[Avodah] Reporting Child Abuse - A Clarification

[Ben Waxman]

The following is a long email which comes from a list in which my wife
participates (religious therapists). It is written by Nachum Klafter,
MD (doctorklafter at cinci.rr.com) and discusses many of the issues which
we touched upon in the recent "do we report" dialogue, but in much
more depth. I am sending it to Avodah because the amount of Torah in
the email. My thanks to Doctor Klafter who agreed to allow me to share
his words.

Ben

____________________________________

I have received several emails off-list from clinicians and Rabbis asking
me to respond to the last round of posts in this discussion by explaining
what exactly the differences are for therapists according to the rulings
by the R.C.A. and Agudah.

The intent of recent posts has been to defend the position of the Agudah
and to stress the importance of receiving guidance in all halakhic
issues from qualified poskim. I do not disagree with that sentiment,
but I think that the position of the Agudah has been misrepresented.

In the course of our discussion on the list-serve about halalkhic issues
involved in reporting, the dialogue in this thread turned to the topic
of whether sexual perpetrators may or may not be delineated as a rodef
(a person pursuing an innocent victim in order to commit murder or rape
on an ervah). This was in response to my earlier post where I cited the
case of rodef as one example of where it is obviously permissible to
report Jewish criminals to the secular legal authorities. As a result
of this digression in the thread, I believe that there is an inaccurate
perception that the disagreement between the R.C.A. and the Agudah
is about what categories of abuse may or may not be reported to the
authorities. This is not the case, as I will explain.

To review: There were two rulings issued recently by the two major
organizations of Orthodox Rabbis in North America about reporting child
abuse to the authorities.

1. The Rabbinic Council of America ruled in April 2010 that there is
an obligation to report credible allegations of sexual abuse to the
secular legal authorities, and that there is no prohibition of mesira in
doing so. This RCA reiterated this position on July 25th 2011. The full
text is attached to this email. There are four important components to
their ruling:

+ All Jews who have first-hand-knowledge or a reasonable suspicion
  of sexual or physical abuse of children are obligated by Torah Law to
  report this immediately to the secular legal authorities. Failure to
  report constitutes a biblical violation of "You shall not stand idly
  upon the blood of your brother.."

+ The prohibition of mesira simply does not apply when making reports
  of sexual or physical abuse to the secular authorities.

+ Mandated reporters, such as therapists, must follow the mandated
  reporting laws imposed by the secular authorities even in cases where
  Jewish Law would not require that a report be made.

+ If someone is truly uncertain whether the facts he or she has
  become aware of are reasonable grounds for suspicion, he or she
  should seek guidance from a rabbi and/or mental health professional
  as appropriate. However, in a case where it is clear that the basis
  for suspicion of abuse is valid, and all the more so when one has
  first-hand knowledge, it is not necessary to ask a rabbi for a ruling
  before calling the secular legal authorities.

2. The Agudath Israel's statement of July 22, 2011 includes the following
key provisions:

+ All Jews who learn of credible allegations that a child is being
  sexually or physically abused are obligated by Jewish Law to report
  this to the secular legal authorities. This obligation, based on "tikkun
  olam" and "other important principles" (unspecified the their ruling),
  pushes aside any prohibitions (i.e. including mesira).

+ According to this opinion, the level of evidence required in order to
  achieve "probable cause" (raglayim la-davar) is a halakhic matter which
  requires a decision by a qualified posek. In other words, according to
  this statement issued by the Agudah, before anyone calls the secular
  authorities, he or she should first consult with a qualified rabbi in
  order to determine if the basis for suspicion is sufficient evidence to
  file a report.

+ The obligation to report, according to the Agudah, is based only on
  Jewish law considerations and not on any mandatory reporting
  provisions in the secular law. In other words, according to the Agudah,
  a therapist or any other mandated reporter must also first consult
  with a posek before reporting suspicions of abuse to the authorities.

Practically speaking, the only difference in their ruling for the
lay public is whether a Rabbi must be called first before reporting
first-hand knowledge or a reasonable suspicion of child abuse to the
secular authorities.

There are other potential implications of the Agudah's ruling for mandated
reporters, including Orthodox mental healts. Chaim Dovid Zwiebel, an
attorney and the E.V.P. of Agudath Israel of America, has stated that he
does not believe that this ruling will lead to any mandated reporters
violating the law. Not everyone is reassured by his statement. (My own
understanding is that, like anything else, it would depend on the rabbi
you are asking.) In any case, this opinion requires that a mandated
reporter speak about the facts with a qualified posek so that each
situation can be adjudicated on a case-by-case basis.

These two opinions are based on different understandings of the
prohibition of mesira. The R.C.A.'s statement is based on two halakhic
principles: (1) The laws of mesira are pushed aside when reporting people
who pose a danger to others, people who menace and harass others, people
whose actions impugn the reputation of the community, and even for those
who are simply so disruptive that they cause a public disturbance. These
categories obviously include sexual and physical abusers of children. (2)
The R.C.A statement follows another widely accepted opinion in halakha:
Generally speaking, in a nation which enforces the law equitable and
humanely, it is not forbidden to report or press criminal charges
against Jews who are violating reasonable laws which were enacted for
the betterment of the society. That is why the R.C.A.'s ruling states
that mandated reporters are always obligated to adhere to the mandatory
reporting laws, even in cases where according to Jewish Law there is
no obligation to report. According to this opinion, the prohibition of
mesira applies only in societies where there is no procedural justice,
such as nations where Jews are seized by anti-Semitic rulers for
no legitimate reason. The gedolei ha-poskim of the 20th century who
have ruled in this manner include the Aruch HaShulchan, Rav Elyashiv,
Rabbi Eliezer Waldenberg z"l, Rav Shlomo Zalman Auerbach z"l, and Rabbi
Shmuel Wosner. This view is also followed by the R.C.A.'s own poskim
and dayanim. I have personally discussed these matters with three:
Rav Hershel Schachter, Rav Gedalia Dov Schwartz, and most recently with
Rabbi Michael Broyde (who has written extensively and frequently answers
halakhic questions on this topic).

The Agudah is following a different opinion about mesira, which holds
that even in societies whose legal systems are fair to Jews and whose
authorities generally enforce the law equitably and humanely (such as
America) there is nevertheless a prohibition against informing on Jews
who are violating the secular law. However, the view expressed by the
Agudah agrees that there are many situations where mesira is not only
permitted but mandated by the halakha; in fact there is no disagreement
about this among any halakhic authorities. The classic cases where mesira
is permitted, in any society, are specified in Choshen Mishpat 388. The
view expressed in the Agudah's statement further agrees that sexual and
physical abuse of children falls clearly within those cases which must
be reported to the police because the prohibition of mesira has been
pushed aside. However, unlike the R.C.A.'s ruling, if we could imagine
a case where Jewish Law does not require that we inform the secular
authorities, the opinion expressed by the Agudah holds that even in
America and Canada the prohibition of mesira remains in effect. That
is why the Agudah's opinion states that the secular law's provisions
for mandated reporting are irrelevant to the question of of whether
reporting is permissible. According to this opinion, either there is
an obligation to report according to Jewish Law (such as in a case of
sexual or physical abuse), or there is a prohibition of mesira which
precludes reporting (even for mandated reporters).

Rabbi Broyde's lengthy article which explains the rules and legal
principles which govern the prohibition of mesira, as well as the
various views of the great poskim of the last century, can be found here:
http://www.jlaw.com/Articles/mesiralaw2.html

It appears that some list-serve correspondents believe that the opinion of
the Agudah (and the clarification reported in the media by Rabbi Shmuel
Kamanetsky) is predicated on the notion that the only instances where
reporting is permissible are when the molester or abuser is adjudicated as
a rodef. Following this incorrect assumption, one list-serve contributor
goes on to cite the classic cases from the Talmud of incestuous or
adulterous rape, in order to distinguish them from other cases of less
serious sexual abuse where the perpetrator would not be a rodef.

This is incorrect. In fact, both opinions (the Agudah's and the
R.C.A.'s) agree that physical abuse of a child, or sexual molestation
of a child which does not involve actual rape, must be reported to
the secular authorities. Their disagreement is only over whether
there is a requirement to first check with a Rabbi about whether the
basis for one's suspicion rises to the threshold of probable cause
('raglayim la-davar'). Their disagreement is not, for example, about
whether a molester who fondles the genitalia of young children must be
reported. The opinion expressed by the Agudah clearly holds that such
a person must be reported (though only after consulting with a Rav to
determine if the evidence is sufficient). This has nothing to do with
whether a molester has the actual din of rodef.

In fact, in the same siman in Shulchan Aruch (Choshen Mishpat 388),
we learn about a number of other cases where people may or must
be reported to the authorities despite the fact that they are not,
literally, rodfim. This includes counterfeiters (388:12), people who
disturb the public (388:12), and people who assault others by hitting
them (388:7). In fact, the Rema rules in 388:7 that a person who has
been assaulted by someone ("adam ha-mukah me-chavero") is allowed
to press charges with the secular authorities against his assailant
after the assault has already occurred. However, the assailant is not
a rodef. In other words, the victim of this assault is certainly not
allowed to purchase a gun the next day and kill his assailant. However,
he is allowed to call the police the next day and inform on the assailant
by filing criminal charges. People who cause a public disturbance are
not rodfim in any sense of the word; they are not even dangerous; they
are simply a disruptive nuisance. Nevertheless, we may report them to
the authorities. The rabbis of the Agudah and the R.C.A. all agree with
this. They all further agree that if we are allowed to call the police
after a physical assault against an adult, we are certainly allowed to
call the police to report sexual and physical abuse of children (though
the Agudah requires that a posek review the evidence first, in order to
avoid spurious reports). And, again, the Rema is addressing a situation
where the legal authorities are anti-Semitic feudal despots who we presume
will treat the assailant is very harshly. There is certainly reason to
be more lenient about mesira in America, Canada - not to mention Israel,
where the legal authorities are Jews.

There are some reports in the Jewish media which imply that the Agudah's
requirement of 'raglayim la-davar' (that only suspicions which are
based on substantial evidence should be reported) will interfere with
the reporting of sexual abuse. I think this is unfair. In fact, the
R.C.A.'s opinion states the same thing, but trusts the reporter to make
that determination and does not require the input of a halakhic decisor:

    As always where the facts are uncertain one should use common sense
    and consultations with experts, both lay and rabbinic, to determine
    how and when to report such matters to the authorities. False
    accusations are harmful to those falsely accused - but unreported
    abuse or endangerment can be life-threatening, as we have recently
    been tragically reminded.

Essentially, the Agudah's ruling expresses an opinion which is so
concerned about the potential havoc caused by baseless suspicions
being reported to the government that it requires rabbinical review. The
Agudah's statement is nevertheless an acknowledgment that in contemporary
Western society, Rabbonim and lay communal leaders are not empowered to
effectively intervene and protect children who are being physically or
sexually abused. We need to make use of Child Protective Services or
similar agencies in our communities and jurisdictions. It is mandated
by halakha that we do so.

I will also mention that there is good research being done which has
found that enforcement of mandatory reporting laws does, in fact, reduce
the incidence of sexual abuse. Those of us on the Nefesh International
list-serve have received some relevant references to scientific articles
which document this.

In summary I will again quote Rabbi Yitzchok Adlerstein, who can hardly
be called a 'left-winger'. He recently wrote the following:

  It is time to forever bury the myth that reports of pedophilia can be
  managed and dealt with by committees of rabbonim, even for a short
  time. It is time to bury the myth that there is a serious halachic
  barrier to going to authorities to deal with credible reports of such
  behavior. Enough baalei halacha have told us that there is no barrier.

  Choshen Mishpat 388:12 tells us that those who vex the public can
  be handed over. Any pedophile does at least that, and poses a danger
  of doing much more. Moreover, mesirah of a molester exposes him to a
  safek of danger; pedophiles pose a much greater danger level to many
  more victims.

  It is natural and good that many people were not eager to rush to
  modes of address that themselves could be too sweeping and harsh,
  with terrible consequences to people and their families. They
  thought that various types of modus vivendi were possible. By
  now they should realize that this is not true. Rabbonim
  cannot handle the issue. We have enough evidence of this..
  (http://www.cross-currents.com/archives/2011/07/14/yadeinu-shafchu-es-hadam-hazeh/#ixzz1UP7xBP8J)

Nachum Klafter, MD
Cincinnati, OH
doctorklafter at cinci.rr.com