(2010/5770)

Last week’s essay (archived at www.koltorah.org) began our grappling with the difficult dilemma regarding the prohibition of Mesirah – informing the civil authorities of a Jew’s violation of civil law. We noted on the one hand the severity of the prohibition of Mesirah but on the other hand that there is some flexibility in regards to its application to a government such as the United States whose laws as well as treatment of Jews are essentially reasonable and fair. We continue in this essay our survey of rulings of leading contemporary Halachic authorities which exemplify how Poskim strike a balance between honoring the Mesirah prohibition and yet protecting the Jewish community from dangerous individuals in its midst.

An Epileptic Driver

Rav Ovadia Yosef (Teshuvot Yechave Da’at 4:60) was asked if it is permissible for a physician to reveal to government officials in charge of issuing drivers licenses that a particular candidate for a license is hiding the fact that he suffers from uncontrolled and unpredictable episodes of epilepsy. Rav Yosef responded that it is not only permissible to reveal this information but one is required to do so. He even rules that a doctor should violate his Hippocratic Oath not to reveal confidential information in this instance, since such a person driving a vehicle constitutes a danger to life and property. Rav Yosef stresses in this Teshuvah that just as it is most often forbidden to speak Lashon Hara, so too it is occasionally a Mitzvah to tell Lashon Hara if done with the intention to save others from serious harm.

Rav Yosef in this Teshuvah does not even raise the issue of Mesirah. This might be for a number of reasons, including the fact that he is not causing the potential driver to be imprisoned nor causing any direct loss, financial or otherwise. He is merely ensuring that the individual not receive that which he is not entitled.

 Theft

Rav Sinai Adler, the Rav of Ashdod, posed the following question to Rav Yosef Shalom Eliashiv (Kovetz Teshuvot 1:198). Cash was stolen from a Tzedakah box and all indications pointed to one individual. The situation was quite serious since the suspected offender had a large family and served as a Torah professional. In response Rav Eliashiv cited Teshuvot Panim Me’irot (2:155) who ruled in a case where there was Raglayim LaDavar, ample evidence, that a certain individual stole money, that he should be seriously punished. However, he refrained from permitting informing the local authorities, due to concern that they would kill the offender (see Bava Kama 117a citing Yeshayahu 51:20). Rav Eliashiv adds that since currently this concern is not relevant, it is essentially permitted to report the offender to the police (similarly, in Teshuvot Yabia Omer C.M. 10:7 Rav Ovadia Yosef permits reporting a Jewish murderer to a non-Jewish government that will incarcerate him for life, but not to a government that will execute him).

Nonetheless, Rav Eliashiv expressed concern for Chillul Hashem due to the suspect’s employment in a Torah field and left the decision to the discretion of Rav Sinai Adler to assess whether the damage caused by the report to the police would be worse than the theft. Rav Eliashiv assigned the decision to the local Rav who was intimately familiar with all the details of the situation and was therefore the one who was qualified to make the final decision in this case.

 Service as an Assistant District Attorney

An Orthodox woman serving as an assistant district attorney (ADA) in an American city was assigned the task of prosecuting an Orthodox man accused of severe child abuse. She asked me if Halachah permitted her to do so, and I consulted Rav Hershel Schachter. Rav Schachter responded that she may prosecute him, as Batei Din today lack any jurisdiction in criminal matters, so otherwise the accused would go unpunished and repeat his heinous crime.

 Rav Schachter explained that this ruling was based on Rashi (Gittin 9b s.v. K’sheirin and s.v. Chutz) and Teshuvot Maraham Schick (C.M. 50).  Rashi presents the universal obligation of Dinim, to ensure a just society, as the source for the rule of Dina DeMalchuta Dina, our obligation to honor civil laws. According to Rashi’s approach, the non-Jews’ obligation of Dinim impacts on Jews as well, to the extent that we must follow the laws they have promulgated to ensure a proper society. Thus, a non-Jewish government is Halachically empowered to punish Jewish criminals when Jews are unable to do so. Moreover, Jews are permitted to assist a fair non-Jewish government in justly prosecuting a Jewish criminal.

The Maharam Schick cites the following Gemara (Bava Metzia 83b and 84a) to further this point: Rabi Elazar son of Rabi Shimon met a police officer. Rabi Elazar said to him, "How can you detect the thieves . . . ? Perhaps you take the innocent and leave behind the guilty." The officer replied "And what shall I do? It is the king's command." [Rabbi Eleazar then advised this policeman how to determine who was a thief and who was not] . . . A report was heard in the royal court. They said, "Let the reader of the letter become the messenger." Rabi Elazar son of Rabi Shimon was brought to the court and he proceeded to apprehend thieves. Rabi Yehoshua son of Karchah, sent word to him, "Vinegar, son of wine! (i.e., inferior son of a superior father) How long will you deliver the people of our God for slaughter?" Rabi Eleazar sent the reply, "I eradicate thorns from the vineyard." Rabi Yehoshua responded, "Let the owner of the vineyard come and eradicate His thorns". . . . A similar incident befell Rabi Yishmael the son of Rabi Yosi. The prophet Elijah appeared to him and rebuked him. . . . "What can I do – it is the royal decree," responded Rabi Yishmael. Elijah retorted "Your father fled to Assia, you flee to Laodica (i.e., you should flee and not obey).

The Maharam Schick applied this to a dreadful question that was posed to him. A man suddenly died unexpectedly and the widow was suspected of having poisoned him. There were numerous indications and somewhat of an admission that she had committed the crime. At first, the Maharam Schick thought that the crime should not be reported to the civil authorities (of late nineteenth century Hungary) since they judge and execute based on self-incrimination. However, he concluded that it is permissible to report the crime based on the Gemara’s story regarding Rabi Elazar son of Rabi Shimon. He also notes that the Rashba (in a Teshuvah presented by the Beit Yosef to Choshen Mishpat 388) cites this passage in the Gemara and applies it in practice.

The Maharam Schick, however (following Rashba), notes that we deduce from Eliyahu HaNavi’s reprimands that it is not Midat Chassidut (pious behavior) to report such behavior to the authorities. Thus, Maharam Schick concludes that Gedolei Yisrael should refrain from such reporting but it is entirely permissible for other Jews to report the crime to the authorities. Similarly, Rav Schachter permitted the young ADA to prosecute the Jewish man accused of severe child abuse. Rav Schachter added that the Jewish community is unable to solve the problem by itself, as the offender will simply move to another community and create the same problem elsewhere. Thus we are reliant on the local authorities for our protection and so the civil prosecution may be pursued by a Jew.

Moreover, the Ritva (Bava Metzia 83b s.v. Amar Lahem) asks how Rabi Elazar convicted offenders without hearing testimony from valid witnesses who issued a Hatra’ah (warning) and when the Sanhedrin is no longer functioning. He responds that this is the responsibility of the government to execute even without witnesses and Hatra’ah in order to instill discipline, as King David did when he executed the young Amalekite when he reported that he killed King Sha’ul (Shmuel II 1:13-16). In fact, Rav Eliashiv (ad. loc. 3:231) applies this to the United States government in a Teshuvah written in 2004.

It seems that on the basis of this ruling (as well as Rav Moshe’s ruling discussed in last week's issue regarding service as a tax auditor for the Internal Revenue Service), it is permitted to serve as a Hebrew translator for the United States Federal Bureau of Investigations. Even though in doing so one may help the government discover and prosecute Jewish criminals, we see that the Halacha permits a Jew to help just government prosecution of the criminals in its midst.

Child Abuse

Rav Waldenburg (ad. loc.) was asked whether Halacha permits a physician to report situations of child abuse to government authorities. Rav Waldenburg permits reporting such cases if there is legitimate and very serious concern for the welfare of the child. Rav Waldenburg makes a critically important interpretation of Shulchan Aruch Choshen Mishpat 388:9, which states that Mesirah is forbidden even regarding someone who is “an evildoer and sinner.” Rav Waldenburg explains that the Shulchan Aruch is not speaking of a case where the Mesirah is to prevent him from performing the sin he violates. Rather the Shulchan Aruch states that the fact that someone is a sinner does not justify a Mesirah for another unrelated cause.  Rav Waldenburg explains that the Shulchan Aruch does not forbid informing the government authorities when the government will prevent the evildoer from committing the evil he perpetrates.

Even though the Shulchan Aruch (ibid.) forbids Mesirah if just an individual is being victimized, this applies only if the wrongdoer engages in verbal abuse (see Rama ad. loc. Shach ad. loc. number 45 and Biur HaGra ad. loc. number 59). If, however, there is substantial abuse the victim is permitted to save himself and, as Rav Waldenburg notes, the community is obligated to protect the welfare of its children and report suspected abuse to the civil authorities. He does express concern, though, for a child being placed in a home of a Nochri or a non-observant Jew. Indeed, Rav Shlomo Zalman Auerbach requires (cited in Nishmat Avraham 4:208) all efforts be made in such cases to ensure that if the child is removed from his family that he will be placed in an observant Jewish home. 

 We should clarify that the verbal abuse that does not justify Mesirah (see Biur HaGra ad. loc. number 57) is a situation such as the one described in Gittin 7a where local ruffians where taunting Mar Ukvah. These individuals constituted a nuisance to the Rabbi but did not cause substantial harm. However, an individual in a position of power, such as a parent or teacher, who verbally abuses those in his care, does indeed cause substantial harm. 

An additional factor is that civil law in many locales mandates clergy and educators to report child abusers to the local police. Thus the “royal decree” principle, articulated in the aforementioned Gemara in Bava Metzia 83b-84a, might be relevant and serve as another justification for reporting suspected child abusers to the civil authorities. It is certainly advisable for someone in such a position of responsibility to consult an attorney regarding his obligations under civil law to inform police of serious abuse. 

Rav Schachter (in his aforementioned Teaneck address) stressed that parents and educators should teach children to report to them cases of abuse. He noted that most cases of abuse go unreported, in part because the victims were not trained and prepared to report such behavior. Once parents and educators inform youngsters of their being open to such reports, the incidence of unreported abuse should subside.

Rav Schachter cautions, though, that sometimes reports of abuse are of highly questionable veracity. Therefore, Rav Schachter advises Rabbanim to consult competent professionals who can determine the legitimacy of the claims of abuse. This concern also stresses the need for each case being presented to a competent Halachic authority for adjudication before reporting such cases to government authority. Rav Eliashiv (Kovetz Teshuvot 3:231) expresses similar concern. An example of a Rav who makes such determinations is Rav David Cohen who serves as the Posek for Ohel, a New York social service organization, who regularly is posed with such situations for adjudication. Indeed, the example of Potiphar’s wife unfounded slander against Yosef HaTzaddik compels us to exercise caution and to do our best to insure that innocent individuals are not maligned either by malicious or disturbed individuals.

Conclusion

Next week we shall b”n and iy”H complete our review of how major Halachic authorities grapple with difficult Mesirah dilemmas.