Tuesday, April 15, 2003
Mandated Reporting - Rabbi Mark Dratch
From: Rabbi Mark Dratch
April 15, 2003
(Translations in English "in caps" by Na'ama Yehuda)
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. (See Gittin 88b) Rambam, Hilkhot Sanhedrin 26:7, 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." Many explain that the prohibition of "mesirah" (LITERALLY, GIVING AWAY TO), 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 cases of domestic and child abuse.
1) Arukh HaShulhan, Hoshen Mishpat 388:7, (THIS IS A VERY IMPORTANT HALACHIC SET OF BOOKS) maintains that "mesirah" (GIVING AWAY, TO FORIEGN AUTHORITIES) 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 (ARUKH HASHULHAN) posits that this injunction no longer applies in those communities in which the government is generally fair and non-discriminatory. Despite some claims that this position was reccorded only in deference to the censors, it is cited authoritatively by Rabbi Gedalia Dov Schwartz in "The Abused Child: Halakhic Insights." Ten Da'at, Sivan 5748. p. 12. (TEN DA'AT--THE NAME OF THE BOOK, MEANS "GIVE WISDOM") 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 (RaN to Sanhedrin 46a) -- the ban of mesirah does not apply. (Herschel Schachter, "Dina deMaIchusa Dina." Journal of Halacha and Contemporary Society, Vol. 1, no. 1., p. 118.) THE QUOTES DESCRIBE THE TITLE OF AN ARTICLE, WHICH ROUGHLY MEANS: THE LAW OF THE LAND YOU ARE LIVING IN, IS THE LAW TO FOLLOW
3) Even should one hold that the prohibition of "mesirah" is relevant today, reporting abusers to civil authorities is nevertheless mandatory. According to Rema (A PROMINENT JEWISH SCHOLAR), 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." (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---ALL THESE ARE SOURCES OF HALACHIC LAW AND CORRESPONDENCE AMONG THEM.) Our Batei Din today have neither the power nor the authority, and in many cases they lack the competence, to handle such matters.
4) Shulhan Arukh (THE HALACHIC TEXT MENTIONED PREVIOUSELY--IT'S TITLE MEANS, "THE SET TABLE" BUT IS NOT A LITERAL MEANING BUT MORE OF THE SYMBOLIC MEANING OF SETTING THE TABLE BEFORE HASHEM, OR THE "HOW TO" OF JEWISH LIFE) 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--A PERSON WHO CAUSES MISERY TO THE PUBLIC), mesirah is permissible. ( Hoshen Mishpat 338:12 according to the text quoted by Shakh, no. 59 and Gra no. 71.) Abusers and molesters clearly endanger the welfare of many adults and children with whom they have contact. (See statement of Rabbi Waldenberg quoted in Nishmat Avraham, Vol. IV, p. 209.)
5) The concern of "hillul Hashem" (desecrating God's Name) has also been raised as an objection to the reporting of Jewish abusers, i.e., it would be disgraceful for a Jew to be tried publicly for such an offense and a "hillul Hashem" to resort to non-Jewish courts. 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. ( Baba Kamma, chapter 10, no. 14.) Although, according to Shulhan Arukh, Hoshen Mishpat 28:3.,(HALACHIC TEXT) the desecration of God's Name occurs only in those cases when Jewish witnesses have been specifically designated by the non-Jews to testify, 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. (I.E.--IT WOULD BE DESECRATING G-D's NAME AS WELL AS THE LAW TO FOLLOW THE LAWS OF THE LAND YOU ARE IN TO NOT REPORT).
The Mishnah, Avot 4:4, (A FAMOUS JEWISH TEXT, OFTEN STUDIED ON SHABBAT AFTERNOON AND IN PRACTICALLY ALL RELIGIOUS SCHOOLS OVRE THE YEAR) 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. (See also Hilkhot De'ot 6:8) Rashi (ONE IF NOT THE MOST FAMOUS AND BASIC COMMENTATOR ON THE TORAH AND TALMUD) explains that the reason for this disclosure is that people, thinking that this person is righteous, may learn from his behavior. Rambam (ANOTHER PILLAR OF JEWISH COMMENRARY) 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.
I concur with my colleague Rabbi Hershel Billet who wrote:
It is my opinion that it is halachically permissible and in may cases obligatory to call civil authorities (child protection services and/or your local police department) when you SUSPECT a child is being abused and/or neglected. "This does not constitute "mesirah." A sexual predator, molester, abuser, etc., is a "Rodef." (RODEF--LITERALLY, A PERSON WHO IS CHASING ANOTHER IN A THREATENING, DANGEROUS MANNER. ALSO USED TO DESCRIBE PREDATORY BEHAVIOR.)
Rabbi Mark Dratch