Guest post by Dr. Moshe Simon-Shoshan
Dr. Moshe Simon- Shoshan is a scholar and teacher of aggada. He is currently on the faculty of the Rothberg School at the the Hebrew University and the Virtual Beit Midrash at Yeshivat Har Eztion. He is the author of Stories of the Law: Narrative Discourse and the Construction of Authority in the Mishnah.
Of late, the issue of mesirah, the prohibition against turning over fellow Jews or their property to non-Jewish governmental authorities, and its applicability to Jewish communities in the Western world today, has once again become a topic of discussion and debate in our community. Two important rulings on the matter, by R. Yosef Shalom Elyashiv and R. Aharon Lichtenstein, deserve careful attention.
I. R. Elyashiv’s Approach: Judicious Evaluation by the Individual
The rulings of Rabbi Yosef Shalom Elyashiv z”l have been cited by the Agudath Israel of America in favor of the position that in any and all circumstances, before contacting the authorities, a person must first consult a qualified rabbi. While this may be the position of some rabbis, a reading of R. Elyashiv’s writings on the subject will show that he did not require such a consultation except in extreme circumstances.
Volume 15 (2005) of the Torah journal Yeshurun contains a section entitled Kuntres Dam Rei’ekha containing the responsa of numerous contemporary scholars regarding the laws of mesirah. This collection contains two recent responsa from R. Elyashiv. In the first responsum, R. Elyashiv responds to a query from R. Shraga Feivel Cohen requesting general guidelines regarding reporting child molesters to the authorities. R. Elyashiv concludes as follows:
Thus, all this [i.e. the argument above] only permits informing the authorities in a situation in which it is clear that [the person in question] did in fact do this deed (yado ma’al) and in this case there is in fact an aspect of tikun olam (fixing or maintaining the world). However, with regard to the question of whether to permit [reporting] where there is not even raglayim le-davar (lit. “legs to the matters,” i.e. reasonable cause to suspect wrongdoing) but merely some vague suspicion (dimyon, lit. imagining) , not only is there no tikun olam but rather there is destruction of the world in this case as it is possible that because of some student’s grudge against a teacher, a student may [falsely] accuse the teacher or because of some baseless suspicion (dimyon shav) a person could be placed in a situation in which he is better off dead, though he is innocent of wrongdoing and I see no place to permit this. (Original Hebrew link)
There is some ambiguity here in R. Elyashiv’s formulation as to the exact level of certainty necessary to turn a suspected abuser in to the authorities. However, it is quite clear that Rav Elyashiv makes no mention of the need to consult a rabbinic authority before doing so. Furthermore, R. Elyashiv’s use of the term raglayim le-davar, which I have translated as “reasonable cause,” does not appear to refer to some abstruse legal category which requires special halakhic expertise in order to apply, as has been claimed. Rather, R. Elyashiv contrasts cases of raglayim le-davar with instances in which suspicions are based on the flimsiest of evidence or there is some concern of malicious intent on the part of the accuser. Raglayim le-davar appears in this context to be a commonsense category meant to exclude baseless accusations. The implication throughout this passage is that the individual should use his own judgment in deciding whether or not to report an abuser. Certainly, there will be situations in which an individual may not be sure as to whether or not to file a report. No doubt, consultation with an appropriate rabbinic authority would be proper in these instances. However, this is left up to the individual’s discretion.
The clearest proof that, under normal circumstances, R. Elyashiv does not require that an individual consult a halakhic authority before reporting an abuser to the authorities is to be found in the responsum published immediately after the one just quoted, written in response to a follow-up question from R. Cohen. Here, in one very specific circumstance, R. Elyashiv does require rabbinic consultation. R. Cohen asks about a case in which a father is abusing his child. Reporting the father to the authorities could lead to the child being removed from the home and placed in a non-Jewish or non-religious foster family, which could have deleterious spiritual effects on the child. R. Elyashiv concludes as follows:
As such, in each and every case an evaluation and ruling [are required] from scholars (Talmidei Chakhamim) who are great in Torah and fear of heaven. (link)
R. Elyashiv explicitly requires consultation with a Torah scholar in complex cases such as this. This would suggest that in more straightforward cases, about which he makes no mention of speaking to a scholar, no such consultation is needed.
Read together, R. Elyashiv’s responsa show a clear set of concerns with regard to reporting abusers to the authorities. R. Elyashiv is very concerned about a person being reported on the basis of little or no evidence or false evidence. However, he does not state that it is necessary to consult a rabbi before making such a report. Presumably, R. Elyashiv felt that individuals could make such decisions on their own. On the other hand, when there is a concern that reporting abuse my not serve the best interest of the victim, R. Elyashiv then requires consultation with a rabbinic authority.
II. R. Aharon Lichtenstein: No Mesirah
I would also like to add that R. Aharon Lichtenstein has repeatedly stated that he accepts the position that he received from his father-in-law and teacher, R. Joseph B. Soloveitchik (“the Rav”), in the name of the Rav’s father R. Moshe Soloveitchik, that in democratic countries the laws of mesirah simply do not apply. Thus, while in the Chareidi world this position is viewed as marginal, in the Modern Orthodox world this position can clearly be accepted as a mainstream, if not normative position. (This can be heard here at 36:30)
I hope that this clarification of the positions of these two great sages will help to establish the legitimacy of calling the police in cases of legitimate concerns of abuse without first consulting a rabbi.
ולא יתן המשחית לבא אל ביתנו לנגוף