Tuesday, January 22, 2013

The Weberman Conviction and Torah Justice

For most people who are aware of the case, the recent conviction of the child rapist, Nechemya Weberman, has come as a welcome sign that, even in the most insular of our communities, those who are willing to step forward and fight for what is right, can hope to see justice done, and - even more importantly - remove these violent predators from our midst.

Unfortunately, while the conviction itself was a good thing, there is also much about the case that is deeply discouraging. The fact that the leadership of Weberman's community came out aggressively in his support, even after it was absolutely clear that his behavior had long been in violation of halacha, indicates an almost willful blindness in many quarters with regard to this issue that is deeply disturbing.

That being said, I do not see myself as competent to discuss the communal aspects of this issue, which have been covered by far abler people than myself. I am also not going to address the issue of mesira, i.e. the prohibition against informing on a Jew to non-Jewish authorities. The poskim have already stated that the prohibition against mesirah does not apply to cases of abuse, whether physical or sexual. (For a full discussion, see Nishmat Avraham, vol. 3, ch. 18.)

What I wish to discuss here is a technical issue dealing with the question of the justice of Weberman's conviction from a Torah perspective. Throughout the course of the court case, I have come across the claim that from a Torah perspective the entire case is invalid, as the evidence against Weberman does not meet the standards of Jewish law. On the surface, this question, which I have encountered several times, seems to be valid. After all, one of the most basic concepts of Jewish law is that one can only be convicted for a crime when there are two eyewitnesses to the actual event. Circumstantial evidence and second-hand testimony are invalid. In general, Torah law describes a criminal justice system that is very heavily biased towards acquittal  So how can we support the conviction of Weberman when, it is argued, according to Torah law he would certainly not have been convicted him for anything?

While this might appear to be valid question, it is based on a critically flawed understanding of the reality of Jewish law as it was actually practiced when the Jewish people lived under Torah law. This issue is discussed at length in the Drashos HaRan (Rabbeinu Nissim, 14th century) in Drasha 11. The Ran points out that in a Torah society, the criminal justice system must serve two distinct functions, which can often be in tension with each other.

The first function of the Torah's criminal justice system is ישוב המדינה (yishuv hamedina), i.e. to provide a stable society in which people can function without fear of violence from others.

The second function of the Torah's criminal justice system is to enforce the laws of the Torah, as they are, regardless of the apparent utility of those laws from a yishuv hamedina perspective.

Most of the time, these two functions work together hand in hand. The reality is that the majority of people, in any society (and, hopefully, even more so in a society governed by Torah law), are basically law abiding citizens. Thus, even in the case of a violent crime, it is proper to give the ordinary citizen the benefit of the doubt, even to an unreasonable degree.

However, when applied to human predators, such as career criminals, serial murderers, rapists, and abusers, the simple reality is that this system does not work. If we would apply all the protections that are normally applied to the accused in Torah law, it would be virtually impossible to convict any of these criminals for their crimes. The Ran points this out explicitly:
אם לא יענשו העוברים כי אם על זה הדרך, יפסד הסדור המדיני לגמרי, שיתרבו שופכי דמים ולא יגורו מן העונש!
If law breakers are only punished under these conditions [i.e. the conventional standards of evidence required by Torah law] the order of society will be completely destroyed, for murders will increase and they will have no fear of punishment!
The Ran explains, therefore, that the Jewish criminal justice system actually had two tracks. The primary track, which functioned according to the ideal standards of pure Torah law, was run by the batei din - the Jewish courts that were established in every community. It was this system that the average citizen of the Jewish state interacted with when accused of a crime. Convictions, especially of capital crimes, were extraordinarily unusual under this system.

However, there was another system, which was specifically intended to ensure that true criminals would not be able to take advantage of the leniency of the standard judicial system to shield them from the punishment they deserved. This track was run by the king. Under Jewish law, the king was empowered to punish, and even execute, a criminal based upon his own judgement of what was necessary for the protection of society. The king was not required to follow the conventional laws of evidence that applied to the courts.

Indeed, the Ran points out that the king's power was so great that it was necessary to impose special obligations on him to teach him to restrain himself from abusing that power:
ולפי שכח המלך גדול, איננו משועבד למשפטי התורה כמו השופט, ואם לא יהיה שלם ביראת אלקיו יבוא להפריז על המדות יותר ממה שיתחייב לתקון הכלל, ציוהו שיהיה ספר תורה עמו תמיד... שכשיפריץ על מדות התורה לצורך תקון זמנו, לא תהיה כוונתו לעבור על דברי תורה כלל ולא לפרוק מעליו עול יראת שמים בשום צד, אבל תהיה כוונתו "לשמור את כל דברי התורה הזאת ואת החוקים האלה לעשותם", שבכל מה שיוסיף או יגרע, יכוון כדי שיהיו חוקי התורה ומצוותיה יותר נשמעים, כאשר נאמר על צד המשל, שכשיהרג הורג נפש בלא עדים והתראה, לא תהיה כוונתו להראות ממשלתו לעם שהוא שליט על זה, אבל יכוון בעשותו זה כדי שמצות "לא תרצח" תתקיים יותר ולא יפרצו עליה.
The power of the king is so great - in that he is not obligated to conform to the laws of the Torah like a judge - that if he is not perfect in his fear of God, he may go beyond those principles more than is necessary for the protection of the community. Therefore, he is commanded to always have a Torah scroll with him (Deuteronomy 17:18-19)... [to remind him] that when he goes beyond the principles of the Torah for the necessity of the situation, his intent should not be, in any way, to violate the words of the Torah or to cast off the yoke of fear of Heaven, but his intent should be "to guard all the words of this Torah and these decrees, that they be fulfilled." Whether he adds or detracts, his intent must be that the laws and commandments of the Torah be heeded to a greater degree. Thus, for example, if he executes a murderer without witnesses or warning. his intent must not be to demonstrate his dominion to the people, but his intent in doing this should be that the commandment of "Thou shalt not murder" will be upheld further and not violated.
The Ran also points out that when there is no proper king, as was the case for much of the Second Temple period, this power of the king is transferred to the courts. (See the Rambam, Hil. Sanhedrin 24:4-10, where he describes the extra-legal powers of the courts in detail.)

The point of all of this is that actual Torah law does not give a free pass for any criminal who is clever enough to figure out how to circumvent the - extraordinarily lenient - standards of the conventional Jewish court system. To imagine that this is so, is to imagine that the ancient Jewish government was unable to provide even the most basic protections to its citizens. Under a properly run Jewish government, a predator like Weberman would indeed have been convicted, and likely executed, for his crimes.

The fact that, in our current state of exile, the Jewish community no longer has the ability to protect itself from monsters of this sort and is forced instead to rely on the good graces of an - admittedly imperfect - non-Jewish justice system is indeed a tragedy. However, the fact that, in this case at least, the system worked is something for which we should be deeply grateful.


Oliver G. Holmes said...

This is certainly one of the best and fundamental articles on this issue. Chazak!


The editor of the Drashos HaRan put that exclamation point at the end of the first paragraph you quoted. Well, had exclamation points been available for the Ran's use in his days, he might have put it there himself.

LazerA said...

Heh! None of the editions of the Drashos HaRan include an exclamation point at that point. It was my own editorial decision.

Anonymous said...

Thank you for your overview of these hilchot (and while I am at it, your work on this blog in general). Even an explanation such as yours is a courageous act and I appreciate this. Hazak u beracha. Akiba

LazerA said...

Dear Akiba,

Thank you for your kind comments. However, I must disagree about the "courageousness" of what I have written here. If I was a member of the community involved in this scandal, then making such a comment would be courageous, as I would face communal disapproval (which is one of the most disturbing aspects of the case). However, not being a member of that community, I am largely preaching to the choir, and there are very few in my community that would disagree with my basic opinions on this matter.

Anarchist Chossid said...

I'm not sure I understand. You say that most people are probably not criminals; therefore, it makes sense to apply presumption of innocence to them and use the more stringent requirements for evidence. But for "human predators", such rules don't have to be used, and a king or courts can use their discretion without limitation. A few problems:

0. The reason why presumption of innocence is used is that we cannot deprive a person of his life or property without evidence. The status quo is that he owns his property or life. If you want to disturb the status quo, the burden of proof us on you.

1. Even if we say that normal rules cannot apply to a special set of people, we have to prove that a person belongs to that set! Otherwise you have the "regular" people and the "potential criminals", the difference between the two being arbitrarily decided by a king of a court. This in essence nullifies the original presumption of innocence, since anyone can be declared wily-nilly a potential criminal.

2. Are you saying that the courts or the king were not bound by any restrictions or standards of evidence? In that case, such a system is significantly more imperfect than the current imperfect system of the lands of golus, which in itself results in a very high false conviction rate.

3. A king was ordered to have a scroll of Torah always next to him. Did it work? Was it a successful method for preventing corruption and abuse? What about the courts? What about the king's representatives? In the Western lands, trial by jury has been implemented specifically because trials by all-powerful kings our courts resulted in tremendous injustice.

LazerA said...

Dear A.C.,

You raise a number of valid questions. One of the problems we are facing is that there has been no fully functional Torah criminal justice system for over two thousand years, so how some of these issues were handled in practice is often quite vague.

The core issue that we are dealing with here is a well-known dilemma.

On the one hand, it is important to protect ordinary people from unjust prosecution and convictions.

On the other hand, a justice system that gives strong protections for those accused of crimes, such as high standards of evidence, is all too easily evaded by professional criminals.

Thus, for example, the American legal system struggled for a long time to find a way to deal effectively with organized crime, in which the primary figures were usually well-insulated from prosecution. Ultimately, the government solved this problem with the passage of the RICO (anti-racketeering) laws, which effectively made it possible to convict people of crimes by association, even if there was no actual evidence that they themselves had ever broken a single law. While RICO played an important role in the prosecution of organized crime, it did not take long before prosecutors discovered that it could be used in a wide range of other cases where there was a lack of evidence. In the long run, it is difficult to say if the RICO laws have done more harm than good.

On the opposite end of the spectrum, the establishment of extremely high protections for accused criminals (e.g. the Miranda warning and similar) has often led to the failure of the judicial system to remove dangerous criminals from the street.

So the problem is how to reach a proper balance that provides proper protection for the ordinary citizens, without excessively compromising their rights.

There is no simple way to determine where that balance may be. Each society will come to a different conclusion depending on a wide range of factors.

The Drashos HaRan argues that, in the ideal Jewish society, this balance was served by having the courts take a very liberal position, while the king was responsible for dealing with the outliers, i.e. cases that were clearly beyond the capacity of the courts to deal with.

Obviously, there was no special set of people who were determined ahead of time to be subject to the king's justice rather than the courts. Rather, unusual or extreme cases that were outside of the ability of the courts to deal with would be brought before the king for his judgement.

For example, if a serial killer was caught, the absence of any eyewitnesses to his crimes would mean that the conventional courts would be unable to convict him. However, instead of simply letting him go (on a "technicality", as happens far too often in our current American system), he would be brought before the king, who would judge whether or not he was threat and, if so, how to deal with him.

The exact parameters of the king's power (and the court's power in the absence of the king) is the subject of a great deal of discussion. However, it is clear that, to a large degree, the king was empowered to judge as he saw fit, regardless of the technical validity of the evidence.

While I understand the basis of your concern that such a system seems unjust, the reality is that no system is perfect. While in such a system, one would have reason to be afraid of the king, one would have far less reason to be afraid of his next-door neighbor, or of a stranger walking down the street (which is the reality for many ordinary Americans).

Of course, if the king was genuinely wicked, as happened in later generations, then there was certainly room for abuse. Of course, the average American is probably at least as likely to be subjected to abuse by government bureaucrats and over-eager prosecutors. There are plenty of powerful people in American government, and many of them have little if any real oversight.

So, was the system better? It all depended on the nature of the society and the people in power. Which is true for every system.