Monday, March 18, 2013

Why the latest Rav Schachter controversy is dumb, part i

(See also this post at Circus Tent.)

Imagine for a moment that you had an enemy. And imagine that that enemy had the powers of Big Brother, able to spy on every single thing you said at every unguarded moment, and every mis-speech as you fumble for words. And that enemy would then broadcast those words, out of context, to a worldwide audience, who didn't know you and was generally uneducated in your field.

Could you do your job? Effectively?

Now stop pretending it is you. It is some rabbi. Perhaps you agree with his views in everything, and perhaps you don't. Is it good public policy to listen to, and help blow up, the reports made by his enemies? Will it cause rabbis in general to be more guarded and, e.g., not speak up about important matters to the Jewish community, such as reporting child sex abuse and child physical abuse to the police?

Consider the parallel case, in Shabbos 33b: (original here)
Now, why is he [R. Judah son of R. Ila'i] called the first speaker on all occasions? — For R. Judah, R. Jose, and R. Simeon were sitting, and Judah, a son of proselytes, was sitting near them. R. Judah commenced [the discussion] by observing, 'How fine are the works of this people!15  They have made streets, they have built bridges, they have erected baths.' R. Jose was silent. R. Simeon b. Yohai answered and said, 'All that they made they made for themselves; they built market-places, to set harlots in them; baths, to rejuvenate themselves; bridges, to levy tolls for them.' Now, Judah the son of proselytes went and related their talk,16  which reached17  the government. They decreed: Judah, who exalted [us], shall be exalted,18  Jose, who was silent, shall be exiled to Sepphoris;19  Simeon, who censured, let him be executed.
While I might not agree with such a severe polemic of the Romans, I also would not agree with the full-throated praise of the Romans. And I shudder to think that Rabbis couldn't express themselves to one another, because spies exist, such that the only thing you would hear was an insincere pro-Roman message. In such an environment, people cannot be sincere and people cannot be nuanced.

YUTorah is a great thing. They put up all sorts of shiurim. But they make the private into the public. (I don't know that this was specifically from YUTorah.) And then, Failed Messiah, which posted this, is a hate site. The blogger as well as his commenters strike me as generally ignorant and full of seething anger towards Orthodox Judaism. While there is place for criticism, these folks remind me of Rabbi Akiva's description of himself when he was still Akiva:
 "If someone would give me a torah scholar I would bite him like a donkey!' (Pesachim 49b)
They found something to criticize and so criticized it. And the Forward watched the comment of the hate site and ran with their "breaking" story. And various rabbi bloggers, including those who previously had reason to differ with some of Rav Schachters more conservative positions, or with his more liberal position (towards freeing agunos) ran with the Forward story in order to discredit. Don't do this, please. It leads to an environment in which intellectual integrity and freedom of speech is quashed.

Should I address the racism angle or the vetting of abuse claims to measure plausibility? I'm conflicted. First, because it is beside the point*. And second, because any nuance or partial explanation, will trigger accusations of racism or insensitivity to child abuse victims. Because one can only take the party line, in its entirety. Which brings us back to the point of my post.

This was a speech by Rav Schachter to a group of other rabbis, and his general point was that there was no mesirah issues for reporting child sex abuse to the police. Then, there was some nuance of when he thought it appropriate to report, based on plausibility (which one may disagree with), as well as whether it was appropriate to send a person to state prison.

At the 7:50 mark:
"The thing is, in America, there are different kinds of prisons.There are federal prisons, and then you have state prisons. The federal prisons, that's where you have daf yomi, glatt kosher, lemehadrin, so that's not really mesirah. If he deserved to be punished, so let him sit in prison. The state prisons is mamash hefker. The warden in the prison can kill you, they can put you in a a cell together with a, [repeating while trying to find words] with a, um, uh, shvartzeh, in a cell with a Muslim, a black Muslim who wants to kill all the Jews, everything is hefker in a state prison."
He then continues that that situation could be mesirah, since it exceeds the lawful punishment. But, he continues, there are instances in which [even] mesirah is permitted. For example, when someone is meitzar et harabbim, a public menace. A pedophile or an abuser can be reported even if it is halachically mesirah. And that it is permissible to send a con-artist, a wife-beater, or a sexual abuser even to State Prison.

I doubt that all those who are condemning understood this. And I doubt that they listened to the full 10 minute shiur. (Or if there was more to it, the entire shiur.)

I doubt that they heard his ums, uhs, repeating "with a", which made it clear (to me at least) that he was fumbling for words, and was likely trying to describe, in several sequential short phrases, the warden pairing a Jewish person with a cellmate, a person likely incarcerated for a violent crime, who was a black Nation of Islam follower, who therefore hated Jews. In technical terms, a hendiadys.

Here is how the Forward led off, with an entirely inaccurate statement:
A top rabbinic dean of Yeshiva University has warned rabbis about the dangers of reporting child sex abuse allegations to the police because it could result in a Jew being jailed with a black inmate, or as he put it, “a shvartze,” who might want to kill him.
No, he didn't warn against reporting sex abuse allegations. As he made clear in the following statements, if the person was actually a child sex abuser, then while it was technically mesirah, the halacha is to be report and be masser the fellow anyway. Because he is a menace to others. The Forward seems to have missed on this rather major point, and indeed reported it again later in the article incorrectly.

And they only put in the "shvartze" portion, and left out that the "might want to kill him" was paired with "a black Muslim", meaning likely Nation of Islam.

They also wrote talmida chachamim rather than talmidei chachamim, indicating that the author likely was unlearned. (Since corrected. Could be a typo.)

The buried the fuller quote until the end of the article:

Schachter told his audience that in state prisons “the warden in the prison can kill you. They can put you in a cell together with a shvartze, with a… black Muslim who wants to kill all the Jews.”

Even in that fuller quote, they edited out the repetitions, which gives a different impression.

Note: Well, I'll say that one should not use such language, and that I am not in agreement with such a policy of vetting, and am unsure whether it is practical, assuming I understood it correctly.


Rabbi Joshua Maroof said...

Very excellent post.

IH said...

On Friday, I ignored all the articles and blogs and only listened to Rav Schachter on audio. RHS indeed spends the bulk of the 10 minutes explaining that Mesirah is not what many people think it is. But the key part is that brief explanation (at the 8 minute mark) of what he thinks is Mesirah:

“State prisons is mamesh hefker. The warden in the prison can kill you – they can put you in a cell together with a – with a – schwartze, they can put you in a cell with a Muslim – a black Muslim who wants to kill all the Jews. Everything is hefker in the state prisons.” It is likely “taka … mesirah”.

Gaffe aside, the practical conclusion of his position is that RHS agrees with the Agudah postion on reporting of sexual abuse since those cases are usually in State jurisdiction, not federal – and, therefore, fall into Rav Schachter’s exception clause.

Now, one could say (as Gil Student has) the difference between RHS and Agudah is that RHS “requires approval of COMPETENT AND TRAINED rabbis when the issue isn’t clear. Big difference.” But, as a practical matter, that means there is no difference, since: a) there is no such institutional infrastructure; and, b) the specific issue is rarely “clear”.

So, the real halachic news here is that RHS is effectively siding with the Agudah on this issue, as opposed to say R. (and Dayan) Broyde who has written:

"Halacha does not prohibit – at all and in any form – the use of secular authorities or courts to investigate, arrest and punish people who engage in such abuse. Maybe in an unjust government and a different time and place these issues might apply, but not in the United States.

There is no need to seek rabbinic license before making such a report to the police. Such reports to the police should be made as soon as possible and expert therapists, social workers and other professionals should be welcomed into our community to help address the consequences of child abuse."


By contrast:

"Rabbi David Zwiebel, Agudah’s executive vice president, told the conference that even mandated reporters — teachers, social workers and people in certain other professions who are required by law to promptly report any suspected cases of sexual abuse — should consult a rabbi before going to the police.

“If somebody just comes and makes a claim, that’s not a sufficient basis to invoke the tikkun olam [benefit to society] reason for overriding the general prohibition against mesirah,” Zwiebel elaborated in a telephone interview with the Forward. There must first be “some circumstantial evidence or something that would appear to bolster the claim.”

Zwiebel said that only rabbis who are specialists in the area of abuse should be consulted, though he acknowledged that no registry or designation of such rabbis currently exists. He said Agudah is “looking into developing, at least internally, some sort of database” that could be useful under such circumstances."


joshwaxman said...

"Gaffe aside, the practical conclusion of his position is that RHS agrees with the Agudah postion on reporting of sexual abuse since those cases are usually in State jurisdiction, not federal – and, therefore, fall into Rav Schachter’s exception clause."

Yes, they fall into the exception clause as being mesirah, but as he immediately continues in the next feww sentences, this is an instance where mesirah is necessary. This is an important point that everyone ignored or glossed over.

while you and I may not agree with this practical 'raglayim ledavar' requirement, this is a complex topic and different rabbis are entitled to their own opinion on the matter. and taking such a position, not following the party line, is not the big scandal that people have made it out to be.

kol tuv,

joshwaxman said...

also, IH, I think you misunderstood the shiur you listened to. Rav Schachter had established the requirement of raglayim ledavar much, much earlier. He would be opposed to overturning someone's life and sending them [even] to federal prison if the person was innocent. this was just mop-up that indeed, state prison brings it back to the status of mesirah but one should not be concerned about this, based on the Shach, and should still report. (for certain financial crimes, meanwhile, it would seem not.)

IH said...

"this is an instance where mesirah is necessary" BUT only with (delegated) Rabbinic approval. Just like the Agudah as quoted and in opposition to R. Broyde stating "Halacha does not prohibit – at all and in any form [...] There is no need to seek rabbinic license before making such a report to the police.[...] we trust the police and the district attorneys to honestly investigate, charge
and convict abusers [...]".

If Rav Schachter thinks it is possible to construct such a (delegated) Rabbinic infrastructure, the ball is in his court to propose something that can
be evaluated. Until then his assertion is effectively the same as Agudah's and in opposition to the MO Rabbinic consensus.

ruvie said...

RHS claims that going to state prison is mesirah but you can be mosser if you know the person is a "public menace".
is public menace = to reglayim l'davar? either way you can't report to the police unless vetted by a rav in mental health. btw, most child abuse cases involve doubt and mental health rabbis are not in general competent to do an investigation without creating more problems.
he also seems to dismiss many cases as children's dreams and bubbe meises with concern more with abuser being falsely accused than the victim of the abuse.

Hillel said...

R' Waxman,
I agree with you that R' Shcachter's word choices, while unfortunate and inartful, are a distraction from the main issue. I also agree that various news stories have implied - wrongly - that R' Schachter is opposed to reporting allegations of abuse to the police.

BUT, there is a major problem with R' Schachter's proposal of having a board to verify allegations of abuse prior to going to the police - it is almost certainly illegal.

Most people who hear reports of abuse - teachers, social workers, etc. are mandatory reporters (under NY law), as are all psychologists. Thus, even if a board of Rabbi/psychologists were set up, as R' Schachter proposes, they would be required, by law, to report the allegations of abuse immediately, and would not be permitted to conduct an independent investigation first.


Hillel said...

PS: To clarify, mandatory reporters must report if the have reason to SUSPECT abuse, not just if they think it is likely. Thus, pretty much any case where a child claims they are being abused is going to require a report.

In theory, such a board may be useful for third-parties who are not mandatory reporters but suspect abuse (say a shul Rabbi or a parent notices one of the neighbor's kids has suspicious injuries).

But if a kid comes forward and alleges abuse, referring the child to a board of psychologists won't do anything helpful, and could do a lot of harm.

Anonymous said...

Hillel, maybe that's why Rav Schachter said this in England and not in New York, where the mandatory reporter laws are different.

joshwaxman said...


I beat you to the point by writing in my post "and that I am not in agreement with such a policy of vetting, and am unsure whether it is practical, assuming I understood it correctly."

Whether you or I agree with Rav Schachter as a matter of practicality is irrelevant to this post. Though I'm sure they could modify the structure to deal with legal challenges, or else back down.

The point of the post was that the "gaffe" was manufactured and details were misreported by ignoramuses, much like previous "gaffes". (e.g. the monkey and parrot quote.)

same point.
that you disagree with his position does not mean that this is a "scandal". people are entitled to disagree on a complicated social situation such as this.

did you listen to the shiur?
is public menace = to reglayim l'davar
no, public menace (or even non-public menace) means that there is danger of harm to others by leaving the fellow alone. and that concern obviates mesira concerns.

but of course, just as when there was no mesira concerns, such as sending to a federal prison, where the person's life will be turned upside down, it is logical (according to this position, not that I necessarily agree with it) that there be plausibility. in many divorce cases, lawyers counsel the wives to allege that the husband molested the kids, and there were infamous cases in the 1980's and 1990s of child sex abuse witch hunts. (see Dorothy Rabinowitz's book on the subject, No Crueler Tyrannies.) It is certainly not entirely stupid and insensitive for someone to maintain that there be something to back up the accusation, before he signs on to attack the accused publicly. Whether that is rabbis trained by psychologists or accusations by more than one party, or discarding the laws of yichud, I can see a rabbi wishing some proof before moving forward. (That doesn't necessarily mean that the child, or the parents, cannot go to the police themselves.)

Regardless, the specifics of this position are irrelevant to the point of the post, which was the "scandal" and the misreporting by the ignorant Forward, who misunderstood Rav Schachter's point.

IH said...

The point of the post was that the "gaffe" was manufactured and details were misreported by ignoramuses, much like previous "gaffes".

No, the gaffe was real and one of a series. The previous one was "to have the women sit [in] a separate section of the bus [is] not such a bad idea” on the OU Kosher Webcast.

Further, it was real enough for Rav Schachter's employer to disclaim it.

My issue is that even aside from the gaffe itself, his position on this issue is: a) outside the Modern Orthodox Rabbinic consensus, b) untenable; and, c) dangerous.

joshwaxman said...


well, IH, i disagree with many of the previous manufactured gaffes.

"real enough" for YU to disclaim it?
yes, because administrators of an institution never would look to distance themselves and their institution from horrible PR.

who cares whether his position is "outside the Modern Orthodox rabbinic consensus"? are you really the thought police that no rabbi is allowed to think that something is ethically and halachically appropriate if it outside the Modern Orthodox Rabbinic consensus? are you the thought police? is it good to have a thought police, such that MO consensus determines what rabbis are permitted to think and argue?

untenable? time will tell. reality gets hammered out over time.

but again, your issue is irrelevant to the point of this post.

IH said...

Josh -- Look, words matter. The manufacturer of these gaffes is no one other than Rav Schachter.

It is material and relevant that the person looked up to as the halachic Gadol for some in the Orthodox community rules against his own and sides with the Agudah, as he has done. [Just as it would if someone on the Moetzes came out and effectively endorsed R. Broyde's position].

It is fair game to expose a leader's gaffes and positions when they betray his inner self.

joshwaxman said...

sure, words matter.

let us examine what you identified as the previous gaffe:
"The previous one was "to have the women sit [in] a separate section of the bus [is] not such a bad idea”"

I don't know the context, to know whether he then went in a different direction, but what about these words make it a "gaffe"?! It is something you don't agree with. That is a gaffe?

The monkey and parrot 'gaffe' reported in the Jewish Week was not a gaffe. It was ignorant people who never heard of the Tosefta's use of maaseh kof, who wanted to tear him down. The 'what could I do [to the stuttering girl I was on the phone date with]? I hung up on her!' gaffe was not a gaffe. It was people who misheard the shiur and misreported what he actually said ('what could I do? hang up on her?') I see repeated instances of ignorant people trying to malign him for things he didn't say or that they do not understand.

"It is material and relevant that the person looked up to as the halachic Gadol for some in the Orthodox community rules against his own and sides with the Agudah, as he has done."

Sure it is. But it is not a gaffe, or a betrayal. It is being an honest analyzer or Jewish texts and morality. To predetermine how the halacha should be is dishonest. Emunas Chachamim, as Rav Shachter has defined it in the past, is emunah that are chachamim are chachamim and that, whether wrong or right, they are honestly analyzing the sources to come to an honest position.

You are advocating intellectual dishonesty.

Because you want a specific conclusion. No, we don't say 'where there is a rabbinic will, there is a halachic way'.

"[Just as it would if someone on the Moetzes came out and effectively endorsed R. Broyde's position]."
Good for them if they would.

If Rav Schachter indeed holds this weigh, then perhaps Modern Orthodox laity and rabbis should weigh this position, or discuss it with him. The leadership shouldn't be followers of the community.

joshwaxman said...

"weigh" should read "way"

IH said...

Josh -- I'm sorry, but you are trying to join up two distinct issues that I am seperating for the purpose of having a reasoned discussion. 1) His gaffe ("schwartze"); 2) the halachic content and its implication.

On the women in the bus gaffe, the full context can be seen in the 1.5 min video clip at:

I call it a "gaffe" to be charitable, because his defenders response at the time was "he didn't really mean that". Strangely similar to the current defense of his use of "schwartze".

joshwaxman said...

you may think that you are separating the two distinct issues, but by calling it a gaffe, you joined the two, not me.

i don't really feel like arguing "the halachic content and its implication".

is it possible that indeed, he didn't really mean 'that'? well, i don't know what you understood it to mean. he says that tznius norms are defined by what is 'mekubal'. and that in terms of buses, he doesn't see it as such a bad idea, though it can be modified. that does not mean that it is, e.g., mandatory. or that it is something that is 'mekubal'. or (in the short question and answer) that a family cannot travel together on a bus, or that people should shout 'prutza!' at a woman who dares to enter from the front of the bus.

again, i don't know what people saw in it. i do know that people in general over-read into the words of others, including into his words. and if his 'defenders' said that he didn't really mean 'that', I would count it as a distinct possibility.

IH said...

I find it off-putting when a charismatic leader has a legion of acolytes to engage in unconvincing apologetics of his controversial statements. I take Rav Schachter at his word.

joshwaxman said...

and i find it off putting when people misinterpret his statements and transform them into controversy, or feel that his positions are controversial because they don't agree with them, and then (in the former instance) declare explanations to be unconvincing apologetics. so we are even.


do you agree that the Forward ignorantly misunderstood Rav Schachter's remarks, when they interpreted 'mesirah' to mean 'therefore do not report'? or is my pointing out the plain meaning of his words in the next few sentences an instance of apologetics?

IH said...

Given its audience, I think Paul Berger's did a reasonable job of disambiguating what Rav Schachter said in a meaningful way. That said, I think the subheadline was provactive, but that is the nature of headlines and the editors who choose them. "Film at 11".

Do you see many columns like yours when Rav Aviner makes a controversial statement? I don't. People take him at his word and argue the issue, not whining about how he was misunderstood.

Again, if anyone is at fault here for mis-interpreting what Rav Schachter said -- it is Rav Schachter himself for his choice of words on these occasions where is asked to speak as a communal leader. Words matter and p'shat counts.

joshwaxman said...

here is where we disagree. he got a major point entirely wrong:

"A top rabbinic dean of Yeshiva University has warned rabbis about the dangers of reporting child sex abuse allegations to the police because it could result in a Jew being jailed with a black inmate"

That is not what Rav Schachter said, and it is ignorant to say otherwise. (Hint: He said the exact opposite.) Not meaningful. Not a reasonable job. The work of an ignoramus. If after all I wrote you don't see that, then there is nothing I can say further.

But someone who cannot see that this is ignorant misinterpretation would naturally see explanations as "apologetics". Nothing I can do about that either.

IH said...

I don’t think they are ignorant or got it wrong. Rav Schachter developed an argument by inference and they correctly disambiguated it, reporting it in a manner suitable for their audience and space limitations.

If the writer would had added “directly” as in “dangers of reporting child sex abuse allegations directly to the police because…” Would that have satisfied you?

joshwaxman said...

no, if would not have satisfied me, because that would also have been an ignorant misunderstanding of the statement.

even without the black Nation of Islam inmate, rav schachter already warned about dangers of directly reporting the police. because putting an innocent person in jail, or overturning their life, is already enough to merit raglayim ledavar. (indeed, he could not be talking here about an innocent person, since the very point was that the punishment was *MORE* than what was deserved, and was thus mesira, not that the punishment was UNdeserved.)

that was not the function of the statement, to deal with innocents, and the dangers of reporting directly to the police. the function was to be halachically clear and precise, so as not to commit falsification of Torah. earlier, he had said that reporting was not halachically mesirah. however, given the hefkeirus of state prisons, it would fall under the halachic category of mesirah. and then, he went on to explain why this is of no import, for further halachic reasons (the Shach).

if he had not put this in, then someone could say: Rav Schachter is unaware of the metzius on the ground, when he said that the person is getting what he lawfully deserves, and that it is therefore not mesirah. since we know otherwise, Rav Schachter's ruling to go to the police should be disregarded. Or, less practically negative, rabbis could come away with a mistaken understanding of the halachic system, but still (thankfully) report.

I am sorry that you could not understand his shiur and came up with your own 'pshat'. but that is your fault, not his.

IH said...

Josh -- insulting me and all the others who concluded the same nafka mina does nothing to enhance your case.

If you are willing to have a serious discussion, I am willing to spend the time transcribing the relevant pieces of Rav Schachter's remarks to demonstrate it is a reasonable interpretation, but I get the sense it won't make any difference.

Let me know.

joshwaxman said...

this is a serious discussion.

i am sorry if it is insulting, but if Paul Berger (and you) concluded what you did from what Rav Schachter said, then you are ignoramuses incapable of understanding what Torah scholars say. and it is an important point to make. it is not ad hominem. it does help my case, in that it IS my case. the interpretation proferred is amaratzus. (and most people who concluded similarly did NOT actually listen to the full shiur, but rather relied on the ignorant summary / caption of the picture in the Forward, or are not nuanced talmidei chachamim, who were the intended audience.)

an examination of the full text of the shiur makes this clear. and i've explained in detail above why it makes this clear, though I don't know that you are knowledge-able enough to follow.

it is possible that when you listened to the shiur, you weren't paying careful enough attention. in which case, please listen to it again.

pretending, for the sake of politeness, that you and Paul Berger are not horribly misinterpreting his words due to ignorance is falsehood. i won't do it.

i will encourage others reading this to please listen to the shiur yourselves, rather than jumping to the conclusions drawn by others.


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