The Perils of Expounding on Lashon Hara

A disturbing Shmuz this past week, on Behaalotecha. The author in all likelihood didn't mean it this way, but this goes to show how you must be careful when instructing people about lashon hara.

The pretext for the Shmuz is this pasuk and Rashi at the end of Behaalotecha:

1Miriam and Aaron spoke against Moses regarding the Cushite woman he had married, for he had married a Cushite woman.

אוַתְּדַבֵּר מִרְיָם וְאַהֲרֹן בְּמשֶׁה עַל אֹדוֹת הָאִשָּׁה הַכֻּשִׁית אֲשֶׁר לָקָח כִּי אִשָּׁה כֻשִׁית לָקָח:

Miriam and Aaron spoke: She spoke first. Therefore, Scripture mentions her first. How did she know that Moses had separated from his wife? [See below] R. Nathan says: Miriam was beside Zipporah when Moses was told that Eldad and Medad were prophesying in the camp. When Zipporah heard this, she said,“Woe to their wives if they are required to prophesy, for they will separate from their wives just my husband separated from me.” From this, Miriam knew [about it] and told Aaron. Now if Miriam, who did not intend to disparage him [Moses] was punished, all the more so someone who [intentionally] disparages his fellow. — [Tanchuma Tzav 13]

ותדבר מרים ואהרן: היא פתחה בדבור תחילה, לפיכך הקדימה הכתוב תחלה, ומנין היתה יודעת מרים שפרש משה מן האשה, רבי נתן אומר, מרים היתה בצד צפורה בשעה שנאמר למשה אלדד ומידד מתנבאים במחנה, כיון ששמעה צפורה, אמרה אוי לנשותיהן של אלו אם הם נזקקים לנבואה שיהיו פורשין מנשותיהן כדרך שפרש בעלי ממני, ומשם ידעה מרים והגידה לאהרן. ומה מרים שלא נתכוונה לגנותו, כך נענשה, קל וחומר למספר בגנותו של חבירו:

Tanchuma

It is hard to understand what the Midrash Tanchuma (and by extension, Rashi) means by saying that she didn't mean to disparage Moshe, and yet was punished. One could struggle with this and come up with various real (non-shmuzy) answers. For instance, reading the Tanchuma inside, I think it might be possible that she was wondering whether she and Aharon were supposed to follow suit, since it was not only Moshe with whom Hashem spoke. Alternatively, she was acting out of concern that Moshe act properly in accordance with what was supposed to be done, or to aid in his marital harmony with Tzippora. Regardless, the message intended by both Tanchuma and Rashi is NOT the first clause of the kal vachomer (that is, the kal), but rather the second clause of the kal vachomer (namely, the chomer). It is dangerous to puff up the first clause and then hold everyone to that puffed-up standard, as we shall see.

Rabbi Shafier titles the essay, "If You’re Wrong It’s Lashon Harah". He then writes:

This Rashi is difficult to understand. What was Miriam’s transgression? She witnessed her brother doing something that in her estimation was wrong. She didn’t go blabbing the news all over town. She went directly to [a] spiritual giant, the Kohain Gadol, Moshe’s brother Aaron, to ask for his advice. If she was correct and Moshe was acting improperly, then Aaron would validate her assessment. If she was wrong, he would correct her. What was her transgression? Her intentions were pure. Her actions were discreet. Where is her wrongdoing?  

The answer to this question is based on understanding what the Torah considers slander. The Rambam explains that the definition of lashon harah is, “Words that hurt, words that damage.” Whether damaging a man’s reputation, harming his career, or spoiling his standing in the community – they are words that that cause harm.

The problem here is that, in our present society, incorrect concerns of lashon hara and mesira are what allowed and allow sexual abuse of children to thrive. Some rabbis (correctly) say that one should report directly to police. The Agudah, in contrast, has said that there must be raglayim ladavar, and that one should consult a rabbi to determine this, writing:

There may be times when an individual may feel that a report or evidence he has seen rises to the level of raglayim la’davar; and times when he may feel otherwise. Because the question of reporting has serious implications for all parties, and raises sensitive halachic issues, the individual should not rely exclusively on his own judgment to determine the presence or absence of raglayim la’davar. Rather, he should present the facts of the case to a rabbi who is expert in halacha and who also has experience in the area of abuse and molestation – someone who is fully sensitive both to the gravity of the halachic considerations and the urgent need to protect children.

Now this Shmuz comes along, where Miriam consulted with an halachic authority (the Kohain Gadol, a spiritual giant) to ask for advice, and was punished, because she was wrong, and if you're wrong, even this is lashon hara! Is it really a good to convince people that asking a shayla has problems, real or potential, of lashon hara?!

That isn't what the Shmuz necessarily intends to concludes. Later on, the author writes:

That was Miriam’s’ transgression — not judging her brother properly. She miscalculated. Everything she did after that was correct, but it was all based on her error. Her mistake was in her initial assessment, which then led to her to slander her brother unintentionally. But unintentional slander is slander nevertheless.

In other words, it was her earlier mistake in not judging Moshe favorably, that was her transgression, and other actions were correct had she been right. However, effectively, he is saying that consulting a rabbi for a halachic question is slander nevertheless, for which one is punished, in the case that one is wrong.

To his credit, he declares that sometimes it is a mitzvah to speak out. But he casts it as only where there is a no room for error.

There are, however, times when lashon harah is permitted. If someone speaks for a constructive purpose and that speech meets exact Torah guidelines, then it is a mitzvah. In that case, the report isn’t considered disparaging. Quite the opposite, since we are obligated to protect our fellow Jews from harm, sometimes we must inform others of what we know. But that is the point: Torah law defines what constitutes slander and what is a mitzvah. The line between the two is often very thin. 

The Chofetz Chaim writes that to permit the telling of disparaging information, a person must have first-hand knowledge of the facts, and there can be no room for misinterpretation. No room for error. If there is another possible explanation which shows the act in a different light, then he is forbidden to speak.

(In general, I am not in favor of Chofetz Chaim-based lashon hara guidelines (as her propounds in this essay), for several reasons. People over-apply them. They are formulated in a way biased to prevent possible slander, more than concerned for protecting potential victims. They took what had, until this point, been a mostly hashkafic and good-middot matter, and transformed them into halacha. And while some contemporaries disagreed with him, for lashon hara, unlike the rest of his halachic work, we don't have an Aruch HaShulchan disputant to give contrast to his Mishna Berurah.)

There is also this bit, about giving the benefit of the doubt to a holy man, at least where that holy man is Moshe:

This seems to be the answer to Rashi. HASHEM rebuked Miriam and Aaron both, saying, “Why did you suspect my servant, Moshe? Moshe was on such a lofty level that you should have realized that what he did was justified and proper. You should have judged him favorably. Because you judged him incorrectly, you mistook his intentions and determined his actions to be improper. You were wrong, and you should have recognized that. He is my servant, loyal and obedient, pure and untainted, an angel walking in the form of a man. You should have realized that he is in a different league than any other man, and you should have judged him favorably.”

Several of the recent rabbinic sexual abuse perpetrators are also, or at least presented themselves, as holy men. Is it really a good idea to give a shmuz to reinforce the idea that, in cases of doubt, one must assume that men of a lofty level have acted appropriately, and therefore, one should not speak out?

Consider the case of Rabbi Eliezer Berland, who was accused of various sexual crimes and is on the run from the Israeli authorities. I've seen two types of defense. The first is exemplified here, that he is a holy person, does miracles, is vouched for by various prominent rabbinical figures, and is therefore innocent. We must therefore know that he is totally innocent of the changes. He is being framed by the evil secular government, plus he righteously accepted this suffering and oppression on behalf of klal Yisrael.

The second type of defense is here (machine-translated here), from the son-in-law (?) of Rav Berland, that indeed he did those actions, but because he is a tzaddik, those actions are appropriate!

בספר מרחיב חתנו של הרב ברלנד ומבהיר שמה שנחשבת כעבירה אצל המון העם, אצל הצדיק היא מצווה ואף חובה לעבור עליה. לדבריו, אם הצדיק אומר לאדם דבר הנראה נגד התורה והמצוות והאדם מסתפק אם לעשותו, זה גרוע כי הדבר פוגם באמונת חכמים. לטענת מתנגדי הרב ברלנד, הספר הגיע לשולחנם של גדולי ישראל והללו נבהלו ואמרו כי מדובר בשבתאות ואפיקורסות ממש.

"... he explains that that which is considered an aveira for the common folk, for a tzaddik it is a mitzvah and indeed a chovah [obligation] to transgress it. According to his words, if a tzaddik says to someone something which seems against the Torah and mitzvot, and the person is unsure if to do it, this is a bad thing, because it is a deficiency in emunat chachamim."

While the approach in this book has been criticized as Sabbateanism or heresy, this is also a potential outgrowth of the attitude propounded by this particular Shmuz. After all, Miriam should have given Moshe the benefit of the doubt, and understood that while, for the hamon am or other common prophets, this separating from one's spouse was bad and improper, Moshe was a tzaddik, in a different league, an angel walking in the form of a man, and his actions are therefore to be understood or assumed to be proper...