"Like the Catholic Church, Orthodox Jews have beliefs that create a separate world from which child sex abuse victims cannot escape".

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"The recent scandals (and convictions) involving Rabbi Yehuda Kolko and Rabbi Baruch Lebovits were a result of the victims bravely coming forward even despite community pressure, and they are surely an indication that the tide has been turning".

How Other Religious Organizations Echo the Roman Catholic Church's Rule Against Scandal, A Precept that Entrenches and Perpetuates Cycles of Child Sex Abuse: Orthodox Judaism, Part Two in a Two-Part Series
By MARCI A. HAMILTON

Thursday, April 29, 2010

This is Part Two in a two-part series of columns on religions, other than the Catholic Church, that possess precepts that have the effect of leaving clergy child sex abuse unpunished. Part One can be found here. – Ed.

In the past two weeks, there have been yet more revelations about the Catholic Church's mishandling of child sex abuse, with, for example, European bishops forced to resign. In my last column, I described, based on church documents and case law, some of the pitfalls in the Church of Jesus Christ of Latter-Day Saints' approach to child sex abuse within the organization. In this column, I will address the struggles of institutions within the Orthodox Jewish community on these issues.

Like Other Faiths, Orthodox Judaism Is Wary of Secular Authority – But There Are Exceptions

Like the Catholic Church, Orthodox Jews have certain beliefs that tend to create a separate world from which child sex abuse victims cannot escape. The key question with respect to every religious organization that is dealing with hidden, ongoing, or persistent child sex abuse is this one: What will it take to liberate the victims? External pressures from sources such as the media and the legal system can make a difference, but it may also take some re-examination and soul-searching with respect to some of the institution's religiously motivated practices. The Orthodox Jews are making steady and promising progress in this arena. The ultra-Orthodox Jews, unfortunately, are not.

The Jewish law of "Chilul HaShem," which means literally "a desecration of God's name," warns believers not to bring shame on the community. This is the closest analogue in the Jewish tradition to the Catholic rule against scandal. And, there is the Jewish law against "mesira," or informing on another Jew to the authorities. Roughly translated, according to Rabbi Yosef Blau of Yeshiva University (my home institution) , it means "Don't go to secular authorities," and thus can be used as a reason not to report child sex abuse to police or civil authorities. The law against arka'ot, or proceeding in secular courts, also has presented barriers.

As with all important Jewish concepts, the meaning of each these precepts lies in particular interpretations. According to Rabbi Blau, the prohibition against mesira, though widely honored, may not be relevant in democratic societies. The purpose of the law was to protect Jews from tyrannical governments, such as Nazi Germany's. Thus, the prohibition was created to protect Jews from the government. The same reasoning does not apply in a legitimate democracy.

Moreover, there are exceptions to mesira – for instance, when circumstances are such that the religion's internal mechanisms cannot deal with an internal problem. And a perfect example, according to Blau, is child sex abuse. But observant Jews may not be willing to act in contravention of a law like the prohibition against mesira without first consulting a rabbi on whether the exception actually holds in the particular case, which can delay, if not forestall, reporting.

Yet, the Rabbinical Council of America at its Convention this week issued a resolution that would seem to open the door to reporting abuse:

•[The RCA] reaffirms its unqualified condemnation of all forms of child abuse.
•It reaffirms its halakhic position that the prohibitions of mesirah and arka'ot do not apply in cases of abuse.
•It will regularly issue on its website and to the media appropriate statements of condemnation when public attention is drawn to a case in which Jews are either victims or perpetrators of abuse.
•It will regularly evaluate the competence of its members in understanding and responding to issues of child abuse and initiate training and continuing educational opportunities for all of its members in this area every year.
•The members of the RCA address the issues of child abuse in their communities in at least one sermon, lecture or article within the next twelve months, and that contact information for local abuse services be displayed in a public place in all synagogues, schools, and Jewish community institutions serviced by its members.

Other Aspects of Jewish Law May Also Make It More Difficult for Child Sex Abuse Victims to Find Justice

Unfortunately, the prohibition against mesira is not the only precept of Jewish law that has made it difficult for child sex abuse victims to get help. There is also the prohibition of "lashon hara," which means "evil tongue," and forbids speaking badly of others. It creates an impediment to survivors even telling members of their own communities about the abuse, let alone the civil authorities. Some supporters of adults who have been accused of abuse also have invoked lashon hara to prohibit others from telling outsiders.

There are also cultural elements at play. "Shidduch" means "finding a spouse," and in some circles, the drive to find a marriage partner is a very powerful force. For the most part, religious Jews enter into arranged marriages in which one's lineage and family reputation determine desirability on the marriage market. Making a good match, or "Shidduch," is of paramount importance within these communities. The stigma of being a victim of abuse can deter marriage partners. Therefore, there is strong incentive for the entire family to stay mum about the issue, and for the victim himself, or herself, never to mention it.

In addition, there has been strong communal pressure in Orthodox communities to keep the problem internal. This element has decreased in the Orthodox community, which is divided among diverse synagogues and congregations, but it remains a force in the ultra-Orthodox community, as I will discuss below.

Finally, there has been the problem of denial. Of course, we see denial in many child sex abuse situations, whether the context is religious or secular. The difference here is that, in the Jewish community, denial regarding clergy child sex abuse has been worsened by the belief that one should keep the halakh (Jewish law), which plays an important role in creating a self-identity for the Jewish communities. Living an observant life is transformative. An Orthodox Jew believes he or she will become a better person by keeping the laws, and that belief can translate, for some, into a decision generally to ignore modern studies or media on any issue, because the modern information could have the capacity to call into question their entire lifestyle. When the issue is child abuse, the consequences of that belief can be tragic.

In sum, within Orthodox Judaism, some adhere to a set of internal rules the effect of which is to prevent child sex abuse victims from speaking about their abuse, getting help, or filing criminal charges against perpetrators. Fortunately, however, secular law has provided some of the pressure that is needed to establish a pathway out for the victims. The recent scandals (and convictions) involving Rabbi Yehuda Kolko and Rabbi Baruch Lebovits were a result of the victims bravely coming forward even despite community pressure, and they are surely an indication that the tide has been turning.

Orthodox Jews Should Be Praised for Openly Debating What Should Be Done About Clergy Child Sex Abuse – and Acknowledging that It Occurs.

Moreover, there has been a healthy and open debate among Orthodox Jews regarding what to do about this very serious problem. The Flatbush Shomrim announced this last week that child sex abusers should be prosecuted, and advised fellow Jews to report sex abuse directly to the authorities. Ben Hirsch, the President of Survivors for Justice – the first organization of its kind in the Jewish community – praised this move in an op-ed for the Jewish Star.

As with the Catholic survivors' movement, Hirsch explained that secrecy has been in the leaders' interest, not the children's:

"[O]ne does not have to be a cynic to conclude that the rabbinic establishment has a vested interest in keeping reports of abuse within the community. For leaders who could be facing criminal and civil liability, invoking concepts like mesira and chilul Hashem to stop people from reporting is little more than a form of self-protection. Self-protection that, as the past 40 years have shown, has come at the expense of the protection of our community's children."

Hirsch then likened the Jewish situation to that of the Catholics:

"[T]he cover-ups have resulted in hundreds of victims whose abuse could have been prevented. Dealing with reports of sexual abuse internally covers-up the crime, usually with catastrophic results when the pedophile strikes again–something we are hearing about daily in reports about the Catholic Church and frighteningly in our own community as well.

The Torah teaches us to avoid offering counsel in situations where we may be a nogea b'dovor (an interested party). This applies equally to rabbis, whom the Torah nowhere exempts from this rule. As such, because of their inherent conflicts of interest in this issue, I respectfully suggest that rabbis be precluded from being involved in this issue except in very limited ways–namely, encouraging people publicly and in private to go directly to the authorities and supporting them practically, emotionally and socially in that process."

Hirsch offers persuasive arguments, and remarkable conclusions, that bode well for child sex abuse victims in the Orthodox Jewish community.

Unfortunately, the same cannot be said for the ultra-Orthodox, or Chasidic, Jewish community, which as of now is far from being able to aid the victims within the community. A recent announcement in New Square reiterated the principle that abuse should not be reported to the authorities, although it did at least establish a path for reporting the abuse to an internal committee.

As we know from the other universes within which child sex abuse has been a problem, keeping the issue internal is never the best – or even a good, or acceptable – path for the victims. In addition, there is another impediment to justice in this community: Rabbi Blau noted that Chasidic community members defer to the Jewish Laws of Tzniut, which command modesty in both dress and speech and in turn forestall discussion regarding private body parts and improper touch. Victims therefore may lack even the basic vocabulary to report the abuse. And the community is so closed off that communal pressure to keep the issue secret is extraordinary, with few, if any, openings for outside forces such as police, prosecutors, or the media to bring the victims some relief.

Still, there are glimmers of hope from within even the ultra-Orthodox community. Rabbi Shalom Yosef Elyashiv has ruled that the Jewish law not only does not bar reporting, but rather "one should report (an abuser) to the secular government authorities [police, etc.]; and in this there is benefit to society . . ." Thus, the exception to the law against reporting is actually quite strong. That means the barriers to reporting in the ultra-Orthodox universe are more cultural than legal.

Of all of the religious organizations facing these issues, the Orthodox Jews appear to be moving most quickly to the position that the child victim's needs must trump the organization's preferences, even when it means re-examining common interpretations of certain religious prohibitions. For that, the community deserves praise.


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Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is hamilton02@aol. com.