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Legal Issues On Sex Crimes and Halacha (Jewish Law)

(childhood sexual abuse, incest, sexual assault, rape, clergy abuse, professional sexual misconduct)

The typical child sex offender molests an average of 117 children, most of who do not report the offence. Source: National Institute of Mental Health, 1988.

One of the goals of The Awareness Center, Inc. is to insure that when allegations of sex crimes are made regarding a rabbi, cantor or any other individual that police reports are filed immediately by the survivors. It is highly recommended that the survivor to contact their local rape crisis center to go with them to insure that their rights are protected.  Most rape crisis centers have trained volunteers who do this free of charge. 

The Awareness Center, Inc. also suggests that if any organization wants to conduct an investigation that they consult with the following individuals first. This includes all rabbinical/cantorial organizations, schools, synagogue, agencies, etc.

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The Awareness Center is a non-profit, certified 501 (c) (3) organization.  Our goals include reaching out to Jewish survivors of sexual violence, parents of sexually abused children, family members of alleged and convicted sex offenders, rabbis, cantors and other community leaders. We also serve as a clearinghouse of information, and offer advocacy for those in need and educational seminars.

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Table of Contents:  

  1. Jewish Resources

  2. Secular Resources

Also See:  

  1. Rabbinical Resources

  2. Offenders: Problems Our Parents Wouldn't Speak Of

  3. Recidivism of Sex Offenders  (U.S. Department of Justice: Center for Sex Offender Management)

Jewish Resources

Letters from Rabbinical Councils and Vaad Harabbonim

Letter from Vaad Harabbonim - Rabbinical Council of Greater Baltimore

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A Sin By Dereliction

Rabbis Abraham J. Twerski, MD

http://www.jacsweb.org/Library/bookshelf/articles/art_3.html

Dr. Twerski, a leading authority on substance abuse in the Jewish community, is affiliated with the Gateway Rehabilitation Center in Aliquippa, PA.

In the viduy we confess, "We have sinned, we have deceived, we have stolen, etc." Inasmuch as we are frail and fallible humans, we may be unable to withstand temptations and we, therefore, may commit transgressions. Whereas I can understand the vulnerability to sin when there is personal gain, I am unable to understand why we confess "Yoatznu ra (we have given bad counsel)". What personal gain could there possibly be from giving someone bad advice? Why would anyone commit this sin?

I have come to the conclusion that "giving bad counsel" is not an intentional sin, but one which we commit unknowingly. I.e., we think we are giving the person good advice, but in reality the advice is bad, and since this can result in harm to the person, we are culpable for having caused an individual harm even though our intentions were good.

However, the Talmud states that an unintentional sin committed by a scholar is equivalent to an intentional sin, because the scholar, in possession of knowledge, should have known better. In his case, ignorance is not a defense.

Lay people are not necessarily scholars, nor is their counsel frequently sought. Rabbis, on the other hand, are learned and are considered authorities who can provide proper counsel. If they fail to do so because of lack of adequate knowledge, even though their intentions were good, they are held responsible as though it were an intentional transgression. I, therefore, suspect that "Yoatznu ra" is a confession intended for rabbis.

I have had considerable experience with cases brought before rabbis for advice and guidance, where, due to inadequate knowledge, rabbis have given advice which has turned out to be extremely harmful. Namely, there are many problems in the Jewish community of which rabbis may be unaware, such as addictive gambling, alcoholism and/or drug addiction, spouse abuse, child abuse, and other social ills, which, for some reason there is a misconception that these do not occur among Jews, and certainly not among observant Jews.

Couples have come to the rabbi with marital problems, and no inquiry is made as to whether there is a problem of alcohol or substance abuse. Both men and women are susceptible to alcoholism, and there is fairly widespread abuse of prescription drugs, which can be every bit as devastating as heroin and cocaine. Incidentally, even the latter occur among some of the finest families. There are families who are in financial straits, and it does not occur to the rabbi to inquire about the possibility of addictive gambling. Spouses and children may be victims of both physical and emotional abuse, and this may go unsuspected. One battered wife complained, "Our rabbi would never believe if I told him about my husband's behavior at home. On the outside he is an absolute tzaddik, and if I told the rabbi about how he mistreats me, the rabbi would think I am fabricating and consider me meschuge." A number of rabbis who have consulted me about problems of their congregants who were alcoholic, whose problems became so manifest that denial was no longer feasible, have become interested in some of these problems, and have said to me, "I am shocked at how ignorant I was about these conditions."

I recall very well that when I received my semicha, I was quite well versed in halacha, and could render reasonable decisions on problems of ritual. However, nowhere in my education was I exposed to the various problems that I have enumerated. Ironically, even in psychiatric training these were not taught, and unfortunately some psychotherapists who are otherwise quite competent fall into the same trap of not recognizing these conditions, and treating their patients for those diagnoses with which they are familiar but which may be incorrect.

While I do not wish to be an alarmist, let me point out that while making an error in most questions of halacha is a serious matter it pales before errors in dinei nefashos. Lives that are lost and families that are decimated by addictive conditions or abusive behavior fall into the category of "defects that are irreversible." As rabbis, we should make every effort to see that when we beat our heart for "Yoatznura", that it not be a true confession.

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Proposed law may force rabbis to report suspected sexual abuse

By Michael Gelbwasser

Jewish Advocate - March 6, 1997 (V.187; N.9 p. 5)

If a rabbi hears that a child may be getting sexually abused, should he or she notify the Massachusetts Department of Social Services?

They may have to, if state officials enact proposed legislation to add clergy to the current law's list of those required to report cases of injured, abused or neglected children under age 18. However, the bill allows clergy to withhold information obtained during privileged conversations, such as counseling sessions or confessionals.

Third Essex District state Sen. James P. Jajuga filed the bill Monday after dozens of people charged the Catholic Archdiocese with not acting on their allegations that the Rev. John J. Geoghan, 61, a Catholic priest, molested them. As of Monday, over 43 people had reportedly made these charges. The Suffolk County district attorney's office has begun investigating Geoghan, and several civil suits have been filed against him.

"This is nothing more than an additional protection for children," Jajuga said Tuesday. "That's all it is. And it acknowledges that ministers, rabbis and priests shouldn't be engaging in this type of behavior with children."

Under the law, clergy and others who have reasonable cause to believe a child is being hurt must, within 48 hours of forming such beliefs, make oral and written reports to DSS. Failure to do so is punishable by a maximum fine of $1,000.

Rabbi Michael Menitoff of Congregation Mishkan Tefila in Chestnut Hill said Tuesday that Jajuga's bill seemed "confusing" because "the only way a clergyperson would have access" to reports of abuse is through "privileged communication," which the legislation protects. As a result, clergy might be limited to reporting "what they hear on the rumor mill," he said.

"I would be very zealous about guarding as confidential anything said in my office," said Menitoff, a Conservative rabbi.

Menitoff added that he would continue to "find a way to be helpful" to anyone who tells him about abuse and, in instances of privileged communication, do it without compromising the person. That's just being a "responsible citizen," Menitoff said.

"For me, it's an open and shut case," he added. "Forget about the law."

In contrast, Rabbi Abraham Halbfinger "can't see anything wrong" with Jajuga's bill. Reporting abuse is part of "our responsibility to make sure that people are taken care of," Halbfinger, spiritual leader of Congregation Kadimah-Toras Moshe, a shul in Brighton, said Tuesday.

"I have no problem with it," said Halbfinger, who is also executive director of the Vaad Harabonim of Massachusetts. "If sexual abuse does take place, we should report it."

Jajuga, who filed similar legislation in 1993, said the Senate and House will likely refer his bill to the Committee on Human Services, which will schedule a hearing on it. Jajuga plans to talk to Rabbi Ira Korinow, president of the Massachusetts Board of Rabbis, and other clergy before the hearing, which may happen within a month. Korinow is also spiritual leader of Temple Emanu-El in Haverhill, which is in Jajuga's district.

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Rabbis Must Report Acts of Child Abuse: Local Leaders Agree Upon an Amendment to the Abuse Reporting Bill

Jewish Advocate, May 9, 2002 -  V.193; N.18 3

By Jason Nielsen

BOSTON -- Naming clergy members as mandatory reporters of suspected acts of child abuse, local lawmakers along with social and religious leaders drafted the final version of an amendment to the Abuse Reporting Bill last Tuesday, April 23, sending it to the desk of Acting Governor Jane Swift to sign into law.

Co-sponsored by Sen. Susan Tucker (D-Andover), Sen. Cheryl Jacques (D-Needham), Reps. Byron Rushing (D-Boston) and Antonio Cabral (D-New Bedford), the amended statute responds to the current situation involving the sexual abuse of children by members of the Catholic Church.

"The Jewish Alliance for Law and Social Action (JALSA) was certainly comfortable to the notion that clergy be held to the same standards as everyone else," expressed Sheila Decter, executive director of JALSA and participant in the drafting of the amendment.

One of the main concerns in naming additional reporters to the bill was to not define those associated or affiliated with religious organizations as so broad as to place unnecessary burden on those unconstitutionally required to report like the head of the janitorial department at the Maimonides School, explains lawyer Joel Eigerman, one of the architects of the amendment. "It's not constitutionally permissible to put a burden on somebody, just because he has a religious affiliation."

Yet there remains a discrepancy. Eigerman notes how a little league coach sponsored by a religious organization would become liable, while one sponsored by a pizzeria may not be required to report.

Jewish Community Relations Council of Greater Boston's Executive Director Nancy Kaufman added, "While we realize that there may be gray areas that present ethical and legal dilemmas for Jewish and non-Jewish clergy alike, on the whole I think that this legislation is a positive development."

Another worry held by both Jewish community and religious leaders was that the amended law would impede upon the unique role clergy plays in people's lives.

"The subtlety of the issue has to do with the role the clergy play in people's lives, which the state can't really understand: People don't come to their senator for counseling, they come for legal matters and help in social endeavors; it is not forgiveness and counseling," explained Rabbi Barry Starr of Temple Israel in Sharon.

Hoping to subdue concerns, the amendment states that the clergy member shall be required to report all cases of abuse, "but need not report information solely gained in confession or similarly confidential communication in other religious faiths. Nothing in the general laws shall be construed to modify or limit the duty."

Rabbi Meir Sendor of Young Israel in Sharon asserts that this may be closer to the Jewish perspective rather than the Catholic one, which comes from the vantage point of a privileged relationship -- such as the clergy-penitent one -- whose integrity must be protected.

"The Jewish perspective starts from the opposite direction. In truth, we should maintain confidentiality in all of our communication with other people. In other words we are not permitted to gossip. Yet, when there is an issue where someone may be in physical, emotional or financial harm, one must break that confidentiality in a controlled manner, informing only those who may be in harm's way or those who may be able to remedy the situation."

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Halacha (Jewish Law)

Resolution Regarding Members Accused of Improprieties

Adopted by the Rabbinical Council of America

May 28, 2003

http://www.rabbis.org/

WHEREAS, in recent years there have been reported a number of incidents of sexual, physical and/or emotional abuse perpetrated by rabbis and teachers, including members of the Rabbinical Council of America, against members of the communities that they serve and others, adults and children, in violation of Torah law and of civil law; and

WHEREAS, failure to respond to such cases is a violation of the verse, "Thou shalt not stand idly by the blood of your neighbor" (Lev. 19:16; see Hilkhot Rotseiach 1: 14); and

WHEREAS, it is the duty of the Rabbinical Council of America to protect the integrity and welfare of the members of the community that its members serve; to serve and help its members in times of crisis; to represent to the community the best of Torah values; and to protect the dignity of Torah and Orthodox Judaism; and

WHEREAS, events of the past have proven, to our great dismay, that organizations and individuals have not always dealt with these incidents in the best possible way; and

WHEREAS, rabbis must conduct themselves in ways that are exemplary in their religious, moral and interpersonal conduct, not only because of their personal obligations that are governed by the Torah and the Halachah, but in fulfillment of the ideal of ahavat Hashem, "And you shall love the Lord your God: that the Name of Heaven be beloved because of you" (Yoma 86a)., an obligation that calls upon each Jew to conduct himself/herself in ways that reflect nobly on the Torah and God, and to refrain from any improper conduct in all areas including, but not limited to, sexual, personal, and economic behaviors; and

WHEREAS, the verse, "And you shall be guiltless before the Lord and before Israel."(Numbers 32:22) extends the concerns of conduct to mar'it ayin and heshad, suspicious behaviors, and places a higher responsibility on personal and professional conduct of all Jews, especially rabbis; and

WHEREAS, improper behavior can cause a hillul Hashem, a desecration of God's Name, a transgression that it is more difficult to atone for than for any other sin, so that not even repentance, the atonement of Yom Kippur, and personal suffering can absolve one of this offense (Yoma 86a); and

WHEREAS, the Halachah recognizes that an adam hashuv (a prominent person) is held to a standard of behavior and morality higher than that to which others are held and must refrain from any improper behavior, even if not explicitly prohibited or illegal, lest he cause a hillul Hashem, a desecration of God's Name. An adam hashuv, a well-known and well-respected person, and a talmid hakham, a pious, learned scholar, are expected by others to live according to strict moral standards-therefore, the greater the desecration when they fail to live up to these expectations. Their failures reflect negatively not only upon their personal reputations, but upon the Torah that they claim to uphold and upon the God they represent. Among others, these behaviors include embarrassing one's colleagues due to the nature of the rumors that are spread about him (Yoma 86a), embarrassing one's colleagues by the less-than-dignified activities in which he engages (Rosh to Moed Katan, ch. 3, no. 11) and degrading the honor of Torah (Pesahim 49a); and

WHEREAS, the Mishnah, Avot 4:4, reminds us that sequestering a hillul Hashem will always be unsuccessful: "Whoever desecrates the name of Heaven in private will ultimately be punished in public, whether the desecration was committed unintentionally or intentionally." Hence, a conspiracy to conceal information about abuse will ultimately be made public, creating an even greater hillul Hashem; and

WHEREAS, the Talmud, Berakhot 19b, posits, "Wherever a profanation of God's Name is involved no respect is paid to a rabbi"; and

WHEREAS, R. Akiva explained the biblical verse, "And you shall love your friend as yourself (Lev. 19:18)" by positing, "What is hateful to you, do not do to your friend." (Shabbat 31a), we are obligated to respect and protect the integrity, welfare and dignity (kevod ha-beriyot) of our fellow humans;

THEREFORE, BE IT RESOLVED THAT:

The Rabbinical Council of America condemns in the strongest terms any act of sexual, physical or emotional violence, abuse or impropriety, perpetrated by any of its members against any child or adult and declares to all victims that the abuse is the responsibility and sin of the abuser and is not the responsibility or sin of the victim; and

The Rabbinical Council of America recommits itself to fulfilling its responsibility for the welfare of the members of the Jewish community at large and the general community as well, especially to those who have been victims or who claim to be victims of an act of sexual, physical or emotional violence, abuse or impropriety; and

The Rabbinical Council of America commits itself to reevaluating its policies and procedures in cases of accusations of acts of violence, abuse or impropriety made against any of its members and to develop and enact, in a timely manner but no later than June 30, 2004, those policies and procedures that will effectively and responsibly respond to accusations made against any of its members including:

The Rabbinical Council of America recommits itself and its members:

The Rabbinical Council of America urges its members to assert responsible leadership in their individual synagogues, schools, organizations and communities in publicly condemning acts of sexual, physical and emotional violence, abuse and impropriety and

------------------------------------------------------------------------

Endnote:

  1. Arukh HaShulhan maintains that mesirah was prohibited because of the nature of autocratic governments under which Jews lived throughout much of our history. Such informing often led to dangerous persecution of the entire Jewish Community. He posits that this injunction no longer applies in those communities in which the government is generally fair and non-discriminatory. (Arukh HaShulhan, Hoshen Mishpat 388:7. This source is cited authoritatively by Rabbi Gedalia Dov Schwartz in "The Abused Child: Halakhic Insights." Ten Da'at, Sivan 5748. p. 12). Accordingly, it is obligatory in the Western world today to inform the civil authorities about individuals who abuse others.

  2. The prohibition of mesirah applies only when testimony assists civil authorities in illegally obtaining the money of another Jew, not when it aids a non-Jewish government in fulfilling such rightful duties as collecting taxes and punishing criminals. When, however, the information concerns the criminal activities of a fellow Jew - as long as the Jewish criminal has also violated a Torah law, and even if the punishment will be more severe than the Torah prescribes (RaN to Sanhedrin 46a) - the ban of mesirah does not apply. (Rabbi Herschel Schachter, "Dina deMalchuso, Dina,"Journal of Halachah and Contemporary Society, I, p. 118.)

  3. Even should one hold that the prohibition of mesirah is relevant today, reporting child abusers to civil authorities is nevertheless mandatory. According to Rema, even when the prohibition of mesirah is in force, "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." (Hoshen Mishpat 338:7 and Shakh, no. 45. See also Gloss of Rema to Hoshen Mishpat 338:9.) Our Batei Din today have neither the power nor the authority to handle such matters.

  4. Shulhan Arukh rules that the prohibition of mesirah restricts an individual who is being harassed from making a report to the civil authorities. However, when there is a meitzar hatzibbur (public menace), mesirah is permissible. (Hoshen Mishpat 338:12, see Shakh, no. 59 and Gra no. 71.) Child abusers and molesters clearly endanger the welfare of many children with whom they have contact. (Rabbi Waldenberg quoted in Nishmat Avraham, Vol. IV, p. 209.)

  5. See Rabbi Michael Broyde, "Mesirat Meida al Avaryanim lidei ha-Shiltonot be-Artzot ha-Berit," Hadarom, vol. 72-73, Elul 5762, pp. 7-38; p. 37, note 90.

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Orthodox Rabbinical Group Issues Halachic Proposal on Child Abuse

By Judith S. Antonelli

The Jewish Advocate - May 29, 1992, V.182; N.22 p. 6

A modern Orthodox think tank has issued a proposal on the physical, sexual, and emotional abuse of children in which it asserts that "it is a mitzvah to report a child abuser to the civil authorities."

The think tank, known as the R.C.A. Roundtable, functions under the Rabbinical Council of America, the national organization of Orthodox rabbis.

"We are firmly centrist," said Rabbi Jeffrey Woolf, executive chairman of the Roundtable. "Our purpose is empowerment, to provide Jewish legal guidance to modern Orthodox rabbis."

Other topics addressed by the Roundtable have included: a halachic ban on cigarette smoking, conversion for purposes of adoption, and the parameters of honoring one's parents in light of Alzheimer's disease. The Roundtable also plans to deal with a number of women's issues in Halacha.

The following excerpts are from the child abuse proposal, authored by Rabbi Mark Dratch of Shaarei Shomayim Congregation in Toronto.

Definition of Abuse

Physical: Although corporal punishment of children was an exception to the general injunction against physical assault (Makkot 8a), this dispensation is very limited. Physical abuse and excessive physical punishment are prohibited by Torah law.

Sexual: Abuse in the form of sexual relations between parents and children and between teachers and students, whether consensual or forced, homosexual or heterosexual, are prohibited by the Torah. This includes not only genital penetration, but any form of illicit fondling or inappropriate behavior for the purpose of gratifying sexual desire.

Emotional: Abuse, manifested in overly harsh criticism, name-calling, and intimidating and degrading speech, is also biblically prohibited (Lev. 25:17), even when the victim is a minor. Both the physical and psychological consequences of abuse must be addressed as cases of pikuach nefesh (saving a life).

Obligation to Act

Anyone who can save a life and does not do so violates the commandment, "You shall not stand idly by the blood of your neighbor" (Lev. 19:16). A person is required to exhaust all means in order to effect the saving of the individual. This can be accomplished personally, by reporting the matter to authorities, or by hiring others to accomplish the rescue. The obligation holds until the victim has been fully extricated from the dangerous predicament.

A child must be removed from the home if he/she is in imminent danger of abuse. The welfare of the child supersedes any right the parent may claim; this is a guiding principle in Jewish legal thinking in the area of child custody. Even if removal from the parental home would lead to the child's placement in a foster home or institution which is not Torah-observant, this does not violate "You shall not place a stumbling block before the blind" (Lev. 19:14). The physical safety of the child supersedes all other considerations.

An abusive teacher must be removed from the classroom. We have policies in our day schools which remove a religious studies teacher who has violated Shabbat or other ritual practices; it would be absurd to refuse to remove a child abuser from the classroom. Not only must abusive teachers be removed, but their identities must be made known throughout the entire system of schools in order to prevent future abuse of other children.

The obligation to save those who are sexually abused is even more stringent. A parent or teacher who has intercourse with a child is considered a rodef and must be stopped, even if that means killing him. Although one who molests children without genital penetration does not technically come under the category of rodef, he/she is actually considered a rodef because of the psychological trauma and depression the abuse causes the child.

In addition to the halachic requirements of pikuach nefesh and stopping a rodef, dina de-malkhuta dina (the law of the land is the law, as long as it does not transgress Jewish law) also applies, as many jurisdictions require anyone who works with children to report suspicions of abuse.

Lashon Hara

Discussing or reporting an alleged abuser is not lashon hara (gossip). On the contrary, where after careful evaluation of the evidence it is believed that abuse has occured, it is a mitzvah to inform others so as to protect them and their families from possible harm. Withholding such information is tantamount to withholding testimony in a court of law. The obligation to reveal the information holds 1) even outside of court proceedings, 2) even if the informer is the sole source of information, 3) even if the statement is based solely upon hearsay, and 4) even if the abuser promises not to harm anyone else.

Civil Authorities And Chilul Hashem

Jewish law prohibits adjudication by Jews in non-Jewish courts. Many explain that the prohibition of mesirah, reporting a fellow Jew to civil authorities, is for the purpose of privileging the Jewish legal system over others'. All legal matters concerning Jews should be redressed in a Jewish court according to Jewish law. However, there are many reasons why this prohibition does not apply in the case of child abuse.

Mesirah was prohibited because of the nature of autocratic governments under which Jews lived throughout much of history. Such informing often led to persecution of the entire Jewish community. This does not apply in the Western world today.

The prohibition of mesirah applies only when testimony assists civil authorities in illegally obtaining the money of a Jew, not when it aids a non-Jewish government in fulfilling rightful duties such as collecting taxes and punishing criminals. The ban does not apply to criminal activities of Jews, as long the as the crime also violates Torah law and even if the punishment will be more severe than the Torah prescribes.

If Jewish authorities do not have the power to punish a criminal, the civil authorities must do so. Our rabbinic courts today have neither the power nor the authority to handle such matters.

Mesirah is permissible in the case of a public menace, and child abusers and molesters clearly endanger the welfare of many children.

There is thus no chilul Hashem in publicizing a Jewish child abuser and resorting to non-Jewish courts. In fact, to not report or testify about such abuse would be chilul Hashem. If such information is concealed and later made public, it would create an even greater chilul Hashem. Yoma 86b maintains that "one should expose hypocrites to prevent the desecration of the Name."

Proposals

Schools, synagogues, and youth organizations must adopt policies which mandate the dismissal of abusive teachers and childcare workers from their positions, and the notification of future potential employers of the circumstances of their dismissal.

It must be publicized that it is a mitzvah to report a child abuser to the civil authorities. All interested parties must cooperate, including testifying in a civil court of law. The Rabbinical Council of America should either authorize its Bet Din or establish a special Bet Din to hear cases of alleged abuse and to make appropriate recommendations.

Synagogues and schools should run programs which educate parents, teachers, and youth workers to recognize the signs of possible abuse. Curricula must be developed for our schools to train children in how to recognize abuse and avoid it.

Clinics and other resources should be established to aid the abused who seek help and to provide help for the abusers in order to prevent future incidents.

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The Physical, Sexual and Emotional Abuse of Children

by Rabbi Mark Dratch

Rabbinical Council of America (RCA ) Roundtable - 1991 (Nissan 5752)

This article also appears in the Domestic Violence Handbook of the Jewish Family Services of Los Angeles and in the Rabbinic Guide for DomesticViolence of Jewish Women International

Jewish children, like children everywhere, are the victims of physical, sexual, and emotional abuse.1 Yet, we fool ourselves into thinking, "it can't happen to us." While recent reports in the media have made public that we are not free of this curse, most of the cases in our families, schools, and institutions go unreported or are hushed up and, hence, true statistics are unavailable. This denial has many sources: the incredulity that such ugly behavior can exist among our people always so proud of our exemplary home-life; the fear that it will bring Jews into disrepute; the apprehension that the child victim will have his/her reputation tarnished; and so on. But such a posture by the community remains inexcusable because we thereby shirk our responsibility to our children, denying the victims of abuse the safe haven of a caring and nurturing home and school, and preventing them from growing up with the physical and psychological security they need and deserve. It is for this sin of omission that our entire community must give din vi-heshbon, a complete and unequivocal reckoning. And it is to protect the bodies and souls of our innocent children that we must speak out and act.

What obligations does Jewish law impose upon us in order to protect our children from actual or potential abusers? May we inform civil authorities? Are there problems of lashon hara or hillul Hashem?

DEFINITIONS OF PHYSICAL, SEXUAL, AND EMOTIONAL ABUSE

Since corporal punishment was viewed as an effective means of shaping the characters of young children, hitting one's child or student as a tool in education and discipline was made an exception to this injunction against such physical assault.2 Verses such as "He that spareth the rod hateth his child, but he who loveth him chasteneth him betimes" (Proverbs 13:24) appear to deem corporal punishment an acceptable, even preferred form of discipline.3 This dispensation is very limited and physical abuse4 and excessive physical punishment5 are prohibited by Torah law. The halakhic parameters of discipline, especially physical punishment, deserve significant attention beyond the scope of this paper.6

Abuse in the form of sexual relations between parents and children and between teachers and students whether consensual or forced, homosexual or heterosexual, are prohibited by the Torah! The Torah not only bans genital penetration, but any form of illicit fondling or inappropriate behavior for the purpose of gratifying sexual desire.8

Abuse, manifested in overly harsh criticism, name calling, and intimidating and degrading speech, is also biblically prohibited,9 even if the victim is a minor.10 Of great significance is the lifelong psychological trauma that impacts on the physical and emotional well-being of victims of physical, sexual, and emotional abuse. The halakhic consequences of mental trauma were considered by Rabbi Moshe Feinstein in evaluating the case of a woman who, by fulfilling certain mitzvot, might suffer dangerous psychological reactions and, hence, be considered pikuach nefesh. In one responsum Rabbi Feinstein permitted eating on Yom Kippur as well as the use of contraception.11 Although these dispensations were granted because of the potential physical harm this woman may inflict upon herself or others, the same apprehension was enunciated by our sages concerning the consequences of physical abuse.12 Thus, both the physical and psychological consequences of abuse must be addressed as cases of pikuach nefesh.

OBLIGATION TO ACT

How for does our obligation of pikuach nefesh in responding to physical abuse extend? The Talmud, Sanhedrin 73a, bases its requirement to save someone under attack upon two verses: "And thou shalt restore him to himself (Deut. 22:2), which dictates personalintervention, and "Thou shalt not stand idly by the blood of your neighbor" (Lev. 19:16), which directs one even to hire others to accomplish the goal. In codifying this low in Hilkhot Rotseiach 1: 14 Rambam derives the obligation from only one verse.' He writes,

Anyone who can save (someone's life) and does not do so transgresses, "Thou shalt not stand idly by the blood of your neighbor." Similarly, if one sees his brother drowning in the sea, accosted by robbers, or attacked by wild animals and can save him personally or can hire others to save him, and does not save him, or he heard non-Jews or informers plotting evil or attempting to entrap another and he does not inform him...transgresses 'Thou shalt not stand idly by the blood of your neighbor.'

Thus, according to Rambam, both the personal and delegated responsibility enjoined by the "neighbor's blood" obligation require the same aggressive, full pursuit of the goal or saving the victim. Lo ta'amod requires a person to exhaust all means in order to effect the saving of the individual.14 This can be accomplished personally, by reporting the matter to the authorities, or by hiring others to accomplish the rescue. However, until the victim has been fully extricated from the dangerous predicament the obligation still obtains.

One who has information to report and fails to do so is in violation of the "neighbor's blood" obligation,15 and of "if he does not utter it then he shall bear his iniquity" (Lev. 5:1).16 While in monetary affairs the witness can wait until summoned, in other matters the witness must come forward voluntarily17 in order to "destroy the evil from your midst." 18

A child must be removed from his home if he is in imminent danger of abuse. The welfare of the child supersedes any right the parent may claim; this is a guiding principle in Jewish legal thinking in the area of child custody. Rema asserts that the general ruling placing daughters in the custody of their mothers is premised on the assumption that such placement is in the child's best interest. If, however, the court judges that a daughter would be better served in the custody of her father, she is placed with him.19 Even if removal from the parental home would lead to the child's placement in a foster home or institution which is not observant of Torah practices (although one must attempt to ensure that placement is in an observant environment if possible), the reporter does not violate "Thou shalt not place a stumbling block before the blind" (Lev. 19:14). Certainly, the physical safety of the child supersedes all other considerations.

Responsa Kiryat Channah, (R. Gershon Koblentz of Metz, printed in 1685), no. 22, holds the teacher financially liable for damages that the child incurs under his care, considering a teacher's salary to be sechar shimur, compensation to protect a child from harm. He maintains that the mitzvah exemption generated by the teacher-student relationship as described by the Mishnah, Makkot 8a, applies only to galut and not to financial liability. Responsa Shevut Yaakov, no. 140, disagrees, holding that the teacher is technically exempt from any liability. He posits that the mitzvah exemption applies to financial liability as well as to galut. However, he concurs that as a matter of social welfare, the teacher should be held responsible for financial compensation. Both authorities agree that this teacher be separated from his students. Thus, not only may we remove an abusive teacher from the classroom; we must remove him lest we be in violation of the biblical ordinance, "Do not stand idly by the blood of your neighbor" (Lev. 19:16). We have policies in our day schools, which remove a religious studies teacher who has violated Shabbat or other ritual practices, it would be absurd to refuse to remove a child abuser from his classroom. Are such teachers not in violation of the Torah as well? Is the sanctity of Shabbat that much more important to us then the innocence and safety of tinokot shel bet Rabban, our school children? Not only must abusive teachers be removed, but also their identities must be made known throughout the entire system of schools in order to prevent future abuse of other children.

The obligation to save those who are sexually abused are even more stringent. A parent or teacher who has intercourse with a child is considered a rodef (pursuer) and must be stopped. 21 This designation of the abuser as rodef mandates even killing him if that is the only way to prevent him from committing a sexual assault.22 Thus, one must certainly do everything possible to guarantee that children are protected from the abuser. Although one who molests children without genital penetration technically does not come under the category of rodef because of the sexual act itself,23 he is considered a rodef because of the psychological trauma and depression he causes to the victim as proven above. Additional obligations to rescue abused children may be derived from such verses as, "Thou shalt surely rebuke thy neighbor" (Lev. 19:16), 24 "Thou shalt love thy neighbor as thyself" (Lev. 19:18),25 "Thou shalt not place a stumbling block before the blind" (Lev. 19:14),26 "Do not stand idly by the blood of your neighbor" (Lev. 19:16), 27 and the biblical obligation to remove potential dangers from our homes recorded in Ketubot 41b. 'R. Nathan said, 'Whence is it derived that a person may not breed a bad dog in his home nor place a shaking ladder in his house? It is said, "Thou shalt not bring blood upon thy house" (Deut. 22:8).'"

In addition to the halakhic requirements of pikuach nefesh and rodef, jurisdictions have laws which require anyone who works with children to report suspicions of abuse and, thus, dina de-malkhuta dina (the law of the country is binding) obtains.28 While dina de-malkhuta dina does apply when the demands of the state call for the violation of Jewish law,29 this paper proves that such reporting not only does not violate Jewish law, but that Jewish law makes such reporting imperative.

LASHON HARA

Is discussing or reporting an alleged abuser a violation of the laws against lashon hara? Consider the Talmudic case of Tuvya and Zigud (Pesahim 113b),

It once happened that Tuvya sinned and Zigud came and testified against him alone before R. Papa. He had Zigud punished. "Tuvya sinned and Zigud is punished!" he exclaimed. He said to him, "Yes, for it is written, 'One witness shall not rise up against a man' (Deut. 19:15), whereas you have testified against him alone; you have merely brought him into ill repute."

Since this testimony was inadmissible, Zigud has done no more than spread ugly rumors about the accused and has violated the prohibition, "Thou shalt not go as a talebearer" (Lev. 19:16).

However, R. Papa's actions in Pesahim seem to be contradicted by the Talmud (Baba Kamma 56a) which condemns even a single individual who withholds evidence as one who is exempt from human judgment but liable to the judgments of Heaven. Rashi observes that since the attestation of one witness can obligate the party to take an oath, such testimony is efficacious: such a statement is not lashon hara and its declaration is imperative. Rema extends the moral imperative of one witness to testify to all cases in which there is a benefit, including preventing another person from sinning.30 In fact, there is no contradiction. The case of Tuvya and Zigud teaches that if the sin has already been committed, the testimony of only one witness is prohibited, constituting a violation of motsi shem ra. Baba Kamma requires testimony because there will be a future benefit.

Despite the permissibility generated by the need to prevent future injury, Hafetz Hayyim prohibits the revelation of any information that would cause harm to the accused that is not based on bonafide evidence worthy of a court of Iaw.31 This prevents an innocent person from becoming the victim of false accusations and slander.32 This restriction severely hinders the revelation of instances of child abuse where the only confirmation of the abuse is the statements of minors whose veracity is unreliable, as they are generally considered as unfit witnesses,33 or circumstantial physical evidence. However, because confidential reports to agencies responsible for investigating such allegations will not harm a person's reputation and because the testimony of children, supported by significant suspicions, may be acceptable testimony,34 this restriction does not prevent the proper prosecution of abusers or endanger the well being of children. In addition, when physical and mental pikuach nefesh is involved, one must, after careful deliberation and consideration of the evidence and its consequences, reveal serious suspicions.

Thus, in cases of child abuse, where, after careful evaluation of the evidence it is believed that abuse has occurred, there is no prohibition of rehilut-- even outside of the judiciary process. On the contrary, it is a mitzvah to inform others so as to protect them and their families from possible harm. Hafetz Hayyim, rejecting the possible objections of those who would deem this an unwarranted leniency, states that withholding such information is tantamount to withholding testimony in a court of law and is prohibited by "Thou shalt not stand idly by the blood of thy brother" (Lev. 19:16).35 This obligation to reveal this information holds: even outside of court proceedings;36 even if the informer is the sole source of information; even if the statement is based solely upon hearsay; and even if the abuser promises not to harm anyone else if there is concern that he cannot be trusted.37

INFORMING CIVIL AUTHORITIES AND HILLUL HASHEM

Based on the verse, "These are the judgments which you shall place before them: (Ex. 21:1), Jewish law prohibits adjudication by Jews in non-Jewish courts.38 Rambam, elaborating on the severity of this sin, claims that "whoever adjudicates in a non-Jewish court ... is wicked and it is as though he has reviled, blasphemed, and rebelled against the law of Moses." 39

Many explain that the prohibition of mesirah, the reporting of a fellow Jew to civil authorities, is for the purpose of privileging the Jewish legal system over those of others. All legal matters concerning Jews should be redressed in a Jewish court according to Jewish law. However, there are many reasons why this prohibition does not apply in the case of child abuse.

1) Arukh HaShulhan maintains that mesirah was prohibited because of the nature of autocratic governments under which Jews lived throughout much of our history. Such informing often led to dangerous persecution of the entire Jewish Community. He posits that this injunction no longer applies in those communities in which the government is generally fair and non-discriminatory.40 Accordingly, it is obligatory in the Western world today to inform the civil authorities about child abusers.

2) The prohibition of mesirah applies only when testimony assists civil authorities in illegally obtaining the money of another Jew, not when it aids a non-Jewish government in fulfilling such rightful duties as collecting taxes and punishing criminals. When, however, the information concerns the criminal activities of a fellow Jew-- as long as the Jewish criminal has also violated a Torah law, and even if the punishment will be more severe than the Torah prescribes 41 -- the ban of mesirah does not apply.42

3) Even should one hold that the prohibition of mesirah is relevant today, reporting child abusers to civil authorities is nevertheless mandatory. According to Rema, even when the prohibition of mesirah is in force, "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."43 Our Batei Din today have neither the power nor the authority to handle such matters.

4) Shulhan Arukh rules that the prohibition of mesirah restricts an individual who is being harassed from making a report to the civil authorities. However, when there is a meitzar hatzibbur (public menace), mesirah is permissible.44 Child abusers and molesters clearly endanger the welfare of many children with whom they have contact.45

5) The concern of hillul Hashem (desecrating God's Name) has also been raised as an objection to the reporting of Jewish child abusers, i.e., it would be disgraceful for a Jew, especially an Orthodox one, to be tried publicly for such an offense and a hillul Hashem to resort to non-Jewish courts.46 However, the problem of hillul Hashem cuts both ways. Not reporting or testifying about such abuse, when such is required by civil law, is classified by Rosh as hillul HaShem.47 Although, according to Shulhan Arukh, the desecration of God's Name occurs only in those cases when Jewish witnesses have been specifically designated by the non-Jews to testify, 48 Bach maintains that Rosh's position applies in our own day even when such witnesses have not been officially summoned because of the danger to Jewish lives that may subsequently ensue by withholding information. Certainly, in countries where physicians, teachers, and youth workers are required by law to report suspicions of child abuse, it would be a hillul Hashem and a violation of dina de-malkhuta dina to withhold such information.

The Mishnah, Avot 4:4, reminds us that sequestering a hillul Hashem will always be unsuccessful: "Whoever desecrates the name of Heaven in private will ultimately be punished in public, whether the desecration was committed unintentionally or intentionally." Hence, a conspiracy to conceal information about abuse will ultimately be made public, creating an even greater hillul Hashem. The greater severity of the hillul Hashem in concealing the information can be further supported by the Talmud, Yoma 86b, which maintains that "one should expose hypocrites to prevent the desecration of the Name.49 Rashi explains that the reason for this disclosure is that people, thinking that this person is righteous, may learn from his behavior. Rambam is of the opinion that after unsuccessful attempts to correct the matter privately, public remonstration and broadcasting of the outrage is required. There is no concern about the hillul Hashem of exposing the offense.

For those who maintain a stricter interpretation of the prohibition of mesirah, there is yet another means by which to enable reporting: if a case originally brought before a Bet Din is recommended by the Jewish court for adjudication in a civil court, the prohibition of mesirah does not apply.50 The Rabbinical Council of America should either authorize its Bet Din or establish a special Bet Din to hear cases of alleged abuse and to make appropriate recommendations.51

NOTES

1. Two informative articles appeared in Ten Da'at, Sivan 5748: "Child Abuse: A School Meets a Crisis" by Rabbi William S. Atshul and "Identifying the Abused Child: The Role of Day School Educators" by Dr. David Pelcovitz.

2. Makkot 8a.

3. See also Proverbs 3:11-12, 10:13, 19:18, 19:29, 20:30, 26:3, 29:15, 29:17. For a collection of rabbinic statements concerning corporal punishment see Zvi Elimelekh Bloom, Hanhagot HaHinukh (Jerusalem, 5741), pp. 140-158.

4. Hilkhot Hovel uMazik 5:1; Yoreh De'ah 450:1.

5. Hilkhot Talmud Torah 2:2; Yoreh De'ah 240:10: Kitzur Shulhan Arukh 165:7.

6. The parameters and limitation of corporal punishment are briefly analyzed by Rabbi Gedclia Dov Schwartz in "The Abused Child: Halachic Insights," Ten Da'at, Sivan 5748.

7. Leviticus, chapter 18.

8. Shabbat 13a; Hilkhot Issurei Bi'ah 2 1:1: Sefer HaMitzvot, prohibition no, 353 and Megilat Esther; Sefer Mitzvot Gadol, prohibition no. 126: Sefer HaHinukh, no. 188; Even HaEzer 20:1. Others quote opinions that maintain that intimacy without penetration is rabbinically forbidden, see Ramban on Shabbat 13a and on Sefer HaMitzvot, ibid. (Ramban himself may hold that the prohibition is biblical): Zohar HaRakiah of Rashbatz, Prohibition no. 11. See Biur haGra 20: 1.

9. "And ye shall not wrong one another," Leviticus 25:17. See Me'irat Einayim to Hoshen Mishpat 420, no. 49.

10. Baba Kamma 90a; Hilkhot Hovel uMazik 3:5; Hoshen Mishpat 420:38.

11. Iggerot Moshe, Even HaEzer IV, no.68.

12. Masekhet Semahot, chapter 2: Kitzur Shulhan Arukh 165:7; Hiddushei R. Akiva Eiger, Yoreh De'ah 240:20.

13. Minhat Hinukh, no. 237 questions why Rambam ignores the "restoration obligation"..He offers no resolution. See Migdal Oz on Rambam and my article, "His Money or Her Life? Heinz's Dilemma in Jewish Law,' Journal of Halacha and Contemporary Society, Vol. XX. Fall 1990.

14. Rashi, Sanhedrin 73a, s.v. lo ta'amod. Rambam, Hilkhot Rotzeich 1:15, adds both affirmative and prohibitive injunctions to this obligation: "And thou shalt cut off her hand, thine eye shall have no pity' (Deut. 25:12).

15. Sifra, Arukh Hashulhan, Hoshen Mishpat 28:4

16. Hilkhot Edut 1:1.

17. Kesef Mishnah to Hilkhot Edut 1:1.

18. Rosh to Makkot, chapter 1, no. 1.

19. Even HaEzer 82:7. See also Radbaz 1: 123; Responsa Darkei No'am, Even HaEzer no. 126; Responsa Mishpetei Shmuel, no. 90. According to Tosaphot, Sanhedrin 72b, s.v. kan be-av al ha-ben, if a father clearly lacks compassion for his child, the child may kill him in self-defense. See also Maggid Mishnah to Hilkhot Geneivah 9: 10. See Gedalich Aharon Rabinowitz. "Takkonot Banim Mukkim al yedei HaHorim." in Halakhah uRefuah, Moshe Hirshler, ed., (Chicago: Bet Midrash Latorah, 5740), pp. 336-48.

2O. Dr. Abraham Abraham in Nishmat Avraham, Vol. IV, p. 208, cites Rabbi Eliezer Waldenberg who allows placement of abused children in a non-observant environment because: 1) The reporter is only a gorem, he is not personally facilitating the placement: 2) There is a chance that the government agency will place the child in an observant environment: and 3) As a minor, the abused is not obliged to fulfill the mitzvot. At the age of Bar Mitzvah he may find himself in an observant environment. Rabbis Auerbach and Elyashev make similar recommendations. However. since physical and psychological pikuach nefesh is involved, such reasoning seems unnecessary,

21. Killing a rodef is permissible only to prevent future abuse, not to punish past crimes.

22. Sanhedrin 73a; Hilkhot Rotzeich 1:10; Hoshen Mishpat 425:3-4.

23. Sanhedrin 73a; and Tosaphot, s.v. hayavei keritut.

24. Arakhin 16b; Hilkhot De'ot 6:6-7.

25. Shabbot 31a; Hilkhot De'ot 6:3.

26. Avodah Zarah 6b; Hilkhot Rotzeiah 12:14.

27. Sanhedrin 73a;: Hilkhot Rotzeiah 1:14.

28. Gloss of Rema to Hoshen Mishpat 369:11, "Dina de-malkhuta dina applied ... where the legislation protects the welfare of the citizens.' See Shmuel Shiloh, Dina De-Malkhuta Dina, (Jerusalem: 5735). pp. 115, 147-149, 187ff.

29. Siftei Kohen to Hoshen Mishpat 73, no. 39 and Responsa Chatam Sofer, Hoshen Mishpat, no. 44.

30. Gloss to Hoshen Mishpat 28:1.

31. Hafetz Hayyim, Be'er Mayyim Hayyim, Hilkhot Rehilut, kelal 7, no. 20.

32. Be'er Mayyim Hayyim, Hilkhot Rehilut, Kelal 9, no. 20.

33. Hilkhot Edut 9:1; Hoshen Mishpat 35:1.

34. Gloss of Rema to Hoshen Mishpat 35:14 which, under certain circumstances, accepts minors as eidei birrur based on a Takkanat kadmonim ascribed to either Rabbeinu Tam or Rabbeinu Gershom Me'Or haGolah.

35. Be'er Mayyim Hayyim, Hilkhot Rehilut. kelal 9, no. 1.

36. Hilkhot Rehilut, kelal 9, no. 3.

37. Hilkhot Rehilut, kelal 9, no. 3 and Be'er Mayyim Hayyim nos. 9 and 10.

38. Gittin 88b.

39. Hilkhot Sanhedrin 26:7. For discussions of the prohibition of litigating in secular courts see Herschel Schachter, "Dina deMaIchusa Dina." Journal of Halacha and Contemporary Society, Vol. 1, no. 1. and Simcha Krauss, "Litigation in Secular Courts.' Journal of Halacha and Contemporary Society, Vol. 11, no. 1.

4O. Arukh HaShulhan, Hoshen Mishpat 388:7. This source is cited authoritatively by Rabbi Gedalia Dov Schwartz in "The Abused Child: Halakhic Insights." Ten Da'at, Sivan 5748. p. 12.

41. RaN to Sanhediin 46a. See, however, Responsa Rema, no. 88, who maintains that according to Tosaphot, Baba Kamma 114a, s.v., ve-lo, if the punishment is greater than the Torah prescribes, there is a prohibition of mesirah.

42. Herschel Schachter, "Dina deMalchuso, Dina," p. 118.

43. Hoshen Mishpat 338:7 and Shakh, no. 45. See also Gloss of Rema to Hoshen Mishpat 338:9; B'nei Hayei and Maharam miRiszburg cited in Pahad Yitzhak, Maarekhet Hoveil Behaveiro.

44. Hoshen Mishpat 338:12 according to the text quoted by Shakh, no. 59 and Gra no. 71.

45. See statement of Rabbi Waldenberg quoted in Nishmat Avraham, Vol. IV, p. 209.

46. See Responsa Binyamin Zev, no. 282 and Responsa Ba'i Hayi, Hoshen, Mishpat no. 158.

47. Rosh to Baba Kamma, chapter 10, no. 14.

48. Shulhan Arukh, Hoshen Mishpat 28:3.

49. See also Hilkhot De'ot 6:8

50. Hoshen Mishpat 26:2.

51. Some have raised the objection of reporting child abusers for fear of the dangers of sexual molestation or life-threatening attacks they may face in jail. First, is it better not to report, allow him to remain free, and to subject innocent children to more certain abuse by this criminal? Second, reporting suspicions of abuse, and even testifying in a civil court, is not the proximate cause of such risk: Too often the system fails to incarcerate these perpetrators; the reporting only starts a long process that may lead to incarceration: whatever attacks occur are perpetrated by another person. The restriction of "Thou shaft not place a stumbling block" (Lev. 19:14) does not obtain. (For a discussion of the parameters of the prohibition of lifnei iveir see my 'The Politics of Selecting a Political Candidate,' Journal of Halacha and Contemporary Society, Vol. XI, Spring 1986, pp. 5-18.) In addition, the reporter is merely a gerama (indirect cause) for any subsequent difficulties that may occur and holds no liability. For a discussion of the parameters of gerama see my "suing Your Rabbi: Clergy Malpractice in Jewish Law," Journal of Halachah and Contemporary Society, Vol. XVIII, Fall 1989, pp. 5-18.

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Child Punishment in Halacha

by Rabbi Mark Dratch

Canadian Jewish News - March 30, 1995

Is it permissible to hit children? Section 43 of the Criminal Code of Canada states, "Every school teacher, parent or person standing in the place of a parent is justified in using physical force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances." In, Campeau v. The King (1951) 103 C.C.C. 355, the Quebec Court of Appeal ruled that "the mere fact that the children disciplined suffered contusions and bruises is not in itself proof of exercise of undue force." This ruling presupposes that use of physical punishment is beneficial for the discipline. and education of children.

Many contemporary psychologists and child rearing experts disagree and the policy of Toronto's JF&CS is to consider all physical striking a form of abuse.

 Is hitting children permitted according to Jewish law?

Jewish law bans aggressive, hostile acts intended to harm or embarrass human being (Rambam, Hil. Hovel uMazik-5:1). Thus, maliciously injuring, hitting, abusing or even raising a hand against another is prohibited. However, when those blows are intended for a productive purpose, such aggression may not only be tolerated, but may also be mandatory. Thus, therapeutic procedures like surgery, court administered lashes and striking someone to prevent him from sinning were considered legitimate pretexts for assaulting another person. And biblical verses like "He that spareth the rod hateth his child, but he that loveth him chaseneth him betimes" (Proverbs 13:24) have been understood to condone hitting a child as an effective tool in his education and discipline. (The more popular "Spare the rod and spoil the child" actually is from Samuel Butler's Hudibras.)

 Despite what appears to be unrestricted license to hit children, rabbinic authorities placed severe limits on the use of physical force. To mention just two examples: The Talmudic sage Rav forewarned Shmuel b. Shilat that when he hit a student he was not to use a stick, but a shoelace (Baba Batra 21a). The rabbis admonished parents not to strike older children for fear that they might strike back and violate the biblical injunction against such behavior (Kiddushin 30a).

In rejecting the findings of current experts which contradict the traditional practice of "patching" children, one contemporary religious authority warned, "We must be careful in every novel matter. Of the modern researchers concerning psychology and education. It is necessary to evaluate, and scrutinize [their theories] in order to ensure that they do not contradict the words of the Sages, of blessed memory, and the early Authorities, or the customs of Israel which are themselves Torah. If there is any contradiction, you must cast away their filthy innovations, and not accept anything from them before you conduct keen study and research in Torah, [in the writings of] the Sages, of blessed memory."

While not at all disputing the primacy of Torah principles in directing Jewish behavior even when contemporary mores contradict them, one may question this conclusion. The biblical verse, "Instruct a child according to his way" (Proverbs 22:6) suggests, in fact, that there is no one correct way to raise all children, and the biblical plea "Do not hurt my anointed" (II Chronicles 15:22) is an appeal for the protection and pampering of our youth (Shabbat 199a).

One can even put forth a halachic argument. In essence, it is forbidden to strike one's child just as it is forbidden to hit one's neighbor. Special dispensation is granted only when hitting serves the cause of education and discipline; it is considered a mitzvah only when administered properly.

Jewish law limits the force used demanding that it not be administered in a cruel manner or motivated by anger animosity (Rambam, Hil. Talmud Torah 2:2). But if parents and teachers do not execute punishment in an objective and unemotional way, or if they hit too hard or too often to have any positive disciplinary effect, then such blows are forbidden. And if contemporary psychologists reveal information that was previously unknown i.e., that physical discipline is not educationally effective, or if human behavior and psychology today ,in a society with different communal values and a culture with different presumptions, differs from what it was in previous ages, (this is a significant halachic principle that is known rabbinic language as "nishtanu hativi'im", that nature has changed), then hitting children is Halachically prohibited.

What, then, is the halachically prescribed form of discipline? There is none! Our tradition does not prescribe the methods of discipline, but, rather, directs parents and teachers to raise properly educated and behaved children. The Proverbial rod may be a metaphor for proper education and discipline and not a literal tool for meting out corporal punishment. Whatever methods are psychologically sound and educationally effective are halachically mandated.

And whatever means are ineffective or, worse yet, detrimental to the physical and emotional safety and spiritual stability of children, are prohibited. Raising children is not an easy task, but we must not let our inexperience, personal anxieties or personal inadequacies enable us to treat our children in ways that are harmful to their physical well being, their self-esteem and their spiritual integrity.

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Suing Your Rabbi: Clergy Malpractice in Jewish Law

By Rabbi Mark Dratch

Congregation Beth Israel, Schenectady, N.Y.

http://www.jlaw.com/Articles/clergy_malpractice_notes.html

1. C. Eric Funston, "Made Out of a Whole Cloth? A Constitutional Analysis of the Clergy Malpractice Concept," 19 Cal. West L.R. 508-509 (Spring 1983).

2. Nally v. Grace Community Church of the Valley, No. NCC 15668-B, L.A. County Super. Ct, Cal. filed March 31, 1980, 157 Cal. App. 3d 912, 204 Cal. Rptr. 303 (1984), See also Case Notes, Arizona Law Review Journal, 213-36, (1985); 240 Cal. Rptr. 215 (Cal. App. 2 Dist. 1987); Robert Reinhold, "Justices Dismiss Suit Over Clergy," The New York Times, November 24, 1988, p. Al, A20.

3. United State' v. Ballard 322 U.S. 78 No. 472 1944.

4. Magunson v. O'Dea, 75 Wash. 574, 135 P. 640 (1913).

5. State v. William's, 75 N.C. 134 (1876).

6. Whittaker v, Sanford, 110 Me. 77, 85 A. 399 (1912). For a discussion of religious leaders' civil liability for intentional torts see "Comment, People V. Religious Cults: Legal Guidelines for Criminal Activities, Tort Liability, and Parental Remedies," 11 Suffolk U.L. Rev. torts see "Comment, People V. Religious Cults Legal Guidelines for Criminal Activities, Tort Lial'ility, and Parental Remedies," 11 Suffolk U.L. Rev. 1025, 1037-45 (1977).

7. Elements necessary for cause of action in a case of negligence are outlined by W. Prosser and West Keeton, The Law of Torts, 164-65:

1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against reasonable risks.

2. A failure on his part to conform to the standard required. These two elements go to make up what the courts usually call negligence; but the term quite frequently is applied to the second alone. Thus, it may be said that the defendant was negligent, but is not liable because he was under no duty to the plaintiff not to be.

3. A reasonably close causal connection between the conduct and the resultant injury. This is what is known as "legal cause", or "proximate cause."

4. Actual loss or damage resulting to the interests of another.

5. See Ericsson, "Clergyman Malpractice: Ramifications of a New Theory," 16 Val. U.L. Rev. 163-64 (1981); Funston, "Made Out of Whole Cloth? A Constitutional Analysis of the Clergy Malpractice Concept." 19 Cal. West L.R. 507-44 (1983)

6. 9.403 U.S. 602 (1971).

7. See B. Bergman, "Is the Cloth Unraveling? A First Look at Clergy Malpractice Concept." 9 San. Fern. V. L.R. (1981); Kimmerly Anne Klee, "Clergy Malpractice: Bad News for the Good Samaritan or a Blessing in Disguise?" 17 V. of Toledo L.R. 209-53, (Fall 1985); Robert McMenamin 45 The Jurist 275-88 (1985).

8. 310 U.S. 296, 303-304 (1940).

9. 240 Cal. Rptr. 215 (Cal. App. 2 Dist. 1987).

10. Robert Reinhold, "Justices Dismiss Suit Over Clergy," The New York Times, Nov.24, 1988, p. A20.

11. See Chavot Yair quoted in Pit'chei Teshuvah, no.2, who extends devar mishnah status to the decisions of Shulchan Aruch, Ramo, Sema, and Shach. See, however, Baal Hamaor to Sanhedrin 33 who limits devar mishnah status to talmudic decisions and categorizes all post-talmudic debate as shikul hadaat.

12. Rif to Sanhedrin 33a and Ramban in Milchamot Hashem suggest that the exemption is due to the limitation of garmi responsibility to torts. They also posit that judicial decisions are either gerama or that the requirement of a judge to render a decision is ones (duress) which exempts him from liability.

13. Shach, no.5, rejects Ramo's ruling. Both Ramo and Shach hold that a judge, in deciding a matter of Jewish law, fulfills his biblical resposibility (mitzvah). It is this fulfillment, according to Ramo, which extends immunity to the rabbi who errs in judgment. Shach holds, however, that if the rabbi errs ruling contrary to Torah principles, he is not fulfilling a mitzvah and is, therefore, liable. For a similar analysis relating to medical malpractice see Norman Lamm, "Tippul Refui Im Yesh Bo Mitzvah" in Torah Shebe'al Peh, Mosad haRav Kook, 5744.

14. For an analysis oE the stumbling block prohibition see Mark Dratch, "The Ethics of Selecting a Political Candidate," Journal of Halacha and Contemporary Society, No. Xl, Spring 1986.

15. See Teshuvot haRashba, no.99; Darkei Moshe to Choshen Mish pat, no.386

16. Hil. Chovel uMazik 6:1; Choshen Mishpat 378:1

17. Bava Kamma 60a.

18. Dina deGarmi.

19. Gloss to Choshen Mishpat, no.386.

20. "Gerama and Garmi", Encyclopedia Judaica. VII, pp.430-3l. Albeck suggests that the difference between these concepts is that of foreseeability, with gerami referring to an indirect tort whose consequence is too remote to have been foreseeable, and garmi referring to indirect acts, the results of which should have been foreseeable. This distinction is not supported by Rava's definition of geramo in Bava Kamma 60a, where he holds that the gerama exemption from liability applies even if the fire was spread due to normal, foreseeable condition' of a normal wind.

21. Rashbam to Bava Batra 94a, s.v. noten.

22. Tosafot, Bava Batra 22b, s.v. zot; Mordecai to Bava Kamma boa; Or Zarus, Bava Kamma, chapter 2, no. 137; Teshuvot haRashba Ill, no. 107 and Meyuchasot 240; Rosh to Bava Kamma, chap. 9 and Bava Batra, chap. 2, no. 17.

23. Rosh to Bava Kamma, chap. 9 and Bava Batra, chap. 2, no.17.

24. Ritsba in Tosafot, Bava Batra 22b, s.v. zot; Mordecai to Bava Kamma, no.119, quoting Riva; Shach to Choshen Mishpat 386, no.

25. Bava Kamma 100a.

26. Ramban to Bava Kamma 117a; Rashba to Bava Kamma 117a; Maggid Mishnah, Hil. Chovel uMazik 8:1 quoting R. Hai Gaon; Gaal haTerumot, gate 52, sec. 6; Ravan to Bava Kamma, chap. 9; Teshuvot Masat Binyamin, no.28.

27. Tosafot, Bava Kamma 54a, s.v. chamor, Bava Kamma 71a, s.v. Vesavar, and Ketubot 34a, s.v. savar; Ramban in Dma deGarmi quoting yesh omrim; Smag, Positive Commandments, no.70; Mordecai to Bava Kamma, chap. 10, sec. 180 in the name of R. Avigdor; Teshuvot haRosh, no.100; Hagahot Maimoniyot to Chovel uMazik 8:3; Shitah Mekubetzet to Bava Kamma 117b quoting R. Yehonatan; Agudah to Bava Batra 22b; Shiltei Giborim to Bava Kamma 48; Shach, Choshen Mishpat 386:1.386:1.

28. Ramban, Dma deGarmi; Ketzot Hachoshen 306:11; Gra to Yoreh Deah 306:16.

29. Or Zarua, Bava Kamma, chap. 9, quoting Rabbeinu Ephraim; Mordecai, Bava Kamma, chap. 9, sec. 116; Ramban, Dma deGarmi; Yam shel Shiomo, sec. 24, Shach, Choshen Mishpat 386, no.12. Or Zarua quotes R. YoeI who obligates the money appraiser even when the counselee is not obliged to follow his decision. See also Shiltei Gibborim.

30. Rif.

31. Baal haMaor; Tosafot, s.v. ahcvei dinar; Mitchamot Hashem; Ramah.

32. HiL Sechirut 10:5

33. Bavo Kamma 26b.

34. Shulchan Aruch also records the money appraiser's case with the laws of professional responsibility, Choshen Mishpat, sec. 306, and not in the chapter dedicated to garmi, sec. 386. Like Rambam, he includes payment as a criterion for liability.

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Ask A Rabbi

Doesn't Halacha care about abused children?

(2001) By Rabbi Shraga Simmons

www.jewish.com/askarabbi/askarabbi/askr5046.htm

Q: I was told that if a person over 12 is abused by an adult they can not be publicized as an abuser in the Jewish community unless there is another witness. Why is that? what if the abuser is abusing other children? Doesn't the halacha care about those other people being abused?

A: If there is no corroboratory evidence against a person, the person is innocent until proven guilty. If a Bet Din (rabbinical court) will find the person guilty, they will surely notify others, if they deem it necessary. There are exceptions - If it is to stop an evil person from committing unjustified evil to others, when it is difficult or impossible to present it to a Bet Din, before damage is liable to be done. Then if it meets seven conditions, it would be permitted.

In brief, the seven conditions, listed in "Chafetz Chaim" 1:10, are:

1. That the negative aspects you know, should be firsthand information, i.e - what you saw or heard; not from hearsay.

2. You should not conclude in haste that what you saw or heard, is negative. Investigate whether there are extenuating circumstances.

3. You have to first reprove the accused, directly, in a genial manner, before acting upon it.

4. There should be absolutely no exaggeration of the accusations.

5. That you should have the sole intention of helping others; no ill feelings or revenge whatsoever.

6. Seriously try to find a different way (other than speaking evil on this person to anyone), whereby the problem would be resolved otherwise.

7. That not one iota of damage should be done to the person, more than he would have had, had the case been taken to a Bet Din, with the evidence that exists.

Please see "Chafetz Chaim" there, for the elaborate sub-conditions to these seven, before acting.

In your case, the best would be to present the purported evidence to any of the very efficient rabbinical courts. They have the ability to investigate further, and judge the accumulated evidence, whether it warrants further action.

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Ask a Rabbi

How does one honor a father who allowed sexual abuse?

(1999) By Rabbi Jo David

ww.jewish.com/askarabbi/askarabbi/askr665.htm

Q: How does one "honor" a father who knew that his brother-in-law sexually abused you for many years and did nothing to stop it?

A: I grieve with you for the pain such a situation created for you.

The commandment that charges us to honor our parents pre-supposes that our parents acted properly toward us - that they protected, clothed, fed and educated us. A parent who abdicates the duties implicit in parenthood - and most certainly protecting a child from abuse is primary - is not, by definition, a parent. You have no religious or moral obligation to honor your father or your mother, if she too, was involved in neglecting to protect you from her brother-in-law.

Today, there are many support groups for men and women who suffered from sexual abuse. Recovering from abuse is possible, and very important so that your future is not molded by your past. If you have not connected with one of these groups, please let me know the area of the country in which you live and I'll give you some leads to follow up.

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Ask a Rabbi

Incest and Gods justice/forgiveness

(1998) by Rabbi Daniel Kohn

www.jewish.com/askarabbi/askarabbi/askr191.htm

Q: My father is a religious man. He attends synagogue every Fri. night and Saturday. Lights candles, reads torah, but is also a man who is a pedophile. He sexually abused me nightly for eight years. I've had to work through my anger and pain on my dollar, and without any assistance from him. He denies his actions and will not speak of it. Every Rosh Hashana he calls and begs me to go to synagogue with him. I will not. My question is.. If there is a god, will he/she/? forgive him?? And how do I forgive god for bringing me into this horrifying experience of childhood. Am I supposed to believe that everything has its reason?

A: You are certainly entitled to never forgive this man who caused you such pain. As for whether God will forgive your father, I just don't know. Our tradition holds that somewhere, somehow, there is and will be divine, exact justice for all sins and crimes in this world. But how this judgment will be exacted is beyond me--or any other human being. All I can tell you is that I believe that the spiritual fate after death of any victim of a crime cannot be the same as the perpetrator of that crime. I desperately want to believe that the evil suffer for their crimes, whether in this world or somehow after this life. While I may not see this justice exacted, I certainly want to believe that God will ultimately seek recompense for all sins and crimes committed by humanity. While our tradition holds that God is merciful, justice is a far greater priority--this is how the Jewish tradition understands God.

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Ask a Rabbi

Pedophilia and the Orthodox community

(1998) By Rabbi Dr. Joseph S. Ozarowski

www.jewish.com/askarabbi/askarabbi/askr2278.htm

Q: Why has the frum community never done anything about pedophilia?

A: Tough question. Possibly shame over its very existence, denial that it is a problem or not knowing what to do. We did address it once at an R.C.A  (Rabbinical Council of America) convention that I attended.

I would tell you that if you know of such a case, you should report it to the appropriate authorities. A child's life is at risk here. Personally, I think the issue of erva and sakana overrride any and all other considerations.

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Ask a Rabbi

Recovering from sexual abuse

(1997 ) By Rabbi Ted Feldman.

www.jewish.com/askarabbi/askarabbi/askr1008.htm

Q: I am 13 years old and attend a Jewish Day school. A few years ago I was sexually abused by a man at a local community center. I have suffered much pain because of this and i have never forgotten one aspect of the time it happened to me. I sometimes feel that I am the one to blame. I don't know what to do about this. Can you give me some good advice so that my hurt goes away?

A: It is so sad to hear that this has happened to you and that you are struggling so much with the pain in the aftermath of the event.

Sometimes we as human beings, have the strange notion that we are all powerful and can control everything that happens to us and in the world around us. For you to have been responsible for what happened means that you were totally in charge of the place, time, and circumstances...plus that you could, in some way, control what the other person thought about you and ultimately did to you. Even an adult has no such power, let alone a nine,ten, or eleven year old child whose knowledge, strength, experience is so limited.

The power that you do have is to not "reward" that event with such control over your life. Your success in living, learning, relating to people and all of the things you do...in spite of what happened, is the power that you have.

I hope you are asking for help with these feelings...counselor, rabbi, parents, friends, and that you can rid yourself of the hurt.

Perhaps you could create for yourself a little ceremony of ridding yourself of the hurt...writing all of the hurt on a piece of paper and, in the presence of family and friends...throw it in a river...or burn it or something to announce that you are ridding yourself of those feelings.

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Ask a Rabbi

Should I sit shiva for abusive parents (who are still alive)?

(2000) By Rabbi Jane Rachel Litman

www.jewish.com/askarabbi/askarabbi/askr4974.htm

Q: After over 20 years of silence I told my mother of the sexual abuse my father forced upon me as a teenager. They are not Jewish (I converted to Judaism 3 years ago). They have now completely rejected me and don't believe me and never want to see me again. I have considered shiva, is this wrong for me to consider my parents dead after all the pain I have endured these past years? After speaking up I feel as if a weight has been lifted, but have also considered changing my name too. What should I do?

A: You are a very brave person. You have been deeply wounded and the wound will need a lot of care and tending in order to heal as much as is possible. The very most important thing is for you to get the support you need. I hope that you have found a supportive and caring rabbi to help you with your spiritual healing after the devastating experience you have survived. I truly think that a personal relationship with a sympathetic and compassionate local rabbi will be more helpful to you than any words I might offer across the Internet.

That said, I think both of your ideas have merit. It is important for you to free yourself as much as possible from the pain inflicted on you. I think taking on a new name is a good idea -- it is in line with Jewish tradition, and it will be a symbol for your emerging sense of independence and self-care. I think you might want to review a Hebrew name book and choose a name either of a strong Jewish woman (such as Deborah or Miriam) or a value which is important to you (such as Tikvah, "hope").

I am a bit more hesitant about the idea of sitting Shiva for these people. I think you really need to think that one over a bit more. It's awfully permanent and will deprive you of a possible ritual when they really die.

How about making a Havdalah from them? I also suggest you might want to go to the mikvah to cleanse yourself. You should know that you are not alone. You might want to read the final two essays of Four Centuries of Jewish Women's' Spirituality edited by Ellen Umansky and Dianne Ashton, which deal with this issue.

Take care and remember that Adonai loves you.

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Secular Resources:

Articles:

Interviewing the Child Molester: Ten Tips for Eliciting Incriminating Statements

by Victor I. Vieth1

American Prosecutors Research Institute

Update - Volume 11, Number 2, 1998

Professionals who deal with child abusers are increasingly aware that this breed of criminal is more difficult to deal with than most. This is particularly true when the offender sexually preys on children. Sex offenders "cannot deal openly and honestly with who they are or what they have done. This is not surprising: With something to hide, they have become practiced at hiding it , often (in part) from themselves as well as from others."2

The need to hide makes child abusers extraordinary manipulators. According to one observer, "child molesters particularly try to manipulate their wives or the guardians and parents of their victims, their probation officers, and the court...a child molester can sometimes outwit even the greatest efforts of those involved."3 The manipulative skill of child abusers enables many to abuse numerous children with little chance of getting caught. In a study of 561 sex offenders, these offenders accounted for the abuse of an astonishing 195,407 victims.4

Investigators report that unless caught in the act or confronted with overwhelming evidence, a child abuse suspect can be expected to deny the allegation.5 Breaking down the wall of denial is not easy and some law enforcement protocols provide that officers must receive training in the art of obtaining a confession from a child molester before they will be assigned such a task.6 As one investigator notes, "(s)imply asking an alleged perpetrator if he molested a child does not constitute a proper interview. Any criminal investigator needs effective interviewing skills."7

An investigator preparing to interview a suspected child molester may wish to consider the following ten tips:

1. Never give up. A child molester is unlikely to confess quickly to a crime. Accordingly, an officer should assume a lengthy interrogation is necessary and not stop the interview simply because the suspect is in denial. As long as the suspect is willing to talk and has not invoked his right to counsel or to remain silent, the interrogation should continue. Once the suspect is charged and counsel is appointed, it is a safe bet he will no longer cooperate with the investigation.

Many investigators prefer to interview a suspect alone in order to develop rapport. Even a skilled interviewer, though, can benefit from the input of others during the interview. If possible, place the suspect in a room where the interview can be watched by other investigators via closed circuit television or other mechanisms. When the primary interviewer takes a break, she can consult with the investigators watching the interview. When it comes to breaking down a child abuser's wall of denial, two heads are better than one.

2. Confront each denial. An investigator should not allow a suspect's denial of the charge go unanswered. Although an investigator should not be belligerent or adopt a posture which will end the suspect's cooperation, the implausibility of the suspect's denial should not go unchecked.8

If a suspect says the child is mistaken and may be referring to being bathed or to some other innocent touch, the officer should respond by saying something to the effect "no, I was there when your daughter described your conduct and she clearly referred to an act of molestation."

If a suspect maintains that children fantasize or invent tales of abuse, an interviewer can say "I've been an investigator for many years and I've never known a child to invent a claim of abuse."

If a suspect suggests the officer planted the idea in the child's head, the officer can point to the precautions she took to avoid misleading the child. If the officer is properly trained in child development and linguistics, she can tell the suspect "I've received specific training in speaking to a child to avoid any possibility of compelling an unreliable answer."

Many denials can be confronted with evidence. Indeed, some law enforcement protocols suggest the suspect should be interviewed only when all other evidence has been collected.9 While this may not always be possible,10 there should be some evidence with which to confront the accused. Ideally, a perpetrator can be confronted with medical evidence. Unfortunately, most cases of sexual abuse do not involve medical evidence.11 There may, however, be other pieces of evidence such as a sexually explicit drawing made by a child or the audio or videotaped interview of the child.

3. Emphasize the child's love for the perpetrator. If the abuse is within the family unit and the perpetrator contends the child is lying, remind him of the child's affection for the perpetrator. For instance, an officer can say to a suspect: "It's clear to me that your daughter loves you and it is painful for her to speak of these things. Given her love for you and the discomfort of these memories, it is simply implausible to conclude she is lying."

4. Emphasize the perpetrator's love for the child. Even abusive parents may love their children. If the perpetrator does at some level care for the child, the interviewer can point to the child's pain and ask the caretaker to alleviate it. As an example, the interviewer could take the following approach:

"I've been a police officer for a long time and I know what it's like for children to have to testify about these things. Kids don't fit well in witness boxes. Their feet don't touch the floor and they can barely see over the wooden frame of the witness box. In front of her father and 12 strangers we then make the child speak of sexual matters we would feel uncomfortable talking about. Then we turn her over to a defense attorney to be ridiculed. Don't do that to your daughter. You love her too much. Let me go home tonight and tell her that Dad owned up to what he did and is going to get help. Don't make me go to her and tell her Dad says she's a liar. She needs to heal as well."

5. Explore the possibility the suspect was abused as a child. Although most child abuse victims do not grow up to be child abusers, many child abusers were victimized in their youth.12 It is logical, therefore, to explore the suspect's childhood. If the suspect acknowledges abuse as a child, ask him for details as to who abused him and how. It may be that his pattern of victimization parallels the type of abuse he has inflicted as an adult.

Ask the suspect if, as a child, he ever told anyone about the abuse. Chances are, he spoke of the abuse to a mother or other relative but was not believed. If so, ask the suspect how it feels to be abused and yet not believed. Then ask the suspect how his victims will feel if not believed.

6. Offer support for the perpetrator. Offer encouragement for the perpetrator as a means of weakening the obstacles preventing him from disclosing his conduct. If he has disclosed being victimized as a child, tell the perpetrator you can understand why he repeated this behavior. Tell the suspect he is not like other suspects who blanket themselves in denial and refuse to get help. Tell the perpetrator you know he didn't want to do this and that it's obvious to you he is himself in pain. Urge him to ease his pain and get the help he needs. I know investigators who have successfully referred to an imaginary mirror, telling the suspect "I wish I had a mirror right now. If you could only see your face, you would know how much you are hurting. Let's put this behind you. Let go of your pain."

7. Corroborate the victim's version. An interviewer should elicit as much information as possible from the suspect which will corroborate peripheral details of the event. This enables the prosecutor to argue that if the child is accurate as to mundane events, she is likely credible when relating the traumatic encounter of abuse. The following example illustrates this point.

A child abuse victim once related to a police officer that mom's live-in boyfriend abused her on a particular evening. She recalled she was sleeping in the basement and that her dog was scratching on a basement window to get in. She recalled the perpetrator brought the dog into the basement and then molested her.

Although the suspect was adamant in denying any sexual contact, he confirmed that the dog was scratching to get inside and he brought the dog to the girl. This information enabled the prosecutor to argue the victim was credible. Even the defendant conceded the victim told the truth as to where she was sleeping, the incident with the dog, and that the suspect entered the child's sleeping quarters. The suspect even admitted he believed the child was abused, he simply didn't do it.

8. Give the suspect an out. If all other approaches fail to obtain incriminating statements, give the suspect an out whereby he can save some face. Child molesters are adept at blaming others for their conduct. A child molester may blame the victim, the victim's mother, or the alcohol or drugs he consumed.13 An interviewer can help this process along by saying something like "alcohol is a terrible thing. It makes us do things we would not do sober. Is it possible that's what happened here?"14 According to one interviewer, "(i)f the offender is allowed to rationalize or project some of the blame for his behavior onto someone or something else, he is more likely to confess."15

9. Consider using a polygraph examination. Although the examination may be inadmissible, a perpetrator may make incriminating statements when confronted with a failed examination. Some commentators state the polygraph must be done immediately in conjunction with the initial interview.16 While this is the ideal, it may not be an option in small, rural police departments which do not have a polygraph examiner on call. Despite this limitation, a number of rural investigators have successfully used polygraph examinations to obtain incriminating statements from suspects.17 This is true even when the investigator was forced to delay the polygraph examination for one or more days. Obviously, this is not an option in cases where circumstances necessitate an immediate arrest.

10. Consider having the victim make a controlled and recorded telephone call to the perpetrator to discuss the assault. Although the victim must be old enough, adequately briefed, and sufficiently sophisticated to be convincing in the conversation, this method has produced incriminating evidence in a number of cases.18 Consult with the child's therapist or other professional to be sure the victim is emotionally able to confront the offender.

Few, if any, crimes are as egregious as the offense of child abuse. In fulfilling the obligation to protect the innocent and uphold the law, law enforcement officers and prosecutors must ensure that child abuse suspects are interviewed in a manner that maximizes the potential for uncovering the truth. The child victim is counting on us.

References:

1 Senior Attorney, APRI's National Center for Prosecution of Child Abuse.

2 Michael A. O'Connell, Eric Leberg, and Craig R. Donaldson, Working with Sex Offenders 14 (1990).

3 Eric Leberg, Understanding Child Molesters 91 (1997).

4 Gene G. Abel, Judith V. Becker, Mary Mittelman, Jerry Cunningham-Rathner, Joanne L. Rouleau, and William D. Murphy, Self Reported Sex Crimes of Nonincarcerated Paraphiliacs, 2 Journal of Interpersonal Violence 3, 17-19 (1987).

5 Donna Pence and Charles Wilson, Team Investigation of Child Sexual Abuse 116 (1994).

6 See Cottonwood County Protocol for the Investigation and Assessment of Child Abuse Cases (Revised March 1997) at 2 (a copy of this protocol is on file with APRI's National Center for Prosecution of Child Abuse).

7 Kenneth V. Lanning, Criminal Investigation of Sexual Victimization of Children in The Apsac Handbook on Child Maltreatment 261 (1996).

8 Anna C. Salter, Treating Child Sex Offenders and Victims 94 (1988).

9 Pence and Wilson, supra note 5 at 110-111.

10 For instance, the perpetrator may be residing with the child and thus safety concerns for the victim compel a prompt arrest and interview of the perpetrator.

11 Investigation and Prosecution of Child Abuse (2d Ed) (apri's national center for prosecution of child abuse, Alexandria, Va) at 115.

12 Richard Cohen, Megan's Law and Jesse's Life, Washington Post, Tuesday, June 3, 1997 at A19. See also Salter, supra note 8, at 48.

13 Leberg, supra note 3, at 81-90. For an excellent overview of the distorted thinking of incest offenders, see Carolyn Copps Hartley, How Incest Offenders Overcome Internal Inhibitions Through the Use of Cognitions and Cognitive Distortions, 13 Journal of Interpersonal Violence 25 (1998).

14 There is, indeed, a correlation between alcohol use and the sexual abuse of children. However, it is inaccurate to say that alcohol use causes sexual abuse. Leberg, supra note 3, at 88-89.

15 Lanning, supra note 7 at 261-262.

16 Pence and Wilson, supra note 5, at 119-120.

17 In the nine years I worked as a rural prosecutor, our investigators used polygraph examinations on several occasions to obtain incriminating statements from child abuse suspects.

18 See Justin Gillis, Nobel Laureate is Sent to Jail, Tape Helped to Decide Fate in Sex Abuse Case, The Washington Post, April 30, 1997 at A1.

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Child protection law signed by President

Town Times - May 28, 2003

http://www.zwire.com/site/news.cfm?newsid=8138271&BRD=1379&PAG=461&dept_id=162912&rfi=6

"Law enforcement can see predators literally stalking our children in Internet chat rooms, and this law will give police new tools to prevent meetings that too often end in tragedy."

Johnson's cyber stalking legislation will give law enforcement new wiretapping authority to catch suspected sex predators before they strike. Law enforcement officers say online sex predators often use a phone call to arrange meetings, and this new authority will allow them to intervene before these meetings take place and generate ironclad evidence in court.

The FBI and Connecticut's top police officers support Johnson's law, and they say it will improve their collaborative efforts to fight child sex crimes and prevent child abductions.

"This law will be a great aid to the FBI and our partners in the law enforcement community in our efforts to stop the victimization of our children by sexual predators," said Supervisory Special Agent Joseph Dooley, of the FBI Computer Crimes Squad in New Haven.

Congress passed the bill earlier this month as part of a broader child protection bill (S. 151, "The PROTECT Act of 2003"). Mrs. Johnson's wiretapping provisions originally passed the House last year as H.R. 1877, were reintroduced this year as H.R. 571.

The PROTECT Act also mandates a nationwide AMBER Alert system to publicize a child abduction quickly and aid the child's recovery.

Rep. Johnson's law provides for wiretapping authority for seven sexual offenses including child pornography, sexual exploitation of children, sex trafficking of children, buying or selling children, overseas production of child pornography for the importation into the U.S., child obscenity and transportation for illegal sexual activity.

The nexus of child sex crimes and the Internet is a growing problem, as was tragically illuminated by the death of 13-year-old of Christina Long of Danbury. And last year, the Connecticut State Police Computer Crimes Squad reported that its caseload increased from 103 cases in 1999 to about 580 in 2001, with 44 percent of its investigations in 2000 involving child pornography.

'These dire statistics reveal a clear and growing danger to our children, and it is my hope that the tools that I have helped write into law will better protect our children and our families from this threat," Rep. Johnson said.

"Representative Johnson played an integral role in passing the most important and far-reaching child protection legislation in the last 20 years," said Rep. Jim Sensenbrenner (R-WI), chairman of the House Judiciary Committee and lead House sponsor of the PROTECT Act.

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Supreme Court takes on California's molestation law

Associated Press - March 29, 2003

http://www.cnn.com/2003/LAW/03/29/scotus.molestations.ap/index.html

SAN FRANCISCO, California (AP) --The Supreme Court has agreed to hear arguments on a challenge brought by a 72-year-old man accused of abusing his two daughters in California nearly 50 years ago, a case that could affect child molestation prosecutions nationwide.

Marion Stogner, a retired paper-plant worker who police say created a home life so dysfunctional that his two sons became molesters themselves, has long denied abusing his children.

His attorney, Elisa Stewart, says the accusations by his daughters are so old that she can't mount a defense in a case that landed in court just five years ago.

In most states, statutes of limitations would keep Stogner out of criminal court. But in 1994, California began allowing child molestation prosecutions years after legal deadlines to file charges had passed. Hundreds of people have been convicted under the law the Supreme Court justices are expected to review on Monday.

Statutes of limitations are a bedrock principle of American law. Usually between three and 10 years, they protect the accused from the consequences of charges grown stale with age, conceived from unreliable memories or based on lost or dead witnesses.

The Supreme Court has never ruled on, or been asked, whether states can retroactively nullify criminal statutes of limitations, according to the National Association of Criminal Defense Lawyers.

Defense attorneys fear a ruling against Stogner could prompt states to rewrite criminal laws to prosecute long-expired cases. The Justice Department has already asked Congress to adopt rules retroactively nullifying statutes of limitations that govern not only child molestation cases, but child abductions and federal cases involving DNA evidence.

The case has other sweeping ramifications. The Bush administration has urged the court to uphold the law out of concern that a ruling absolving Stogner may weaken some provisions of the USA Patriot Act, which retroactively withdrew statutes of limitations in terrorism cases involving hijackings, kidnappings, bombings and biological weapons.

Stogner is accused of molesting his daughters between 1955 and 1964, allegations that came to light many years later when police investigating his sons persuaded the women to talk.

One daughter, now 42, says the assaults happened so routinely she had no idea it was wrong until years later.

"I was like, huh, this doesn't happen in other families," she said. "We were brought up as if it was normal, like brushing your teeth, going to church and being molested."

Stogner's daughter, who agreed to an interview with The Associated Press on the condition that her name and other personal information not be disclosed, said she and her sister were too afraid to speak up about the years of alleged abuse by her father and at least one brother.

She said her father began molesting her when she was barely tall enough to see the top of his bed. When she became a teenager and gathered the courage to leave her home in Antioch, a San Francisco suburb, she said the last thing her father told her was "I'm going to kill you."

"I believed him," she said. "We lived in constant fear growing up."

State legislatures began increasing statutes of limitations for new molestation crimes in the 1990s, as research showed young victims often delay reporting sexual abuse because they are easily manipulated by offenders, are traumatized or have difficulty remembering.

California took the biggest step, allowing prosecutors to pursue "significant" molestation cases no matter how old, as long as there was evidence beyond the victim's word. Charges must be filed within a year after the victims -- in many cases now fully grown adults -- finally file a police report.

The lead detective on the case, sheriff's detective Chris Forsythe, said the Supreme Court has the perfect case to decide the issue. Cases like these, he said, are "why the California Legislature enacted this law."

Forsythe uncovered the allegations about Stogner in 1997 while investigating Stogner's son Randy, who was eventually convicted of molesting his two stepdaughters. Stogner's other son, John, has been convicted of molesting children at "Randy's Ranch," his brother's daycare center.

"I created a flow chart just to keep track of it all," Forsythe said.

Los Angeles defense attorney Don Steier, who is representing a dozen California priests facing criminal charges in old molestation cases, said defending against such charges is exceedingly difficult. "How am I supposed to defend these cases or find witnesses that can recall that far back in time?" Steier asked.

His cases, like Stogner's, are on hold pending the high court's decision, expected by June.

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(§ 3283) Federal law states that a child who is sexually abused has until their death to make a claim.

Federal law states that a child who is sexually abused has until their death to make a claim.

When a case like Judy Delonga's goes in front of the courts, the first thing a judge may look at is the statute of limitations. How long after the incident is the victim coming forward?

SOUTH DAKOTA - Keloland

Delonga's Case: Statute Of Limitations

http://www.keloland.com/News/NewsDetail5440.cfm?Id=0,43659

UNITED STATES CODE SERVICE

Copyright © 2005 Matthew Bender & Company, Inc.,

one of the LEXIS Publishing (TM) companies

*** CURRENT THROUGH P.L. 109-94, APPROVED 10/26/05 ***

TITLE 18. CRIMES AND CRIMINAL PROCEDURE

PART II. CRIMINAL PROCEDURE

CHAPTER 213. LIMITATIONS

GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION

18 USCS § 3283 (2005)

§ 3283. Offenses against children

No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution during the life of the child.

HISTORY:

(June 25, 1948, ch 645, § 1, 62 Stat. 828.)

(As amended Sept. 13, 1994, P.L. 103-322, Title XXXIII, § 330018(a), 108 Stat. 2149; April 30, 2003, P.L. 108-21, Title II, § 202, 117 Stat. 660.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

Prior law and revision:

This section is based on R. S. § 1046; Act July 5, 1884, ch 225, § 2, 23 Stat. 122 (former 18 U.S.C. § 584).

The words "customs laws" were substituted for "revenue laws", since different limitations are provided for internal revenue violations by 26 USCS § 3748.

This section was held to apply to offenses under the customs laws. Those offenses are within the term "revenue laws" but not within the term "internal revenue laws". United States v Hirsch (1879) 100 US 33, 25 L Ed 539, United States v Shorey (1869) F. Cas No 16,282, and United States v Platt (1840) F. Cas No 16054a, applied this section in customs cases. Hence it appears that there was no proper basis for the complete elimination from former 18 U.S.C. § 584 of the reference to revenue laws.

Meaning of "revenue laws": United States v Norton (1876) 91 US 566, 23 L Ed 454, quoting Webster that "revenue" refers to "The income of a nation, derived from its taxes, duties, or other sources, for the payment of the national expenses" and quoting United States v Mayo (1813) F Cas No 15755, that "revenue laws" meant such laws "as are made for the direct and avowed purpose of creating revenue or public funds for the service of the Government".

Definition of revenue: "Revenue" is the income of a State, and the revenue of the Post Office Department, being raised by a tax on mailable matter conveyed in the mail, and which is disbursed in the public service, is as much a part of the income of the government as moneys collected for duties on imports (United States v Bromley, 53 US 88, 99, 13 L Ed 905).

"Revenue" is the product or fruit of taxation. It matters not in what form the power of taxation may be exercised or to what subjects it may be applied, its exercise is intended to provide means for the support of the Government, and the means provided are necessarily to be regarded as the internal revenue. Duties upon imports are imposed for the same general object and, because they are so imposed, the money thus produced is considered revenue, not because it is derived from any particular source (United States v. Wright (1870) F. Cas No 16770).

"Revenue law" is defined as a law for direct object of imposing and collecting taxes, dues, imports, and excises for government and its purposes (Re Mendenhall (1935, DC Mont) 10 F Supp 122).

Act March 2, 1799, ch 22, 1 Stat. 627, regulating the collection of duties on imports, is a revenue law, within the meaning of Act April 18, 1818, ch 70, 3 Stat. 433, providing for the mode of suing for and recovering penalties and forfeitures for violations of the revenue laws of the United States (The Abigail, (1824) F. Cas No 18).

Changes were made in phraseology.

Amendments:

1994. Act Sept. 13, 1994, substituted the section heading and text for the following:

"§ 3283. Customs and slave trade violations

"No person shall be prosecuted, tried or punished for any violation of the customs laws or the slave trade laws of the United States unless the indictment is found or the information is instituted within five years next after the commission of the offense.".

2003. Act April 30, 2003 substituted this section for one which read:

"§ 3283. Child abuse offenses

"No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse of a child under the age of 18 years shall preclude such prosecution before the child reaches the age of 25 years.".

NOTES:

Related Statutes & Rules:

Customs offenses, 18 USCS § 541 .

Slave trade offenses, 18 USCS § 1582 .

Limitations for offenses under internal revenue laws generally, 26 USCS § 6531 .

Research Guide:

Federal Procedure:

9 Fed Proc L Ed Criminal Procedure § 22:774.

Am Jur:

41 Am Jur 2d, Indictments and Information § 43.

Interpretive Notes and Decisions:

1. Conspiracy 2. Perjury 3. Smuggling 4. Miscellaneous

1. Conspiracy

Conspiracy to defraud United States out of duties on imported merchandise was not crime arising under revenue laws so as to be governed by statute of limitations provided by predecessor to 18 USCS § 3283. United States v Hirsch (1879) 100 US 33, 10 Otto 33, 25 L Ed 539.

Offense of conspiring to defraud United States of taxes upon distilled spirits arose under revenue laws, subject to limitation under predecessor to 18 USCS § 3283. United States v Dustin (1872, CCSD Ohio) 25 F Cas 946, No 15012; United States v Fehrenback (1875, CCD La) 2 Wood 175, 25 F Cas 1057, No 15083.

2. Perjury

Periods of limitation of actions fixed with respect to offenses arising under revenue laws under R.S. 1046 [predecessor to 18 USCS § 3283], do not apply to indictment for perjury. United States v Noveck (1926) 271 US 201, 70 L Ed 904, 46 S Ct 476, 1 USTC P 177, 5 AFTR 6017.

3. Smuggling

Smuggling is offense under revenue laws for purposes of determining appropriate statute of limitations. United States v Shorey (1869, CCD NH) 27 F Cas 1071, No 16282.

4. Miscellaneous

Where general five-year limitations period, 18 USCS § 3282, had not expired for defendant's crimes when Congress enacted former 18 USCS § 3509(k) (recodified at 18 USCS § 3283), which extended limitations period for crimes involving physical and sexual abuse of child, applying extended limitations period to defendant's crimes did not violate Ex Post Facto Clause; thus, district court properly declined to dismiss indictment against defendant as time-barred. United States v Jeffries (2005, CA8 SD) 405 F3d 682.

Rights granted servicemember by five-year statute of limitations for sodomy of child as set out in Unif. Code Mil. Justice art. 43, 10 USCS § 843, were not affected by 18 USCS § 3283, which provides that no statute of limitations precludes prosecution for physical or sexual abuse or kidnapping of child during life of child. United States v Toy (2004, NMCCA) 60 MJ 598, 2004 CCA LEXIS 158.

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