Mesira X.i: No Chochma, No Tevuna and No Eitza Against Hashem - 1st Segment: Chochma and Tevuna

Author's note - As this post developed, it evolved into a multi-part essay. It is too long to be posted as a single post so I must post it in segments. The essay is now complete and available in PDF format. To access, click HERE.

Part 1 - Introduction

When I wrote the eighth Mesira post (Mesira XIII) way back in October, it seemed to me that interest in this topic and in the Kol Koreh that triggered it is waning and there is no point in harping on it.

As of Jan 23, I changed my mind.

Of late, I fell into being a regular listener to Headlines, the weekly radio show on current Halachic issues operated by R. Dovid Lichtenstein. Interestingly, I first discovered Headlines when somebody alerted me to an interview he held with Harav Dovid Cohen, Shlita on the Kol Koreh topic on his Sept. 12, 2015 broadcast (click HERE). Therein, R. Cohen took a very hard-lined pro-mesira stance.  The implication was that Rabbi Cohen maintains that the situation of sexual abuse is so dire that one is enjoined to immediately take the most extreme level of action, yet it is not dire enough that one should pause and assess if this course of action is really effective and appropriate for the case at hand.

I was extremely disturbed by this and said so on my blog (Mesira VII). I also commented that Rabbi Cohen seems to be contradicting himself, though I did not elaborate.

This broadcast was followed on Oct. 3 by an interview with Harav Doniel Neustadt, Shlita of Detroit. R. Neustadt seemed to be much more level-headed and reflected my position on the issue (click HERE). Mesira is only a last resort, not a first resort.

There it remained until the Headlines broadcast on Jan. 23, 2016 (click HERE) where Rabbi Lichtenstein interviewed Rabbi Zvi Gluck, director of Amudim, who presented some fascinating facts and statistics – many of which were not fully digested by the host. Before this, Rabbi Lichtenstein interviewed Rabbi Nachum Eisenstein, Shlita about one aspect of the issue: to what extent can we believe an accusation by an underage complainant? (A. Not so fast.) After these, he replayed a portion of his Sept. 12 interview with Harav Dovid Cohen, Shlita that clashes with the position stated by Rav Eisenstein in the name of Rav Elyashiv, ZT”L. He then tells the audience that we have heard three viewpoints and urges them to decide for themselves (while he tips us off that “we already have the psak of Rav Dovid Cohen”).

After hearing all this, I was very dismayed about how Rabbi Lichtenstein characterized the various opinions. Even though Rav Eisenstein and Rav Cohen were certainly at odds over the issue of believing an underage complainant, Rav Eisenstein did not really give an opinion about mesira of proven molesters in general. If anything, he seemed to condone it. Rabbi Gluck did not touch upon the Halachic debates. He merely discussed how serious the situation is and voiced his support for whatever works. But he did concur with Rav Eisenstein’s statement that “Going to the courts is like going to Las Vegas” when he said that only 1.5 % of people reported as molesters ever go to jail.

Regardless, Rabbi Lichtenstein presented it all as some kind of a three way debate.

In the midst of all this and in the aftermath of the multitude of research that I have done on this topic, it is clear that there are many facts and figures that have escaped the attention of all of the “contestants” and is misleading the audience (and masses). I have come to fill the blanks.

In light of this, I promptly emailed R. Dovid Lichtenstein and offered to do this via a broadcast interview. I told him that I realize I am not a Rav, Rosh Yeshiva, Mechanech, Askan, or head of a chesed organization. I am just a know-it-all author/blogger (just like him). Still, he may be surprised at what I am able to contribute, especially since nobody else he interviewed has done it so far.

He hasn’t responded to my offer. Evidently, I am not worthy.

So, here I am to present some ignored, overlooked, and understated facts and figures – many of them are from the previous posts in this series - and to let us know what they are saying to us.

Part 2 – Chochma: Just the facts, ma’am!

Many of the facts on this list have been discussed at length in previous posts. At the end of each one, when applicable, I will reference the post that discusses it. Before you read this list (or after you do), it may be a good idea to review those posts and, in particular, Mesira IV: Child Abuse and Fire, which covers the lion’s share of these facts.

The first group of facts are the shocking ones that were presented by R. Zvi Gluck of Amudim in the Headlines interview on Jan. 23, 2016. Note that R. Zvi Gluck works in an organization that helps victims:

1. 90% of abuse cases that he deals with are domestic (Class A in Mesira IV) and not communal (or Pedophilic - Class B). (See Mesira IV)

2. A report to the authorities entails a thorough and lengthy investigation. This will invariably eat up lots of precious time before an arrest can be considered. (Mesira VI)

3. Less than 15% of people reported to sex crimes units are ever arrested.

4. Of those arrested, less than 10% are convicted.

5. Combined together, less than 1.5% of reported offenders are convicted.

6. Many victims in their 30s and 40s are dead inside from abuse that happened to them when they were 9 or 10.

The following come from a series of personal conversations with a close friend who I will call R. Yom Tov (a very ehrlich Jew). Reb Yom Tov is a psychologist who specializes in sexual deviance and works with victims and perpetrators alike:

Note – The term “most” indicates more than 50% or, “as many as not”. It is not a numerical statistic.

7. A pedophile and a sex addict are two totally different (and even opposite) creatures. (Mesira IV)

8. Most offenders are not psychopaths and have no malicious intent. They are driven by urges that they cannot control. (Mesira IV)

9. As such, most offenders will continue doing their deeds even after being exposed as long as they are not thwarted from doing so. (Mesira IV)

10. However, upon being exposed, most offenders from the Orthodox community are exceedingly cooperative to preventative and/or rehabilitative measures. (Mesira VIII - Step 7)

11. Most offenders are victims of sexual abuse themselves.

12. Of the above, many never received any professional help or offers of professional help and in some cases, they were even thwarted when they sought out help.

13. It is not only victims that attempt suicide (with varied levels of success). Offenders are just as miserable.

14. I had a difference of opinion with Reb Yom Tov on the following:

    a.   He said - The main mandate of the police (law enforcement) is to protect the public. (Mesira IV)

    b.   I said - The main mandate of the police is to prosecute wrong-doers. (Mesira IV)

15. We both agreed - It is not the primary mandate of the police to assist individual victims. (Mesira IV)

Halachic facts:

16. Mesira and Lashon Hara are two forms of malshinus. They are essentially the same thing except that Mesira is more “lethal” (Lashon Hara on steroids). Consequently, the repercussions are much more severe. (Mesira V)

17. The hetter for mesira for one who is  מיצר את הרבים - a public nuisance – only applies to a public nuisance (as the term indicates) and not to one who distresses an individual. (Shu”A Ch”M 386:12)

18. The heavenly retribution for unwarranted mesira is at least as severe as for retzicha (homicide). (Mesira V – Su”A Ch”M 386:9)

19. It is forbidden to kill a rodef if he can be thwarted by non-lethal means (this proviso does not always apply to the victim - nirdaf). (Mesira VIII – Rambam Rotzeach 1:13)

20. It is forbidden to apply the laws of rodef once the crime has been committed and the threat has been neutralized. (Mesira VIII – Rambam Rotzeach 1:12)

And finally a fact that is self-evident:

21. The primary mandate of the community is to protect and help victims, not to punish offenders.

Now I think any sharp person who reads this list and internalizes it can already see the cracks in the masonry. When we put some of these facts together, we arrive at some surprising conclusions.

Let’s discuss a few...

 עד כאן חכמה

Part 3 – Tevuna: Lessons we learn from these facts

Before we go on, I must reiterate that this entire series of “Mesira” posts is a critique of the Kol Koreh signed by 107 American rabbanim and endorsed by Rav Dovid Cohen, Shlita and Reb Dovid Lichtenstein that was published last August.  The Kol Koreh indiscriminately obligates any individual (i.e., not necessarily the victim) to immediately report any reasonable suspicion of abuse directly to “law enforcement”, i.e., the police. 

In my last post, which was meant as a preamble to this one, I indirectly referred to this Kol Koreh and opined:

Before we do anything, we need to take a long hard look at what it is we are trying to solve, what is causing this problem, and in what way is any specific course of action going to fix it.

Well, it just so happens that all of these points were addressed in the list of facts in Part 2 of this essay. But we need to digest them and extract the lessons.

Lesson 1 (Facts 21, 2-6 and 11-14)

The final fact in Part 2 (Fact #21) states “The primary mandate of the community is to protect and help victims, not to punish offenders”. This much is obvious. Amazingly, Facts #11-13 tell us something not as obvious: we have a secondary mandate.

Our secondary mandate is to help the offenders as well. This is because it is highly likely that these offenders are veteran victims who never received professional help and are just as entitled to it. This is enforced by R. Zvi Gluck’s Fact #6. The offender may actually be the 30-40 year old victim who has been dead inside for 20+ years because the community didn’t help him. He may have only become an offender because this is the only way for him to alert the community that he needs help. Until now he was ignored!

Comes Harav Dovid Cohen, Shlita and announces that all offenders should be automatically incarcerated for life!

Obviously, the secondary mandate cannot come at the expense of the primary one (that’s why it’s secondary). And, if necessary to protect the victims, we may even need to prosecute the offenders. But we may be surprised at how often both mandates are attainable without conflict. And, if so, that is where we need to be.

Fact #14 tells us that calling “law enforcement” will not help us achieve our secondary mandate at all. It follows, hence, that the only purpose of reporting a molester to the police is when it is the only effective avenue of achieving our primary mandate – to protect the victim(s).

Is it?

Well here comes R. Zvi Gluck and tells us Facts #2-5:  Less than 1.5% of reported molesters are taken off the streets! And, when they are, it is only after a long series of investigations and prosecution. What happens in the meanwhile?

It appears that most of the time, calling “law enforcement’ does not achieve our primary mandate either.

Rav Nachum Eisenstein said that going to the American justice system (courts) is like going to Las Vegas. I think the odds in Las Vegas are better.

Lesson 2 (Facts 1 and 17)

R. Zvi Gluck’s Fact #1 tells us 90% of abuse cases (that he deals with) are domestic.  From inside the home. Only 10% come from Rabbis, teachers, counselors, bus drivers, etc.

This means that most cases of abuse in our community are Class A (see Mesira IV). The Kol Koreh is indiscriminate and tells us that if you are an outsider that has reasonable suspicion that abuse is going on, the first entity to call is the police.

Why are they first?

Will this accomplish our secondary mandate? Not much hope.

Will this accomplish our primary mandate? You tell me.

I already discussed this at length in Mesira IV. Also in Mesira VI. If you are not the abuse victim or a family member, the only complaint you can make to the police for another's domestic crisis is for disturbing the peace. Also, for a domestic crisis that is not yours, you can’t know what kind of can of worms you may open and how much additional damage you may cause, R”L. Only a family member can file an abuse complaint in a domestic case. And it is for them to decide if it is in their best interest to do so.

Thus, for 90% of the cases, it is hard for me to understand why “any individual” (i.e., one outside the family) should have a “religious obligation” to call the police.

You can, however, call social services, not law enforcement. Let them call law enforcement. This may be very effective and may not even be called mesira. But this is not what the Kol Koreh is instructing us to do. (Note – They mention “Civil Authorities” in the heading and “Civil Authorities” at the end, but the body says “Law Enforcement”. These are Talmidei Chachamim who wrote endorsed this and any Talmid Chacham knows that כלל ופרט וכלל – אין בכלל אלא כעין הפרט.) And remember the can of worms.  

There are a number of other lessons to be learned from Fact #1. One has to do with the credibility of parents and will not be covered in this segment.

Another is relevant for when we discuss the rules of rodef (Fact #17) and מיצר את הרבים. Harav Cohen claims in his interview that mesira is universally permitted because a molester is a מיצר את הרבים. In spite of what he claims, Rabbi Gluck tells us that 90% of the cases are domestic and not communal. Therefore, they do not qualify as מיצר את הרבים  - a public nuisance.

Lesson 3 (Facts 10 and 20 and 8-9)

Reb Yom Tov’s Fact #10 tells us the most important and most unacknowledged chiddush of all. (It was to express this chiddush and one other one that I asked Reb Lichtenstein to interview me.)

It tells us that – in most cases - once a molester is exposed and confronted, he can be “managed”. This is most often true for the 90% family molesters because, after all, they usually care about their family status. For the 10% Class B (communal) molesters, such as a rebbe or the shul candy man, once he is exposed, it is quite easy to create a barrier between him and potential victims and avoid coming into contact with him in compromising circumstances.

What this says to us is that every molester has two phases to his “career”:

Phase A – Before his nefarious activities become known to anybody beside the victim(s).

Phase B – After he has been caught.

In other words, a Phase B molester is not the same kind of threat as a Phase A molester.

Now let’s review Fact #20: It is forbidden to apply the laws of rodef once the crime has been committed and the threat has been neutralized.

I fully recognize that Harav Dovid Cohen, Shlita works for Ohel and has seen firsthand the devastating damage done by molesters. He says, “Many rabbanim simply do not know what molestation does…” Likewise, R. Zvi Gluck tells us that since Rosh Hashanah he has seen 17 self-inflicted deaths where molestation was involved. Likewise R. Dovid Lichtenstein talks about a young man abuse survivor who was his guest who later OD’ed. And likewise my Yeshiva pal signatory, who is currently a community rabbi, told me, “You don’t know what it’s like on the front lines…”

All of these incidents are terrible tragedies. BUT…

…it’s pretty safe to say that all of this massive damage was perpetrated by molesters in the Phase A stage. The people that R. Dovid Cohen wants to throw into jail forever because they are “rodfim” have been exposed. They have magically become Phase B molesters.

The Halacha clearly tells us that if the damage is done and the threat is neutralized, there is no longer any status of rodef! It doesn’t matter how many lives were ruined by the candy man in shul or the psychologist in Bensonhurst before they were discovered. We cannot mahsser for punishment, we can only mahsser for protection. And if we can provide the protection without mahssering, then there is no longer any Halachic justification to mahsser!

When I have spoken to others about this "chiddush" some responded that, even so, there is a deterrent factor to reporting exposed Phase B molesters even if they are not as much a risk. It may still deter Phase A molesters from plying their trade.

Here is where Facts #8 and 9 are significant. These tell us that these folks are driven by "demons" and even when they are exposed, if they are not restrained, they will continue. 

Don’t forget the last part of Lesson 1 that in more than 85% of the cases, the reported molester doesn’t even get arrested.

Of course we have to do everything we can to repair the damage of the Phase A molester - assist the victims - but this is independent of how to deal with a molester once caught.

Lesson 4 (Fact 16)

Fact #16 tells us that mesira is merely an enhanced and more severe level of Lashon Hara. We know that Lashon Hara is not always forbidden. There are times when it is permitted (even obligatory). The primary stipulation is that it must be for a positive “toelles”. But we know that this is not the sole stipulation. There are six others. And the Chofetz Chaim tells us that, where applicable, all seven conditions must be met.

Accordingly, if basic Lashon Hara level malshinus is only permitted after meeting a set of seven conditions, it is a kal v’chomer that any hetteirim for the more severe mesira level malshinus are subject to the same seven conditions.

After all the facts and the lessons that we have learned so far, we can examine the conditions to see how they apply to accusations of molestation. We will do this in Part 4 (next segment).

Stay tuned...

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