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Mesirah: Two Contemporary Views

May 26, 2013

Guest post by Dr. Moshe Simon-Shoshan

Dr. Moshe Simon- Shoshan is a scholar and teacher of aggada. He is currently on the faculty of the
Rothberg School at the the Hebrew University and the Virtual Beit Midrash at Yeshivat Har Eztion.
He is the author of Stories of the Law: Narrative Discourse and the Construction of Authority in the
Mishnah.

Of late, the issue of mesirah, the prohibition against turning over fellow Jews or their property to non-
Jewish governmental authorities, and its applicability to Jewish communities in the Western world
today, has once again become a topic of discussion and debate in our community. Two important
rulings on the matter, by R. Yosef Shalom Elyashiv and R. Aharon Lichtenstein, deserve careful
attention.

I. R. Elyashiv’s Approach: Judicious Evaluation by the Individual

The rulings of Rabbi Yosef Shalom Elyashiv z”l have been cited by the Agudath Israel of America in
favor of the position that in any and all circumstances, before contacting the authorities, a person must
first consult a qualified rabbi. While this may be the position of some rabbis, a reading of R.
Elyashiv’s writings on the subject will show that he did not require such a consultation except in
extreme circumstances.

Volume 15 (2005) of the Torah journal Yeshurun contains a section entitled Kuntres Dam
Rei’ekhacontaining the responsa of numerous contemporary scholars regarding the laws of mesirah.
This collection contains two recent responsa from R. Elyashiv. In the first responsum, R. Elyashiv
responds to a query from R. Shraga Feivel Cohen requesting general guidelines regarding reporting
child molesters to the authorities. R. Elyashiv concludes as follows:

Thus, all this [i.e. the argument above] only permits informing the authorities in a situation in which it
is clear that [the person in question] did in fact do this deed (yado ma’al) and in this case there is in
fact an aspect of tikun olam (fixing or maintaining the world). However, with regard to the question of
whether to permit [reporting] where there is not even raglayim le-davar (lit. “legs to the matters,” i.e.
reasonable cause to suspect wrongdoing) but merely some vague suspicion (dimyon, lit. imagining) ,
not only is there no tikun olam but rather there is destruction of the world in this case as it is possible
that because of some student’s grudge against a teacher, a student may [falsely] accuse the teacher or
because of some baseless suspicion (dimyon shav) a person could be placed in a situation in which he
is better off dead, though he is innocent of wrongdoing and I see no place to permit this. (Original
Hebrew link)

There is some ambiguity here in R. Elyashiv’s formulation as to the exact level of certainty necessary
to turn a suspected abuser in to the authorities. However, it is quite clear that Rav Elyashiv makes no
mention of the need to consult a rabbinic authority before doing so. Furthermore, R. Elyashiv’s use of
the term raglayim le-davar, which I have translated as “reasonable cause,” does not appear to refer to
some abstruse legal category which requires special halakhic expertise in order to apply, as has been
claimed. Rather, R. Elyashiv contrasts cases of raglayim le-davar with instances in which suspicions
are based on the flimsiest of evidence or there is some concern of malicious intent on the part of the
accuser. Raglayim le-davar appears in this context to be a commonsense category meant to exclude
baseless accusations.1 The implication throughout this passage is that the individual should use his
own judgment in deciding whether or not to report an abuser. Certainly, there will be situations in
which an individual may not be sure as to whether or not to file a report. No doubt, consultation with
an appropriate rabbinic authority would be proper in these instances. However, this is left up to the
individual’s discretion.

The clearest proof that, under normal circumstances, R. Elyashiv does not require that an individual
consult a halakhic authority before reporting an abuser to the authorities is to be found in the
responsum published immediately after the one just quoted, written in response to a follow-up
question from R. Cohen. Here, in one very specific circumstance, R. Elyashiv does require rabbinic
consultation. R. Cohen asks about a case in which a father is abusing his child. Reporting the father to
the authorities could lead to the child being removed from the home and placed in a non-Jewish or
non-religious foster family, which could have deleterious spiritual effects on the child. R. Elyashiv
concludes as follows:

As such, in each and every case an evaluation and ruling [are required] from scholars (Talmidei
Chakhamim) who are great in Torah and fear of heaven. (link)

R. Elyashiv explicitly requires consultation with a Torah scholar in complex cases such as this. This
would suggest that in more straightforward cases, about which he makes no mention of speaking to a
scholar, no such consultation is needed.

Read together, R. Elyashiv’s responsa show a clear set of concerns with regard to reporting abusers to
the authorities. R. Elyashiv is very concerned about a person being reported on the basis of little or no
evidence or false evidence. However, he does not state that it is necessary to consult a rabbi before
making such a report. Presumably, R. Elyashiv felt that individuals could make such decisions on their
own. On the other hand, when there is a concern that reporting abuse my not serve the best interest of
the victim, R. Elyashiv then requires consultation with a rabbinic authority.

II. R. Aharon Lichtenstein: No Mesirah

 I would also like to add that R. Aharon Lichtenstein has repeatedly stated that he accepts the position
that he received from his father-in-law and teacher, R. Joseph B. Soloveitchik (“the Rav”), in the
name of the Rav’s father R. Moshe Soloveitchik, that in democratic countries the laws
of mesirah simply do not apply. Thus, while in the Chareidi world this position is viewed as marginal,
in the Modern Orthodox world this position can clearly be accepted as a mainstream, if not normative
position. (This can be heard here at 36:30)

I hope that this clarification of the positions of these two great sages will help to establish the
legitimacy of calling the police in cases of legitimate concerns of abuse without first consulting a
rabbi.

‫ולא יתן המשחית לבא אל ביתנו לנגוף‬

1. Rabbi Yosef Gavriel Bechhoffer in a recent review article, also notes the ambiguity of the R.
Elyashiv’s use of the term raglayim le-davar in this teshuvah. He suggests on the basis of R.
Elyashiv’s use of the term in another context that it may mean here, “the presence of
abnormal phenomena consistent with an assertion. ” See footnote number nine of his
article. ↩

39 Responses to Mesirah: Two Contemporary Views

1. Ben Torah on May 26, 2013 at 10:30 pm

Dr. Simon is incorrect in his characterization of R. Elyashev’s view.

1. R. Eliashev clearly States:

” permits informing the authorities in a situation in which it is clear that [the person in
question] did in fact do this deed (yado ma’al)”

Thus, he ONLY allows reporting to authotlrities in a case where it is “clear” (i.e. beyond
doubt) that he is guilty of the deed.

2. Even though R. Eliashev doesn’t specify whether or not a Rabbi must be consulted, the
determination as to whether a specific situation reaches the halachic level of “raglayim
ldavar” is something few laymen can make.

2. yaakov on May 26, 2013 at 11:36 pm

Even if Dr Simon is correct in his interpretation of Rav Elyashivs views regarding

reporting molestation, I find it somewhat of a stretch to deduce a blanket psak regarding
mesirah. One can easily differentiate between molestation and mesirah regarding
monetary crimes. To try to be “medayek” in a psak regarding molestation to align Rav
Soleveitchik with Rav Elyashiv bespeaks an unease with Rav Soleveitchik being “out”
there on his own. Why? Wasn’t he great enough to rely on without twisting Rav
Elyashivs words to support him ? From all I’ve heard and read about Rav Yoshe Ber, he
 would not have been concerned about being a yachid in psak. Isn’t it time we stopped
trying to put him in the pantheon of Litvish Gedolim, a place he didn’t try to put himself?

3. Dov Kaiser on May 27, 2013 at 4:25 am

yaakov – Where does Dr Simon-Shoshan align R. Soloveitchik’s and R. Elyashiv’s

views? On the contrary, he contrasts them by admitting that R. Soloveitchik’s approach is
marginal in the Charedi world, which accepts the authority of R. Elyashiv; while R.
Soloveitchik’s view is a completely viable one for Modern Orthodox communities that
generally accept his authority.

The problem with R. Elyashiv’s responsum is that it deals only with two extreme poles,
but not the middle ground, that is, where the abuse is not clear, but there are still raglayim
l’davar.

4. meir on May 27, 2013 at 5:15 am

2. Even though R. Eliashev doesn’t specify whether or not a Rabbi must be consulted, the
determination as to whether a specific situation reaches the halachic level of “raglayim
ldavar” is something few laymen can make.

I fail to see why this should be. Is there any literature of what ragalayim l’daavar consists
of. It is always up to common sense for which one needs no rabbi.

5. DAZ on May 27, 2013 at 8:14 am

Exactly. R’ Elyashiv is describing a factual standard and there’s no reason why a Rav
would be necessary. The question is: is there enough evidence that “something”
happened not whether that “something” meet certain Halachic criteria. However, even if I
would grant that somehow a Rav can help sort out fuzzy factual questions, certainly there
are situations where raglayim ldavar is a non issue. Suppose a school teacher wishing to
make the report witnessed the base directly or saw it on the school’s closed circuit
security camera or heard the perpetrator boast about what he did. According to R’
Elyashiv what purpose would be served by consulting a Rav? There is no doubt about
what in fact happened. The only question is whether reporting is mesirah and we know R
‘ Elyashiv’s view on thy a. Yet according to the post Agudah would require consultation
with a Rav. It is here where Agudah diverges from his view.

This should be no different than checking ksamim for example. There are certainly close
questions that require the expertise of a Rav but there’s no blanket rule to take all ksamim
to a Rav regardless of nature of the kesem which is what Agudah is requiring.
 FWIW, I have actually seen the Agudah position expressed with the caveat that no Rav
need to be consulted if we are dealing with an eyewitness or a victim buy

6. DAZ on May 27, 2013 at 9:34 am

Further to my previous post, here is the more nuanced version of Agudah’s position:

“1. We need either to have witnessed the abuse take place or have raglayim l’davar, a
responsable or credible suspicion, that the abuse took place before we can call police or
CPS.

2. If you did not witness the abuse taking place but only have a suspicion, however
strong, that it happened, you must consult with a rabbi muvhak, a senior rabbi with
expertise in this issue.”

Source: http://failedmessiah.typepad.com/failed_messiahcom/2011/07/rabbi-david-
zwiebel-on-reporting-child-sexual-abuse-123.html

7. Yirmiahu on May 27, 2013 at 11:54 am

While I am extremely uncomfortable with any policy which leaves a victim’s

“permission” to report in the hands of someone else (which is even greater than my
discomfort about malicious reports), it seems to me that the presentation here Rav
Elyashiv’s view is a little tone deaf. The post argues that he permit’s directly reporting to
the secular authorities except in “extreme situations”, yet it goes on to explain that the
aforementioned case is when accusations are against a child’s parents and may lead to a
break up of their home. Although in a very real sense this is an “extreme” case,
contextually this (in my understanding) is the situation in a significant number of abuse
cases.

With regard to the R’ Lichtenstein’s view in the name of Rav Soloveitchik zt’l, it seems
to me that this is the general view of the Aruch Hashulchan. I believe that rather than just
adding another name in support of what I might, loosely, describe as the “common sense”
approach would be a critical analysis with textual evidence why we should make a
distinction between governments which give rights to the accused and those which do
not. Are all western governments the same in this regard? Perhaps a presentation which is
detailed and supported enough to distinguish between American courts and others such as
in Italy (for example only, where a recent case of international interest has revealed that
most who are charged are found guilty if only to be acquitted later but even then may
face double jeopardy charges)despite both being “modern” would lend more usefulness
to such a generalized claim.
 All in all I think (and please God hope) a better case could have been, and should have
been, made allowing abuse victim’s and those who speak for small children to go directly
to the police and other government authorities who may not be well equipped, but are the
best equipped, to deal with such charges.

8. Yirmiahu on May 27, 2013 at 12:12 pm

I should clarify that I do not mean to presume that a position giving general permission to
report to the the secular authorities in the United States should necessarily prohibit one
from doing so in places such as Italy. I probably would want such crimes reported there
too and indeed I recall there being halachic basis to report such a rodef even to less
enlightened governments. Rather, recognizing the broad scope of this position’s take on
mesirah it would be useful if such an approach was detailed enough to take such
considerations into account and arbitrate between those courts which are modern in form
only and those who actually respect modern notions of justice.

9. Elliot Pasik on May 27, 2013 at 2:53 pm

Without more explication, I don’t share the same certainty about the meaning of R’
Elyashiv’s second responsum for the simple reason that there are no explicit words in the
text about distinguishing between “straightforward” and “complex” cases. If R’ Elyashiv,
in deciding when to consult a rav, wanted to distinguish between straightforward and
complex cases, he could have explicitly written so. He did not. Another interpretation is
also possible, to wit, that when R’ Elyashiv wrote, each and every case needs a rav, he
actually meant all cases – simple; complex; intra-family; rebbe-student; teacher-student;
stranger-child; etc. I’m also dubious about categorizing sex abuse cases as simple and
complex. Each case has much ripple effect.

Another, plausible interpretation is that the second responsum, in requiring consultation

with a rav, should be limited to its facts, to wit, rabbinic consultation is required for sex
abuse cases only where child custody issues are at stake.

In my legal corner of the world, where the text of a statute is capable of being interpreted
with more than one reasonable meaning, the legislative history is then consulted –
committee reports, etc. Perhaps someone should consult with R’ Feivel Cohen, and
discuss what transpired. My hunch, however, is that we’ll never get to the bottom of this.
There are just too many factual variables underlying the abuse case(s) presented to R’
Elyashiva, and abuse cases in general.

In any event, I point out that one notable American posek, from the yeshivish corner of
the world, R’ Dovid Cohen, holds that the victim, possessed of raglayim l’davar, goes to
the secular legal authorities without the necessity of first asking a rav. Notably, Rav
 Cohen has much practical experience, being the in-house rabbinic adviser for Ohel;
Nefesh; Hatzalah.

10. mdshoshan on May 27, 2013 at 3:38 pm

Mr. Pasik,

You are distorting my words and those of R. Elyashiv.

You are nitpicking my use of the terms simple and complex which I use to refer to R.
ELyshiv’s two categories dealt with in the two teshuvot.
R. Elyashiv is clear, the only cases in which he states it is necessary to consult a rav are
those in which the best interest of the child are not clear. I do not know why you you
defending the aguda’s reading with your obscurantist conjectures.

As for R. Dovid Cohen, This is man who gives balnket heterim to steal from goyim, I
think it is very dangerous to hold him up an authority for dealing with the non Jewish
world.

11. mycroft on May 27, 2013 at 4:05 pm

From back to back posts

“Notably, Rav Cohen has much practical experience, being the in-house rabbinic adviser
for Ohel; Nefesh; Hatzalah”
“As for R. Dovid Cohen, This is man who gives balnket heterim to steal from goyim, I
think it is very dangerous to hold him up an authority for dealing with the non Jewish
world.”

Why I prefer discussing issues not people. Even bringing someone who is an authority
opens the door to negative about that person.

12. Steve Brizel on May 27, 2013 at 4:14 pm

Moshe-Fascinating article that demonstrates that there is not an awful lot of difference
between the views of RYSE and RYBS. OTOH, I object to your views of R Dovid Cohen
as someone whose views are “very dangerous”, based on a non recorded speech given on
one Shabbos. At a Nefesh conference that I attended some years ago, none less than R Dr
Avraham Twersky mentioned that victims of spousal abuse had no greater protector than
R Dovid Cohen.

13. mdshoshan on May 27, 2013 at 4:21 pm

 It is not based on one non-recorded lecture, This has been confirmed from many sources.
Gil in previous posts, as I recall has taken it for granted that this is the position of RDC.

In either event, many people testified as to why R. Dovid Cohen said in Teaneck and I
see no reason to doubt it.

I am sure that R. Dovid Cohen deserves to be praised as a protector of abused women,

but that does not make his attitudes towards goyim any less problematic.

Finally there is a *very* big difference between R. Moshe Solovietchiks psak and R.
Elyashiv, what are you talking about?

14. mdshoshan on May 27, 2013 at 4:30 pm

That is “what R. Dovid Cohen said”

15. ruvie on May 27, 2013 at 7:47 pm

Pursuant to the comments on r’ Dovid Cohen see the comment section in Marc Shapiro
latest post on seforim blog.

http://seforim.blogspot.ca/2013/05/partnership-minyanim-and-more.html#disqus_thread

16. Steve Brizel on May 27, 2013 at 8:02 pm

Moshe-RYSE’s key point is “raglayim ladavar”, which, in many, but not all cases as you
point out, obviates any need for inquiry to a rav. RYBS maintained that Mesirah has no
application in a democracy.
In particular, you wrote:

“Volume 15 (2005) of the Torah journal Yeshurun contains a section entitled Kuntres
Dam Rei’ekha containing the responsa of numerous contemporary scholars regarding the
laws of mesirah. This collection contains two recent responsa from R. Elyashiv. In the
first responsum, R. Elyashiv responds to a query from R. Shraga Feivel Cohen requesting
general guidelines regarding reporting child molesters to the authorities. R. Elyashiv
concludes as follows:

Thus, all this [i.e. the argument above] only permits informing the authorities in a
situation in which it is clear that [the person in question] did in fact do this deed (yado
ma’al) and in this case there is in fact an aspect of tikun olam (fixing or maintaining the
world). However, with regard to the question of whether to permit [reporting] where
there is not even raglayim le-davar (lit. “legs to the matters,” i.e. reasonable cause to
suspect wrongdoing) but merely some vague suspicion (dimyon, lit. imagining) , not only
is there no tikun olam but rather there is destruction of the world in this case as it is
possible that because of some student’s grudge against a teacher, a student may [falsely]
accuse the teacher or because of some baseless suspicion (dimyon shav) a person could
be placed in a situation in which he is better off dead, though he is innocent of
wrongdoing and I see no place to permit this. (Original Hebrew link)

There is some ambiguity here in R. Elyashiv’s formulation as to the exact level of

certainty necessary to turn a suspected abuser in to the authorities. However, it is quite
clear that Rav Elyashiv makes no mention of the need to consult a rabbinic authority
before doing so. Furthermore, R. Elyashiv’s use of the term raglayim le-davar, which I
have translated as “reasonable cause,” does not appear to refer to some abstruse legal
category which requires special halakhic expertise in order to apply, as has been claimed.
Rather, R. Elyashiv contrasts cases of raglayim le-davar with instances in which
suspicions are based on the flimsiest of evidence or there is some concern of malicious
intent on the part of the accuser. Raglayim le-davar appears in this context to be a
commonsense category meant to exclude baseless accusations.1 The implication
throughout this passage is that the individual should use his own judgment in deciding
whether or not to report an abuser. Certainly, there will be situations in which an
individual may not be sure as to whether or not to file a report. No doubt, consultation
with an appropriate rabbinic authority would be proper in these instances. However, this
is left up to the individual’s discretion.

The clearest proof that, under normal circumstances, R. Elyashiv does not require that an
individual consult a halakhic authority before reporting an abuser to the authorities is to
be found in the responsum published immediately after the one just quoted, written in
response to a follow-up question from R. Cohen. Here, in one very specific circumstance,
R. Elyashiv does require rabbinic consultation. R. Cohen asks about a case in which a
father is abusing his child. Reporting the father to the authorities could lead to the child
being removed from the home and placed in a non-Jewish or non-religious foster family,
which could have deleterious spiritual effects on the child. R. Elyashiv concludes as
follows:

As such, in each and every case an evaluation and ruling [are required] from scholars
(Talmidei Chakhamim) who are great in Torah and fear of heaven. (link)

R. Elyashiv explicitly requires consultation with a Torah scholar in complex cases such
as this. This would suggest that in more straightforward cases, about which he makes no
mention of speaking to a scholar, no such consultation is needed.

What the is practical difference between the two positions in most cases?

“Testimony” IMO implies sworn testimony in a court, as opposed to chatter here and
elsewhere on the net. FWIW, R David Cohen wrote an excellent sefer on Tefilah that was
published by Yad HaRav Hertzog last year.
17. Steve Brizel on May 27, 2013 at 8:09 pm

FWIW, I am sure that most posters here can tell you that while seeking to minimize one’s
tax liability is as American as apple pie, the perpetrator of tax fraud generally winds up in
a Federal peniteniary-and that a jury is the final judge of whether a person is engaging in
a legitimate means of reducing one’s taxes or not.

18. YH on May 28, 2013 at 10:00 am

Mr. Brizel, R. Cohen was not talking about aggressive planning – he made it very clear
that he was speaking about outright tax fraud on his visit to Bergenfield. His views on tax
fraud and stealing from goyim are very well known, and there is no shortage of people
who are familiar with them. So let’s not debate what his views are – they are facts (unless
he has changed his mind recently). We can debate whether his views disqualify him from
being a halachik authority but let’s not debate the facts. By the way, RHS and RAL have
both been very outspoken to the effect that a person that has R. Cohen’s views regarding
tax evasion and gezel akum is beyond the pale, irrespective of his Torah knowledge.

19. Elliot Pasik on May 28, 2013 at 10:47 am

Dr. Simon-Shoshan -

You’re not the first academician nor rabbi to complain about a lawyer’s nitpicking (a
term often used, e.g., by the lay public when a lawyer tries to void a contract for non-
substantive, trivial cause). There perhaps needs to be more education about the real
function of lawyers. Particularly in the toxic world of child sex abuse, we legal
practitioners need as much precision as possible in all terminology in both the secular and
religious worlds. Ambiguity in statutes, responsa, and the many commentaries (such as
yours) in print and on the web does not serve our society well. Clear advice about the
demands of secular law and halacha serves to protect our children. I add that irrelevant,
excessive and ad hominem criticism of either secular or rabbinic leaders and advocates is
a distraction. At times, quite frankly, even valid criticism may need to be somewhat
muted in order to accomplish real goals.

There’s much more to be said about the interpretation of Rav Elyashiv’s responsa. Some
issues are his Israel venue; whether he was aware of the startling extent of the problem in
America; his knowledge of the psychology of sex offenders, their predilection for repeat
offending, and lack of a cure; the long-term damage inflicted on victims (psychological,
neurological, drug and alcohol abuse, shortened life spans); the ripple effect of damage
done to victims’ families; his knowledge of American secular law – e.g., civil damage
remedies, mandated reporting; the manner in which the issues were presented – was it R’
Feivel Cohen alone, and if so, what was presented, how much time was allotted, etc.
 Aguda’s interpretation, on July 22, 2011, of Rav Elyashiv’s opinion is here, where all
cases go to a rav, without qualification or categorization of type of case, and I strongly
disagree with it:

http://www.cross-currents.com/archives/2011/07/22/agudath-israel-statement-on-
reporting-suspicions-of-child-abuse/

A few days later, RCA responded, on July 25, 2011. Any person who has “reasonable
suspicion” of child abuse is obligated to report to the government. If you are “uncertain”,
you should use “common sense”, and feel free to consult with lay and rabbinic experts.
http://www.rabbis.org/news/article.cfm?id=105641

The July 25, 2011 RCA Resolution has a link to a 2010 Resolution where the RCA
clearly and unambiguously holds that mesirah does not apply to child abuse; and that
2010 Resolution has a link to a 2003 Resolution which holds the same.

The clarity of the RCA Resolutions is appealing, and extraordinarily helpful to rabbis,
lawyers, advocates, mandated reporters, survivors, children, our entire community, and I
am in accord wholeheartedly with them.

By contrast, I have been and continue to be a relentless, substantive critic of Agudath

Israel, approaching nearly a decade now. For one recent example, you can review the 30
page complaint I filed in federal court against the NYS Legislature, for refusing to extend
all child safety law protecting public school children to the nonpublic schools. The
complaint places heavy blame on the extremist Agudath Israel for blocking this
legislation.

http://www.vosizneias.com/122360/2013/01/23/new-york-yeshiva-parent-sues-state-for-
tighter-school-safety-regs-invoking-kletzky-tragedy/ool child protection laws to the
religious and nonpublic schools.

From your position as an academic leader, I hope that you can continue to raise public
consciousness on our critical child safety issues, and make our world safer for our
children.

20. hagtbg on May 28, 2013 at 11:04 am

Elliot Pasik, you were to kind to Dr. Simon-Shoshan for his accusation that you were
distorting his words and those of r’ Elyashiv and “nitpicking.”

Dr. Simon-Shoshan, provided the translation of a second psak of R’ Elyashiv as follows:

“As such, in each and every case an evaluation and ruling [are required] from scholars
(Talmidei Chakhamim) who are great in Torah and fear of heaven.”
 From there Dr. Simon-Shoshan reassures us that R’ Elyashiv was limiting it to a certain
subcategory of abuse (parental) but provides no substantive basis of that.

You then properly noted that without “explication” there was no certainty provided to the
reader that Dr. Simon-Shoshan was correct.

And then, rather then address your proper point, you are accused of nitpicking!

Dr. Simon-Shoshan, no one accused you of being wrong. What Elliot Pasik properly
noted is that right now the reader is relying on your say-so here and nothing more. You
simply have not provided enough context. And even having had it pointed out to you in a
respectful manner, you still have not.

Rather then attempt to shoot the messenger of a rather simple point, you could have tried
to provide the details to show that you are correct.

21. DAZ on May 28, 2013 at 1:08 pm

The basis for Simon Shoshan’s point, I believe, is the context of the quoted passage. It
comes after a paragraph where he explains the various dangers involved in in pulling a
child out of a religious home. It therefore makes sense to interpret the statement
afterwards reagrding bringing “each and every case” to a rabbi as applying to situations
where the aformentioned danger exists. That being said, Simon-Shoshan’s statement that
the second teshuvah is “clearest proof that, under normal circumstances, R. Elyashiv does
not require that an individual consult a halakhic authority before reporting an abuser to
the authorities” is overstating the case (and his attack on Rabbi Pasik is very
unprofessional and uncalled for).

22. diament on May 28, 2013 at 2:58 pm

See also a shiur and essay from Rav Hershel Schachter on this topic: the audio/video
shiur isRav Hershel Schachter
Should I Call the Police? Clarifying the Issurim of Mesira and Chilul Hashem (be sure to
listen to the Q&A after!), the follow-up essay is Regarding Mesirah.

23. Joseph Kaplan on May 28, 2013 at 3:11 pm

I was a bit taken aback at Dr. Simon-Shoshan’s intemperate and discourteous response to
Mr. Paik’s thoughtful and courteous comment. I admit my biases: I’m also a lawyer. I
think that to consider Mr. Pasik’s analysis “nitpicking” misses the boat. This is a complex
and delicate issue which requires clear statements of one’s position on how such matters
should be handled. RYSE’s two teshuvot, as presented, are, unfortunately, far from clear.
 Some of the open issues and ambiguities were pointed out by Mr. Pasik. Perhaps Dr.
Simon-Shoshan’s understanding of RSYE’s position is correct, but I, for one, was not
convinced. It would be much more constructive to deal with the substance of that analysis
and to come to grips with the problems rather than to bash the messenger.

24. mdshoshan on May 28, 2013 at 3:11 pm

Mr. Pasik,
I respect your expertise as lawyer and your relevant experience as an advocate for abuse
victims. But the question at hand is one of halakhic jurisprudence and hermeneutics,
which are in many ways very different from those of the American legal tradition you
studied and practice.

I agree that unfortunately R. Elyashiv’s psak is ambiguous here. However I thinkt hat
certain basic perameters are clear.

My reading of R. Elyashiv’s psakim are based on a reading of the two texts in their
entirety and not the the just the brief quotations I cited. I linked to the complete original
texts and the reader is welcome to inspect the evidence and evaluate my interpretations
and to propose alternate interpretations based on a close reading of the text in question. I
am not asking any one to take my word on anything.

My conclusions about R. Elyashiv’s position are shared by Rabbi Professor Michael

Broyde (personal communication- to be clear I am appealing to Rabbi Broydes academic
expertise, not his authority as a posek, as such any discussions about the possible impact
of his recent fall from grace for his status as a moreh horah, are moot to this discussion)
R. Bechhoffer in the above cited article also concurs with at least the the key premises of
my argument.

You are free to challenge to R. Elyashiv’s competence to issue psak on the situations at
hand. But it is entirely irrelevant to the question of What R. Elyashiv actually said, which
is the only issue under discussion.

I am sorry if I have been uncivil, but I think that there is a lot at stake here and it is
important to make clear that the agudah is not being forthright in its presentation of its
position on Mesirah. Something stinks here.

25. mdshoshan on May 28, 2013 at 3:26 pm

i of course meant that something stinks with the aguda’s statements not with Mr. Pasik.

26. hagtbg on May 28, 2013 at 3:54 pm

 My hebrew isn’t great but I agree that the psak only apply to parental abuse and that was
all he was discussing. However, that is not to say that he limited going to talmidei
chachamim to only those circumstances. How can you tell one way or another? I saw no
qualification. It seems to me you are taking one interpretation and Agudah another but –
however strong the policy issue – it is just conjecture what R’ Elyashiv thought (at least
on the basis of this one psak) and you indeed concede it is ambiguous.

You used this as a proof that R’ Elyashiv does not otherwise require going to a talmid
chacham but I don’t see it.

Once someone is demonstrated to have tampered with the mesorah in a dishonest fashion
(and certainly when they do it more then once), I do not believe they can be relied upon
any further. To my knowledge, no real defense to the fairly credible claims made has
been raised.

27. mdshoshan on May 28, 2013 at 4:30 pm

The teshuvot need to be read as a unit. One was written as a follow up to the other, both
to the same person. Read together, R. Elyashiv gives one psak in one case and a different
one in the other. Only in the second case does he require consulting a rabbi

Also, the aguda is not referencing the second teshuva. they are citing snippets of the first
teshuva out of context.

28. Elliot Pasik on May 28, 2013 at 5:31 pm

Moving forward, and putting the dust-up behind us, Dr. Simon-Shoshan’s interpretation
of the two teshuvot is, as I originally wrote, plausible – indeed, fair and logical (that pre-
reporting parent-child abuse to the government, you ask a rav for permission). The
problem which, I think is now acknowledged, is that there is wiggle room, and other non-
frivolous interpretations of the teshuvot are possible.

I am also not disputing the “competency” of R’ Elyashiv. I am, however, challenging, in

legal terms, both his jurisdiction to rule on this issue outside Israel; and, if it was intended
that a rav always must be consulted on abuse cases, I am challenging that decision on the
merits. I do not accept R’ Elyashiv, alone, as the sole rabbinic arbiter in the world on
these issues.

29. Fotheringay-Phipps on May 28, 2013 at 5:48 pm

mdshoshan’s reading of these t’shuvos is completely incorrect, and ignores the context of
RE’s writing.
 The statement that “Rav Elyashiv makes no mention of the need to consult a rabbinic
authority before doing so” ignores the fact that he was writing to a rabbi who had
presumably been asked in the case at hand, and – more importantly – that the entire basis
for his heter to report was that “Chachmei Yisroel” have the right to take extra-judicial
measures in the name of “tikun hador”. It’s inconceivable that RE meant that any random
person has this right – this would mean complete anarchy – and at any rate, he certainly
could not establish this from the Rashba that he cited, which was discussing the actions of
a BD.

[Note: this does not mean that RE would definitely not allow an ordinary person to take
this step under any circumstance - there might be another rationale that would apply in
other cases. Just that the rationale he used in this t'shuva is clearly based on rabbinic
authority.]

The diyuk that mdshoshan is making from the second t’shuva is also baseless. The reason
he raised that issue in the second t’shuva and not the first is because in the second t’shuva
he did not actually answer the question and was explaining why. His answer amounted to
“I can’t provide a practical answer to this question because it depends on the facts of each
case, and TC need to sift through the details”. In the first t’shuva, he established a more
general halachic principle, and did not need to make the same statement in context.

Regarding exactly how much knowledge you need to have of guilt in order to report
(regardless of who makes the determination, I agree with those who say that his language
is ambiguous. There is a lot of room between “hadavar barur” and “ein afilu raglayim
ledavar”, and it’s unclear how these cases would be treated.

30. groinem on May 28, 2013 at 6:30 pm

One would wonder what any of the esteemed commenters would say were a family
member of his to be accused of child abuse. Would they say “let a jury of laymen
decide”? Or would they prefer some common sense analysis of the evidence before the
accused’s reputation is dragged through the mud?
Recent events have shown that the US Justice system is not positioned to judge such
stories accurately. I don’t have a better system, but the fact that so much relevant
evidence is allowed to be suppressed to protect the victim should remove the trust we
have in the system. Do you think Weberman would have been convicted had the jury
known the motives allegedly attributed to her vendetta against him? If not, then his
conviction is unjust, regardless of other evidence various activists have against him.
An accusation of child abuse is enough to ruin someone’s life. A child’s life is not more
valuable than an adult’s and all that is needed to afford the adult the same protection as a
child is an outside analysis of the evidence before proceeding to the authorities. I fail to
see how anyone would find that unacceptable.
Did RYBS know the intricacies of US law? Did he know the prejudices juries are wont to
bring to the bench? Did he know the legally sanctioned suppression of evidence taking
place in court? These questions must be asked before quoting his opinion.
 BTW, the reason a molester is a rodef is not because he may cause a victim to become
suicidal/drug-dependent or a damaged individual. Those are subjective outcomes that are
not even fully supported by the evidence. The reason he is a rodef is because he is ‫רודף‬
‫ אחר הזכר‬which is included in the list in the mishna sanhedrin 73b as ‫ניתן להצילו בנפשו‬.

31. emma on May 28, 2013 at 6:48 pm

” Would they say “let a jury of laymen decide”? Or would they prefer some common
sense analysis of the evidence before the accused’s reputation is dragged through the
mud?”

I do not understand how “some common sense analysis” excludes “laymen.” IT would be
reasonable to say “seek counsel with a neutral party before following doing something
drastic.” What that has to do with getting permission from rabbis to consult secular
authorities is unclear at best.

Same re: “all that is needed to afford the adult the same protection as a child is an outside
analysis of the evidence before proceeding to the authorities.” First, how is this so? Are
you assuming the potential reporter is the parent and is therefore biased? If so, why does
the neutral party need to be a rabbi? What if the reporter is a teacher or therapist or other
already neutral third party?

32. emma on May 28, 2013 at 6:53 pm

“Do you think Weberman would have been convicted had the jury known the motives
allegedly attributed to her vendetta against him?”

Umm…I didn’t follow the case that closely but I believe the defense did question here
about those motives.

33. groinem on May 28, 2013 at 7:08 pm

Emma – the belief is that outside authority should examine the evidence first. The Rabbi
is not endowed with any extra powers. He is the leader trusted to be un-biased and
humble enough to pass up the question if he has no idea what to answer.
The laymen in the jury was a charitable expression. I meant people too unsophisticated to
get out of jury duty. Most people I know never do jury duty because they get out of it.
We end up with a disproportionate amount of uneducated/jobless people on juries.
I do not mean that the reporter is biased because he is a parent. He may be biased because
he is from the “throw the bums into jail camp”, he may be unreliable because he doesn’t
understand the facts, he may be too close to the child or too against the alleged
perpetrator to be able to have a clear opinion.
 There is nothing inherent in the name teacher or therapist that should inspire public trust.
If someone is doing something to somebody else, they should have to allow that person to
have a chance in front of someone he can trust. Ergo, a Rabbi should be the best option.

34. groinem on May 28, 2013 at 7:11 pm

Emma – Rabbi Weberman had clear video proof as to her motives. It was not admitted to
court because of victim’s protection statutes.
In an imaginary case: if a woman were to accuse a man of rape. That man had proof that
the woman was extremely loose and was regularly drunk. He claims that she was drunk
with him at a party and whatever happened was consensual. She claimed that she was
chaste and pure and was saving herself for an arranged marriage. The man would not be
allowed to bring his proof to court and the main thrust of his defense would be
suppressed. That is what I meant.

35. Yosef Blau on May 28, 2013 at 7:19 pm

The phrase ‫ רגלים לדבר‬is found in the Mishna and clearly means circumstantial evidence.
Apllying it to this case where someone suspects abuse but is not the victim whicht
usually refers to an adult,parent or teache,r, hearing from a child about having been
abused.it can be understood three ways. The person himself or herself uses nowledge
about the child and the circunstances to decide. Alternate he consults an expert on abuse,
a psychologist , psychiatrist or social worke. The third possibility is consulting a rabbi.
The first is most likely because there are halakhic expressions that would have been used
for the other possibilities.Between the two alternate possibilities since what needs to be
determined is credibility not halakha using the expert is more likely to be what Rav
Elyshiv meant.

36. emma on May 28, 2013 at 7:31 pm

“The laymen in the jury was a charitable expression. I meant people too unsophisticated
to get out of jury duty. Most people I know never do jury duty because they get out of it.
We end up with a disproportionate amount of uneducated/jobless people on juries.”

interestingly, i believe that studies of judges show they generally agree with jury verdicts,
putting the lie to the “juries are too stupid to get things right” meme…

as for weberman, the jury knew of the tape, i believe, and the fact of its existence or basic
content were not disputed. hence they knew of the alleged motive. how showing the tape
itself is remotely relevant is beyond me. there are some applications of the rape shield
law that leave a bad taste, but this is not one of them.

37. Steve Brizel on May 28, 2013 at 9:00 pm

 YH wrote in relevant part:

“Mr. Brizel, R. Cohen was not talking about aggressive planning – he made it very clear
that he was speaking about outright tax fraud on his visit to Bergenfield”

Again, only a jury can decide the difference between the same.

38. J. on May 29, 2013 at 2:48 am

Groinem – The idea that a rav affiliated with Satmar (after all that’s who they would have
gone to in the Weberman case) is the best person to go to for objective and unconflicted
advice on reporting abusers is delusional, to put it mildly. I have had sufficient dealings
with Satmar over an abuse issue to know that anyone who writes that their rabbanim are
likely to do a better job of bringing perpetrators to justice than trained professionals and
the court system is quite simply lying.

39. mdshoshan on May 29, 2013 at 4:47 am

F-P
“It’s inconceivable that RE meant that any random person has this right [to decide to report to the
authorites m.s.] – this would mean complete anarchy”

http://www.youtube.com/watch?v=1-b7RmmMJeo

‫עיין שם ודוק‬

That being said, I think that you argument from the Rashba cited is cogent misevara. If all we had was
the first part of the teshuva we might come to this conclusion.I am surprised that it has taken so long
for this argument to be raised. However, Ikkar Chaser mihasefer. RYSE never states such a
requirement in his formulation of his psak. Your reading would render R. ELysahiv’s psak not simply
ambiguous, but incompetently written. How could a posek fail to explicitly formulate the key
requirement of his psak? as we see in the second part of his correspondence, in a case where he thinks
consultation is needed, he does not hesitate to spell it out in no uncertain terms.

However, if this is the aguda’s understanding of the teshuvot, they are still not being upfront about
their position. The aguda insists consulting an authoritative rabbi serves merely to evaluate the status
evidence to protect innocents from false accusation. However, role of the beit din in the Rashba is not
to evaluate evidence (the rashba assumes the validity of the evidence as a pre-requsite to his psak) but
to exercise its juridical and legislative authority in order to maintain order in society. The implication
here would be that individuals cannot go to the police on their own, because they are subject of the
authority of Beit Din and do not have the power to legitimize extra legal behavior such as involving
out side authorities. This is indeed consistent with the agudas insistence on rabbinic approval even in
cases where no expert halakhic evaluation is warranted. It would also explain why the aguda cannot be
forthright about the reasons for their psak. What they are essentially saying is that they view the frum
community as an autonomous entity and do not unreservedly accept the right and responsibility of the
state and federal governments to investigate and prosecute crimes with in this rabbinic jurisdiction.
Of course if they said this in public, they would be opening them selves to potentially disastrous
political, civil and perhaps criminal liability.