The Tears of the Oppressed

 

Hanging Our Heads in Shame

The past few years have provided the Orthodox Jewish community with far too many embarrassing moments, when seemingly good members were shown to have acted in ways that were anything but good. Most cases were matters of personal greed and corruption; a few went much farther. But none of those painful situations come close to the desecration of the name of Heaven and the name of the Jewish People like a recent scandal in which a handful of individuals were arrested for kidnapping and violence in coercing a get. You may ask why I consider this episode to be worse than others. I say this because the crimes reported by law enforcement authorities and in the media do not represent the deeds of a few but in large part the failings of the community.

If there is a place for any sort of coercion it is only when it is consonant with both halachah and the laws of the country and state

Given the attendant publicity there has been much confusion about the issues, so an important historical and halachic clarification is in order. There is no such thing as an ancient and ongoing tradition of using brute force to coerce recalcitrant husbands to issue gittin. To be sure there were rare occasions when rabbinic courts ordered a get be executed and had the legal power to ensure that it was done. That power was only exercised in times and places where the Jewish community had autonomy and was authorized by the secular authorities to enforce the rulings of its own courts. This was not vigilante action but enforcement through the power of the law. On rare occasions this is also seen today in the State of Israel, where rabbinic courts are connected to the State court system and may imprison a man who refuses to issue a get for ignoring a court order. However, this is a regulated and legal procedure. It must be unambiguously stated that if there is a place for any sort of coercion it is only when it is consonant with both halachah and the laws of the country and state.

On hearing reports of individuals taking the law into their own hands in this regard, the greatest rabbinic leaders of the generation, including the late Rav Yosef Shalom Elyashiv, condemned such rogue practices. As the Aruch HaShulchan wrote over a century ago, rabbinic courts no longer possess the power of enforcement; their greatest tool today is the power of persuasion, hopefully for reconciliation, and if not, for divorce. It is in this spirit that this essay is written, not as a formal halachic ruling or treatise but as a perspective on this problem through the eyes of halachah and the ethics and values of the Torah.

How Did We Get to This Point?

It is up to their friends, neighbors, rabbis and relatives to remind them that the boundaries of moral and decent behavior must still be maintained

The first issue that must be discussed is how we got to this point. How did a community of good people who do so many good deeds reach the state that in the eyes of some, possibly even well meaning people, physical coercion is viewed as the only way out of an impossible situation, namely suffering a miserable life sentence as an agunah? Sadly, divorce is a part of the human experience, affecting Jews and Gentiles, religious and secular people, for a variety of reasons, some good and some bad. It is clearly part of the Jewish experience since the Torah sanctions the giving of a get if and when the need arises. As life shows all too often, it is usually an extremely difficult situation for the couple and their family. Many of these cases are full of hurt, ill will and acrimony, and unfortunately it is not unheard of for people in such pain and frustration to act in ways that are far from acceptable. If this was where the problem ended that would be bad enough, but such is not the case. In far too many cases a spouse (generally but not always a husband) will attempt to withhold the get either as a bargaining chip or out of spite. Without this get the woman cannot move on with her life, cannot remarry, cannot start again, and in many cases the process drags on so long that she may never be able to have children. Some suffer in silence, others not so silently, some reach out for solutions that halachah cannot accept and others leave Orthodoxy altogether, as they feel that a community/religion that cannot take care of its most vulnerable members must be sorely lacking.

How Can They Get Away With This?

The question often asked, and it is indeed a very good one, is “how do these men get away with this kind of behavior?” I would like to discuss two common factors that substantially contribute to this problem of silent complicity. First, hard as it may be for many to imagine, there are some people who feel that this is just one of those unfortunate things in life that can’t be helped. They have the impression that, indeed, Jewish divorce is a process in which the man is entitled to call all of the shots and a woman had better tread lightly if she knows what is good for her. Along with this comes the idea that the process of giving and receiving a get almost by definition must be degrading to a woman and there is little that can be done to change that. Men who have gotten divorced have told me that along the way “well meaning” friends suggested to them that, rather than just give the get like a mensch, they should insist on a large payout in exchange. So, disturbing as it is, there is a mindset out there that accepts that it really is perfectly acceptable to make a woman pay or suffer before she receives a get.

Having grievances does not justify ruining the life of another and should certainly not garner support or sympathy of a community

Additionally, in far too many cases the community tolerates it. Quite understandably, people do not want to get involved in someone else’s domestic troubles. However, there are times when “minding one’s own business” is just not good enough. When a person is suffering domestic violence or has been rendered an agunah, it is no longer acceptable for a community to just ignore what they know to be true. While the divorce of a couple will often create dilemmas for friends, such as should they remain friends with him or her or both, these questions all change when one party is determined to inflict harm on or ruin the life of the other. At this point it is not a matter of friendship or loyalty, but a matter of heart and soul, of morality and decency. While a person in a messy divorce may act on some of their very strong negative feelings, it is up to their friends, neighbors, rabbis and relatives to remind them that the boundaries of moral and decent behavior must still be maintained. In far too many cases this is not done. Rather, sides are picked and a blind eye is turned towards actions and conduct that everybody knows is just wrong. While we are primarily discussing recalcitrant husbands here, the same applies to wives who attempt to damage their husbands in the many ways available to them in the divorce process.

But Why Does He Have to Give a Get?

In most cases, when a marriage comes to an end there is no formal halachic obligation on the husband to execute a get (and therefore no license for a Beis Din to force him to do so). Therefore, the question is often asked: If he doesn’t really have to give a get, how can he be blamed or criticized for choosing not to? Quite frankly, to ask this question is to miss the entire point, of not just the laws of marriage and divorce; it is to miss the entire point of being a Jew! Early in the career of our patriarch Avraham he encounters the city of Sodom, whose sin has nothing to do with the English language word based on that name. Rather its residents’ sin consists of their mean-spirited selfishness. This trait was the exact opposite of all that Avraham represented and lived for.

In a number of cases in the Talmud the Sages speak of Midas Sodom, the characteristic of Sodom. They did not speak of liars, cheaters and thieves, but of someone who says: “That which you own is for you and what I own is for me.” On the surface this is quite perplexing because it seems to describe a fine, law-abiding citizen. However, as is seen in numerous sources, this is a person who never gives an inch, never allows another to enjoy something even if it would cost him nothing. For example, if a child loses his ball on a neighbor’s lawn, the neighbor does not tolerate that child walking over to fetch the ball, saying: “After all, its my lawn not yours!” So too in many other cases our Sages presented examples of people who were so mean-spirited that they just couldn’t and wouldn’t let another person enjoy something or have a break in life even though they would not lose anything. Simply put, it is the attitude: “I don’t have to do it and you will just have to suffer, too bad!” This is Midas Sodom. It is clear that most cases of withheld gittin are primarily motivated by anger and spite, not practical benefit, and therefore fall under this category. Even when there are legitimate financial or custodial issues that require litigation or other court actions, the mean-spirited actions and lack of decency often seen clearly fall into this category of Midas Sodom as well.

The first thing that needs to be done is to shift the mindset of those communities where such men are respected, honored or even just tolerated

Too often we hear that the reason a man has left his wife an agunah is because “she said such and such” or “did such and such,” as if a get was a piece of candy to be given as a treat to a well behaved child rather than the Torah’s way to end a marriage. If there are financial or custodial grievances they should be addressed through the appropriate legal channels. Having such grievances does not justify ruining the life of another and should certainly not garner support or sympathy of a community. The selfishness, the firm stand on personal rights over moral rights, betrays a Sodom-like attitude.

But this classification of Midas Sodom is only true for the one who is withholding the get. How about a community that knows about it and tolerates it, or worse, helps facilitate it? The very first chapter of the book of Yishayahu–which serves as the haftarah of Shabbos Chazon, read each year on the Shabbos preceding Tisha B’av–speaks directly to our case. Offering the strongest rebuke possible, the prophet Yishayahu speaks to the “leaders of Sodom” and “the people of Amora.” The people of whom he spoke were not some tribe of pagans or horrible rebels; they were the leaders and inhabitants of Jerusalem. In this rebuke he mentions that while it is true that in matters of ritual such as offerings, prayers, Shabbos and Festivals they were meticulous in their observance, all of that meant little to God since they had failed so miserably in righting injustice, caring for the weak and vulnerable, and taking up the cause of victims. Because of this fundamental failing, the prophet compared both the leaders and the regular citizens to those cities known to posterity for their lack of heart, justice and decency. It is hardly a stretch to say that neighbors or a community that knowingly tolerate a man leaving his wife as an agunah are following in the traditions of Sodom and not of Avraham. The Talmud teaches that there are three signs of a descendant of Avraham, to be rachmanim (compassionate), bayshanim (possessing a sense of shame) and gomlei chasadim (doing acts of loving-kindness). It is hard to imagine that someone who makes his wife an agunah or helps facilitate or otherwise prolong that ordeal could actually be considered a descendant of Avraham.

The Elephant in the Room

One of the largest problems in making things work is the lack of competent, honest Batei Din that (justifiably) have the confidence of the community. While it is not the purpose of this article is to address that problem, leading sages including Rav Hershel Schachter have decried this major communal failing. Without an effective, honest and professionally competent Beis Din we cannot expect that the remedy to this problem can come from the Batei Din. If a Beis Din will provide legitimacy to a man’s attempts at extortion, be it in terms of financial settlement, custody, visitation or any other issue, they become accessories to the crime. Even worse are those who for large sums of money will “sell” a Heter Me’ah Rabbanim to men who wish to circumvent the legitimate get process. Instead of reserving this document for tragic cases, such as a woman who has Alzheimer’s or is otherwise lacking mental competency, a corrupt few have turned it into the trump card of men who wish to move on with their lives but not allow their (ex-)wives to do the same.

What We Can Do to Make It Better

The fact is that this does not happen in every community. That is not because some communities are good and others bad. Rather it is because in some communities it is considered acceptable for a man to behave this way and in others it is just not. I recently asked a good friend, a Mesader Gittin, about how many agunos there were in a certain prominent Orthodox community which he serves, and the answer was none, as this conduct is just not accepted or tolerated there. However, in far too many communities if a rabbi or shul makes it clear that a person who leaves his wife an agunah is not welcome in the shul, the man simply goes to the next shul where he is welcome.

To put it quite simply, the first thing that needs to be done is to shift the mindset of those communities where such men are respected, honored or even just tolerated. Rather than secretly admiring the vigilante actions that have brought us such shame, we all must show appropriate support and sympathy for these women.

The second part of the solution is the prenuptial agreement designed to prevent this possibility even before a marriage begins. While several such documents exist, the most widely used is the version written by Rav Mordechai Willig, which has the approval of some of the leading poskim in both Israel and America, including Rav Ovadiah Yosef, Rav Zalman Nechemiah Goldberg, Rav Hershel Schachter and Rav Gedalia Schwartz. It is effective, halachically binding, and was recently upheld as valid by a Connecticut court. The goal must be for every couple to sign one before marriage, so that those rare cases which might have otherwise led to an agunah situation will be preemptively avoided.

However, there are far too many people who are aware of this document but do not use it. In this regard there are two common concerns heard for why the prenuptial agreement is not used. The first is that this type of document would put a damper on the joyous spirit of a wedding. Aside from the fact that this document can be signed days or weeks before the actual wedding, more importantly it should be noted that the kesubah itself is hardly a romantic document, outlining the husband’s financial responsibilities both during the marriage and in the event of his death or divorce. It is clear that our Sages were more concerned with protecting the interests of the bride than with artificially painting a romantic picture. In many Orthodox communities young men and women getting married know and expect that the prenuptial agreement will be a part of their wedding. Strikingly, the well publicized case of a congressional aide who has refused to give his wife a get has also contributed to the increased use of these prenuptial forms as the consequences of this behavior are seen in a most public forum.

The second concern is that this is not a “traditional” document, since it was not used in previous generations, particularly not in the “old country.” It is for this reason that the input and backing of these leading poskim was sought, to ensure that the cautious halachic process was not disturbed. This document was written to achieve its goals with complete loyalty to halachah and mesorah. While innovation for innovation’s sake is a cause for concern, rejecting the work of some of this generation’s leading poskim based on these grounds is a most inappropriate response.

Postscript

As I think about these matters more, I detect a frightening parallel in broader American culture. Tragically, every few months there seems to be another mass killing at a school, mall or place of work, as some crazy with a gun shatters the tranquility and destroys the lives of innocents. Each and every time, we grieve as a nation and cry out that this must never be allowed to happen again. Each time, we hear that this must be the last time. Yet nothing happens, nothing changes and the tragedies continue almost like clockwork. The Jewish community stands at a similar crossroads. Again we are pained and humiliated, again we see and feel the pain of those who suffer, and again we tell ourselves that this must really come to an end. We can lament the situation and can point fingers in many directions but until we decide to make a change the blame lies with all of us who tolerate such behavior within our community and permit recalcitrant husbands to remain members in good standing while their wives continue to suffer.

 

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About the author

Asher Bush

Rabbi Asher Bush is the rav of Congregation Ahavas Yisrael in Wesley Hills, NY and is a longtime member of the faculty at Frisch Yeshiva High School. He is the author of Responsa Sho’el B’Shlomo and serves as the Chairman of the Va’ad Halacha of the Rabbinical Council of America.

 
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.
 

4 Responses

  1. Shades Gray says:

    Practically speaking, what can be done in communities which don’t believe in prenuptial agreements? For whatever reason, social or halachic, seruvim are also not published in newspapers other than the Jewish Press. I am curious what Rabbonim and community leaders who don’t believe in pre-nuptial agreements will come up with to enforce seruvim.

    R. Avroham Pam was quoted regarding the need for Jewish values within the divorce process,

    “Why cannot the task of dissolving the marriage be approached with respect and humanity — with menchlichkeit?”

    (“Divorce Mediation: Gentle Alternative to a Bitter Process”(available online on Jlaw.com, quoting May 1996 Jewish Observer ).

    Regarding earlier education, Shalom Task Force has a high school program,

    “Rav Salomon’s haskama letter for the program had this to say: “A new program for Tikun HaMiddos called Panim el Panim has been started. The purpose of the project has been to focus on Chinuch HaMussar in helping a high school bochur in his quest to become anAdam HaShaleim. Panim el Panim has developed a Torah-Based curriculum for mesivta bochurim using Chazelas well as practical eitzos of Gedolei Ba’alei Mussar to help improve the quality of their relationships with members of their mishpachas, their chaverim, and ultimately, their marriages.. . . This program has tremendous toeles, and is an important step toward building successful mishpachas for Klal Yisroel that will, Im Yirtzah Hashem, accompany the ushering in of the yimei haMoshiach”

    (Yated article on Shalom Task Force’s website)

    Regarding the issue of prenuptial agreements,

    “Rabbi Auman says that his shul recommends their congregants sign prenuptial agreements before marriage. He says that the practice is widespread in the Modern Orthodox community but far less popular in more yeshivish and Chassidic circles, for a variety of reasons.

    “They range from a general reluctance to have any kind of innovation – the Chasam Sofer said ‘anything new is prohibited,’” Rabbi Auman explained. “You have people who are generally reluctant to institute any kind of new practice, others have problems with the technicalities, with issues that the get might be invalid since [the prenuptial agreement] could be considered coercion. The other objection I heard from one rabbi is it’s insulting to present this to a chosson [groom] and a kallah (bride). You are implying that they may do such a thing. Other than the middle reason, the other two are not worthy of discussion.”Rabbi Avi Shafran, Director of Public Affairs for the Agudath Israel of America, agreed that pre-nuptial agreements are not common in the charedi world. None of his six married children has one, he said. “My understanding of the reason is that detailing what will happen in the event, G-d forbid, of a divorce would start a marriage off on a negative, dangerous note,” Rabbi Shafran explained. “The message a newlywed may take from it, especially in our times, sadly, is that marriage is like any business agreement. Clauses in a contract establishing a legal partnership would understandably deal with the event of the partnership’s dissolution. But a joining of two people into one is qualitatively different, and incomparably important. So, to begin the challenging but holy enterprise of married life amid thoughts of what will transpire at a divorce is neither prudent nor proper.”

    (“Woman in chains: Will anything change for Agunot”, Jewish Star, September, 2010)

  2. Nachum Lamm says:

    We asked our mesader kedushin to announce the fact that we were signing a pre-nup under the chuppah, and he happily agreed. It was handed over together with the ketubah. I don’t recall any damper being put on the simcha.

    Come to think, the more public you make it, the more it’s clear that the most important reason to do it is to inspire everyone else to do the same. (Indeed, several of our friends who were present have since done so.) Nothing sad about that.

  3. Joseph Kaplan says:

    R. Bush asks how they can get away with it and blames friends, family, community. And then he notes what he calls “the elephant in the room,” namely, “the lack of competent, honest Batei Din.”

    ISTM that the real elephant in the room, and the real questions to ask, is how does a legal system which is supposed to be wise and thoughtful and sensitive allow them to get away with it? How does the rabbinical leadership of our community and the halachic experts, who we turn to for leadership and wisdom, allow them to get away with it?

    R. Bush entitles his essay “The tears of the oppressed” which comes from Kohelet: “the tears of the oppressed with none to comfort them; the power of their oppressors with none to comfort them.” Midrash Rabbah tells us that the tears of the oppressed refers to mamzerim and the power of their oppressors refers to the Sanhedrin. Since R. Bush has used “tears of the oppressed” to refer to agunot, he should go all the way in adopting the midrash so that the “power of their oppressors” would be not the community and friends and family, and not even the husband (as despicable as he may be), but rather it would be the modern day Sanhedrin; i.e., the rabbis.

    As I was reading this piece, I was reminded of R. David Hartman’s comment questioning the halachist who said, seemingly empathetic of the agunot, “It’s my personal Akeidah!” Not being able or ready or willing to halachically solve the problem of thousands of chained women was the rabbi’s own personal test of faith? Hartman boldly asked, “Your Akeidah? Is that supposed to bring comfort to the abandoned woman whose life is passing her by?”

    That, sad to say, is the elephant in the room.

  4. herbdude says:

    Thank you, Rav Bush, for articulating so clearly both our shame in this area, and possible avenues for correction. I would like to bring your readers’ attention briefly to one of “the other” marital agreements whose existence you noted in passing. I wrote it over 25 years ago and have used it several times, but, sadly, I have not actively pushed for its more general adoption until the past few years, and so it is very little known. In the coming year it may be seriously considered both by the RCA, as it tries to deal with the opposition expressed by a significant number of RCA rabbanim to the current agreement. The RCA may recommend mine as an alternate possibility in addition to Rabbi Willig’s agreement. Furthermore, it is to be considered this year by the Chief Rabbinate and Batei Din in Israel, and by European rabbanim. It is substantially different from all other existing prenups, in that it does not continue the power struggles between husband and wife by providing a weapon that might coerce a divorce where halakha does not justify such coercion or pressure (most agreements press one side, the husband). Rather, it presses husband and wife, equally, to cooperate with a professional in a process of mediation. Mediation is inherently a process in which both sides are empowered and encouraged so that they arrive at a fair and decent divorce agreement of their own free wills. A get given against such a background cannot be disqualified on grounds of coercion not halakhically justified. To the contrary, such a get fulfills the principal requirement of halakha, that a get must be given and received willingly. Indeed, HaRav Elyashiv zt”l, HaRav Amar yblchtv”a, and others, have approved use of the agreement, which I call “The Marital Agreement to Mediate”. In one case it was tested, and prevented untold strife, blackmail, etc. This is not the place to describe it in detail. I have published the halakhic underpinnings and the text in Hebrew in several rabbinic journals, and in English in Tradition. Indeed, the Marital Agreement to Mediate introduces a whole different mind-set to Jewish divorce. Litigation and hostility, drawn out, expensive, and traumatic to the couple’s entire surroundings, are replaced by encouragement, empathy, and mature, adult, decent Jewish cooperation. I understand the skepticism this description might arouse – but the fact is that mediation can work wonders. I have seen it repeatedly. Admittedly, mediation cannot solve every problem. But, then again, no one solution can solve completely a complex problem such as this. Mediation’s proven 85% successful track record would bring an immense change to the world of gittin as we know it today. Moreover, the Marital Agreement to Mediate successfully skirts the problems Rav Bush notes that make people reluctant to sign prenups. In particular, it should eliminate the hesitancy of rabbanim to encourage couples to sign such agreements, precisely because it has no halakhic/rabbinic/poskim objections, an advantage no other prenup has shown to date.

 
 

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