Rape Victim's Right to Confidentiality

Research and writing by Mary L. Boland
Revisional Research and Writing by Gina S. McClard and Lyn M. Schollett

ICASA Advocacy Manual - October, 2000


I.    INTRODUCTION TO THE LAW OF PRIVILEGE
    

A.    Overview
The American judicial system is an adversarial system premised on seeking the truth.  Discovering the truth about an event or occurrence requires disclosing facts relevant to that event or occurrence.  Sometimes the facts to be disclosed stem from a conversation between two people.  Usually, the contents of a conversation between two people that a court deems relevant must be disclosed during criminal prosecutions or civil trials. However, there are a few exceptions to this general rule.

In a few specific circumstances, the relationship between two people is so sacred that communications between them are considered “privileged” and therefore protected and excluded from being repeated in the trial process.1  Husband/wife, attorney/client, doctor/patient, clergy/ parishioner and journalist/source are examples of the type of relationships in which privacy is essential and a privilege is recognized by the law.2  There is no recognized privilege in Illinois between same sex partners or between parents and children.

Certain medical privileges have existed since the early 19th century when the physician-patient privilege first was recognized.  However, privileges for mental health care have only been recognized since the 1950's.  This protection is extended because of the highly personal and private nature of communications between a therapist and a client.  A successful relationship between a therapist and client is built on the trust and confidentiality essential for open and honest communication.

Sexual assault counselors have enjoyed “privileged” communications with clients only for the last two decades.  A sexual assault victim may have feelings of guilt and self-blame that can be overcome through therapy with a counselor, and society has started to recognize the public policy advantages of protecting that relationship.  If communications between a victim and her counselor are not protected by confidentiality, the victim may be afraid to fully communicate with her counselor, depriving her of the full benefits of counseling.

B.    A National View
            By 1981, fourteen states enacted statutes protecting the confidentiality of a rape victim’s communications with her therapist.3  By the end of 1991, seven more states, including Illinois, passed similar protective laws.4  The protections, known as privileges, afforded by state statutes range from absolute privilege to qualified privilege,5 which means that counselors in some states never have to reveal information while counselors in other states may have to reveal information in certain situations.
            

Today, 24 states have laws specifically protecting communications between a sexual assault victim and an advocate or counselor.6  Another six states have broader statutes protecting communications between any crime victim and an advocate or counselor.7  An additional ten states have statutes protecting communications with domestic violence counselors or professional counselors.8  One more state protects communications with health care providers via case law.

These privileges vary dramatically in the degree of protection that they provide to the protected communications.  Some statutes permit judicial review in the determination of whether communications will be released; others do not.  Some limit the information that will be released; others do not.  As described below, the law in Illinois provides one of the strongest protections available nationwide for communications between a sexual assault victim and her advocate or counselor.

C.    The History of Privilege Law in Illinois

1.    Qualified Privilege Under Mental Health Laws - Prior to 1982, communications between a sexual assault victim and a rape crisis counselor in Illinois were governed by the Mental Health and Developmental Disabilities Confidentiality Act.  740 ILCS 110/1 et.seq.  This law protected the privacy of records kept by a mental health professional for any client receiving counseling.  If any party to a lawsuit wanted access to a sexual assault victim’s counseling records, that party would subpoena the records from the counselor.  The counselor was required to give the requested records to a judge.  The judge then would hold an in camera hearing (privately, in chambers) to determine whether the records were relevant to the case.  If the judge found the information relevant to the case, the judge would order the counselor to give the records to the requesting party.  The sexual assault victim’s privilege was called a qualified privilege, because the material could in some instances be disclosed based on a judge’s discretion.

2.    Qualified Privilege for Rape Crisis Counselors - In 1982, Illinois passed its first statute specifically protecting communications between a sexual assault victim and a rape crisis counselor.  The original statute, “Confidentiality of Statements Made to Rape Crisis Personnel,” granted only a qualified privilege.  Under the statute, someone could request a victim’s rape crisis counseling records by alleging that the records were “necessary to the determination of any issue before the court,” even though the victim had not given consent to release the documents.  735 ILCS 5/8-802.1.  Like the privilege under the Mental Health and Developmental Disabilities Confidentiality Act, this privilege was qualified and limited the protection it provided to sexual assault victims.  If, after review, a judge found the counseling records relevant to a case, the judge would order that the documents be given to the requesting party.

This qualified privilege did not provide enough protection to sexual assault victims.  Defense attorneys routinely would undertake “fishing expeditions” for rape crisis counselor’s records, arguing they had the right to look for any information that might aid their client.  Instead, they were really looking for personal information to improperly cast doubt on the character or credibility of the victim.  Courts, often favoring a defendant’s rights, would oblige, resulting in the release of personal and sometimes embarrassing information irrelevant to the case, further traumatizing a victim.  Many times, the requested information could have been found in medical records or police reports instead of in a therapist’s notes.

Under this qualified privilege, a rape crisis counselor could not promise victims that their counseling records were completely confidential, and the possibility of disclosure had a chilling effect on counseling.  Victims were deterred from seeking counseling or freely disclosing information for fear that the information would be released.

3.  Absolute Privilege for Rape Crisis Counselors - In 1984, the legislature provided stronger protections for sexual assault victims by amending the “Confidentiality of Statements Made to Rape Crisis Personnel” statute.  The statute now established an absolute privilege - in other words the victim is in charge of determining whether her records are released.

II.    CONFIDENTIALITY OF STATEMENTS MADE TO RAPE CRISIS PERSONNEL

    A.    Overview
Today, the “Confidentiality of Statements Made to Rape Crisis Personnel” statute provides significant protection to communications between a victim and a rape crisis worker.  735 ILCS 5/8-802.1.  Creating an absolute privilege for rape victims has provided victims with stronger protections and given victims more control over information about their lives.  Now, victims can confide in counselors and advocates, knowing that they run little risk of having those communications disclosed publicly unless they consent to such disclosure.

A judge no longer reviews a sexual assault victim’s records to determine their relevance to a case.  Instead, when a victim’s records are subpoenaed, she can assert the privilege and refuse to release them to anyone, including the judge.  A victim’s records can be disclosed only with her consent.  In fact, if a rape crisis counselor discloses confidential communications without a client’s consent, the counselor can be charged with a misdemeanor criminal offense.

And, counselors benefit from these protections as well.  In the past, faced with the prospect of being required to divulge private conversations with their clients, counselors sometimes have resorted to keeping two sets of records, or refusing to testify and being held in contempt of court.

In 1988, the Illinois Supreme Court held that the absolute privilege established in the statute, “Confidentiality of Statements Made to Rape Crisis Personnel,” was constitutional.9  In 1993, the legislature amended the statute again to its present form, which broadened the privilege and clarified provisions of the law that deal with consent to disclosure.

B.    Purpose
The Illinois legislature recognized the necessity of privacy for rape victims when it described the purpose of the statute:

Par. (a) Purpose.  This Section is intended to protect victims of rape from public disclosure of statements they make in confidence to counselors of organizations established to help them.  On or after July 1, 1984, “rape” means an act of forced sexual penetration or sexual conduct, as defined in Section 12-12 of the Criminal Code of 1961, as amended.  Because of the fear and stigma that often results from those crimes, many victims hesitate to seek help even where it is available at no cost to them.  As a result, they not only fail to receive needed medical care and emergency counseling, but may lack the psychological support necessary to report the crime and aid police in preventing future crimes.

C.    Confidentiality Mandate
This paragraph of the legislation sets forth the absolute nature of the privilege of confidentiality for rape survivors by prohibiting disclosure of protected communications without the victim’s consent.  It also explains that protected communications are those between a victim and a rape crisis counselor. Finally, this paragraph states that the victim is the one who decides whether confidential communications with her counselor will be disclosed to anyone.

Par. (d) Confidentiality.  Except as provided in this Act, no rape crisis counselor shall disclose any confidential communication or be examined as a witness in any civil or criminal proceeding as to any confidential communication without the written consent of the victim or representative of the victim as provided in subparagraph (e).
 

D.    Definitions
1.    Rape Crisis Counselor
Par. (b)(2) “Rape crisis counselor” means a person who is a psychologist, social worker, employee, or volunteer in any organization or association defined as a rape crisis organization under this Section who has undergone 40 hours of training and is under the control of a direct services supervisor of a rape crisis organization.

The privilege is limited only to the relationship between a “rape crisis counselor” and a person who seeks services as a result of one of the identified sexual assault crimes.  Under this law, a “rape crisis counselor” is an employee or volunteer of a rape crisis organization with 40 hours of training who is under control of a supervisor of rape crisis organization.  In other words, in addition to counselors, 40-hour trained advocates and educators – paid and volunteer – would be covered by this privilege, in addition to the people who actually counsel a victim.

2.    Rape Crisis Organization - To be protected by this privilege, a “rape crisis counselor” must be affiliated with a “rape crisis organization.”

Par. (b)(1) “Rape crisis organization” means any organization or association the major purpose of which is providing information, counseling, and psychological support to victims of any or all of the crimes of aggravated criminal sexual assault, criminal sexual assault, sexual assault relations between siblings, criminal sexual abuse and aggravated criminal sexual abuse.

A rape crisis organization is any organization whose primary purpose is to assist and support victims of sexual assault and sexual abuse.  This broad definition can include corporations, collectives and volunteer organizations.  Note, however, the “major purpose” must be to provide information, counseling and psychological support.  This definition clarifies that the priority in service must be in assisting the victim.  Further, a rape crisis center must not take part in activities that conflict with its mission, including participating as an active player in the investigation.

3.    Confidential Communication
Par. (b)(4) “Confidential communication” means any communication between a victim and a rape crisis counselor in the course of providing information, counseling, and advocacy.  The term includes all records kept by the counselor or by the organization in the course of providing services to an alleged victim concerning the alleged victim and the services provided.

This provision protects any communication between a victim of sexual assault or sexual abuse and a rape crisis counselor in the course of providing assistance and support to the victim.

Protected communications include “any communication” made by the victim to the rape crisis counselor in connection with a counseling session in a confidential setting.  This includes written records kept by the counselor concerning the victim and services she receives.  Any notes or documentation made by the counselor regarding this relationship are also protected, including computer-based records and e-mails.

A confidential setting is a situation in which there is an expectation of privacy.  Except as provided by the statute, this means that only the victim and the counselor are present during the communication.  Exceptions to this requirement are discussed later in this chapter.

4.    Victim - The privilege protects any communications a “victim” has with a “rape crisis counselor.”

Par. (b)(3) “Victim” means a person who is the subject of, or who seeks information, counseling, or advocacy services as a result of an aggravated criminal sexual assault, criminal sexual assault, sexual relations within families, criminal sexual abuse, aggravated criminal sexual abuse, sexual exploitation of a child, indecent solicitation of a child, public indecency, exploitation of a child, or an attempt to commit any of these offenses.

The definition of “victim” includes a person who seeks information, counseling or advocacy services as a result of the commission or attempt of one of the above crimes.  This definition does not require that the person seeking services be the person against whom the crime was committed.  In addition to the identified victim, this definition allows for protection of a parent or significant other who may also request and receive services as a result of a sexual assault.  It also includes participants in an education program presented by the rape crisis center.

E.    Penalty for Improper Disclosure

Par. (f) Any rape crisis counselor who knowingly discloses any confidential communication in violation of this Act commits a Class C misdemeanor.

Except where otherwise provided by the law, any knowing disclosure by a rape crisis counselor of a “confidential communication” without a properly executed consent is chargeable as a Class C misdemeanor, punishable by a term of imprisonment for more than 30 days, a fine not to exceed $500.00, or both.

F.    Exceptions to Absolute Privilege

1.    Duty to Warn - If a rape crisis counselor believes that failing to disclose confidential communications will result in serious bodily harm to someone, then the counselor should disclose the communications and will be immune from any liability.
Par. (e) A rape crisis counselor may disclose a confidential communication without the consent of the victim if failure to disclose is likely to result in a clear, imminent risk of serious physical injury or death of the victim or another person.  Any rape crisis counselor or rape crisis organization participating in good faith in the disclosing of records and communications under this Act shall have immunity from any liability, civil, criminal, or otherwise that might result from the action.  In any proceeding, civil or criminal, arising out of a disclosure under this Section, the good faith of any rape crisis counselor or rape crisis organization who disclosed the confidential communication shall be presumed.

This paragraph gives counselors the right to disclose information without the victim’s consent when there is a clear risk of serious bodily harm to the victim or to another person.  For example, a counselor might need to warn an appropriate official if a client is suicidal or reports that someone is trying to harm her.  A counselor must evaluate each situation individually for risk of harm, including the specificity of the description by the client (e.g. is there a specific plan to inflict harm) and the immediacy of the danger described.

In most circumstances in which a counselor must make a warning, the counselor should notify local law enforcement authorities and the person who is the subject of the threat.  The fact that the warning was made should be documented thoroughly in the client’s file.
This section of the law also protects a counselor from criminal or civil liability for a “good faith” disclosure.  The law presumes that a disclosure is made in good faith.  No therapist to date has ever been held liable in Illinois for making a disclosure under duty to warn provisions.

2.    Reporting Child Sexual Abuse - When the victim is a minor, child protective statutes override the protection of confidentiality.  Rape crisis workers are required to report child abuse and child sexual abuse to the Illinois Department of Child and Family Services under the Abused and Neglected Child Reporting Act (ANCRA).  325 ILCS 5/1 et.seq.  For more information on mandated reporting, see Chapter 6 of this manual.

3.    Reporting Elder Abuse - Rape crisis center employees and volunteers also are required to report elder abuse under the Elder Abuse and Neglect Act.  320 ILCS 20/1 et.seq.  Although centers may not serve a large number of elderly clients, intervention in an instance of elder abuse can provide seniors with critical assistance in escaping an abusive situation.  To report elder abuse, a rape crisis worker should call the Illinois Department on Aging, Elder Abuse and Neglect Program, Senior Helpline at 1-800-252-8966.  On evenings and weekends, crisis workers should call 1-800-279-0400.

G.    Waiver of Privilege – Statutory Provisions

 
1.    Introduction - The “Confidentiality of Statements Made to Rape Crisis Personnel” statute was amended in 1993 to add the “waiver of privilege” paragraphs.  Waiver means that the victim gives up or relinquishes her privilege to keep information confidential.  The law clarifies when a privilege is waived, who has the power to waive the privilege and under what circumstances the privilege of confidentiality can be waived.  When a victim no longer wants the rape crisis privilege to protect her relationship with her counselor, or the counselor or client acts in a manner that negates that privilege as discussed below, the victim has waived her privilege.  In doing so, she will release the contents of her confidential communications with her counselor.

Despite having an absolute privilege to keep information confidential, occasionally a victim will choose to release her records or ask her counselor to testify at a hearing or trial.  Ultimately, the victim makes the decision whether to waive this privilege.  But counselors (and advocates, educators and, sometimes, center directors) play an important role in ensuring the victim is fully informed and understands the consequences involved in waiving her privilege to confidentiality.

2.    Circumstances in Which a Victim Might Waive Her Privilege - A victim may choose to waive her privilege in any kind of legal case -- a criminal case, a civil case against her perpetrator, or a civil matter such as a divorce or a custody lawsuit.  But once she waives this privilege, she has waived it forever.  A victim generally considers waiving confidentiality in a legal case when she, in conjunction with a lawyer, believes that the testimony of the rape crisis counselor (either verbal or through records) will reinforce the victim’s position in the case.

A victim also may consider waiving her privilege to allow a rape crisis counselor or advocate to talk to another professional with whom the victim is working, such as a medical doctor.  In this situation, a victim usually considers waiving confidentiality to allow her service providers to communicate with each other to coordinate services.  Advocates should stress to a victim that, once a victim chooses to waive her privilege of confidentiality, she loses it forever.

3     Waiver of Privilege by a Person 12 Years Old or Older
Par. (c)(4) A minor victim 12 years of age or older may knowingly waive the privilege established in this Section.  When a minor is, in the opinion of the Court, incapable of knowingly waiving the privilege, the parent or guardian of the minor may waive the privilege on behalf of the minor, unless the parent or guardian has been charged with a violent crime against the victim or otherwise has any interest adverse to that of the minor with respect to the waiver of the privilege.

This section gives 12-year-olds and teenagers the right to decide whether their confidential communications with a rape crisis counselor will be disclosed.

4.    Inspection of Records and ‘Waiver of Privilege’ For Victims Under 12 Years Old - The rape crisis privilege identifies who may review a victim's rape crisis counseling records and who can waive the privilege for minor victims under 12 years old.
Par. (c)(2) The confidential nature of counseling records is not waived when: the victim inspects the records; or in the case of a minor child less than 12 years of age, a parent or guardian whose interests are not adverse to the minor inspects the records; or in the case of a minor victim 12 years or older, a parent or guardian whose interests are not adverse to the minor inspects the records with the victim’s consent.

If a victim is under 12-years-old, the victim or non-offending parent or guardian can examine rape crisis records without jeopardizing the victim’s privilege to keep the information confidential.  The privilege is also preserved when a victim who is a minor at least 12-years-old or older consents to allow a non-offending parent to review the records.
For a victim under 12, a parent or guardian whose interests are not adverse to the victim can waive confidentiality.

5.    Deceased or Incompetent Victims - The law also identifies who can waive the privilege in cases where the victim is deceased or incompetent.

Par. (c)(3) When a victim is deceased or has been adjudged incompetent by a court of competent jurisdiction, the victim’s guardian or the executor or administrator of the victim’s estate may waive the privilege established by this Section, unless the guardian, executor, or administrator has an interest adverse to the victim.

6.    O.K. Third Parties Do Not Constitute Waiver - Ordinarily, communications between a victim and a rape crisis counselor are confidential only if no one else is present.  The statute defines three exceptions when a third person (referred to as an O.K. Third Party) may be involved in the communication between the victim and the counselor without jeopardizing the victim’s privilege.

Par. (c)(1) Waiver of privilege.  The confidential nature of the communication is not waived by:  the presence of a third person who further expresses the interests of the victim at the time of the communication; group counseling; or disclosure to a third person with the consent of the victim when reasonably necessary to accomplish the purpose for which the counselor is consulted.

First, “the presence of a third person who further expresses the interests of the victim at the time of the communication” does not waive the victim’s privilege.  For example, this provision allows rape crisis counselors to communicate through a translator, interpreter or with the parent or guardian of a child.10

Second, the statute protects communications during group counseling, despite the presence of other group members.

Third, a rape crisis counselor may speak with an outside party to provide necessary rape crisis services if the victim consents.  This allows a counselor to assist the victim in filing crime victim compensation forms, or in correcting a hospital billing error without the risk of violating the victim’s confidentiality rights.

Under separate provisions in the Mental Health and Developmental Disabilities Confidentiality Act, a counselor also may disclose information concerning the victim to other counselors, colleagues and supervisors for the purpose of consultation without violating confidentiality.11

The permission to allow a third party to be present during confidential communications between a victim and a rape crisis counselor does not include criminal justice personnel because they are not persons focused solely on the best interests of the victim. Law enforcement officers and prosecutors can be important allies to a victim and to rape crisis centers but their primary goal is apprehension of the criminal, rather than victim support.
The advocate’s presence during the police/prosecutor interviews constitutes a waiver of the privilege.  In contacts with police or State’s Attorneys, the counselor/advocate cannot refer to her communications with the victim.

H.    Waiver of Privilege – Methods
While the vast majority of sexual assault victims desire to keep their contacts with a rape crisis center confidential, there will be occasions when the victim may choose to consent to release of information.  The rape crisis privilege can be waived in two ways.

1.    Written Consent to Disclose - Under the privilege statute, if a victim consents to waive the privilege, it must be an informed consent done in writing; a victim cannot consent to waive the privilege verbally.  Therefore, the victim who chooses to disclose her confidential communications must sign a form, discussed below, regarding consent to release the information.  Informed consent means that the victim knows completely the consequences of her decision to waive the privilege, including which information will be released and to whom it will be released.

Before authorizing consent, a victim has the right to – and should – review all records pertaining to her case.  The rape crisis counselor should discuss with the victim the advantages and disadvantages of disclosure of records, noting any specific documented communications and stating the potential consequences of disclosure.  In some cases, it may be to the victim’s benefit to disclose the information.  In all cases, the scope and ramifications of disclosure should be made clear to the best of the advocate’s knowledge.
 

2.    Consent to Release Forms - In 1975, the American Psychiatric Association made these recommendations regarding consent to release forms.  

The authorization should:

• be written;
• signed and dated;
• state that the provider is authorized to disclose information;
• state specifically what information will be disclosed;
• state specifically who will receive the information;
• state specifically the purpose for which information
• is disclosed; and state specifically the expiration date of the consent, which should not exceed one year.

The counselor also should indicate in writing that the victim was informed of her rights under the confidentiality statute and that she chose to waive her privilege and have the information disclosed.  Illinois substantially has adopted these recommendations into the Mental Health and Developmental Disabilities Confidentiality Act.  For a comprehensive explanation of written waivers, refer to ICASA’s Handbook of Policies and Procedures:  Safeguarding Confidentiality in Rape Crisis Services.

3.  When Victim or Counselor Conduct Operates to Waive the Privilege of Confidentiality - A victim’s conduct, or the conduct of a rape crisis employee or volunteer, also can operate to waive the victim’s rights of confidentiality.  Waiver by conduct can occur in three ways:

• (1) when the victim talks with the counselor in the presence of a bystander who is not protected by the privilege; 
• (2) when the counselor repeats confidential communications that she had with the victim to a person not protected by the privilege; or 
• (3) when the victim discloses the confidential communications of her discussions with a rape crisis counselor to a third party  (for example, if the victim tells the police officer, “I told my counselor I couldn’t get a good look at his face.”).

Although the statute does permit a counselor to communicate in the presence of a third person who is there to assist the victim, a counselor should not discuss the case with a third party unless it is necessary to further the victim’s interest and only when the victim specifically consents in writing prior to any disclosure.

III.     ASSERTING THE VICTIM’S RIGHT TO CONFIDENTIALITY

A.    Overview
Illinois law provides that a sexual assault victim has control of the privilege that protects her confidentiality at the rape crisis center, but the rape crisis counselor is responsible for asserting the sexual assault survivor’s rights.  Under the law, unless an exception applies, only the victim or her designee can consent to waive her right to confidentiality.  Thus, in most cases the center will respond to a request for information by asserting the victim’s right to confidentiality.

B.    Responding to a Request For Information

1.    Subpoena - Usually a request for information about a victim will come in the form of a subpoena from an attorney.  There are two kinds of subpoenas in Illinois:  a subpoena ad testicandum requires the counselor or advocate to testify in person and a subpoena duces tecum requires that records be produced for examination.  A single subpoena may include both a request for records and testimony of the counselor.
A subpoena may request that all records for a particular client be delivered to a specific address or that the counselor or advocate arrive at court with the records on a specific date.  “All records” refers to everything that has been documented at the rape crisis center regarding services provided to that victim.

2.    Being Served – Procedures - A subpoena may be served by mail or in person.  Once the center receives a subpoena, staff should check to see whether any release has already been signed with regard to the information requested in the subpoenas.  If a release exists, the center should respond to the subpoena accordingly.  If no release exists, staff from the center should contact the victim to determine whether the victim wants to release the confidential information demanded in the subpoena.

3.    Responding to a Subpoena

a.    Consent to Disclose
If the victim consents to disclosure of records or to testimony by a rape crisis counselor or advocate, the consent must be in writing.  When responding to a subpoena for testimony, the counselor or advocate must appear to answer questions at the time and place designated on the subpoena.  When responding to a subpoena duces tecum, the counselor should make a copy of the victim’s records and deliver them at the place and time designated.  Illinois does not require the submission of original records; copies are permissible.  Advocates should retain a copy of all materials turned over to law enforcement officials.  After a client signs a consent to release information, confidentiality has been waived for all information a rape crisis center has about a client, even if only a portion of a client’s records are released or a counselor testifies to only limited information about the client.

b.    Refusal to Disclose
Usually, the victim does not wish to give up her confidentiality.  In these cases, the rape crisis center will invoke the privilege not to disclose the confidential communications.

A representative of the rape crisis center can contact the party requesting the records/testimony stating that the requested information is protected by the confidentiality statute.  Some attorneys are not aware of the statute and, when informed, may withdraw their request for records and/or testimony.  In the conversation with the State’s Attorney, the advocate should cite the statute, Confidentiality of Statements Made to Rape Crisis Personnel, 735 ILCS 5/8-802.1.  All rape crisis centers should develop a relationship with a local attorney who can represent the center in responding to subpoenas, either for no charge (pro bono) or for a very low fee.  This attorney can contact the attorney who is requesting protected documents to request that s/he withdraw the subpoena.  One advantage of an attorney making this call is that s/he may have a professional rapport with the attorney who served the subpoena.  This can make the discussion regarding the subpoena easier.  For additional information on responding to a request for client conformation, see ICASA’s Pro Bono Attorney Referral Packet.

c.    Motion to Quash
If the attorney who requested information refuses to withdraw the subpoena, the center’s attorney or the victim’s attorney (if she has one) must file a Motion to Quash the Subpoena.  After the Motion to Quash is filed, a hearing is set.  The person who wishes to establish the confidentiality of records and/or testimony must prove in court that the relationship is privileged, and therefore all communications between the people identified are privileged.  The hearing will establish that:

• the counselor is a rape crisis counselor as defined under the law; the organization is one that constitutes a rape crisis center as defined under the law; 
• the communications were made in confidence with the expectation of privacy; 
• and  no consent to release the confidential communications has been given by the victim.

If these facts are established, the judge should prohibit disclosure as required under the confidentiality statute.  However, note that the judge may not do this.

d.    Failure to Respond Or Comply
If the judge orders a release of information over the victim’s objection, the order is nonetheless effective unless the judge agrees to “stay” the order pending an appeal to the appellate court.  If the judge does not grant a “stay,” and the center refuses to comply, the counselor can be held in contempt of court, which may result in the counselor being fined or jailed or both.  Once a contempt sentence is entered, the conviction becomes appealable and can be examined by an appellate court.

e.    Motion for a Protective Order
If the court determines that the records are not protected by the statute, the court may nonetheless enter a protective order on motion of any party or witness limiting disclosure of the records or limiting the testimony.  The court may even provide limits on further disclosure of materials contained in the records by any party.12

 

IV.    CONFIDENTIALITY AND CHILD VICTIMS
A.    Historical View
 

Historically, minors have been subject to the authority and control of their parents or guardians.  In 1899, the first juvenile court in the nation was created in Chicago and officials began to view children as more than the “property” of their parents.  In the early 1900’s, the mental health field began to examine the issue of child abuse.  Sexual abuse of children was documented as early as the 6th century B.C., but has been the subject of much research only in the last two decades.

Until the 1960’s, minors’ legal rights generally were not recognized, based on the theory that children were incapable of making informed decisions.13  Especially in the case of adolescents, many of whom might qualify as mature minors, this assumption is invalid.  Children must be protected from sexual abuse or exploitation.  They also can and should be able to make decisions that help them recover from sexual abuse.

B.    Preserving Confidentiality With Minors
Sexual assault centers provide services to victims who are minors.  Rape crisis counselors provide guidance and support to alleviate the feelings of shame, humiliation and embarrassment often triggered by a sexual assault.  Confidentiality is central to this relationship between counselors and victims who are minors.  However, in the case of a minor, overlapping legal rules complicate the ability of the rape crisis counselor to provide confidential services.  Depending on the age of the child, parents may be called upon to consent to services for the child and/or to decide whether information should be released.
When both parents have custody, each parent has a duty and a right to control the care and custody of the child.14  If a parent has filed for divorce, a court may have granted legal custody to one parent.  In such a case, that parent has the right to consent to the care and treatment of the minor child.  When parents are in the process of divorce, it is especially important to ascertain whether one or both parents have the right to consent to services for the child.15  It is appropriate for the parent to affirm in writing that s/he has legal authority to consent to counseling on behalf of the child.

In Illinois, a victim of sexual abuse over the age of 12 has the right to consent to a limited amount of counseling.16  Further, some adolescents may be considered “mature,”17 and an “emancipated” minor can consent on an equal basis as an adult.18  For contacts and services beyond those granted to the minor, the rape crisis counselor must obtain consent of a parent or legal guardian.

Even when a parent consents to counseling on behalf of a minor, the child client will have an expectation of privacy and may resist any disclosure of information to a parent.  Adolescents, especially, have privacy concerns that may legitimately lead to less disclosure of information to parents.  For minor clients under the age of 12, a parent can access the child’s records and talk to the child’s counselor – with or without the child’s consent.19  A minor aged 12 or older has the power to determine who accesses her records.  In short, a child 12-years-old or older can deny her parents access to her records.20

Sexual assault advocates and counselors should explain the issue of client confidentiality to a minor client and her parent or guardian. Both the minor and the parent should be clearly informed about disclosure that will occur with parents.  For example, both the parent and child should be told at the initial session that a rape crisis counselor who is a mandated reporter will make a child sexual abuse report to DCFS to protect the minor from further risk of harm.  Once they understand the need to maintain confidentiality for the child, parents often consent to services for the minor.  Generally, a rape crisis counselor and an adolescent client will develop a rapport that can lead to the minor sharing appropriate disclosures with the parent at an appropriate time.

Witchcraft and Judaism

Witchcraft and Judaism 
by Rabbi Ahron Lopiansky 
Aish HaTorah - September 28, 2000

Between God and the world of nature lies a bridge called the "occult". Crossing it is fraught with danger and a slip-up means falling into the abyss of idolatry.

Most children are thrilled by stories of witches and devils, Harry Potter and Lord Voldemort. In an otherwise dry and rational world, those mysterious forces add an element of fun and excitement and stir the imagination. They allow a youngster to feel that there is a way to beat a merciless and insensitive system.

Born poor through no fault of your own? No problem -- a wonderful fairy will come to your doorstep and give you the fortune you so longed for. A bully is tormenting you mercilessly? A spell will be cast and he will become a squirrel for the rest of his life.

The Blair Witch Project films give teenagers a momentary shot of excitement and dread, and an ominous whiff that maybe there really is something lurking out there.


THREE GENERAL APPROACHES
When a person matures, three general approaches towards the occult and other outside forces begin to emerge.

There are the serious, rational mindsets who laugh it all off. For them the world is rational, quantifiable and anything else is utter rubbish.

There is a second group of people, who tend to be spiritual, artistic, poetic, etc. They sense the world has a spiritual dimension to it, and that there are all sorts of forces and mysteries that reason can't comprehend. Theirs is a world of tea-leaf readings, tarot cards, crystal balls and psychic predictions.

Then there are those very deeply religious people, whose worldview is that of a great battle between the two forces in the world -- good and evil. The captain of the good team is God, assisted by a host of angels, saints, martyrs, etc. The captain of the bad team is the devil, assisted by demons, evil spirits and politicians. Their world is particularly threatened by the likes of Harry Potter books, due to a large degree to the severity with which witchcraft is dealt with in the Bible.


NOT JEWISH
None of these three general approaches are in keeping with Judaism. What is the Torah perspective regarding witchcraft?

The Torah takes a very negative attitude towards witchcraft in its various formats, such as:

"A sorcerer shall not be allowed to live." (Exodus 22:17)

"For you are coming into a land that God is granting to you; do not learn the ways of the abominations of the native people. There shall not be found amongst you ... a sorcerer, soothsayer or engager of witchcraft ... or one who calls up the dead. For it is an abomination before God, and it is on account of these abominations that God is giving you their land." (Deut. 18:9-12)

But why? What is the problem with it?

The so-called "devil vs. God" approach is an anathema to Judaism because of the whiff of dualism inherent in it. God is One, and only One. He acts in many different ways, but there are no "two" armies in the full sense of the word.

Judaism does speak of the "Satan/devil," but it sees Satan as an agent of God, testing the sincerity of man's deeds, the strength of his convictions, and the stamina of his moral fiber. Although this so-called devil seems to entice man to do wrong, he is not inherently an evil being. Rather, he is conducting a "sting" operation; overtly enticing to bad, but in reality working for God. A cursory reading of the beginning of Job conveys that message: God sends out Satan to test Job's righteousness.

Just as a dentist or doctor tests the firmness of a bone or flesh by probing it, just as the army tests the integrity and trustworthiness of its intelligence agents by tempting them, so too does God test man. A test reveals the inner worthiness of a person's deeds, demonstrating what they are really made of.

So, if magic and occult do exist, why are they so evil?


GOOD MAGIC, BAD MAGIC
We also find mention of many types of "good magic" in the Talmudic sources, such as blessings, amulets etc. How do we distinguish between the two types of spiritual forces?

The perspective most widely used is that of the Nachmanides, the great 12th century thinker. We will try to adapt and explain his perspective.

Although God was the sole creator of the universe, He created an autonomous system of "nature" that serves as an intermediate layer between God and man.

The system of nature is self-contained and has its laws and its causes and effects. Being that one can use this system without immediate recourse to God, it allows for a sort of atheism. It is easy to think that the system runs on its own, independent from God. Gravity, inertia, electro-magnetism etc. all work whether the person is a sinner or a saint. A person who buys into the phenomena of nature, without bothering to ask himself about their cause, nor being sensitive to God's manipulation of natural events, is misled by the system into disbelief in God.

Between God and this world of nature lies another bridge, which we shall call the "occult" or the quasi-spiritual. It has the ability to change and bend the rules of nature, through miracles, magic, etc. But this quasi-spiritual world, although it is more elevated than nature per se, is still not the Divine. It has its rules and laws of operation, and is perhaps more powerful than the physical world, but certainly not omnipotent.

Are we to make use of this world in the way which we are bidden to make use of the physical world?

Nachmanides says that generally speaking God does not desire that we make use of this world. God had intended for us to come to awareness of Him within the natural world, and through its phenomena. Someone who subverts the system of nature, by constantly using the supernatural world, is going against the will of God.

In those instances where holy people have used forces above nature, they've always emphasized the fact that the miracles thus generated only demonstrated God's omnipotence to override natural phenomena. This is similar to (though certainly not the same as) the miracles that God performed for Israel in Egypt with the aim of establishing certain Divine truths. When a righteous person occasionally uses Divine intervention, it bolsters those great truths.


DANGER OF WRONG-DOING
It is at this point that the danger of real wrongdoing exists. A person who has realized that the laws of nature onto themselves are insufficient to explain the world, has tapped into this more spiritual world and come upon a melange of all sorts of "spiritual beings." If he understands they are agents of God, this becomes a true spiritual experience. But if he mistakenly understands them to be independent of God, then he engages in idol-worship! These forces then become a source for evil when they are viewed as an alternative power to God.

Perhaps the best illustration for this dual approach is inherent in the story of the "copper snake":

And the people spoke ill of God and Moses ... and God sent against them the burning serpents and they bit the people, and many people died ... and God told Moses: "Shape a snake [out of copper] and place it on a stick, and whoever was bitten will look at it and live." Moses then made a snake of copper and put it on a stick, and if a person was bitten by a snake, he would look at the copper snake and live. (Numbers 21:4-9)

The Mishna (Rosh Hashana 29a) puts this into perspective:

Did the serpent heal or kill? Rather, when Israel looked up heavenward, and dedicated their hearts to their Heavenly Father [they would be healed], and when not, they would waste away.

Here we have both facets of the supernatural: At first, the miraculous nature of the snake caused people to realize that the plague was God's doing, and they worked on bettering themselves. In this vein it was a positive spiritual experience.

But later things disintegrated and instead of the snake being a means to recognizing God, it became a focal point in itself, i.e. the wonderful healing snake -- separate from God's power. That is idolatry. For this reason, many hundreds of years later, King Hezekiah had this copper snake destroyed because people turned it into an idol!


UNDERSTANDING IDOL WORSHIP
Idol worship is the perception that there are many forces with various powers over mankind and perhaps even over God. The idolater thinks that he can use these "powers" against God if he only knew how to wrest them away from God.

It's as if God's power were vested in a gun He holds in His hand. The idolater thinks that if could only wrest the gun from God, then he'd wield that power. He equates the spells of witchcraft with the ability to overpower God.

The prime example of this thinking is the evil prophet Bilaam, who is called a sorcerer by the Torah. He was a person very knowledgeable in this area of the universe. He kept scheming to use the world of magic against God. He thought he understood the mind of God and that with enough powerful manipulation, he would be able to outfox Him!

In a sense, this is the worst form of idolatry possible. On the one hand, the person is onto something "real." It is not a weird looking rock that a primitive mind has fantasized into a god. Rather, it is a power that works. Yet, it is utterly false, because nothing is independent of God.

For us, the litmus test of "spirituality" is morality. Any form of "spirituality" that makes no moral demands on a human being, that does not seek to bring him closer to God, or bring out the Divine potential of man, is bogus or evil spirituality.

If a person practices "occult rites" and the content thereof is a mumble of strange words, bizarre costumes, or strange rites, it is either bogus or evil. It usually is bogus, but in those cases that he has tapped into these powers, it is evil for he has divorced it from God.

The great rabbis who performed supernatural acts, were using them to bring home a message about God. They enjoined people to recognize the Creator, develop their character, be kind to others, be honest and faithful, reign in their drives, etc. Understood in the larger context of God, Torah and morality, these unusual miracles were indeed Divine revelations.

Case of Rabbi Tzvi Wainhaus

 The Case of Rabbi Tzvi Wainhaus

(AKA: Leon Wainhaus, Leon T. Wainhaus; Tzvi Leon Wainhaus; Leon Tzvi Wainhaus)

Chicago, IL

Former Student (1968) - Mirrer Yeshiva, Brooklyn, NY

Table of Contents

2000

1. A Community's Shameful Silence (01/28/2000)
2. Loud and Clear:  Community must speak up to protect children (03/03/2000) 
3. Doing the Right Thing: Day School Moved Quickly to Deal with Perpetrator (03/03/2000)
   
4. Guidelines and Rules Aimed at Protecting Our Children (Fall/2000)

2001

1. Court Document - Circuit Court of Cook County (12/20/2001)

2007

1. Comment from a parent  (06/12/2007)

2008

1. WARNING: To Parents in Baltimore - ex-Rabbi Tzvi Wainhaus (07/28/2008)

_______________________________________________________________________________

A Community's Shameful Silence
Two women are working to get Orthodox rabbis to do more to inform and educate the public about child sexual abuse
By Joseph Aaron and Golda Shira
Chicago Jewish News - Jan. 28 - Feb. 3, 2000 (page 16 - 19)
 

The Awareness Center would like to thank Joseph Aaron (editor Chicago Jewish News) and Golda Shira for researching and printing the following article.  It was, and still is an extremely controversial issue. But a story that needs to be addressed. Both Joseph and Golda are heroes for NOT keeping the silence. 
 

It is a story more than 30 years old.
 
A story few wish to talk about and even fewer wish to hear about; a story of children being sexually abused by respected members of the community; a story of rabbinic leaders devoting more energy to keeping the story out of the public eye than making sure the perpetrator doesn't strike again; a story of victims feeling not only uncared for but feeling victimized over and over by not having what was done to them publicly acknowledged, by having to watch as their perpetrators walk around the community. It is a story of too many Jews not wanting to believe something like this could happen among Jews by Jews, a story of how their disbelief has allowed it to keep happening.
 
It is a story that goes back more than 30 years and a story that until very recently was continuing to go on, destroying lives.
 
It is not a very pretty story, but it is a story that is resulting in, if not a happy, at least, a productive, constructive ending. In the shameful silence coming to an end. In positive steps being taken. In a community coming face to face with reality and giving a face to all those who have suffered in silence and searing pain.
 
And that is thanks to the work of two very determined, very courageous, very caring women, women who would not just pretend it wasn't happening, wouldn't just sit back when others were doing nothing, wouldn't let ignorance or fear of shame be an answer. Two women who pushed and pushed community leaders to recognize and acknowledge how serious the problem was, to understand that trying to keep it hidden was the very worst thing to do, who understood that protecting the victims was far more important than shielding the perpetrator, who understood that the only way to ensure there were no future victims was not to assume the problem would disappear but to address the problem head on.
 
It would be a cliché to call Debbie Hartman and Jo Bruck women of valor. Besides that, the far more accurate description is that they are women with guts, inspiring women who saw ignorance and indifference and wrong all around them and who wouldn't give up until people starting caring, started acting, started doing what was right.
 
And right needed to be done for a very long time.
 
The story begins more than 30 years ago, when a respected well-known member of the Chicago's Orthodox community began sexually molesting young girls. Most were between the ages of 5 and 12. Each thought they were the only one. And so all kept quiet about what had happened to them.
 
Which is why it kept happening. Some Orthodox leaders knew about it bust said nothing, did nothing. Most members of the community heard the occasional whispered rumor but either didn't believe it or chose not to believe it.
 
And because each of the victims thought they were the only ones, they said nothing, in most cases blaming themselves, figuring they had done something wrong for this to happen to them.
 
It was about seven years ago that a community lecture on sexual abuse was canceled because it was decided it was "not relevant for the frume community." When Bruck was told that by the event organizer, she said, "oh yes, it is." Hartman and Bruck, who are sisters, had a family member who was a victim of abuse.
 
Over lunch shortly after, Hartman mentioned the incident to the women she was with and said that, in fact, there was someone in the community who had abused young girls. "One of the women go very upset and said 'you must tell me who it is, you must tell me right now'. And then she told us that he done the same to her more than 20 years before."
Then, Hartman said, word began circulating in her shul that a child had also been victimized by the man, a kosher butcher. "I asked her parents if that was true," said Hartman, "and they said it was."
 
It was with that that Hartman began "shaking things up, talking about this, saying something had to be done." Once it became known she was talking about it, Hartman said she got calls from others who had also been victimized.
 
"I wasn't out looking for this and this in not something people want to share. But they had kept it buried for so long and when they found out they weren't alone, they needed to open up."
 
Indeed, Hartman tells of one woman who had been victimized when she was five years old "and hadn't told a soul until she told me, when she was thirty something. She had been festering inside of her for all those years and when she finally opened up the gates, it was like a flood of emotions."
 
Hartman isn't sure why this woman and others opened up to her. She is sure, however, why she listened and responded.
 
"One of my family members was hurt in a way they should not have been hurt and didn't tell anyone for a very long time. They didn't know how. No one should have to feel such pain, humiliation and degradation. No one should have to wait 30 years to be helped."
 
What made sure Hartman would begin a crusade to see that help was there, was when she was talking to a woman in shul who had just moved to Chicago from out of town and learned that the family was temporarily staying in the house of the perpetrator.
 
"I told her she needed to know that while the wife was nice, she had to be very careful about the husband. I thought she might get mad at me, tell me to mind my own business. Instead, she thanked me and said 'I couldn't understand why he kept taking my daughter down to the van with him.' The woman came back a few minutes later and thanked me again.
 
"Needless to say they quickly moved out of that house. The truth is I was sick to my stomach having to tell her that, but I knew somebody had to say something'.
 
And do something about this man who had been molesting young girls in the community for more than 25 years.
 
Problem is no one was doing anything about it. Hartman and Bruck asked a therapist they knew to go to the community's leading rabbis and urge them to do something about the perpetrator. After much urging and pushing, the rabbis did finally call the man in. He admitted to having abused the young girls and promised to stop. Shocked that he so readily confessed, the rabbis told him to get counseling and instituted some minor restrictions on his activities.
 
And that was that.
 
But that was not enough.
 
"You would see him at public events," said Hartman. "In fact, I was there when he came up to get his ticket and one of his victims was working behind the desk. She sees him and starts shaking, shaking and he's fine, he's having a life."
 
And so Hartman and her sister went back to the rabbis and pushed more, pushed to have the rabbis "come up with more stringent rules and regulations on what he could and couldn't do. That he shouldn't be allowed to go to a bar mitzvah, weddings, any social events. So they finally did that. But other things that should have been done were not done. It was a year before his own family was told. Meanwhile, his oldest daughters were in outreach and would bring home girls and girls and girls every Shabbos. When what he had done became known in the community, his youngest daughter was still living in the house with him. She should have been in counseling, but he wouldn't allow it. Who the hell is he not to allow it? But nobody did anything about it."
 
The problem, says Hartman, was that this was an area that the community's leading rabbis were simply not prepared to handle properly.
 
"They're not educated in this. Which is understandable. When they were in school, no one ever sat down with them and said: some day you're going to have to deal with sexual molestation and abuse."
 
Hartman doesn't blame them for not knowing, but she does blame them for not trying to know, for the community's rabbis not coming together and sitting down and figuring out how to deal with this.
 
They didn't do that, says Bruck, "because they don't want any part of it. They don't want to believe this happens. And so even when it was shown that it does happen, they say it was an isolated incident, that Jewish men don't behave like this, that it will not happen again."
But does. And it has.
 
Indeed, it was just in the last couple of months that it was discovered a teacher at one of Chicago's Orthodox day schools, a rabbi, had been sexually molesting students, mostly boys.
 
According to Marjorie Newman, a spokesman for the Department of Children and Family Services, their investigation found that at least nine students at the school, 8 boys and one girl, ages 10 to 14, were abused.
 
And there may be more. "We know it wasn't just this year," said Bruck. "He has taught there for many years. He also gave bar-mitzvah lessons. One incident is bad enough", said Bruck, "but this is unbelievable."
 
When they learned of this second, current incidence of a respected community member sexually molesting children, Hartman and Bruck were determined things would be handled differently than they were seven years ago.
 
"When we came to them so many years ago, it would have been nice if they had gotten together and put into effect some sort of program, some sort of mechanism but they were not willing to do it," said Hartman. "If they had, maybe what has happened wouldn't have, maybe one of these young men would have spoken up and said 'my rebbe is doing something that is wrong' and it would have been stopped earlier. They would have had a place to go, know there would be someone who would do something."
 
But because nothing was done then, Hartman and Bruck were adamant something be done now.
 
Incredibly, however, at first, they got basically the same kind of response this time as they had last time from virtually all the rabbis in the Orthodox community.
 
"We went to several rabbis and nobody would step up and do anything," said Hartman.
 
"We approached every rav," adds Bruck. "They weren't surprised about it, they all knew about it and they all said 'no thanks, we don't want any involvement.' They were not interested in dealing with it."
 
Which convinced the two sisters they had to go and talk to the community's leading halachic authority.
 
But wanting to make sure all aspects of the issue would be covered by those better versed in the area than they are, Hartman and Bruck asked a prominent rabbi, an Orthodox attorney and an Orthodox psychotherapist to go with them.
 
"They each said they'd let us know. But we never heard back from any of them. So we went ourselves."
 
"I told him I was not happy he didn't not get involved seven years ago and that he had to be involved this time," says Hartman. "I did not speak meekly but was adamant to get my point across. We explained to him, from a to z, how others had been victimized because things had not been put into place. He said he didn't know how to deal with it and we explained that wasn't an answer." And so Bruck and Harman spent hours explaining that pedophilia is a disease, explaining why it was so important the community be alerted that this goes on and had been going on, explaining the pain it causes its victims. They begged this rabbi to learn more, to do more. He said he would.
 
And, indeed, Hartman and Bruck are pleased that four rabbis, Rabbi Zev Cohen of Congregation Adas Yehurun, Rabbi Gedaliah Schwarts of the Chicago Rabbinical Council, Rabbi Shmuel Fuerst of Agudath Israel of Illinois, and Rabbi Avrohom Levin of Telshe Yeshiva have agreed to serve as the rabbinical advisory board of Project Shield, a new effort to more systematically deal with the issue of sexual abuse (see separate story).
 
Rabbi Cohen defends how the community's rabbis have dealt with the current perpetrator, saying he and three other rabbis have spent more than 300 hours on the case, forming a Beit Din to protect the victims by "confronting the perpetrator, making sure he was in counseling and issuing stringent guidelines to prevent any interactions with young boys." He says the community should be proud of the "incredible amount of work that has been done to help the victims and their parents and ensure there are no future victims."
 
Rabbi Cohen adds that the community's rabbis should not be criticized in this instance and says that "if rabbis are not seen as strong in the eyes of the community, they don't have the ability to do anything and that doesn't benefit anyone."
 
Hartman and Bruck agree that Rabbi Cohen has been the most responsive rabbi in the community about this matter but not that not one rabbi, not even Cohen, has spoken from the pulpit about the issue. And that while he, and Rabbis Levin, Schwartz, and Fuerst are trying to deal with the issue, the vast majority of Orthodox rabbis continue to do nothing.
"Our goal is to get the rabbis to work with us on this, not to read this article and get all upset," said Hartman. "Yes, a few rabbis have tried to do good and that's a big step and we are grateful, but we need more, we need a majority to get involved to protect our children.
 
"Some rabbis say they don't like the line that their attitude about this has been 'don't ask don't tell.' Well, I'm sorry but that has been the majority of the rabbinical response."
 
And because that has been so, the rabbis have failed to let the community know about the issue.
 
"Why wasn't the community alerted about this school rebbe from the pulpit so that parents could take the necessary precautions?" asks Hartman. "Why haven't rabbis gotten up in shul and said something?"
 
Indeed, Bruck confronted one rabbi and said, "you're the rabbi of a shul. Have you gotten up there and said anything to anyone? He said 'what do you want me to say?' I used to go to his shul and he would talk about Anita Hill and Clarence Thomas, talk about O.J. Simpson. I said to him you can talk about it with your children. So he said to me, 'I'm up for suggestions. Please."
 
While Hartman is pleased that the four rabbis have joined her efforts, she notes that they still have not sat down together as a group and talked about a plan of action. "And I understand that they are very busy and have a lot of immediate things to deal with. But you can't wait until something else happens. We need the rabbis to be pro-active, to react now and plan now. We can't wait for later, we must prevent there from being a later."
 
She notes that one rabbi has said that because it happened in her family, she is over reacting to the situation. "No, I've under-reacted, I waited too long to do something, I should have done more seven years ago. The rabbis are talking now about the dangers of the Internet. Well they also need to talk and educate about this danger."
 
While Hartman is hopeful they will, some still have their doubts. A therapist involved in the issue says that she put together a bunch of materials about child sexual abuse for the community's leading halachic authority to read and brought it to his house. "He said that he didn't want the material and that the guy is not going to do it again because he's a frum man."
Brucks notes the same kind of silence has happened not only in the school where the incidents occurred but in all the Orthodox days schools. "They don't have a clue. Every school and every principal was called and asked if someone could come in and talk to the parents, to the teachers, to the students; and every single one said no, said they felt no one was talking about it and to do so would be to open up a Pandora's box.
 
"Even more amazing, they haven't even talked to the class whose members were molested."
 
Why? First and foremost, they don't want it getting out into the public world. The last thing they want is that people should know it happens in the frum community. Then there's the fact that people don't want to believe it happens. There are still lots of people who don't believe what the first perpetrator did is true or they say it's "lashon hara" (gossip) to talk about it. It's not an issue anyone wants to get involved with, it's easier to say it's a rumor, nobody can prove it. And so they just deny it."
 
The problem with the rabbis not publicly acknowledging what has occurred, says Hartman, is that it aids the feeling of "most people who don't believe the perpetrator is guilty. After all, up until this point he has been a respected person, unless you have the facts. But the facts are supposed to be kept confidential to protect the victims and since no one wants to come out and say, 'yes I was sexually abused and this is exactly what happened to me.' You don't have the facts and so it is dismissed as hearsay. Those in the community who know the perpetrator, say they've never been molested so it's probably not true. That's the point. These perpetrators lead a double life so why believe this blind information when I know this guy, he's a nice frum man in our community?"
 
And so the perpetrator gets away with his crime and the victims pay even more.
 
Indeed, the Department of Children and Family Services began its investigation because one of the boys molested at the school called their hotline to file charges against the rabbi and, says Hartman, "this kid is being persecuted. Kids in that class love their rebbe and so this victim is being penalized for pressing charges, his life is being made a living hell."
 
Beyond that, the rabbi is being protected to see that he stays out of jail and his story kept out of the newspapers.
 
Why are the rabbis working so hard to make sure he doesn't stand trial, let alone go to jail? "Because it didn't happen to their kids," said Bruck, "it's as simple as that."
 
The perpetrator's attorney, Hal Garfinkel, refused to comment on any aspect of the case when called by the Chicago Jewish News.
 
Hartman says that the community's fear of the story being public is putting the concern very much on the wrong thing. "I brought one of the victims, now grown up, to the office of one of the rabbis and he said he felt such rage he wanted to murder the perpetrator. The parents of another victim told the rabbi they wanted to kill the man.
 
"When a victim voices these raw emotions, the rabbis should be shaking in their boots. But they did nothing, all they were focused on was keeping it out of the papers and the perpetrators out of jail. I finally said, 'are you guys waiting for someone to actually shoot the perpetrator? How are you going to hide that from the newspapers?"
 
To not acknowledge what has gone on, says Bruck, "you destroy victims' lives over and over. Think about those who have poured their hearts out--and yet who see nothing being done about it, who walk through the community and there the perpetrator is, go to the pizza shop and there he is, so they are victimized over and over again and the rabbinic reaction is nothing. The victims continue to be pained that it is not being publicly acknowledged that what the perpetrator did was wrong. Meanwhile, the perpetrator, whose life isn't easy, but still he's managing to go to shul, his life goes on, people want to help his family."
 
Not that there shouldn't be compassion for his family, says Hartman, who calls them victims, too. "I know his wife, she's a very find young woman. Her life is over, her life is hell and will be forever, whether she stays with him or not. He destroyed lots of lives and you have to have sympathy for that. They have eight children. No one knows what goes on behind her closed doors, but I can guarantee, it ain't a pretty site and my heart goes out to her. She and her children are big victims in this."
 
But, says Harman, first and foremost there are the victims this rabbi sexually abused. She calls them "the faceless victims."
 
"In the case of his family, the community knows who the victims are and so they want to do for them. But everyone seems to be forgetting the faceless victims, these innocent children who nobody knows, who are being left out to hang, to live with this pain the rest of their lives."
 
Which is why Hartman and Bruck believe it is so important people talk about this, know about it, that people let their rabbis know they expect them to act.
 
"I think it's pretty pathetic that the rabbis can't work together to protect our innocent children," says Hartman. She notes that the hot issue at the moment in Orthodox circles is something being labeled 'Children at Risk', referring to the increasing number of Orthodox youth who are leaving the community, often getting into drugs and other destructive behaviors.
 
"You have all the rabbis speaking from the pulpit about 'children at risk. I think if someone did a little research to see how many of those children were sexually molested, it might be a pretty eye-opening experience. Children do not come from nice home and become so deep rooted in anger and frustration and so self-destructive unless something pretty horrible has happened to them .
 
"Everybody talks about the children, the children, being there for the children, well then when a child or their parent comes to you and say someone has really hurt my child, then do something about it. It's very nice to preach about 'children at risk' but helping children who are victims of sexual abuse is at the core and nobody is responding to it."
 
And there is no excuse for that, says Bruck. "This happens everywhere, in every community. It doesn't happen more in the Orthodox community, actually it probably happens less, but it does happen."
 
Which is why Hartman and Bruck are doing what they're doing, saying what they're saying, because the truth is they wish they didn't have to.
 
"There is no question some will be unhappy this is being talked about publicly," says Bruck, "but it's either say nothing or say and do something to make things better. People don't want us to talk about it., but that's the only way something gets done."
 
This is something that goes to the heart of what all of us are supposed to be all about," adds Hartman. "Never in a million years did we think we'd be sitting here talking about this. I am part of this community. Every person in my family has dedicated themselves to being a responsible member of the community and to making it a better community. It is not our desire to tear it apart in any way, shape or form. Our goal is to unite it and make it better.
"Maybe 25 years ago, this kind of thing wasn't discussed. But we discuss it now. This is not going to disappear, not going to go away by itself. So you have to be ready to deal with it."
And you start to do that, she says, by "putting a face on it. We have to give it legitimacy, make it a reality, get our leaders and the community to take it seriously. We need the rabbis to sit down and get educated about it, understand the irreparable damage these perpetrators do to their victims.
"People want to believe they can trust their spiritual leaders to deal with this problem, but if nothing is done, this is a bomb waiting to explode in everyone's face."

_______________________________________________________________________________


Loud and Clear:  Community must speak up to protect children
By Pauline Dubkin Yearwood - Managing Editor
Chicago Jewish Times - March 3-9, 2000
 

"Child sexual abuse is a disease of secrecy," says Dr. Robert Bloom, executive director of Chicago's Jewish Children's Bureau.
 
"It needs to be opened up. Like cleaning out a boil, you have to open it up before you can treat the underlying problem," he says.
 
His words echo those of every expert contacted for this article.
 
Among them are David Mandel, chief executive officer of OHEL Children's Home and Family Services, a New York-area social service agency. For the last two years, he has been studying the and publicizing the problem of child sexual abuse in the Orthodox community, and has written five articles on the subject for the New York-based Jewish Press newspaper.
 
In one he writes "...it's not likely that you're going to find any Orthodox offenders on this list (of sex offenders required to register under a federal provision known as Megan's Law). By and large, these people haven't been forced to go through the judicial system because the victims' parents are fearful that their child will be traumatized, that shame will be brought to their family or that this will cause difficulty with future shidduchm (marriages).
 
"The system does work. Our frum community has not been using the system," he concludes.
 
(Mandel and other experts emphasized that child sexual abuse does not occur more frequently in the Orthodox community than among other groups, only that people in the Orthodox community, and other strongly religious communities, are not as likely to bring the problem out into the open.)
 
Bloom, of the Jewish Children's Bureau, has worked with child victims of sexual abuse, both in the Jewish and non-Jewish communities, for more than 20 years. The agency worked with some of the children involved in the Hillel Torah abuse case. He believes that there is a fundamental misunderstanding among many about what is required in terms of reporting a suspected perpetrator (for reporting him to the authorities)."
 
That is not the case, he says, even if the allegations later turn out to be unfounded. In fact, Bloom says, the law requires people to cal authorities anytime there is a suspicion of child abuse or sexual molestation. Those authorities will then investigate and determine if the allegations are true.
 
"People are afraid they might get sued if they report a person who later turns out to be innocent," he says. "They want to wait and be sure. But the law is real clear -- you're not supposed to be sure. You must have to be suspicious."
 
The only way an accused abuser could sue someone who reported him is if he could prove it was done with malicious intent, says Bloom.
 
"It doesn't matter if you were wrong, if they were on the planet Mars (when the abuse occurred)," Bloom says. "they have no legal standing to sue you because it turned out they were innocent."
 
In fact, he says, it is more likely that the victims of abuse and their families would sue an individual or institution who knew the abuse was going on and did nothing to stop it.
Reporting suspected abuse to the Illinois hotline is not only a legal requirement, he says, but "it makes things a whole lot simpler and gets everybody off the hot spot. You've reported it and the state then carries the burden of what must be done next."
 
Parents must work with the authorities in deciding whether to press charges against an abuser, he says, adding that the decision is a complex one.
 
"Putting children through the legal process can be very painful. Some think they are being reabuse," he says.
 
However, he adds, "People who abuse children must be held accountable. They need help, and children must be protected from them."
 
Bloom says the reporting requirement is crucial because in all settings, child sexual abuse thrives on secrecy.
 
"Almost all kids who are abused are in their homes or among family or friends," he says. "It's (generally) not strangers who hurt kids.
 
"It happens in all walks of life," he adds. "I don't see any difference in the percentage of sexual abuse in the Jewish community (and other communities). We are NOT protected by our faith or our social status."
 
The Children and Adolescent Institute of the Jewish Children's Bureau has published a pamphlet. "Child Abuse and Neglect: A Responsibility of the Jewish Community," that deal with these and other issues.
 
Dr. Jerry Lob echoed many of the same themes as Bloom when he was called to speak to Hillel Torah parents and teachers shortly after allegations of sexual abuse at the school surfaced.
 
Lob, a clinical psychologist and Orthodox Jew, says that at a time of great turmoil in the school community, he tried to give parents a sense of what their children -- both those who were victims of abuse and those who simply knew others who were -- might be feeling.
 
"This was a teacher, someone who was in a position of trust," he says. "The children would feel a betrayal of trust. It wouldn't be easy for them to trust again, even if they just heard that it had happened to someone else.
 
"It was also a betrayal of love, because this was a teacher that was very beloved. That turns their whole world upside down."
 
Children might be likely to feel "guilt and shame, a sense of isolation, powerlessness and fear. And because they live in a religious environment, they might feel angry at G-d," he says. Because the accused figure was a rabbi, that brought the G-d equation into it in a stronger way.
 
"We talked about that a lot (in meetings with parents)," he says. "I told them to blow their children to voice that anger. I'm a firm believer that G-d can tolerate our anger."
 
In talking with parents, Lob stressed the importance of not placing any blame on children who come forward and tell of their experiences. "There was a fear that the children who came forward and tell of their experiences. "There was a fear that the children who came would be blamed by the other children," he says. He told parents to convey to their children that "it is heroic of children to come forward. It is the right thing to do."
 
He urged parents whose children might have been abused to seek therapy for them and to avoid sending them any messages of blame, such as, "Why didn't you tell How could you not know what was going on?" He also warned parents, "Don't make light of it."
 
After he spoke, and for weeks afterwards, he received numerous phone calls from parents of current students and from Hillel Torah graduates and their parents, some as far away as Israel.
 
He praises the "very professional" way the matter was handled by Hillel Torah. "There was no sense of sweeping anything under the rug," he says "I got a lot of positive feedback from parents about the way the school handled it."
 
Lobe says he believes the community needs more education in such matters and hopes to be involved in planning community-wide lectures and forums.
 
"There is a great deal of shame when something like this happens in the Orthodox community," he says. "We try to hold ourselves up to a higher standard. Then a thing like this happens. But every community has this, and it is important for us to realize we're not perfect, to look at our own weaknesses. This kind of exploded the issue in a healthy way."
Mandel, the head of the New York social service agency told the Chicago Jewish News that he "has heard the same story" of child molestation in the Jewish community in cities from Brooklyn, to Los Angeles and many points in between.
 
Even though the instances of molestation may not be frequent, they involve many members of the community because "one perpetrator can affect dozens, hundreds, in extreme cases even thousands of kids," he says.
 
Mandel says he has found that everywhere, "segments of the community band together to protect the perpetrator. Other segments are trying very hard to ensure that the molester is prosecuted and to ensure that other children in the community are not hurt. Too often, these segments are at cross-purposes, and so the pain continues."
 
Also he says, parents are often reluctant to come forward and report abuse for a number of reasons, including their fear that "the child's pain will continue during the investigation and prosecution; the neighbors whispering; and wondering, will this affect my child's shidduchs (marriages)?
 
"Put all these things together and you have a complex situation that has so far enabled perpetrators to win, to beat the odds."
 
In this article the Jewish Press, Mandel tells parents and others in the Jewish community that "you need to make your voice heard." He writes, "Our collective action to ensure that our voices are heard loud and clear may not put a child molester in jail but we could at least ensure he doesn't live on our block, daven (pray) in our shul, teach our children or be our neighborhood grocer. . . Yes, this can be done, it is possible

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Doing the Right Thing: Day School Moved Quickly to Deal with Perpetrator By Pauline Dubkin Yearwood - Managing Editor
Chicago Jewish News - March 3-9, 2000
 

Rabbi Yaakov Dvorin, principal of Hillel Torah North Suburban Day School in Skokie, says he kept one thought in mind throughout the tumultuous period when it was discovered that a teacher at the school had sexually molested students.
 
That thought was: "The concern and safety of our kids is number one, and it will not be compromised. Everything else is secondary."
 
He held fast to that notion even when members of the Orthodox rabbinic community suggested that he keep the matter quiet and do more to protect the perpetrator.
 
Dvorin says that now, close to four months later, he and Hillel Torah have come through trail by fire and "are able to get back to the business of running a school."
 
It's very quiet now," he says. Obviously, he likes it that way.
 
The educator says he was taken completely by surprise on a Friday in November when he received a call from the Illinois Department of Children and Family Services informing him that a teacher, a rabbi, was suspected of sexually abusing boys at the school.
 
Dvorin had been at the Skokie day school for just four years, two as assistant principal and two as principal. He knew the teacher as an enormously popular and beloved faculty member who had been at the school for about 14 years. He taught Jewish Studies, Talmud and Jewish law to 5th and 8th grade students.
 
Dvorin says he had never heard about any problems in the teachers' past, either from personnel from other schools or from his predecessor, former Hillel Torah principal Rabbi Avram Skurowitz, who now lives on the East Coast. The teacher was "very well thought of," Dvorin says.
 
Though not at a yeshiva in Albany Park. Several individuals who wished to remain anonymous, have told the Chicago Jewish News that the teacher has been fired or been forced to resign from the yeshiva because he sexually abused high school students there. The teacher was a rebbe at the yeshiva from 1977 to 1984.
 
The yeshiva, however, did not warn Hillel Torah or any other Chicago day school about what the teacher had done. According to sources, they didn't want to jeopardize his ability to find employment and support his family.
 
"Schools are living in the dark ages" as far as informing other schools about such matters, Dvorin says.
 
When he first heard of the charges, Dvorin says that even though DCFS didn't give him any details, his first thought was to get the teacher out the classroom. On that day, that wasn't a problem because the teacher had no class periods with students left. Dvorin called and made arrangements for a substitute to take over his classes for the next few days. The teacher never taught another class at that school.
 
The next week, as more details about the extent of the abuse emerged, Dvorin called the teacher in to his office and the teacher resigned. Dvorin says he neither confessed to the abuse nor denied it, speaking little on the advice of his attorney. Dvorin did impress on him that he should get professional help.
 
Meanwhile, DCFS began conducting an investigation into the incidents. Dvorin says the school cooperated fully with the agency, providing them with the names, addresses and phone numbers of all the families whose children were in classes taught by the Rabbi, as well as of former students of his.
 
Abiding by the mutual decision that interviewing children at the school would be too disruptive, DCFS called children and parents to be interviewed at the Bernard Horwich Jewish Community Center in Chicago. Dvorin says he told parents that he would sit in on the interviews if it would make them and their children feel more comfortable.
 
A number of parents requested that he do so.
 
He says he did not give any parents advice on whether to press charges, but suggested that they discuss that within the family and with an attorney.
 
At the same time, Dvorin and his staff took a series of steps to ensure that the matter was brought out in the open for parents, other teachers and students (the matter was not discussed with the youngest children in the school). Psychologists, psychiatrists and social workers, both from within and outside the school, spoke to each group and answered questions.
 
Dvorin and a trusted female staff member spoke to each class the rabbi had taught, Dvorin speaking to the boys and the female staff member to the girls. There were many questions and rumors, he says.
 
What made the matter even more difficult, according to Dvorin, was that the teacher was very popular and well-liked by students. "There was a sense of betrayal, " he says. "There was disbelief and anger -- 'how could we be duped like this?'"
 
Dvorin told parents that they should feel free to discuss the matter with him, and many did. The incidents, he knew were a prime subject for "kiddish talk and bakery talk" in the Orthodox community. For three or four weeks, he says "I was deluged by calls and visits. It was a major, major distraction for the school."
 
He also received some other, not so welcome, calls. These were from Orthodox rabbis and community leaders who, Dvorin says, "suggested that we do what we can to protect the perpetrator.
 
"They said, "keep it quiet,"' he says. "I was absolutely appalled."
 
He believes that the reaction of these leaders taps into the "shandah" factor (the belief that when one Jew is found to have done something wrong, it reflects badly on all Jews) and is also based on a fundamental lack of understanding of the issues involved.
 
"If a child, G-d forbid, is beaten, he shows scars," Dvorin says. '"With this, the child doesn't necessarily show outward scars. So some people don't understand the long-term effects. They don't see the inward scars, the betrayal. Until you see it, grasp it, you can't imagine."
 
He believes that "what's worse than the sexual abuse are the people who support and protect the perpetrators, who make alibis and look the other way."
 
The community leaders, he says, did not so much attempt to put pressure on him and the school as to offer him "advice." They could not advise him to keep the teacher at the school because he had already left by the time they called, but, he says, they did ask him to keep the issue quiet was applied by the ultra-Orthodox community's leading halachic authority.
 
On the other hand, two high-profile rabbis, Dvorin says, were extremely supportive of his efforts. Rabbi Gedalia Dov Schwartz of the Chicago Rabbinical Council "fully fathoms the issue," he says. "I'm not sure everyone has his depth of knowledge of it."
 
He also praises the efforts of Rabbi Harvey Well, superintendent of Associated Talmud Torah, the agency that oversees Chicago-area Orthodox day schools. Well contacted all the other schools in the system to let them know what had happened. Dvorin had already contacted the principal of another school who , he knew, was looking to hire a teacher to make sure he would not consider hiring the abuser.
 
Because of all these efforts, Dvorin says, "we can keep our heads up. We did not close our eyes and hope it goes away. Twenty-five years ago it was, 'don't talk about it.' Now we knew so much more."
 
Today, nearly four months later, "we have gotten back to being a school again," Dvorin says. Board members and parents were all supportive, and none took their children out of the school.
 
Dvorin himself says he is grateful for the support he has received and realizes that "this could happen in any school. Any community."
 
But he remains shaken. "I have a strong feeling toward children," he says. "The child is 100 percent blameless, innocent."
 
As for the perpetrator, Dvorin says, The impulse to act this way is an illness, but to act on it is criminal and 100 percent unacceptable. Perpetrators look for excuses -- they will try to blame the victim. But the children are blameless. I feel strongly that anyone who commits a crime of this type should be punished to the full extent of the law."
 
Some members of the community have expressed unhappiness that the teacher has been deprived of a livelihood, but Dvorin says, "I question some of tolerance we find in the community. I feel very strongly that he should never be around children again."
 
Mostly, he says, what is needed is that "our community must become more knowledgeable."
 
Edwin Plotkin, a two-time past president of the school's board and a current Hilllel Torah parent, echoes that sentiment. Dvorin "had the board's support from start to finish," he says. "We have to remember that just because we're Jewish doesn't mean that these things don't happen.
 
"If all schools were on the same wavelength as we are, it would be better for all the children.

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Guidelines and Rules Aimed at Protecting Our Children

Jewish Image Magazine (Page 46) Fall 2000, Tishrei 5761 

The following statement was made public as a result of the Ad Hoc Bais Din of Chicago deliberated on what to do with the allegations made against Rabbi Tzvi Wainhaus of sexual abused children at Hillel Torah. 

Under NO Circumstances whatsoever may the perpetrator teach in any classroom situation or any private or tutorial situation with any students, nor may he enter any school building at any time under any circumstances. Included in school buildings are any kollel buildings (adult learning center) that are open during non-school hours, such as during the summer, all school holidays, as well as Sundays and after school hours. 

He may not go to any mikvah (ritual bath) anywhere in the world at any time, including erev Shabbos, Erev Yom Tov, erev Rosh Hashanah and erev Yom HaKipurim. 

He may not go to any J.C.C. (Jewish Community Center) or any swimming facility anywhere at any time. 

He many not use the restroom in any synagogue, yeshiva, kollel, or any other Jewish facility at any time, even if this will force him to miss davening (praying) or krias HaTorah or learning. The only exception is during the times that it is permissible to be in a kollel as enumerated above. During those times, and those times only, it is permissible for him to use the restroom. 

No children, even his own, are allowed in his house at any time while he is present until the ad hoc bais din is advised to the contrary by his therapist. 

He may not attend any simchas (celebrations), including weddings, bar mitzvahs, bas mitzvahs, kiddushim, brissim, vorts (lectures), banquets, or any other simcha anywhere or any time until the ad hoc bais din is advised to the contrary by his therapist. 

He must be engaged in regularly scheduled uninterrupted intensive therapy with a therapist with whom the bais din is advised to the contrary by his therapist. 

The Bais Din (Jewish Court), after much deliberation, and taking into consideration his health problems, will allow him to daven in different area shuls on Shabbos, even though there are children present, with the understanding that every Rav (Rabbi) will be made aware of his name, and to make sure that there is surveillance whenever he leaves the sanctuary to use the restrooms or any other area of the building. Any Rabbi not wishing to take on this responsibility has the right to prohibit him from davening (praying) in their shul.
Rabbi Gedaliah Dov Schwartz, Rabbi Avraham Chaim Levin, Rabbi Shmuel Furest,
Rabbi Zev Cohen

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Court Document - Circuit Court of Cook County
December 20, 2001

  

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Comment from a parent  
Jewish Survivors of Sexual Abuse Speak Out Blog - June 12, 2007 

Just stumbled on this site and what surprises!  I heartily agree with the comments that the Vaad has done nothing to support the victims of sexual abuse. My son was one of the many abused by Tzvi Wainhaus. 

Shmuel Furest did NOTHING. Quite the contrary. We were actually called to come to his office- which we did- at the height of the IL DCFS investigations. Did he call to see how he could support our son? Of course not! Imagine my shock when he actually had the audacity to ask us to 'Keep Quiet' and not say anything to the newspapers, or press charges! After all 'what a shonda in front of the goyim, and the poor man (Wainhaus) feels horribly, and he has a family'. Unbelievable. To this day, 7 years later this is still something that brings rage and anger to the core of my being and tears to my eyes. Literally and Always. 

And to see that post that Jamie Dvorin cares so much about protecting the kids- I want to scream in rage: the lies! He not only told me to send my son out of town for high school ('for his own good') he also tried to prevent him from joining his class at ICJA. Of course I refused to send my son away. Would he have sent his 13 year old child away after being sexually abused by his favorite teacher? Away from his family? When his entire world came crashing down? Mr. Dvorin also made up a vicious lie about how the teachers didn't think my son should go with his class on his senior trip. When I called every teacher of my child I caught his right in his lie- HE didn't want my son to go. My son was an excellent student with no history of any behavior issues. Prior to being a victim there was no reason to assume he wouldn’t go on his senior trip, or go to ICJA. Dvorin also called ICJA to prevent my son from getting accepted there. Jamie said the problem was that he was a 'high risk child' – why? because one of HIS teachers abused him. He never accepted any responsibility- nor has Mr. Fuerst or the orthodox community. The only rabbi that behaved with any kindness or degree of menschkiet was Rabbi Harvey Well. The rest are filthy hypocrites and evil men. They can pretend to hide behind their mitzvot but there is no number of mitzvot they could possibly perform to erase the evil they have perpetrated. They may have avoided the court in this world but they will have their day in the heavenly court one day and there justice will be served.

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WARNING: To Parents in Baltimore - ex-Rabbi Tzvi Wainhaus 

The Awareness Center - July 28, 2008 

Warning to the Community - From The Awareness Center

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