Wednesday, November 13, 2013

Discovering Rav Elyashiv Revisited

In my JA article on RYSE zt"l I wrote, in its final section:

Reporting a MolesterIn 2004, the American posek Rabbi Feivel Cohen posed the unfortunately contemporary question of whether it is permissible to inform the authorities of the activities of a child molester (vol. 3, teshuvah 231).
relyashivRav Elyashiv bases his response on Teshuvot HaRashba (3:393), which states that when there are clear witnesses that someone has committed crimes, beit din is allowed—even in our day and age—to impose upon him monetary fines and corporal punishment. The Rashba asserts that this is part of our responsibility of kiyum haolam, sustaining the world. For were we to limit our punishments to the precise parameters that we find in Torah, our code of law would not suffice to maintain society. It is therefore appropriate for beit din to enact appropriate laws in addition to the laws of the Torah, so long as the government of that particular time and place gives us the authority to do so.
Rav Elyashiv adds that even if the government does not grant us such authority, it remains incumbent uponbeit din to ensure tikkun haolam. Therefore, even if the community cannot impose penalties, the tikkun haolamof curtailing molestation is sufficient reason to inform the authorities of the perpetrator (so long, qualifies Rav Elyashiv, as the charge is borne out by evidence).9
9. Rav Elyashiv indicates that the available evidence must at least meet the halachic criterion of raglayim ladavar (literally, “the matter has legs”). He does not define the criterion in this teshuvah. However, from Rav Elyashiv’s dissenting minority opinion in a 1968 case before the High Court of the Chief Rabbinate of the State of Israel (Piskei Din Rabbani’im Mishpatei Shaul, siman 19) it emerges that one definition of raglayim ladavaris the presence of abnormal phenomena consistent with an assertion. I would venture that in the case of molestation, the criterion would be met by unusual behavior patterns on the part of either the perpetrator or the victim that are consistent with an occurrence of molestation.
JA received the following "Letter to the Editor" concerning this section:
Respectfully, Rabbi Yosef Gavriel Bechhofer’s summary of Rav Elyashiv’s ruling on reporting a child abuser to secular authorities seems to confuse salient points (“Discovering Rav Elyashiv,” summer 2013).
In his letter to Rav Elyashiv, Rabbi Feivel Cohen carefully crafted several scenarios—the underlying premise of all being the reporting of a child abuser to the secular authorities without a prior rabbinic ruling—and accordingly, Rav Elyashiv’s response must be read in this context.
With this foundation, Rabbi Cohen presented three hypothetical situations:
1. An instance where one has absolute knowledge of the abuse.
2. An instance where one has a credible allegation of abuse (“raglayim ladavar”).
3. An allegation lacking even raglayim ladavar but instead is based upon some suspicion or rumor.
Rav Elyashiv responded that in instances where the matter is clear, one should report the child abuser to the secular authorities. However, allegations lacking even raglayim ladavar but based only upon eizeh dimyon, some imagined thing, may not be reported to the authorities.
One knows when one has clarity over a matter. This leaves us with the task of defining “raglayim ladavar.”
The term raglayim ladavar is introduced to this exchange by Rabbi Feivel Cohen and accordingly deference is given to his intended meaning of the term. Rabbi Cohen and Rav Elyashiv knew each other well and corresponded regularly; they understood each other.
Rabbi Cohen was recently asked to define the term raglayim ladavar as used in Rav Elyashiv’s pesak. He explained that the pesak directed one to “use his God-given common sense” to determine whether an allegation met the threshold of raglayim ladavar and should thus be reported to the secular authorities.
Indeed, Rav Elyashiv’s pesak is glaring in its absence of any directive to ask for a rabbinic ruling before reporting to secular authorities. Instead, working within the underlying premise of the she’eilah as posed, he provides guidelines for instances when one should report and when one may not.
Respectfully, Rabbi Bechhofer’s appendage of clear witnesses, beit din and evidence to this dialogue may confuse the implementation of a clear pesak.
Rav Elyashiv’s written ruling is an expression of his intent that cannot be challenged in good faith. In short: all credible allegations of child abuse should be reported directly to the secular authorities without first seeking a rabbinic ruling.
Only the secular authorities have the expertise to properly investigate allegations of child abuse and determine whether an arrest and prosecution are warranted, and the resources and policing power to protect children from this exigent danger.
Ben HirschBrooklyn, New York
Ben Hirsch is a co-founder of Survivors for Justice (, an organization that advocates and educates on issues of child safety.
Ed.: Please note that as of press time, we have been unable to reach Rabbi Feivel Cohen to corroborate the views expressed in Mr. Hirsch’s letter. 
I was not granted the opportunity to respond to the letter. This was the response I composed:
Mr. Hirsch and I are not as far apart on the halachah l'ma'aseh that emerges from Rav Elyashiv zt"l's  teshuvah on molestation. However, there is one statement in Mr. Hirsch's letter upon which I would like to comment - viz., " In short: all credible allegations of child abuse should be reported directly to the secular authorities without [author's emphasis] first seeking a rabbinic ruling." I am not sure what Mr. Hirsch means by "rabbinic ruling," but I feel it is important to note that as Orthodox Jews there is nothing that one "should" do "without first"  consulting a rabbi. 
"The Orthodox system is built on the notion of aseh lecha rav (Avot, chap. 1, mishnah 6), having access to spiritual leaders and guides" 
(Rabbi Shaya Karlinsky in Jewish Action, 
Every Orthodox Jew should have a rabbi that is wise, that he or she respects, to whom he or she can and does turn for counsel and guidance, and who he or she can consult on matters of the most serious nature. It may not be necessary to seek a ruling, but, to paraphrase Mr. Hirsch: "In short, after appropriate consultation with one's rabbi, all credible allegations should be reported directly to the secular authorities."
In the current issue, JA has printed Rabbi Feivel Cohen's shlita's response to Mr. Hirsch's letter (with their caveat):
This letter is in response to a request from Jewish Action that I state my view and, to the best of my knowledge, that of Rav Yosef Shalom Elyashiv, zt”l, concerning the topic of reporting molestation.
What prompted this request was a letter published in the winter issue, in which the writer purports to set forth both my view and, more importantly, that of Rav Elyashiv on this topic.
Firstly, I thank the editorial board for making this request.
In order to set the record straight, I need to preface my comments with the following:
As is made clear in Rav Elyashiv’s written response (of which I have the original copy, and which was subsequently printed in Kovetz Teshuvos, a compendium of Rav Elyashiv’s responsa), his answer to the question posed to him is based on Teshuvas HaRashba (volume 3, siman 393; also quoted in the Beis Yosefon Choshen Mishpatsiman 2), in which the Rashba posits that any rav or group of rabbanim who have rabbinical jurisdiction over any locale have the Torah-authorized power to go beyond the punitive measures—both corporal and financial—generally set forth in the Torah for malefactors and impose such penalties as they deem appropriate.
This special empowerment is where one’s malfeasance tends to endanger the desired and called for societal contract among men.
It goes without saying that the aforementioned rav, or his appointed agent (“bo’rrim” in the Rashba’s parlance—not to be confused with the same term when used in the context of a beis din), must practice due diligence in determining the veracity of one who reports such conduct.
All of the above is adduced by the Rashba from numerous citations from the Gemara.
After quoting the Rashba, Rav Elyashiv clearly states that all of the above (that is to say both the nature of the penalty and the determination of the report’s veracity) is at the sole discretion of the rav, and at times, with the appointed agent.
The rav may find that it would be most valuable to seek the input of the secular authorities who have much experience in these matters and also to seek the input of individuals who are privately engaged professionally in these matters.
In conclusion, it is abundantly clear to me that according to Rav Elyashiv, it is absolutely forbidden for any individual to report any malfeasance to the secular authorities without prior authorization from a rav empowered to do so as described above.
Rabbi Feivel CohenBrooklyn, New York
Ed.: Please note the OU’s position, like that of the Rabbinical Council of America, is that “those with reasonable suspicion or first-hand knowledge of abuse or endangerment have a religious obligation to report that abuse to the secular legal authorities without delay.”
ודוק היטב. ישמע חכם ויוסיף לקח


  1. You might be interested to note that Professor Alan Dershowitz writes in one of his books: Rape is the most under-reported of crimes. It is also the most over-reported.

  2. In all versions, the authority to go to the authorities resides in beis din and their agents, and possibly the local rav. This is unlike the OU' and RCA's position, which recognizes that all too often they cannot be relied upon to fulifl their duty. One can justify the latter position given RYVSE's groundwork on bemqaom she'ein ish grounds, but one cannot say it actually is his position.

    The OU suppressing your response is dihonest. But they may feel that lives are at stake if questions are raised about the appropriateness of their ruling, and that would justify dishonesty.

  3. This comment has been removed by the author.

  4. The OU and RCA seem to recognize that some of our communities today are Jewishly dysfunctional, necessitating an alternative approach to reporting a Jewish alleged abuser, if justice is to be served. Did any great poskim of the past anticipate this sad situation and propose a solution?

  5. האם נסיק מכך שהתורה עוסקת בענייני העולם - רפואה, בחירת מקצוע, כלכלה וכו' עד הפרט האחרון? לא ולא! אך בכל זאת התורה היא "תורת חיים", ולתלמידי חכמים העוסקים בתורה, שדפוסי החשיבה שלהם יונקים מתורה יש סייעתא דשמיא, ובכוחם לכוון תחומים רבים מצד הקשר של אותו תחום לעולמה של תורה. רוח זו יונקים הם מרבותיהם, שאליהם השתלשלה התורה ממעמד הר סיני. לדוגמה: לו היתה יודעת מדינת ישראל כיצד חובק עולם הכשרות עולמות וחוצה גבולות, כאלה הנוגעים לנזקי נפשות, נזקי ממון, איכות הסביבה ועוד, הייתה ממנה שר לענייני כשרות בממשלתה. מתוך כך אנו מצווים לשאול תלמידי חכמים מה יש לתורה לומר בכל תחום שבו אנו עוסקים - פסיכולוגיה, חברה, חינוך, משפט, תרבות, ועוד. כך תאציל התורה מרוחה על הבריאה כולה, ונשיב את כל העולם לצור מחצבתו, בב"א.

    הרב בן ציון עמר שליט"א - רב הישוב 'שבות רחל'

  6. "But they may feel that lives are at stake if questions are raised about the appropriateness of their ruling, and that would justify dishonesty."


    Yet they published HaRav Feivel Cohen shlita's response. How would RYGBs response been any different?

  7. I just realized that what I posted above might be misinterpreted. He said *both* sentences after the colon.

  8. RYGB,

    OT, but I'd like your thoughts about the GET dispute issues. (In general; not case specific.)

    Many Get discussions are premised upon the notion that a husband is morally obligated to provide his wife a get upon demand. But that is contrary to Jewish law and ethics which does not support divorce-upon-demand. Suppose the wife meets a new guy she wishes to marry and thus demands a Get from her husband. He is unequivocally not required in any moral or legal sense to give her a Get. If the wife decides she'd rather be single than married or if she decides she doesn't love him anymore or decides he doesn't make enough income to support the lifestyle she is used to, and thus demands a divorce, he needn't divorce her and Halacha fully supports his position in every legal and moral sense. He can decide he wishes to remain married to her.

    Additionally, Rabbeinu Gershom gave this same right, that Halacha gives husbands based on Torah Law, to wives as a matter of binding rabbinical decree. Rabbeinu Gershom gave a wife the right to decline to accept a Get her husband wishes to give her. R"G decreed that the wife has the right to decide to remain married to her husband even if he wants to divorce her. And he then must remain married to her and continue supporting her. Are you suggesting this Torah/Halachic concept and rights be overturned due to Western Values and American weltanschauung that support divorce-on-demand?

    The point here being that the demand for a Get is not always justified. And where a Beis Din has not adjudicated that based on Jewish Law that there is a right to a divorce, the spouse has no legal or moral obligation to give or accept a Get.

    As an aside, until very recently even American (i.e. non-Jewish) courts could routinely reject a petition for divorce becuase the court felt that the reasoning for requesting a divorce was not a strong enough reason (per law) to justify the couple getting divorced.

  9. "In conclusion, it is abundantly clear to me that according to Rav Elyashiv, it is absolutely forbidden for any individual to report any malfeasance to the secular authorities without prior authorization from a rav empowered to do so as described above."

    Given his involvement in the case, Rabbi Cohen's input on R. Elyashiv's position is certainly valuable. But even he cannot overturn the simple meaning of R. Elyashiv's psak. R. Elyashiv says the exact opposite of R. Cohen's claim. AS R. Bechhoffer has noted there remain some ambiguities in RYSE's psak but his word cannot mean what R. Cohen attributes to RYSE.

  10. moshe, it no way whatsoever does Rav Cohen say anything different than Rav Eliashev's written word. Indeed Rav Cohen's words go hand-in-hand with Rav Eliashev's psak that Rav Eliashev addressed to Rav Cohen.

  11. I agree with Dov. It even goes hand-in-hand with the presentation in the original JA article. RYGB's quote of RYSE talks about beis din's obligation to go to the authorities. The whole quote is about how the responsibility of tiqun olam in this situation is beis din's.

    I do not see where R' Hirsch deduces RYSE would allow reporting without obtaining a pesaq, since the case in question is where the people involved are themselves the dayanim.

    I wish RYSE would have addressed a situation where beis din lacks even that much power (eg there is no one beis din in charge), or what the masses should do if beis din refuses to follow his pesaq, but I haven't seen where he does. But I would this it's fair to imply from this piece that yes, in the ideal where one could count on the rabbanim to be both able and willing to follow his guidelines, one should ask whether the level of likelihood qualifies as raglayim ledavar.

  12. what R. Cohen says is not consistent with what RYGB wrote. It is a reasonable conclusion from the sources cited by RYSE, but it is not consistent with what RYSE's own conclusion at the end of the teshuva. This teshuva is being distorted in an effort to support the american aguda's position.

    I made my case in a hirhurim post a while back.

  13. Are you suggesting this Torah/Halachic concept and rights be overturned due to Western Values and American weltanschauung that support divorce-on-demand?

    No. Although your presentation of the Halacha is not accurate, we need not get into that here. When a civil divorce has been issued it is certainly unethical - and, worse, a Chillul Hashem - to withhold a get.

  14. YGB:

    You're suggesting that in a gittin case where the according to Torah Law, as codified in Shulchan Aruch, the husband does not have to give his wife the Get she is demanding, if she unilaterally obtains a civil divorce that overrides halacha and forces him to give a Get even though Shulchan Aruch says otherwise.

    For example, if she is seeking a divorce because she is interested in marrying a different man she likes, Halacha is the husband does not have to give her a Get. But YGB suggests all she has to do is go to civil court and unilaterally get a civil divorce and now halacha is overriden and he must divorce her since she obtained a civil divorce even though that was against his will.

  15. Don't be silly. He is not "forced" to give a get. But if he is concerned with his Olam Ha'Ba he better give that get!

  16. You're completely wrong. If his wife wants a Get because she'd like to marry the neighbor next door, as we were discussing above, he not only has no obligation to give a Get, he would get Olam Habo precisely for withholding a Get. Halacha prefers he not give a Get in that circumstance. Read Rambam. Read S"A.

  17. There are circumstances where a) he is required to give a Get and we force him to b) he is required to give a Get and we pressure him to but cannot force him c) he is required to give a Get but we cannot even pressure him other than advise him of his obligation (and if he fails to give it, he loses olam habo as you suggested) and d) he is not required to give a Get whatsoever, even though she wants one, and it is no mitzvah or obligation to give a Get. Au contraire.

    It is the latter case I am discussing.

  18. I do not believe category (d) includes any case where a civil divorce was already granted. Regardless of who started the procedings and his willingness to be divorced (ie even if she is a moredes). Once they not longer share a home and the possibility of onah is off the table, the marriage is a sham and we encourage his giving a gett.

    BTW, in the specific case MG gives, the Rosh says we should encourage the gett, since otherwise she may violate eishes ish to be with the man.

    About category (b), it seems from the Rosh and the Rama (EhE 154:21) that while lekhat-chilah Ashkenazim do not force him using corporeal means or nidui, bedi'eved the gett would be kosher. Just "since there is a dispute between great rabbis, it is appropriate to be stringent". But me'iqar hadin, it seems to me we hold like the Sepharadim -- that any situation where he is obligated to give a gett, pressure would not invalidate the gett.

  19. Micha Berger: Civil divorce being granted or not is irrelevant. Category (d) certainly can include cases where civil divorce was granted. Civil divorce can be obtained even if only one spouse wants it and the other does not.

    If in a case where the Torah says a divorce is not warranted... to use the example we were disucssing above where the wife found a new man she wishes to marry and thus needs a Get from her husband, she is not to be given a Get regardless per Halacha. Civil or no civil.

    And the Rosh is a daas yochid in that case [where she found a new man] where the vast majority of others do not say any such thing. But regardless the Rosh only says encourage not pressure or force.

    As far as b'dieved, it means exactly that. We cannot and should not engage in a b'dieved.

  20. YGB is wrong on all accounts. Divorce-on-demand is not a Jewish concept.


  21. It certainly is a Jewish concept. See the cited essay.

  22. YGB vs. all the Rishonim, Achronim, Shulchan Aruch which delineates the times a husband need not divorce his wife upon her demand for one.