[Avodah] child abuse and moser

[MSDratch at aol.com]

The gedolei ha-poskim have already weighed in on this:  (excerpt from  my 
article on this issue: The 411 on 911: Reporting Jewish Abusers to the Civil  
Authorities" available at _http://jsafe.org/pdfs/mesirah.pdf_ 
(http://jsafe.org/pdfs/mesirah.pdf) .)
 
 
Rambam notes that  the prohibition of mesirah restricts a private individual 
who is  being harassed from making a report to the civil authorities. However, 
when  there is a meitzar ha-tzibbur (public menace), informing is  
permissible.48 While this would  seem to restrict an abused wife from calling the 
authorities on her husband, or  a concerned party from reporting an abusive parent, 
this is not the case. First,  the rate of recidivism in child abuse cases is 
high and therefore a child  molester can be considered a “public menace.”49 
Second, Shakh records that where a person is a repeat abuser (“ragil  le-hakot—
strikes on a continuing basis”), one is permitted to report him to  the 
non-Jewish authorities in order to prevent him from abusing  again.50 And third,  
Geresh Yerahim limits Rambam’s reading of the Talmudic statement above  (Gittin 
7a) to situations in which the abused faces no real personal  harm. He points 
to Rashi’s explanation of Mar ‘Ukba’s complaint that “Certain  men are 
annoying me,” explaining that they were merely insulting  him.51 But, if Mar ‘Ukba 
 would have been subjected to greater injury, i.e., physical or financial 
harm,  it would have been permissible for him to complain to the non-Jewish  
authorities, even though he is just an individual. Similarly, Me’irat Einayim adds 
that the distress of the private individual that is forbidden to report  is 
tza’ar be-alma (general distress). However, if one is the subject of  assault 
or attacks, reporting is permitted.  
In  addition, there are situations in which a rabbinic court is ineffective,  
incapable of adjudicating and powerless to protect victims. This can be for 
any  number of reasons: perhaps one of the parties will not appear before it, 
perhaps  a party will not feel bound by its decision, or perhaps the bet din 
will  be unable to protect one of the litigants from physical or financial harm. 
 Rabbeinu Gershom Ma’or ha-Golah understood that even if someone agrees to  
come to the rabbinic court, he may be doing so only because he thinks he can  
delay or obfuscate the proceedings, or because he feels that he will be able to 
 avoid certain punishment or fines if he avoids the civil courts. Rabbeinu  
Gershom enacted that in such cases the bet din should give the other  party 
permission to go to the general court.52 Radbaz confirms that “this is the  
practice of all rabbinic courts in every generation in order not to give the  upper 
hand to aggressors and intimidators who do not respect the judgment [of  the 
bet din].”53  
In a  ruling of great significance for victims of abuse, Rema writes, “A 
person who  attacks others should be punished. If the Jewish authorities do not 
have the  power to punish him, he must be punished by the civil  authorities.”54 
According to  Rema, the victim has the right to go to the civil authorities 
not just to  prevent an attack, but to seek punishment and justice for an 
attack that has  already taken place.55 
Rabbi Shalom  Yosef Elyahiv ruled that one may report a child abuser to the 
civil authorities  in America, but only if he is certain about the abuse; a 
false report that can  destroy a person’s reputation and life.60 And Rabbi Shmuel 
 HaLevi Wosner, author of Teshuvot Shevet ha-Levi, applies this reading of  
the Talmud to the case of a tax agent who must report tax fraud to the  
government for prosecution. Rabbi Wosner obligates this Jew to do so, arguing  that 
1) this is the law of the country and 2) the report will not cause the  
imposition of a dangerous sentence on a Jew.61  
Furthermore, a  child abuser is worse than a meitzar and is in the category 
of rodef concerning whom one is permitted to do anything to stop the  attack.62 
  
Others maintain  the prohibitions of mesirah and arka’ot do not apply to 
these  situations altogether. R. Yitzchak Weiss avers that the state has an 
interest in  the safety and welfare of its citizens and one may report those who are 
 endangering that safety.63 Rabbi Herschel  Schachter stated that the 
prohibition of mesirah applies only when  testimony assists civil authorities in 
illegally obtaining the money of, or  excessively punishing, another Jew. It does 
not obtain when it aids a non-Jewish  government in fulfilling such rightful 
duties as collecting appropriate taxes or  punishing criminals. When the 
information concerns the criminal activities of a  fellow Jew—as long as the Jewish 
criminal has also violated a Torah law and even  if the punishment will be 
more severe than the Torah prescribes64—the ban of  mesirah does not apply.65  
Arokh ha-Shulhan maintains that  mesirah was prohibited because of the nature 
of the autocratic  governments under which Jews lived throughout much of 
history. Such informing  often led to dangerous persecution of the entire Jewish 
community. He maintains  that this injunction does not apply to those societies 
in which the government  is generally fair and nondiscriminatory.66  
We  are not concerned that the procedures of a civil court differ from those 
of a  bet din or that the testimony that the former accepts may be invalid in  
the latter or even that the punishment may be more severe than that imposed 
by  Jewish law (Sanhedrin 46a). 
Jewish law grants  the ability to impose unauthorized punishment, to accept 
otherwise unacceptable  witnesses, all at the discretion of the judges, 
according to what they deem  proper and fitting.67 
48 Hoshen  Mishpat 388:12, according to the text  quoted by Shakh, no. 59, 
and Gra, no. 71.  
49 Rabbi Eliezer  Waldenberg, quoted in Nishmat Avraham, IV, p. 209, 
maintains that for  this reason, child molesters must be reported to civil 
authorities. See R. Asher  Zelig Weiss, “Mesirah la-shiltonot be-hashud be-hit’olelut 
be-yeladim” in  Yeshurun, 5765, p. 659; R. Yehudah Silman, ”Teshuvah le-shei’
lah  be-inyan divu-ah al pegiyot be-yeladim” in Yeshurun, 5765, p. 661.  
50 Shakh,  Hoshen Mishpat 388, no. 45 and 60.  
51 Rashi, s.v. ha’omdim ‘alai.  
52  Manuscript Frankfurt 123, see Rabbi H. Shlomo  Sha’anan, Hafna’at tove’a 
le-bet Mishpat, Tehumin XII, p. 252. See  Piskei Ri MiKorbeil in Sha’anan, 
Ner LiShmaya, pesak 69.  
53 Radbaz to  Rambam, Hovel u-Mazik 8.  
54 Hoshen  Mishpat 388:7 and Shakh, no.  45; See also gloss of Rema to Hoshen 
Mishpat 388:9; Ba’i Hayei and  Maharam miRiszburg cited in Pahad Yitzhak, Ma’
arekhet Hovel  be-Haveiro.  
55 See Darkei Moshe, Hoshen Mishpat 388 and Teshuvot Maharam MiRizbork cited 
by Shakh.   
56 See Rashba quoted  in Bet Yosef, Hoshen Mishpat 388.  
57 See R. Moshe  Halberstam, Mesirah le-shiltonot be-mi she-mitolel 
be-yeladav in  Yeshurun 5765, pp. 643-651.  
58 Ritva to Baba  Mezi’a 83b.  
59 Teshuvot  Rashba, III:393;  Bet Yosef, Hoshen Mishpat 388.  
“She-eilah  be-inyan hoda’ah la-memshalah al hit’olelut be-yeled ‘o  
be-yaldah”  in Yeshurun, p. 641. 60  
61 Teshuvot Shevet  ha-Levi II:58. See also  Teshuvot Iggerot Moshe, Hoshen 
Mishpat I:92, which, in a similar  situation allows the tax agent to report 
because even if he did not reports,  others would, thus relieving the Jew of sole 
responsibility..   
62 R. Moshe  Halberstam, Mesirah le-shiltonot be-mi she-mit’olel be-yeladav 
in  Yeshurun 5765, p. 646.  
63 Teshuvot Minhat  Yitzhak VIII:148  
64 Ran to  Sanhedrin 46a. See, however, Teshuvot Rema, no 88, who maintains  
that according to Tosafot, Baba Kama 114a, s.v. ve-lo, if  the punishment 
exceeds that prescribed by the Torah, the mesirah prohibition maintains.  
65 Rabbi Herschel  Schachter, “Dina De-Malchuta Dina,” Journal of Halachah 
and Contemporary  Society, I:1, 1981, p. 118.  
66 Arukh  haShulhan, Hoshen Mishpat 388:7. This  source is authoritatively 
cited by R. Gedalia Dov Schwartz in “The Abused Child:  Halakhic Insights,” Ten 
Da’at, Sivan 5748, p. 12.  
67 Hoshen Mishpat 2:1; Teshuvot ha-Rashba III:393;  Teshuvot Panim Me’irot 
II:155.   
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