Thursday, May 17, 2012

Sex-Abuse Cover Ups: The Mesirah Mess

There has been considerable consternation about the recent New York Times front page expose of how child sex abuse cases are handled in Ultra Orthodox communities. Although this scandal has been discussed for years in the Jewish media, many were shocked to read how informants are routinely shunned and victims banned from reporting abuse to the authorities.  Anti-Semitic websites have had a field day, comparing this Jewish “code of silence” to the Mafia’s. 

The Times article correctly pinpoints an obscure rabbinic prohibition as a major source of the problem:

“While some ultra-Orthodox rabbis now argue that a child molester should be reported to the police, others strictly adhere to an ancient prohibition against mesirah, the turning in of a Jew to non-Jewish authorities, and consider publicly airing allegations against fellow Jews to be chillul Hashem, a desecration of God’s name.”

It is important to emphasize that most rabbinic authorities concur that Judaism has no place for the protection of sexual predators.  Even for those who might otherwise support mesirah, the prohibition does not apply when there is a perceived public menace.  As Rabbi Moses Isserles states in his gloss to the Shulchan Arukh, “A person who attacks others should be punished. If the Jewish authorities do not have the power to punish him, he must be punished by the civil authorities.”

While unfortunately there is still considerable resistance in reporting dangerous behavior to secular authorities in the ultra Orthodox rabbinic world, the problem is less mesirah itself than how these rabbis choose to apply it.   Mesirah is a dangerous tool, but, to paraphrase the NRA, mesirah doesn’t harm people – people do, in this case insular and misinformed Jewish leaders.

That said, when you read Maimonides’ full explanation of mesirah, it gives one pause to wonder whether the time has come to eliminate it completely from the halachic lexicon.  Maimonides, after all, was neither insular nor misinformed, and he lived in a society that was relatively benign toward Jews.  Yet he writes:

“It is forbidden to hand over a Jew to the heathen, neither his person nor his goods, even if he is wicked and a sinner, even if he causes distress and pain to fellow-Jews. Whoever hands over a Jew to the heathen has no part in the next world.  It is permitted to kill a moser wherever he is. It is even permitted to kill him before he has handed over (a fellow Jew)… (Mishneh Torah, Torts 8, 9-11).”

Maimonides’ condemnation of the moser is reminiscent of the law regarding the rodef (the life threatening pursuer), whom one is also allowed to kill – this rabbinic concept was employed most infamously by those defending the murder of Prime Minister Rabin.  The moser and rodef are linked in a commentary by Rebbenu Asher:

“Thus, an informer is like a pursuer to kill someone and the victim may be saved at the cost of the life of the pursued.”

OK.  This is not a world most of us are living in.  We’re talking about a case where the molester is clearly the pursuer, not the guy who calls 911.  It is the cover up that shames the entire Jewish community, not the informant.  In a free society with just courts and equal treatment under the law, mesirah is a relic, a nice conversation piece from a more perilous past, like that section of the Haggadah where we ask God to pour out divine wrath against our enemies.

The idea that Jews should be protective of Jewish sinners stems from a longstanding mistrust of just about every government we’ve lived under.  The most obvious example was the Romans, who were not the most benevolent to their Jewish subjects. The rabbis had Rome in mind when they advised their students, “Love work, despise positions of power and do not become overly familiar with the government.”  But protecting Jews from secular authorities has extended to almost absurd extremes.  The principle of mesirah is has been used to dissuade Jewish auditors from reporting other Jews to the IRS for tax fraud and, as Rabbi Moshe Feinstein ruled, to prohibit us from turning a Jew in to secular authorities for fraudulent kashrut supervision. I for one am glad the Agriprocessors scandal was handled by the government and not kept “within the family.”

It all goes back to Moses. When he struck the Egyptian taskmaster, Exodus tells us that fellow Israelites began taunting him about the incident, which led Moses to become fearful that someone would turn him over to Pharaoh.  Rashi posits that Moses wasn’t so much concerned about his own fate; he was concerned that his act would lead “villains and informers” to turn him in, making them unworthy of redemption.  So he fled, not so much to protect himself as to protect his accusers from suffering the fate of the moser.

But change “Pharaoh” to “NYPD” or “FBI,” and the story reads quite differently.   If Moses had struck a cop not in Egypt but Brooklyn, wouldn’t it have been absolutely appropriate for a fellow Jew to notify the authorities? But replace “NYPD” with “Sheriff Clark,” and would you turn in Moses for striking a cop who was assaulting peaceful protesters in Selma?  Wouldn’t you want your moral code to protect him, despite the unintended death?

Yes, I know that one person’s freedom fighter is another person’s terrorist, but I can stand behind an objective moral standard that says that Moses was right, a child molester is wrong, and Pharoah and the NYPD are not created equal.  

In any event, we can both protect Moses and turn in the molester for lots of reasons, but in each case, the least relevant factor is that the perpetrator is mishpoche.  That’s mesirah’s fatal flaw. 

It’s time to declaw this dangerous concept, so that may never again be used to justify the protection of those who inflict suffering on innocent children.

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