8 Dec 2010

Child protection policies improving in some Orthodox Jewish communities, but not in ultra-Orthodox ones

FindLaw - April 29, 2010

How Other Religious Organizations Echo the Roman Catholic Church's Rule Against Scandal, A Precept that Entrenches and Perpetuates Cycles of Child Sex Abuse: Orthodox Judaism, Part Two in a Two-Part Series [Part One]

By MARCI A. HAMILTON


In the past two weeks, there have been yet more revelations about the Catholic Church's mishandling of child sex abuse, with, for example, European bishops forced to resign. In my last column, I described, based on church documents and case law, some of the pitfalls in the Church of Jesus Christ of Latter-Day Saints' approach to child sex abuse within the organization. In this column, I will address the struggles of institutions within the Orthodox Jewish community on these issues.

Like Other Faiths, Orthodox Judaism Is Wary of Secular Authority – But There Are Exceptions

Like the Catholic Church, Orthodox Jews have certain beliefs that tend to create a separate world from which child sex abuse victims cannot escape. The key question with respect to every religious organization that is dealing with hidden, ongoing, or persistent child sex abuse is this one: What will it take to liberate the victims? External pressures from sources such as the media and the legal system can make a difference, but it may also take some re-examination and soul-searching with respect to some of the institution's religiously motivated practices. The Orthodox Jews are making steady and promising progress in this arena. The ultra-Orthodox Jews, unfortunately, are not.

The Jewish law of "Chilul HaShem," which means literally "a desecration of God's name," warns believers not to bring shame on the community. This is the closest analogue in the Jewish tradition to the Catholic rule against scandal. And, there is the Jewish law against "mesira," or informing on another Jew to the authorities. Roughly translated, according to Rabbi Yosef Blau of Yeshiva University (my home institution), it means "Don't go to secular authorities," and thus can be used as a reason not to report child sex abuse to police or civil authorities. The law against arka'ot, or proceeding in secular courts, also has presented barriers.

As with all important Jewish concepts, the meaning of each these precepts lies in particular interpretations. According to Rabbi Blau, the prohibition against mesira, though widely honored, may not be relevant in democratic societies. The purpose of the law was to protect Jews from tyrannical governments, such as Nazi Germany's. Thus, the prohibition was created to protect Jews from the government. The same reasoning does not apply in a legitimate democracy.

Moreover, there are exceptions to mesira – for instance, when circumstances are such that the religion's internal mechanisms cannot deal with an internal problem. And a perfect example, according to Blau, is child sex abuse. But observant Jews may not be willing to act in contravention of a law like the prohibition against mesira without first consulting a rabbi on whether the exception actually holds in the particular case, which can delay, if not forestall, reporting.

Yet, the Rabbinical Council of America at its Convention this week issued a resolution that would seem to open the door to reporting abuse:
[The RCA] reaffirms its unqualified condemnation of all forms of child abuse.
It reaffirms its halakhic position that the prohibitions of mesirah and arka'ot do not apply in cases of abuse.
It will regularly issue on its website and to the media appropriate statements of condemnation when public attention is drawn to a case in which Jews are either victims or perpetrators of abuse.
It will regularly evaluate the competence of its members in understanding and responding to issues of child abuse and initiate training and continuing educational opportunities for all of its members in this area every year.
The members of the RCA address the issues of child abuse in their communities in at least one sermon, lecture or article within the next twelve months, and that contact information for local abuse services be displayed in a public place in all synagogues, schools, and Jewish community institutions serviced by its members.

Other Aspects of Jewish Law May Also Make It More Difficult for Child Sex Abuse Victims to Find Justice

Unfortunately, the prohibition against mesira is not the only precept of Jewish law that has made it difficult for child sex abuse victims to get help. There is also the prohibition of "lashon hara," which means "evil tongue," and forbids speaking badly of others. It creates an impediment to survivors even telling members of their own communities about the abuse, let alone the civil authorities. Some supporters of adults who have been accused of abuse also have invoked lashon hara to prohibit others from telling outsiders.

There are also cultural elements at play. "Shidduch" means "finding a spouse," and in some circles, the drive to find a marriage partner is a very powerful force. For the most part, religious Jews enter into arranged marriages in which one's lineage and family reputation determine desirability on the marriage market. Making a good match, or "Shidduch," is of paramount importance within these communities. The stigma of being a victim of abuse can deter marriage partners. Therefore, there is strong incentive for the entire family to stay mum about the issue, and for the victim himself, or herself, never to mention it.

In addition, there has been strong communal pressure in Orthodox communities to keep the problem internal. This element has decreased in the Orthodox community, which is divided among diverse synagogues and congregations, but it remains a force in the ultra-Orthodox community, as I will discuss below.

Finally, there has been the problem of denial. Of course, we see denial in many child sex abuse situations, whether the context is religious or secular. The difference here is that, in the Jewish community, denial regarding clergy child sex abuse has been worsened by the belief that one should keep the halakh (Jewish law), which plays an important role in creating a self-identity for the Jewish communities. Living an observant life is transformative. An Orthodox Jew believes he or she will become a better person by keeping the laws, and that belief can translate, for some, into a decision generally to ignore modern studies or media on any issue, because the modern information could have the capacity to call into question their entire lifestyle. When the issue is child abuse, the consequences of that belief can be tragic.

In sum, within Orthodox Judaism, some adhere to a set of internal rules the effect of which is to prevent child sex abuse victims from speaking about their abuse, getting help, or filing criminal charges against perpetrators. Fortunately, however, secular law has provided some of the pressure that is needed to establish a pathway out for the victims. The recent scandals (and convictions) involving Rabbi Yehuda Kolko and Rabbi Baruch Lebovits were a result of the victims bravely coming forward even despite community pressure, and they are surely an indication that the tide has been turning.

Orthodox Jews Should Be Praised for Openly Debating What Should Be Done About Clergy Child Sex Abuse – and Acknowledging that It Occurs

Moreover, there has been a healthy and open debate among Orthodox Jews regarding what to do about this very serious problem. The Flatbush Shomrim announced this last week that child sex abusers should be prosecuted, and advised fellow Jews to report sex abuse directly to the authorities. Ben Hirsch, the President of Survivors for Justice – the first organization of its kind in the Jewish community – praised this move in an op-ed for the Jewish Star.

As with the Catholic survivors' movement, Hirsch explained that secrecy has been in the leaders' interest, not the children's:

"[O]ne does not have to be a cynic to conclude that the rabbinic establishment has a vested interest in keeping reports of abuse within the community. For leaders who could be facing criminal and civil liability, invoking concepts like mesira and chilul Hashem to stop people from reporting is little more than a form of self-protection. Self-protection that, as the past 40 years have shown, has come at the expense of the protection of our community's children."

Hirsh then likened the Jewish situation to that of the Catholics:

"[T]he cover-ups have resulted in hundreds of victims whose abuse could have been prevented. Dealing with reports of sexual abuse internally covers-up the crime, usually with catastrophic results when the pedophile strikes again–something we are hearing about daily in reports about the Catholic Church and frighteningly in our own community as well.

The Torah teaches us to avoid offering counsel in situations where we may be a nogea b'dovor (an interested party). This applies equally to rabbis, whom the Torah nowhere exempts from this rule. As such, because of their inherent conflicts of interest in this issue, I respectfully suggest that rabbis be precluded from being involved in this issue except in very limited ways–namely, encouraging people publicly and in private to go directly to the authorities and supporting them practically, emotionally and socially in that process."

Hirsh offers persuasive arguments, and remarkable conclusions, that bode well for child sex abuse victims in the Orthodox Jewish community.

Unfortunately, the same cannot be said for the ultra-Orthodox, or Chasidic, Jewish community, which as of now is far from being able to aid the victims within the community. A recent announcement in New Square reiterated the principle that abuse should not be reported to the authorities, although it did at least establish a path for reporting the abuse to an internal committee.

As we know from the other universes within which child sex abuse has been a problem, keeping the issue internal is never the best – or even a good, or acceptable – path for the victims. In addition, there is another impediment to justice in this community: Rabbi Blau noted that Chasidic community members defer to the Jewish Laws of Tzniut, which command modesty in both dress and speech and in turn forestall discussion regarding private body parts and improper touch. Victims therefore may lack even the basic vocabulary to report the abuse. And the community is so closed off that communal pressure to keep the issue secret is extraordinary, with few, if any, openings for outside forces such as police, prosecutors, or the media to bring the victims some relief.

Still, there are glimmers of hope from within even the ultra-Orthodox community. Rabbi Shalom Yosef Elyashiv has ruled that the Jewish law not only does not bar reporting, but rather "one should report (an abuser) to the secular government authorities [police, etc.]; and in this there is benefit to society . . ." Thus, the exception to the law against reporting is actually quite strong. That means the barriers to reporting in the ultra-Orthodox universe are more cultural than legal.

Of all of the religious organizations facing these issues, the Orthodox Jews appear to be moving most quickly to the position that the child victim's needs must trump the organization's preferences, even when it means re-examining common interpretations of certain religious prohibitions. For that, the community deserves praise.

Marci Hamilton, a FindLaw 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 this site 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 email is hamilton02@aol.com.


This article was found at:

http://writ.news.findlaw.com/hamilton/20100429.html


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4 comments:

  1. The Orthodox Sex Abuse Crackdown That Wasn’t

    Brooklyn DA Kenneth Thompson ran on the promise that he’d clean up the office’s problems with prosecuting ultra-Orthodox sex offenders who preyed on children—but so far he appears just as lax as his predecessor.

    by Emily Shire, The Daily Beast October 7, 2014

    After initially facing up to 32 years in prison for eight counts of child sexual abuse, Baruch Lebovits walked out of Riker's Island last week a free man. He had served just under 16 months of total prison time.

    That Lebovits, a cantor from the ultra-Orthodox Borough Park section of Brooklyn, was even convicted is seen as a victory considering the difficulty of prosecuting abuse in that community. However, his release is disappointing, if not surprising, for those who hoped Brooklyn district attorney Kenneth Thompson would be the man to end decades of ultra-Orthodox sex abuse cover-ups.

    Thompson beat out Charles Hynes for Brooklyn DA, ending a reign that last more than 23 years. Towards the end of his time as DA, Hynes was scrutinized for his perceived unwillingness to prosecute crimes against the ultra-Orthodox, especially in regards to sexual abuse. At best, his administration appeared exceptionally lax, and at worst, it willfully obstructed justice. He was famously reluctant to release the names of convicted sex abusers in the Orthodox community. His office let Rabbi Yehuda Kolko get away without jail time or registering as a sex offender. Instead, Kolko received a plea deal that allowed him to plea guilty to child endangerment. The DA claimed the alleged victims—first graders in Kolko’s class—were unwilling to testify, but chief of the Kings County sex crimes division, Rhonnie Jaus, publicly said that their parents had been willing to put the kids on the stand. It was one of many cases that raised questions about Hynes' willingness to prosecute ultra-Orthodox sex abuse.

    Many critics of abuse and corruption in the ultra-Orthodox community hoped and believed Thompson would bring justice to Brooklyn. For his part, Thompson openly criticized Hynes’ record on crimes committed by the ultra-Orthodox. “Every community in Brooklyn has to be treated the same,” he said during a 2013 interview. “When I become Brooklyn DA, I’ll make sure there’s equal justice for everyone, under the law.”

    In fact, days after Thompson was elected last November, he requested that Hynes freeze any new ruling on the Lebovits case. Thompson said he wanted to ensure a “full opportunity to review the Lebovits matter and participate in the decision to take the case to trial or dispose of it by way of a guilty plea.” The Jewish Week reported that sources said Hynes was expected to dispose of the case with a lenient plea deal. Ultimately, Thompson did the same, if not worse.

    According to a transcript of the plea deal hearing from May 16, 2014 reviewed by The Daily Beast, Lebovits served even less time than was proposed during negotiations. Judge Mark Dwyer told Lebovits:

    I am also asking that you waive early release. Our understanding is that you normally would be released after 16 months. The waiver of early release we think might have the effect of keeping you in some months more, not more than 24, but some more months than 16.

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  2. And yet Lebovits served barely 16 months—13 less than his original conviction. He re-entered jail on July 9 and was released the night of September 29.

    “My client is not surprised,” said Niall MacGiollabhui, the lawyer for Samuel Kellner, whose son was allegedly abused by Lebovits. “This is what he's gotten all along from that [the Brooklyn DA’s] office, but certainly we thought once Thompson came in, it would be different. It’s business as usual in Brooklyn.”

    Kellner himself was indicted by the Brooklyn DA’s office under Hynes. The charges against him are a window into a case as complex as it is disturbing.

    Lebovits was convicted of eight counts sexually abusing a child in 2010, but the case against him first emerged in 2008 when Kellner’s son said Lebovits had fondled him. Kellner says he was told by officials that Lebovits was unlikely to serve jail time as a man with a clean record, or even be prosecuted by the DA's office, according to the Jewish Week. He became determined to locate other victims who would testify to abuses that could put Lebovits behind bars. He found one man, who testified in court that Lebovits had performed oral sex on him multiple times as a teenager. The man’s testimony helped lead to Lebovits’s 2010 conviction and an initial sentence of 10-2/3 to 32 years behind bars.

    However, Lebovits’ conviction would ultimately be overturned—though he wasn’t acquitted outright—in 2012. His defense team (led by none other than Alan Dershowitz) convinced an appeals court that the trial had been prejudiced by the prosecution’s failure to share a police detective’s note about one of the witnesses expected to be called by the defense. While the court said Lebovits was denied his right to a fair trial, it also noted that there was sufficient evidence to prove he was guilty of the same crimes.

    Meanwhile, the DA’s office indicted Kellner for supposedly bribing a different alleged victim—who testified before a grand jury but not in the trial that lead to Lebovits's conviction–who later claimed Kellner had paid him $10,000 to speak out against Lebovits. Kellner was also charged with attempting to extort the Lebovits family. The alleged evidence against Kellner was gathered by Lebovits supporters and family members. The alleged victim who recanted was deemed “wildly inconsistent” by the assistant district attorney, Kevin O’Donnell. Days before the trial against Kellner was supposed to begin the prosecution discovered that the witness had only recanted after accepting financial support from Lebovits’ supporters.

    In fact, Hella Winston at the Jewish Week reported that the Sex Crimes Unit had evidence the alleged victim had been intimidated into recanting and turning against Kellner. Winston had a native Yiddish speaker listen to the Yiddish audio recordings brought to the DA as supposed evidence that Kellner was trying to extort the Lebovits family. That speaker concluded that the audio just showed “Kellner's desire to see Baruch Lebovits plead guilty” and “determined that many of the exchanges critical to the overall meaning of the conversation were distorted in the translation.” Ultra-Orthodox insiders argued that Lebovits’ family had falsified or misrepresented the evidence.

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  3. Thompson himself slammed the charges against Kellner during his campaign for the Democratic DA nomination, attending a rally in support of dropping the charges. But after he won the nomination, he refused to comment on the case.

    Thompson dropped the charges against Kellner in early 2014, which was a victory of sorts for advocates against ultra-Orthodox sex abuse. However, critics still argue that Thompson let Lebovits’ supporters off easy by failing to probe the fraud and intimidation allegations.

    “As bad as Hynes was and as bad as that office was, they were making some attempts to investigate what happened,” Kellner’s lawyer, Niall MacGiollabhui, tells The Daily Beast. “Once Thompson came in, the idea of investigating what led to my client's arrest ended, even though they admitted criminal behavior led to my client being framed. This DA is doing nothing to investigate and prosecute those who blatantly obstructed justice and intimidated victims.” When asked about the knowledge of Kellner being framed, the Brooklyn DA told The Daily Beast it is the “policy of the District Attorney’s office not to confirm or deny investigations.”

    For activists, the alleged failure to investigate the evidence presented against Kellner perpetuates the dangerous message in the ultra-Orthodox community that whistleblowers will be severely punished. “How do you count against fabricated evidence being given to law enforcement and the DA to destroy someone's life? That's not a minor offense,” says Shmarya Rosenberg, the man behind the blog Failed Messiah, which exposes corruption and abuse in the ultra-Orthodox community. “Thompson will say 'we're investigating'. Fuck you! You have all the information. It's out there. There's no question what happened. The only question is, why is Thompson taking so long? Why is there no prosecution?”

    Thompson’s problems with the ultra-Orthodox community go beyond the prosecution of sex abuse. In April, the DA sparked local outrage when his office gave another lenient plea deal to a man who threw bleach in the eyes of Rabbi Nuchem Rosenberg, an activist against sex abuse in the Satmar sect of the ultra-Orthodox community. The suspect in the attack, Mellech Schnitzler, got off without any prison time. He plead guilty in a plea deal and was punished only with five years of probation. "We changed the DA but we didn't change any behavior in the DA's office," Rosenberg told the New York Daily News. "Where is our protection?"

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  4. Part of the reason activists have hoped for major change under Thompson is because he didn't rely as heavily on ultra-Orthodox support to secure his position. Thompson won the Democratic primary, which effectively killed Hynes' campaign, without support from the vast majority of Brooklyn Orthodox leaders.

    To a certain degree, Thompson made up for what was perceived as his predecessor's tacit protection of sex abusers in the community. He released the names of defendants in Orthodox sex abuse cases, which Hynes had refused to share with the public.

    Even Thompson's critics admit Thompson isn't necessarily going after any group in Brooklyn, but that lax attitude perverts his “equal justice for everyone” vow. For example, with the case of Schnitzler throwing bleach in the rabbi's eyes, it is Thompson's office’s position that “a felony conviction with a no prison deal is worth it,” says Rosenberg (of Failed Messiah), even with “cases that have nothing to do with Orthodox community.”

    Still, Rosenberg faults Thompson for not taking a stronger stand to fix perceived past errors, when he appeared to promise to do so in his campaign. “He was clever because his words were meaningless. There's no barometer. All cases are treated the same way, all badly mind you. But he did treat them all equal,” says Rosenberg. “That he did it wrong and did it in a horrible way is a different story.”

    Unwillingness to change the status quo in Brooklyn may be Thompson’s bigger fault. MacGiollabhui doesn't suspect any underhanded favors stopped a probe into Lebovits' supporters’ alleged efforts to frame Kellner; he just thinks the DA's office doesn't care. “They couldn't give a shit about kids from that community,” he says. “There's a certain attitude of leaving people in that community to their own devices. [The DA's office] couldn't care less.”

    Still, others say the DA’s prosecutions will do little to stop the problem of sex abuse in the insular community. Michael Lesher, a lawyer who has been investigating sex abuse in the Orthodox community for decades, doesn't believe the DA makes a critical difference. “The real problems facing sex abuse prosecution is systemic. It doesn't depend crucially on who the DA is. It's still a message of if you're going to come forward and accuse people of sexual abuse, you're still taking a risk. The community will find ways if they can to tarnish your reputation and get you prosecuted,” he said, though he added, “It seemed to a surprising extent in this case is the DA is willing to get along with it.”

    Thompson may be no worse than Hynes, but his first year has been frustrating for advocates who once had high hopes for his tenure. “I don't think Thompson is an inherently bad guy,” says Rosenberg. “But he's an extreme disappointment.”

    To read the numerous links embedded in this article go to:

    http://www.thedailybeast.com/articles/2014/10/07/the-orthodox-sex-abuse-crackdown-that-wasn-t.html

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