Tuesday, January 01, 1991

The Physical, Sexual and Emotional Abuse of Children

The Physical, Sexual and Emotional Abuse of Children
by Rabbi Mark Dratch
Rabbinical Council of America (RCA ) Roundtable - 1991 (Nissan 5752)

This article also appears in the Domestic Violence Handbook of the Jewish Family Services of Los Angeles and in the Rabbinic Guide for Domestic Violence of Jewish Women International

Jewish children, like children everywhere, are the victims of physical, sexual, and emotional abuse.1 Yet, we fool ourselves into thinking, "it can't happen to us." While recent reports in the media have made public that we are not free of this curse, most of the cases in our families, schools, and institutions go unreported or are hushed up and, hence, true statistics are unavailable. This denial has many sources: the incredulity that such ugly behavior can exist among our people always so proud of our exemplary home-life; the fear that it will bring Jews into disrepute; the apprehension that the child victim will have his/her reputation tarnished; and so on. But such a posture by the community remains inexcusable because we thereby shirk our responsibility to our children, denying the victims of abuse the safe haven of a caring and nurturing home and school, and preventing them from growing up with the physical and psychological security they need and deserve. It is for this sin of omission that our entire community must give din vi-heshbon, a complete and unequivocal reckoning. And it is to protect the bodies and souls of our innocent children that we must speak out and act.

What obligations does Jewish law impose upon us in order to protect our children from actual or potential abusers? May we inform civil authorities? Are there problems of lashon hara or hillul Hashem?

Since corporal punishment was viewed as an effective means of shaping the characters of young children, hitting one's child or student as a tool in education and discipline was made an exception to this injunction against such physical assault.2 Verses such as "He that spareth the rod hateth his child, but he who loveth him chasteneth him betimes" (Proverbs 13:24) appear to deem corporal punishment an acceptable, even preferred form of discipline.3 This dispensation is very limited and physical abuse4 and excessive physical punishment5 are prohibited by Torah law. The halakhic parameters of discipline, especially physical punishment, deserve significant attention beyond the scope of this paper.6

Abuse in the form of sexual relations between parents and children and between teachers and students whether consensual or forced, homosexual or heterosexual, are prohibited by the Torah! The Torah not only bans genital penetration, but any form of illicit fondling or inappropriate behavior for the purpose of gratifying sexual desire.8

Abuse, manifested in overly harsh criticism, name calling, and intimidating and degrading speech, is also biblically prohibited,9 even if the victim is a minor.10 Of great significance is the lifelong psychological trauma that impacts on the physical and emotional well-being of victims of physical, sexual, and emotional abuse. The halakhic consequences of mental trauma were considered by Rabbi Moshe Feinstein in evaluating the case of a woman who, by fulfilling certain mitzvot, might suffer dangerous psychological reactions and, hence, be considered pikuach nefesh. In one responsum Rabbi Feinstein permitted eating on Yom Kippur as well as the use of contraception.11 Although these dispensations were granted because of the potential physical harm this woman may inflict upon herself or others, the same apprehension was enunciated by our sages concerning the consequences of physical abuse.12 Thus, both the physical and psychological consequences of abuse must be addressed as cases of pikuach nefesh.

How for does our obligation of pikuach nefesh in responding to physical abuse extend? The Talmud, Sanhedrin 73a, bases its requirement to save someone under attack upon two verses: "And thou shalt restore him to himself (Deut. 22:2), which dictates personalintervention, and "Thou shalt not stand idly by the blood of your neighbor" (Lev. 19:16), which directs one even to hire others to accomplish the goal. In codifying this low in Hilkhot Rotseiach 1: 14 Rambam derives the obligation from only one verse.' He writes,
Anyone who can save (someone's life) and does not do so transgresses, "Thou shalt not stand idly by the blood of your neighbor." Similarly, if one sees his brother drowning in the sea, accosted by robbers, or attacked by wild animals and can save him personally or can hire others to save him, and does not save him, or he heard non-Jews or informers plotting evil or attempting to entrap another and he does not inform him...transgresses 'Thou shalt not stand idly by the blood of your neighbor.'

Thus, according to Rambam, both the personal and delegated responsibility enjoined by the "neighbor's blood" obligation require the same aggressive, full pursuit of the goal or saving the victim. Lo ta'amod requires a person to exhaust all means in order to effect the saving of the individual.14 This can be accomplished personally, by reporting the matter to the authorities, or by hiring others to accomplish the rescue. However, until the victim has been fully extricated from the dangerous predicament the obligation still obtains.

One who has information to report and fails to do so is in violation of the "neighbor's blood" obligation,15 and of "if he does not utter it then he shall bear his iniquity" (Lev. 5:1).16 While in monetary affairs the witness can wait until summoned, in other matters the witness must come forward voluntarily17 in order to "destroy the evil from your midst." 18
A child must be removed from his home if he is in imminent danger of abuse. The welfare of the child supersedes any right the parent may claim; this is a guiding principle in Jewish legal thinking in the area of child custody. Rema asserts that the general ruling placing daughters in the custody of their mothers is premised on the assumption that such placement is in the child's best interest. If, however, the court judges that a daughter would be better served in the custody of her father, she is placed with him.19 Even if removal from the parental home would lead to the child's placement in a foster home or institution which is not observant of Torah practices (although one must attempt to ensure that placement is in an observant environment if possible), the reporter does not violate "Thou shalt not place a stumbling block before the blind" (Lev. 19:14). Certainly, the physical safety of the child supersedes all other considerations.

Responsa Kiryat Channah, (R. Gershon Koblentz of Metz, printed in 1685), no. 22, holds the teacher financially liable for damages that the child incurs under his care, considering a teacher's salary to be sechar shimur, compensation to protect a child from harm. He maintains that the mitzvah exemption generated by the teacher-student relationship as described by the Mishnah, Makkot 8a, applies only to galut and not to financial liability. Responsa Shevut Yaakov, no. 140, disagrees, holding that the teacher is technically exempt from any liability. He posits that the mitzvah exemption applies to financial liability as well as to galut. However, he concurs that as a matter of social welfare, the teacher should be held responsible for financial compensation. Both authorities agree that this teacher be separated from his students. Thus, not only may we remove an abusive teacher from the classroom; we must remove him lest we be in violation of the biblical ordinance, "Do not stand idly by the blood of your neighbor" (Lev. 19:16). We have policies in our day schools, which remove a religious studies teacher who has violated Shabbat or other ritual practices, it would be absurd to refuse to remove a child abuser from his classroom. Are such teachers not in violation of the Torah as well? Is the sanctity of Shabbat that much more important to us then the innocence and safety of tinokot shel bet Rabban, our school children? Not only must abusive teachers be removed, but also their identities must be made known throughout the entire system of schools in order to prevent future abuse of other children.

The obligation to save those who are sexually abused are even more stringent. A parent or teacher who has intercourse with a child is considered a rodef (pursuer) and must be stopped. 21 This designation of the abuser as rodef mandates even killing him if that is the only way to prevent him from committing a sexual assault.22 Thus, one must certainly do everything possible to guarantee that children are protected from the abuser. Although one who molests children without genital penetration technically does not come under the category of rodef because of the sexual act itself,23 he is considered a rodef because of the psychological trauma and depression he causes to the victim as proven above. Additional obligations to rescue abused children may be derived from such verses as, "Thou shalt surely rebuke thy neighbor" (Lev. 19:16), 24 "Thou shalt love thy neighbor as thyself" (Lev. 19:18),25 "Thou shalt not place a stumbling block before the blind" (Lev. 19:14),26 "Do not stand idly by the blood of your neighbor" (Lev. 19:16), 27 and the biblical obligation to remove potential dangers from our homes recorded in Ketubot 41b. 'R. Nathan said, 'Whence is it derived that a person may not breed a bad dog in his home nor place a shaking ladder in his house? It is said, "Thou shalt not bring blood upon thy house" (Deut. 22:8).'"

In addition to the halakhic requirements of pikuach nefesh and rodef, jurisdictions have laws which require anyone who works with children to report suspicions of abuse and, thus, dina de-malkhuta dina (the law of the country is binding) obtains.28 While dina de-malkhuta dina does apply when the demands of the state call for the violation of Jewish law,29 this paper proves that such reporting not only does not violate Jewish law, but that Jewish law makes such reporting imperative.

Is discussing or reporting an alleged abuser a violation of the laws against lashon hara? Consider the Talmudic case of Tuvya and Zigud (Pesahim 113b),

It once happened that Tuvya sinned and Zigud came and testified against him alone before R. Papa. He had Zigud punished. "Tuvya sinned and Zigud is punished!" he exclaimed. He said to him, "Yes, for it is written, 'One witness shall not rise up against a man' (Deut. 19:15), whereas you have testified against him alone; you have merely brought him into ill repute."

Since this testimony was inadmissible, Zigud has done no more than spread ugly rumors about the accused and has violated the prohibition, "Thou shalt not go as a talebearer" (Lev. 19:16).

However, R. Papa's actions in Pesahim seem to be contradicted by the Talmud (Baba Kamma 56a) which condemns even a single individual who withholds evidence as one who is exempt from human judgment but liable to the judgments of Heaven. Rashi observes that since the attestation of one witness can obligate the party to take an oath, such testimony is efficacious: such a statement is not lashon hara and its declaration is imperative. Rema extends the moral imperative of one witness to testify to all cases in which there is a benefit, including preventing another person from sinning.30 In fact, there is no contradiction. The case of Tuvya and Zigud teaches that if the sin has already been committed, the testimony of only one witness is prohibited, constituting a violation of motsi shem ra. Baba Kamma requires testimony because there will be a future benefit.

Despite the permissibility generated by the need to prevent future injury, Hafetz Hayyim prohibits the revelation of any information that would cause harm to the accused that is not based on bonafide evidence worthy of a court of Iaw.31 This prevents an innocent person from becoming the victim of false accusations and slander.32 This restriction severely hinders the revelation of instances of child abuse where the only confirmation of the abuse is the statements of minors whose veracity is unreliable, as they are generally considered as unfit witnesses,33 or circumstantial physical evidence. However, because confidential reports to agencies responsible for investigating such allegations will not harm a person's reputation and because the testimony of children, supported by significant suspicions, may be acceptable testimony,34 this restriction does not prevent the proper prosecution of abusers or endanger the well being of children. In addition, when physical and mental pikuach nefesh is involved, one must, after careful deliberation and consideration of the evidence and its consequences, reveal serious suspicions.

Thus, in cases of child abuse, where, after careful evaluation of the evidence it is believed that abuse has occurred, there is no prohibition of rehilut-- even outside of the judiciary process. On the contrary, it is a mitzvah to inform others so as to protect them and their families from possible harm. Hafetz Hayyim, rejecting the possible objections of those who would deem this an unwarranted leniency, states that withholding such information is tantamount to withholding testimony in a court of law and is prohibited by "Thou shalt not stand idly by the blood of thy brother" (Lev. 19:16).35 This obligation to reveal this information holds: even outside of court proceedings;36 even if the informer is the sole source of information; even if the statement is based solely upon hearsay; and even if the abuser promises not to harm anyone else if there is concern that he cannot be trusted.37

Based on the verse, "These are the judgments which you shall place before them: (Ex. 21:1), Jewish law prohibits adjudication by Jews in non-Jewish courts.38 Rambam, elaborating on the severity of this sin, claims that "whoever adjudicates in a non-Jewish court ... is wicked and it is as though he has reviled, blasphemed, and rebelled against the law of Moses." 39

Many explain that the prohibition of mesirah, the reporting of a fellow Jew to civil authorities, is for the purpose of privileging the Jewish legal system over those of others. All legal matters concerning Jews should be redressed in a Jewish court according to Jewish law. However, there are many reasons why this prohibition does not apply in the case of child abuse.

1) Arukh HaShulhan maintains that mesirah was prohibited because of the nature of autocratic governments under which Jews lived throughout much of our history. Such informing often led to dangerous persecution of the entire Jewish Community. He posits that this injunction no longer applies in those communities in which the government is generally fair and non-discriminatory.40 Accordingly, it is obligatory in the Western world today to inform the civil authorities about child abusers.

2) The prohibition of mesirah applies only when testimony assists civil authorities in illegally obtaining the money of another Jew, not when it aids a non-Jewish government in fulfilling such rightful duties as collecting taxes and punishing criminals. When, however, the information concerns the criminal activities of a fellow Jew-- as long as the Jewish criminal has also violated a Torah law, and even if the punishment will be more severe than the Torah prescribes 41 -- the ban of mesirah does not apply.42

3) Even should one hold that the prohibition of mesirah is relevant today, reporting child abusers to civil authorities is nevertheless mandatory. According to Rema, even when the prohibition of mesirah is in force, "a person who attacks others should be punished. If the Jewish authorities do not have the power to punish him, he must be punished by the civil authorities."43 Our Batei Din today have neither the power nor the authority to handle such matters.

4) Shulhan Arukh rules that the prohibition of mesirah restricts an individual who is being harassed from making a report to the civil authorities. However, when there is a meitzar hatzibbur (public menace), mesirah is permissible.44 Child abusers and molesters clearly endanger the welfare of many children with whom they have contact.45

5) The concern of hillul Hashem (desecrating God's Name) has also been raised as an objection to the reporting of Jewish child abusers, i.e., it would be disgraceful for a Jew, especially an Orthodox one, to be tried publicly for such an offense and a hillul Hashem to resort to non-Jewish courts.46 However, the problem of hillul Hashem cuts both ways. Not reporting or testifying about such abuse, when such is required by civil law, is classified by Rosh as hillul HaShem.47 Although, according to Shulhan Arukh, the desecration of God's Name occurs only in those cases when Jewish witnesses have been specifically designated by the non-Jews to testify, 48 Bach maintains that Rosh's position applies in our own day even when such witnesses have not been officially summoned because of the danger to Jewish lives that may subsequently ensue by withholding information. Certainly, in countries where physicians, teachers, and youth workers are required by law to report suspicions of child abuse, it would be a hillul Hashem and a violation of dina de-malkhuta dina to withhold such information.

The Mishnah, Avot 4:4, reminds us that sequestering a hillul Hashem will always be unsuccessful: "Whoever desecrates the name of Heaven in private will ultimately be punished in public, whether the desecration was committed unintentionally or intentionally." Hence, a conspiracy to conceal information about abuse will ultimately be made public, creating an even greater hillul Hashem. The greater severity of the hillul Hashem in concealing the information can be further supported by the Talmud, Yoma 86b, which maintains that "one should expose hypocrites to prevent the desecration of the Name.49 Rashi explains that the reason for this disclosure is that people, thinking that this person is righteous, may learn from his behavior. Rambam is of the opinion that after unsuccessful attempts to correct the matter privately, public remonstration and broadcasting of the outrage is required. There is no concern about the hillul Hashem of exposing the offense.

For those who maintain a stricter interpretation of the prohibition of mesirah, there is yet another means by which to enable reporting: if a case originally brought before a Bet Din is recommended by the Jewish court for adjudication in a civil court, the prohibition of mesirah does not apply.50 The Rabbinical Council of America should either authorize its Bet Din or establish a special Bet Din to hear cases of alleged abuse and to make appropriate recommendations.51

1. Two informative articles appeared in Ten Da'at, Sivan 5748: "Child Abuse: A School Meets a Crisis" by Rabbi William S. Atshul and "Identifying the Abused Child: The Role of Day School Educators" by Dr. David Pelcovitz.
2. Makkot 8a.
3. See also Proverbs 3:11-12, 10:13, 19:18, 19:29, 20:30, 26:3, 29:15, 29:17. For a collection of rabbinic statements concerning corporal punishment see Zvi Elimelekh Bloom, Hanhagot HaHinukh (Jerusalem, 5741), pp. 140-158.
4. Hilkhot Hovel uMazik 5:1; Yoreh De'ah 450:1.
5. Hilkhot Talmud Torah 2:2; Yoreh De'ah 240:10: Kitzur Shulhan Arukh 165:7.
6. The parameters and limitation of corporal punishment are briefly analyzed by Rabbi Gedclia Dov Schwartz in "The Abused Child: Halachic Insights," Ten Da'at, Sivan 5748.
7. Leviticus, chapter 18.
8. Shabbat 13a; Hilkhot Issurei Bi'ah 2 1:1: Sefer HaMitzvot, prohibition no, 353 and Megilat Esther; Sefer Mitzvot Gadol, prohibition no. 126: Sefer HaHinukh, no. 188; Even HaEzer 20:1. Others quote opinions that maintain that intimacy without penetration is rabbinically forbidden, see Ramban on Shabbat 13a and on Sefer HaMitzvot, ibid. (Ramban himself may hold that the prohibition is biblical): Zohar HaRakiah of Rashbatz, Prohibition no. 11. See Biur haGra 20: 1.
9. "And ye shall not wrong one another," Leviticus 25:17. See Me'irat Einayim to Hoshen Mishpat 420, no. 49.
10. Baba Kamma 90a; Hilkhot Hovel uMazik 3:5; Hoshen Mishpat 420:38.
11. Iggerot Moshe, Even HaEzer IV, no.68.
12. Masekhet Semahot, chapter 2: Kitzur Shulhan Arukh 165:7; Hiddushei R. Akiva Eiger, Yoreh De'ah 240:20.
13. Minhat Hinukh, no. 237 questions why Rambam ignores the "restoration obligation"..He offers no resolution. See Migdal Oz on Rambam and my article, "His Money or Her Life? Heinz's Dilemma in Jewish Law,' Journal of Halacha and Contemporary Society, Vol. XX. Fall 1990.
14. Rashi, Sanhedrin 73a, s.v. lo ta'amod. Rambam, Hilkhot Rotzeich 1:15, adds both affirmative and prohibitive injunctions to this obligation: "And thou shalt cut off her hand, thine eye shall have no pity' (Deut. 25:12).
15. Sifra, Arukh Hashulhan, Hoshen Mishpat 28:4
16. Hilkhot Edut 1:1.
17. Kesef Mishnah to Hilkhot Edut 1:1.
18. Rosh to Makkot, chapter 1, no. 1.
19. Even HaEzer 82:7. See also Radbaz 1: 123; Responsa Darkei No'am, Even HaEzer no. 126; Responsa Mishpetei Shmuel, no. 90. According to Tosaphot, Sanhedrin 72b, s.v. kan be-av al ha-ben, if a father clearly lacks compassion for his child, the child may kill him in self-defense. See also Maggid Mishnah to Hilkhot Geneivah 9: 10. See Gedalich Aharon Rabinowitz. "Takkonot Banim Mukkim al yedei HaHorim." in Halakhah uRefuah, Moshe Hirshler, ed., (Chicago: Bet Midrash Latorah, 5740), pp. 336-48.
2O. Dr. Abraham Abraham in Nishmat Avraham, Vol. IV, p. 208, cites Rabbi Eliezer Waldenberg who allows placement of abused children in a non-observant environment because: 1) The reporter is only a gorem, he is not personally facilitating the placement: 2) There is a chance that the government agency will place the child in an observant environment: and 3) As a minor, the abused is not obliged to fulfill the mitzvot. At the age of Bar Mitzvah he may find himself in an observant environment. Rabbis Auerbach and Elyashev make similar recommendations. However. since physical and psychological pikuach nefesh is involved, such reasoning seems unnecessary,
21. Killing a rodef is permissible only to prevent future abuse, not to punish past crimes.
22. Sanhedrin 73a; Hilkhot Rotzeich 1:10; Hoshen Mishpat 425:3-4.
23. Sanhedrin 73a; and Tosaphot, s.v. hayavei keritut.
24. Arakhin 16b; Hilkhot De'ot 6:6-7.
25. Shabbot 31a; Hilkhot De'ot 6:3.
26. Avodah Zarah 6b; Hilkhot Rotzeiah 12:14.
27. Sanhedrin 73a;: Hilkhot Rotzeiah 1:14.
28. Gloss of Rema to Hoshen Mishpat 369:11, "Dina de-malkhuta dina applied ... where the legislation protects the welfare of the citizens.' See Shmuel Shiloh, Dina De-Malkhuta Dina, (Jerusalem: 5735). pp. 115, 147-149, 187ff.
29. Siftei Kohen to Hoshen Mishpat 73, no. 39 and Responsa Chatam Sofer, Hoshen Mishpat, no. 44.
30. Gloss to Hoshen Mishpat 28:1.
31. Hafetz Hayyim, Be'er Mayyim Hayyim, Hilkhot Rehilut, kelal 7, no. 20.
32. Be'er Mayyim Hayyim, Hilkhot Rehilut, Kelal 9, no. 20.
33. Hilkhot Edut 9:1; Hoshen Mishpat 35:1.
34. Gloss of Rema to Hoshen Mishpat 35:14 which, under certain circumstances, accepts minors as eidei birrur based on a Takkanat kadmonim ascribed to either Rabbeinu Tam or Rabbeinu Gershom Me'Or haGolah.
35. Be'er Mayyim Hayyim, Hilkhot Rehilut. kelal 9, no. 1.
36. Hilkhot Rehilut, kelal 9, no. 3.
37. Hilkhot Rehilut, kelal 9, no. 3 and Be'er Mayyim Hayyim nos. 9 and 10.
38. Gittin 88b.
39. Hilkhot Sanhedrin 26:7. For discussions of the prohibition of litigating in secular courts see Herschel Schachter, "Dina deMaIchusa Dina." Journal of Halacha and Contemporary Society, Vol. 1, no. 1. and Simcha Krauss, "Litigation in Secular Courts.' Journal of Halacha and Contemporary Society, Vol. 11, no. 1.
4O. Arukh HaShulhan, Hoshen Mishpat 388:7. This source is cited authoritatively by Rabbi Gedalia Dov Schwartz in "The Abused Child: Halakhic Insights." Ten Da'at, Sivan 5748. p. 12.
41. RaN to Sanhediin 46a. See, however, Responsa Rema, no. 88, who maintains that according to Tosaphot, Baba Kamma 114a, s.v., ve-lo, if the punishment is greater than the Torah prescribes, there is a prohibition of mesirah.
42. Herschel Schachter, "Dina deMalchuso, Dina," p. 118.
43. Hoshen Mishpat 338:7 and Shakh, no. 45. See also Gloss of Rema to Hoshen Mishpat 338:9; B'nei Hayei and Maharam miRiszburg cited in Pahad Yitzhak, Maarekhet Hoveil Behaveiro.
44. Hoshen Mishpat 338:12 according to the text quoted by Shakh, no. 59 and Gra no. 71.
45. See statement of Rabbi Waldenberg quoted in Nishmat Avraham, Vol. IV, p. 209.
46. See Responsa Binyamin Zev, no. 282 and Responsa Ba'i Hayi, Hoshen, Mishpat no. 158.
47. Rosh to Baba Kamma, chapter 10, no. 14.
48. Shulhan Arukh, Hoshen Mishpat 28:3.
49. See also Hilkhot De'ot 6:8
50. Hoshen Mishpat 26:2.
51. Some have raised the objection of reporting child abusers for fear of the dangers of sexual molestation or life-threatening attacks they may face in jail. First, is it better not to report, allow him to remain free, and to subject innocent children to more certain abuse by this criminal? Second, reporting suspicions of abuse, and even testifying in a civil court, is not the proximate cause of such risk: Too often the system fails to incarcerate these perpetrators; the reporting only starts a long process that may lead to incarceration: whatever attacks occur are perpetrated by another person. The restriction of "Thou shaft not place a stumbling block" (Lev. 19:14) does not obtain. (For a discussion of the parameters of the prohibition of lifnei iveir see my 'The Politics of Selecting a Political Candidate,' Journal of Halacha and Contemporary Society, Vol. XI, Spring 1986, pp. 5-18.) In addition, the reporter is merely a gerama (indirect cause) for any subsequent difficulties that may occur and holds no liability. For a discussion of the parameters of gerama see my "suing Your Rabbi: Clergy Malpractice in Jewish Law," Journal of Halachah and Contemporary Society, Vol. XVIII, Fall 1989, pp. 5-18.