By Rabbi Feivel Cohen (Jewish Action Magazine)
November 11, 2013
This letter is in response to a request from Jewish Action that I state my view and, to the best of my knowledge, that of Rav Yosef Shalom Elyashiv, zt”l, concerning the topic of reporting molestation.
What prompted this request was a letter published in the winter issue, in which the writer purports to set forth both my view and, more importantly, that of Rav Elyashiv on this topic.
Firstly, I thank the editorial board for making this request.
In order to set the record straight, I need to preface my comments with the following:
As is made clear in Rav Elyashiv’s written response (of which I have the original copy, and which was subsequently printed in Kovetz Teshuvos, a compendium of Rav Elyashiv’s responsa), his answer to the question posed to him is based on Teshuvas HaRashba (volume 3, siman 393; also quoted in the Beis Yosefon Choshen Mishpat, siman 2), in which the Rashba posits that any rav or group of rabbanim who have rabbinical jurisdiction over any locale have the Torah-authorized power to go beyond the punitive measures—both corporal and financial—generally set forth in the Torah for malefactors and impose such penalties as they deem appropriate.
This special empowerment is where one’s malfeasance tends to endanger the desired and called for societal contract among men.
It goes without saying that the aforementioned rav, or his appointed agent (“bo’rrim” in the Rashba’s parlance—not to be confused with the same term when used in the context of a beis din), must practice due diligence in determining the veracity of one who reports such conduct.
All of the above is adduced by the Rashba from numerous citations from the Gemara.
After quoting the Rashba, Rav Elyashiv clearly states that all of the above (that is to say both the nature of the penalty and the determination of the report’s veracity) is at the sole discretion of the rav, and at times, with the appointed agent.
The rav may find that it would be most valuable to seek the input of the secular authorities who have much experience in these matters and also to seek the input of individuals who are privately engaged professionally in these matters.
In conclusion, it is abundantly clear to me that according to Rav Elyashiv, it is absolutely forbidden for any individual to report any malfeasance to the secular authorities without prior authorization from a rav empowered to do so as described above.
Rabbi Feivel Cohen
Brooklyn, New York
Ed.: Please note the OU’s position, like that of the Rabbinical Council of America, is that “those with reasonable suspicion or first-hand knowledge of abuse or endangerment have a religious obligation to report that abuse to the secular legal authorities without delay.”