Last July 2011 on the backdrop of the Leiby Kletzky abduction and murder the messy business of Mesirah surfaced once again when Agudas Israel robustly defended the application of Mesirah in cases of suspected abuse and pedophilia. Then Rabbi Shmuel Kamenetzky of Agudas Israel claimed that only a rabbi could adequately determine whether there is validity to a claim of abuse. Only after the rabbis’ determination can the family of an alleged abuse turn to the police. Circumventing the rav would be tantamount to Mesirah. Almost a year to the date the issue of Mesirah has resurfaced in connection with the deplorable manner in which Brooklyn DA Charles Hynes has been handling the cases of sexual abuse and pedophilia in the hassidic communities under the tutelage of Agudas Israel. Rabbi David Zweibel, executive director of Agudas Israel defends the idea that Mesirah trumps civil law and procedure even when there are clear suspicions of sexual abuse.
The application of mesirah, a fault line in Agudah has become nebulous in view of the democratic system of government as well as our system of justice predicated on the rule of law. Mesirah is informing or turning over another Jew to a non-rabbinic forum or to non-Jewish authorities. The informer is referred to as a moser, something like a whistleblower. There is a severe prohibition against mesirah. Even if the moser is a religiously observant Jew, meticulously observing halachic practice, by being a moser he demonstrates his rejection of klal yisrael and is treated as an akum (idolater, Yoreh Deah 281:3 / Rambam Hilchot Teshuvah 3:11). However, like everything else in Jewish law, the laws of mesirah aren’t clear-cut. If a non-Jewish government official suspects that the Jewish community is withholding a suspect or vital information about a suspect this is considered a chilul hashem. In addition, if there was a criminal hiding within the Jewish community, rather than have the entire community seen as complicit by covering for him, the community is allowed to inform the authorities (Choshen Mishpat 388:2). Mesirah was treated more severely during stress periods such as during the Spanish Inquisition and in medieval Europe where survival depended on avoiding contact with government, regardless of how benign. Today, however, where justice is delivered free of anti-Semitism, the rules governing mesirah have certainly changed and if there is someone within the Jewish community that is harmful threatening or a public nuisance he can be turned over to the authorities at least according to the Choshen Mishpat (388:45).
This being the case by what standard has Agudas Yisrael claimed that before turning a suspect over to the authorities one first has to consult with a rav? What possible insights or wisdom could a rabbi possibly have over a trained law officer in making a determination? Agudah has historically been obsessed with extending their influence and power politically and socially. Unlike Agudah in Israel much of their influence in the United States has been eviscerated (through the empowerment of federations, social service agencies, communal leaders as well as an educated lay community) and the little power and influence remaining is at the expense of the community. Mesirah is one tool in their arsenal by which they seek to extend their influence by exercising control over their communities through the empowerment of their rabbis as expressed by Rabbi A. Shafran, Director of Communications for Agudas Israel. When asked how a rabbi could ascertain if a child was telling the truth, he responded unconvincingly: “There are certain subtle signs in a child that show whether a child is fantasizing.”
Mesirash is clearly an archaic halachic tool applied in the Diaspora by necessity to avoid injustice to Jews accused of crimes. It would seem hardly applicable in today’s western Diaspora given the enlightened nature of the justice system. I wonder however that as the animus grows between the that system in Israel and its haredi community if Agudah will see fit to find new and expanded application to this archaic law in Israel.