By Joshua Hammerman (The Jewish Week)
June 5, 2012
There has been considerable consternation and media coverage of late about how child sex abuse cases are handled in the haredi, or ultra-Orthodox, community. The Brooklyn district attorney, no doubt feeling the pressure, is now pushing for legislation that would require rabbis to report such crimes to the authorities. This scandal has been discussed for years in The Jewish Week and other Jewish media, and recently in The New York Times, with reports of how informants are routinely shunned and victims banned from reporting abuse to the authorities. Anti-Semitic websites have had a field day, comparing this Jewish "code of silence" to the Mafia's.
The coverage has pinpointed an obscure rabbinic prohibition as a major source of the problem: the ancient prohibition against mesirah, the handing over of a Jew to non-Jewish authorities. Ironically, the same Hebrew root forms the word "masoret," or tradition, describing a priceless heritage handed over from one generation to another. But in this case, mesirah, the public disclosure of allegations against another Jew, is considered to be an act that desecrates God's name.
It is important to emphasize that most rabbinic authorities concur that Judaism has no place for the protection of sexual predators. Even for those who might otherwise support mesirah, the prohibition does not apply when there is a perceived public menace. As Rabbi Moses Isserles states in his gloss to the Shulchan Aruch, "A person who attacks others should be punished. If the Jewish authorities do not have the power to punish him, he must be punished by the civil authorities."
While unfortunately there is still considerable resistance in reporting dangerous behavior to secular authorities among the haredim, the problem is less mesirah itself than how these rabbis choose to apply it. To paraphrase the NRA gun lobby, mesirah doesn't harm people: people do. In this case, those people are insular and misinformed Jewish leaders.
That said, when you read Maimonides' full explanation of mesirah, it gives one pause to wonder whether the time has come to eliminate it completely from the halachic lexicon. Maimonides, after all, was neither insular nor misinformed, and he lived in a society that was relatively benign toward Jews. Yet he writes: "It is forbidden to hand over a Jew to the heathen, neither his person nor his goods, even if he is wicked and a sinner, even if he causes distress and pain to fellow-Jews. Whoever hands over a Jew to the heathen has no part in the next world. It is permitted to kill a moser (informant) wherever he is. It is even permitted to kill him before he has handed over (a fellow Jew)."
Maimonides' condemnation of the moser is reminiscent of the law regarding the rodef (the life-threatening pursuer), whom one is also allowed to kill. This rabbinic concept was employed most infamously by those advocating the murder of Prime Minister Rabin. The moser and rodef are linked explicitly in a commentary by Rebbenu Asher: "Thus, an informer is like a pursuer to kill someone and the victim may be saved at the cost of the life of the pursuer."
In our world, it is the molester who is clearly the pursuer, not the guy who calls 911. It is the cover-up that shames the entire Jewish community, not the informant. In a free society with just courts and equal treatment under the law, mesirah is a relic, a conversation piece from a more perilous past, like that section of the Haggadah where we ask God to pour out divine wrath against our enemies.
The idea that Jews should be protective of Jewish sinners stems from a longstanding mistrust of just about every government we've lived under — everything until right now, here in America. The most obvious example was the Romans, whom the rabbis had in mind when they advised their students, "Love work, despise positions of power and do not become overly familiar with the government." But the idea of protecting Jews from secular authorities has reached absurd extremes in Jewish law. The principle of mesirah has been used to dissuade Jewish auditors from reporting other Jews to the IRS for tax fraud and, as Rabbi Moshe Feinstein ruled, to prohibit us from turning a Jew in to secular authorities for fraudulent kashrut supervision. I for one am glad the Agriprocessors scandal was handled by the secular courts and not kept "within the family."
Where does mesirah come from?
It all goes back to Moses. When he struck the Egyptian taskmaster, Exodus tells us that fellow Israelites began taunting him about the incident, which led Moses to become fearful that someone would turn him over to Pharaoh. Rashi posits that Moses wasn't so much concerned about his own fate; he was concerned that his act would lead "villains and informers" to turn him in, making them unworthy of redemption. So he fled, not so much to protect himself as to protect his accusers from suffering the fate of the moser.
But change "Pharaoh" to "NYPD" or "FBI," and the story reads quite differently. If Moses had struck a cop not in Egypt but Brooklyn, wouldn't it have been absolutely appropriate for a fellow Jew to notify the authorities? Now replace "NYPD" with "Sheriff Jim Clark," and would you turn in Moses for striking a cop who was assaulting peaceful protesters in Selma? Wouldn't you want your moral code to protect him? True, one person's freedom fighter is another person's terrorist, but I can stand behind an objective moral standard that says that Moses was right, in the context of his times, and a child molester is wrong, anytime, anywhere, and Pharaoh and the NYPD are not created equal.
We can both protect Moses and turn in the molester for lots of reasons, but in each case, the least relevant factor is that the perpetrator happens to be Jewish. That's mesirah's fatal flaw.
It's time to declaw this dangerous concept, so that it may never again be used to justify the protection of those who inflict suffering on innocent children.
Rabbi Joshua Hammerman is spiritual leader of Temple Beth-El in Stamford, Conn.