How to Commit Abuse and Go Scot-Free

Just a short intro to the analysis that follows of UOHC Dayan Paltiel Schwarcz's responsum concerning the reporting of child abusers to the authorities.

The difficulty with arguments on points of Halacha is that it is an obscure discipline which relatively few master, even in the Charedi world. Halachists will, or should, be learnéd in their field of expertise and so are able to draw on sources known only to a relatively small number of scholars and will quote from texts which are rarely indexed and often written in an oblique style that is barely comprehensible to outsiders.

In the context of mesirah for child abuse, which is the subject here, or agunot and other contemporary issues, what usually happens is that "progressives" (for want of a better term in this context) and those pleading for change will fall back on broader principles rather than challenge the Halachists at all on Halachic ground. They will refer to Chillul Hashem, the laws of the land, the moral code of the society we live in, contemporary values, common sense, plain humanity and other broad principles in support of their view. In the case of child abuse in particular, they will plead that such crimes must be taken seriously, the long-term effects on victims, that victims must be listened to and not stigmatised, that offenders must be reported and punished, and that children must be protected through safeguarding measures to prevent such crimes in the first place.

The traditionalists for their part will retort that the Torah too is a moral code and possibly launch into whataboutism on Western values. Try then to argue that Halacha must bend to contemporary mores and you've fallen into their trap. Your views can be labelled as bordering on apostasy against the eternity of the Torah which shuts down any meaningful argument.

It is all the more so when your adversary is an old school conservative with little knowledge and understanding of the modern world and the society we live in. You can try quoting some general universal principles to be found aplenty in traditional Jewish sources and they can quote back at you five times as many sources making the opposite point. If you are lucky you may also get a condescending sneer on how they don't need your types telling them about Chillul Hashem, assuming you aren’t labelled as Reform. After all, does not Reform make such universal principles their central plank at the cost of much else?

And so, quite reasonably, to argue Halacha you must counter with Halacha, which is where the traditionalists hold their strongest card. There are relatively few progressives who are familiar enough with the sources and adept at handling the material to challenge conservative positions, whether by quoting their own sources or qualifying the texts quoted at them. This is not much different within or outside Charedi society. Charedi laypersons may have spent their entire childhood, teens and beyond on traditional texts, yet in proportion to their numbers and years of study are almost as ill equipped as anyone else to handle these issues. The difference is only that while Charedim more or less accept the rulings of their elders and leaders and that the rules cannot be deviated from, many in the non-Charedi world wish to bring about change but are unable to make the necessary arguments.

The above assumes that Halachists are interested in engaging at all which isn't often the case. In most instances it's their worldview that drives their Halachic opinions and quoting at them other poskim (the Tzitz Eliezer and Reb Osher Weiss come to mind) doesn't advance the argument amongst this crowd. These names are suspect in hyper-conservative circles precisely for the reason that they tend to be quoted by progressives. And so we go round in circles.

The above holds all the more when we are dealing with an issue like child abuse on which the traditional sources are of limited use. Not only is it relatively recent that sexual crimes are better understood and treated with this level of seriousness, whether in broader society or in Orthodox circles, but the Halachic questions are equally recent in how they are to be applied in societies where Jews are afforded full civil rights. And so arguments are by analogy and deduction where those with the breadth of knowledge of traditional sources have the upper hand, if not, as will be seen, the ability to commit a sleight of hand. Even where sources are quoted fully and not selectively, the reactionaries will not allow for historical and geographical variations and deviation. They tend to treat the sources as eternal truths to be applied in all situations for all times.

For these reasons I will not quote rival or alternative sources to Dayan Schwarcz despite the fact that there are numerous such examples. The heroic Rabbi Zimmerman who personally gave evidence to convict an abuser is just one such exemplar.

My point here is to play Dayan Schwarcz at his own game. I aim to take a closer look at how he handles the question in front of him; how he treats – and does not treat - the subject of child abuse and the danger of abusers to society; his selective quotes from the sources; his deductions and extrapolations from the sources he quotes; the reasoning he does – and does not – apply; and how he generally opts for the narrowest of interpretations, slamming shut any window of hope for abuse victims.

*

It is important to bear in mind the case that Dayan Schwarcz (DS) is dealing with, which is barely alluded to in the responsum. While the facts are not entirely clear, the following is what circulated in the community.

A 15-year-old boy from abroad, studying at a local yeshive, was allegedly sexually abused and possibly raped. In the course of the attack, the boy was injured and had to be hospitalised. The suspect, a local man approximately in his 40s, was arrested and possibly charged. As a condition of bail or police bail he was required to live under curfew conditions in one of the new Essex Charedi communities. He was eventually released, either without charge or had the charges withdrawn. The rumour mill is rife with reports of the boy being bought off by wealthy members of the community to leave the country and not return to give evidence, or possibly to withdraw his allegations altogether. The suspect allegedly admitted to rabbis the acts he was accused of but claimed that they were consensual.

Another two pertinent points are that the suspect has had similar allegations of abuse made against him over many years and that he is related by marriage to DS. The sponsor of the accused’s bail conditions is a close relative of DS.

*

The Hebrew date of the responsum equates to 20 April 2021. The story mentioned above broke around February/March 2021.

The addressee is redacted but the suffix suggests it is a fellow rabbi.

The letter begins:

"I am replying to your request that I clarify the Halacha in respect of someone who is accused of abusing children, whether and in what circumstances it is permitted according to Halacha to hand him over [report him] to the authorities.

The question can be divided into several parts, namely:

1. The appropriate body to adjudicate in this kind of situation
2. The evidence required for it
3. Whether it is permitted to report him to the police
4. Even if permitted in principle, whether it is also permitted if he can be prevented by alternative means whether by treatment or other forms.”

DS replies to these questions in a number of sections followed by a summary. He then concludes with some additional points.

Lemigdar Milsa (Public Policy/Crime Prevention)

The discussion begins with a discussion of Lemigdar Milsa (LM) (literally ‘to fence off the matter’). LM is a doctrine that allows for rabbinic enactments and punitive measures on public policy grounds to prevent wrongdoing and harm to the public. Such measures are in addition to the laws of the Torah and according to some opinions even where such measures violate the Torah (see here for discussion in Hebrew). LM has its origins in the Talmud (where in one incident a violent man’s hand was amputated) though its principles were elucidated in a responsum by the Rashba (Spain, 13^th c.).

There is then the question of whether any BD can assume LM powers or whether the BD must also have ‘the king’s consent’ i.e. state recognition.

DS then cites the Maharam Schick (Hungary, 19^th c.) that a BD should rather refrain from carrying out any punishments.

DS concludes this section, without citing any source, that even where a BD can take punitive action, this power is restricted to the BD itself executing any sentence. It is not, however, a mandate for a BD to hand over or report a criminal to non-Jewish authorities for them to punish the offender.

This last conclusion is telling. One might have thought that if a BD can in principle itself carry out a punishment even as severe as amputating a limb, then surely handing the suspect over to others to carry out a far more lenient punishment of incarceration would also be included under the LM doctrine. It should be all the more so in a country such as the UK where maximum sentences are prescribed by law and approximate likely sentences can be surmised in advance. The BD would therefore know the worst outcome to befall the suspect if convicted.

However, and like elsewhere in the responsum, wherever DS applies his own view he takes the most narrow and restrictive approach. For this purpose, he adds “for otherwise every criminal could be handed over to the authorities” which he believes cannot be right in light of “the seriousness of mesirah”. The seriousness of child abuse merits no mention anywhere.

There is also a sleight of hand here because it definitely does not follow that if mesirah is permitted for serious crimes then "every criminal can be reported". The discussion here centres on LM, which is a power that lies primarily with a BD, and so it would be for the BD to decide which crimes to punish rather than apply it to “every criminal”.

Furthermore, checking the Maharam Schick cited, DS has committed a glaring omission. The sentence preceding the one quoted by DS states “although one should not protest against others [who carry out the punishment] and whoever carries it out and endeavours to do so is acting lawfully for he has many Halachic opinions to rely on”, nonetheless Jewish leaders should desist. DS is happy to quote that BD should refrain from punishing offenders but makes no mention of the “many Halachic opinions” to the contrary.

The real problem though with DS’s reasoning, and which applies to the entire responsum, is the absence of any discussion or even a hint at the severity of abuse, the danger and risk of re-offending and the effect of abuse on the victims. This completely taints his approach because he repeatedly applies sources and arguments to restrict or ban reporting alleged abusers without even once making any argument or quoting a single source which would allow, never mind compel, reporting such individuals to the police.

*

The next section digresses slightly and focuses on the attributes and qualities of the BD that has punitive powers under the LM principle. DS quotes from Shulchan Oruch on the nature of the BD that it must be "selected from the entire community". He then adds of his own accord that such a BD must "have an understanding in these issues" and quotes a vort (whimsical Torah interpretation) that the expertise must cover both law and fact.

To this he adds:

"… especially on these issues where there is a multitude of false allegations and the like and so each case must be investigated in depth and one who does not understand these issues can easily err either in leniency or severity" (emphasis added).

It is unclear to what purpose DS lists the required qualities of a BD which is repeated several times in the responsum. Such qualities are general principles and ideals which apply to any BD, though whether they are always lived up to is another question. There are, however, no special requirements for a BD carrying out punishments under LM.

Furthermore, DS is anyway of the view that a BD, even with LM powers, cannot report a criminal to the authorities, so why harp on about the qualities such a BD must possess? The answer appears to be a tacit acknowledgement by DS that he may have taken matters too far and that a BD that can amputate a limb surely can also hand over the criminal to the authorities. He therefore covers himself by making out as if some special BD is required, which is not at all the case.

DS finalises the section by repeating his own innovation that LM would not permit reporting a criminal to the authorities.

*

Rodef (Pursuer)

The next principle in DS’s discussion is that of a rodef where measures may be taken against a potential criminal for the sake of crime prevention rather than punishment. Rodef is a halachic term that permits killing or injuring a ‘pursuer’ trying to kill or harm a third person. (This is different to self defence as it also applies to a third party.) The principle of rodef  has been broadened into a general principle that one may take action - including mesirah - to prevent someone committing certain crimes. (Conversely, someone threatening to commit mesirah without justification can himself be termed a rodef.)

The rodef principle is qualified by two conditions:

1. That there is a risk that the suspect may offend again
2. That there is no other halachically permissible means to rescue the potential victim.

DS considers the above two conditions and it is worth quoting him here in full:

"Applying this to our case we must consider in each such incident whether there is indeed a risk that [the suspect] will reoffend. Even where such a risk exists there is still no permission [for mesirah] unless the accused is classified as a rodef which is not always the case. This is because a rodef only applies [in the context of sexual crimes] where he is pursuing someone with whom it is forbidden [according to the Torah] to have sexual relations, and not every child abuser can be termed a rodef. Even in cases where [sexual] relations are prohibited by the Torah if it is in a manner of seduction of a godel (a child who has reached Halachic majority: 12 years old for a girl and 13 for a boy) then the law of rodef would not apply and so there would be no permission for mesirah under this category. And even if someone is classified as a rodef, mesirah would still only be permissible if there is no other way of rescuing the victim… and so if the abuser can be prevented by treatment or other means of whatever kind there would be no permission for mesirah."

To summarise, DS excludes any reporting to the authorities of the abuse of a girl of 12 or a boy of 13 or older if it is “consensual”, because since there is no coercion the laws of rodef do not apply.

Furthermore, even where the child is younger than 12 or 13, DS would still prohibit reporting the suspect if there are other means to rescue the victim. Here DS veers entirely away from Halacha and applies his own ideas of “treating” sex offenders as a viable alternative.

Lest anyone be comforted that DS is “only” dealing with a suspect and an alleged criminal, he makes clear it later in the responsum that in any event the BD must itself first investigate and hear evidence on the crime before there is any question of them reporting the abuser. Therefore, the person he is referring to would be one who the BD has in its estimation already found to have committed the alleged act and yet in DS’s opinion they may still not always be reported.

Because like in the case of LM above, DS will use any opening in the sources only to narrow it down to its barest essentials but without even once mentioning the heinous crimes the suspect stands accused of or the potential harm to the community of these particular crimes. The only relevance of the nature of the crime according to DS is the possibility of “treatment”.

*

The responsum continues with a brief section quoting the Rema (Poland, 16^th c.) that the victim of a beating can complain to non-Jewish authorities. Once again DS narrows this down, without citing any source, that the Rema permits only the victim personally making a complaint and not someone else reporting it on the victim’s behalf.

*

Public Harm

There then follows a longer discussion on a broader principle permitting mesirah against individuals who torment the general public. This is broader than a rodef as the laws regarding a rodef are primarily concerned with violent crimes while this new principle applies also to harassment and financial harm. On the other hand it may applies only where the threat is to the public and not to individuals.  The Rema broadens this principle further to cover someone involved in forgery, as he poses a financial risk to the public even if has as yet not committed a crime.

(Here too DS quotes selectively from the Chasam Sofer (Austro Hungary, 18/19^th c.) and ignores that private crimes can also be reported.)

DS then extrapolates from various sources that the public harm principle is a derivation of the rodef principle and so the same conditions must apply that there is a risk of further harm and there are no alternative means of prevention other than mesirah.

DS concludes this section that “in our case even if he is a harm to the public and so it is permitted to report him after he’s been issued with a warning, it still would apply only if there are no alternative means of dealing with him”.

Summary

The responsum then summarises the discussion in three numbered points:

1. BD has a power under the doctrine of LM to impose punishments that are not mentioned in the Torah, which includes incarceration. This, however, is limited to a BD appointed by a seven-man executive (a traditional powerful communal executive body) plus the BD must have expertise in these subjects, “all their deeds must be for the "Sake of Heaven" and the BD must mete out the punishment themselves. However, “we find no source” for a BD even with the aforementioned characteristics to report an abuser for the authorities to deal with.
2. LM may possibly apply only where the BD has state authority and which in any event is restricted to BD only and not for individuals to carry out the punishment themselves. DS then again quotes the Maharam Schick that BD should refrain from carrying out punishments. But he again also omits the crucial line in the Maharam Shick permitting others to act.
3. Reporting for the sake of preventing harm is broken down further:

a. The principle of rodef applies only if the accused is pursuing someone who is banned from sexual relations by the Torah. It does not apply if he’s pursuing a godel (i.e. a girl aged 12 plus or a boy aged 13 plus) “by way of seduction”.

b. Only the victim themselves may report the crime. (As above, this appears to be DS’s own innovation for which he cites no source.)

c. Under the principle of preventing harm to the public

DS further qualifies this that even where the above conditions are met, reporting the suspect is still only permitted if there are no alternative means for treatment or other ways to prevent him from reoffending.

"As is known there are effective medical means which are used worldwide for these kinds of instances and so there is definitely no permission to report him to non-Jews which is a serious sin and the law of [someone who reports him] is the same as that of a rodef and he has no share in the world to come.”

The nature of such ‘treatment’, how the ‘treatment’ is to be administered, who is to supervise it and to what degree of compulsion, if any, is never discussed.

DS then adds in square brackets that we must also consider whether it is permitted to beat someone who wants to report an abuser to prevent the person making the report from committing a prohibited act. Here too, DS does not discuss what form this beating might take and who is to administer it.

So there you have it. Treatment for the offender; possible beatings for one making a report.

*

Following the above summary, DS quotes from a letter from Rav Elyashiv to Dayan Dunner and Rav Feldman, both of the UOHC Rabbinate, where Rav Elyashiv writes that it is permitted to report an abuser if he is a public danger, it is certain that the abuse will continue and the Jewish community is powerless to prevent him. Rav Elyashiv adds that an individual cannot decide these facts on their own accord and must refer the matter to a BD who must carefully consider the facts. Anyone reporting an offender otherwise would themselves be a moser.

DS returns here to his favourite theme of the type of BD that can consider such questions and which does not appear in Rav Elyashiv’s letter nor in any of the sources cited in this responsum in relation to the principles under discussion. DS also draws attention to the requirement that there are no other means possible to prevent him from reoffending. He concludes that "in our case it is obvious that there are other effective means to prevent him reoffending in the future”.

(It is worth noting that Rav Elyashiv sent this letter to the UOHC rabbis in the 1990s in another notorious child abuse case in the community. In that case the child victims were expelled from schools and the family was hounded out of town while the accused had the full support of senior members of the community including rabbinical and lay leaders.)

DS again reminds us that even where it is permitted to report the accused, he must first be warned. For this he quotes from a source related to dangerous driving.

And then yet another discussion for no apparent purpose of the qualifications of a BD handling such matters. “They must be experts and great Torah scholars and also familiar with medical treatments and to establish the truth… all evidence must be examined and especially since we are dealing with the serious prohibition of mesirah.” Is he suggesting that UOHC or any other local BD is not a BD of this mold and therefore even they cannot report the suspect in this case? Is there any contemporary BD who in DS’s opinion would meet his stringent criteria?

There then follows a discussion on the nature of the evidence to establish the “truth”. While generally in Jewish law it is not strictly necessary for a witness to give evidence in front of the accused, DS believes that in the case of allegations of sexual abuse it would be “ideal” for the victim to give evidence in front of their accuser. If that is not possible then the BD must still hear the accused's version of events.

*

So having set out the parameters and qualifications and caveats relating to reporting an abuser we can conclude that according to Dayan Schwarcz an abuser may be reported if, and only if, the following conditions are met:

• That a Beth Din, of great scholars and experts, who all their deeds are for the Sake of Heaven and who have been appointed by a powerful lay executive, that a Beth Din of this calibre has ruled that the allegations are true after holding its own trial and hearing evidence (Grand jury? Voir dire?); and
• The victim is below 12 or 13 depending if a boy or a girl, or if older that it was not “consensual”; and
• There is a risk to the public of further offending; and
• There are no alternative means to prevent him from reoffending which would include “treatment”

only then will mesirah be permitted to report the offender to the authorities. Even under these stringent conditions it is not clear if the victim must do the reporting or if someone is permitted to do it on their behalf.

But don’t get too excited just yet for there is one final ace for abusers which DS springs on us at the very end.

The very last paragraph is headed, “There is no permission [to report] if an entire family will be destroyed” and is followed by an analogy with monetary inheritance to make the point that you cannot destroy an entire family even “to rescue the public”. Nowhere in the entire responsum is the victim’s family honoured with even a passing mention. Nor is the grave risk to the public or the nature of these particular crimes ever brought into the equation.

The valediction to the responsum is an abbreviation of “So are the words of he who seeks your peace at all times” followed by “Paltiel Hacohen Schwarcz”.

No flourishes or grace or concern or even half a word of compassion or empathy is offered to the victim who is neither mentioned nor alluded to other than the fact that he is over 13 and may have been “seduced”. And also that there are many false allegations.

Let me just again repeat that we are dealing here with a boy of 15 years old, hospitalised after a sexual attack and denied justice by the likes of Dayan Schwarcz.