A person believes that she or he has been touched or violated in an unwanted, unsolicited, halakhically forbidden, and therefore abusive fashion. To report or not to report? Is there any reason in Judaism not to go to the police? Should Jewish law ever trump civil law in criminal matters?
[Administrator's note: Related questions appear at:
http://www.jewishvaluesonline.org/question.php?id=700
http://www.jewishvaluesonline.org/question.php?id=500]
Because we publicly spoke out against Rabbi Freundel, and supported the allegations against him, we have been made to feel unwelcome in our Orthodox synagogue. The rabbi specifically told us not to speak about the allegations against Freundel, which he considered to be lashon hara. http://www.myjewishlearning.com/blog/the-torch/author/emmashulevitz/
THE QUESTION:
A person believes that she or he has been touched sexually in an unwanted, unsolicited, halakhically forbidden, and therefore abusive fashion.
The Orthodox rabbinic institutional establishment argues
1. it is forbidden to inform the Gentiles of the bad acts of a Jew. It is proper to suffer in silence.
2. Even if you really were sexually abused, how can you and how dare you shame the Orthodox community by airing dirty laundry in public. Your complaint makes our crowd look bad. Do the right thing and do not foul our communal nest.
3. Great rabbis have ruled that we consult them and not to the police when there are complaints of sexual abuse. You cannot know the consequences of your going outside the community in order to find satisfaction for your complaint. Are you prepared to compare your simple-minded, naive reading of the Torah to those great rabbis who forbid your going to the police with your complaint.
4. Worse than being sexually abused in private is shaming the entire Orthodox community and its rabbinic leadership in public. Since a sincerely Orthodox would not shame the community, we as an Orthodox community will shun you socially for bringing us, your friends, neighbors, and holy rabbis, to shame—and to account.
ONE MODERN ORTHODOX ANSWER
1. According to normative Orthodox Jewish Civil Law, Hoshen Mishpat 425:1, instances of sexual abuse are supposed to reported to the civil authorities. Deuteronomy 13:1-6 reminds Jewry that Torah law is absolute, i.e. not allowing for change on the part of false dreamers, prophets, or, for that matter, institutionally affiliating Orthodox rabbis who are so great that they get to cherrypick the quotes that justify their special situation.
2. When the law of pursuer, i.e. the case of an endangering, threatening person, conflicts with the law of the informer, i.e. a person tattling to the Gentile authorities regarding the misdeeds of a Jew, the law of the pursuer, that requires that the threatening offender be stopped at all cost, prevails. In Judaism, innocent people have rights, too.
3. Core Jewish law really is humane, logical, and reasonable. But this Core Jewish law has been superseded, suppressed , and for those reasons, un-discussed.
4. Judaism is about “doing the right and the good.” [Deuteronomy6:18]. Looking good while acting badly looks bad in God’s eyes. We are required to pursue justice [Deuteronomy 16:20], not each other. An Orthodox community that forbids mixed dancing while tolerating mixed groping is unorthodox in, and of, the extreme. Before throwing our first stones, we should be in God’s grace without sin. An Orthodox community that wants to be free of shame will take the steps, and its risks, to shame its shameful offenders.
5. An informed, observant Jew will follow the divine Law, not the mindless herd. Let's learn this Core Jewish law together. It has been asked, “is it possible that all Jewry really be wrong, when our pious rabbis tell us not to tattle to the authorities and rattle our communal cage?” Not only does the Hoshen Mishpat 425:1 say that we all may be wrong, the Bible at Lamentations 5:7 and Leviticus 4:13 say so as well. So let us protect the innocent, comply with Hoshen Mishpat 425:1, and obey God.
6. If we do not want to have our dirty little—and large—misdeeds discussed in public, we would do well not to do those deeds even in private.
A person believes that she or he has been touched or violated in an unwanted, unsolicited, halakhically forbidden, and therefore abusive fashion. To report or not to report? Is there any reason in Judaism not to go to the police? Should Jewish law ever trump civil law in criminal matters? [Administrator's note: Related questions appear at: http://www.jewishvaluesonline.org/question.php?id=700 http://www.jewishvaluesonline.org/question.php?id=500]
Response:
The question is puzzling, because to answer it, one would need to know some missing important and relevant detail. The questioner specifically seeks guidance about going to the police to report abuse. The police are agents sworn to uphold the laws of our civil society, but not the halakhah. Hence, secular definitions of abuse will be pertinent to an answer, and expert American legal advice, in addition to rabbinic responses, will be necessary.
Among the information that would allow for a fuller response: Was the unwanted and unsolicited touching deliberate or accidental? Did it consist of actions that would register as abuse in the secular law, such as groping? Or was it action that would not necessarily rise to that level, but which may have offended the questioner, such as a handshake for a person who observes a strict interpretation of the prohibition of physical contact between unrelated males and females? (These are extremes, but there are obviously intermediate situations.) Was the unwanted physical contact part of an initial meeting, or an unwelcome development of an existing relationship? It is possible to envision certain acts where even one infraction merits legal action, but other actions that would be best handled by the delivery of a sharp rebuke. Where on the spectrum did this event fall? If it was in the less-than-criminal part of the spectrum of behavior, did the questioner rebuke the other party? And if so, what was the result? And most generally, the questioner states “having a belief” that she or he was victimized thus; is this assertion one that would be beyond dispute before a reasonable auditor, or would the accused be able to offer a plausible alternate interpretation?
These points are not intended as a reproach to the questioner. It may be that, due to its public and written format, Jewish Values Online is not the best channel for airing that additional information. I would urge the questioner to find a trusted and learned Jewish advisor for a conversation to explore the question in more detail.
Nonetheless, there are nonetheless some general points worth stating, in the hopes that they will be helpful to the questioner.
Let us reaffirm the importance of respecting the physical body and intimate space of others. The general and overriding mitzvah, v’ahavta l’reakha kamokha, “Love the Other as yourself”, teaches us to treat the integrity of another person’s being with utmost respect. More specifically, the Jewish value of tzeni’ut, “modesty”, extends to prohibit interacting with another person’s body in an inappropriate manner.
Similarly, the mandate to love the other as one loves himself or herself applies in situations where a physical act caused mental anguish, whether or not it would be judged as abuse in a secular legal venue.
Regarding the “synagogue/state” dimension of the inquiry about going to the police, one senses that here, too, important aspects of the question lie beneath the surface. Is the questioner wrestling with the pre-modern Jewish taboo against archaotehem shel goyim, the prohibition against resorting to Gentile courts? That taboo reflected the medieval political and social reality of Jews having less than equal standing in courts presided over by members of a hostile majority culture. It is not a relevant factor in deciding whether to resort to the American legal system. While the United States continues to grapple with issues of class and ethnicity, both in and out of the courtroom, the promise made by President George Washington to the representatives of the synagogues of our country, that this country “gives to bigotry no sanction, to persecution no assistance” is the dominant reality for Jews in the American legal system.
Or perhaps the questioner is concerned about the issue of motzi shem ra’, spreading an evil report about a fellow Jew in the broader society? Here, if the questioner is justified in believing that abuse has taken place, exposing the guilty party is a matter of justice, not of slander. But again, to ascertain whether the courts are the right venue for that, the questioner should get legal advice from American legal practitioners.
The questioner also poses a broader inquiry, albeit one stemming from this particular situation: Regarding Jewish law and civil law, in the American context, the Talmudic principle dina d’malkhuta dina, “the law of the land is the law” is the first applicable dictum. Jews are bidden to uphold American law. That principle was first enunciated by the Babylonian Rabbi Samuel in the third century, in order to reach a modus vivendi with a new Persian regime. The principle is all the more applicable today, because the areas of difference between the American legal system and the halakhah do not amount to an attack upon the integrity of Judaism. The First Amendment of our Bill of Rights guarantees us protection from a state-imposed religion as well as the free exercise of our religion, and the U.S. Supreme Court has relied on those guarantees to strike down certain American laws, such as the mandatory reading of Christian biblical texts in public schools, that were hostile to the practice of Judaism. This is worth emphasis, because precisely in that part of the Jewish community most committed to the observance of halakhah, there is sometimes a lamentable lack of energy for the implementation of the Talmudic respect given to the laws of the secular society of which we are citizens.
Therefore, if in the situation giving rise to the question at hand, the alleged offender has indeed committed an action that violates American laws, the victim not only may report it, but ought to do so.
If it should turn out, on the other hand, that this is not a criminal matter by American standards, then there are halakhic recourses available, varying with the particular faith community in which the questioner lives. For the Orthodox, there is the option of summoning an offender to a din torah. For the non-Orthodox as well as the Orthodox, there is the social sanction of the community, expressed in synagogue norms.
Finally, if the questioner finds herself or himself in a subcommunity of faith where real abuse (sadly and typically on the part of males in positions of authority, with females or underage males as the victims) is winked at, then I sincerely wish Heaven’s blessings of strength and courage for this individual, to be able to sound the alarm and help raise consciousness about an abuse of the system that needs correction, so that all other abuses can not thrive.
(This answer, necessarily brief and sketchy, is based upon the CCAR responsum no. 5757.1, available in Reform Responsa for the Twenty-First Century (New York: CCAR Press, 2010), vol. 1, pp. 347-356. See that responsum for a fuller discussion, along with citation of halakhic sources.)
The victim of sexual harassment may – or may not - have valid reasons not to report that harassment to the police. But Jewish law is not one of those reasons. To answer your question precisely, Jewish law does not “trump” civil law in criminal matters. When a Jew commits a crime, there is no halakhic prohibition against reporting that act to the authorities, especially in a democratic society where Jews enjoy equality and the full rights of citizenship.
The relevant principle here is dina d’malkhuta dina, “the law of the state is valid law.” According to that principle, which occurs several times in the Talmud, Jewish law recognizes the halakhic validity of a wide range of actions taken by non-Jewish legal authorities in the sphere of civil, criminal, and monetary law. Now this recognition has its limits; not every act of non-Jewish authorities is accepted as valid under the halakhah. Our tradition does not accept the right of the civil government to intervene in matters that pertain exclusively to matter os isur v’heter, Jewish ritual law. And even in non-ritual (“civil”) matters, the halakhah accepts the validity of the law of the state – dina d’malkhuta – only when it is truly “law,” that is, when it falls within the confines of legitimate state authority. State authority is “legitimate” when it serves ends that are traditionally recognized as part of government’s proper function: for example, laws that levy taxes, that provide for the public welfare, that regulate property, contracts, and business activity, and so forth. So long as these laws apply equally to all citizens and draw no unfair distinctions among them, they are regarded as valid under the halakhah, simply because political communities are entitled to legislate in these areas.
One of the spheres of legitimate governmental authority is that of criminal conduct. All states are empowered – indeed, they are obliged – to protect their people against violations of their persons and property. Laws that define and punish the offense of sexual harassment clearly and obviously come under this rubric. They are proper expressions of legitimate state authority, and for that reason they are regarded as valid under Jewish law.
One occasionally will hear, in objection to the above, the argument that Jewish law prohibits us from surrendering a fellow Jew to the jurisdiction of Gentile courts. Such a prohibition, if it exists in theory, cannot seriously be said to apply to the legal system of a state in which we Jews enjoy equal rights and full citizenship. The law courts of such a country are not “Gentile” courts; they are our courts, belonging to us no less than to anyone else. When we freely accept this citizenship and participate equally with our fellow citizens in the making of the laws, we can hardly claim that we are somehow exempt from the enforcement of those laws or that they apply to everybody but the Jews. Such a claim is absurd, even outrageous, to the point that it constitutes a chilul hashem, a profanation of God’s holy name.So long as it is legitimate in its authority and equitable in its application, the laws of the state – including the laws concerning sexual harassment – are obligatory upon us just as they are obligatory upon all the other citizens of the state.
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