From Mishpacha Magazine August 3, 2011, pages 30-31
Posted August 7, 2011
Agudath Israel of America recently clarified its position on when one is halachically permitted to or required to report suspicions of any form of child abuse to authorities. That clarification led to further debate on a potential clash between halachah and secular law. Agudah's executive vice president, Rabbi Chaim Dovid Zwiebel, discussed this further with Mishpacha's news editor, Binyamin Rose.
Would the Agudah support the formation of or put resources into a hotline or a board of rabbanim with the knowledge and expertise to guide people who suspect abuse?
We are definitely looking into this. I had a discussion with a member of the Moetzes Gedolei HaTorah about how we should be following up. There are some concerns about a hotline in light of the fact that the sensitivity of the issues might require a face-to-face conversation rather than just an anonymous call over the phone. Certainly we believe that in light of everything that's going on in the world today, rabbanim should familiarize themselves with the signs and symptoms of abuse, as well as the issues involved in how and when they should be reported, and to whom. Agudath Israel has organized conferences and seminars for rabbanim and mental health professionals. We feel there is room to expand such forums to include a wider list of rabbanim who would familiarize themselves with all the issues and who would then be qualified and capable of providing guidance to Klal Yisrael who have these kinds of sh'eilos.
What categories of people are considered by law to be mandated reporters, and what happens if there is a clash between the law of the land and the halachah? Does dina d'malchusa dina prevail?
This is something that is usually subject to state law jurisdiction, so each state will have its own laws and regulations. The law that applies in New York, in general, lists a dozen or so categories, including teachers, pediatricians, and other health providers, who encounter children in their professional capacities and have reasonable cause to suspect that a child has been abused. Other people, such as the next-door neighbor, are not mandated reporters under the secular law. They are permitted and maybe even encouraged to report, but there is no New York statute that requires them to do so.
Regarding the second part of your question, I think those clashes will be few and far between. The secular law in New York State mandates you to make a report if you are on their list of categories and have "reasonable cause to suspect." Under the guidelines of Rav Elyashiv shlita and other gedolim, raglayim I'davar comes mighty close to "reasonable cause to suspect." They are so very close in my opinion, that I don't envision frequent clashes between the secular law and the halachah.
Where a conflict could arise would be in a case where a rav says not to report, but the person's lawyer says he must. In that case, I suppose part of the process of the sh'eilah to a rav could also be where the person goes back to the ray and says, "You told me not to report, but my lawyer says I have to, so does that in any way affect your psak?" The moreh hora'ah will then have to decide how that fits in with the overall equation in determining his final answer to the sh'eilah.
Wouldn't the requirement to consult with rabbanim first delay the reporting process, thus leaving children at greater risk?
Under secular law you are required to report promptly according to the statute. Even under secular law, if an inexperienced pediatrician sees something that makes him nervous, he may wish to consult with a more experienced doctor. Senior law enforcement officials have told me that such a consultation does not conflict with the law.
Where the process outlined by the gedolim under raglayim I'davar requires consulting with a rav first, a conflict might arise if that consultation would interfere with the immediacy of a report, but it should not delay the process any longer than the length of time it would take for two doctors to discuss the case between themselves.
Are there efforts underway to reconcile the reported differences on this issue between the Agudah and the Rabbinical Council of America?
We haven't had formal conversations with the RCA, but there are rabbanim engaged in informal discussions at all times. But I would also like to clarify what we have been referring to as the Agudath Israel position. We don't take positions. AII we did was present the issues at a halachic conference a few months ago and then issue a synopsis of the written teshuvos of gedolei haposkim, mostly in Eretz Yisrael. Not withstanding the very serious prohibition against mesirah, where there is raglayim l'davar, the gedolei haposkim are telling us today that we should report. While this is something very important that we wanted to bring to the community's attention, at the same time, we need to recognize the weightiness of the matter. People should be consulting with a ray who is knowledgeable in this area before coming to conclusions of their own. There is still an attitude that exists in certain quarters of the chareidi world that these matters have to be handled internally and not by the authorities. But today, the mainstream chareidi authorities hold that if there is raglayim I'dav ar, it should be brought to the authorities. In that respect, l don't think the position of the gedolei haposkim is substantively different from that of the RCA.
People are concerned that incidents of abuse have been swept under the carpet and that victims were even hushed up by prominent community members. Since this feeling has gained validation in people's minds, is there anything in the new Agudah guidelines that alleviates these concerns?
To the extent that the hushing up that may have taken place was a byproduct of halachic concerns about mesirah, I think the teshuvos of the gedolei haposkim that we brought out in our statement should provide the framework that will at least minimize such instances. We can no longer hide behind a blanket prohibition against reporting to the authorities if the gedolei haposkim are saying you should report to the authorities. That was one of the reasons we decided to publish our statement, even though we knew it would generate some backlash and controversy.
It is clear that allegations of abuse can destroy a person's reputation and family forever, and that people have misused the system to exact revenge. ls this due to a flaw in the system, and is it correctible?
One of the advantages of the raglayim l'davar standard is that the halachic authorities are telling us you need to be very careful before you report. If it is eizeh dimyon, as in the phrase Rav Elyashiv used – mere conjecture – or if you have some vague sense, that's not enough. Part of what Rav Elyashiv and the other poskim are telling us is, this is dinei nefashos on both sides of the equation and we have to find a balance. We are concerned about some of the statements made by a few advocates for the victims, because there seems to be a lack of appreciation that sometimes allegations of this nature can be destructive to people who are entirely innocent.
Is there any community-wide effort to raise awareness among children and parents, or is this just up to devoted volunteers?
Over the last number of years, this issue has come out of the closet and has become a part of our community's consciousness. The Moetzes Gedolei HaTorah took a step, which would have been unimaginable 10 or 15 years ago, to encourage parents to talk to their children about good touch and bad touch and what to do if someone touches them inappropriately. There are seminars for summer camp personnel on this subject. I don't know that we are where we need to be yet, but I think very meaningful movement has been made, and further steps are under consideration.