Abuse: Halachic and Ethical Dilemmas

Consider this scenario

The family of a victim of sexual abuse approaches the abuser and their family. The family of the abused has not yet reported the said abuse to the police; instead they initially confront the abused and their family. The situation becomes complicated and lawyers are brought in. Lawyers for both sides settle on an agreement involving some “compensation.” In return the abuser agrees to plead guilty to a somewhat lesser offence without recording a conviction.

The lawyer of the abuser is under no doubt that her client is a dangerous pedophile. She had a choice. She could have refused to take the case. In the end, whether she was the lawyer who accepted the brief, or a lawyer who turned the case down, she is unable to remove thoughts from her head. She is convinced that the abuser is a dangerous person and that he may continue on his misadventure and sexually abuse others. She is bound by client confidentiality; we understand that. 

My question relates to the Halachic imperative. Is a lawyer/person in such a case permitted to remain silent? Is there not a real problem of contravening a Torah command:

לא תעמוד על דם רעך

Unfortunately, the abuser commits further crimes. Is the lawyer somehow responsible? If they are not directly responsible, are they indirectly culpable?  Later victims, upon learning that a lawyer knew about the abuse and stayed silent, decide to summons the lawyer to a בית דין. They seek at least financial compensation for the years of medical treatment and the lost opportunity that a victim must carry all their life.

  • Is the lawyer permitted to stay silent from a Jewish point of view?
  • If the lawyer isn’t culpable from a Western legal point of view, how should the family of the lawyer respond to their vilification by elements of the community who are disgusted that their mother didn’t pass on her very real fears to the authorities?

Author: pitputim

I'm a computer science professor in Melbourne, Australia. I skylark as the band leader/singer for the Schnapps band. My high schooling was in Chabad and I continued at Yeshivat Kerem B'Yavneh in Israel.

21 thoughts on “Abuse: Halachic and Ethical Dilemmas”

  1. Lawyers defend people they know are guilty because they believe each person has a right to a legal defense. It is their job to defend their clients to the best of their ability and if possible to keep them out of jail. If they re-offend, it is not their fault, nor is the lawyer culpable. Their role is not to rehabilitate the client. These defense lawyers play a vital role in a free society. Imagine if each person did not have a right to legal representation. What kind of society would we have? It would be one in which no one would have the right to a just and fair trial. Incidentally, this issue is the same if the client is a pedophile, a thief, a con man, a murderer or any other type of criminal. What would halacha say? I am sure there would be several controversial opinions on this subject but, it seems obvious that Torah places a high value on fairness..

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      1. I don’t know enough halacha to say for certain but, I cannot imagine that a Beis Din would determine that a lawyer is responsible for their client’s further crimes. The lawyer (if she took the case) is following the halacha of following the laws of the land by maintaining their confidentiality pledge. If she refused to take the case and the client is not hers then perhaps she is not legally bound by confidentiality. Then perhaps she would be legally free to and also obligated halachically to speak out. As far as the family is concerned, she is their mother, wife, sister, etc and families should be loyal and stick together. They ought to try to make people understand her difficult position and put the blame where it justly belongs and that is on the criminal himself. Just thinking out loud here.

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        1. Are you permitted to follow the laws of the land if it implies that as a result you may be the indirect reason why others are harmed in the future?
          Perhaps it’s better that you get punished for the “misdemeanour” of informing the police if that means you save others from harm?

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          1. It would be interesting to hear a halachic authority address the issue of when and if one is obligated to break the law of the land if it means helping another Jew from harm. For a lawyer breaking confidentiality could mean losing their profession and livelihood. How many people would have the self sacrifice to put all that on the line? And are they halachically obligated to do so? Heady stuff for Rabbonim to work out and each case would be unique.

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  2. I would hope that the agreement described is illegal in the given jurisdiction as it involves payment to prevent reporting of criminal activity.I have seen agreements like this in my research of abuse cases. I believe they are entirely unenforceable by the courts and contrary to public policy. Laws should be passed to prevent lawyers from being involved in drafting or executing such obscene agreements. Lawyers may be bound by professional obligations but those obligations do not reflect the law of the land. In other words a lawyer breaching confidentiality in the case described may face censure from his/her peers but not imprisonment. So there is no conflict here with the law of the land, Halacha prevails.

    Halachically,
    לא תעמוד על דם רעך
    I believe a lawyer in this situation would have to at minimum make an anonymous report to the proper authorities (police, CFS) as to the identity of the child molester who is a rodef. I believe it appropriate also to send anonymous fliers/mailers to neighbors/community leaders and anyone arould the molester.

    An analogous sitution is when Moshe Rabeinu violated the law of the land to protect a fellow jew from being beaten to death. He attempted to do so anonymously. He looked to the right and then to the left to ensure no one was around and then acted anonymously.

    I see no basis in halacha or basic morality where profession and livelihood supercedes the protection of children. The very idea is abhorant.

    The lawyer may not be culpible or financially responsible at a beis din (and likely not at secular law) but hopefully a lawyer who acts in the manner described and takes no action to protect children is treated by the community accordingly.

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  3. >Lawyers defend people they know are guilty because they believe each person has a right to a
    >legal defense. It is their job to defend their clients to the best of their ability and if possible to
    >keep them out of jail.

    No. Lawyers who know their clients are guilty should advise their client to seek new representation. Most jurisdictions require that lawyers act with integrity to the courts. That means that they cannot put false testimony or attempt to put false motivation of witnesses and accusers to the court when they know their client’s position and testimony is false. Yes they can force the state to make its case. No they cannot put their client on the stand if he/she will lie. The lawyer’s job is to get the best deal for their client, sometimes that will involve jail time.

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    1. In an ideal world lawyers only represent clients whom they feel are not guilty but, we all know in this is often not the case. And what about cases in which their guilt is unclear? Should the lawyer refuse to represent them? Even guilty people have a right to a legal defense. Regardless of how immoral it may seem, human nature is such that most people would not jeopardise their standing in their own profession. Anonymous disclosure could solve this buy protecting the potential victims and the lawyer simultaneously but, does not seem to be an option here because in the scenario Isaac presents the entire community is aware of the situation..

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      1. SS does not appear to have read my comments carefully. There is a big difference between knowing and simply believing your client is guilty.

        In the example here, the predator continues to prey. Clearly, the entire community was not aware of the menace nor were the appropriate authorities.

        There is no sheila necessary here. There is a halachic and moral imperitive to expose the predator who is a rodef and save lives. The example of Moshe Rabbeinu is clearly analagous.

        The lawyer in your example did nothing and children were harmed. The lawyer had options that she could have taken she stood by silently. If society acted this way in general, it would crumble. Even if there is no consequence to the lawyer from a bais din or the secular authorities (and in your example I see no halachic or secular legal basis to go after the lawyer), Halacha is not enough. The Beit Hamikdash was destroyed because the Jewish people kept the strict law when they should have acted “lifnim mishurat hadin” beyond the letter of the law. People like this lawyer are our destruction.

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        1. [Hat tip to Graham]

          Crimes Act 1958 – SECT 326

          Concealing offences for benefit

          326. Concealing offences for benefit

          (1) Where a person has committed a serious indictable offence, any other
          person who, knowing or believing that the offence, or some other serious
          indictable offence, has been committed and that he has information which might
          be of material assistance in securing the prosecution or conviction of an
          offender for it, accepts any benefit for not disclosing that information shall
          be guilty of a summary offence and liable to level 8 imprisonment (1 year
          maximum).

          (2) Notwithstanding anything to the contrary in subsection (1), it is no
          offence against this section to fail to disclose the commission of any offence
          against-

          (a) Division 2 of Part I; or

          (b) subdivision (1), (2) or (3) of Division 3 of Part I-

          if the only benefit accepted in return for failing to disclose the commission
          of the offence is the making good of any loss or injury caused by its
          commission or the making of reasonable compensation for any such loss or
          injury.

          (3) For the purposes of this section a person shall be deemed to accept a
          benefit if he accepts or agrees to accept any benefit or advantage, or the
          promise of any benefit or advantage, either to himself or to another, whether
          or not the benefit or advantage is in money or money’s worth.

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    2. Jewishwhistleblower is right, presuming that we’re talking about actual facts or a client’s admission. A lawyer can’t represent a client who says “I stole the money, but I want to plead not guilty”. On the other hand, a lawyer may strongly suspect that their client is guilty and have no conflict in representing him or her – because it’s not the lawyer’s job to decide if the client is guilty.

      As far as Isaac’s first question goes, if we leave secular law or professional ethics out of it then there’s only halacha, and the answer given by rabbonim seems to be “ask a shaila“.

      As for the second question, I think the lawyer should tell her family that she was under the instructions of the victim’s family and doing the best she could for the victim. If she had deviated from their instructions she wouldn’t have been able to help him or, potentially, other victims in the same situation. Weighed against that is her fear that the abuser would act again – but the only reason she knew about those attacks is that the victim’s family trusted her. Without that trust victims wouldn’t come forth at all, and you’d have an even worse situation.

      I don’t know if this is an entirely satisfying answer given that you say the abuser went on to commit further crimes, but none of us act with the benefit of hindsight.

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      1. It is also the case that most unfortunately do commit further crimes. This is precisely the issue. The family of the lawyer are now in a terrible situation. How do they extricate themselves from an accusative community?

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        1. If the lawyer asks a sheilah or advises her family of the circumstances she has violated her professional ethics.

          But again, I see no basis in halacha or basic morality where profession and livelihood supercedes the protection of children from a predator. The very idea is abhorant.

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        2. I suspect there’s not much she can do to make people think better of her. I don’t know if she was wrong or even naive, but she did what she did. You can’t always escape the consequences of your actions.

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    1. I’ve not seen a “right” to legal representation per se. I believe a Dayan can make the decision not to allow any legal representation and to simply listen to the two parties and witnesses.

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  4. “Is the lawyer permitted to stay silent from a Jewish point of view?”

    The answer to your question is in this article:

    http://www.zumodrive.com/share/ge5eOWU3Mj
    ___________________

    Lawyers defend people not because they believe each person has a right to a legal defense, and prostitutes don’t do their job as a service to the community. they do it because there is money to be made from they do.

    “I don’t know enough Halacha to say for certain but, I cannot imagine that a Beis Din would determine that a lawyer is responsible for their client’s further crimes”.

    According to Halacha a person is not responsible for things that he didn’t do.

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    1. If someone is oiver on Lifne Iver(e.g., he knowingly fed “Shimon” non Kosher food), would he not also be responsible for Shimon’s transgression?

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