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).

Rav 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 (www.sfjny.org), 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, http://www.ou.org/publications/ja/5764/5764summ/BRIDGING.PDF). 

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 Mishpat, siman 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