By Judith S. Antonelli
The Jewish Advocate - May 29, 1992, V.182; N.22 p. 6
A modern Orthodox think tank has issued a proposal on the physical, sexual, and emotional abuse of children in which it asserts that "it is a mitzvah to report a child abuser to the civil authorities."
The think tank, known as the R.C.A. Roundtable, functions under the Rabbinical Council of America, the national organization of Orthodox rabbis.
"We are firmly centrist," said Rabbi Jeffrey Woolf, executive chairman of the Roundtable. "Our purpose is empowerment, to provide Jewish legal guidance to modern Orthodox rabbis."
Other topics addressed by the Roundtable have included: a halachic ban on cigarette smoking, conversion for purposes of adoption, and the parameters of honoring one's parents in light of Alzheimer's disease. The Roundtable also plans to deal with a number of women's issues in Halacha.
The following excerpts are from the child abuse proposal, authored by Rabbi Mark Dratch of Shaarei Shomayim Congregation in Toronto.
Definition of Abuse
Physical: Although corporal punishment of children was an exception to the general injunction against physical assault (Makkot 8a), this dispensation is very limited. Physical abuse and excessive physical punishment are prohibited by Torah law.
Sexual: 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. This includes not only genital penetration, but any form of illicit fondling or inappropriate behavior for the purpose of gratifying sexual desire.
Emotional: Abuse, manifested in overly harsh criticism, name-calling, and intimidating and degrading speech, is also biblically prohibited (Lev. 25:17), even when the victim is a minor. Both the physical and psychological consequences of abuse must be addressed as cases of pikuach nefesh (saving a life).
Obligation to Act
Anyone who can save a life and does not do so violates the commandment, "You shall not stand idly by the blood of your neighbor" (Lev. 19:16). A person is required to exhaust all means in order to effect the saving of the individual. This can be accomplished personally, by reporting the matter to authorities, or by hiring others to accomplish the rescue. The obligation holds until the victim has been fully extricated from the dangerous predicament.
A child must be removed from the home if he/she 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. Even if removal from the parental home would lead to the child's placement in a foster home or institution which is not Torah-observant, this does not violate "You shall not place a stumbling block before the blind" (Lev. 19:14). The physical safety of the child supersedes all other considerations.
An abusive teacher must be removed from the classroom. 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 the classroom. Not only must abusive teachers be removed, but 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 is even more stringent. A parent or teacher who has intercourse with a child is considered a rodef and must be stopped, even if that means killing him. Although one who molests children without genital penetration does not technically come under the category of rodef, he/she is actually considered a rodef because of the psychological trauma and depression the abuse causes the child.
In addition to the halachic requirements of pikuach nefesh and stopping a rodef, dina de-malkhuta dina (the law of the land is the law, as long as it does not transgress Jewish law) also applies, as many jurisdictions require anyone who works with children to report suspicions of abuse.
Discussing or reporting an alleged abuser is not lashon hara (gossip). On the contrary, where after careful evaluation of the evidence it is believed that abuse has occured, it is a mitzvah to inform others so as to protect them and their families from possible harm. Withholding such information is tantamount to withholding testimony in a court of law. The obligation to reveal the information holds 1) even outside of court proceedings, 2) even if the informer is the sole source of information, 3) even if the statement is based solely upon hearsay, and 4) even if the abuser promises not to harm anyone else.
Civil Authorities And Chilul Hashem
Jewish law prohibits adjudication by Jews in non-Jewish courts. Many explain that the prohibition of mesirah, reporting a fellow Jew to civil authorities, is for the purpose of privileging the Jewish legal system over 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.
Mesirah was prohibited because of the nature of autocratic governments under which Jews lived throughout much of history. Such informing often led to persecution of the entire Jewish community. This does not apply in the Western world today.
The prohibition of mesirah applies only when testimony assists civil authorities in illegally obtaining the money of a Jew, not when it aids a non-Jewish government in fulfilling rightful duties such as collecting taxes and punishing criminals. The ban does not apply to criminal activities of Jews, as long the as the crime also violates Torah law and even if the punishment will be more severe than the Torah prescribes.
If Jewish authorities do not have the power to punish a criminal, the civil authorities must do so. Our rabbinic courts today have neither the power nor the authority to handle such matters.
Mesirah is permissible in the case of a public menace, and child abusers and molesters clearly endanger the welfare of many children.
There is thus no chilul Hashem in publicizing a Jewish child abuser and resorting to non-Jewish courts. In fact, to not report or testify about such abuse would be chilul Hashem. If such information is concealed and later made public, it would create an even greater chilul Hashem. Yoma 86b maintains that "one should expose hypocrites to prevent the desecration of the Name."
Schools, synagogues, and youth organizations must adopt policies which mandate the dismissal of abusive teachers and childcare workers from their positions, and the notification of future potential employers of the circumstances of their dismissal.
It must be publicized that it is a mitzvah to report a child abuser to the civil authorities. All interested parties must cooperate, including testifying in a civil court of law. 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.
Synagogues and schools should run programs which educate parents, teachers, and youth workers to recognize the signs of possible abuse. Curricula must be developed for our schools to train children in how to recognize abuse and avoid it.
Clinics and other resources should be established to aid the abused who seek help and to provide help for the abusers in order to prevent future incidents.