By Harriet Alexander (Syndey Morning Herald)
July 14, 2017
On day four of his defamation action against the Australian Jewish News, the rabbi began to pace.
It was complicated to explain why he said he did not know it was a crime to touch a child's genitals and what he meant when he said rabbis should deal with allegations of child abuse internally.
Yosef Yitzchak Feldman's frustration had apparently overwhelmed his ability to sit still.
Justice Lucy McCallum addressed his barrister. "Mr Cohen, I'm finding your client's pacing around and going to the side of the courtroom very distracting," she said.
The rabbi sat.
Mr Feldman is suing Polaris Media Pty Ltd, publisher of the Australian Jewish News [AJN], for three articles printed during the Royal Commission into Institutional Responses to Child Sex Abuse, which reported him giving evidence that he did not know that it was illegal for a man to touch the genitals of a child.
The case has delved into Mr Feldman's opinions on how best to deal with child abuse, which is a complicated matrix involving morality, legality, Jewish teachings and the reality of the Australian criminal code.
It has also exposed a rift between the influential rabbi and a newspaper that boasts a near 100 per cent penetration into the Jewish community that dates back to 2011 when the AJN reported on leaked emails between members of the Rabbinical Council of Australia and Mr Feldman.
Mr Feldman, then president of the rabbinical council, argued those who reported alleged child abusers to police were themselves committing a religious crime "by putting [the offender] in a situation where he could be raped or mistreated the way people are in jail", according to an email read as part of the defamation defence case.
Sue Chrysanthiou for Polaris Media put it to Mr Feldman on Monday that he stood by this belief. "I want to suggest to you that your view on this issue is, or at least was in 2011, that if a person committed an historical sexual abuse against a child … but was no longer a threat … your view is that person should never be reported to the secular authorities?"
Mr Feldman responded: "That was something I've always had an issue with, even until today." But he said it was theoretical because he now understood that it was a requirement under Australian law to report child abuse.
Mr Feldman also told the court he had reservations about a statement put out by the Rabbinical Council of Australia and reported on by the AJN that encouraged victims to come forward, as it could inspire false claims.
"I think it could lead to other people thinking … you know, 'I'll be a victim and I'll exaggerate a little bit'. Every victim is looked on as such heroes. 'Let's become a victim, even though I'm not really a victim'.
"The Jewish News loves this because it's what they're about, to sensationalise issues."
Mr Feldman claims that the AJN portrayed him as "reprehensibly ignorant" in its reports of the evidence he gave to the royal commission, when he was probed as to why he had not intervened in 2002 to prevent a man suspected of sexually abusing a teenager from leaving the country.
The suspect and victim were students at Yeshiva Sydney's Rabbinical College, where Mr Feldman was a director.
Asked whether he knew then that it was a crime to touch a child's genitals, Mr Feldman said: "I didn't know that as a fact." This exchange was reported by the AJN in February 2015 in an article headlined "Rabbi Feldman urged leniency for abusers".
Mr Feldman said he felt "terrible" when he saw the article. "They wanted to sensationalise and exaggerate to the point of lying – borderline lying," he said.
He said the AJN failed to report that when the question was re-phrased to ask whether he knew it was a crime to touch a child's genitals with sexual intent, he affirmed that he did. The original question did not distinguish between sexual and parental or medical touching, he argues.
But AJN deputy national editor Joshua Levi told the Supreme Court on Thursday it was "obvious" he was being asked about sexual touching.
"We were at the royal commission … and he was specifically being asked questions about what the Yeshiva Centre did in response to child sex allegations and what the Yeshiva leadership did when it found out a teacher had been allegedly massaging a boy, so when he was asked about touching the genitals it seemed obvious what the question was," Mr Levi said.
At one point the confusion about the legalities of genital touching seemed to extend to Mr Feldman's barrister, Jonathan Cohen, who insisted to Mr Levi: "But it's not illegal for a man to touch a child's genitals, is it?"
Justice McCallum: "Well, it is. I reject the question."