Is there any legitimate basis today to the Jewish concept of mesirah (the prohibition to inform to a secular government) when it comes to child abusers/molesters? Either in Israel, or anywhere else in the world?
In short – I do not believe that there is any legitimate basis to the concept of mesirah.
Both in Israel and the United States the government operates a judicial system that is generally fair and unbiased. We should be supportive of efforts to stop child abuse in all cases. In fact, I believe that in some jurisdictions clergy and other synagogue professionals, particularly those involved in religious education, are mandatory reporters to the police in cases of suspected child abuse.
I believe that we should be more cautious in cases of abuse and always lean toward protecting children. I saw the damage that abuse caused the children of a family (not to mention the damage caused to the synagogue or community at large). This synagogue failed to report immediately and its leadership has to live with that failure to protect. No child should have to suffer in that way.
Your question is good, but the answer is clear. We need to be mindful of where our expertise ends and to let professionals who are skilled at their work help when there is any question. To stand idly by does not represent the best of our Jewish values.
The short answer: No, there is no basis nowadays for this. Jewish criminals should be reported.
The long answer: Mesirah is referenced in rabbinic literature as one of the worst sins possible. There are statements to the effect that one who turns a fellow Jew in to the authorities receives no share in the world to come and even that he or she should be killed outright if the opportunity presents itself. (See, for example, Rambam, Mishneh Torah, Laws of Assault and Damages, 8:9-11.)
Why the extreme animus towards the moser? I think that this needs to be understood in its proper cultural context.
Before the advent of modern American-style democracy, the relationship between government and governed, when the governed were a distinct ethnic group, was akin to negotiated settlement between two antagonistic populations living in a tentative state of coexistence. In this order, Jews were a distinct group and seen as such both by themselves as well as by the government authorities.
In this situation there were times when things were better for the Jews and times when things were worse, but the relationship between the Jews and the government/majority population was always tense. Even where the Jews had rights, those rights were generally secondary and contingent upon good will and the current political climate. Additionally, in many of these communities, such as Roman Palestine or Medieval Spain, the Jews had rather robust means of internal policing and legal self-determination, at least over their own population.
Considering the above, it was considered to be the absolute height of treachery for a Jew to take a local problem to the government. First of all, the Jews had their own courts with enforcement power. Second of all, any case involving “Jewish crime” had the possibility of tipping the scales of governmental policy to the detriment of the Jewish population, sometimes even acting as an excuse for a pogrom. It was not lightly that the rabbis condoned murdering such a person.
However, the modern democratic society is a different animal altogether. Although Jews (as well as other minorities) can still be understood sociologically as a discrete unit, the Jew is as much a citizen of the country as anyone else. There is no us-and-them, in these systems we are all “us”. (I first heard this point, or something like it, in a lecture from Rabbi Aryeh Klapper on the Meiri, a version of which can be heard heard here.)
Hence, the governmental organizations that function to police or punish criminals are really an extension of us as much as of our Gentile neighbors. Since the government is not a separate entity but our representatives, there is nothing “treacherous” about turning a person in. The same is true for many other countries nowadays, including Israel.
Although one could make the halakhic argument that an observant Jew should have his or her financial disputes adjudicated in a religious court, not doing so would violate the prohibition of arkaot (going to secular court) but would not be mesirah. When it comes to criminal court, since there is no such thing as a religious Jewish court with criminal jurisdiction, one has no choice but to report people to the secular authorities. One must protect the victims here not the criminals, and this is the only viable way, in the US, in Israel, and, basically, everywhere else Jews live nowadays.
The only time/place one may not report Jewish criminal activities to secular authorities is if the government is in an antagonistic relationship to a distinct and ruled subgroup of Jews who would be endangered by this – but this is not relevant in modern democratic societies. In our societies, Jews who engage in criminal activities may be reported, and should be. If this Jew is endangering the welfare of other people, Jews or Gentiles, whether by fraud, violence or sexual abuse, he or she absolutely must be reported.
I am reproducing here a section of my book, Love Your Neighbor and Yourself: A Jewish Approach to Modern Personal Ethics (Philadelphia:Jewish Publication Society, 2003), the chapter on Family Violence. See that chapter for more on this subject. This began as a rabbinic ruling (teshuvah) for the Committee on Jewish Law and Standards of the Conservative Movement, and it was approved by that committee, so it is the official understanding of Jewish law in the Conservative Movement . Elliot Dorff
Traditional Jewish law forbids mesirah, turning Jews over to non-Jewish courts for judgment.[i]This prohibition undoubtedly arose out of two concerns.First, rampant discrimination against Jews in society generally made it unlikely that Jewish litigants would get a fair hearing.On the contrary, a dispute among Jews aired in a gentile court might provide the excuse for punishing both Jewish litigants and perhaps the entire Jewish community.Better that we Jews not call attention to ourselves altogether.
Moreover, rabbis over the generations wanted to make sure that Jewish law remained authoritative.In some times and places and for some purposes, Jews were forced to use non-Jewish law and courts.Specifically, if Jews were to engage in business with non-Jews, they had to use non-Jewish law, and it then became too cumbersome and too confusing to switch to Jewish law for their inter-Jewish trade.Moreover, doing so might well be unfair if all other business was regularly conducted according to the norms of another legal system, leading Jews to assume that the same rules applied to their trade with other Jews. For these political and moral reasons, Samuel, a rabbi of the early third century, already announced the principle of dina de'malkhuta dina, the law of the land is the law.That was restricted, though, to civil matters, and until the Enlightenment, Jews did, in fact, use Jewish courts to adjudicate even their own civil disputes, although often by the generally accepted, non-Jewish laws of commerce in force at the time.Since the permission to use non-Jewish courts embedded in the principle of dina d’malkhuta dina only applies to commercial affairs, how, then, can a Jew in good conscience inform civil authorities about another Jew who is apparently abusing his or her family member, a child, or someone else?
Since the advent of the Enlightenment, a number of rabbis have ruled that the laws of mesirah no longer apply. Some, like the Arukh Ha-Shulhan, have maintained that using non-Jewish courts was prohibited only when they were unfair to Jews (and perhaps to others as well), and when the prosecution of a Jew in a non-Jewish court would be the occasion for persecution of the entire Jewish community.Since neither of these factors characterizes courts in Western democracies nowadays, Jews may use non-Jewish courts.[ii]
Even if one maintains that the prohibition of using non-Jewish courts still holds, it would not apply to criminal matters, where Jewish courts have no jurisdiction or power to punish.Thus Rabbi Moses Isserles, who lived in a pre-Enlightenment society (sixteenth-century Poland), cites others who lived even earlier who hold that “if a person is struck by another, he may go to complain before the non-Jewish court even though he will thereby cause great harm to the assailant."[iii]Since Jewish courts in our day have even less power and authority to handle such matters than they did in pre-Enlightenment times, Ashkenazi Jews, those whose ancestors came from Central and Eastern Europe, can rely on that ruling.
Sephardic Jews generally follow Rabbi Joseph Karo, author of the Shulhan Arukh on which Rabbi Isserles commented.Rabbi Karo asserts that the prohibition of mesirah continues to his day, making it illegal for a Jew who is being harassed to report that to the civil authorities.Even Karo, though, maintained that when there is a meitzar ha-tzibbur, a menace to the community as a whole, mesirah is permissible.[iv]He was probably talking about non-Jews attacking the Jewish community as a whole for the reprehensible action of one of its members.Legal authorities in Western democracies in our day are unlikely to inflict penalties on the Jewish community as a group on the excuse that there are some Jews who are batterers;governments in the Americas, Europe, and other places are much more likely to prosecute such people as individuals, just as they would any other citizen who violated the law.
In our time, though, abuse of spouses, elderly parents, and especially, children has unfortunately reached the extent of a meitzar ha-tzibbur in three other senses.First, those who abuse others constitute a physical threat not just to the ones they have already abused, but to all potential, future victims as well -- and therefore to the entire community.Second, abusers pose a threat to the sense of well-being of the community as a whole by making it an unsafe place to live.Third, abusers within our community defame us as a community and God whom we worship, and the desecration of the divine Name (hillul ha-Shem) involved is also a source of pain and suffering for the community as a whole.
Consequently, it is certainly within the spirit of these precedents, if not their letter, to assert that for both Sephardic as well as Ashkenazi Jews, witnesses to abuse may, and indeed should, enlist the help of governmental agencies to stop the abuse.The Conservative Movement's Committee on Jewish Law and Standards has accordingly ruled that witnesses to abuse should inform the police so that victims can avail themselves of the remedies and protections that civil law affords.[v]
Rabbis who are witness to abuse present a special case, forAmerican law recognizes a clergy-client (usually called "priest-penitent") privilege.Thus if a Jew in the course of counseling with his/her rabbi disclosed that s/he had engaged in spousal or child abuse, American law would protect the confidentiality of that disclosure unless the counselee waived that right or indicated his/her intention to engage in future abuse of the same kind.Absent either of those conditions, the rabbi might be successfully sued for breaching the counselee’sprivacy by reporting the past abuse to civil authorities -- although some states interpret the immunity of clergy to the child abuse reporting laws very narrowly.[vi]Suffice it to say, then, that the provisions in Jewish law demanding that we save life and limb would require those who know about an abusive situation to report it to the civil authorities so that it might end, and, from the perspective of Jewish law, that would apply to rabbis no less than to any other Jew.Rabbis who become aware of an abusive situation in a counseling setting, however, should consult with an attorney to determine whether civil law in their jurisdiction grants them the right to report the matter in the specific case before them; if not, they should seek to end the abusive situation in some other way.[vii]
[i].B. Gittin 88b; M.T. Laws of Courts (Sanhedrin) 26:7.See Dorff and Rosett (1988), pp. 320-324, 515-539.See also Herschel Schachter, “Dina deMalchusa Dina," Journal of Halacha and Contemporary Society 1:1, and Simcha Krauss, “Litigation in Secular Courts," Journal of Halacha and Contemporary Society 11:1.I am indebted for much of the material of this section to the article by Rabbi Mark Dratch, “The Physical, Sexual and Emotional Abuse of Children," in Shalom Bayit: A Jewish Response to Child Abuse and Domestic Violence, Ian Russ, Sally Weber, and Ellen Ledley, eds. (Los Angeles: University of Judaism and the Jewish Family Service of Los Angeles, 1994 [the edition for the Orthodox community]), pp. 1-8, 59-62.
[iii].S.A. Hoshen Mishpat 388:7, gloss, and see comment #45 of the Shakh on that passage.Shakh there (on 338:12), in comment #60, understands Isserles to be saying categorically that “if someone is accustomed to strike others, it is permissible to hand him over [to gentile authorities] for one's protection so that he will not strike people any longer." See also glosses of Isserles to S.A. Hoshen Mishpat 388:9 and 26:4 and his commentary Darkhei Moshe to the Tur, Hoshen Mishpat 338, comment #14.The earlier sources he cites are the Teshuvot Maimoniot of Maimonides (1140-1204, Spain and Egypt), Nezikin, Responsum #66; the Mordecai (Mordecai ben Hillel Ha-Kohen, 1240?-1298, Germany), R. Jacob ben Judah Weil (Germany, d. 1456),and Maharam of Riszburg (possibly R. Menahem of Merseburg, first half of the fourteenth century, Saxony, Germany).
[iv].S.A. Hoshen Mishpat 388:12, according to the text quoted by Shakh at that place, comment #59, and by the Gaon of Vilna (Gra), #71.
[v]. This was openly declared as its ruling in my responsum on family violence, validated unanimously in 1995,on which much of this chapter is based.
[vi].The exception to the clergy/client privilege was established in the case of Tarasoff vs. Board of Regents of the University of California 529 P. 2d 553 (Cal. 1974); modified 551 P. 2d 334 (Cal. 1976), which also affirmed the general privilege itself.The California Evidence Code, Article 8, Section 1033, states: “Subject to Section 912, a penitent, whether or not a party [i.e., litigant in the case before the court], has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if he claims the privilege;" and Section 1034 states: “Subject to Section 912, a clergyman, whether or not a party, has a privilege to refuse to disclose a penitential communication if he claims the privilege."The parallel Arkansas statute, for another example, reads: “No minister of the gospel or priest of any denomination shall be compelled to testify in relation to any confession made to him in his professional character, in the course of discipline by the rule of practice of such denomination."New York and Michigan, like California, substitute “allowed" for “compelled," thus giving the penitent the right to prevent the clergyperson from revealing the confession made in his or her capacity as a member of the clergy.This “seal of the confessional" has been generally recognized by the civil courts even in those states that do not have such a privilege written into their evidence codes, even though by the old common law confessions were not considered privileged.New York is possibly the first of all English-speaking states from the time of the Reformation to grant this protection, for it is documented in a decision De Witt Clinton made in June, 1813.See Louisell, Kaplan, and Waltz, Cases and Materials on Evidence, 3d edition (Mineola, NY: Foundation Press, 1976), pp. 666-7.I would like to thank Rabbi Ben Zion Bergman for these references.
[vii].It is important as well to determine whether the clergy member's immunity from the legal responsibility to report abuse is narrowly or broadly construed in the state in which it takes place.Thus although California has written that privilege into its laws of evidence, Dr. Ian Russ has shared with me an official opinion of the state's Office of the Attorney General according to which a clergy member's immunity from being a mandated reporter of child abuse only exists in the “priest-penitent" relationship and not when the rabbi is serving as a teacher, camp counselor, or educational director.Under this interpretation, the privilege would never apply to those professionals or rabbis acting in those capacities; it probably would not even apply to a cantor, for even though cantors are construed as clergypersons in California for the purposes of performing weddings, they are not regularly called upon to engage in confidential counseling, and their job description rarely includes that.Moreover, even for rabbis, the privilege may be very narrowly construed, for, as the definition of priest- penitent privilege in the third paragraph of this opinion and in the last paragraph of it indicate, it exists only when the religion itself affirms it, but Judaism prefers saving life and limb to privacy.
The Attorney General's office opinion states the following:
RESPONSIBILITY OF THE CLERGY UNDER THE CHILD ABUSE REPORTING LAW
(Penal Code Sections 11165-11174)
Participation of the clergy in reporting a case of suspected child abuse is entirely voluntary.Priests, ministers, rabbis and other clergy are not included in any of the categories of professionals required to report child abuse....(See Stats. 1980, ch. 1071, #1-4)...
It must be remembered, however, that insofar as a member of the clergy is also practicing a profession or vocation which is included in one of the categories of mandated reporters, he or she must report suspected child abuse discovered while acting in that capacity.For instance, clergy who are teachers, school administrators, marriage, family and child counselors, or social workers are required to report....In no event, however, may clergy be required to reveal “penitential communications," for these communications are protected by the penitent-clergyperson privilege.
A "`penitential communication' is a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a clergyperson who, in the course of the discipline or practice of his or her church, denomination, or organization, is authorized or accustomed to hear such communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep such communications secret."
This penitent-clergy privilege, when coupled with the Right to Privacy guaranteed by the California Constitution, may serve to limit voluntary reports of child abuse by the clergy.The privilege can be effectively waived only by the penitent, for even if a clergy member wishes to waive the privilege and disclose a penitential communication, the penitent may nonetheless invoke the privilege to bar disclosure.
The clergy member and the penitent are joint holders of the privilege.That means that the clergy member has the right to invoke the privilege on his or her own behalf, or the penitent has the additional right to prevent the clergy member from disclosing a penitential communication.Thus, the intent of the law to afford maximum personal privacy to penitents is manifest.Accordinglyit appears that a clergy member may not report, even voluntarily, child abuse learned of in the course of receiving a penitential communication unless the penitent himself or herself waives the privilege afforded that communication.
Remember, however, that the legal limitations on disclosure of information received in confidence apply only to those communications that in every aspect meet the definition of a “penitential communication" as noted above.Thus, it appears that suspected child abuse learned of through other “confidential" communications received by clergy in the course of performing pastoral functions may be reported under the Child Abuse Reporting Law.Whether or not a clergy member should do so is a matter of personal conscience and integrity measured in the light of the moral and religious obligations of the clergy member's own religious affiliate.
MARGARET E. GARNAND, Deputy Attorney General, Sacramento
Is there any legitimate basis today to the Jewish concept of mesirah (the prohibition to inform to a secular government) when it comes to child abusers/molesters? Either in Israel, or anywhere else in the world?
The concept of mesirah, found in the Talmud and in the medieval legal codes (see Shulchan Arukh Choshen Mishpat 388, par. 7 and 9), prohibits Jews from informing on other Jews to Gentile authorities and from delivering other Jews or their property into the custody of those authorities. The prohibition made sense in a world where the Jewish community suffered oppression at the hands of the dominant society, when Gentile governments denied equal justice to Jews and used their laws to exploit the Jews living in their midst. To turn a Jew over to the Gentile legal authorities exposed that Jew to unfair pressure, extortion, and even mortal danger. In addition, since the Jewish community had its own legal system that enjoyed some powers of enforcement, it was usually unnecessary to call upon outside authorities to protect the community from lawbreakers. The Jews, operating through the mechanisms of Jewish law, were generally able to protect their own.
The world has changed greatly for those of us living in liberal, democratic societies. Today, our Jewish courts do not enjoy legal autonomy and do not exercise the power to enforce Jewish law. More importantly, we enjoy the status of equal citizenship. This means that, in our societies, there is no such thing as the “Gentile government.” The government is elected by its citizens, including the Jews, who are no longer an alien presence in the midst of the country. We, in other words, are “the government”; its laws are our laws, not those of some foreign oppressor. We empower the legal system – the courts, the police, the administrative agencies – to work on our behalf, to enforce the laws that we ourselves have made. The concept of mesirah simply does not apply to us, for when we cooperate with the demands of the law of the state it is our government – and not some “Gentile” regime – that we are dealing with. When that government takes action to protect us from child abusers and molesters, it is simply doing what we have commissioned it to do: to protect us, along with all our fellow citizens, from these lawbreakers.
In a world such as ours, so long as we enjoy equal rights and citizenship in our societies, the doctrine of mesirah has no place. We have no reason to shield Jews from the workings of dina d’malkhuta, the law of the state. Our interest, rather, is to see that justice is done: that the legal system works fairly and equitably for all and that those who would endanger our children are swiftly apprehended and properly punished.
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