Fordham Law


Hynes Warns That Rabbis Could Face Prosecution For First Vetting Abuse Allegations

James Cohen in The Jewish Week, May 24, 2012

Media Source

After months of equivocal statements about Agudath Israel’s longstanding position that — with very limited exception — child sexual abuse allegations must first be investigated by rabbis, the Brooklyn district attorney has issued a clear warning to the haredi umbrella organization that its policy puts rabbis at risk of running afoul of the law.

According to a spokesman for Charles Hynes, “DA Hynes told Dovid Zwiebel [Agudah’s executive vice president] that it was a mistake to advise someone with information about child abuse to first speak with a rabbi.” In doing so, the spokesman, Jerry Schmetterer, continued, “Zwiebel … risks having the rabbi prosecuted for obstructing a law enforcement investigation.”

When asked by The Jewish Week to clarify what someone should do if he or she had information about allegations — rather than “information” — about abuse, Schmetterer said the individual should “report [the allegations] to authorities for investigation.”

James A. Cohen, associate professor of law and the director of the Trial Advocacy Program & External Affairs at Fordham University School of Law, concurs with the district attorney’s position. “Encouraging delay in reporting a crime, particularly a crime against a child, is obstructing justice,” Cohen told The Jewish Week.

Some believe that the Agudah’s position in and of itself may constitute a crime, as Rabbi Zwiebel has made it clear that unless a person is a victim or a direct witness of sexual abuse, reporting allegations to the authorities without first seeking rabbinic counsel constitutes mesirah —  a sin that was once punishable by death and today often results in threats, acts of intimidation and social ostracism.

According to Orthodox attorney and author Michael Lesher, “Under federal law, it is a crime to use the threat of force to interfere with someone’s right to the benefits of state law, including the criminal justice system, if you make that threat because of the victim’s religion. By invoking the language of mesirah — a religious offense that authorizes the use of deadly force against any Jew who ‘informs’ to the authorities — Agudah’s stated policy amounts to a deliberate call for the use of force to stop a Jew, because he or she is a Jew, from going to police against a rabbi’s instructions.”

As such, Lesher told The Jewish Week, this “could make Agudah complicit in a civil rights crime any time an Orthodox Jew gets a threat for talking to the police when a rabbi told him not to.” It’s an “appalling step for any Jewish organization to take,” he added.

In an interview published yesterday in the Forward, Rabbi Zwiebel continued to affirm the organization’s position that most abuse allegations must first be vetted by rabbis, even when those allegations come before a mandated reporter.

(Indeed, just yesterday WCBS News reported that Hynes plans to back legislation making clergy mandated reporters. However, because Agudah’s position requires even mandated reporters to consult with a rabbi before making a report, such a law would seem to have little effect on rabbis’ behavior as they too, would presumably have to consult with other rabbis before reporting.)

According to the Forward, Rabbi Zwiebel defended Agudah’s stance by noting that “having rabbis assess claims of abuse” was no different than the standard set for all mandated reporters, which “he characterized as a requirement for teachers and therapists to establish ‘reasonable suspicion’ before reporting a case to law enforcement under New York’s mandatory reporting laws.”

In an e-mail to The Jewish Week, Rabbi Zwiebel reiterated that the “threshold standard for reporting according to [rabbinic responsa] is similar, if not identical, to the requirement of NY law that a mandated reporter have ‘reasonable cause to suspect’ before reporting.”

However, Rabbi Zwiebel appears to have mischaracterized the mandated reporting law in a way that would make it erroneously appear to conform to the Agudah’s position on the issue.

New York State law does not in fact require the establishment of reasonable suspicion of abuse to trigger a report. Instead, the law says only that a report is mandated when there is reasonable cause to suspect abuse, something that is left up to the mandated reporter — who has typically received training in this area — to determine.

Indeed, according to the Administration for Children’s Services’ Web site, reasonable cause to suspect child abuse or maltreatment “is based on [the mandated reporter’s] observations, professional training and experience.”

Dr. Michael Salamon, a psychologist with expertise in treating victims of sexual abuse, told The Jewish Week that “mandated reporters are not required to determine whether or not an actual act of abuse has occurred, just that there is a suspicion.”

“Professionals are trained to look for cues but even in the absence of specific indicators the law is clear — any suspicion triggers the mandate to report,” he added.