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.
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.