Monday, December 21, 2015

The Get - Another Perspective

Guest Contribution by 'Emes'

I received the following submission by a frequent contributor to the comments section of this blog. He uses the alias ‘Emes’. I normally do not publish posts by people whose identity I do not know. I am making an exception in this case because I have in effect challenged him to submit a post about any issue he wanted. We are often at loggerheads and I am always eager to be fair to my critics. 

He provides a short bio in his introduction which I asked for in order in order to know where he is coming from. His words follow with some minor editing – mostly for space. I believe I have retained the thrust of his message.  As always the views expressed in this post do not necessarily reflect my own.

Allow me to begin by thanking Harry for lending me the use of his soapbox for a day to address an issue that I care about.  I would have preferred to do so completely anonymously, but Harry requested that I include a short descriptive bio.  I was raised in what most people would call a charedi environment.  I grew up in a major metropolitan area with a relatively large charedi community, though not in the most charedi part of town. I attended both chasidic and yeshivish yeshivas, college and eventually an  Ivy League law school.

Professionally, I am the guy you really would rather not need because I make a living helping people who are involved in disputes or are in trouble with the law.  To state that more succinctly, I am an attorney.

As a society, we've come a long way from the Tammany Hall days, where some levels of corruption were tolerated and even pursued. Greed was a virtue, the penalties of committing fraud was, to a large degree, a cost of doing business; and certain types of police brutality were just part of good old police work and glorified in movies. 

Corruption, greed and brutality are now, for the most part, recognized for the evils they are, and the penalties for any of the above are severe - most often career enders. Whether the perpetrator is a member of law enforcement, a politician or a Wall Street professional.  However, in transitioning from a corrupt society to a more just one have we allowed the pendulum to swing too far? 

To some degree, we have also become a vigilante nation.  Today's society exhibits a driving need to publicly judge, convict and execute (not literally) anyone at even the slightest smell of blood.  You see this in the glee in which the US Attorney's office or a state attorney general's office will rush to issue colorful press releases describing how evil the person they just charged is.  

You see this in the mad race of politicians to the cameras to denounce the evil person of the day even before he has been investigated, let alone charged.  And yes, you see this in the lynch mobs that immediately form through blogs, your local shul's chazaras hashatz lashon hara club and all run-of-the-mill "kuchlefels".

I do not support wrong doing of any kind.  However, one thing you learn over years of representing people who have done wrong is that things are never as black and white as they seem.  Sure, there are people who are just rotten to the core, but they are a minority. Most often there are a host of other factors that play a role in someone crossing the line into doing something illegal, people are complicated and rarely all good or all bad and yes, sometimes good people simply do inexcusably bad things.

Things get even less black and white when dealing with disputes among parties.  It is said that there are three sides to every story - your side, my side and the truth.  In reality, there are probably a couple of dozen sides to every story.  The facts may be disputed and rational people can reach very different conclusions about what is right or wrong based on the same facts. 

In no area is this more pronounced than in divorce proceedings.  A divorce is an incredibly emotional and traumatic process which affects both parties' thinking.  Parties to a divorce will stand by their principles (actual or perceived) to a degree that even quasi-rational people would never do in a financial dispute.  Divorce is a messy and trying process that most often involve two decent people, though they don't always act that way during the process. 

Self-appointed pundits rarely know all or even most of the facts, and public information can be skewed by one side being more active in publicizing their side of the story or simply having a better PR team.  While there are situations where public involvement/pressure is warranted and possibly helpful, most often outside involvement will make it more difficult for the parties to reach a resolution.

Which gets us to the one issue that understandably gets people all worked up: When someone refuses to give a Get or, perhaps less commonly, if a woman refuses to accept a Get.  I am personally very aware of the harm that can be done by refusing to give a Get having been deeply involved in one situation where a husband refused to give a Get for many years for no reason other than to make his wife suffer.

I have seen firsthand the suffering Get refusal can cause.  On the other hand, I have also seen the harm that can be caused by, for example, a woman seeking to limit a man's access to his children.  There are many weapons that can and have been used to try to accomplish that and the woman is typically better positioned to exercise those weapons.  There are the cases of the man being subjected to false allegations of child abuse.  While such cases may be rare, other types of allegations about each parties' suitability as a parent are common as part of any custody proceeding.  In short, the harm can go both ways. 

The emotions surrounding the Get refusal issue, like no other, causes people to take extreme positions.  Recently, the esteemed owner of this blog took such a position, comparing Get refusal to firing a loaded gun, saying that neither is an appropriate weapon to use even under the most extreme circumstances - such as if the wife falsely accused her husband of sexually abusing their children to prevent him from having access to the children.  But should we in fact be taking such an extreme position? 

Consider for a moment what an organization that perhaps has the strongest pro-wife credential, the Orthodox Jewish Feminist Organization, or "JOFA" has to say about this.  The following is an excerpt from their guide to Jewish divorce that can be found at here (PDF). 
"ARE THERE CIRCUMSTANCES IN WHICH A MAN SHOULD REFUSE TO GIVE A GET? It is advisable for a man to refuse to give a Get if the Get itself is defective, i.e., the names in the Get are incorrect, or if the Get is being processed in a beit din that is not generally recognized as competent in matters of divorce. It may also be legitimate to refuse to give a Get if the man will be compelled to also accept an unconscionable settlement with regard to spousal and/or child support or custody. Another circumstance in which it may be recommended for a man to refuse to give a Get is a situation in which the Get is based on false allegations against the man." 
"When someone is told that a man refused to give a Get, the listener must question whether and why the Get may have been refused to be given prior to determining that the man is simply recalcitrant. There may be valid reasons for a man to refuse to give a Get. One should refrain from premature judgments and gossip." 
Are we out-feminizing the feminists, when we take more extreme views than JOFA on this issue?  Should we take a deep breadth and rethink our extreme positions?

Okay, I will admit it, the above quote is not a direct quote from JOFA's guide - but I did not make it up.  The guide does include that statement with one difference - it is not talking about a man refusing to give a Get.  It is talking about a woman refusing to accept a Get.  Do we have a double standard here?  Can anyone truly defend the double standard with a straight face?

More importantly, I think our society would be improved if we acknowledge that not everyone who does something we disagree with deserves to be publicly castigated and humiliated, particularly considering the pain and emotions that are inherent in almost every divorce process?  Irrespective of what we think the right choice is, can't we at least acknowledge that there are rare scenarios where someone withholding a Get doesn't deserve to be publicly humiliated even if we don't agree with his actions. 

Like everything else, there is a process for the parties to address their grievances, it is called the din torah, and the public should stay out of it unless and until one party refuses to participate in the process such as by refusing to go to a din torah (which should be evidenced by a siruv) or by refusing to abide by a ruling of the beit din, such as a ruling that a Get should be given. I appreciate that the process to get to that point can be long and grueling.  However, if we don't allow the legal process control, are we any better than a good old fashioned lynch mob?