Response to Canonist's "Importance of Weighing Evidence"

Steven I. Weiss of Canonist e-mailed me in response to my previous post. I wrote a short response to him, which inspired him to write another, longer e-mail which he also posted. I didn't notice the post until a few minutes ago, but here is the response I sent him, with a few points removed as they are not relevant.

Well, acceptance of claims is a big deal. The heart of the abuse problem, as one of those extremely few rabbis who does something about it will tell you, is that every rabbi has his defenders in spite of overwhelming evidence, and that the evidence of abuse is not sufficiently aired or accepted so as to prevent future abuses.

True.

The fight of the past decade or so between advocates and the community that enables abusers has rested most profoundly on this point: of the first allegation not being enough; of repeated similar allegations not being enough; of assertions that even if the claims are true, technically there's no problem with what's alleged on specific halachic grounds (with statements entirely similar to that attributed to R' Pinchas Scheinberg being a very common theme); of the rabbis and advocates pushing the issue having their own credibility called into question or being sufficiently blackmailed/leaned on that they choose to back off; and throughout all of it, the rest of the community throwing up its hands saying "I don't know."

The halachic argument is sickening; the blackmail just as bad. But the allegations alone should not be accepted as truth.

But far more importat than anything Gil Student suggested is an articulation of what circumstances would make an allegation of abuse accepted, and why in each specific case he and everyone else finds the allegations credible or not.

That’s the point, though. There’s a middle ground: It’s not a matter of ‘either it’s true or not’ and you have to pick one right away. I wrote in a comment when someone made a similar argument: “I think that's the mistake many are making. There is a choice between acceptance and denial. Not accepting the claims outright is not denial, and is not putting pressure on the accuser to be quiet. It's saying: "Wow. That's terrible. Let's investigate and prove this is true before we just accept it at face value."”

David Framowitz signed a lawsuit stating the claims laid out in the New York Magazine article, which comes on penalty of perjury. He was joined by two as-yet-unnamed individuals in filing suit who face similar penalties of perjury if their claims are found to be false, all while being counselled by a lawyer known for filing judicious claims in similar cases. And their story was reported out by an investigative reporter of unquestioned credibility at a news publication that has never retracted a major investigative story and has high standards for fact-checking.

I am not particularly familiar with the New York Magazine, but I was unimpressed with many of the assertions in the article. They seemed to have an unfounded bias and made claims that had no basis (Orthodox Jewry’s attitude towards sex leads to greater incidences, there are more cases in the OJ community, etc. – no statistics to prove it, merely opinions, but it was stated as near-fact). And again, that someone is willing to risk perjury charges does not mean they are telling the truth. It means there is reason to believe them (and from people I’ve spoken to who are closer to it I have more reason to believe this case specifically), but it does not mean that we should accept such allegations as fact.

The charges are at least credible enough to warrant suspension until they reach a resolution, by any reasonable standard in America generally.

Absolutely.

Student doesn't think it's enough to go on, but the only reason why is because he doesn't think signed affidavits and an investigative report are credible enough to warrant action; what he can't tell us is what *would* be credible enough, and why any Jewish institutional apparatus would be capable of producing a more credible account.

I don’t think that’s what he’s saying at all – he’s saying don’t accept it as factual truth and assume guilt, but he’s not saying that all the necessary precautions shouldn’t be taken. My guess is if you’d ask him, he would agree that (for example) immediate leave should be given.

You can't just say "I don't know," and sit on your hands. You have to honestly look at and sort out the claims, and explain precisely why you think they aren't credible enough, and put yourself in a position to be contested on those points.

And the reverse as well: At this point, it’s a ‘he said he said’ match. We have no way of determining which story is true and which is not, though we must act in terms of the children as if it is true. You have to explain precisely why it *is* credible enough, and that the person signed a court document simply isn’t enough to convict.

Baruch Lanner was convicted in the proverbial court of public opinion by the New York Jewish Week well before it was at all clear that any law enforcement agent could even put together an indictment and then a conviction. If no indictment had come forward, it would still be our responsibility to keep Lanner out of the rabbinate. And there have been too many times when I've had a conversation with some communal leader who really didn't think Lanner had done anything wrong -- and even a few who in recent months have told me they were under the impression Lanner had never been found guilty!

I doubt that Student could reasonably explain why the Jewish Week expose should be considered so much more credible than the New York Magazine story, especially given that the latter would be considered more credible by most objective observers as it comes with a sworn statement.

That’s a good question, though my *guess* is his opinion would be that the Jewish Week would take more care not to make allegations without reasonable basis. But the question is better than the answer.

Mordecai Tendler has yet to have the charges of sexual exploitation against him aired, reviewed, and determined by any Jewish organization, as the RCA proved unable to produce a result without Tendler's participation, which speaks to the same basic element that occurs with each accusation of abuse: the voluntary participation required for rabbinic determination will always keep these cases from being examined properly by a communal organization, and there will almost always be enough rabbinic allies to protect the rabbi from an unequivocal determination.

If it weren't for the Jewish Week expose, Baruch Lanner would likely never have been exposed, and were it not for the paper's follow-up reporting, he would have been allowed to complete some form of therapy and return to education. Even with the Jewish Week's reporting, the overwhelming quantity of enablers remain in their positions, unscrutinized.

True.

Would Student let his kids be in Kolko's class? Allow his wife to be counselled by Tendler? Allow Lanner to oversee his kids' youth group meetings? My bet is that he wouldn't, despite his protestations about not knowing. And all that does is protect his family from the problem while essentially advocating for everyone else's to be vulnerable. And the same goes for anyone else in the "I don't know" camp.

That goes back to what I said before: There is a middle ground, where action is taken but guilt not presumed.

If you want to say there's not enough there, you have to acknowledge what it does have and very specifically why it's not enough, and exactly what it would take to get you turned around on the subject.

Something more than just allegations. Unfortunately, cases such as this are difficult: It’s hard to get proof, and it’s often a case of one person’s word against the other person’s. This makes people want to lean sympathetically to the alleged victims, and rightfully so; but this shouldn’t be done at the expense of the accused, who may be innocent (and whose innocence we are supposed to presume). The more victims, the more believable, which is (IMO) proper; and we must do all we can to investigate claims and prosecute those who are guilty. But we must not presume guilt, or we open up the door to easy false allegations which destroy lives.

Overall, the quantity of false claims of this type made -- of multiple victims against a single person they all knew -- is profoundly small in America generally, and to claim that of all people Orthodox Jews are overzealous in pursuing abuse claims is profoundly absurd. This is yet more so when it comes to claims of pedophilia. Even the baseline of rape charges made against people unkown to the accuser comes out to 70% credible claims. There's a reason why Dorothy Rabinowitz's book has so few cases .The idea that the question of protecting rabbis from false claims is anywhere near the size of the problem of keeping abusive rabbis away is so far from reality as to suggest a lack of engagement with the general evidence of abuse.

Nobody is saying it’s close. But we can’t just swing from one extreme to the other, or all we do is reverse the problem. What happens when claims are believed too easily? Let’s say 3 straight claims turn out to be false, once the door has been opened wide to any claims: Then what? People will simply stop believing those who are telling the truth, and you’ve created a worse problem than before. At least coverups can be broken at some point; but if you’re shouting and everyone’s ignoring you, you’re stuck.

And to suggest that claims like those made by David Framowitz are not sufficiently credible without a very clear explanation why is to suggest a lack of engagement with the evidence of the Kolko case and a serious weighing of its claims.

What do you mean? His allegations should be accepted simply because he brought it to court?

Without this kind of individual vigilance, inspection and open debate among community members, none of the changes Student proposes mean anything, because they'll always be able to be invalidated by claims of "I just don't know" from the rabbinate and the soon-to-be-abused-again populace.

I don’t think anyone disagrees with that, particularly Gil (or myself).