Root Of The Problem

Robert Kolker, in a recent article in New York Magazine wrote "Rabbi-on-child molestation is a widespread problem in the ultra-Orthodox Jewish community, and one that has long been covered up, according to rabbis, former students, parents, social-service workers, sociologists, psychologists, victims’ rights advocates, and survivors of abuse interviewed for this story. They argue that sexual repression, the resistance to modernity, and the barriers to outsiders foster an atmosphere conducive to abuse and silence."

The suggestion is that the nature of our community fosters this problem. What about our community? - sexual repression, resistence to modernity and the barriers to outsiders.

D'racheha dar'chei no'am v'chol n'thivotheha shalom, Your ways are ways of pleasantness and all your paths are peace. The Torah lifestyle is the ideal lifestyle for fostering Torah values and Torah observance. The true Torah life style does not foster abuse of any kind.

The lack of sexual repression and the wonderful modernity of secular society has brought us to the huge percentage of high school and even junior high school (and rachmana litslan now even elementary school) promiscuity. Secular society teaches that there are no boundaries for consensual sex. This is the modernity referred to in Kolker's article. Has this eliminated child pornography? Has it eliminated trafficing in sex slaves - adults and children or child prostitution? Has it eliminated forcible stranger rape and date rape? Has it lessened incest and child abuse in the secular world? I don't think that there is evidence for any of those things. Besides those problems, and besides the easy acceptance of nonmarital sex, we see that there is no punishment and almost no pejorative associated with adultery. Not only is homosexuality (which the Torah considers an abomination and a capital offense both for Jews and Gentiles) almost totally accepted by "modern" secular society, there are even demands that homosexuals be allowed to marry, and that we not discriminate against them (even if we are doing it to protect ourselves from disease). Instead of being punished as in the past (foregive me for even mentioning it) bestiality is merely smiled and sniggered at. There is more concern for the rights of the animal than for the degradation of the person and society.

Removing sexual repression from society did not cure the problems and did not create a better society and in fact created mor problems.

We do not resist the benefits of modernity such as its technology, but widespread sexual immorality is not modernlity. It is a return to the primitive wickedness that the Torah warned us about: "According to the deeds of the land of Egypt ...you shall not do and according to the ways of the land of Cana'an you shall not do...." This is not modernity, this is not a goal, this is the antithesis of the way of the Torah.

That being said, let us see what the Torah wants from us.

Should we separate ourselves and our children from the evils of society? Obviously yes.

Should we uproot the evil from our midst? This is what the Torah advises. See my article "Sexual Abuse Action Plan" on this blog. By removing the current abusers, we can keep future generations from becoming victims. Be limiting victims, we lessen the pool of potential abusers, because unfortunately, victims often become abusers.

On our way to becoming a holy nation (or shall we say a more holy nation) should we limit temptations? Yes.

But what about taking it one step further, and returning to the pure ways of the Torah?

See my article in this blog on the proper age to get married. The Mishnah in Pirkei Avoth says Shemoneh Esrei L'chuppah. The Gemora suggests, and the Shulchan Aruch codifies that the ideal age to get married for fighting the yetser hara (evil inclination) is actually much younger. The Gemorra suggests 16 or 14, the Shulchan Aruch suggests 13. The Gemora sasys that if a man does not get married by age 20, all of his days will be spent thinking about sin. The simple halacha is that if he hasn't gotten married by age 20, we force him to get married. (The Rama says that nowadays the custom is not to force.)

Part of following the paths of the Torah is doing exactly what chazal suggested. Part of the fight against modernism is refraining from saying that because circumstances have changed, Chazal's rules and suggestions are not valid and binding. Someone who has a wife does not need to have sexual fantasies. Does not need to sneak off and meet girls. Does not need to look for damaging things on the internet. Yes, some married men may do those things, but did they fulfill Chazal's words to get married young, or are they fulfilling Chazal's words "all of his days will be thinking about sin"?

So step one is to uproot and isolate the current abusers. Get counselling for their victims so that the victims don't become abusers.

Step two - Encourage early marriage. Do not allow raging hormones to create a state of illicit thoughts.

These two steps will eliminate a lot of the problems for most people. There is a small minority of people for whom this is not enough. They are married. They got married young. The hormones are still raging. Maybe the wife is not available as much as he needs (perhaps through no fault of her own, her cycles may be off, she may be ill and weak or any of a number of legitimate reasons). The Torah gave a solution for this problem too.

This solution is called polygamy. We hope soon to have a full discussion of the halachic status of Cherem Rabbeinu Gershom bizman hazeh as well as the sociological needs for polygamy. In the meantime, suffice it to say that for Sephardim and 'Edoth Hamizrach, there is not the slightest question, it is perfectly mutar. The Rashba and the Beith Yoseph both say clearly that the cherem was over in the year 4999. The Rashba, the Maharik and the Beith Yoseph all say that a man who left the place where they had the cherem and came to a place that didn't have it are not obligated. the beith Yoseph specifically dealt with the case of an Ashkenazi in Yerushalayim who had a wife, had shalom bayis, had children and just wanted an additional wife. The Beith Yoseph was matir. He also said that in Andrianople, Salonika and Constantinople there were large kehilloth of Ashkenazim and they married two wives and no one said boo.

Polygamy s not for everyone, but since it is mutar at least in some circumstances (and I think in general as I will show when I get the article posted), it should be used to eliminate some of the tensions which may cause a person to sin.

Even if the cherem applied, since it did not spread to all Jews everywhere, then even a Beith Din which is less in chochma v'minyan can eliminate the ban. If eliminating it would eliminate even a small percentages of the problems, then it should be done.

Sexual Abuse Action Plan

Please see my post on the age to get married and my future post on polygamy. I think that both of these things are important for the long term health of our community as mamlecheth Cohanim v'goy kadosh. But what about right now? What can we do to stop this horrible abomination in its tracks?

Please note that throughout this article, when I refer to children, I really mean all students even older ones who for halachic purposes are considered adults, and even 18 year olds who are adults in secular law. All are worthy of our protection. None may be left as prey for the beasts.

Fondling of a bochur is not the same crime as mishcav zachor, but according to all reports from psychologists and other experts in the field, even this has a devastating effect on the victim, causing shame and embarassment. Some children are plagued by flashbacks, feelings of shame and other deleterious effects well into their adult lives.

We teach our bochurim that they must be careful where they go and what they do, what kind of books they read. We forbid them to go to movies or watch television or read many magazines. Why? So that they will grow up bikedushah uv'taharah - in holiness and in purity. We forbid contact wih girls. We forbid the internet. We are very strict about any situation that may lead to hirhurim (lascivious thought) or chas v'shalom zera' l'vatala (seminal emmission).

How can we be careful about all of this, and yet refrain from a thorough investigation of each and every accusation of sexual abuse - whether it be fondling, mishcav, indecent exposure or whatever.

If a rebbe were suspected of having a television, he would be investigated and if found guilty would be fired (or perhaps just fired). If a rebbe were accused of being on the wrong chat room, imagine the ruckus.

How could it be that instead of investigating, we have silenced the victims.

I have not personally investigated any of the cases, but there is a concept of kola d'lo pasik - a rumor which does not quit. the rumors are to persistent and too consitent. We must save our children.

The question is what to do about it now.

According to statistics on the Awareness Center web site, http://www.theawarenesscenter.org/offenders.html

61% of sexual assaults are not reported to the police.

84% of all rapes in the United States are Date (Acquaintance) Rapes

A woman is 5 times more likely to be raped by someone she knows.

57% of all sexual assaults take place on dates or in the context of relationship

If the rape is reported to police, there is a 50.8% chance that an arrest will be made.

If an arrest is made, there is an 80% chance of prosecution.

If there is a prosecution, there is a 58% chance of a felony conviction.

• If there is a felony conviction, there is a 69% chance the convict will spend time in jail.

• So, even in the 39% of attacks that are reported to police, there is only a 16.3% chance the rapist will end up in prison.

• Factoring in unreported rapes, about 6% of rapists—1 out of 16— will ever spend a day in jail. 15 out of 16 will walk free. According to the US Department of Justice.

This indicates that reporting to police is not an effective way of jailing a rapist. I don't know what the statistics are in a child abuse case, but they may not be any better.

Is our goal in fact as a community to jail community members who have committed the horrible offense of molested the sanctity of our children? I think not. Our main goal must be to make our community a safe place to raise children bik'dushah uv'taharh - in holiness and purity.

There may now be a spirit of vengeance growing in our community, but the major issue is how to stop the abuse completely, not how to exact revenge on the perpetrators.

I am going to paraphrase from an article which I read over 30 years ago. Let no one think that I am a fan of the author or that I am accepting his p'shat (or d'rash, whatever it is) in the Torah. I am not even sure whether the article was written by Emanuel Rackman or Shmuel Belkin. I am not a fan of either one (putting it extremely charitably). Nevertheless, the concept was very interesting. I am putting it a little more frumly than the original article because I have a frummer perspective.

In any case, the article suggested that the reason for the system of arei miklat ( cities of refuge) for someone who unintentially killed someone else, was to remove them from society without them being a burden on society.

The one who killed must flee to the ir miklat. If he does not, the go'el hadam may kill him without any recourse to the Beith Din. Once he is in the ir miklat, he is safe. Beith Din gives him safe passage back to the trial. If it is found that he in fact killed in a manner for which he is to be exiled to the ir miklat, Beith Din will give him safe passage back. But if he sets foot outside of the ir miklat, he is subject to being killed by the go'el hadam. While he is in the ir miklat, he must support himself and he is away from the situation in which the manslaughter occured. Society does not have to worry about him any more.

This means that society does not need to expend effort to arrest and jail the accused. The accused knows that if he doesn't get to the ir miklat right away, he may be killed. Society doesn't need to expend funds on jails or jailors or guards or prison food. The convicted manslaughterer knows that if he leaves the ir miklat, he may be killed.

So the system which Hashem set up is extremely practical and efficient.

We need something practical and efficient to deal with the (I hope very few) child molesters amongst us.

I do not advocate mesirah - turning anyone over to the secular so called justice system. In addition, if only 1/16 of rapists are punished, it is very inefficient. We don't know what the statistics are for false convictions, but the increasing use of dna evidence for appeals at least gives certain anecdotal evidence that there are some. The police and the courts are not our friends.

The punishemnts of the secular system are also not the punishments of the Torah.

So what can we do?

As a general principal, capital punishment by the Sanhedrin ended even before the destruction of the Beith HaMikdash, when the Sanhedrin was exiled from the Lishcath Hagazith. Today, we do not have a Beith Din of s'muchim, we have no Sanhedrin at all (ignoring the group in Israel who claim to have re-established semicha and the Sanhedrin based on the Rambam).

Nevertheless, in Choshen Mishpat siman beith, s'iph aleph, the mechaber writes "Every Beith Din, even if they are not s'muchim in Israel, if they see that the people are actively sinning (and the time needs it) may judge cases of death, money, punishment, even when there isn't complete testimony and if he is powerful (violent) we punish him through goyim (and they have the authority to maphkir his money and to destroy it according to what they see in order to repair the breakdown in the generation) and all of their deeds should be for the sake of heaven. And davka the gadol hador or the leaders of the city that the Beith Din appointed over them". The Rama adds: "and that is how we are accustomed in every place, that the leaders of the city (tovei ha'ir) in their city are like the Great Beith Din (i.e. Sanhedrin of 71) and they give lashes and punish and the property which they declare ownerless is ownerless according to the custom". The Rama then discusses the dissenting opinion.

In Choshen Mishpat toph choph heh at the beginning, the Rama says "All those who are culpable for execution these days, we have not got the authority to flog them nor to exile them nor to kill them nor to bind them, rather we put him in cherem (excommunication) and separate him from the community. And all of this is according to the law. But if Beith Din sees that it is a necessity of the times to fence in the matter (i.e. to protect the community from sin and sinners) they may punish as they wish as mentioned above in s'iph beith. And only in the case of capital crimes which need beith din. But those who are killed outside of beith din are also judged nowadays as will be explained." [This means that in certain cases, such as a rodeph or a moser you don't need to get into the issue of a sinful generation or the needs of the times.]

This means that to purify society, the gadol hador, or the city's Beith Din or the elders of the city appointed by the Beith Din could even today use extreme and ultimate measures to rid our society of this problem, and most probably even if the case did not strictly call for capital punishment.

There are a number of problems with this. The first is that the likelihood of any gadol or any beith din to take it upon himself/itself to execute the child molestors is (as they say) slim to none, and slim has left town. And if they would do so, the likelihood is that there would be severe repercussions for them and for the rest of the Jewish community.

On the other hand, neither can the g'dolim and the battei din claim that there is nothing that they can do.

A more practical solution comes from the above discussion about arei hamiklat.

Let it be known that a) No abuse will be tolerated from now on period. b) Those who have abused in the past (and we can set a threshhold perhaps - if they did it to more than one person - or perhaps even once) will have the coming school year only to find other employment that does not involve contact with children in any capacity (not even as the clerk at a candy counter). This means not at schools, camps, youth groups, tutoring or anything else. c) Those abusers who continue in their employment in schools or other places where they have contact with children after the coming school year will be declared hephker and in cherem. So too anyone who abuses any child from now on, immediately with no grace period. The victims are authorized to take the property of the abusers, to push and shove them, to spread the word about them without the strictures of loshon hara, etcetera. Any shul which gives them cavod such as aliya to the Torah or shaliach tsibbur will be declared the same. d) If they leave their employment with children within the stated time period, their punishment will be left for Hashem to take care of. e) If they ever again put themselves in a position where children are exposed to them, all of c) above will apply immediately.

The abusers will have an incentive to leave temptation behind and to leave teaching. Their families will have an incentive to push the abusers to leave teaching in order to save themselves from further embarassment and shidduch repurcussions.

The victims who have suffered in silence and feel that in the past they have been betrayed, will see that their suffering was not unpunished in that the perpetrators were forced out of the schools, and will have the z'chuth to see the schools cleaned up.

We will have the zechuth to settle our problem without going to the goyim.

Unfortunately, the most impractical thing and difficult thing may be to get the rabbonim to act. If they can be forcefully shown the problem, and can forcefully be shown that the c'lal Yisroel will not tolerate it any more, and that the position of the Rabbonim is in jeopardy if they refuse to deal with this, then maybe they will.

There are those who will argue that this plan is too weak, has no teeth, will not be implemented. They will also say perhaps that we must not give these people a year in which to find other jobs. In fact, they argue, these abusers have a din of rodeph. On this basis, they justify turning the abusers over to the police. I think that the problem of turning Jews over to the police may be one of the reasons that many rabbonim are reluctant to get involved in fighting the abusers. Turning someone over to the police is a major thing, and under normal circumstances one who does so is classified as a moser and a moser himself has a din of rodeph. I am not poskening the sh'eilah here, I am merely saying that it is a major concern. It could be that rabbonim gedolim v'tovim mimeni will posken that in this case it is alllowed.

The article in New York magazine also said that Rav Pinchas Scheinberg said that as a matter of Jewish law, Kolko would have had to have more than just fondled them for the acts to qualify as sexual abuse. It is important to know exactly what was asked and exactly what was answered. It is obvious to anyone who knows Rav Scheinberg that he did not say that it was ok for Kolko or any other teacher to fondle a student. It is possile that he said that fondling, as opposed to mishcav zachor, is not sufficient reason to classify Kolko as a rodeph whom one is allowed to kill or turn over to the police, even though of course it is a very bad thing. If that is what he said, than I would accept his judgement, but obviously the man can't (assuming that it is all true) be allowed to have contact with children any more.

There are those who, despite what is supposedly Rav Scheinbergs opinion, insist that these abusers have a din of Rodeph. What is the din of rodeph? the classical din of rodeph is if R'uvein is chasing Shim'on in order to kill him, or R'uvein is chasing after an ervah ( a person forbidden to him sexually, including another man or boy) in order to have sexually intercourse with her or him, then R'uvein is a rodeph and everyone is commanded to save the one who is being pursued, even if it necessary to kill R'uvein to do so. However, if it is possible to save the pursued one by cutting off a limb, he is not supposed to kill R'uvein. These laws are discussed in Choshen Mishpat toph coph heh. The killing of a rodeph is also allowed nowadays, even though there is no Sanhedrin. If one is certain that the person has a din of Rodeph, it is not necessary to seek Beith Din approval if speed is important.

If these people really believe that the alleged (or actual) abusers have a din of rodeph, their duty is clear. This duty may not however permit destroying the abuser's family, and it may not permit putting the abuser in a position where he will be raped (extremely common in United States prisons) even if you think that it is mida c'neged mida.

Age to Get married

Problem: Jews are not allowed to have premarital sex. Starting shortly after puberty, the teenager's hormones are raging. What does the Torah advise?

Solution: Most Orthodox Jews are familiar with the expression shemoneh esreh l'chupa - that you should get married when you are 18 years old. Most do not realise that this is neither the minimum age, nor the ideal age from a Torah perspective. They also do not realize that there is a halachic deadline.

Eighteen is the age given for marriage in Pirkei Avoth (the part of the Mishnah called Ethics of our Fathers). For many reasons, 18 is a very practical age - by then a man has had an opportunity to learn a large amount of Torah. He is expected to be mature enough to support a family. On the other hand, he has been urged on by his hormones for a few years already. The Talmud (Kiddushin 29b) says that from a perspective of guarding against sin, 16 is better and 14 is better yet. The Shulchan Aruch (Even HaEzer 1:3) says that the best way to perform the mitzvah of marriage is to get married at age 13.

The halachic deadline is age 20. If a man has not gotten married by age 20, the Talmud says that all of his days he will have sinful thoughts. My understanding of this is that since he did not get married at the time when his hormones were raging the strongest, and since he had no kosher outlet for his sexual drive, he has become permanently warped. A man who did not get married by age 20 is supposed to be beaten by the Beith Din (religious courts) until he agrees to get married. This is the halacha in Shulchan Aruch (Even HaEzer 1:3), though the Rama (Rav Moshe Isserles) says that the custom nowadays is not to force people to get married. In any case, if he hasn't gotten married by age 20, he should get married as soon as possible.

The sages of the Talmud understood the nature of man and his drives very well. They suggested that a man should get married at 18, and that for protection against improper sexual urges, younger would be better. They said that putting off marriage to later than 20 would permanently warp his personality.

Today in Jewish society, it is unusual for a man to get married as young as 18, and most don't even get married by 20, and it is almost unheard of for a man to get married younger than 18.

Clearly this is a cause to some of the problems of sexual morality facing Jewish society today.

Often when I present this simple concept to people, they argue that men are not mature enough to get married at age 14, or even at age 18. Certainly they are physically mature. The question is, are they emotionally mature. And are they mature at 24 or at 36.

Our grandparents or great grandparents got married at much younger ages than we do. The tendency in western society is to foster dependence until a late age, but this is a matter of conditioning and training. If we would expect our sons to be mature and would train them to be mature and would give them responsibilities, then indeed they could be mature enough to get married at the age that the Torah directs.

This would have many benefits: less sexual frustration and sexual immorality, more Jewish children born. It would also make it easier for girls/women to get married. Men generally marry women younger than they, and the greater the age when a man gets married, the greater the difference between his age and his wife's age. An older woman is therefore competing against women of a wider age span. Her competition is greater and her chance of getting married is less.

Sexual Morality

The three most stringent laws in the Torah are the prohibitions against Avodah Zarah (worshipping anything other than the one true G-d), the prohibition against murder and the prohibition against sexual immorality.

These laws are so stringent that when faced with the choice of violating one of them or being killed, the Jew must choose death.

The prohibition against sexual immorality forbids bestiality, homosexuality, incest (as defined by the Torah), adultery (defined as a man having sex with a woman who is married to another man) and sexual relations with a woman who is a nidah or zava. (For all practical purposes we do not distinguish between a nidah and a zava. In practice, a woman may not have sexual relations (or even casual physical contact with a man) from the time that her menstrual period begins until seven days after all blood has ceased and not until she has properly immersed in a mikveh (ritual bath) or certain natural bodies of water. Sexual activities less than sexual intercourse are also prohibited (either by the Torah acording to the Rambam or by rabbinical enactment according to the Ramban) and even hugging and kissing and shaking hands are prohibited with only very few exceptions (such as a father with his daughter and a mother with her son).

Nonmarital sex is also forbidden. One need not give up one's life to avoid nonmarital sex as long as the other person isn't prohibited by one of the issues in the previous paragraph. As time permits, we will discuss the halacha regarding a pilegesh, which is a status less than a full wife, but not single either. As a pratical matter, and based on longstanding Jewish practice, unmarried Jewish women do not immerse themselves after their menstrual periods. Therefore, no physical contact such as kissing, hugging or even shaking hands is permitted with a single woman or girl once she has started to have menstrual periods.

This means that the only permitted sexual contact is between a man and his wife (or possibly pilegesh). Furthermore, in general, no physical contact at all is allowed with members of the opposite sex except spouses with each other. All male homosexual activity is prohibited including sexual kissing, oral genital contact and anal intercourse. Intercourse between men is a capital offense (punishable by death). Two men are allowed to kiss each other in a nonsexual way (such as a greeting) and are allowed to shake hands. Lesbian activity is also prohibited.

Male masturbation is also forbidden.

This means that the Torah expects Jews to refrain from all sexual activity until they are married, and to restrict that activity to their spouses.

Especially in todays corrupt society this is a great expectation from people. The Torah gave guidelines to make this easier, which we will attempt to explore in other articles.

The Source of Jewish Morality and P'sak Halacha (Jewish Law)

The source of all morality is the Torah. The source of all Jewish law and practice is the Torah. Any morality or law not based on the Torah is not Jewish.

The attitude of the Torah is the distillation of the written Torah and the oral explanations handed down to us as codified in the Talmud. The Rambam (Maimonides, born 1138 in Spain died 1204 in Egypt) in his introducion to the Mishneh Torah wrote that all the Jews everywhere are obligated to follow the halachic decisions and the takkanoth and g'zeiroth (Rabbinical prohibitions) of the Talmud, but as regards commentaries, decisions, proclamations, bans, customs and prohibitions which were made after the writing of the Talmud, these are not binding on the entire Jewish people. In matters of Jewish law, we are to follow the decisions of the Talmud, but in cases where these are not clear, we do not pay attention to who is in the majority and who in the minority, nor who is earlier and who is later but rather to that which makes more sense. This means that if you correctly understand the Talmud, then you correctly understand the practical halacha (Jewish Law).

There may be those who disagree with the Rambam in this regard, but one is not (at least according to the Rambam) obligated to listen to them. This method of determining Jewish Law based on the Talmud directly, as opposed to being bound by later authorities was the method used by the Vilna Gaon and the Brisker rabbonim who flowed from him.

It is often argued that we are obligated to follow the Shulchan Aruch and may not posken (definitively decide) questions of Jewish law based on the Talmud. Those who make this argument are either ignorant or disingenuous. The Shulchan Aruch was written by Rav Yoseph Karo in 1565. He was a Sephardi, and in most cases followed the majority between the Rambam, the Riph and the Rosh. Rav Moshe Isserles wrote the Mapah (which is published in conjunction with the Shulchan Aruch) which disagreed with the Shulchan Aruch in many places, bringing it in line with Ashkenazi practice. After these were published together, many Acharonim wrote commentaries on them. Many of these are published together with the Shulchan Aruch. These commentaries sometimes explain the words of Rav Yoseph Karo or Rav Moshe Isserles, and they sometimes disagree with them.

This clearly shows that there is no universal binding quality of the Shulchan Aruch the way that there is with the Talmud.

Local Rabbonim always had the authority to make local bans and prohibitions. The authority of these local prohibitions depends on the people accepting them. if the people do not accept a takkanah or a g'zeirah, it does not come into force.

On the other hand, once it was accepted, it is binding on the community that accepted it, but on no other. If it is binding only temporarily or forever depends on many factors, including how it was originally promulgated. (For instance a ban or takkanah which was originally promulgated with an expiration date does not automatically renew itself, it must be promulgated again and accepted again.)

In addition, a takkanah made in one place is not binding in another place. Usually it is not binding even on the people of the original place if they moved to a different community permanently.

In conclusion, to prove that something is immoral, you must prove that it against the Torah as explained by the Talmud. To prove that something is allowed or is forbidden by the Torah or by a rabbinical proclamation binding on all jews, you must prove it from the talmud.

To prove that something is forbidden by a later enactment, you must determine exactly what the enactment was, whether it was accepted, by whom it was accepted and whether it expired.