Friday, May 8, 2009

Emor: Due Process?

Originally, I thought that with all the current brouhaha surrounding the release of the “torture memos” and the attendant spectre of possible prosecution of the major Bush Administration players for Constitutional violations, the incident of the mecharef/megadef at the end of this weeks’ parsha couldn’t be more timely, as I had always looked at that story as sort of a lesson in some form of halachic jurisprudential due process. Then I read the news about the case surrounding Stefan Colmer and how right-wing communal elements still remain undecided as to if, or when, to report sex offenders to the secular authorities.

This case highlights all sorts of issues, not least the ones I highlighted in my Ki Savo 2008 post. What I didn’t deal with straightaway is the notion pervasive in more isolationist communities that any reporting to secular authorities constitutes “mesirah”; however, you won’t hear that term bandied about all that much nowadays, as the embarrassment gets too great with each revelation for that claim to be publicly be made with a straight face, even by the most ardent isolationist apologists. Instead, other, sometimes even more infuriating, “defenses” have been offered, ranging from the chiddush that “if theres no penetration, theres no violation” to the fear that extending a window of reporting would bankrupt yeshivot.

I will attempt to be dan lekaf zechus, as it were, in a very limited sense (especially since I will immediately proceed to knock down said “zechus”). I will attempt to theorize that that, like the crisis surrounding aguna, there is an uncertainty vis-à-vis a clear-cut due process, halchic and extra-halachic, as to how to deal with the situation, as it is (relatively) novel, and the result has been initially paralysis (techilah beshogeg—maybe;) followed by the laundry list of apologetics (where it becomes sofo be’mezid). I will attempt to show how this possible “excuse” is immediately erased when one uses the sippur mecharef umegadef as a template for due process application when the owrs of offenses are committed.

The question arises as to why, after detailing the incident that led to the individual committing blasphemy (including a “sidebar” about his lineage) and the judicial process that followed, the Divine response regarding his punishment included an exhortation to execute murderers. What prompted a more detailed discussion of offenses warranting the death penalty beyond what had just occurred?

I think we have to take a look at all three factors: first, the process of judgment that ensues when blasphemy is committed; two, the linage of the offender and the possibility that the Torah considers is as a possible circumstance leading to the offense; and three, the mentioning of capital murder as a lesson regarding due process involved in all halachic capital cases. I will then attempt to do two things: aside from pointing out each of these respective elements’ unique contribution to the concepts halachic due process, I will also attempt to make some hekeshim to instances like the Colmer case. I should reiterate one hekesh, of sorts, that I made in Ki Savo: that the commission of pedophilic sex offenses by practitioners of isolationist Orthodoxy, especially when they occur in settings that are supposed to be associated with its most respected practices, constitutes one of the, if not them gravest chillul Hashem possible. That enough makes a rather salient analog to chiruf and giduf.

The first element is the process unique to the mecharef umegadef. The Gemara in Moed Katan (26b) details how the witnesses to the blasphemic utterance testify to said utterance by repeating it verbatim (which compels those present to tear kri’ah). We see two things from here: one, the extent to which the Judaic judicial system goes to eliminate “reasonable doubt”, even to force a “replay” of the “crime”; G-d, as it were, is willing forego his Honor to ensure that the conviction is correct. Some might say that this indicates that the standard of proof should be at least as high in our cases. I would say that we see that G-d’s willingness to forgo his Honor to establish the truth should actually indicate for a different attitude here: namely, that we be willing to go to any length to ensure that the offender is kept from ever having the opportunity from repeating the offense.

I would even take an instruction from this event regarding the “tznius” excuses. In one case, an offender said he couldn’t assist in his own defense because he would be forced to look at salacious pictures; in another, as noted in the article, “those molesters who were reported were apparently unwilling to participate in existing sex offender programs because, among other obstacles, men and women were treated together, a violation of communal norms. ‘There is not going to be an appropriate mix,’ explained Hynes at the time, ‘if you put them in with a group that is not chasidic, that is not Orthodox.”’ I would proffer that this becomes less of a halachic and more of a “cultural degradation” issue, and that the threat of cultural abandonment might serve as an appropriate punishment, if not deterrent, that if an individual associated with an isolationist sect commits a sex crime said individual SHOULD lose the ability to use “communal norms” as a shield even if it threates the rest of one’s religious life, as the requisite conduct itself has indicated that the forfeiture was already of the offender’s own volition. The fact again that G-d, as it were, would forgo His Honor for the sake of the truth indicates that perceived “communal norms” make a poor excuse for hiding the truth and protecting children.

The second element in the story regards the way the Torah details the lineage of the megadef, going so far as to detail his lineage and unfortunate exclusion from the geographic inheritance which apparently prompted the blasphemous outburst. This may be loosely analogous to what is termed the “abuse excuse”, and how the Torah shoots it down. In theory, we see something similar later on Ki Tezte in the discussion surrounding the ben sorer u’moreh, and how the obstacles set up by halacha to the actual execution (the parents voices have to be “similar, neither one of them can be disabled, etc.) might indicate that an “excuse of influence” does exist. I would say that the ben sorer umoreh actually upholds the notion that we are delineating here: that, influences do play a sometimes mitigating role, but the ultimate “moral responsibility” of the offender is not necessarily the concern of dinei adam, particularly when someone might get hurt. The fact that the Torah raised up the megadef’s “abuse excuse” defense for him and still insisted upon his execution indicates for this.

(I would add that the two cases— chiruf/giduf and ben sorer umoreh—are also indicators for the need to monitor societal influences and their concomitant effects, but the better arguments regarding communal responsibility for said influences is much stronger in the inyan of horeg beshogeg, ir miklat, and the spectre of the Kohen Gadol’s death serving as the indicator of said communal failure. Also witness how the Gemara in Makkos disparages a Sanhedrin that has to carry out the death penalty. Vis-à-vis ir miklat, I think that provides a good analogy regarding civil confinement. But I’ll discuss that at another time.)

Finally, the third element is the unexpected appearance of the laws of capital murder, followed by the laws of assault, immediately followed by the exhortation that “mishpat echad yih’yeh lachem”: “you all have one law”. I could repeat the obvious, trite, but necessary analog of molestation as “soul murder”; I could also detail how the listing of these cases after the the mecharef, followed by the “one law” exhortation, is a further indication of how the process delineated in the case of chiruf/giduf—even if, at first glance, it seems to be rigged for conviction—is as salient a “due process” as one applied in cases of torts and homicide.

I would employ this third element to serve as a further attitude check as to what this whole crisis is about. It’s “One Law”. You molest a child, you pay. Everything else is a cover up at best, facilitation at worst. And that may be the worse crime.

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