Responding to Allegations of Abuse: RCA and Agudath Israel

By Guest Writer, 

Dr Nachum Klafter, 

Cincinnati, OH

(Note from David: Many thanks to Dr Klafter for this helpful and detailed article explaining the different approaches of the RCA and Agudah to reporting child abuse to the authorities, and follows my previous article on this topic. Please note that, for Israelis, ALL citizens are mandatory reporters in Israel, ie it is a criminal offense to fail to report a suspicion of child abuse; whereas in some states in the USA solely some professionals are mandatory reporters - for a full listing of mandatory reporters in USA, state by state see: 

http://www.childwelfare.gov/systemwide/laws_policies/statutes/manda.cfm )

I have received several requests from clinicians and Rabbis asking me to respond to the last round of articles and posts, by explaining what exactly the differences are for therapists according to the rulings by the R.C.A. and Agudah.

The intent of some recent articles has been to defend the position of the Agudah and to stress the importance of receiving guidance in all halakhic issues from qualified poskim.  I do not disagree with that sentiment, but I think that the position of the Agudah has been misrepresented.

In the course of recent discussions  about halalkhic issues involved in reporting, the dialogue has also turned to the topic of whether sexual perpetrators may or may not be delineated as a rodef (a person pursuing an innocent victim in order to commit murder or rape on an ervah).  This was in response to citing the case of rodef as one example of where it is obviously permissible to report Jewish criminals to the secular legal authorities.  As a result of this digression, I believe that there is an inaccurate perception that the disagreement between the R.C.A. and the Agudah is about what categories of abuse may or may not be reported to the authorities. This is not the case, as I will explain.

To review:  There were two rulings issued recently by the two major organizations of Orthodox Rabbis in North America about reporting child abuse to the authorities.

1. The Rabbinic Council of America ruled in April 2010 that there is an obligation to report credible allegations of sexual abuse to the secular legal authorities, and that there is no prohibition of mesira in doing so. This RCA reiterated this position on July 25th 2011.  The full text is attached to this email.  There are four important components to their ruling:

·     All Jews who have first-hand-knowledge or a reasonable suspicion sexual or physical abuse of children are obligated by Torah Law to report this immediately to the secular legal authorities.  Failure to report constitutes a biblical violation of “You shall not stand idly upon the blood of your brother….”

·     The prohibition of mesira simply does not apply when making reports of sexual or physical abuse to the secular authorities.

·     Mandated reporters, such as therapists, must follow the mandated reporting laws imposed by the secular authorities even in cases where Jewish Law would not require that a report be made.  

·     If someone is truly uncertain whether the facts he or she has become aware of are reasonable grounds for suspicion, he or she should seek guidance from a rabbi and/or mental health professional as appropriate. However, in a case where it is clear that the basis for suspicion of abuse is valid, and all the more so when one has first-hand knowledge, it is not necessary to ask a rabbi for a ruling before calling the secular legal authorities.

2. The Agudath Israel’s statement of July 22, 2011 includes the following key provisions:

·     All Jews who learn of credible allegations that a child is being sexually or physically abused are obligated by Jewish Law to report this to the secular legal authorities. This obligation, based on “tikkun olam” and “other important principles” (unspecified the their ruling), pushes aside any prohibitions (i.e. including mesira).

·     According to this opinion, the level of evidence required in order to achieve “probable cause” (raglayim la-davar) is a halakhic matter which requires a decision by a qualified posek. In other words, according to this statement issued by the Agudah, before anyone calls the secular authorities, he or she should first consult with a qualified rabbi in order to determine if the basis for suspicion is sufficient evidence to file a report.

·     The obligation to report, according to the Agudah, is based only on Jewish law considerations and not on any mandatory reporting provisions in the secular law.  In other words, according to the Agudah, a therapist or any other mandated reporter must also first consult with a posek before reporting suspicions of abuse to the authorities.

Practically speaking, the only difference in their ruling for the lay public is whether a Rabbi must be called first before reporting first-hand knowledge or a reasonable suspicion of child abuse to the secular authorities.

There are other potential implications of the Agudah’s ruling for mandated reporters, including Orthodox therapists.  Chaim Dovid Zwiebel, an attorney and the E.V.P. of Agudath Israel of America, has stated that he does not believe that this ruling will lead to any mandated reporters violating the law.  Not everyone is reassured by his statement.  (My own understanding is that, like anything else, it would depend on the rabbi you are asking.)  In any case, this opinion requires that a mandated reporter speak about the facts with a qualified posek so that each situation can be adjudicated on a case-by-case basis.

These two opinions are based on different understandings of the prohibition of mesira.  The R.C.A.’s statement is based on two halakhic principles: (1) The laws of mesira are pushed aside when reporting people who pose a danger to others, people who menace and harass others, people whose actions impugn the reputation of the community, and even for those who are simply so disruptive that they cause a public disturbance.  These categories obviously include sexual and physical abusers of children.  (2) The R.C.A statement follows another widely accepted opinion in halakha:  Generally speaking, in a nation which enforces the law equitable and humanely, it is not forbidden to report or press criminal charges against Jews who are violating reasonable laws which were enacted for the betterment of the society.  That is why the R.C.A.’s ruling states that mandated reporters are always obligated to adhere to the mandatory reporting laws, even in cases where according to Jewish Law there is no obligation to report.   According to this opinion, the prohibition of mesira applies only in societies where there is no procedural justice, such as nations where Jews are seized by anti-Semitic rulers for no legitimate reason. The gedolei ha-poskim of the 20th century who have ruled in this manner include the Aruch HaShulchan, Rav Elyashiv, Rabbi Eliezer Waldenberg z”l, Rav Shlomo Zalman Auerbach z”l, and Rabbi Shmuel Wosner.  This view is also followed by the R.C.A.’s own poskim and dayanim.  I have personally discussed these matters with three: Rav Hershel Schachter, Rav Gedalia Dov Schwartz, and most recently with Rabbi Michael Broyde (who has written extensively and frequently answers halakhic questions on this topic).

The Agudah is following a different opinion about mesira, which holds that even in societies whose legal systems are fair to Jews and whose authorities enforce the law equitably and humanely (such as America) there is nevertheless a prohibition against informing on Jews who are violating the secular law.  However, the view expressed by the Agudah agrees that there are many situations where mesira is not only permitted but mandated by the halakha; in fact there is no disagreement about this among any halakhic authorities.  The classic cases where mesira is permitted, in any society, are specified in Choshen Mishpat 388.  The view expressed in the Agudah’s statement further agrees that sexual and physical abuse of children falls clearly within those cases which must be reported to the police because the prohibition of mesira has been pushed aside.  However, unlike the R.C.A.’s ruling, if we could imagine a case where Jewish Law does not require that we inform the secular authorities, the opinion expressed by the Agudah holds that even in America and Canada the prohibition of mesira remains in effect. That is why the Agudah’s opinion states that the secular law’s provisions for mandated reporting are irrelevant to the question of of whether reporting is permissible.  According to this opinion, either there is an obligation to report according to Jewish Law (such as in a case of sexual or physical abuse), or there is a prohibition of mesira which precludes reporting (even for mandated reporters).

I have already provided to those who have requested this an English article by Rabbi Broyde which explains the rules and legal principles which govern the prohibition of mesira, as well as the various views of the great poskim of the last century.

It appears that some correspondents believe that the opinion of the Agudah (and the clarification reported in the media by Rabbi Shmuel Kamanetsky) is predicated on the notion that the only instances where reporting is permissible are when the molester or abuser is adjudicated as a rodef.  Following this incorrect assumption, one contributor goes on to cite the classic cases from the Talmud of incestuous or adulterous rape, in order to distinguish them from other cases of less serious sexual abuse where the perpetrator would not be a rodef.

This is incorrect.  In fact, both opinions (the Agudah’s and the R.C.A.’s) agree that physical abuse of a child, or sexual molestation of a child which does not involve actual rape, must be reported to the secular authorities. Their disagreement is only over whether there is a requirement to first check with a Rabbi about whether the basis for one’s suspicion rises to the threshold of probable cause (‘raglayim la-davar’). Their disagreement is not, for example, about whether a molester who fondles the genitalia of young children must be reported.  The opinion expressed by the Agudah clearly holds that such a person must be reported (though only after consulting with a Rav to determine if the evidence is sufficient).  This has nothing to do with whether a molester has the actual din of rodef.  

In fact, in the same siman in Shulchan Aruch (Choshen Mishpat 388), we learn about a number of other cases where people may or must be reported to the authorities despite the fact that they are not, literally, rodfim. This includes counterfeiters (388:12), people who disturb the public (388:12), and people who assault others by hitting them (388:7).  In fact, the Rema rules in 388:7 that a person who has been assaulted by someone (“adam ha-mukah me-chavero”) is allowed to press charges with the secular authorities against his assailant after the assault has already occurred.  However, the assailant is not a rodef.  In other words, the victim of this assault is certainly not allowed to purchase a gun the next day and kill his assailant.  However, he is allowed to call the police the next day and inform on the assailant by filing criminal charges. People who cause a public disturbance are not rodfim in any sense of the word; they are not even dangerous; they are simply a disruptive nuisance.  Nevertheless, we may report them to the authorities.  The rabbis of the Agudah and the R.C.A. all agree with this.  They all further agree that if we are allowed to call the police after a physical assault against an adult, we are certainly allowed to call the police to report sexual and physical abuse of children (though the Agudah requires that a posek review the evidence first, in order to avoid spurious reports). And, again, the Rema is addressing a situation where the legal authorities are anti-Semitic feudal despots who we presume will treat the assailant is very harshly.  There is certainly reason to be more lenient about mesira in America, Canada – not to mention Israel, where the legal authorities are Jews.

There are some reports in the Jewish media which imply that the Agudah’s requirement of ‘raglayim la-davar’ (that only suspicions which are based on substantial evidence should be reported) will interfere with the reporting of sexual abuse.  I think this is unfair.  In fact, the R.C.A.’s opinion states the same thing, but trusts the reporter to make that determination and does not require the input of a halakhic decisor: 

As always where the facts are uncertain one should use common sense and consultations with experts, both lay and rabbinic, to determine how and when to report such matters to the authorities. False accusations are harmful to those falsely accused – but unreported abuse or endangerment can be life-threatening, as we have recently been tragically reminded.

Essentially, the Agudah’s ruling expresses an opinion which is so concerned about the potential havoc caused by baseless suspicions being reported to the government that it requires rabbinical review.  The Agudah’s statement is nevertheless an acknowledgment that in contemporary Western society, Rabbonim and lay communal leaders are not empowered to effectively intervene and protect children who are being physically or sexually abused.  We need to make use of Child Protective Services or similar agencies in our communities and jurisdictions. It is mandated by halakha that we do so. 

I will also mention that there is good research being done which has found that enforcement of mandatory reporting laws does, in fact, reduce the incidence of sexual abuse.  

In summary I will again quote Rabbi Yitzchok Adlerstein, who can hardly be called a ‘left-winger’.  He recently wrote the following:

It is time to forever bury the myth that reports of pedophilia can be managed and dealt with by committees of rabbonim, even for a short time. It is time to bury the myth that there is a serious halachic barrier to going to authorities to deal with credible reports of such behavior. Enough baalei halacha have told us that there is no barrier.

Choshen Mishpat 388:12 tells us that those who vex the public can be handed over. Any pedophile does at least that, and poses a danger of doing much more. Moreover, mesirah of a molester exposes him to a safek of danger; pedophiles pose a much greater danger level to many more victims.

It is natural and good that many people were not eager to rush to modes of address that themselves could be too sweeping and harsh, with terrible consequences to people and their families. They thought that various types of modus vivendi were possible. By now they should realize that this is not true. Rabbonim cannot handle the issue. We have enough evidence of this…. (http://www.cross-currents.com/archives/2011/07/14/yadeinu-shafchu-es-hadam-hazeh/#ixzz1UP7xBP8J)