Rav Eitam Henkin hy"d, in response to an article about anulling marriage through mekach ta'us.

  Rav Eitam Henkin Kiddushei Ta'Us

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Rav Bass' response to Rav Henkin

   -- תחומין -- תגובת הרב בס by 

AJOP:Convention Get your private meeting with Rav Shmuel Kaminetsky - What would you like to discuss?

Update

Dear Chaverim,

After difficult deliberations and very careful consideration we have made a prudent decision in the interest of safety for all our participants to reschedule the AJOP Convention for the following weekend,January 31 - February 2, 2016.  

WE WILL HAVE A CONVENTION IY"H NEXT WEEK.

This decision was reached based on the impending blizzard throughout the Mid-Atlantic and Northeastern United States. Winter Storm Jonas is expected to hit Friday night, and continue through Sunday morning, with a total expected accumulation of 24"-30" of snow.

Dr. Marc Shapiro The Agunah Problem, Part 1; Incarceration and Free Speech- Aguna only if husband refuses to give Get after ordered by Beis Din

This is an important scholarly article and clearly indicates that much of the debate today about aguna revolves around whether one is guided primarily by halacha or by current societal values

Seforim Blog  

[...]

As for the problem of women not being able to get a divorce because the man refuses, there are some important points that must be made which I don’t think everyone is aware of. Today, many people assume that a woman who wants out of a marriage, for whatever reason, has that right. After all, a woman is not a prisoner and a husband should not force her to be married to him if she doesn’t want to. However, this viewpoint is very much a modern approach.[6] If you look at the standard halakhic sources you will find that there is no obligation for a man to give his wife a divorce just because she wants it. Ever since R. Gershom, the same situation is also found in reverse, namely, a husband is not allowed to divorce his wife against her will just because he no longer wishes to be married to her. This approach to ending marriage is very much in line with how secular society use to operate before the introduction of no fault divorce.

Significantly, Maimonides does require the husband to give his wife a divorce if she says she no longer wishes to live with him.[7] R. Kafih elaborates on the wisdom of Maimonides’ position, and here are some of his important words[8]: [...]

However, it is the view in opposition to Maimonides that became the standard position, and it is this view that is recorded in the Shulhan Arukh[9] and followed by batei din. According to this approach, even if a woman says she can no longer live with her husband, he is not obligated to give her a get. What this can lead to is most vividly illustrated by the movie Gett, available here to watch for free for Amazon Prime members.

I have been told that the Beth Din of America operates on the principle that if one of the parties wants a divorce, for whatever reason, and there is no chance for reconciliation, then the Beit Din will instruct the other spouse to comply. But this is not how many other batei din operate. We have to be honest and acknowledge that the problem many women face is not because the dayanim are cruel or anti-women, but that it is Jewish law itself, or rather an interpretation of Jewish law, that is preventing them from receiving their divorces.

I feel it is necessary to stress this since we can now better appreciate why certain rabbis have attempted to find solutions within Jewish law to the contemporary agunah problem. Many on the right don’t see why this is necessary and why batei din cannot just follow Jewish law as it has operated until now instead of looking for “solutions”. These people might not realize the difficult situation this puts women in, a situation that might have been tolerable years ago but for more and more Orthodox Jews that is no longer the case. On the other hand, many on the left think that it is a simple matter to solve the agunah problem, and that it is just cruel and insensitive rabbis preventing this. This too is a distortion as the rabbis’ hands are often tied by halakhah, and this remains the case no matter how much of a “rabbinic will” they have.

Let me illustrate what I am talking about. As an example of how sentiments have changed over the centuries, here is a passage from R. Hayyim Benveniste that I have cited in two previous posts. In Keneset ha-Gedolah, Even ha-Ezer 154, Hagahot Beit Yosef no. 59, in discussing when we can force a husband to give a divorce, R. Benveniste writes:

ובעל משפט צדק ח"א סי' נ"ט כתב דאפי' רודף אחריה בסכין להכותה אין כופין אותו לגרש ואפי' לו' לו שחייב להוציא

Can anyone imagine a posek, from even the most right-wing community, advocating such a viewpoint today? The logic behind this position, as can be seen by examining the original responsum in Mishpat Tzedek, is that even if the man is running after her with the knife, we don’t assume that he will actually kill her. He must be doing it just to scare her, and that is not enough of a reason to force him to divorce her, or even to tell him that he is obligated to do so. And if we are wrong, and he really does kill her? I guess the reply would be that this isn’t anything we could have anticipated even if we saw the knife in his hand. This example shows how some poskim from prior generations made it extremely difficult for women to receive a divorce.

Let me give a few examples from more recent years. In 1967 the Supreme Rabbinic Court, consisting of Rabbis Yitzhak Nissim, Betzalel Zolty, and Yosef Shalom Elyashiv, concluded as follows.[10]

 

כשם שאין כופין בעל לגרש את אשתו בגלל טענת מאיס עלי, כך אין מחייבין את הבעל לגרש עקב טענה זו

This approach, which repeats itself again and again, completely undermines the assumption so many have that a man is obligated to give his wife a get when she no longer wishes to be married to him.

Look again at the conclusion of Rabbis Nissim, Zolty and Elyashiv. It couldn’t be any clearer that this woman is not an agunah. Their conclusion also contradicts the definition of agunah provided by JOFA (see here p. 22).

AGUNAH (pl: AGUNOT) A married woman who may not remarry because the death of her husband has not been verified or because (for whatever reason) she is unable to obtain a get from her husband.

It is simply not true that a woman unable to obtain a get from her husband “for whatever reason” is an agunah. I wish it were different, and I wish Maimonides’ ruling carried the day. But that is not the case, which means that an agunah has to be defined as one whose husband refuses to issue a get after ordered to do so by a beit din. [...]

For another noteworthy example, here is the conclusion of a 1953 Jerusalem Beit Din decision, by the dayanim R. Jacob Ades, R. Bezalel Zolty, and R. Yosef Shalom Elyashiv:[13]

החשש כי האשה תצא לתרבות רעה אם הבעל לא יתן לה גט, אינו משמש יסוד לחייב את הבעל לתת לה גט

This decision from the Jerusalem Beit Din has another passage that is very troubling to me. I find it hard to believe that any Modern Orthodox beit din could conclude in this fashion, and it is precisely attitudes such as this that convinced women that the rabbinic courts in Israel were stacked against them.[14]

הא דברועה זונות יש לחייבו לתת לה גט, היינו היכא שהאשה היתה רוצה לחיות אתו, אלמלא שהבעל הוא רועה זונות, במקרה זה יש מקום לחייבו לגרשה כשהיא דורשת גט, משום שרועה זונות יאבד הון וסופו לא יהיה בידו לפרנסה, וגם משום שעצם היותו רועה זונות נוגע לה שהוא גורע מעונתה, וגם יש חשש של סכנה לחיות אתו, אבל במקרה שהאשה מורדת בבעלה ולא רוצה לחיות אתו בגלל איזו סבה שהיא, ואחרי זה נהיה הבעל רועה זונות אף שיש עבירה בידו, מכל מקום אין לחייבו משום זה לתת לה גט, כיון שהיא מורדת בו הרי הוא פטור ממזונותיה ושוב אין החשש שרועה זונות יאבד הון ולא יהיה בידו לפרנסה, וגם אין הטעם שברועה זונות הדבר נוגע לה שהוא גורע מעונתה וגם יש חשש סכנה לחיות אתו, דהלא היא מורדת בו ולא רוצה בכלל לחיות אתו.

 What is a woman supposed to do in a case like this? After learning that her husband frequented prostitutes she had even more reason not to want to return to him, and yet the beit din held that in such a case the husband did not have to give her a get since her initial reason for wanting to be divorced was something else. Again we see that a man can, if he chooses, prevent his wife from being free.[...]

I think people will be shocked to learn that a woman who wants to divorce her husband because he went to a prostitute is being told by the beit din that she must stay with him if he promises not to do it again. But this only illustrates that the so-called agunah problem is inherent to the halakhic system, which according to the dominant interpretation does not recognize that a woman should be able to exit a marriage if she feels she can no longer live with her husband. There are literally hundreds of examples in the responsa literature and beit din proceedings where a woman is told that even though she wants to be divorced, there is no obligation on her husband to give her a get. Isn’t this where poskim must put their efforts to see if changes can be made? What a woman will tolerate today is not necessarily the same thing as what the Sages and earlier poskim assumed, and this is a point that was already made by halakhic authorities in prior generations.[19]

To further illustrate my point, R. Joseph Karo states that even if a husband is beating his wife he can’t be forced to divorce her.[20] She will obviously live apart from him, but R. Karo does not accept the view of some earlier authorities that the husband can be forced to issue her a divorce. This means that the woman is what we would today call an agunah, but the problem we are facing is not just about an evil man but arises from the halakhah itself. As we have just seen, according to R. Karo it is the halakhah that prevents us from forcing a husband to divorce his wife, even if he beats her.

In this case, R. Moses Isserles strongly rejects R. Karo’s opinion and states that we can force a man beating his wife to divorce her.[21] The passage I have underlined is of particular significance regarding the point I made previously.[22]

ואיני רואה בזב דבריו כלל דכדאי הם הגאונים לסמוך עליהם כל שכן שהרמב"ן ומהר"מ הסכימו בתשובותיהן בענין הכאת אשתו והביאו ראיות ברורות לדבריהם גם הסברא מסכמת עמהן ומה שלא הוזכרו בדברי הפוסקים אפשר לומר שהיה פשוט בעיניהם וקל וחומר הוא מהאומר איני זן וכו'

R. Weinberg was asked about a man who was sent to jail for sexual abuse of young girls. Understandably, his wife wanted a divorce. The rabbi didn’t know what to do and therefore wrote to R. Weinberg. He mentions that he never had to deal with a case of sexual abuse and doesn't know how to relate to it from a Jewish law perspective. He also assumes that there was no actual sexual relations but only fondling.

R. Weinberg, relying on the Hakham Zvi, states that the husband cannot be forced to divorce his wife, since he was never warned and there was no testimony in a beit din. He also says that one cannot rely on testimony given in a secular court, and makes the valid point that during that time, the Nazi era, there was a great deal of anti-Semitism and pleasure in making the Jews look bad.

None of this could have been of much comfort to the woman. We have no idea about her relationship with her husband. She might have already suspected him of being a pervert, or when he was arrested it might have clarified certain things that she wondered about. She might have confronted him after the arrest and seeing his reaction to her questions she knew he was guilty. Whatever the case, she no longer wished to remain married to someone she believed to be a sexual abuser. R. Weinberg was as open-minded a posek as one could imagine, yet even he was of the opinion that the husband could not be compelled to divorce his wife.

Today, if someone accused of sexual abuse refused to issue his wife a get, rabbis in the United States would call for protests in front of his house. Yet R. Weinberg does not see this as warranted. I think one of the most difficult things for people to grasp in his responsum, and in that of the Hakham Zvi, is the need for the husband to be warned. We are not talking about sentencing him in a beit din, where warning is a technical requirement, but whether or not the woman wants to live with him any more. In the two cases we have just seen, the issues of concern to the wives are one man’s visits to a prostitute and the other’s sexual abuse of children. Neither wife cared if her husband was “warned” in beit din since the offense is the same to her either before or after the “warning”. [...]

Boy cuts off his own hand to atone for Pakastani preachers mistaken allegation of blasphemy

NY Times

Late one night, the imam Shabir Ahmad looked up from prayers at his mosque to see a 15-year-old boy approaching with a plate in his outstretched left hand. On it was the boy’s freshly severed right hand.

Mr. Ahmad did not hesitate. He fled the mosque and left the village, in eastern Punjab Province.

Earlier that night, Jan. 10, he had denounced the boy as a blasphemer, an accusation that in Pakistan can get a person killed — even when the accusation is false, as it was in this case.

The boy, Anwar Ali, the son of a poor laborer, had been attending an evening prayer gathering at the mosque in the village, Khanqah, when Mr. Ahmad asked for a show of hands of those who did not love the Prophet Muhammad. Thinking the cleric had asked for those who did love the prophet, Anwar’s hand shot up, according to witnesses and the boy’s family.

He realized his mistake when he saw that his was the only hand up, and he quickly put it down. But by then Mr. Ahmad was screaming “Blasphemer!” at him, along with many others in the crowd. “Don’t you love your prophet?” they called, as the boy fled in disgrace.

Anwar went home, found a sharp scythe and chopped off his right hand that same night. When he showed it to the cleric, he made clear it was an offering to absolve his perceived sin. [...]

Zurich rabbis condemn the harmful meddling of the Asra Kadisha regarding local cemetary

רבני ציריך במתקפה חסרת תקדים נגד אתרא קדישא הגורמים נזק רב בפעולותיהם הבלתי אחראיות - בתגובה לגל השמצות פרוע מצד אתרא קדישא * במכתבם כותבים הרבנים כי התערבות אתרא קדישא בנושא אין בה שום תועלת אלא רק נזק לשמירת קברי הקדמונים

בימים האחרונים עדים אנו לגל השמצות פרוע מצד אנשי אתרא קדישא נגד רבני העיר ציריך, וזאת בעקבות פעולותיהם השקולות והאחראיות בכל הנוגע להצלת בית הקברות העתיק בעיר ציריך בשווייץ.

פעלתני אתרא קדישא לא בוחלים בכל אמצעי בכדי להשמיץ את רבני העיר ציריך המכהנים בקודש ברבנות ציריך כבר עשרות בשנים, וכבר מנוסים בכל דרכי הפעולות והשתדלנות האחראית מול השלטונות, וגם בנוגע לבית הקברות העתיק בעיר העמידו רבני ציריך פיקוח מטעמם לוודא שלא יתחללו ח"ו מתי ישראל, אולם עסקני אתרא קדישא חרה להם שרבני העיר ציריך לא הסכימו לתת להם דריסת רגל בפיקוח על בית הקברות בציריך, ואשר על כן הכריזו מלחמה נגד רבני ציריך העומדים על משמר הדת וההלכה.

בזאת לא אמרו די, עסקני אתרא קדישא הכריזו היום על עצרת נגד רבני ציריך שתתקיים מול שגרירות ממשלת שווייץ בלונדון, ולשם כך הגיעו במיוחד להשתתף בעצרת הרב דוד שמידל יו"ר אתרא קדישא והרב משה דוד נידרמן יו"ר אתרא קדישא בארה"ב.

רבני העיר ציריך החליטו שלא לשתוק עוד מול ההשמצות הפרוע המתנהל מצד אתרא קדישא, ויצאו במתקפה חסרת תקדים נגד ארגון אתרא קדישא והפעולות הבלתי אחראיות הנעשות על ידו, שיכולות לגרום לנזק עצום לתועלת הענין.

במכתבם כותבים רבני ציריך שליט"א בלשון תקיפה וחריפה ביותר בענין בית הקברות בעיר: "הננו להודיע להציבור החשוב שבכל מה שנוגע להנ"ל באם ימצא שם עצמות הדבר עומד תחת פיקוחינו ע"י העסקנים החשובים דפה שיתנהל הכל כדת וכדין", רבני העיר מוסיפים ומבהירים במכתבם בדברים ברורים על הפעולות הבלתי אחראיות הנעשות על ידי אתרא קדישא: "ואחרי ישוב הדעת החלטנו שאין תועלת שיתערבו בענין זה עסקנים מבחוץ, ואדרבה זה יכול לגרום היזק".

על החתום באו הגאון הגדול רבי שאול ברייש שליט"א גאב"ד ציריך, הגאון החסיד רבי משה חיים שמרלר שליט"א גאב"ד מחזיקי הדת ציריך, והגאון רבי חיים משה הלוי לוי שליט"א אב"ד דקהל עדת ישורון ציריך.

Jewish Mother Brutally Murdered Defending her Children After Terrorist Breaks into Their Home

Breaking Israeli News

A Jewish woman was brutally murdered while defending her children from a terrorist who broke into their home in Otniel on Sunday afternoon.

Dafna Meir, 39, was at home with three of her six children in the Judean town of Otniel, located in the Hebron hills, when an Arab man entered her house. Meir struggled with the terrorist in the entrance of the house in an attempt to keep him away from her children, receiving multiple fatal stabbing wounds.[...]

Meir was mother to four children between the ages of 11 and 17, and two foster children, both under five. A nurse in the neurosurgery department of Soroka Medical Center, Meir was known for her joyful demeanor and generosity.

She worked with the Summit Institute, an organization which gives assistance to disadvantaged Israeli children struggling with trauma, mental illness, family crises, and special needs. Meir and her family had taken in two young foster children as part of the Institute’s family-based residential foster care program, one of whom has special needs. [...]

Yishai Klein, a neighbor of Meir’s, told Ynet, “She was a happy woman, joyful, optimistic, driven, responsible, loving.” 

 

Meir’s friend Liron Steinberg added, “She always looked for how to help.” She said that Meir had often invited troubled kids from a nearby youth village to her home if they didn’t have a place to go.[...]

Salute to the Jewish general who liberated 60 million Muslims

Jewish Chronicle

One of the tragic ironies of history is that Pakistan, a country created explicitly to safeguard Muslims from predatory non-Muslims, perpetrated in 1971 the single-largest massacre of Muslims since the birth of Islam.

The man whose plan halted the bloodbath in what was then East Pakistan and led to the birth of what is now Bangladesh — one of the largest Muslim nations on earth — was Jewish.

Lieutenant General (retired) Jacob Farj Rafael Jacob, who passed away at the of 93 in New Delhi last week, was born in 1923 to a family of affluent “Baghdadi Jews” in Calcutta.[...]

Jacob rose steadily through the ranks of the independent India’s army. The genocide in East Pakistan — in which Pakistani troops slaughtered three million, displaced ten million, and coerced half a million women into sexual slavery — made Jacob restless with rage.

As refugees began flooding India, Jacob, then chief of the eastern command of the Indian army, started work on a plan for the liberation of East Pakistan.

His peers shouted him down but Jacob persisted, laying down roads and building communication infrastructure for an eventual war with Pakistan. 

On 3 December 1971, Pakistani air force launched a massive pre-emptive attack on India. India responded by punching deep into the eastern territory.[...]

When Niazi agreed to a ceasefire, Jacob landed in Dhaka with an instrument of surrender. The Pakistani general was furious. Who had said anything about surrender? Jacob, dogged as ever, placed the document on the table. “General,” Jacob said, “I cannot give you any better terms. I will give you 30 minutes”. Smoking his pipe outside Niazi’s office, Jacob felt more anxious than ever: Niazi’s fighting force outnumbered India’s by 10 to 1. Jacob said the Sh’ma Yisrael and walked back inside. “General, do you accept this document?” he asked. Niazi was in tears. Dhaka had fallen. But Jacob was not satisfied with this enormous victory. He wanted Niazi to surrender at the Ramna Green racecourse in Dhaka, in front of the Bengali masses. “I won’t,” Niazi shrieked. “You will”, Jacob snapped. “You will also provide a guard of honour.” On 16 December 1971, General Niazi surrendered. Jacob, aided by Bengali freedom fighters, had liberated an entire nation in 13 days. [...]

Rav Moshe Sternbuch's new letter regarding the Kaminetsky-Greenblatt heter

update: Rav Sternbuch says that everyone has to protest!

Jewish Press defends Mendel Epstein torture gang against US Justice system

This is the Jewish Press's protest against the "chutzpa" of American justice to defend husbands against kidnapping and torutre in conducting a sting operation which resulted in the convinction of Mendel Epstein's torture gang. It simply shows how feminism has become more important than commonsense and that any and all crimes are accepted if it promotes the freedom of women to do what they want. I don't think they would have written this nonsense if the crime were Muslims torturing women for not obeying their husband or the KKK lynching Blacks and Jews. Why is abusing others in the name of religion acceptable only when it is women who are the beneficiaries?  NY Post

Jewish Press

We were dismayed by the picture of prosecutorial excess compellingly painted in last week’s front-page essay by Washington lawyer Nathan Lewin. Mr. Lewin wrote of the case of three rabbis convicted and sentenced to long prison terms in an FBI sting operation involving an ostensibly forced get. It points to an alarming trend in our country of selective enforcement and should be required reading for all who cling to the simplistic notion that America is a place for exclusively even-handed justice.

The three rabbis were induced to agree to participate in a fictitious forced Get featuring a fictitious agunah and a fictitious recalcitrant husband. To be sure, the underlying “facts” in a sting operation – which is ordinarily an acceptable prosecutorial tactic – are by definition fabrications. But there is a chilling overarching element in this episode. In unprecedented fashion, in order to make its sham operation more believable to the three rabbis, the FBI insinuated itself via an elaborate charade into the bet din system, securing the issuance of a seruv by a leading bet din against the non-existent husband.

Sting operations must be based on a target’s predisposition to commit a crime similar to the scripted crime. And while it was charged that the three had earlier engaged in forced Get procedures based on the claims of three alleged victims, can anyone recall even one sting operation mounted against a Catholic institution or clergyman in the wake of the countless charges of sex abuse involving priests over the past two decades? Can anyone imagine the uproar that would have ensued had a Catholic ecclesiastical court been purposefully manipulated by governmental authorities?

How does the FBI’s Get sting square with the seeming obsession by the courts to keep police authorities at arm’s length from mosques and emasculating any program of monitoring despite the fact that virtually all perpetrators of terrorist attacks cite their allegiance to Islamic jihad? And what would be the reaction if the FBI had acted toward a Sharia court as it did toward a rabbinical court in the case of the three rabbis?

Moreover, the rabbis were tried (in the same trial) for their “sting crimes” as well as charges that they had actually administered beatings to three recalcitrant husbands. Yet they were acquitted of all charges except for the fictitious “sting crimes.”

As the Lewin article makes plain, the profound plight of an agunah was largely kept from the jury by the judge. And the judge’s draconian sentencing, essentially for committing a manufactured crime, reflects no appreciation of that plight or the notion that people would be motivated to try to help.

Certainly the harm ordinarily caused by recalcitrant husbands seems not to have been in play. All that seems reflected in the verdict and sentencing is that the rabbis colluded to inflict bodily harm. So people are going to jail for a long time without having been convicted of a “real” crime despite federal prosecutors’ efforts to so convict them.

Kotzker Rebbe: Gedolim and talmidei chachomim have a greater requirement to have fear of Heaven than a layman

Rav Moshe Sternbuch[1](Parsha Bo  5776): I heard from my dear friend Rabbi Tzi Farber zt”l that he  was once traveling with Rav Chaim Brisker in a carriage when another Jew joined them. Rav Chaim asked the newcomer where he was coming from and he replied he was coming from Kotzk. Rav Chaim asked him to tell them a dvar Torah that he had heard there. The Jew told them that he had heard a drasha in the name of the Kotzer Rebbe regarding the verse “You shall fear the L-rd your G-d” (Vayikra 6:13)  which our Sages (Pesachim 22b) understand to also teach that it refers to talmidei chachomim. [In other words that fear of G-d includes fearing those who teach the Torah]  However the Kotzer Rebbe explained the lesson of our Sages to mean that talmidei chachom also have the obligation to fear and have awe of G-d and not to think they are alright because of their knowledge of Torah. Rav Chaim praised this interpretation greatly and sighed and said, “The Rebbe is correct. Even gedolim and talmidei chachomim are obligated to fear Heaven and they can not suffice with their greatness in Torah. In fact the opposite is true. They have a greater obligation than others to have fear of Heaven.”

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[1] רב משה שטרנבוך (פשרת בא תשע"ו) ושמעתי מפי ידידי הגאו רבי צבי פרבר זצ"ל שנסע עם הגר"ח מבריסק בעגלה ונכנס יהודי, ושאל אותו הגר"ח מהיכן אתה, והשיב שהוא בא מקאצק, וביקש ממנו הגר"ח לומר דבר תורה ששמע שם, והשיב היהודי מה ששמע בשם הרבי מקאצק על הפסוק "את ה' אלוקיך תירא" - ודרשו חז"ל -"לרבות תלמידי חכמים", ופירש הרבי שגם הם חייבים לירא ולפחד מהקב"ה, ולא ידמו שהם בסדר, והגר"ח קילס מאוד את הדברים ונאנח ואמר, הרבי צודק, גם הגדולים ות"ח חייבים ביראת שמים ואין מספיק בגדלותם בתורה, ואדרבה עליהם החיוב יותר מכל אחד

Seridei Aish: Difficulty in making necessary legitimate changes in halacha - Mistaken marriage

The issue of the need for legitimate halachic change is discussed by the Seridei Aish as well as the apparently insurmountable difficulty in doing so. This letter is found in volume 2 page 447-448 in the Collected Writings of Rabbi Yehiel Yaakov Weinberg edited by Dr. Marc Shapiro.