[Avodah] Counting a Wife Beater Toward a Minyan

[Chanoch (Ken) Bloom]

On Wed, 2010-02-03 at 10:40 -0500, Micha Berger wrote:
> In my series of QSA on CM, I got to 184:1. I'm deleting the Hebrew for
> logistical reasons, but you can see a menuqad
> text at http://www.kitzur.net/main.php?siman=184&nk=1
> 
> Here is my translation:
>     A person is prohibited from hitting his friend, and if he does hit
>     him, he violated a prohibition. As it says, "If" the court "must give
>     the wicked person lashes, [the judge will knock him down and whip
>     him before him according to his evil in number." A maximum of under
>     "forty times you shall hit him, no more; [lest you exceed hitting
>     him for these, a great smiting, and your brother will be ashamed
>     before you]." (Devarim 25:2-3) If the Torah was careful with the
>     corporal punishment of someone evil that he should not be hit more
>     than his wickedness [merited], a fortiori with the hitting of a
>     righteous person!
> 
>     Whomever raises a hand against his friend to hit him, even though he
>     didn't actually hit him, is called "a wicked person". As it says,
>     [that Moshe "went out on the 2nd day" from Par'oh's palace "and
>     he saw two men, Hebrews, arguing,] and he said to the wicked one,
>     "Why will you hit your peer?" It does not say, "Why did you hit?" but
>     rather "Why will you hit?" Even though he didn't hit him yet, he is
>     still called a wicked person.
> 
>     Whomever hits his friend, he is excommunicated with an excommunication
>     of the ancients. One does not include him to a minyan of ten for
>     any declaration of sanctity until a beis din releases him from the
>     excommunication, when he accepts upon himself to listen to their
>     ruling.
> 
>     If someone is hitting him or another Jew and there is no way to
>     save himself or his friend from the hand of his attacker accept by
>     hitting him [the attacker], it is permissible to hit him.
> 
> At 9:06am EST this morning, R Dmitry Kreslavskiy (CC-ed; a friend of mine from
> around the neighborhood) commented:
>     So how does this work? If a person is a home abuser, G-d forbid, and
>     hits his wife, that means he cannot be counted towards a minyan? So
>     what happens if he davens with another group of 9 unsuspecting
>     people? Is such davening not considered davening with a minyan?
> 
> To which I replied:
>     I think you're right. I think the people would be beshogegim not
>     davening with a minyan. (Unless a rasha, like a qatan, could be
>     counted in extremis at the 10th toward a minyan with sefarim present.)
> 
>     It's certainly worth bouncing of the chevrah on Avodah.
> 
> So, I'm asking.... What do you think?

Isn't placing someone in cherem an action the beit din takes. Which is
to say that he isn't in cherem until the beit din declares him to be in
cherem. Or do I have this wrong?

If I have that point right, then this isn't an issue of having 9 people
who are unsuspectingly davening with someone who's in cherem because he
beats his wife in the privacy of his own home and nobody knows that he's
sinning this way.

--Ken