Last week yet another story of child sexual abuse in the Charedi world was reported in Ynet. One particularly troubling part of this story is that apparently the father went to a Rav and received a ruling that he may not inform the authorities because - not having witnessed the molestation personally he would be considered a Moser. This is a term that applies to someone who informs on a fellow Jew to secular authorities – a very serious offense.
In light of that, one may ask whether indeed one is allowed to inform the police about a child molester. Was this rabbi right? Should we never inform the police about a child who was molested if we did not personally witness the crime? Should we handle it amongst ourselves? Your 11 year old son comes home from school and says his Rebbe molested him. Are we to tell him there is nothing we can do about it since we can’t rely on his own testimony? Is Torah Judaism really that stupid and barbaric?
The answer is of course it’s not! What is barbaric is there are actually some rabbis that apparently interpret it that way – as did the rabbi in the Ynet story.
Rabbi Mark Dratch has graciously allowed me to publish a portion of his well researched and footnoted treatise on the subject. It deals with these and other questions.
Here is what he says:
The gedolei ha-poskim have already weighed in on this: (excerpt from my article on this issue: The 411 on 911: Reporting Jewish Abusers to the Civil Authorities" available at http://jsafe.org/pdfs/mesirah.pdf.)
Rambam notes that the prohibition of mesirah restricts a private individual who is being harassed from making a report to the civil authorities. However, when there is a meitzar ha-tzibbur (public menace), informing is permissible.(48)
While this would seem to restrict an abused wife from calling the authorities on her husband, or a concerned party from reporting an abusive parent, this is not the case. First, the rate of recidivism in child abuse cases is high and therefore a child molester can be considered a “public menace.”(49)
Second, Shakh records that where a person is a repeat abuser (“ragil le-hakot—strikes on a continuing basis”), one is permitted to report him to the non-Jewish authorities in order to prevent him from abusing again.(50)
And third, Geresh Yerahim limits Rambam’s reading of the Talmudic statement above (Gittin 7a) to situations in which the abused faces no real personal harm. He points to Rashi’s explanation of Mar ‘Ukba’s complaint that “Certain men are annoying me,” explaining that they were merely insulting him.(51)
But, if Mar ‘Ukba would have been subjected to greater injury, i.e., physical or financial harm, it would have been permissible for him to complain to the non-Jewish authorities, even though he is just an individual. Similarly, Me’irat Einayim adds that the distress of the private individual that is forbidden to report is tza’ar be-alma (general distress). However, if one is the subject of assault or attacks, reporting is permitted.
In addition, there are situations in which a rabbinic court is ineffective, incapable of adjudicating and powerless to protect victims.
This can be for any number of reasons: perhaps one of the parties will not appear before it, perhaps a party will not feel bound by its decision, or perhaps the bet din will be unable to protect one of the litigants from physical or financial harm.
Rabbeinu Gershom Ma’or ha-Golah understood that even if someone agrees to come to the rabbinic court, he may be doing so only because he thinks he can delay or obfuscate the proceedings, or because he feels that he will be able to avoid certain punishment or fines if he avoids the civil courts. Rabbeinu Gershom enacted that in such cases the bet din should give the other party permission to go to the general court.(52)
Radbaz confirms that “this is the practice of all rabbinic courts in every generation in order not to give the upper hand to aggressors and intimidators who do not respect the judgment [of the bet din].”(53)
In a ruling of great significance for victims of abuse, Rema writes, “A person who attacks others should be punished. If the Jewish authorities do not have the power to punish him, he must be punished by the civil authorities.”(54)
According to Rema, the victim has the right to go to the civil authorities not just to prevent an attack, but to seek punishment and justice for an attack that has already taken place.(55)
Rabbi Shalom Yosef Elyahiv ruled that one may report a child abuser to the civil authorities in America, but only if he is certain about the abuse; a false report that can destroy a person’s reputation and life.(60)
And Rabbi Shmuel HaLevi Wosner, author of Teshuvot Shevet ha-Levi, applies this reading of the Talmud to the case of a tax agent who must report tax fraud to the government for prosecution. Rabbi Wosner obligates this Jew to do so, arguing that:
1) this is the law of the country and
2) the report will not cause the imposition of a dangerous sentence on a Jew.(61)
Furthermore, a child abuser is worse than a meitzar and is in the category of rodef concerning whom one is permitted to do anything to stop the attack.(62)
Others maintain the prohibitions of mesirah and arka’ot do not apply to these situations altogether. R. Yitzchak Weiss avers that the state has an interest in the safety and welfare of its citizens and one may report those who are endangering that safety.(63)
Rabbi Herschel Schachter stated that the prohibition of mesirah applies only when testimony assists civil authorities in illegally obtaining the money of, or excessively punishing, another Jew.
It does not obtain when it aids a non-Jewish government in fulfilling such rightful duties as collecting appropriate taxes or punishing criminals. When the information concerns the criminal activities of a fellow Jew—as long as the Jewish criminal has also violated a Torah law and even if the punishment will be more severe than the Torah prescribes(64) - the ban of mesirah does not apply.(65)
Arokh ha-Shulhan maintains that mesirah was prohibited because of the nature of the autocratic governments under which Jews lived throughout much of history. Such informing often led to dangerous persecution of the entire Jewish community. He maintains that this injunction does not apply to those societies in which the government is generally fair and nondiscriminatory.(66)
We are not concerned that the procedures of a civil court differ from those of a bet din or that the testimony that the former accepts may be invalid in the latter or even that the punishment may be more severe than that imposed by Jewish law (Sanhedrin 46a).
Jewish law grants the ability to impose unauthorized punishment, to accept otherwise unacceptable witnesses, all at the discretion of the judges, according to what they deem proper and fitting.(67)
48 Hoshen Mishpat 388:12, according to the text quoted by Shakh, no. 59, and Gra, no. 71.
49 Rabbi Eliezer Waldenberg, quoted in Nishmat Avraham, IV, p. 209, maintains that for this reason, child molesters must be reported to civil authorities. See R. Asher Zelig Weiss, “Mesirah la-shiltonot be-hashud be-hit’olelut be-yeladim” in Yeshurun, 5765, p. 659; R. Yehudah Silman, ”Teshuvah le-shei’lah be-inyan divu-ah al pegiyot be-yeladim” in Yeshurun, 5765, p. 661.
50 Shakh, Hoshen Mishpat 388, no. 45 and 60.
51 Rashi, s.v. ha’omdim ‘alai.
52 Manuscript Frankfurt 123, see Rabbi H. Shlomo Sha’anan, Hafna’at tove’a le-bet Mishpat, Tehumin XII, p. 252. See Piskei Ri MiKorbeil in Sha’anan, Ner LiShmaya, pesak 69.
53 Radbaz to Rambam, Hovel u-Mazik 8.
54 Hoshen Mishpat 388:7 and Shakh, no. 45; See also gloss of Rema to Hoshen Mishpat 388:9; Ba’i Hayei and Maharam miRiszburg cited in Pahad Yitzhak, Ma’arekhet Hovel be-Haveiro.
55 See Darkei Moshe, Hoshen Mishpat 388 and Teshuvot Maharam MiRizbork cited by Shakh.
60 “She-eilah be-inyan hoda’ah la-memshalah al hit’olelut be-yeled ‘o be-yaldah” in Yeshurun, p. 641.
61 Teshuvot Shevet ha-Levi II:58. See also Teshuvot Iggerot Moshe, Hoshen Mishpat I:92, which, in a similar situation allows the tax agent to report because even if he did not reports, others would, thus relieving the Jew of sole responsibility..
62 R. Moshe Halberstam, Mesirah le-shiltonot be-mi she-mit’olel be-yeladav in Yeshurun 5765, p. 646.
63 Teshuvot Minhat Yitzhak VIII:148
64 Ran to Sanhedrin 46a. See, however, Teshuvot Rema, no 88, who maintains that according to Tosafot, Baba Kama 114a, s.v. ve-lo, if the punishment exceeds that prescribed by the Torah, the mesirah prohibition maintains.
65 Rabbi Herschel Schachter, “Dina De-Malchuta Dina,” Journal of Halachah and Contemporary Society, I:1, 1981, p. 118.
66 Arukh haShulhan, Hoshen Mishpat 388:7. This source is authoritatively cited by R. Gedalia Dov Schwartz in “The Abused Child: Halakhic Insights,” Ten Da’at, Sivan 5748, p. 12.
67 Hoshen Mishpat 2:1; Teshuvot ha-Rashba III:393; Teshuvot Panim Me’irot II:155.