Thursday, August 18, 2011

Mesirah Madness

On the backdrop of the Levi Aron case (abducted and murdered Leiby Kletzky, July 12, 2011) the messy business of Mesirah has surfaced again, this time pointing to the sharp philosophical and principled differences between Agudas Israel and the Rabbinical Council of America. According to Rabbi Shmuel Kamenetsky of Agudas Israel, a rav (rabbi) has to be consulted prior to informing the police of a suspect in abuse, otherwise it might be considered a case of mesirah. Only a rav can adequately assess whether there is validity to the claim, according to Kamenetsky. The RCA, on the other hand, in a statement released by them confirms that if there is a suspected pedophile in the community they are obligated to be report it to the secular authorities immediately without consulting with a rabbi. Rabbi Shmuel Goldin, president of the RCA believes that if one has to err, it should be in favor of the potential victim. The two opposing views reveal the philosophical and substantive differences between the two parties.

Before getting to these differences, it would be beneficial to review the halachic sources and definition of a moser. Mesirah in Jewish law consists of informing or turning over another Jew to the non-Jewish authorities. The informer is referred to as a moser, something like a whistleblower. There is a severe prohibition against mesirah. Even if the moser is a religiously observant Jew, meticulously observing halachic practice, by being a moser he demonstrates his rejection of klal yisrael and is treated as an akum (oved chochavim, an idolater, Yoreh Deah 281:3 / Rambam Hilchot Teshuvah 3:11). However, like everything else in Jewish law, the laws of mesirah aren’t clear-cut. If a non-Jewish government official suspects that the Jewish community is withholding a suspect or vital information about a suspect this is considered a chilul hashem. In addition, if there was a criminal hiding within the Jewish community, rather than have the entire community seen as complicit by covering for him, the community is allowed to inform the authorities (Choshen Mishpat 388:2). Mesirah was treated more severely during stress periods such as during the Spanish Inquisition and in medieval Europe where survival depended on avoiding contact with government, regardless of how benign . Even if one were guilty of a crime, but because the government was anti-Semitic the fear was that the criminal would be treated harsher than what he actually deserved either by receiving a longer, harsher punishment, or abused by other inmates, turning him in would be considered mesirah. Today, however, where justice is delivered free of anti-Semitism, the rules governing mesirah have certainly changed and if there is someone within the Jewish community that is harmful or has become a public nuisance he can be turned over to the authorities at least according to the Choshen Mishpat 388:45.

This being the case the question is by what standard has Agudas Yisrael claimed that before turning a suspect over to the authorities one first has to consult with a rav. What possible insights or wisdom could a rabbi possibly have in making a determination than anyone else? I have often argued that one of the motivators of the orthodox rabbinic establishment, impotent as it is, is trying wherever possible to find a wedge by which they could increase their power. For the most part, much of their power has been eviscerated (through the empowerment of federations, social service agencies, communal leaders as well as an educated lay community) and the little power and influence remaining is being manipulated, even at the expense of possible victims. Their rational is that it protects the innocent under a troubled system that claims one is innocent until proven guilty but in fact is judged by the court of public opinion before the facts are in. Furthermore they claim that there is too much reliance on circumstantial evidence and too much plea-bargaining that provide incentives for false testimony.

While all this may or may not be true, the picture is broader and larger than their community. We no longer live in homogenous communities and people, including pedophiles are mobile and move from place to place, community to community and country to country (Abraham Monderovitz, is an example of a wondering Jew, fleeing from New York to his hometown Chicago and ultimately to Israel). We can no longer afford to foster a parochial vision of community but must see the wider implications of this irresponsible behavior. Agudas Israel operates with this myopic and parochial mindset while buttressing the power of their rabbinate that seem to have the unique and intuitive ability to reach a better determination than the layperson suspecting the abuse. What makes the rav any more competent to assess the claim than the claimant? He isn’t. Agudas Israel however is more concerned with maintaining the power of the rav within the community than they are concerned about protecting their followers from danger and harm. It appears that the RCA is more concerned with protecting the wider public from the possible harm of a suspected individual while Agudas Israel, less interested in the public, is more concerned with protecting the individual from the damage he might suffer from the legal system.