Thursday, November 6, 2008

Rodef I - to save perpetrator from sin

This is the first in a series of postings dealing with the halachic basis for calling the police and dealing with a child molestor. It is primarily focused on the dynamics of the halacha. The bottom line is that major poskim clearly permit calling the police to protect a child from being molested. This discussion is part of the sefer about child abuse that I am currenly working on.

One of the important considerations - as to whether to call the police in the case of child abuse - is whether the molester has the status of rodef (pursuer). The widespread assumption is that the purpose of this halacha of rodef is protecting the victimization or harm to another person. But this is clearly wrong.

Sanhedrin(73a):MISHNAH. THE FOLLOWING MUST BE SAVED [FROM SINNING] EVEN AT THE COST OF THEIR LIVES: HE WHO PURSUES AFTER HIS NEIGHBOUR TO SLAY HIM, [OR] AFTER A MALE [FOR PEDERASTY]. [OR] AFTER A BETROTHED MAIDEN [TO DISHONOUR HER].1 BUT HE WHO PURSUES AFTER AN ANIMAL [TO ABUSE IT]. OR WOULD DESECRATE THE SABBATH, OR COMMIT IDOLATRY, MUST NOT BE SAVED [FROM SINNING] AT THE COST OF HIS LIFE.[Soncino translation]

The literal translation of this mishna is that "the following are potential vicitims who are saved from harm at the cost of the life of the pursuer". However, Rashi - following the understanding of the gemora - specifically rejects this

Rashi(Sanhedrin 73a): Are saved - from sin. At the expense of their lives - anyone can kill the rodef to save him from sin - and this is learned from the Torah verse.

Tosfos(Sanhedrin 73a) is bothered by this reading. However he concludes it is necessary to accept this understanding that we are not concerned with the victim - but rather the spiritual well being of the rodef. That is because of the case in the mishna of pursuing an animal [for sexual purposes]. Tosofos notes that it obviously makes no sense to say we are killing the rodef because we are concerned to protect an animal from being raped. Therefore the concern of the mishna is saving the rodef from sinning.

Tosfos points out that rodef is not solely to stop the person from sinning. There are two conditions to be able to stop the rodef by killing him - 1) he must be attempting to commit a sin which is punished either by capital punishment or kares 2) there has to be a person who suffers directly from the sin.

Thus Shabbos and idolatry are not part of rodef because there is no victim. Rape of an unmarried woman would also not be included because there is no death penalty or kares for it. [The Tosefta & Yerushalmi are more inclusive than the Bavli]

Another major consequence is that if the rodef has actually committed the crime - we can not stop him from continuing to engage in the act by killing him. This is the psak of the Shulchan Aruch(C.M. 425:3)

.שולחן ערוך חושן משפט סימן תכה סעיף ג

וכן הרודף אחר הזכר או אחר אחת מכל העריות (לאנסה), חוץ מהבהמה, מצילין אותו אפילו בנפש הרודף. ואם רדף אחר ערוה ותפס ושכב עמה, כיון שהערה בה, אף על פי שלא גמר ביאתו, אין ממיתין אותו עד עמדו בדין

In view of the above - only child abuse which is punishable by kares or death is relevant. - e.g incest or gential penetration for homosexual relationship. Obviously this would exclude many cases of child abuse. This would mean that the law of rodef would not justify calling the police in most cases.

The only way to invoke rodef is to assert that abuse is pikuach nefesh. However, this is problematic for a number of reasons to be discussed in the next post.

Remember major poskim do permit calling the police for child abuse - the reasons will be discussed in a later post.

12 comments :

  1. Even if a strict reading of the law of rodef excludes many cases of child abuse, fortunately most Western countries have mandatary reporting rules in place which in no way violate any rules of mesirah. So calling the police becomes a legal duty, not just a nice idea.

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  2. I heard recently of a cheder in a town in EY that has an abuse issue. I dont want to say the town, and of course not the name of the cheder.

    I have heard that one of the majro rabbonim is involved and he tried to get the school to fire the rebbi, but they refused. 5 boys in the class switched schools. 3 got into 1 school. 1 boy is not in school yet. And i dont know about the final boy.

    What can be done about such a situation, assuming its true, or close enough that the rabbonim involved were correct, and teh school is not dealing with this?

    Does it make sense that the rabbonim would hold to fire the rebbi, but that you are not allowed to go to the police or to publicize the story?

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  3. Interesting. The focus on killing the rodef to prevent him from sinning again may explain why some rabbis in the past were more concerned with assisting the perpetrator than the victim.

    My own perspective is that in addressing the child sex abuse problem, rodef is an interesting subject point for discussion, but it is a collateral issue, and even academic. We don't kill rodfim in today's modern, legalistic, beis hamikdash-less society. One American rabbi got himself into trouble, and even barred for a period of time from visting Israel, when he suggested that P.M. Rabin is a rodef.

    Without the need to reach and discuss rodef, there are many sources in Torah addressing the mandate to preserve and save Jewish life.

    I'm looking forward to this continuing series.

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  4. Garnel Ironheart said...

    Even if a strict reading of the law of rodef excludes many cases of child abuse, fortunately most Western countries have mandatary reporting rules in place which in no way violate any rules of mesirah. So calling the police becomes a legal duty, not just a nice idea.
    =====================
    Who told you that secular law must be obeyed against Torah law?
    Why do assert that they don't violate the laws of mesirah?

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  5. Well if I understand you all right, the torah has no way of preventing young girls from being raped or molested, except in case of incest (I suppose it protects also against the stepfather since it is prohibited to marry a woman and her daughter).

    So in the case you cited in your article (where a Yeshiva Bocher raped a girl he was not related to), no harm was done, except perhaps that he would have been obliged to marry her if she wanted, but I suppose she did not want...

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  6. Mr. Pasik, your assertions are simply mistaken. Although there is a machlokes (in sanhedrin 73a) regarding why we kill the rodef ("lehatzilo benafsho....shel rodef oi shel nirdaf etc"), le'halocho we rule that it is to save the victim. 'Din rodef' has nothing to do with the beis-hamikdash, and is applicable today as well, halachically- that is.

    Dr. Eidensohn, a few thoughts, reading your post:

    1. I don't have it in front of me, but I recall a tshuva from the Minchas Yitzchok where he permits reporting a reckless driver to the police, as he deems him to be a rodef. I believe that critical to a correct understanding of the permissibility of reporting an abuser, is a clear understanding of WHY poskim permit reporting a 'rodef' to secular authorities. The Rama in SA 388 clearly states that a person being attacked by another, may inform the secular government. The Shach writes that in an abusive situation, the laws of mesira simply do not apply. This Shach is crucial to understanding how these laws apply to a present-day case of abuse.

    2. You wrote that;
    "Another major consequence is that if the rodef has actually committed the crime - we can not stop him from continuing to engage in the act by killing him. This is the psak of the Shulchan Aruch(C.M. 425:3)"
    However, the Rama in 388 commenting on the same condition regarding mesira (that it's only permitted to kill the moser BEFORE he actually commits the mesira), says that this doesn't apply to one who is "huchzak" as a moser. One who is "huchzak moser" may be killed at any time, acc. to Rama (the precise halachic definition of what "huchzak" means in this context could be it's own debate...)

    3. The Tzitz Eliezer has a tshuva permitting mesira in a case of abuse, as I recall, relying on the Shach. However, IIRC, he then broadens the conditions based on the Aruch Hashulchan, whose categorization of democratic penal systems is, at a minimum, highly debatable.

    4. You wrote that:
    "In view of the above - only child abuse which is punishable by kares or death is relevant. - e.g incest or gential penetration for homosexual relationship. Obviously this would exclude many cases of child abuse. This would mean that the law of rodef would not justify calling the police in most cases."
    Are you sure of this ? One might argue that any behavior likely to lead to genital penetration would already be covered as soon as the activity begins.

    Just my thoughts reading your post, and unfortunately I don't have access to a SA right now, so I'm relying on memory.

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  7. Shlomie wrote:
    Mr. Pasik, your assertions are simply mistaken. ... 'Din rodef' has nothing to do with the beis-hamikdash, and is applicable today as well, halachically- that is.

    While it is not p.c. to say such a thing - the law is still on the books.
    Regarding your series of excellent points - I hope to elaborate and expand on these issues in future posts

    1) the Minchas Yitzchok (8:148) and Tztiz Eliezar (19:51) Rav Sternbuch (1:350) permit calling the police when life is endangered by reckless or incompetent drivers.
    2). Rema (C.M. 388) will be discussed and is not an automatic heter in the case of child abuse. There is also a difference between being permitted to call police and being obligated to. Shach is also critical obviously.
    3) Rema is discussing someone who is an established moser - i.e.,he is a threat to the life of Jews. pikuach nefesh. We need to establish that child abuse is in fact pikuach nefesh. If the molester is a rodef there is not problem - but so far we haven't established that the molester in fact is a rodef.
    4) The Tzitz Eliezer (19:51 permits - but he is based on the Aruch HaShulchan that mesira doesn't apply at all in a law governed equitable society. Most poskim don't accept this view.
    5) regarding behavior which may or is likely to lead to penetration - it is an interesting idea but I haven't found anyone who says such a thing - if you have a source I'd greatly appreciate it. You would agree though that a molester who has been in operation for 10 years without penetration would not be covered by your suggestion.

    One of the issues I am trying to deal with is the wide spread "recall" or assumption of what the poskim say. When you look at the actual words the issue becomes very complex.

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  8. shloime said...

    Mr. Pasik, your assertions are simply mistaken. Although there is a machlokes (in sanhedrin 73a) regarding why we kill the rodef ("lehatzilo benafsho....shel rodef oi shel nirdaf etc"), le'halocho we rule that it is to save the victim.
    ======================
    Where do you see this? the victim is saved only in order to prevent the sin. And it is only for certain sins. If the purpose was to save the victim what relevance is it what sin the rodef is doing?

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  9. Just a mareh makom for other places where it is permitted:

    שולחן ערוך חושן משפט סימן שפח

    ד] מי שעוסק בזיופים וכדומה, ויש לחוש שיזיק רבים, עה] מתרין בו שלא יעשה, ואם אינו משגיח, יכולין למסרו ולומר שאין אחר מתעסק בו אלא זה לבד.

    ביאור הגר"א חושן משפט סימן שפח ס"ק עד

    [עד] מי שעוסק כו'. דג"כ רודף הוא ואף שאין מתכוין כמ"ש בההיא חמרא בב"ק שם ובסנה' ע"ב ב' איתביה כו' יצא ראשו כו' ואף שאי נו רק גרמא כמו במסור שאף ע"י ממון קל כמו תיבנא ואף שאינו רק חששא כמו במסור וכן מחתרת וכיוצא ועסי' תכ"ה ס"א בהג"ה וס"ב:


    שולחן ערוך הרב חושן משפט הלכות נזקי גוף ונפש ודיניהם

    סעיף יד
    מי שעוסק בזיופים כגון חתיכת מטבעות במקום שהמלכיות מקפידות וכיוצא בזה ויש לחוש שיסכן רבים דינו כרודף ומתרין בו שלא יעשה ואם אינו משגיח מותר למסרו למלכות ולומר שאין אחד מתעסק בזה אלא פלוני לבדו וכן יחיד שמעלילים עליו בגללו יכול לומר להם אני איני עושה זה אלא פלוני לבדו:

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  10. "Where do you see this? the victim is saved only in order to prevent the sin. And it is only for certain sins. If the purpose was to save the victim what relevance is it what sin the rodef is doing?"
    -------------------------------------
    The language of the very halacha that you quoted in your post
    "מצילין אותו אפילו בנפש הרודף"
    makes clear that we are concerned with saving the victim. This is also clear from the previous halocho in SA (425:2), as well as the comment of the Meiras Einayim here (s"k 10). Also see the language of the Tur on this siman.

    Although the cases cited here are all, as you point out, (and following the gemara) sins which are "punishable by kares or death", the poskim seem to make clear that mesira would be allowed even in a case involving one who merely acts violently (by hitting etc.) - see the shach c"m 388:45, and the tshusvos hoRosh 17:1. It would follow then, that even in a case where child abuse did not involve penetration, it would still qualify as an 'attack', and as such, mesira would be allowed in those cases.

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  11. Moshe:
    The sources that you posted make clear that (even) in a case of forgery etc. mesira is permitted, if there might otherwise result a threat to the entire community.
    Today, THIS IS CLEARLY NOT THE CASE, and mesira is obviously forbidden. Nobody could reasonably imagine that a Jew caught forging currency etc. today, is likely to bring a pogrom down onto the community-at-large. Clearly, 500 and 300 years ago, the risks were different.

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  12. shloime said...

    -------------------------------------
    The language of the very halacha that you quoted in your post
    "מצילין אותו אפילו בנפש הרודף"
    makes clear that we are concerned with saving the victim.

    ======================
    Tosfos(Sanhedrin 73a) raises your point and rejects it.
    On the other hand the language of the gemora is in fact ambiguous. The Yad Ramah also notes that the Mishna can be readily understood as dealing with saving the victim or saving the rodef from sin.
    יד רמה (סנהדרין עג.): מתני' ואלו שמצילין אותן, מן העבירה, בנפשן, ויש לפרש ואלו שמצילין אותן מיד רודפיהן בנפשם כלומר בנפשם של רודפים, הרודף אחר חבירו כו', בגמרא מפרש מנא לז:

    Regarding your points regarding halacha le'maaseh - you are right that some statements in the Shulchan Aruch seem to indicate saving the rodef while others seem to focus on the saving of the victim.
    However halacha l'maaseh presents a problem of determining what was the actual basis of saving the person. There are various justifications for saving the victim - not necessarily because of rodef. The point of the post was to point out that contrary to common assumption there is an element or perhaps the primary element is that the rodef is to be saved from sin.

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