Wednesday, February 22, 2017

Once a Mamzer, Always a Mamzer


In my last post I very audaciously referred to Masechet Yevamos as a “mamzer” Masechta. That is not a very nice term. This is because we all think of a mamzer as one who is not a very nice person.

When the term “mamzer” is used as a metaphor, we may have two concepts in mind. The first is that a mamzer is illegitimate. Trust me, chas v’shalom, this is definitely not the concept I was thinking about when I used the term here except, perhaps, in the sense of it being an outcast. Even that is not really true. Yevamos is in no way illegitimate and not really an outcast though I am sure that many people learning it would rather be learning something else.

The second concept is the more applicable one. A mamzer is one who is cold, conniving, and insensitive to anybody else. Very unsympathetic. Not only is he insensitive to the pain of others, he is not hesitant to inflict such pain himself. If you’ll pardon the expression, a real ba****rd!

When we open Masechet Yevamos we would expect it to begin telling us how and when to perform the great mitzvah of yibum. But it doesn’t. It opens by how and when not to perform the mitzvah of yibum. It begins that 15 types of relations are not marriageable and therefore it cancels the mitzvah even for a kosher tzara (step-wife). And thus Masechet Yevamos become our encyclopedia of forbidden relationships.

So now, a brief overview on forbidden relationships. For our purposes we can split these relationships into 2 categories:

·         Issur Misa/Kares – Calls for death penalty

·         Issur Lav – Calls for judicial flogging

All incestuous relationships, homosexuality, bestiality and eishes ish (adultery) go into the first category. The second category is a list of lesser “crimes” that include: Issurei Kehuna (Divorcee, Convert or “Zonah”), Machzir Grushaso, Yevama L’Shuk, and Issurei Kehal (Mamzer, Moavi, Mitzri Rishon and some others).

There are two basic distinctions between the two categories. The first and obvious one is the judicial penalty for a willful infraction. As noted, the first category calls for death or kares (which is close to the same thing). The second category is satisfied with 39 lashes. This has no practical ramification in today’s era because we have no judicial punishments of any type nowadays.

The second distinction is as follows. Although in all of these cases, marriage between affected parties is strictly forbidden, in the cases of Category 1 even if the pair attempts to get married (when possible), it doesn’t work. The marriage does not take hold and is automatically null and void. The second category is much different. In these cases, the marriage does take hold but is considered a forbidden unkosher marriage. The parties are halachically required to divorce (in all cases). In days of yore when our batei din were empowered, they would force the separation. Nowadays, although Beis din usually cannot actively force them to separate, they can decree it; as the requirement to do so is always still in effect. They can also apply all kinds of psychological, social or financial pressure. There is no such issue as a forced get in these kind of cases.

The upshot is that, in general, for Category 1 offenses, there is no such thing as marriage and, accordingly, no such thing as the tragedy of being required to dissolve a thriving marriage between two soulmates that may also involve children. In the cases of Category 2, it can happen that two people are happily married for quite some time and produce wonderful offspring and suddenly discover that their marriage is not halachically sanctioned. When this happens, as long as the criteria that caused the problem (e.g., his status as a Kohen and her status as a giyores) cannot be challenged, there is no kosher way to sustain the marriage. The couple must either divorce or flout the halacha and remain married “in sin”.

In real life cases, the rabbanim do everything in their power to invalidate a forbidden status which is sometimes successful in the case of Kehuna and oft-times successful in the case of Mamzerus. Sometimes they can “discover” that a giyores is really Jewish or that the supposed mamzer’s father (or mother) was really goyish (note Langer episode). They find all kinds of ways to invalidate a first marriage or, in a case of machzir gerushaso, the second marriage. But when the status is clear – a Kohen is a Kohen and a grusha is a grusha and a convert is a convert – there is no halachic way to fix the problem. With the exception of Yevama L’Shuk, all other statuses, once in place, are permanent.

When the chips are down, the halacha is firm. There is no way out. And in this sense, the halacha seems to be cold and heartless. Insensitive to the pain it causes. Very unsympathetic. Mamzerish.

Of course, Halacha is very firm and unyielding in every area. Kashrus, Shabbos, and certainly in Taharas HaMishpacha. But the stakes aren’t very high. Okay, so you have to kasher all your pots and throw out your dishes because of those mislabeled chickens. You’ll get over it. And so what if your house is burning down and there are no goyim around. It’s (partially) insured and its only eitzim and avanim. And as for your wife and what happened on the morning before your 25th wedding anniversary – well, there’s always next year.

But to dissolve a marriage and break up a family? A loving thriving one? With no hope of any remedy?

Can there be a bigger tragedy?

I imagine that most of us are not aware of any first hand cases where this actually happened. But I suspect that it’s not because the cases do not occur. I think that they are either resolved using the most far-fetched shoe-string hetteirim or all relevant parties just look the other way and pretend the prohibition is not there. One person who was my personal physician in the US was from a very prominent Orthodox family but he wafted in and out. Yep, he is a Kohen and he is married to a giyores. He told me so. He knows everything. And he does want to be more religious but he is not about to give up his wife and nobody is going to interfere. When his father passed away he actually came to my shul to daven shacharis so he could say Kaddish. When krias haTorah came around he didn’t want to go up for Kohen (he knew he is not qualified to) but Mr. “Kaufman” insisted he goes up (he was also his patient.) Afterwards, I asked the rav, “Can he do that?” and he said, “Of course not.” But he wasn’t going to fight Mr. “Kaufman”.

In this regard, an observer may view our Halachic system as draconian. Do we need to join the Hindus with a caste system and “untouchables”? The Torah that is in general so compassionate and sensitive to Human emotions and shortcomings, that presents a myriad of laws revolving around ואהבת לרעך כמוך and, as Hillel said, “What is distasteful to you, do not do to your comrade - and the rest is commentary…” – how can it be so “mamzerish” when it comes to our most cherished relationships?

Well, the first thing we need to understand is that HKBH only wants what is best for us, and so, the Torah requires us to live in a cohesive family oriented society. What we call a “nuclear” family. Accordingly, HKBH gave us mitzvos “designed” to protect and preserve such a society. We must understand that what is necessary to protect such a society can inevitably be harmful to an individual.

Let’s discuss adultery.

In any civilized society, there must be a sense of title and order. If marital relations were to be open-ended, lustful men would steal away attractive wives one from another, fights would erupt and people would kill each other. It would be a jungle. So HKBH must decree that an eishes ish is forbidden to any other man under the most extreme penalty.

Moreover, in a family oriented society, it is imperative that a woman becomes and remains a man’s wife and bears and nurtures his children. This is by no means a glamorous job. If marital relations were to be open-ended, women would roam from hut to hut looking for a better deal. Husbands wouldn’t be husbands and wives wouldn’t be wives and siblings wouldn’t be siblings. It would be Sodom and Amora. So HKBH must decree that a woman can only change partners if her husband releases her. Until then, she remains an eishes ish.

Still and all, an envious man may lust after another’s wife (Lo Tachmod) and coerce him to release her to him by law (make him “an offer he can’t refuse”). So HKBH must decree that a man cannot be coerced to release his wife.

All of these laws are necessary in order to preserve a civilized, productive society. But what will inevitably happen is that a woman who cannot co-exist with her husband or who is abandoned by her husband may not be able to obtain a consensual release. And she will be chained.

And so we deal with the Agunah problem.

Activists claim that the laws of the Torah are unfair and need to changed. But, above all, we must acknowledge that these laws are very necessary for the good of society at large. And any magic-bullet solution that makes the basic intent irrelevant will do more harm to society than good. It is an unfortunate side-effect that in some cases, individuals must suffer. In truth, BTW, the batei denim can resolve most cases as long as misguided people do not interfere, so the Agunah problem is not as extensive as it is made out to be.

After all this, adventurous married men and women may still want to misbehave on a short-term basis without considering long-term repercussions. Or a restless “agunah” may not want to wait for things to get sorted out and jump the gun. So, to prevent this, HKBH must “up the ante” by decreeing that even for a short-term liaison, the resulting offspring will be permanently illegitimate (mamzer).

And so we see that the innocent offspring must carry the shame of his parents’ indulgences. He must suffer for what is in effect the greater good of society.

After all this, adventurous people may want to try to legitimize their indulgences by granting temporary short-term divorces and then remarrying their spouses - what is known as “wife-swapping”. So HKBH must decree that if one divorces their wife and she marries another, she cannot be remarried (machzir grushaso).

Again, this is necessary for the good of greater society; yet, one who hastily divorces and breaks up their family and later regrets their hasty departure and is aching for reconciliation will be forever barred from correcting their error.

All of these deviant practices along with the debauchery of incest, bestiality, homosexuality, and fire worship (Molech) comprise the maaseh Eretz Mitzrayim and Eretz Canaan that we must desist from or else we will become like them – and get spit out of our land.

Aside from the need to prioritize the welfare of society above the welfare of the individual, we must acknowledge that the Torah was written for those who keep its laws. And, more than not, the “FFB” Torah observant community is relatively immune from the problem of forbidden marriages. (Of course, we are not totally immune from anything, but I mean in a relative sense.) It is most often those who are from families where the previous generations were not observant and who are not aware of the full list of forbidden relationships when they marry who are vulnerable to suddenly discovering that their marriage may not be “kosher”.

This is because in all these cases, the prohibition is in effect before one gets married. A Kohein is born a Kohein and a mamzer is born a mamzer (though it is very possible that he won’t know it) and a giyores is born a non-Jew. A divorcee becomes a divorcee before they move on to the next marriage. As such, the problematic status is always in effect from the outset.

An observant Kohen knows all the rules. He knows what to look for and not to get stuck.* Or, if we are dealing with a shidduch where there is the slightest chance of mamzerus, such as a non-observant grandmother who was married twice, we know to check it out properly to determine the status or to avoid it. An observant couple knows that if the wife remarries after they divorce, the husband cannot take her back; so they are more cautious about deciding to divorce in the first place.

*[Of course, there is always room for mishaps; most likely in a case where a mamzer truly did not know they are a mamzer and when it is not obvious that a woman is unfit for a Kohein.
It is very important that a regular girl who is dating knows some of the rules. The main issue is that if a girl was adopted from a non-Jewish origin, she is unfit for a Kohen. There are situations where the girl either did not know she was adopted, or the girl or her family did not think it was necessary to inform the boy that she was adopted but the boy was a Kohen! Very unwise.
But there is another issue that doesn’t get much press. And since we have spoken so much in the past about child abuse, it must be brought up. If a girl above the age of three was molested by a father, grandfather, brother, or non-Jew (but not an uncle or cousin), and the abuse consisted of genuine sexual contact below the waste, front or back, if the activity meets the criteria of a halachic sex act (maaseh biah), she is unfit for a Kohein.
Obviously, a qualified Rav must be consulted to determine if the act meets this qualification, but it doesn’t take much since it does not require penetration or climax. This is imperative before one is married. If such a girl is
already married to a Kohein and nobody else knows about it, then the status is similar to a woman who was unfaithful in that she is not trustworthy to say she was molested. So don’t tell anybody. If others know about it, she may, chas v’shalom, be in trouble. Call a Rav but don’t tell your husband first.]  

So, all told, we find that Yevamos is not so evil, after all. Of course, forbidden marriages that must be dissolved are devastating tragedies, but Yevamos tells us how to avoid them. Sadly, among the baalei teshuva, they are much more common. As unfortunate as this is, it is part of the baggage that those who have strayed – or their offspring – must carry. For perpetual Torah observant Jews, these occurrences are exceedingly rare. This is because, a forbidden marriage starts out forbidden, and stays that way for as long as the marriage is in effect. But a marriage that is on the up and up, stays kosher. Nobody who wasn’t already a mamzer can become a mamzer after they are married. Nor can somebody who wasn’t a Kohen become a Kohen. A born Jew can’t become a convert and a convert cannot become a born Jew. And nobody who initially married Reuven Cohen can suddenly become a divorcee from Shimon Stern in the middle of her first marriage.

This is almost fool-proof. Except that fools can be so crafty. Yes, there are a few exceptions. The obvious one is an unfaithful wife, but it doesn’t really count because I am writing about those who follow the rules, not those that violate them (and themselves). But there are some other exceptions that can apply even to those who have not broken any rules. And that is what I really have wanted to write about over these last two posts.

I can think of two such cases. But the exact details and the reason I decided to discuss it will need to wait for another post.

It is a matter of the utmost impotence.

Monday, February 20, 2017

The "Mamzer" Masechta


Purim is looming close so it may be appropriate to present one of my all-time hallmark tongue-in-cheek vertels; although my intention is to get very, very serious. Here it is:

The pasuk says in Bamidbar (11:10): וישמע משה את העם בכה למשפחותיו

And Moshe heard the nation crying about their families.

Rashi quotes the chazal in Yoma 75a: על עסקי משפחות – על עריות שנאסרו להם

They were crying regarding family matters; on the incestuous relations that were forbidden to them.

So, according to this chazal, our ancestors were crying over the freshly delivered prohibition of indulging in forbidden relations.

One may want to ask:  Why is this such a great tragedy? Polygamy was not forbidden and most women in the world are not close relatives. Most people wouldn’t want to get involved with their sisters, our aunts are usually older and our nieces are permitted. There’s plenty of “legal game” in the forest so what’s all the commotion about?

The answer lies in the far-sightedness of our ancestors. From the moment that they were forbidden incestuous relations they understood that we will now have to define the 15 types of relations that exempt the step-wives from yibum. We will now have to deal with the issues of Tzaras habas, achos tzara, aseh docheh lo taaseh, edus isha, etc. In short, we have just created a “monster” – Masechet Yevamos. And from now on for all generations we are condemned to being forced to study Masechet Yevamos. 

No wonder they were crying!

There is an adage that says that there are three masechtos in Shas that are so complicated that even after one studies them he is still called an עני – a poor person.  They are so hard to master and usually one remains bewildered, at a loss.  These three masechtos are indicated by the acronym ענ"י. They are:

Eruvin -  ערובין

Niddahנדה

Yevamosיבמות

I think that the connection between these three masechtos is that, aside from being complicated, they deal with some very unpleasant and unpopular aspects of Jewish life. They are all Torah decrees (Niddah and Yevamos) or Rabbinic decrees (Eruvin) that most of us would prefer not to have been incorporated into our Halachic database.  It is not only the burden of having to master the laws, but more so the burden of having to carry them out.

Life isn’t easy for the Torah observant Jews. Our ancestors sure knew what they were crying about.

Don’t get me wrong. Yevamos is still a “team” masechta and is among the “Yeshivisha” masechtas that make up the learning cycle in the great Litivishe yeshivos. But rarely does it get fully digested. The introspective (Iyun) programs never really get past the sugya of aseh docheh lo taaseh (folio 10). In the afternoons they will do HaIsha Shalom, but somehow, the dark recesses of Yevamos usually remain unexplored. The Litvishes don’t usually finish the masechta and those who learn daf yomi are normally studying too superficially to absorb the massive flow of material.

People tend to undermine the significance of this masechet because the main subject, Yevamos – levirate marriage, is all but irrelevant in today’s day and age. Of course, the rules still apply, so on very rare and tragic occasions, we need to conduct a chalitza. Yet, when we step back to look at the whole picture, we note that Yevamos is at the head of the four primary masechtos, Yevamos-Kesubos-Gittin-Kidushin, that comprise seder Nashim (Nedarim, Nazir and Sota are more or less tag-alongs). One way to understand the sequence is based on the rule that the masechet with the most chapters gets first billing. So Yevamos leads with 16, Kesubos with 13, Gittin with 9 and Kiddushin with 4.

But this just happens to “coincide” with another explanation for the sequence: Before one takes a wife in marriage he must know (1) who he is allowed to marry and who not (Yevamos), then (2) what are his rights and obligations in marriage (Kesubos), then (3) how to dissolve the marriage if things don’t work out as they should (Gittin), and finally, (4) only then is he ready to learn how to actually perform the marriage (Kiddushin).

So, all told, Masechet Yevamos doesn’t get much glory. I suppose it could be called a “mamzer” masechta; partly because it is so unpopular and partly because forbidden relationships and mamzerus is one of the subjects it deals with.

And this is the subject that I want to deal with, as well. So, stay tuned for the next post, one of the most neglected issues discussed in Yevamos, and why we neglect it. Stay tuned for “The Male Agunah”.

No, it’s not what you think…

Saturday, January 21, 2017

Diametrically Opposed

Most of us do not think that the latest anti-Israeli UN Resolution was appropriate, but there are some exceptions:



(If you cannot see the embedded video, you can click HERE for a direct link.)


Thankfully, not every [anti-]Israeli thinks that way. Just ask Ahmed the construction worker:



כי דור תהפוכת המה, בנים לא אמן בם


Tuesday, January 10, 2017

Mesira XVIII(b): A Concise Guide to the Laws of Mesira (2) - Mind Your “P”s and “C”s


Author’s note – This is the continuation of my previous post, so please read that one first. For the benefit of those who are not familiar with my Mesira series, I recommend to read the following posts of the series: Mesira vs. Lashon Hara, Adulterating the Truth and No Chochma, No Tevunah - 2nd Segment.



Welcome back, loyal readers. (If you are still reading this kind of posts, you are definitely a loyal reader).

In the first segment of the Concise Guide to the Laws of Mesira we discussed the Three “P”s. The Three “P”s are the prerequisites to being moser that pertain in particular to cases of physical or psychological abuse that predators perpetrate when they prey upon pure pious people. Not exclusively sexual, but that is what sells.

In this segment we will discuss the Three “C”s which are the necessary conventions for complaining to the secular authorities (i.e., cops) in any case of criminality: cash cleaning, counterfeiting, customs clearing, careless car cruising, as well as child molesting. As I stated in the last post, these conventions are based on the teachings of the Chofetz Chaim.

And the 3 “C”s are (in order):

  1. Confirmation
  2. Confrontation
  3. Common Sense

To understand these, let us recall what I wrote previously that just like an alley-cat and a lion are members of the feline (cat) family, only you wouldn’t want to meet a lion in an alley, so, too, are Mesira and household Lashon Hara both members of the malshinus family. It’s just that household Lashon Hara is what they say to your mother (or wife) and Mesira is what they say to the judge (or sherrif or IRS). Mesira is Lashon Hara on steroids.

We know from the Chofetz Chaim just how difficult it is to get a hetter for household Lashon Hara so it follows (kal v’chomer) that to get a hetter for a much more drastic activity – mesira – must be no less difficult.

Now, I wrote about all this in the second part of my post about No Chochma, No Tevunah. This post is merely a summary of that one. So we are going to go back there and retrieve the seven conditions that are imperative to allow any form of malshinus. But for our purposes, I will change the order a bit. The seven conditions are:

1.   The malshin must have his information first-hand.

2.   The malshin cannot infer conclusions beyond the first-hand information that he has.

3.   The malshin must first reproach (confront) the wrong-doer.

4.   There must be a constructive toelles.

5.   If there is another way to achieve this toelles that does not require malshinus, it is forbidden to be malshin.

6.   One may not be malshin if it will cause a repercussion that is beyond what is called for (i.e., what a Beis Din would hand down).

7.   The malshin cannot embellish or exaggerate the severity of the offense.



For this discussion we will ignore the last condition (#7) because there is a distinction between this condition and the previous 6.  The first 6 conditions are conditions that must be met before one may actually perform the mesira (Setup). The last one is only in effect at the point of actually doing the mesira (Run Time). Notwithstanding, it will be exceedingly important if and when we discuss mandated reporting (not in this post).

So if we focus on the first 6 conditions and recognize them as mandatory stipulations, we can break them down into three categories:

Conditions 1 and 2                  > Confirmation

Condition 3                             > Confrontation

Conditions 4, 5, and 6              > Common Sense

And for this we can thank         > Chofetz Chaim



Now, at this point, it is all really self-explanatory and if you have read my previous posts, specifically those noted in the Author’s Note above, you probably already caught on. You can already drop this blog and go to your other emails or to FaceBook. But for new readers or those who want more details, I will elaborate as briefly as I can.



Confirmation

If anybody is wondering why I personally am such a zealot for these guidelines and have invested countless payless hours to write these posts in the face of some Rabbanim and poskim who are very permissive about this, it is because I have seen first-hand the damage that can be done by false accusations. These false accusations come about due to either malicious intent (see Victim Turned Predator)or faulty judgment due to jumping to conclusions, misevaluating the facts and/or believing unsubstantiated rumors and “reliable” information from unreliable sources (see Adulterating the Truth).

Many people are skeptical about this as if it can’t happen – where there is smoke there is fire. Those who think so should google “Wrongful convictions” and “Innocence Project” and I guarantee you, you won’t be bored.

Since I have seen the korbanos first-hand I will vehemently oppose any flawed psak that paves the way for more such korbanos.

The second kind of korban will be the well-meaning person who mahssers on a guiltless person and causes serious damage. According to Rambam and Shu”A, it will take an eternity for him/her to compensate.

So the Chofetz Chaim is telling us that if you plan to be moser, make sure you know unequivocally what was done and who did it. And the only way you can really know what happened and how is if you witnessed it personally. That’s condition #1.

For sure, it is inevitable that, in some cases, action must be taken despite having a first-hand witness. In this case, we may be forced to rely on raglayim l’davar, umdena d’mukchach, or a confession from the accused. But, if you didn’t see it, even if you are sure who “did it”, you cannot be sure exactly what he did. And the devil is in the details. So the Chofetz Chaim tells us, if you are not sure it happened this way or that way, you cannot assume that it did. That’s condition #2.





Confrontation

Confrontation serves a triple purpose. First and foremost, it gives the accused the opportunity to confirm that he is indeed a predator which is instrumental in meeting the Confirmation convention; or, conversely to contest the charges and possibly prove his innocence, thus saving the potential moser from a long stay in the Celestial Crockpot. Thus, it is in the best interest of you, the potential moser.

The second purpose is, in case there is no chance that he is innocent, to avoid the need to mahsser him to secular authorities by giving him the chance to come clean and comply with whatever non-punitive, rehabilitive measures are warranted by the community. Remember, we cannot be moser somebody unless there is no other alternative and you can never be sure there is no other alternative until you give them a chance. Thus it is in the best interest of the accused predator.

Lastly, confrontation is Hasra’ah, an official warning which is a Halachic imperative to taking any steps against a Jew that involve punitive loss, injury or death. This really encompasses the first two purposes: to distinguish between shogeg and mayzid (or total innocence, in some cases) – which was our first purpose; and to get him to desist from further criminal activity – which was our second purpose.

Aside from the fact that Chofetz Chaim lists this as condition #3, this is clearly stipulated in Rambam (Rotzeach 1:7), Shu”A (Ch”M 425:1 and 388:10), and for more recent psak, see IgM Ch”M 1:8.



Common Sense

This is the big one that I really wanted to discuss. But before I deal with it specifically, I want to give a brief preface.

In a long forgotten post I embedded and linked to an unpublished chapter meant for the never-published second volume of my book. It was called Strings Attached and you can see it HERE (only the link works).

This chapter told the story of the eruv controversy that took place in my home town before I made Aliyah. As in all controversies, there were cliques for and cliques against. I was a supporting member of the local Community Kollel which did not interfere but was predominantly non-supportive. I wrote that I was present when somebody asked the Rosh Kollel, who I referred to as Rabbi Zussman, to explain the non-supportive position of the Kollel. The wisdom of his explanation made a profound impact on me and I have reveled in it ever since (which is why I am applying it here).

He said that a Torahdika decision is not merely bare-bones Halacha. It really comprises three factors: Halachic, social, and practical. He went on to explain that the Halachic factor is as it sounds – can we depend that the eruv will meet our Halachic standards and be maintained that way? The social factor is: will it cause social strife in the community? Will it cause machlokes and frumma elitism and alienate neighbors one from another?

The practical factor is: assuming the first two factors get passing grades, is it a good idea? Will it enhance Shabbos or defile it? Why do we want to have an eruv? What do we gain with it and what do we lose? Is it going to help more people attend shul to daven or to eat at a Kiddush? Will it cause less observant people to play basketball and tennis in the park or go rollerblading? In short, is it a tikun or a kilkul?

The Kollel wasn’t convinced that any of the factors would receive passing grades. So they sat it out with an implied thumbs down.

So let’s get back to Mesira. Let’s assume we cleared Confirmation and Confrontation, the first three conditions of the Chofetz Chaim. But now we need to ask the same questions: is this mesira a good idea? What do we want it to accomplish? What is the toelles of being moser this person? What is going to happen if we are moser? Will we accomplish this toelles or not? What will this Mesira fix and what will it break? Is this our only option? Is this our best option? Will it fix something in the short run but make more problems in the long run?

And, in the case of sexual abuse, this takes us now right back to the Three “P”s of the previous post. Can we fix this with P #1? P #2?

These questions address conditions #4 and #5 of the Chofetz Chaim. And then he adds condition #6: Perhaps it is overkill? Perhaps it is beyond what is called for? Do we need to resort to P #3? Perhaps this measure will have a price to pay? And who is going to pay it?

Once we ask ourselves these questions, the answers we get may point us in a different direction. But we need to ask them and use a bit of common sense.

In my Chanuka post, I wrote about the Maapelim. The Maapelim were very contrite and meant well. They had pure intentions, but they had a tragic end.

Why?

Because the Aron Bris Hashem and Moshe were not with them. When this is the case, we are doomed.

This does not only apply to making Aliyah. It applies to every single thing that we do. I wrote in Chapter 6 of my book (page 170): Everything we do is either a fulfillment of Anochi Hashem or a transgression of Lo Yihiye Lecha. Everything!

So when we are facing something so serious as being moser a Jew to secular authorities, even a bad Jew, use a little common sense. Will this accomplish what we want it to accomplish? Is this a tikun or a kilkul? Is this daas Torah – Anochi Hashem, or is it atzas hayetzer – Lo Yihiye Lecha? Is the Aron Bris Hashem, Chofetz Chaim and Rav Moshe with you, or are they in another camp?

Speaking as one who has been oved all of the avoda zaras, please take my advice.

וגם כל העם הזה על מקומו יבא בשלום!


Sunday, January 8, 2017

Mesira XVIII(a): A Concise Guide to the Laws of Mesira (1) - Mind Your “P”s and “C”s


Author’s note -- For the benefit of those who are not familiar with my Mesira series, I highly recommend to read the following two posts of the series: Child Abuse and Fire and Desperate Measures.



I have been writing about this sordid topic for well over a year and the insight that I have gleaned from it has enabled me to compose a concise set of guidelines - a kind of general summary.

I have wanted to write this post for some time but the subject seemed to have played itself out and gone dormant in the Jewish blogosphere and I had no desire to revive it. You might say that I needed to wait for a "trigger" to come back to it.

Well, the “trigger” came over Chanukah when several very popular blogs (HERE and HERE) that specialize in this issue embedded a video of a telecast given by Harav Shraga Feivel Zimmerman, Shlita of Gateshead. This telecast was made for the benefit of Kollel Beth HaTalmud in Melbourne, Australia (of all places). The telecast carries the title: “Halachic Obligation of Reporting Abuse to Authorities.”  

As the title implies, the telecast was focusing on the “Obligation”, i.e., the hetteirim, for Mesira that are supported within Halacha.  Rabbi Zimmerman spent most of the shiur emphasizing the tzad hetter - all of the sources and circumstances that mattir and even obligate one to report confirmed predators to secular authorities in cut and dried cases. He did not spend much time emphasizing the tzad issur - the risks and dangers, Halachic and otherwise, that are inherent when the circumstances do not meet the criteria of the sources – which I happen to believe are the majority of cases. As such, it was somewhat imbalanced.

So it seems that his lecture requires a little bit of balance. And since nobody else is doing it, I shall volunteer for the job. Trust me, there is no glamor in it (glamour, if you are from Gateshead or Melborne). It’s not a pretty job but…someone’s gotta do it.

I plan to discuss his telecast in detail in a future post, but for now, I think it is important to summarize the basic tenets of the Halachos of Mesira that were scattered throughout the previous 18 or so Mesira posts. I call the guide Mind your “P”s and “C”s. (You can probably substitute “Q”s for the “C”s since they basically sound the same.) This is because there are two categories.

PPrerequisites (or Protective Options)

CConventions (or Chofetz Chaim)

Each category has three rules. The 3 “P”s and the 3 ”C”s. In this post, we will examine the “P” category. The “C” category will require a second post. Here we go:



P – Prerequisites (Protective Options):
Proximity – Publicity – Punishment

Before there can be any hetter to be moser, there must be a need to be moser. In other words, why should I want to be moser someone to secular authorities in the first place?

The short answer is that there is supposedly some sexual abuse going on and I want to put a stop to it. But why?

Because the victims are getting hurt. I want them to stop getting hurt. Or, in other words, I want to protect the actual or potential victims.

Okay, so our goal is protection. What do we need to do to accomplish this goal?

We need to take protective measures. But the forcefulness and degree of these protective measures depends on how serious the situation is. Thus, we can assign protective measures at three levels (in order):

1.   Proximity (Prevention)

2.   Publicity (Pirsum)

3.   Punishment (Police and Prison)

As you can probably guess, #3 is the ultimate protective measure that requires the Hetter Mesira. What is just as obvious, but most kanayim don’t want to admit, is that in many cases, measures #1 and/or #2 is sufficient to achieve the necessary protection. In these cases, there is no need to resort to measure #3 and, consequently, no excuse to actively facilitate it through mesira.

What are these measures? Let’s see.



Proximity

There are two types of proximity: Distance (location) and Time.

Distance - Abuse occurs when a predator and a victim are in the same location (at the same time). Hence, there can be a very simple method of preventing abuse.  Simply, see to it that the predator and the past or potential victim are not secluded in the same proximity (or location). I wrote about this in detail in my post about Child Abuse and Fire. In many cases, especially what I called Class A Child Abuse (Domestic) the abuser has a fixed domain for perpetrating the abuse such as a father or big brother in a home situation and likewise a Rebbe in a school or a counselor in a camp.

I wrote that in cases like these, there is a relatively simple remedy for protecting the victims which is to distance one party or the other from the hazardous domain. In the case of a Rebbe or counselor (or peeping Tom rabbi), it may be sufficient to relieve them from their post. In a domestic case involving young children, it will require removing either the abuser or the victim(s) from the home.

This is obviously not as simple as I am making it. Frequently, it requires the intervention of secular authorities (though not necessarily the police) to accomplish this separation. I would say that if this intervention is necessary and it is the sole purpose of contacting the authorities, this is not considered mesira because there is no intention of causing any harm to the alleged perpetrator. (See Tzitz Eliezer 19:52)

If the victims are teenage children or adults (spouse), it might be emotionally difficult to relocate but logistically not very hard to do.

Time – Here I am referring to a situation when one was abused in the past but is no longer in danger. Thus, time creates the necessary separation between the victim and the abuser. At least in the case of this victim, there is no current need for further protection.

But this is only from the perspective of the victim. From the side of the abuser, I had another factor in mind. To explain this, I must refer to a startling statistic stated by Rav Yehoshuah Berman of Maaneh Institute in his Headlines interview with Reb Dovid Lichtenstein Nov. 19, 2016 (47:15). He stated as an unconfirmed statistic that more than 60% of sexual abusers are minors with about 50% being aged 14 or younger!

I always suspected something along these lines (not as drastic) but this is the first time I heard it said from the mouth of a real askan. What it says is that most sexual abusers of young children are not pedophiles nor are they even sex addicts or dysfunctional. These are youngsters who are first coming to terms with their own sexuality or may have been freshly introduced to p0rnography and have no kosher outlets to deal with their new-found lusts. This is called “acting out” and from a legal standpoint it is called “sexual impropriety”. What it says is that, for many of them, it is only a matter of maturity and the opportunity for a healthy sexual relationship to straighten them out. It means they may actually grow out of their abusiveness and are highly curable.

This case won’t reduce the trauma of the victim and we still need to deal with the abuse but I hope we can all agree that measure #3 is not an option in these [60% of] cases.


Publicity

Now many of you will ask: we can fire the Rebbe or get the father or brother out of the house, but these folks still harbor the tendency to abuse others and will probably seek out other targets in other venues. Likewise, we cannot expect this to work in the case of full-grown Communal or Pedophilic abusers (what I called Class B Child Abuse).  How do we protect potential future victims?

Aside from the fact that there will never be a fool-proof method (see HERE), even  when we use the most extreme measures, but we all know that an ounce of prevention is better than a pound of cure. As long as we have identified a predator, it is relatively easy to protect potential victims by ensuring that they steer clear of the predator. Of course, this means letting as many people as possible know that this person is a risk, so it is often necessary to supplement measure #1 with a good dose of measure #2 - Publicity. This means maintaining sex offender registries and perhaps posting notices (dropping leaflets from helicopters?) that a confirmed predator is in the area.

Aside from alerting the public, this measure carries the added advantage that the predator is put on notice that he/she is being watched. People generally behave much better under these conditions.

Of course, this also must clear the hurdles of Lashon Harah and malshinus but it is certainly not malshinus at the level of mesira to non-Jews and as such, is not too difficult to permit.

Needless to say, we can include in this measure proper child safety education which has shown to be extremely effective.



Punishment (Police/Prison)

Aside from enforcing a separation or restraining order when an abuser refuses to comply with this requirement, as indicated earlier, there is only one reason to involve law enforcement in a case of sexual abuse: to “solve” things once and for all by getting the predator locked up.  

I think that in most cases, little to nothing is accomplished because the predator does not wind up getting locked up or it’s not for a significant amount of time. In so many cases of sexual abuse (as I am led to believe in the case of the older Kolko), the nature of the abuse did not reach true sexual contact and was merely “inappropriate touching” which, in the US, is usually 2nd degree sexual abuse – a mere misdemeanor. Though the victims in cases like this are genuinely devastated (as one testified to Dovid Lichtenstein), the offense is not overly jailable. Lastly, jail is not likely to happen unless the victim is prepared to press charges (and actually does so), which opens the door to emotional and Halachic issues (לא יקום עד אחד) that go beyond simple day-to-day mesira.

Hence, resorting to this extreme measure does not offer much in terms of protection.

Of course, there are extreme cases where the predator is completely sociopathic, aggressive, and incurable and needs to be locked up. There are even cases of abusers who tell the authorities or their handlers that they need to be locked up. But from what I have been hearing and reading, this extreme is a very minute percentage of actual cases.  

The real reason people want to resort to this measure is to punish the predator and see that he pays for his actions. They use the need to protect victims as the justification for taking this step. If it is truly necessary to resort to this measure for protection – i.e., the previous two measures are not sufficient – then, and only then, can we explore the stipulations of mesira. If it is not necessary, then it is merely nekama couched as “bringing the predator to justice”.

In our generation we are not authorized to dan dinei knasos, administer corporal punishments, or mete out “justice”. And even in the “good old days”, this was for beis din to do, not the individual.

So before we consider mesira to the non-Jewish authorities, we have to use the 3 “P”s to determine if it the mesira is really called for. In the event that it is called for, we must familiarize ourselves with the 3 “C”s.

Stay tuned…


Monday, December 26, 2016

Maccabe’im or Ma’apelim – Miraculous Oil and Dry Bones


Yes, Chanukah is here.  A festive time for the Jewish nation. We light our candles, do song and dance, dreidels and latkes, Hallel and Hoda’ah and… we recite Al HaNissim.

Al HaNissim is our blueprint for what it is that we are actually celebrating. It tells us exactly what was the objective of the Yevanim and how miraculous was our G-d given victory. We were few and they were many. We were weak and they were strong. We were righteous and they were wicked. But HKBH stood up for us in our time of need. He fought our battles, rendered our judgments, and wrought our vengeance.

We were victorious and so, we restored the Beis HaMikdash and the seder hakorbanos.

We learn from this that with G-d’s help, anything is possible. It doesn’t matter if we are few and weak. If HKBH is on our side, victory is assured.

Oh, and another thing. We cannot just sit idly and wait for divine intervention to save us. We must be proactive and take matters into our own hands.

This philosophy has penetrated the hearts and minds of myriad devout Jews over the centuries. And it seems to have a firm basis from the story of Chanukah. The Maccabees have stood out as symbols of heroism and mesiras nefesh in the face of overwhelming odds. We make comparisons to the Maccabees when we talk about the resistance groups and uprisings in the face of the Nazi beast during the Holocaust and likewise of the refuseniks of Soviet Russia.

Unfortunately, in some religious circles, the philosophy of taking matters into our own hands has grown so strong that they have lost sight of the first half of the lesson – that we need G-d’s help. Without G-d’s help we cannot succeed no matter how righteous we are and how pure are our intentions.

Where do we learn this from?

We learn this from the Dry Bones.

The navi in Yechezkel 37 tells of a miraculous event. The Prophet Yechezkel (my favorite) was brought to the Valley of Dura where he saw a heap of dry bones. HKBH commanded Yechezkel to prophesy that they should come to life, and behold, so it was. The bones grew new sinews and flesh and became living people.

The gemara in Sanhedrin (92b) debates whether this event actually occurred or was it merely a vision. On the side that it really took place, it further asks: Who precisely were the people who initially possessed these bones?

One answer the gemara presents is that these were the bones of the segment of Shevet Ephraim who miscalculated the predestined time for the exodus from Egypt, made a unilateral get-away, and were killed by the Plishtim (Palestinians?) of Gath. They held that the 400 years of slavery begins from the initial pronouncement at Bris ben Habesarim in the year 2018.

One has to wonder, why did only these Bnei Ephraim go up? Why didn’t all of the Jews go with them? Didn’t everyone want redemption from Pharaoh’s yoke of slavery?

Obviously, the other Jews did not concur with their [erroneous] calculation. They maintained that the 400 years don’t begin until the year Yitzchok was born - 2048.

Then, why did they go up by themselves?

They must have been very smug about their position.

I would imagine that they must have tried to convince the other Jews to come along and it must have stirred up quite a debate. They must have brought proofs to their position. The others may have countered with proofs of their own. But I would assume many people weren’t interested in proofs. They held that if it is time, HKBH will send his messenger and secret password. We will see the divine revelation. We will not need to guess or to calculate. We will know it when it happens.

But the Bnei Ephraim held that redemption will not come by itself. We have to make it happen. We have to do it. G-d is waiting for us to make our move. Just like Nachshon ben Aminadav. When we take the initiative, the Shechina will come out of golus and join in. But, it’s up to us. The time to act is now. G-d will be with us!

He wasn’t.

When G-d finally did take us out of Egypt some 30 years later, He took care not to lead us up the shorter coastal route. Why? So that we shouldn’t see the corpses of the Bnei Ephraim lying dead in the Valley of Dura and become disheartened.

But there was a down side to this detour. Sure, we didn’t see the Bnei Ephraim and become disheartened but we also did not see them and learn a valuable lesson. And those who do not remember the past (or are ignorant of it) are condemned to repeat it. Consequently, we see a similar episode transpire in Parshat Shlach.

In the wake of the debacle of the 10 spies, HKBH decreed that we must remain exiled in the desert for another 39 years. A group of Jews (this time they may have been from Shevet Menashe), was not about to take this decree sitting down. After declaring their repentance, which was probably totally sincere, they decided that HKBH would be amenable for them to display their new-found faith in His power to vanquish the Canaanim. They assumed that HKBH’s decree was merely a cue for them to take matters into their own hands and to get the job done.

Moshe tried to tell them that they are mistaken. The decree of G-d is immutable (kind of like the freezer in Lakewood). Don’t bother trying. He will not be with you. The Torah says that they propelled forward nevertheless, but the Aron Bris Hashem and Moshe did not budge from the camp.

This did not have a happy ending.

So here we have two conflicting ideologies on the proper way of seeking redemption from galus. The Dry bones/Maapelim model indicates that it’s a good idea to stand by for clear instructions.  שב ואל תעשה עדיף The Maccabee model indicates that we need to take the bulvahn by the horns. מה תצעק אלי? דבר אל בני ישראל ויסעו!

Oh, what’s a good Jewish body to do?

This debate rages on to the modern era. Until the beginning of the 20th Century, the notion of the Jewish people taking themselves out of exile was an unattainable dream. But some hefty World Wars changed all that. That along with the development of steamships, trains, and planes that could swiftly transport Jews back to the Land from all points on the globe. (Along with an assumption that nobody else cared for this desolate strip of real estate anyhow.) And, so, some Jews decided it is time for action.

Now, I do not intend to discuss the secular Zionists who were never interested in a third Jewish Commonwealth and a Beis HaMikdash. These folks merely wanted an independent state where there were no European goyim around to remind them that they are Jewish and to disallow them to participate in their indulgences. They preferred to dispel the golus through diplomatic means. And HKBH was not part of the picture.

But the religious Zionists were not the same. While riding on the diplomatic coattails of the seculars, they did aspire to a third Commonwealth and felt that HKBH will stand by them in their quest whether by friendship or force. They drew inspiration from the mighty Macabees – to win against the odds; the few in the hands of the many, the strong in the hands of the weak, the wicked in the hands of the righteous. And they brought up all kinds of references from Tanach and Talmudic sources to back them up.

The Chareidi Rabannim, for the most part, disagreed (perhaps there were exceptions…). Some of the sources are misinterpreted. But most of them are not looked upon as being relevant in the here and now. "The fruit - and hence, the time - is not yet ripe. The restoration of Malchus Bais Dovid (Moshiach) has not come. The navi has not given us the secret password. We do not yet have a true parah adumah.We cannot eat matzo on erev Pesach.  כלה בלא ברכה אסורה כנדה.The Torah world is lodged in the West. The Aron Bris Hashem and Moshe have not budged."

But then, HKBH, in His infinite sense of irony, teased us all. He destroyed the Torah centers of Europe but reestablished them in America. He gave us miraculous victories but we only won an independent state and not a Jewish Commonwealth.  

Of course, the Torah community has thrived here as well. And with it come the religious right-wing activists. Some are the hilltop settlers. Some are the Temple Mount Faithful. Some are the Kahanistim. Some are the Temple Institute. And some are all of these. Many are indeed devoutly religious and are infused with a religious fervor to bring about the geulah and to restore the Beis HaMikdash and the Korbanos. And they know all of the snappy pickup lines. “Mitzvos are applicable in all generations and at all times. We have found the Techeles. We can establish a Sanhedrin (or, we already have). Korban Persach does not require a Beis HaMikdash. Tumah hutra b’tzibur. Let us do it now.”
And the debate rages on.

They say we must be like Mattisyahu and his sons, the Maccabees. It is imperative. If we do not act, we will be held accountable. The others say, we must not be like the Bnei Ephraim and the Ma'apelim. It is forbidden. If we act, we will be held accountable.


Who is right?

To be honest, I am not quite sure myself.
I think the only way to answer this is to go to the “source”.  Why did HKBH support the Macabees but not the Bnei Ephraim and the Maapelim? What is the difference? Wasn’t everybody acting l’shem Shamayim?

One possible answer would corroborate a story that I heard attributed to Harav Yitzchok Hutner, ZT”L.

The story goes that there was a young bochur learning in a given Yeshiva and he was doing just fine. The boy’s father thought that his son may have even greater success in a different yeshiva. He approached Rav Hutner, ZT”L to ask him if it is a good idea to transfer his son to a presumably better yeshiva. Rav Hutner responded as follows:

When we say Hallel on Sukkos and recite the wordsאנא השם הושיעה נא  (Please Hashem, save us!) we wave the 4 minim. When we recite the wordsאנא השם הצליחה נא  (Please Hashem, help us to succeed!) we do not wave the 4 minim. Why do we do this in the first case but not in the second?

The answer is that when one is being threatened with an intolerable situation and imminent physical or spiritual harm and he needs a salvation and keeping the situation as-is is not an option, he cannot sit still. He must be proactive and do what is necessary and trust in Hashem to help him. Conversely, when one is not facing an existential threat and the current situation is tolerable (i.e., things will not deteriorate) but merely he is looking for greater success and achievement, he must not move on his own but wait for HKBH to guide him to greater success if He so wishes.

Hence, Rav Hutner was telling the petitioner that if his son is succeeding where he is at, it is best not to make any “improvements”. He would not have said the same if the boy was not succeeding.

Likewise, the Maccabees were facing a Greek government that was not allowing us to be Jews at any level. Shabbos, milah, mikveh and Torah learning were being taken from us. The spiritual danger was critical, the situation was intolerable. Acceptance of the situation was not an option. It was clear that action must be taken to avoid spiritual annihilation. Whether the time is ripe is not up for debate. The Maccabees needed to act and they did. They had no choice. We needed a salvation from HKBH and He came through.
Similarly when the Jews were trapped in front of the Red Sea, HKBH said that this is not a situation that can be left as is. Don't just stand still and pray for salvation -  מה תצעק אלי. You must make the first move - דבר אל בני ישראל ויסעו.

Conversely, Bnei Ephraim and the Maapelim were facing a bleak substandard situation that was slated to continue for just a few more decades (only 30 years in the case of the Bnei Ephraim and 39 years in the case of the Maapelim). Although the servitude of Egypt and the barrenness of the desert were not ideal, there was no imminent existential threat. Nothing they had today was being taken from them and today is not worse than yesterday. And besides, G-d had given His decree. They were looking for success but did not need salvation. This is not the time to take matters into one’s hands and be poresh from the tzibur. G-d stayed with the tzibur and allowed them to perish (from the tzibur). The Aron Bris Hashem and Moshe did not budge.

Another approach to explain this difficulty is that the Bnei Ephraim and the Ma'apelim were fighting for our zechus to the Land. For the Maccabees it was different. They were living in the Land and were not being exiled from it. It was not the zechus to the Land that was at stake but the zechus to the Torah and the Jewish neshama. For the Torah one has to fight and be moser nefesh. But not for the Land.

What is the difference?

The difference is that the Torah is not a gift. It is an inheritance. It is a Morasha – Morashat kehillas Yaakov. An inheritance is a birthright and does not need to be acquired. A newborn infant and a comatose vegetable can assume an inheritance without any knowledge or action. The Torah inherently and unconditionally belongs to us and nobody has a right to take it away even for a moment. Thus if someone attempts to do so, we have the right to fight for it and expect HKBH to come to our aid.

The Land is more like a gift. It is a privilege more than it is a right. Although the zechus to live here was indeed inherited from our forefathers, it is still subject to a host of conditions. We must observe the shmittas and we must be a holy people lest the Land spits us out as it spit out the nations who came before us. Although we are heirs, there are others. We must be worthy. We must earn the Land, we cannot demand it. We could not initially get the Land until the 400 years expired because the sin of the Emori needed to be complete. Until then, it wasn’t time. When the Ma'apelim moved in, they were trying to claim a Land that they hadn’t earned. G-d wasn’t ready to let them take it.

The Maccabees weren’t fighting for the Land. For those who know the historical facts, the truth is they did not succeed to vanquish the Greeks from the Land. Even after the great victory, the Greeks were still there. They fought for the right to remain Jews and to study and keep the Torah. This was a virtuous battle because the Torah is eternally ours and exclusively ours. For this battle, G-d will always come to our aid.

Of late, I have gotten to know some of today’s Kahanistim. As a rule, they are sincere people, devoted to Yiddishkeit and their motives are pure. And I believe the same about the group’s founding father Rav Meir Dovid ben Yechezkel Shraga Kahane, HY”D. I think most people will acknowledge that his perception about the political realities of our environs and the outlooks and goals of our Yishmaeli cousins was spot on. But the chareidi Rabbanim of his day were not in his corner.

Why not?

It is interesting that among Rav Kahane (ZT”L/HY”D)’s prolific writings was a commentary on Neviim rishonim which he called פירוש המכב"י. What was the meaning of the term מכב"י?

It's an acronym for: מאיר כהנא בן יחזקאל

Aside from this actual acronym being obviously quite auspicious to his cause, it also indicates that he wants to identify his struggles as in line with those of the Maccabees (perhaps his ancestors?) He doesn’t seem to focus on the Yechezkel part (also a Kohein) which relates to the dry bones. (I wonder if his name would make an acronym מעפיל would he use it as a name for his sefarim?)

I think that the Rabbanim felt more like Rav Hutner, ZT”L. Even though his perception was deadly accurate and he was totally l’shem Shamayim, his call was more one of אנא השם הצליחה נא  than it was  אנא השם הושיעה נא. One that doesn’t call for proactive measures but rather to wait for HKBH's divine revelation.  It was a struggle for our right to control the Land. But this can only succeed if we are truly worthy. G-d’s support and victory are not – as of yet - assured.  

So after we have studied the episodes of the Maccabees and the Maapelim, the miraculous oil and the dry bones, we need to think twice about how much we are the masters of our own destiny. To what extent can we call the shots and try to force G-d’s hand. To what extent can we decide for ourselves if we are worthy of G-d’s intervention. When can we be assured of victory and when we cannot.  

We must choose our battles, and we must choose wisely.



A freiliche Chanukah!


Other golden oldies about Chanukah: