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Children in Peril in New York

Another Infant Dies Due to a Risky Circumcision Practice, and More Needs to Be Done Regarding Child Sex Abuse

By Marci Hamilton (Justia.com)
March 8, 2012

On Sunday, the New York Daily News reported that another infant had died from herpes, likely contracted from a mohel who had performed oral suction following Orthodox Jewish ritual circumcision. Oral suction is the practice of "sealing" the circumcision by placing the penis in the mouth of the rabbi, who then suctions the blood from the wound, in a centuries-old tradition.

Oral suction is a controversial practice in the Jewish community, and has fallen out of favor with many in that community. In ancient times, the practice was thought to contribute to hygiene, but as it was learned that the practice could spread disease, it was mostly abandoned. Moreover, those Jewish people who do still practice oral suction typically employ a glass tube in the process, to avoid direct contact and disease transmission.

This is not the first death of its kind, but it should be the last. The City of New York has criticized the practice in the past, following other infant deaths that have resulted. (See the New York Times stories here and here.) But neither the city nor the state has yet instituted procedures to ensure that this never happens again.

Now, the Brooklyn District Attorney, Charles Hynes, has rightly opened an investigation into the infant's death. It is up to him to apply the laws of the State of New York to these facts.

Unfortunately, however, Hynes has thus far been ineffective in deterring or halting child sex abuse in the Chasidim community—hardly a good sign when it comes to his likely future effectiveness in investigating and prosecuting the ritual circumcision death. Thus, there are those who are concerned that this death will go unpunished. It should not.

The Fact That the Dangerous Practice of Oral Suction Is Traditional Provides No Legal Defense

Importantly, religious belief is no defense when one follows a ritual that is known to cause infants' death. The practice of exposing an infant's fresh surgical wound to the risk of herpes (or any other potentially lethal disease that is capable of being spread through contact with saliva) should be outlawed, if it is not adequately covered by the State of New York's criminal and tort law. At a bare minimum, the New York state legislature must institute its own independent investigation into the practice, the related risks, and possible solutions—including the solution of outlawing the practice of oral suction if it cannot be performed safely.

There is also a role here for the Attorney General, Eric Schneiderman. The mohels who persist in this practice need to be subjected to the full extent of the criminal law. And this is the time to bring the law to bear, before more infants die an easily preventable death. Infants are not expendable resources that religious groups have a right to sacrifice to ancient or contemporary practices. They are persons who have a right to life.

As a Letter to the Editor in yesterday's Jewish Week noted, more than one adult is responsible for the death of the infant who recently passed away. The parents, too, may be culpable, if they knew the risks. The mohels only get their power through the willingness of parents to hand off their infant sons to the mohels' care during the circumcision. This couple is in mourning, no doubt, but if they were aware of the risks and went forward anyway, they are also the authors of their own tragedy.

The city, the state, the religious organization, the mohel, and possibly the child's parents as well, are responsible for this latest death. Right now, it is the District Attorney who has the power to wring some justice out of this latest outrage, by prosecuting the death on the infant's behalf. However, he will do no good if he operates under the cloak of secrecy on this issue.

There are those who fear that if the mohel and parents are criminally prosecuted in this case, then the practice of oral suction will go underground, and no one outside the religious organization will know what is happening. However, if law enforcement is doing its job, that is an empty threat. The Mafia was underground, too, but that did not tie the hands of law enforcement. Let them go underground if they choose, knowing full well that what they are doing is criminal. Good luck to them, if the authorities do their jobs properly.

Meanwhile, the Upstate New York DAs Enter Into a Deal With the Albany Diocese Regarding the Reporting of Clergy Child Sex Abuse

Also in New York State, another serious threat to children—clergy child sex abuse—is under debate. And once again the DAs can and should be forging the path to child safety.

Recently, it was announced that a number of District Attorneys had entered into an agreement with the Albany Diocese to improve the reporting of child sex abuse to the authorities. (The D.A.s were P. David Soares, Albany; Paul Czajka, Columbia; Richard D. Northrup Jr., Delaware; Louisa K. Sirea, Fulton; Terry J. Wilhelm, Greene; John H. Crandall, Herkimer; James E. Conboy, Montgomery; John M. Muehl, Otsego; Richard J. McNally, Rensselaer; James A. Murphy, Saratoga; Robert M. Carney, Schenectady; James Sacket, Schoharie; Kathleen B. Hogan, Warren; and Kevin C. Kortright, Washington.)

Apparently, the Diocese had been following the long-established practice of determining for itself what allegations were "credible" before making a report to the authorities. As usual, the Albany Diocese was—like all religious organizations—ill-equipped to make such determinations . Thus, its approach resulted in underreporting, from the perspective of the prosecutors. Kudos to the DAs for taking a proactive approach in examining the Diocese's reporting practices.

Philadelphia's Model Should Be Instructive for New York

However, while the DAs' actions represent progress, they are obviously not enough to ensure that New York's children are safe. Fortunately, there is a model for deterring and reducing abuse within the Catholic Church: Philadelphia.

In Philadelphia, it was the District Attorney, Lynne Abraham, who began to build the road to justice via a Grand Jury investigation of the cover-up of abuse in the Philadelphia Archdiocese. The investigation then resulted in the 2005 Grand Jury Report.

Laudably, Abraham convened the grand jury even knowing that charges might or might not arise out of its proceedings. She was motivated to get to the bottom of the situation, which involved widespread child sex abuse within one private Philadelphia organization. Abraham's example ought to be followed. How can any DA fail to follow the trail of such abuse and still claim to be serving the purposes for which he or she was elected?

The 2005 Report did not result in criminal charges, because the statutes of limitations had passed, and other laws in the state were not adequate. But the next District Attorney, Seth Williams, convened another grand jury and issued his own Report last spring.

This time, there were crimes to charge, for there was conduct that fell within the statutes of limitations. In addition, that investigation led to the first criminal trial against a higher-up, Monsignor William Lynn, for his role in the cover-up of abuse. That trial, which is taking place this month, would not have been possible without the groundwork set forth in the 2005 Report.

New York Urgently Needs to Address Its Child Sex Abuse Situation

It is now common knowledge in New York that there is a history of covering up child sex abuse, aiding pedophiles, and avoiding the criminal justice system in a number of private organizations, ranging from the Catholic Church, to the Orthodox Jewish community, to Syracuse University. No District Attorney should be permitted to ignore what is so obviously in his or her own backyard.

That point was brought home forcefully in Pennsylvania with the grand jury investigation and report that turned a spotlight on the multiple victims of Jerry Sandusky and Penn State's actions to cover up his crimes. Federal prosecutors are now involved, and apparently are investigating whether there were payoffs to victims, through Penn State and/or Second Mile.

So where is the District Attorney's investigation into the abuse in the New York Archdiocese headed up by Cardinal Timothy Dolan? The letter of agreement with the Albany Diocese is simply not enough. Those DAs need to step up, too.

There is no current investigation by the Syracuse DA, because the statute of limitations has expired, which is a mistake in my view.

A number in the prosecutors' community also have now stated publicly that they back the Child Victims Act, which I discussed in this previous column. The Act will go far to protect New York's children by increasing the statutes of limitations on child sex abuse, and creating a civil-suit window for all those survivors whose claims have expired. The DAs supporting the Act include: National District Attorneys Association; District Attorneys Association of the State of New York; Albany County District Attorney P. David Soares; Genesee County District Attorney Lawrence Friedman; Greene County District Attorney Terry J. Wilhelm; Oswego County District Attorney Donald H. Dodd; Otsego County District Attorney John M. Muehl; Queens County District Attorney Richard A. Brown; Rockland County District Attorney Thomas P. Zugibe; Schuyler County District Attorney Joseph G. Fazzary; Suffolk County District Attorney Thomas J. Spota; Ulster County District Attorney D. Holley Carnright; Denis Dillon, former Nassau County District Attorney; Michael C. Green, former Monroe County District Attorney; Robert M. Morgenthau , former New York County District Attorney; Mathew J. Murphy, former Niagara County District Attorney; and Michael A. Acuri, former Oneida County District Attorney.

DAs are elected officials, so the grassroots movement to obtain statute of limitation reform also is important.

Prosecutors can protect children effectively if they pursue the initial, deep investigation into the problem—and then follow through, as Philadelphia has. They are the front lines of child protection, and they—along with every DA everywhere—should be the heroes that our children need and deserve.


Marci Hamilton, a Justia columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her latest book is Fundamentalism, Politics, and the Law (Palgrave Macmillan 2011) (co-edited with Mark J. Rozell). Her email is This e-mail address is being protected from spambots. You need JavaScript enabled to view it .