As one of the foremost moral philosophers of our day, Adam Carolla, is wont to say, “We, as a society, could stand a little more judging.” Indeed, in 21st-cenutry Western society, we have reached a bizarre point with our judging. We no longer judge people based on ethnicity, creed, gender or sexual orientation, but we do judge people who appear to do so. We no longer judge our politicians for their peccadilloes, but we do judge their attire, athleticism, humor and humility. And we no longer judge parents for their ability to keep their children safe, but we do judge them for their ability to keep their children smiling. Just try raising your voice (or, God forbid, your hand) against your child in public, regardless of how dangerous the child’s actions may have just been, and see if you escape judgment.
This paradox makes it hard to digest the reactions to twin tragedies from earlier this week, infants who died after being left for 6 hours in parked cars by their parents. A similar incident happened earlier this month. To put this in perspective, since 2008, there have been more than 200 cases of young children found left in vehicles in Israel, including 188 injuries and 12 fatalities. In the United States, 12 is the annual average death toll. For comparison, America has 40 times the population, so per capita, this tragedy is about eight times (787%) as frequent in Israel.
Nevertheless, the responses, at least the ones I have seen, seem to share one guiding principle: don’t judge. Numerous people have sent me the link to Gene Weingartern’s Pulitzer Prize-winning piece on this phenomenen, Fatal Distraction (2009). A few days ago on this site, Sarah Tuttle-Singer, posted “What kind of mom forgets her baby? This Mom,” which has been recommended 10,000 times. Later, Susie Mayerfeld added her voice to the chorus with “What is Wrong With Us?” Apparently, it’s the judging, which she mentions 14 times in an 800-word post.
I, for one, respectfully disagree. I am haunted by the thought of the agony in which those children died and others like them languished; of the suffering shared by their families; of the guilt felt by those parents who, in attempting to take care of their children, made this fatal error.
But a fatal error it is. It is not force majeure, an act of God, a bolt of lightning from a cloudless sky. That would be an image I still cannot shake, of something I never saw, but which was shared in one of my wife’s support groups, the story of a new father holding his infant (conceived after years of infertility) who suffered a sudden heart attack and collapsed on his child. He survived; the baby did not. Forgotten Baby Syndrome should not be lumped in with that case, or with SIDS, or with pediatric cancer. It is also not abuse or neglect, criminal offenses for which we prosecute perpetrators, even though they may have suffered trauma or be suffering from addiction. No, FBS lies in between these two spheres, and it is ludicrous to subsume it under either.
Now, where did I get such a crazy idea? As you might expect from a rabbi, I got it from the Torah. Consider the Mishna (Bava Metzia 7:8):
There are four watchers: a volunteer, a borrower, a hiree, and a renter. A volunteer swears for everything. A borrower pays for everything. A hiree or a renter swears concerning an animal that was injured, captured, or that perished; but pays for loss or theft.
As the Talmud explains (ad loc. 93 ff), there is a basic responsibility of all guardians to avoid peshia, negligence; ones, an overwhelming force, is the highest level of liability. However, most of us live in the intermediate realm, in between peshia and ones, dealing with unexpected but not unimaginable challenges.
This also carries over into the realm of the Temple; one is required to bring a sin-offering if, and only if, one may be categorized as a shogeg, an inadvertent sinner. The entire tractate of Keritot is dedicated to defining this category; gross negligence puts one in the category of willfulness, while force majeure puts one in the category of ones.
Finally, we may turn to this week’s Torah portion, in which Moses separates three cities of refuge (Deut. 4:42):
There may flee a killer who killed his fellow unknowingly, without having hated him previously; he may flee to one of these cities and live.
As noted in Num. 35 and Josh. 20, the cities of refuge are designed for the shogeg. Indeed, the second chapter of tractate Makkot is dedicated to defining this status, splitting the difference between murder and tragic acts of God.
The point is that, from a Jewish perspective, we do judge. There is a gray area between legal liability and total innocence.
But surely there’s nothing to gain by judging now? Isn’t it sheer vindictiveness to discuss it in these terms?
No, there is something to be gained: the lives of innocents. Judging, as a society, has helped us change attitudes towards smoking around children, drunk driving, child abuse and sexual abuse. Perhaps we can do the same here, making it socially unacceptable to leave one’s baby (or pet, but that’s a discussion for another day) in a parked car for any length of time. Either you’re in the car with your child, or your door (or gas cap) is open. We can change, but not if we’re afraid to judge.
I welcome your comments on this matter, but I would appreciate it if you leave my 2 sons (aged 6 years and 6 months respectively) out of it.