A calm critique of Agudah's statement on child abuse

By DovBear blog
July 25, 2011

By now, I suppose you've all read the new statement from Agudah regarding their position on reporting child abuse. ( If you have not, you can see it after the jump.) Though it does clarify Agudah's stance on the subject, I'm afraid some important questions have still not been addressed.

After making a distinction between raglayim la'davar (roughly, reason to believe, or a set of circumstances that would require ---not permit, but require -- us to make a report to the authorities) and eizeh dimyon (some mere conjecture, or a set of circumstances under which reporting is still prohibited) Agudah suggests that no one but a cleric is competent to tell the difference:

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

Certainly Agudah is correct to claim that a laymen is not always able to see the difference between raglayim la'davar and eizeh dimyon. In such cases, I don't dispute that an expert should be consulted before a report is made. The mistake, I think, is in presuming that every case of suspected child abuse falls into this grey area, which is rather like claiming that every single question of kashrus requires a unique psak halacha.

Few of us are experts in kashrus, but all of us know at least the basic contours of kosher law, and in most cases, this is sufficient. If we rely on rabbis when it comes to our food, it is only because most of what we eat is prepared in a factory, where we can't observe the process ourselves. If all that we ate was cooked in front of our own eyes using ingredients that were also prepared in front of us, even a layman armed with a checklist or flowchart could correctly determine the status of the food in a high percentage of cases. Though not all questions of kashrus are this mechanical, some are. When the answers are easily reached no one would dream of bringing the question to a posek.

I believe that in *simple cases* such a checklist or flowchart could be used to permit laymen to distinguish between raglayim la'davar and eizeh dimyon. Now, I don't know if 1 percent or 99 percent of cases are simple enough to address this way, but surely some warning signs automatically establish raglayim la'davar, just as some signs automatically establish that food is treif. What are they? Why haven't they been published? If we trust a laymen to judge such automatic signs for himself when it comes to his food, why isn't he extended the same trust when it comes to our children? If Agudah wishes to protect children, and not to augment the authority of rabbis by robbing us of the ability to decide things for ourselves, why haven't we been told what those automatic signs are?

Moreover, some professionals such as physicians and psychologists are trained to recognize signs of child abuse. If the goal is to protect children, and not to preserve the rabbinic monopoly on community affairs, why haven't physicians and psychologists expressly been given permission to establish raglayim la'davar on their own? Why are they being told to supersede their professional training and to endanger their patients for however long it takes to identify and consult with "a rabbi who is expert in halacha and who also has experience in the area of abuse and molestation."? If we trust a doctor to obey his training and correctly identify an infection, why are we preventing him from using that same training to identify a case of child abuse? (And if Agudah wants us all to take our evidence to these expert Rabbis before we go to the police, why haven't we been provided with their names and phone numbers? Every mikva is listed somewhere. An expert on spotting is always easy to locate. Why aren't the names of rabbinic child abuse experts similarly publicized?)

I expect Agudah has answers to these questions. If I am, by the grace of God, made aware of them I will share them here.
Here's the full statement.

I thank all of you who notified me about it via email, FaceBook, and Twitter, including the Agudah insiders who wanted to make sure I didn't miss it.

STATEMENT OF AGUDATH ISRAEL OF AMERICA ON REPORTING SUSPICIONS OF CHILD ABUSE

Agudath Israel of America has received several inquiries in the wake of misleading claims that have recently been made about our stance on reporting suspected child abusers to law enforcement authorities. We take the opportunity to clarify our position.

As Torah Jews we live our live our lives in accordance with halacha. The question of whether and under what circumstances one is halachically permitted or required to report to the authorities suspicions of child abuse (including sexual molestation) has attracted the attention of a number of our generation's most prominent rabbinic authorities. Many of their responsa have been collected in the respected Torah journal Yeshurun, Volumes 15 and 22. As elaborated at a recent Halacha Conference sponsored by Agudath Israel of America, these responsa make clear that when certain standards have been met it is not only permitted but in fact obligatory to report suspicions of abuse or molestation. The general principles that emerge from these responsa are as follows:

1. Where there is "raglayim la'davar" (roughly, reason to believe) that a child has been abused or molested, the matter should be reported to the authorities. In such situations, considerations of "tikun ha'olam" (the halachic authority to take steps necessary to "repair the world"), as well as other halachic concepts, override all other considerations.

2. This halachic obligation to report where there is raglayim la'davar is not dependent upon any secular legal mandate to report. Thus, it is not limited to a designated class of "mandated reporters," as is the law in many states (including New York); it is binding upon anyone and everyone. In this respect, the halachic mandate to report is more stringent than secular law.

3. However, where the circumstances of the case do not rise to the threshold level of raglayim la'davar, the matter should not be reported to the authorities. In the words of Rabbi Yosef Shalom Elyashiv, perhaps the most widely respected senior halachic authority in the world today, "I see no basis to permit" reporting "where there is no raglayim la'davar, but rather only 'eizeh dimyon' (roughly, some mere conjecture); if we were to permit it, not only would that not result in 'tikun ha'olam', it could lead to 'heres haolam' (destruction of the world)." [Yeshurun, Volume 7, page 641.]

4. Thus, the question of whether the threshold standard of raglayim la'davar has been met so as to justify (indeed, to require) reporting is critical for halachic purposes. (The secular law also typically establishes a threshold for mandated reporters; in New York, it is "reasonable cause to suspect.") The issue is obviously fact sensitive and must be determined on a case-by-case basis.

5. There may be times when an individual may feel that a report or evidence he has seen rises to the level of raglayim la'davar; and times when he may feel otherwise. Because the question of reporting has serious implications for all parties, and raises sensitive halachic issues, the individual should not rely exclusively on his own judgment to determine the presence or absence of raglayim la'davar. Rather, he should present the facts of the case to a rabbi who is expert in halacha and who also has experience in the area of abuse and molestation – someone who is fully sensitive both to the gravity of the halachic considerations and the urgent need to protect children. (In addition, as Rabbi Yehuda Silman states in one of his responsa [Yeshurun, Volume 15, page 589], "of course it is assumed that the rabbi will seek the advice of professionals in the field as may be necessary.") It is not necessary to convene a formal bais din (rabbinic tribunal) for this purpose, and the matter should be resolved as expeditiously as possible to minimize any chance of the suspect continuing his abusive conduct while the matter is being considered.