Thursday, September 03, 2015

Sadly, the Chains Remain

R' Simcha Krauss and R' Hershel Schachter (The Jewish Week)U
Updated - see the addendum below.

I cannot imagine the pain of a woman permanently chained to a man that physically or mentally abused her. And yet that seems to be what these women are forced into if their husbands refuse to give them a Jewish divorce known as a Get.  In many cases these are women that went the extra mile – giving the marriage a chance even though their husbands continued to abuse them. Aside from the stigma of divorce and the difficulty in getting remarried, there was also the children. 

Good mothers will sacrifice a lot for their children trying to keep the marriage together – even with the occasional physical beating they might receive from an abusive husband. But after a while these battered women end up leaving their husbands and realizing that an environment where abuse is tolerated is a terrible way to raise children.

R' Gedalia Dov Schwartz
The abuse does not end there. In far too many cases these husbands do not let go. The more the wife keeps insisting on it, the less likely they are to grant them a Get so that these women can put their lives back together, get remarried and lead a normal life. We call these husbands recalcitrant.

As I understand it, most of the time the reasons are about money or custody of the children. They will hold their wives hostage to their demands refusing to release them from the bonds of marriage. Which prevents them from marrying another man.  

A man that has sexual relations with a woman married to another man (which she still is without a Get) is a capital crime. Any children resulting from that are considered Mamzerim. Mamzerim and any subsequent children they may have (one way or another) are considered Mamzerim too - and are forever forbidden to marry a Jewish or non Jewish women. They can only marry other Mamzerim.

Halacha does not allow a woman to give a Get to a man. A man must give it willingly to his wife. If he is not willing she can do nothing about it. This presents tremendous leverage to a husband. He can technically withhold the Get until his demands are met. And his wife must remain single (technically married to him) for the rest of his or her life.

As bad as that is, there are some men that refuse to give a Get out of pure revenge. Revenge at their wives for daring to leave them. The abuse then continues. Only this time it is mental abuse.

This has created one of the most difficult problem in all of Judaism. Looking at it objectively, it seems to be one of the most unfair Halalchos ever derived out of the Torah. But that is the way it is.

There has been many novel attempts to resolve this issue over the centuries. And in most cases they failed miserably to do so.

R' Emanuel Rackman
A couple of decades ago, the well intentioned Rabbi Emanuel Rackman tried to set up a court for this purpose and began ‘freeing’ a lot of ‘chained women’.  His basis for doing so was a Halachic loophole found in the Gemarah that annuls a marriage thus obviating the need for a Get. That Gemarah teaches that when a physical defect is hidden from a woman, discovers it after the marriage and tells the court that she would have never agreed to marry this man had she known about his defect, the rabbis can annul the marriage as though it never happened. Considering it a Kedushei Taus – a marriage made in error. Rabbi Rackman said that the lack of a knowledge that a husband was an abuser amounts to the same thing. A defect that – had she known about it – she would have never consented to marry him.

While that seems to be a rational extrapolation of the idea of Kedusehi Taus, it was not accepted by any legitimate Posek (Halachic authority). Including  the preeminent Modern Orthodox Posek of the day, Rav Yoshe Ber Soloveitchik. The problem was that the Gemarah never said the abuse was considered in the same category as a physical defect. The Gemarah in Yevamos (118b) states: Tav L’Mesiv Tandu MiSheNesiv Armelu. Loosely translated this means that a woman would rather stay in a bad marriage than to live alone. This was apparently the mindset in the Talmudic era. And this cannot be changed in our day - even if it would be true that it is no longer the case.

R' J.B. Soloveitchik
Some of those women he freed got married. And their children are Mamzerim. (While there might be loopholes about their actual status in Halacha – that is beyond the scope of this post.) The point is that a woman is not really freed when the vast majority of Poskim disagree with the legitimacy of the method being used to free her.

We now have come upon a similar circumstances. The International Beit Din (IBD), was set up by Rabbi Simcha Krauss for purposes of freeing chained women. Rabbi Krauss  is not Modern Orthodox and widely respected. He had some pretty mainstream rabbis joining him. Like Yeshiva University Mashgiach, Rabbi Yosef Blau, a man I have a tremendous amount of respect for.

R' Z.. N.. Goldberg
They have found other loopholes to use for these women. (Which I have discussed elsewhere and are also beyond the scope of this post.) Rabbi Kruass claimed tacit approval by Rav Zalman Nechmeia Goldberg, a highly respected Posek in Israel.

Alas, it turns out that Rav Goldberg never gave his approval for this Beis Din and actually condemned it. Rabbi  Krauss based his claim on the approval  Rav Goldberg gave to the logic used by another Rav in another case. Which was not a Pask. And certainly not meant as a blanket approval a Beis Din to use such loopholes.

It also now appears that this Beis Din is using the same discredited loophole that used by Rabbi Rackman’s court. From The Jewish Week
After nine hours of testimony and a six-page document explaining their decision, the three-member IBD ruled to annul her marriage on the Talmudic principle that the woman never would have married her husband if she had known he would act in an abusive fashion during the marriage. 
For me the use of a discredited loophole casts aspersions on the validity of this Beis Din and all the divorces given by it. Not that my view on this Beis Din matters all that much. But I am not the only one that feels this way. Two of the Poskim that I respect the most feel this way too:
Rabbi Hershel Schachter… last month penned a public letter of protest dismissing the court’s collective rulings and pronouncing Rabbi Krauss unfit to make complex decisions regarding agunot. “From start to finish, this is a mistake,” Rabbi Schachter wrote in a three-paragraph letter... The letter, written in Hebrew, says that only “great scholars of the generation” should be dealing with these sensitive matters. Rabbi Gedalia Dov Schwartz, head of the Beit Din of America,  (the largest rabbinical court), and three other prominent rabbis also signed the letter. 
Rabbi Blau has been convinced to resign from that Beis Din, as have other distinguished rabbis that have since joined it.

Rabbi Shmuel  Goldin, past president of the RCA put it very well: 
“The court is not doing a favor for these women if it issues a solution that won’t be acceptable to a large population of Orthodox rabbis…” “This isn’t a democracy, it’s a halachic process,” said Rabbi Goldin. “The power to make decisions has always been in the hands of the few who spend their lives steeped in its wells.” 
This is true. No matter how much clamor the public has for change, that cannot be the basis for it. The Halachic process doesn’t work that way. Which brings us all back to square one.  The situation for chained women has not changed. The problems persist and are perhaps getting worse as divorces in Orthodoxy have increased in our day. And increases the chances of utilizing violent and illegal means to force a husband to grant a divorce – a questionably valid technique in any case.

But a bad solution is worse than no solution at all. If chained women use a court whose legitimacy has been so widely and publicly challenged their subsequent marriages and resulting children will be too.  And as heartbreaking as it is for these women, it will be even more heartbreaking if they use this court.

I was contacted by a reliable source close to members of the Beis Din about the case reported by the Jewish Week and excerpted in the post. Based on his intimate knowledge of this Beis Din, he wanted to set the record straight. 

The case was of an abusive personality who had hidden his symptoms of psychological illness and behavior prior to their marriage from his bride. He told me that Rabbi Krauss discussed the case with a highly respected Charedi Posek in Israel (who wishes to remain anonymous) before he issued the Get.

This is fundamentally different from Rabbi Rackman's approach - assuming that abusive behavior after marriage indicates that there was an earlier problem.   This approach of bitul kiddushin is rooted in published Teshuvos of Rav Moshe and has been used by many known Poskim.

There were cases where there was testimony that a husband acted terribly to his wife but when it could not be established that there had been a preexisting condition the Beit din did not free the aguna.

Rabbi Kraus also received a letter of support from another highly respected Posek. He has not released it to protect his identity. (He too wishes to remain anonymous.) The letter was sent after that Posek was told erroneously that the Beit Din was relying on hafkaat kiddushin. They are not.