Tuesday, May 23, 2006

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.
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.
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.
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).


  1. What I posted to Canonist:

    I agree that the threshold for suspending and investigating is much lower than proof. Many not every accusation requires suspension but most do.

    I’m not in a position to suspend the teacher under question nor to investigate him. His employer is certainly obligated to spend the time and money investigating him. And anyone who directly or indirectly supports him or his employer should make it their business to be involved with such an investigation or at least to know that it is ongoing and conducted properly.

    But I have no reason to spend the time and money on it and therefore have to reserve judgment.

    There is a concept of “le-meichash ba’ei” — even if you don’t believe it you have to be cautious in case it is true. That is why I would not allow my sons in his class until this matter is conclusively resolved.


    What happened with Lanner was that those who support NCSY demanded a suspension and investigation. That is entirely consistent with what I think should occur.

  2. Ezzie - You're being a bit dense about what I'm writing, and allowing for a rather broad and forgiving interpretation of what Student has written.
    1) I never claim there's no middle ground, but that middle ground must be more than "I don't know." Saying "the allegations are credible enough to warrant suspension, with permanent removal or reinstatement coming with a verdict" is at least doing something. Saying "I don't know" is refusing to engage with the evidence.
    2) The idea that New York Magazine has a bias toward representing Orthodox rabbis as abusers is unfounded and even if we were to take as a given that it does, that bias would have to outweigh its desire to avoid libel suits and an immense diminution of its credibility. Let me offer a rebuke to you that it's similarly insufficient to say "I am not particularly familiar with the New York Magazine." Get particularly familiar!
    3) Yes, the willingness to risk perjury charges does not automatically mean that plaintiffs are telling the truth. But there's a lot to this story. There are three individual plaintiffs who've put their freedoms and assets on the line (because they leave themselves wide open for prosecution and a countersuit if the charges prove illegitimate, as well as a pretty automatic order to pay for the other side's legal bills) to make specific claims about what happened to them, one of whom is named. There's a lawyer who has developed a quality reputation for investigating and then pursuing just such cases who's put himself on the line. There's an investigative journalist backed by a major American publication who investigated the claims by speaking to a wide variety of sources and ensuring that the factual record supported them. And throughout all of this, Kolko alongside the others named (Margulies, etc.) has had ample opportunity to respond and chosen not to.
    4) You go farther than Student did in saying "there is reason to believe them." Good. Now you need to articulate what would change your mind in order to believe them. What if the lawsuits are dismissed on a technicality? What if Kolko flees the country? What if any of the countless results other than a clear verdict one way or the other that happens all the time in these cases occurs? The evidence from point 3 is pretty massive, and you must as well indicate what at all could lead you to assert that this evidence itself could somehow be sufficiently overturned to allow Kolko back as an educator.
    4) You can't speak for Student to say "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." If he meant that, he could say it.
    5) It's not a "he said he said" match. There's no response from Kolko, no response from Margulies, no response from Torah Temimah. And you also have to ask exactly what determinations a court would be asked to make in this case: there will almost certainly be no physical evidence, and it will almost surely rely wholly on the testimony of the plaintiffs coupled with evidence of opportunity and a lack of specifically contravening evidence. That's not very distant from where we're at now.
    6) The Jewish Week is almost certainly less careful about making allegations than New York Magazine. This speaks to a pro-Jewish bias in evaluating evidence that is utterly baseless and likely the opposite of what it should be.
    7) I don't see Student or you "lean[ing] sympathetically to the alleged victims, and rightfully so." In this latest post, you've come part of that way, in saying that "there is reason to believe them." And the mid-point stonewalling of "I don't know" only serves to reinforce a status quo that is already biased against the victims and in favor of the rabbis.
    8) You don't respond to my point about Student not telling us "what *would* be credible enough, and why any Jewish institutional apparatus would be capable of producing a more credible account." This aims at the heart of Student's post: if we imagine that everything from his post comes to fruition (which, as I say in my post, shows a lack of engagement with the track record of advocating against abuse in the Jewish, and particularly Orthodox Jewish, community) we're still left with claims of abuse that are no more credible than we have in, say, the Kolko case. So the school administration receives some allegations, interviews students, attempts to interview the rabbi accused, and fires him. Now another school wants to hire him: why is the record of evidence any more credible in this hypothetical case than that we already have in the Kolko case? Simply put, it's not.
    9) Adopting a position of not leaving one's kids in a rabbi's hands, while saying "I don't know" is not taking a middle ground. It's taking one position for yourself and your family, and another for the community.
    10) "But we must not presume guilt, or we open up the door to easy false allegations which destroy lives." When it was just a bunch of anonymous allegations on an anonymous blog, sure. But the mounting evidence of the past month or so has plainly put us in the position of demanding at the very least a suspension until a resolution of the lawsuits. And we need to be prepared, as I've suggested above, for a variety of results that do not include a clear verdict, either way.
    11) "Nobody is saying it's close." Presumably, then you have a different reading than I do of Student's statement that "Many charges are false but some are true." As to "swing[ing] from one extreme to the other," that's why I'm saying there needs to be a real confrontation with the evidence. It's a lot of relatively credible evidence, given what we know about all the elements (for those who do know about all the elements, and how close to impossible it is that all these elements would cohere in an abuse case like this to produce a false result; a broader engagement with abuse and clergy abuse in general, and the advocacy about it in the Jewish community in the past couple decades, would almost surely produce a different set of thoughts than Student's, for reasons I've outlined here and previously).
    12) "At least coverups can be broken at some point; but if you’re shouting and everyone’s ignoring you, you’re stuck." Saying "I don't know" and nothing else is ignoring the claims.
    13) "His allegations should be accepted simply because he brought it to court?" No, I mean that one has to engage with the evidence available, and sort it out according to one's presumptions of relative credibility, and be open to being challenged on those points, which is what I wrote. I have no idea how you drew your inference from the passage you quote just above it.
    14) "I don’t think anyone disagrees with that, particularly Gil (or myself)." I don't see where there's any evidence that Student agrees with what I wrote, that there's any need to seriously engage Framowitz's claims at this point, or that investigative reporting should be part of our evaluation of a rabbi's suitability to serve.

  3. 1) There's two seperate aspects: One aspect regarding the actions needed to be taken, and one regarding the allegations. For the former, we pretend that the allegations are true; for the latter, the proper approach *is* "I don't know."

    2) As someone noted on your blog, you yourself agreed it was a shoddy article. I don't know if the NYM is biased towards rabbis, and it doesn't matter; in *this* article, it came across that way. As a commented by Gil noted, Kolker was writing what he called an "advocacy journalism" piece - that means it is purposely meant to draw sympathy for the alleged victim while essentially ignoring the other side. That's fine, but we should recognize that the article is meant to advocate, not report.

    3) Granted. However, the lawyer will pick up a number of clients well before this finishes simply by taking on this (high-profile in the community) case. The risk of perjury (as a commenter by you noted) is slim-to-none, even if he was lying outright. It's not a slam-dunk by any means.

    4) He did so in the comments by you.

    5) The case is about 'he said he said'. And yes, that's why such cases are difficult to prove; however, until they are cross-examined and the like, there is not much to go on.

    6) It makes sense for a Jewish newspaper, especially one connected to the Orthodox world, to be more careful about making responsible allegations about Jews, particularly when lashon hara may cost them chunks of readership.

    7) I completely disagree. Read other posts, and read what Gil wrote about what should be done if they are guilty. Not siding completely with them against the rabbis is not the same as siding with the rabbis. I take no sides, that is correct. I am not required to believe the victims to show them sympathy.

    8) I would go with the same standards as required (say) for a conviction. I'm not sure what you're asking, really: Would I hire someone who was accused and was fired, and there is reason to believe he is guilty? No, that's absurd.

    9) Not at all. Again, you're not separating the two parts of this discussion: Responses and guilt.

    10) A suspension, yes. Presumption of guilt, no. Again, you're combining the two.

    11) Okay.

    12) How? It's waiting for further information. This is a case that is going to court - it's not getting ignored in any way. Shouting "guilty guilty!" is presuming guilt.

    13) You imply that Framowitz's allegations are already "sufficiently credible", which implies acceptance, [presumably] based solely on the fact that he brought the case to court. I'm not sure how else to read that passage.

    14) Your statement there emphasized: Without this kind of individual vigilance, inspection and open debate among community members, none of the changes Student proposes mean anything. It was to this I (and I believe Gil, but you can ask him) would agree.