Thursday, January 19, 2006

Speaking Lashon Hara About The Dead (saying bad things about someone who died)

Lashon Hara about the Dead
Let Them Talk: The Mitzvah to Speak Lashon Hara
By Rabbi Mark Dratch

Is it permissible for victims of a perpetrator who has since died to speak lashon hara about him/her?
Rabbi Mark Dratch
The Talmud indicates that there is no prohibition of speaking lashon hara about the dead, either because the dead do not know what is being said about them or because they do not care what is being said about them.<91> However, because their legacies are at stake, as well as the reputations and well-being of their surviving families, and because they cannot defend themselves, Shulhan Arukh, Orah Hayyim 606:3 cites a takanat kadmonim (ancient enactment) that prohibits "speaking ill of the dead."<92> Hafetz Hayyim rules:
And know also that even to disparage and curse the dead is also forbidden. The decisors of Jewish law have written that there is an ancient enactment and herem (ban) against speaking ill of and defaming the dead. This applies even if the subject is an am ha-aretz (boor), and even more so if he is a Torah scholar. Certainly, one who disparages [a scholar] commits a criminal act and should be excommunicated for this, as is ruled in Yoreh De'ah 243:7. The prohibition of disparaging a Torah scholar applies even if he is disparaging him personally, and certainly if he is disparaging his teachings.
However, despite this enactment, there are times when one is permitted to speak ill of the dead. It is important to note that this prohibition is not derived from the Torah verse banning lashon hara; it stems from a rabbinic decree and is, thus, no more stringent than the laws of lashon hara themselves. Since lashon hara which is otherwise biblically prohibited is allowed if there is a to'elet, so too lashon hara about the deceased is permitted if there is a to'elet. While the nature of the to'elet may change—after all, the deceased is no longer a threat to anyone else's safety—there may be any number of beneficial purposes in sharing this information including: preventing others from learning inappropriate behavior, condemning such behavior, clearing one's own reputation, seeking advice, support, and help, one's own psychological benefit, and validating the abusive experience of others who may have felt that they, and no one else, was this man's victim.
Furthermore, the restriction on speaking ill of the dead may be based on the assumption that death was a kapparah, i.e., it was an atonement for sins. This atonement, however, is predicated on his having repented before his death,<93> and that repentance requires both restitution for the harm caused and reconciliation with the victim.<94> If the perpetrator had not reconciled with his victim, no atonement was achieved. And of such an unrepentant sinner the verse teaches, "The memory of the just is blessed; but the name of the wicked shall rot" (Proverbs 10:7).<95>
In addition, Jewish law does not recognize the concept of statute of limitations in these matters.<96>
<91> Berakhot 19a :
Rabbi Shlomo Carlebach
Rabbi Yizhak said: If one makes remarks about the dead, it is like making remarks about a stone. Some say [the reason is that] they do not know, others that they know but do not care. Can that be so? Has not R. Papa said: A certain man made derogatory remarks about Mar Samuel and a log fell from the roof and broke his skull? A Rabbinical student is different, because the Holy One, blessed be He, avenges his insult.
<92> See Mordekhai to Bava Kama, nos. 82 and 106.
<93> Yoma 85b; See Sha'arei Teshuvah 4:20.
<94> See Bava Mezi'a 62b.
<95> See Yoma 38b.
<96> See Sanhedrin 31a and Hoshen Mishpat 98:1.

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