Excerpts from the “If You Tickle Us” blog:
It is important to bear in mind the case that Dayan Schwarcz (DS) is dealing with, which is barely alluded to in the responsum. While the facts are not entirely clear, the following is what circulated in the community.
A 15-year-old boy from abroad, studying at a local yeshive, was allegedly sexually abused and possibly raped. In the course of the attack, the boy was injured and had to be hospitalised. The suspect, a local man approximately in his 40s, was arrested and possibly charged. As a condition of bail or police bail he was required to live under curfew conditions in one of the new Essex Charedi communities. He was eventually released, either without charge or had the charges withdrawn. The rumour mill is rife with reports of the boy being bought off by wealthy members of the community to leave the country and not return to give evidence, or possibly to withdraw his allegations altogether. The suspect allegedly admitted to rabbis the acts he was accused of but claimed that they were consensual.
Another two pertinent points are that the suspect has had similar allegations of abuse made against him over many years and that he is related by marriage to DS. The sponsor of the accused’s bail conditions is a close relative of DS.
Here is the original Teshuva by UOHC Dayan Paltiel Schwarcz:
Lemigdar Milsa (Public Policy/Crime Prevention)
The discussion begins with a discussion of Lemigdar Milsa (LM) (literally ‘to fence off the matter’). LM is a doctrine that allows for rabbinic enactments and punitive measures on public policy grounds to prevent wrongdoing and harm to the public. Such measures are in addition to the laws of the Torah and according to some opinions even where such measures violate the Torah (see here for discussion in Hebrew). LM has its origins in the Talmud (where in one incident a violent man’s hand was amputated) though its principles were elucidated in a responsum by the Rashba (Spain, 13th c.).
There is then the question of whether any BD can assume LM powers or whether the BD must also have ‘the king’s consent’ i.e. state recognition.
DS then cites the Maharam Schick (Hungary, 19th c.) that a BD should rather refrain from carrying out any punishments.
DS concludes this section, without citing any source, that even where a BD can take punitive action, this power is restricted to the BD itself executing any sentence. It is not, however, a mandate for a BD to hand over or report a criminal to non-Jewish authorities for them to punish the offender.
This last conclusion is telling. One might have thought that if a BD can in principle itself carry out a punishment even as severe as amputating a limb, then surely handing the suspect over to others to carry out a far more lenient punishment of incarceration would also be included under the LM doctrine. It should be all the more so in a country such as the UK where maximum sentences are prescribed by law and approximate likely sentences can be surmised in advance. The BD would therefore know the worst outcome to befall the suspect if convicted.
However, and like elsewhere in the responsum, wherever DS applies his own view he takes the most narrow and restrictive approach. For this purpose, he adds “for otherwise every criminal could be handed over to the authorities” which he believes cannot be right in light of “the seriousness of mesirah”. The seriousness of child abuse merits no mention anywhere.
There is also a sleight of hand here because it definitely does not follow that if mesirah is permitted for serious crimes then “every criminal can be reported”. The discussion here centres on LM, which is a power that lies primarily with a BD, and so it would be for the BD to decide which crimes to punish rather than apply it to “every criminal”.
Furthermore, checking the Maharam Schick cited, DS has committed a glaring omission. The sentence preceding the one quoted by DS states “although one should not protest against others [who carry out the punishment] and whoever carries it out and endeavours to do so is acting lawfully for he has many Halachic opinions to rely on”, nonetheless Jewish leaders should desist. DS is happy to quote that BD should refrain from punishing offenders but makes no mention of the “many Halachic opinions” to the contrary.
The real problem though with DS’s reasoning, and which applies to the entire responsum, is the absence of any discussion or even a hint at the severity of abuse, the danger and risk of re-offending and the effect of abuse on the victims. This completely taints his approach because he repeatedly applies sources and arguments to restrict or ban reporting alleged abusers without even once making any argument or quoting a single source which would allow, never mind compel, reporting such individuals to the police.
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“Applying this to our case we must consider in each such incident whether there is indeed a risk that [the suspect] will reoffend. Even where such a risk exists there is still no permission [for mesirah] unless the accused is classified as a rodef which is not always the case. This is because a rodef only applies [in the context of sexual crimes] where he is pursuing someone with whom it is forbidden [according to the Torah] to have sexual relations, and not every child abuser can be termed a rodef. Even in cases where [sexual] relations are prohibited by the Torah if it is in a manner of seduction of a godel (a child who has reached Halachic majority: 12 years old for a girl and 13 for a boy) then the law of rodef would not apply and so there would be no permission for mesirah under this category. And even if someone is classified as a rodef, mesirah would still only be permissible if there is no other way of rescuing the victim… and so if the abuser can be prevented by treatment or other means of whatever kind there would be no permission for mesirah.”
To summarise, DS excludes any reporting to the authorities of the abuse of a girl of 12 or a boy of 13 or older if it is “consensual”, because since there is no coercion the laws of rodef do not apply.
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There then follows a longer discussion on a broader principle permitting mesirah against individuals who torment the general public. This is broader than a rodef as the laws regarding a rodef are primarily concerned with violent crimes while this new principle applies also to harassment and financial harm. On the other hand it may applies only where the threat is to the public and not to individuals. The Rema broadens this principle further to cover someone involved in forgery, as he poses a financial risk to the public even if has as yet not committed a crime.
(Here too DS quotes selectively from the Chasam Sofer (Austro Hungary, 18/19th c.) and ignores that private crimes can also be reported.)
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Following the above summary, DS quotes from a letter from Rav Elyashiv to Dayan Dunner and Rav Feldman, both of the UOHC Rabbinate, where Rav Elyashiv writes that it is permitted to report an abuser if he is a public danger, it is certain that the abuse will continue and the Jewish community is powerless to prevent him. Rav Elyashiv adds that an individual cannot decide these facts on their own accord and must refer the matter to a BD who must carefully consider the facts. Anyone reporting an offender otherwise would themselves be a moser.
DS returns here to his favourite theme of the type of BD that can consider such questions and which does not appear in Rav Elyashiv’s letter nor in any of the sources cited in this responsum in relation to the principles under discussion. DS also draws attention to the requirement that there are no other means possible to prevent him from reoffending. He concludes that “in our case it is obvious that there are other effective means to prevent him reoffending in the future”.
(It is worth noting that Rav Elyashiv sent this letter to the UOHC rabbis in the 1990s in another notorious child abuse case in the community. In that case the child victims were expelled from schools and the family was hounded out of town while the accused had the full support of senior members of the community including rabbinical and lay leaders.)
DS again reminds us that even where it is permitted to report the accused, he must first be warned. For this he quotes from a source related to dangerous driving.
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The very last paragraph is headed, “There is no permission [to report] if an entire family will be destroyed” and is followed by an analogy with monetary inheritance to make the point that you cannot destroy an entire family even “to rescue the public”. Nowhere in the entire responsum is the victim’s family honoured with even a passing mention. Nor is the grave risk to the public or the nature of these particular crimes ever brought into the equation.
The valediction to the responsum is an abbreviation of “So are the words of he who seeks your peace at all times” followed by “Paltiel Hacohen Schwarcz”.
No flourishes or grace or concern or even half a word of compassion or empathy is offered to the victim who is neither mentioned nor alluded to other than the fact that he is over 13 and may have been “seduced”. And also that there are many false allegations.
Let me just again repeat that we are dealing here with a boy of 15 years old, hospitalised after a sexual attack and denied justice by the likes of Dayan Schwarcz.
