No Point to Torture in Capital Cases

Forced Self-Incrimination: Just Plain Wrong

8 Shevat 5776

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The whole world (or maybe just the United Nations) is still in an uproar over the burning of a house in the Arab village of Duma in Israel about six months ago. “Beginning the morning after the murders, as the investigation was just beginning, Israeli officials and media began claiming that the perpetrators were “Jewish terrorists.”” (Abu Yehuda summarizes the background well here.) “The firebombing was quickly attributed to the movement Israelis call “price tag,” in which extremist Jews attack Palestinian holy places or property in retribution for their own government’s actions regarding settlements,” said the New York Times shortly afterwards, on 1 August 2015. Here is more background on the story from a Jew who participated in a condolence call on the community (Arutz 7).

I deliberately linked to early accounts, so that we can recall how it was then, before young Jews — both men and underage boys — were formally accused, taken into custody and, by some accounts, treated worse than Arabs in their place would be. None of this would have happened if self-incrimination and forced confessions were not allowed air time or print space in any medium in Israel — never mind in a court of law.

The Jewish Division of the Shaba”k (Israeli Security Agency) claimed that there was a need to take young, even underage Jews into administrative detention due to a “ticking time bomb” situation (possibly to be discussed in a separate post – to read the full article, I suggest the search phrase “jewish ticking time bomb” if you don’t subscribe to HaAretz. Here’s another article where the ISA admits to treating “Jewish extremists” as ticking time bombs.).

Everyone knows that the American Constitution has what is famously known as the Fifth Amendment:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

How many have internalized what the Torah and Talmud say on the matter? It is not a matter of amendment — or a tacking on, if you will — to the law for these works of Jewish law, but part of its central body: It starts with the 9^th commandment, “You shall not bear false witness against your neighbor” and goes on to say, “At the mouth of two witnesses, or three witnesses…” The repetition of the Hebrew word edim there is deliberate; there is no unnecessary word in the Torah. Could witnesses be so important that the Torah appears not to even consider not having them in a case where the accused’s life or future is at stake?

Here’s a potential hiddush: Could one say, in easy legalese, that the Torah and Talmud together imply that a person of whom a confession is demanded or required is automatically considered to be in a conflict of interest and is therefore automatically recused?

The Talmud puts it more concisely and understandably for modern readers, with the exception of the phrase mesim atzmo, which I have translated as “impute on oneself” due to its (as I perceive it) mixed verb-direct reflexive object relationship¹.

A lot of people, especially women, long ago stopped considering Torah law and governance a viable alternative to what we have now because of issues such as the plight of the agunah. I hope that now, considering the environment we live in, where the entry of Muslim men en masse all over the world is creating far worse conditions for a much greater number of women (who were accustomed to going out freely to attend to their errands, visit friends and so on virtually without concern, but now must go out, if at all, in groups, always with an eye out for trouble and, if this occurs, no help from authorities), we in Israel can look at other problems where Torah clearly shines for everyone, such as the abolishing of self-incrimination and the requiring of witnesses to acts that could land a person in jail for life or dead, whether male or female. (In fact, since there seems to be no support at all from the feminists on issues where rape and other misogynistic acts by Muslims are concerned, they have rendered themselves and their philosophy irrelevant – this news story took 20 years to break.)

There is a lot more to be discussed, which is why I have collected many Torah sites on this blog and plan to add more as I find them. In the meantime, though, it seems that making Arabs and Jews “equal” is having the effect of making Arabs “more equal” than Jews. It might be time for the pendulum to swing strongly towards advocating, and achieving, Torah governance in Israel. Until then, if the Israeli government has any sense of true democratic justice — let alone Torah justice — the case against Amiram ben Uliel should be thrown out due to his inadmissible confession.

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¹ the phrase masim atzmo (משים עצמו) in my eyes combines a hif’il (causative) verb form with a reflexive object (refers to oneself; nay, means “oneself”). Impute means to attribute or ascribe, as to a person, or in its obsolete meaning, to charge (a person) with fault. If you still have questions about this, please, feel free to go to the native Hebrew/English speaker-scholar of Talmudic Hebrew, of your choice.

I have already taken my advice and asked Reb Yehudah B. Ilan of Forthodoxy about my explanation. If and when I should receive a reply, be”H I will post it here as an update.

UPDATE: Reb Yehudah replies:

Your translation is okay, but I think that you may be over-thinking this a bit and analyzing a passage from the Gemara using the intricacies of Hebrew grammar is not usually the correct method of study. The reasons for this are that (a) the language of the Gemara is a mixture of Mishnaic Hebrew and Babylonian Jewish Aramaic – which do not follow the grammatical rules of either Biblical or Modern Hebrew, (b) most of the Talmudic text is written in scholarly turns of phrase which are not meant to be taken literally but rather have a particular legal meaning and/or a dialectal significance. This being the case, translating the Gemara is almost never a word-for-word exercise. If someone cannot interpret the text on their own, I suggest employing a standard translation of the Talmud, such as the edition published by Koren or one of the many Steinsaltz editions (I do NOT promote the use of Artscroll).

Without knowing the intent or essential message of your post, I can only explain this particular phrase as it appears in the context of b.Sanhedrin 9b.

As for the meaning of the words “mesiym `assmo rasha` – משים עצמו רשע” it can be translated here as “…place himself [in the category of] a wicked one (i.e. incriminate himself through his own testimony in court).” The phrase “mesiym `assmo” is made up of two words: [1] השים which has the simple meaning of “to place” or “to put” and [2] עצם which in Biblical Hebrew means “bone” and came to be used to signify “self.” This phrase only means “incriminate himself” in context of the discussion here in the Gemara.

On Rava’s statement, Rashi comments: “Rava says: A person cannot become invalid to testify by way of admitting his own guilt, for a person is considered to have the status of a ‘close relative’ in relation to himself. Therefore ‘a person is not able to implicate himself (lit. ‘to place himself [in the category of] a rasha`‘), that is to say on the basis of testimony about himself one is not convicted (lit. ‘made a rasha`‘) for behold the Torah invalidates a ‘close relative’ to testify. Yet the rova` (i.e. the penetrating participant in male homosexual relations – referring to a case mentioned earlier in the discussion) is put to death on the basis of such testimony since we divide his statement (i.e. ‘so-and-so penetrated me during homosexual relations and I was complicit in the act.’) and while we consider his testimony reliable with regard to the actions of his fellow, we do not consider him reliable with regard to his own actions – which would otherwise invalidate him to testify.”

Essentially, this passage is explaining that if one testified in court that he and another person willingly engaged in forbidden sexual relations together (for example – other similar cases exist as well), three things take place legally: [1] His incriminating testimony about his own behavior is not accepted as valid, [2] his testimony about the actions of the other person is accepted as valid (and may be combined with the testimony of another valid witness to effect a death penalty in the case), and [3] whereas such behavior – when attested to about him by others – would invalidate him to testify in the first place, the fact that he said it about himself does not invalidate him and he remains an acceptable witness.
This, however, only holds in capital and corporal cases – it does not count in monetary cases (see Musaf Rashi there). In other words, a person cannot incriminate himself to endanger his life, but he can incriminate himself to endanger his money. This is important to note as it means that אין אדם משים עצמו רשע is not a general, over-arching principle in halakhah, but rather has specifically-defined parameters of application.

I hope that this helps.

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So do I.

More reading:

Dani Dayan and the Threat to Israeli Democracy | B’Tselem Provocation, 2008 | Why French Jews are Lobsters (and why American Jews are next –no, that’s not really part of the title. But it is true.) | Breaking the Silence Spokesperson’s Lies Refuted by His Former Army Mates |We are Descendants of the 20% | The Plight of the French Jew | While Jews are Murdered by Muslim Terrorists the Jerusalem Post says the real threat to Jews is “Jewish Terrorists” |

Posted by CDG, Yerushalayim, Eretz Yisrael Shlemah at 1/17/2016 07:40:00 PM

From Hava haAharona, here.