovetz Teshuvos 3:231): We learn from the Rashba’s words that when action is needed for the well being of society (tikun olam), that the Jewish sages have the ability in every generation to act to preserve the society and to repair breaches – even when there isn’t a specific order from the king. The Ritva (Bava Metzia 83b) has stated that this order of the king is “if the king says to capture certain criminals, even though the government will judge without witnesses and warning [as required by Torah law] and there is no functioning Sanhedrin [as required by Torah law] – it is still permitted since he is acting as the agent of the king. Since it is the law of the land to execute criminals without the testimony of witnesses and warning - as it states [Shmuel 2’ 1:5-16] that Dovid killed the Amalekite ger who had acceded to Shaul’s request to kill him -the agent of the king is like him.” However according to what has been said, in a matter which is needed for the well being of society
Rav Eliashiv (Kovetz Teshuvos 3:231): It is permitted to notify the government authorities only in the case which it is certain that the accused has been sexually abusing children. Informing the authorities in such a case is clearly something for the well being of the society (tikun olam). … However in a case where there is no proof that this activity is happening but it is merely a conjecture or suspicion, if we permit the calling of the authorities - not only would it not be an improvement (tikun olam) - but it would destroy society. That is because it is possible that allegations are being made solely because of some bitterness the student has against his teacher or because of some unfounded fantasy. As a result of these false allegations the accused will be placed in a situation for which death is better than life – even though he is innocent. Therefore I do not see any justification for calling the authorities in such circumstances.
Rav Eliashiv(Nishmas Avraham 4:208-211): Rav Eliashiv told me that there is in fact no difference in halacha between a teacher who is molesting boys or girls since in both cases we are talking about severe mental damages and danger to the public. He cited the Beis Yosef who cites the Rashba regarding R’ Eliezar ben Rav Shimon (Bava Metzia 83a) who reported thieves to the government… Regarding this Rav Eliashiv said that we learn from this that surely in the case of child abuse which is more severe then theft that it would be permitted to first report it to the principal of the school and if he doesn’t do anything to report the matter to the police even in the Diaspora.
Rav Eliashiv (Nishmas Avraham 4:208-211): Rav Eliashiv told me that it is permitted for a doctor to report the life threatening abuse to the authorities even when there is a possibility [in the Diaspora] that the child will be sent to a non-Jewish family or institution. However the doctor is then required to the best of his ability to see that the child is transferred to a Jewish family or institution.