Tuesday, March 22, 2005

Slanderers and whistleblowers

My friend Daniel gave a class tonight, focusing on a responsum of Maimonides (no. 111), which I will try to translate:

We ask the grace of our lord, light of the world, our master and Rabbi Moses ben R. Maimon, what say you - great rabbi, wonder of the generation from sunrise to sunset - of a certain Hazzan, who is also a Talmid (member of the yeshiva?), regarding whom an unmentionable rumour (rinun) has proliferated, but no witnesses have come forth, and he has enemies. Should he be expelled from his position or not? Should he be punished? If the rumour should be confirmed and he is punished, shall he be removed from his position? What if only one witness comes forth? Our master should teach us and be rewarded twicefold from heaven

The answer: What every intellectual should know. That no official should lose his position because of a mere rumour, even if he has no enemies... and even if the testimony is valid, he should not be removed, if he accepts his punishment, because no-one is pulled down from his holiness, from the great Sanhedrin down to the Hazzan ha-Knesset, unless he perpetrated a sin in public. And if this rumour has been spread about him, he should not be removed and it should not be publicized... And the man who spoke of this person without seeing him for himself should be banned, because there is no greater afkarta (irreverence) than that. He should be lashed for spreading libel... and be careful of the honour of Torah, for a mitzva is a candle and the Torah, light. And Moses wrote.

That's the responsum. We spent most of the class focusing on the Talmudic discussions, and Rambam's codification of them, which betray much internal tension, but none of which seem to sustain the conclusion of this teshuva.

Hil. Sanhedrin 17:8-9 A high priest who sinned and was lashed retains his position. But a Rosh Yeshiva leaves the Sanhedrin altogether.
Hil. Talmud Torah 7:1 A sage or rosh yeshiva who "smells" is never publicly banned, unless he sinned in public on a grand scale. He is lashed in private. And any talmid hacham who is liable of excommunication, the court does its best to avoid the case.
Hil. Talmud Torah 6:14 A list of grounds for excommunication. Number 23: a talmid hacham about whom "evil rumours" abound (shemuato ra'ah).

The tentative conclusion was that, in the case before him, Maimonides felt confident the rumours were false, and therefore the whole thrust of his response was away from any shadow of blame.

At the end of a lengthy discussion of this source, R David b Zimri (Egypt, 1479-1573) commented: But he surely concedes that if the official committed a crime in his official capacity, e.g. if he taught women and sinned with one of them, then he is removed until proven to have heartily repented, so that we not leave a stumbling block before him.

By now, you probably understand what bothers me about this discussion. The words sound so familiar. We hear them again and again and again in regard to rabbis accused of sexual crimes against students and other people. Is this really what generations of Halachic authorities thought was the right thing to do?!

I think an important observation must be made. In all the sources we discussed, in the Talmud and Rambam, no victims were mentioned. The substance of the accusations was that the person under scrutiny was a sinner, someone who slipped below the high moral standard expected of a religious functionary. That is really a matter that concerns only the sinner and God. But society tends to be unforgiving of people exposed to its glare, and so such sins become the subject of discussion. Which leads to hillul ha-Shem, the desecration and denigration of God's name by those associated with Him. Which is why the ideal situation is when his indiscretions go unnoticed.

But the people I have in mind, the ones accused of sexual harassment, molestation and other crimes, are in a different category altogether. They have hurt people. It does not concern only the rabbi and God. It concerns the victims. And victims are precisely the kind of people Batei Din and communal leaders are supposed to be protecting. And here hillul ha-Shem works in precisely the opposite way. It is the concealing of the matter that is disgraceful. Leaving them in their positions is not only dangerous, as the Radbaz realized. It devalues the positions they hold and the organizations in which they function.

The question of whether such functionaries should be allowed to resume their positions after having stood trial and served their sentences is a more subtle issue, I think. And the question of unsubstantiated accusations and rumours is definitely complex. But the conspiratorial, collusional way the issue is dealt with at present is a travesty, an unforgivable stain on the record of organized Judaism.

Take a look at this. Responsum 274. An issue I didn't mention, but which is important, is the different way in which our society relates to sexual harassment. In this responsum, the complaint of the widow who claims that the school-teacher made an offensive suggestion to her does not seem to be focused on a crime he committed towards her person. The issue is his good name. I don't think she could have received any personal damages from him even if her accusation had been proven. So, even if to our ears it sounds like a contemporary case of sexual harassment, I don't think that's how Maimonides, and his community, perceived it. Which is why his response can be described as "full of common sense".


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