Volume 19 Number 99
Produced: Fri Jun 9 0:07:04 1995
Subjects Discussed In This Issue:
Betrothal of Child Brides..
[Zvi Weiss ]
Brides, again
[Zvi Weiss]
By Marital Relations...
[Akiva Miller]
Freeing the Daughter
[Moishe Kimelman]
Future Agunot of America
[Chihal]
Future Apostacy of Minor Girl
[Yeshaya Halevi]
Marrying ones Minor Daughter
[Aaron H. Greenberg]
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From: Zvi Weiss <weissz@...>
Date: Thu, 8 Jun 1995 10:08:04 -0400 (EDT)
Subject: Betrothal of Child Brides..
It is not clear how easily the enactment of Rabban HaGamliel Hazaken can
be extended because:
1. It may require a "convocation" of "semukhim" (i.e., rabbis with the "real"
ordination -- which no longer exists in our time).
2. As pointed out earlier, if the father does NOT use the "formula" K-dat
Moshe V'yisrael -- there may be no "hook" for the Sages to use.
3. It is not clear that all the Poskim would accept such an approach --
Since the time of Rabeinu Tam, there appears to have been a "thread" in
halachic thought which mandates that we do NOT attempt to dissolve
marriages -- no matter what the situation and no matter how horrible. This
is the conceptual basis (IMHO) why Agunot have so much difficulty
despite the Rambam's clear statement that we DO act very vigorously against
the husband for the benefit of the wife. Until and unless there is a con-
census to alter this basic philosophic appriach, we will not see any
serious moves to actually annul marriages.
4. In the Nefesh Harav, there is a story related in terms of "Bitul Shlichut"
by a Get. This involved the Rav's father or grandfather (I do not have
the sefer in fron of me right now). However, there are 2 very
significant points: (a) nobidy attempted in that case just to annul the
marriage and (b) disqualification of the Eidim was used by "forcing" a
contradiction. The "legal" basis was that the rules of D'risha and
Chakira are IDENTICAL for both Capital and Monetary (civil) matters and
that it is only a Rabbinical enactment not to subject the witnesses to such
intense scrutiny -- any where there is a clear abuse of the judicial
process, the Torah level is invoked instead of the Rabbinical "leniancy".
What is also critical is that this means that one can disqualify the wit-
nesses if they *contradict* themselves even on something as trivial as
"shirt color" (but not if they simply say "I don't know").
--Zvi
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From: Zvi Weiss <weissz@...>
Date: Thu, 8 Jun 1995 09:10:35 -0400 (EDT)
Subject: Brides, again
1. The reason that Rivkah was asked re marrying Yitzchak was --
according to the Commentaries that her father Betuel passed away during
the night and so she had NO father to marry her off at that point...
2. Comment to Andrew Greene: It is true that the husbands claim that
what they are doing is a form of "life insurance" -- I would like to
suggest that there are many physical tortures possible WITTHOUT KILLING
THE FATHER... Thus, "life insurance" will not help. For example, there
is breaking one's knee caps, varous spinal injuries, etc. (I am sure
that there are creative people on this list who can come up with REALLY
REALLY good ones..) so, if we are going to legitimize physical coercion
on these "people(?)", I think we can do it such that they realize that
they gain NOTHING by holding the daughter hostage -- in fact, by the
time some people were finished these "fathers" might even PREFER to
die.....
--Zvi
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From: <Keeves@...> (Akiva Miller)
Date: Thu, 8 Jun 1995 02:53:24 -0400
Subject: By Marital Relations...
Rabbi Bechhofer wrote in MJ 19:94 that
>... There are only two other ways to effect marriage: a) By marital
>relations, which obviously are not taking place here ...
This is not at all obvious to me. These fathers must realize that realize
that if they get hit by a truck tomorrow, then the daughter will be an aguna
for life. No presumptions can be made about such a person. Besides, no one
actually *has* to have relations with her. The father simply has to pretend
that it happened, and it will all be over for her.
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From: <kimel@...> (Moishe Kimelman)
Date: Thu, 8 Jun 1995 23:23:13 +1000
Subject: Freeing the Daughter
In 391 Zvi Weiss writes:
>4. A possible approach can be developed *if* we can determine who the
> eidim actually *are*. If they can be brought to court and subjected
> to intensive "drisha v'chakira" (close examination) and found to
> contradict themselves on ANY point (or almost any point), then the
> actual testimony can be declared void and the daughter is "home free".
> Note that hits will only work (in most cases) if the witnesses
> actually contradict each other -- if they simply answer "I don't know"
> -- then the testimony would still be valid -- and there is always the
> possibility that some 'mentor' could 'coach' the eidim how to avoid
> this sort of impeachment.
I believe that this solution is invalid. As pointed out by someone in an
earlier post, there is a difference between eidus (testimony) regarding an
act, to eidus that is an integral part of that act.
For example, eidus in a murder case merely proves the fact of the crime.
Should the witnesses contradict each other, their testimony may become
invalid and the murderer may go free. Nonetheless the murder may have been
committed by the accused.
In a case of marriage, however, a couple who perform the entire marriage
ceremony without witnesses have gone through the motions, but are not
married. The witnesses may contradict each other a myriad times just
moments after the marriage, as long as they were kosher witnesses at the
time the marriage they effected is also kosher.
Just imagine if that were not the case. How many mjers can be sure that the
witnesses to their marriages would not contradict each other if questioned
today? (Some mjers might even sigh with relief ;-) )
In the same issue Yaakov Menken writes:
>Thus Michael Lipkin's solution ("Why not Beat Them?")
>is a decent idea; while I understand Elozor Preil's concern for criminal
>charges, we may simply need Rabbinic pressure to close our eyes at the right
>moment. The ways of Torah are ways of peace, and the ways of peace include
>the use of lashes (or knocking out teeth) when needed.
I think that virtually all of us would agree in theory, but there is one
problem. What happens if the beating kills or harms the father to the
extent that he can no longer divulge the name of his daughter's husband?
The young girl is now married for life with no hope of ever being freed. As
far as I remember offhand, according to gemara Kiddushin once the father
cannot contradict the would-be-husband, the latter would not be believed
when he comes forward as the one who married the girl.
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From: <CHIHAL@...> (Chihal)
Date: Thu, 1 Jun 1995 22:49:36 -0400
Subject: Future Agunot of America
I 'm handicapped by not having read the NY Times story, so please
forgive me if the following issues have been dealt with in the case of
the underage girl whose father has married her off:
1. Have the civil courts been contacted regarding the fact the father has
clearly endangered the mental health of his daughter?
2. Have the civil courts appointed a guardian ad litum to represent the
minor girl?
3. Do existing civil statutes address the question of this father's action
constituting not only severe psychological damage, but possibly sexual abuse?
4. Since the identities of the putative husband and witnesses are crucial,
has anybody with a medical background been asked whether sodium pentathol or
other drugs can be used to unseal the lips of the father?
5. I suspect the father's civil rights would be violated by his unwilling
participation in an encounter with sodium pentathol or other drugs, so I
hereby declare that I do not advocate any illegal action. I also declare
that I would not be surprised if the father should unwittingly back into a
hypodermic needle wielded by a sympathetic member of the human race.
Chihal
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From: <CHIHAL@...> (Yeshaya Halevi)
Date: Wed, 7 Jun 1995 21:08:28 -0400
Subject: Future Apostacy of Minor Girl
Although many people have commented on the chilul hashem inherent in the
case of the father who married off his minor (age) daughter, I have not
seen any discussion on the extremely real possibility that when this
girl becomes an adult she will do one or more of the following:
1. Abandon Orthodox Judaism and marry in a Reform ceremony.
2. Abandon Judaism entirely and become an atheist or convert to another
religion -- and then marry.
3. Have become mentally ill as soon as she understands what's going on.
4. Be so torn apart emotionally that she will commit suicide.
Clearly the father has endangered the mental health of his daughter.
Has any Jewish group filed an amicus (friend of the court) brief on her
behalf? If the group has no standing to file an amicus, has a Jewish
organization intervened with the state to have the state appoint a
guardian ad litum for the girl?
Do existing civil statutes address the question of this father's action
constituting not only severe psychological damage, but possibly sexual
abuse?
One last thought. Clinically speaking, of the above listed
possibilities, the sanest, most rational thing for this girl to do as an
adult is to abandon Orthodoxy and marry in a Reform ceremony.
Possibility number 2, that she will abandon Judaism entirely, largely
looms too.
Given all these probabilities, is her "marriage" still halachically
valid since the father has clearly not acted to her benefit?
<Chihal@...> (Yeshaya Halevi)
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From: Aaron H. Greenberg <greenbah@...>
Date: Thu, 1 Jun 1995 01:40:27 -0400 (EDT)
Subject: Marrying ones Minor Daughter
While in the Talmud it may say that the father is neaman (believed) that
he did bethroath his minor daughter, I think the reason for this
assumption must be looked into.
The Torah says: By the mouth (word) of two or three witnesses a matter should
a matter should be upheld.
Given that for most everything, Beit Din requires witnesses, there must
be a reason why the gemara says that in such a case the father is
beleived.
I have not had a chance to look at the gemara, so this is just my own
reasoning.
In the case in the gemara, the father who married off his daughter, probably
did it for what was considered acceptable reasons. (As mentioned by a
previous poster, if he could not afford to raise her was one reason that a
father would do this) Where he is assumed to be a decent man who acted in
what he felt was his daughters best interest. Now, even if he has forgotten
who married her off to, he does not want his daughter to commit adultery so
he goes to Bait Din and proclaims that she is already married, - Again acting
in his daughters best interest, as a decent father. All this leads to two
things that are missing in our case: (1) The father is a decent human being.
(2) Bait Din has no reason to suspect the father would tell such a lie
since he receives no benefit. (I recall learning somewher that we don't
suspect people of doing wrong if they don't in anyway benefit the act. Here
we are presented with the exact oppisite. (1) I think all are in agreement
that the father is clearly not a decent human being, and (2) the father
has a lot to gain from the lie, since he has only done this to gain leverage
in his divorce situation.
So, I feel that the talmudic statement of the father has "ne'emanus" could
not be applied here, and there is no reason why this clearly evil man should
be taken at his word.
As for hime being evil: Even though his action may be permissible by the
Torah, it is (1) prohibted by the Rabanon (according to a previous post I
think) (2) There is an issur of causing pain to a fellow jew (3) He is
certainly not fulfilling the mitzvah of V'ahavta L'reiacha Camocah. (4) He
is probably violating 'Lo Setain Michshal' because when the daughter grows
up she may decide to marry (unlawfully) anyway. (5) He has violated 'Dina
Demalchusa Dina' (The law of the land is binding) (6) He has created a
Chilul Hashem B'toch Bnai Yisrael. Certainly many non-observant Jews who
read the New York times have been turned off from Torah Law because
a body of law which allows this to happen, could not possibly be good in
their minds. -All this and there are probably more, that clearly make him
a rasha, although I think chilul hashem alone would be more than enough.
I don't think the Rabanon in the gemara ever intended that the word of a
rasha (evil person) should be taken at face value.
Aaron Greenberg
<greenbah@...>
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End of Volume 19 Issue 99
