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“The books, the compositions, and the commentaries are our teachers, and all is according to the understanding of the intellect and reason.” R. Sh’muel ben Moshe di Modina

Sunday, June 9, 2013

Shameful Acts and a Shameful Interrogation

A technical note: For this post, I'm trying an experiment.  I wrote the post in Hebrew first and will now present a more condensed version in English, without the quotations and translations from Hebrew.  On one hand, for those English-speakers who can read some short excerpts in Hebrew, I thought it would be nice to have those quotations and translations.  But I want to see which way I reach a wider audience (and also don't overtax myself with writing this blog).  I think I was not addressing the needs of the Israeli audience enough, and the focus really is batei din in Israel, though they reflect, to a large extent, halakha everywhere.

If you like to see some Hebrew, you can always read the English version and then try the Hebrew one.  If you can read Hebrew, the English version should help you follow the Hebrew one.

I'd be happy to get feedback letting me know whether this works for you.

Now to the post:
Case 860977/1, pesak dated 20.5.2013
The case is horrifying, but the proceedings should be short and clear.  One would think.
The case concerns a man who was found guilty of six counts of sexual misconduct with his 15 year old daughter.  He was sentenced to 8 years of actual time in prison, and several other shorter times under various conditions, unnecessary to mention here.  He was also ordered to pay 75,000 NIS damages to his daughter.  And, by the way, following her inability to talk for a number of months, when she finally did speak, she said he committed many more horrible acts than the six he was convicted of.

No surprise, then, that the wife sued for divorce.  It should be an open and shut case.  Husband should be ordered to divorce his wife, and she should also be awarded her ketuba and tosefet ketuba (see my earlier posts on these terms).  After all, she certainly has adequate grounds for divorce, the fault is his, and therefore the ketuba is hers.  A pesak of several lines is all that is necessary.  Right?  That's all that remains is to decide what kind of sanctions would work for a guy in jail, in the event that he is not cooperative about giving the get.

But here's what happened:  The husband says he wants to reconcile (shalom bayit)!!  The court agrees to his request that his wife come to prison to speak with him so he can try to convince her.  They make an agreement with the husband - they will arrange for her to come (and convince her to come) under the condition that if she still says she does not want to reconcile, then he will give the get.  He agrees.

I imagine that you are not surprised that she did not agree to reconcile. But now the husband says, fine, he'll give the get, if she relinquishes her ketuba and tosefet ketuba.  What should the beit din do?  They should say "no, way". You must give the get and the ketuba and we will pull out all of our ammunition to make sure you do so.

But they don't do that.  They set a date for further court proceedings, including an interrogation of the woman, because "the woman opposed relinquishing her ketuba."  What nerve she has! 

The pesak din first contains a recording of some questions posed to the woman by the dayyanim and then some of the questions (but not all - there are portions omitted, indicated by ellipses) posed by the husband's attorney.

For example, the dayyanim asked if she divorces tomorrow, would she then go and marry again.  She says she wouldn't be interested and can't even think about such a thing.  But what is this their business?  Now, you might think that they are trying to show the husband's lawyer how much she was emotionally damaged by her husband's behavior.  But I suspect another motive.  I suspect that they are trying to demonstrate that she has no ulterior, impure motive to wanting a divorce (this is giving the dayyanim any benefit of the doubt).

The husband's attorney then has his turn.  He wants to know, for example, why she can't forgive him if he is willing to go for psychological help.  After all, he already is paying his price by serving time.  She and her daughter are having psychological therapy and so is he, so why can't she forgive him? (Is he just doing his job, as disgusting as it is?  Or does he really not realize that there is a difference between the victims' need for psychological therapy and the pervert's need for therapy?)

But the most degrading of the lawyer's questions are: why does she want a divorce; perhaps she is looking to meet someone else?

Well, the wife won't agree to reconcile, and she won't agree to relinquish the ketuba.  So the dayyanim each write lengthy halakhic discourses (total of over sixty pages) to come to the conclusion that the husband is obligated to give the get and also obligated in paying the ketuba, though the latter's actual value is dependent upon the outcome of the division of property in the family court (where the husband sued for division of property, proving that he really did not want shalom bayit).

That might not sound so bad - if you saw my earlier posts, you'd realize that I do not see it as unjust to take the division of property into consideration when ruling on the ketuba.

What was so very distressing is the process that each of the dayyanim went through to reach this conclusion - and they disagree as to how firm the obligation to divorce must be and how immediately there must be sanctions if the husband does not cooperate.

See, performing inappropriate sexual behavior with your own daughter is not definitely clear grounds for a wife to be entitled to divorce, and certainly not clear grounds to be entitled to her ketuba, given that she is the one filing for divorce.  It is not one of the grounds for divorce listed in the halakhic codes. So the dayyanim must look at other reasons that she might be entitled to a divorce, among them:
1) He cannot fulfill his sexual obligations and "everyone knows why a bride goes under the canopy."
2) He cannot support his wife.
3) He is nauseating to her (ma'is alai)

But this is not enough.  One of the dayyanim discusses whether or not they can accept evidence of his guilt from the criminal court system, which does not apply the halakhic methods for testimony and evidence.  They question whether the shameful acts committed by the husband are as bad or worse than one who "sleeps around" (this ground for divorce is discussed in an earlier post) - that is a ground for divorce that is in the halakhic codes, so they can judge according to that.  They question if a long-term imprisonment is sufficient grounds for divorce.  They question if they can apply sanctions (forcing a get) even if the grounds for divorce are not one of those in the mishna that lists those grounds for which a man can be forced to divorce his wife.  They discuss under which circumstances the husband can be obligated to pay the ketuba, and if he is considered a rebellious husband, and under which circumstances they can request that the wife concede property in exchange for the get (called the approach of the Maharshada"m, the approach by which batei din sometimes tell a woman that it is her fault that she has no get, because she could concede the property that the husband asks for).  Over sixty pages of such questions and considerations, each one with numerous sources from rishonim and aharonim (pre-Spanish expulsion and post-Spanish expulsion halakhic authorities), codes and responsa literature.  And, by the way, there is very little citation of 21st century precedents from the Israeli batei din.

The very discussion itself is indicative of the mindset of those who officiate in the batei din.  Out of touch with reality.  Lack of sensitivity to the heinousness of the crime.  An insistence that the only way to examine such a case is via the lens of outdated texts, as irrelevant as they are to the case at hand.

We must keep in mind that though they "ordered" the husband to give a get, until the woman receives it, there is no get.  But the last point I'd like to make in this case is that even if the judgment is correct, the end does not justify the method by which it is reached.  The methods applied in the batei din are disgraceful, as displayed in this case.

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