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Preventing Damage

 

I. Disproportionate Punishment

This year’s Torah reading schedule places the issue of improper speech (lashon ha-ra) before us for two consecutive weeks. Understanding these laws requires also knowing when they do not apply. The Sages tell us that the “leprosy” of the metzora was caused by lashon ha-ra.1 Later, in the middle of what some call the Holiness Code, the Torah (Lev. 19:16) commands “You shall not go about as a talebearer among your people; nor shall you stand idly by your neighbor’s blood.” This latter verse prohibiting talebearing is immediately followed by a prohibition against watching your friend suffer, which the Sages interpreted to mean that you must intervene to prevent someone from being physically or financially damaged.2 This juxtaposition is no coincidence.

Without specifically citing this latter mandate but clearly influenced by it, the Chafetz Chaim rules that you may speak what would otherwise be forbidden as lashon ha-ra to save someone from harm.3 Normally, permitted talebearing requires seven conditions.4 Among them is that the repercussions to the subject be commensurate with Torah law. However, if someone will be overly punished, then you may not tell the story. For example, you presumably may not tell a member of an organized crime family the name of someone who stole his wallet (absent other considerations). While the thief, if caught, may be able to return what he stole which is otherwise sufficient cause for informing on him, the physical injury he may suffer, perhaps even death, is well beyond the Torah’s punishment.

This limitation severely hampers our ability to report crimes. If someone convicted would be subject to serious prison violence, as some claim, then reporting him would be forbidden as lashon ha-ra (regardless of mesirah issues).

II. Preventing Damage

However, the Chafetz Chaim explicitly acknowledges the impossible situation that would generate.5 Indeed, he uses that result as an argument that this ruling cannot be true. “If not so, no one will ever save his friend from a beating.” Instead, he differentiates between past crimes and future threats. You may not tell about a past crime if the perpetrator will be overly punished. However, if your intention is to warn potential future victims, then the extent of possible punishment is irrelevant if there is no other way to save them. While he does not state it explicitly, I believe he is concerned for the mandate not to stand idly by someone’s blood.

This explicit discussion is complicated by contradictions. Later, in that very chapter, the Chafetz Chaim rules that you may only denounce a liar to prevent him from spreading future untruths if you fulfill all seven conditions, including that of exaggerated punishment.6 We see a similar ruling in the same chapter about someone who will publicly denounce another in the future.7 All conditions still apply. The same is repeated later in the book.8

Given the clear statement and convincing rationale to permit lashon ha-ra in order to prevent damage, regardless of the possible extent of punishment, why does the Chafetz Chaim contradict this position? I have no conclusive answer but offer the following suggestion and welcome other possible resolutions.

III. Naming Names

Forbidden speech does not need to be direct or name the subject. As long as his identity is revealed, as long as the speech is damaging, it qualifies as lashon ha-ra.9 However, the Chafetz Chaim slightly amends this position. Among the seven conditions mentioned above to permit saying lashon ha-ra is that there is no other way to prevent the harm. If another remedy exists, you must pursue it.10 The Chafetz Chaim rules that if you can reveal the information and identity indirectly, you must do so rather than state it explicitly.11 While this type of speech is still forbidden, it is apparently a lesser offense than direct lashon ha-ra and must be preferred.

I tentatively suggest that this might explain the above contradiction in the Chafetz Chaim‘s rulings about preventing damage. You must save other people if you can. The Torah requires vigilance in protecting the innocent. If we fail to stop criminals because they will be overly punished, we allow them free reign to victimize us and destroy our communities.

However, if the perpetrator will be overly punished, we should bring about his capture indirectly. If our interpretation is correct, the Chafetz Chaim is saying that in such a situation you may –you must! — cause the perpetrator’s identity and actions to be revealed but you may not do so directly. While normally you must choose the lesser offense if it is an option, in a case of exaggerated punishment you may only act indirectly. Or perhaps said differently, you must create a situation in which an indirect revelation will protect the community.


  1. Rashi, Lev. 14:4 from Arakhin 16b
  2. Sanhedrin 73a
  3. Chafetz Chaim, part 1 ch. 10 par. 1; see also part 2 ch. 9 n. 1
  4. Ibid., part 1 ch. 10 par. 2
  5. Ibid., n. 12
  6. Ibid., par. 6; see n. 22
  7. Ibid., pars. 13-14
  8. Ibid., part 2 ch. 9 par. 2. See all this in R. Binyamin Cohen, Chelkas Binyamin on Chafetz Chaim, part 1. ch. 10 CB n. 17
  9. Ibid., part 1 ch. 1 par. 8
  10. Ibid., part 1 ch. 10 par. 2
  11. Ibid., part 2 ch. 9 n. 35
 

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Gil Student

Rabbi Gil Student is the founder, publisher and editor-in-chief of Torah Musings.

 
The opinions and facts here are presented solely by the author. Torah Musings assumes no responsibility for them. Please address religious questions to your rabbi.
 

9 Responses

  1. JZ says:

    Note that the link between the two halves of the possuk is noted explicitly by Netziv and Torah Sheleimah. See also Teshuvot VeHanhagot 1:879 citing R. Chaim Volozhin.

    Note also that many poskim seem to reject the conditions of Toelet in light of the problem that arises with the limiting position of Chafetz Chaim. See for example Pitchei Teshuva OC 156, cited by Tzitz Eliezer 15:13.

  2. Gil Student says:

    Thank you for bringing these sources to my attention. Where is the Torah Shelemah? I don’t see it.

  3. joel rich says:

    I tentatively suggest (flack jacket on) that this is what R’ Asher Weiss refers to when stating that mitzvot ben adam lchaveiro are very fact and circumstance based. In the case of lashon hara, which impacts one of the most frequent human voluntary activities, the changeover from mimetic to book teaching may not pass the preferability letter requirement.
    KT

  4. JZ says:

    The comment by Torah Sheleimah is earlier in the possuk, in the volume I looked at this morning, it was in 8. I should have clarified, however. Several mefarshim assume that Lashon Hara refers not (or not exclusively) to gossip but to the prohibition of breaching confidentiality (based on Yoma 4b). See Ritva to Bava Basra 39b, Hashama ibid, Sheiltot 28, etc. Torah Sheleimah interprets the possuk as meaning that there is an obligation to maintain confidentiality, unless one has testimony he must offer to prevent a violation of Lo Taamod.

    At Joel Rich: When R. Asher Weiss spoke in the Five Towns last year, he provided an explanation of the Aggadata in Avodah Zarah 19b and Vayikra Rabbah 16:2 which made the same point in this context. It’s a bit too long to post here, but I did write it up if you would like it.

  5. JZ says:

    Also, for an analysis of whether Lashon Hara should be classified as law, see Benjamin Brown’s fascinating article: http://www.academia.edu/1096590/From_Principles_to_Rules_and_From_Musar_to_Halakhah_The_Hafetz_Hayim_on_Libel_and_Gossip.

  6. dov says:

    Is it possible that it depends what damage your preventing? Maybe we can only use this to prevent physical abuse? (Not sure if it’s the meaning of the post but the “im lo kein” doesn’t seem to be that people will be concerned about the issur, rather they will be concerned about the financial cost of helping their friend.)
    Regarding your answer, how does it fit with the explicit words of Maharam “Ploni Hikah Ploni” which is the source of the distinction of LeHaba?

  7. joel rich says:

    r’jz,
    I’d like to see it.
    KT

  8. […] in the future. Elsewhere, I noted places where the Chafetz Chaim seems to contradict this leniency (link) and suggested that you may only reveal the information indirectly is the criminal will suffer […]

  9. […] opposite, a mitzvah of saving people from harm (lo sa’amod al dam rei’ekha, see here: link). If a rabbi rating service appropriately allows future customers to avoid poor service, then it […]

 
 

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