R Tzvi Gartner: Ideal halachic approach to abuse

The following excerpt was written as part of an introduction to the pioneering series of teshuvos by gedolim dealing with the issue of child abuse. I translated it from the original Hebrew.

Yeschurun (Volume 15): Concerning the question which is in the spotlight now in America. As is known it has been revealed in recent years amongst the non‑Jews, many incidents of teachers and educators who have sexually or physically abused their students.This matter has been well publicized amongst them because of the great damage physically and obviously psychologically to the children that fall victim to this abuse. (In many of these cases their lives and that of their family are destroyed). Consequently the secular government has become very strict in these matters not only for the perpetrators but also for all educators and those who are involved in professional roles with children. The government now requires that all incidents of suspicion and concern be reported to them. Those who delay or refuse to report problematic incidence within a very short time are liable to monetary punishment and imprisonment. They are also exposed to the possibility of civil lawsuits by the parent’s of the child who have been abused as a consequence of their failure to report. To our great sorrow and our sins, the Orthodox community has not been spared by this plague and unfortunately there have been various incidents amongst us also. The question arises then what should a teacher or educator or others do if they become aware of such an incident as these? Some people claim that everyone is to be presumed to be innocent (chezkas kashrus) and therefore it would be prohibited to report anyone to the secular government. This is especially true if the complaint is not first made in beis din and the beis din agrees that the charges are valid – something which is almost impossible to happen. This is particularly true today when beis din has no authority or mechanism of forcing anyone one to appear before them. Furthermore even if they come to beis din then in general all the evidence will be disqualified because it is based on the testimony of children or other invalid witnesses or it is based on circumstantial evidence which is also not admissible. Even confessions are not valid. In fact the only basis of changing a person’s status from innocent to guilty is by means of the testimony of two male observant adult Jews and not that of children and other invalid witnesses or circumstantial evidence and surely not be means of confessions. That is because a person is not allowed by the Torah to cause himself to labeled as wicked. However others say dealing with abuse cases is equivalent to life saving and stopping people from sin (according to what the rabbi’s and professionals in work in this area have said that someone who is a pedophile might abuse ten’s and sometimes even hundreds of children. And it is almost certain that there is no correction of this problem by repentance alone but he needs to receive professional treatment for an extended time.)

Furthermore while as we noted the government requires reporting, but in most cases the government is not interested in punishing the perpetrator but instead forces him to undergo rehabilitation. Therefore there is no doubt that in such circumstances it is not only permitted but it is obligatory to report. But this is conditional on a proper examination by leading rabbis and professionals as to what the facts are. For example in a number of cities in America, communities courts have been established specifically to deal with these matters. After examination and verifying matters, according to the available evidence, when needed they will permit turning to the secular government. In Elul 5764 the protocols of Torah U’Mesorah for schools was published concerning the issue of abuse. They said that in the case when a teacher is suspicious that someone molested a student, the teacher was to report his suspicions to the principal of the school to clarify the matter. The principal was to consult with a posek or a rabbi who was experienced in these matters as well as professionals. If it seemed that there was a basis to the suspicions then the principal was to report the teacher to the secular authorities as is required by the law [...]