Name and Shame?

The ongoing scandal of the Takana Forum vs Rav Motty Elon has intensified with the publication by the Yediot Achronot newspaper of some graphic testimonies to the Takana Forum from Rav Elon’s alleged victims.

Rav Sherlo, a member of the Forum, has written an open letter to his students strongly criticizing the decision at Takana to provide this information to Yediot Achronot for publication.

Rav Sherlo argues that the understanding was that Takana would publish a much less graphic and revealing statement on its own website only – and that the article in Yediot Achronot betrayed the confidence of the victims, and would dissuade other victims of sex abuse by those in authority, from coming forward to Takana in future.

This weekend’s newspapers in Israel were abuzz with opinions and debate about Takana and Rav Motty Elon.

The Takana vs Rabbi Elon stand-off raises many challenging issues, not just for the National Religious population in Israel, and not just for orthodox Jews – but issues which are common and genuine dilemmas in all communities.   

Takana was established to address a very specific niche: allegations of sexual abuse against adult victims (ie. not acts against legal minors – in Israel over 18 years old) allegedly perpetrated by those in positions of authority, such as rabbis and teachers, but where the acts are not deemed criminal, or legally enforceable, under Israeli law.

In general, there are three levels of inappropriate sexual acts:

1. Criminal acts resulting in a conviction (“Beyond all reasonable doubt”) in a court of jurisdiction
2. Allegations of criminal acts, which do not result in a criminal conviction.
3. Allegations of immoral acts, which are not deemed criminal. 

1. Criminal acts resulting in a conviction

Even in the first case, where a criminal conviction has been secured, the question of “What Next?”, after the perpetrator returns to civilian life, is far from resolved around the world.

In the USA, there are extensive systems for tracking convicted sex offenders, which are open to the general public, including via the internet. You can literally type in your postcode, and see which sex offenders live close to you. However, there are numerous problems with this system, including the fact that many of these sex offenders may no longer represent a serious risk to the public – and so there are a lot of ‘false positives’; also, there is no protocol for what a community, or individual, is supposed to do with the knowledge that his neighbour is a registered sex offender.  

In the UK, there is an official sex offenders list, but this is not publicly accessible. Various public campaigns to “name & shame” sex offenders, have not resulted in a change of policy. 

Here in Israel, to the best of my knowledge, there is not a specific sex-offenders list – although a background check on any individual, provided for a small fee at a police station (“teudat yoshar”), would list sex offense convictions alongside any other criminal records.

So, in Israel, once a convicted child abuse offender returns to life after his sentence, in the long term he returns to a community (they’ve got to live somewhere!) and is not subjected to restrictions on movements, nor monitored.

The local community may chose to place restrictions on the offender, but usually lacks teeth to enforce these.

‘Naming & shaming’ is an option, and would indeed put the public on notice that the offender is at large and to take appropriate heed. It also sets a zero-tolerance message of warning to other potential or actual child abusers.

However, those who do name & shame the offender publicly, risk defamation suits, and such activities smack of the Wild West with Wanted Posters/Pashkevilim ruling the public domain, rather than responsible process, or respect for (even) the perpetrators legal rights (under Israeli law and halacha).

It is a challenging balance of warning the public vs. acting in a lawful manner.

It seems to me that a reasonable balance would be a system of collecting solid data about the offender, the nature of the offence, the risk this represents to the community (if possible the offender can supply this information, as scientific risk assessments of sex offenders are a routine function of the prison services), and then informing all affected parties of that risk, on a need-to-know basis.

This might include (factually) warning neighbors, local schools, synagogues, youth groups etc, and perhaps establishing point-men to monitor the movements of the offender. If the population at risk is broader, so the warnings should likewise be broader.

2. Allegations of criminal acts

Regarding allegations of criminal behaviour, including child abuse, which have not been proven “beyond all reasonable doubt” in a court of law, the legal systems in the USA, UK and Israel, do not differentiate between someone against whom criminal allegations have been leveled, and people who are totally innocent. All are presumed innocent under the law, until proven guilty in court.

The great majority of allegations of child abuse do not result in a criminal conviction – but this is not due to the innocence of the alleged perpetrator. Indeed, according to the Israel National Council for the Child, 97% of the allegations are for-real. The problem seems to be passing the legal criteria for a criminal conviction, particularly where there are no adult witnesses nor a confession of guilt (the great majority of cases).

 

From a communal perspective, many believe that where credible allegations of child abuse have been brought against an individual, there ought not to be a presumption of guilt, nor however a presumption of absolute innocence.

Instead, there must be a presumption of RISK to children who the alleged perpetrator has access to.

In this netherworld of suspicions and allegations, several websites and blogs have publicized the suspects’ identities and nature of the allegations, so that the public can be aware and take heed.

In the Jewish community, The Awareness Center in Baltimore has accumulated a data-base of problematic characters, which are published on their website; The Unorthodox Jew has trailblazed a series of high profile exposes of rabbis, teachers and other orthodox people against whom allegations of child abuse have been leveled.

In Israel, there is at least one website which publicises sex-abuse allegations.

Various Batei Din (religious courts) in the USA have undertaken investigations into allegations of child sex abuse, with a poor record for handling these cases effectively. Seeing as such investigations are against the law, and may in thesmelves be criminal, (the police are the sole authorized and qualified body to conduct criminal investigations – and any other party may be deemed to be obstructing justice and potentially could be jailed), the whole Bet Din apparatus is highly problematic for these purposes. 

The use of Modesty Patrols (ad-hoc organizations which ensure that certain standards of modesty be set and preserved in some ultra-orthodox communities) to investigate allegations of child abusers, and implement extrajudicial punishments, is even more problematic, verging on vigilantism.

Some community organizations and rabbis have instituted protocols which are enforced upon the alleged perpetrator, such as limiting their attendance at synagogues, and banning them from schools, which are enforced with threats of ostracizing the person within the community and/or publicizing their names and alleged crimes.

Yet other Rabbis have evicted alleged perpetrators from their communities altogether, ensuring that they move on to other communities; such policies were widely practiced in the Catholic Church and, in spite of the discredited nature of those policies, are still practiced in some Jewish communities today. 

A helpful role for community leaders and organization is to encourage and support parties to bring complaints of child abuse to the police and/or social services, in full compliance with Israel’s child protection legislation.

Furthermore, a helpful role is to selectively inform professionals, members of the public and community leadership on a “need to know” basis regarding the perceived nature of the threat, and advising of appropriate preventative steps to take.

To assist in this process, alleged perpetrators could be encouraged to be professionally evaluated for their risk/danger level, and to obtain effective therapy, where this is available.

The question regarding what steps a community ought to take, to protect their children against a person against whom credible allegations have been made, but who has not been convicted in court of a crime, is still to be resolved.

This is ultimately a question of what kind of society people wish to live in – balancing the rights of privacy and freedom of the individual, against the rights of the community to be protected from potential harm. Do we want to live in a community of searchlights, wanted-posters and foot patrols, or in a free-for-all anything-goes libertarian community?

Most of us wish to live on a mid-point, respecting freedom, even of alleged perpetrators, while providing a safe environment for us and our children.

3. Allegations of immoral acts, which are not criminal

Whereas the legal system endeavors to reflect the ethical demands of the place and time, thus the democratic election of the seats of government and law makers - some communities or organizations may demand higher/different levels of ethical code and compliance.

For example, it is increasingly common for companies to adopt ethical codes, which exceed the requirements of the law itself.

Various trades and professions adhere to special codes of ethics, such as the medical Hippocratic Oath.

Clubs of various types will often have rules and regulations.

  

Religious institutions have ethical codes, such as based upon the Bible or other sacred texts, and which are supplemented or adapted with each generation. The main Christian churches have developed various Canon Laws, such as the Catholic Church “Code of Canon Law” published in 1983.

The Jewish religion practices “Halacha”, a legal and ethical code based on both the written Old Testament and the Oral Tradition of the Mishna and Talmud. 

In order for any code of ethics or Canon to be effective and binding, a system of enforcement is required.

By the nature of the job, this is outside the boundaries of the national legal system, although the legal system will usually respect the ability of groups to form and enforce their own Codes, where these do not cut across or contradict the law of the land.  

The previous example of the Modesty Patrols in ultra-orthodox communities can be a legitimate enforcement body for ethical standards within these communities, where the Patrols do not themselves step over the line into illegal behaviour.

 

In Takana’s case, the need for the National Religious community in Israel to enforce ethical standards, above the standards required by Israel’s criminal code, regarding the sexual behaviour of community leaders, authorities and teachers, became apparent several years ago.

By gathering together the most respected rabbis of the community, together with leading professionals in both psychology and law, Takana stood well prepared for the challenges of their designated task.

They have been quietly & discretely operating in this way for several years.

However, with their decision in January 2010 to expose the existence of allegations of immoral behaviour by Rav Motty Elon, and subsequent decision (by someone!) to further publicise specific case details through Yediot Achronot, the questions regarding how communities should enforce their chosen codes of conduct, has become an issue of national debate in Israel.   

 

To me, Takana appears to be a well thought-out program, and generally well resourced in meeting its goals.

There indeed comes a time that a community must deliver on quiet threats made to expose corruption in the community, and amongst its leadership. And I therefore applaud the original decision to (eventually) inform the public about the allegations against Rav Motty Elon.

The subsequent decision to release more information in Yediot Achronot has certainly drawn fire, and the facts are still not clear why this was required. I assume it was due to Rav Elon’s continuation of his teaching and lecturing activities, in violation of Takana’s advice/instruction.

If this was indeed an error of judgment by Takana, I see it a tactical one. No community has THE answer on enforcing ethical codes 100% effectively, and any ambitions to do so, will inevitably meet with setbacks.

I am sure Takana will assess this decision to publish more details of specific cases in Yediot, and they will draw appropriate conclusions regarding future policy, in a responsible and reasonable manner.     

 

In the meantime, the process of public debate increases awareness and understanding for the complex and usually hidden issues, and this limelight is itself in the public interest.