Volume 20 Number 02
Produced: Thu Jun 15 1:53:42 1995
Subjects Discussed In This Issue:
Administrivia
[Avi Feldblum]
Child Bride Victim
[Joseph Steinberg]
Child brides
[Perry Smith]
Kiddushei Ha Av
[Yehoshua Kohl (n)]
Marital Relations
[Yosef Gavriel Bechhofer]
More Misc Comments
[Zvi Weiss]
Power to change the Torah
[Rabbi Raphael Meyer]
Trustworthiness, Witnesses, & Marriage of Minors
[Norman Tuttle]
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From: Avi Feldblum <feldblum>
Date: Thu, 15 Jun 1995 01:49:46 -0400
Subject: Administrivia
Hello All,
We have again moved up a volume number, as we hit issue #100 before I
left for my last trip. I apologize for the somewhat uneven distribution
of issues, but work is sending me on the road far more frequently than I
would like. I had thought that June was going to be quiet, but it is not
looking that way. Maybe July? Anyhow, I'll try and work on the backlog
over the next several few days, but then expect a dry spell next week
from Tuesday afternoon through after Shabbat, as I expect to be away
again and probably not with email access.
Avi
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From: Joseph Steinberg <steinber@...>
Date: Sat, 10 Jun 1995 23:48:51 -0400 (EDT)
Subject: Child Bride Victim
Everyone --
1. All of the solutions based on legal statutes will not work to prevent
a man from marrying off his minor daughter. He can get on a plane and
fly to anywhere with no such laws (most of Africa, for example) and do
whatever he pleases. (He can also claim that he forgot to whom he
married his daughter, as is the case mentioned in Rabbinic literature.)
2. It is very nice that all of the readers on mail-jewish condemn the
fathers' actions, but, we are yet to see ANY rulings from any Orthodox
rabbis that would serve to correct the problem. TALK IS CHEAP. If every
rabbi condemns the father's actions, but they do not allow the girl to
marry the innocent child suffers forever. She will be forced to marry
via a ceremony performed by a rabbi from a more liberal branch of
Judaism, or to intermarry. Personally, if the Orthodox rabbis did not
find some solution to her problem, I think she would be 100% correct in
taking either approach. In fact, if she intermarried, and then her
children converted, the problem of Mamzerut would be avoided even
according to the most extreme Orthodox views.
3. It is important to realize that the Torah was given to a people
living in the Middle-East of 3300 years ago. The practices of men
dominating women, of fathers marrying off daughters (minor daughters
included), were prevelent among all of the nations living in the
region. The laws as found in the Torah regarding child marriages were
perfectly normal for the time and place of the Matan Torah. However,
time and place has changed. The issues at hand are in the USA in
1995. (In Israel it is illegal to marry off a girl under 16 -- this law
was passed four decades ago to prevent Temani fathers from continuing
such a practice which existed in Yemen.) Is it not possible to conclude
that the Torah never intended the laws of child-marriages to apply in a
society in which they make no sense? Does anyone really believe that the
Torah, and G-d Himself, wants the marriages of oppression performed by
the S.O.B.s in question to be valid? Is that what you think G-d wants?
Is that the morality which we are supposed to use to be a 'light unto
the nations.'? Did the Torah and G-d Himself really want a father to be
able to marry off his daughter -- or was that simply an understood norm
of the society in which the Torah was given? What do you think? (I have
sincere doubts.)
| | ___ ___ ___ _ __ | |__ Joseph Steinberg
_ | |/ _ \/ __|/ _ \ '_ \| '_ \ <steinber@...>
| |_| | (_) \__ \ __/ |_) | | | | http://haven.ios.com/~likud/steinber/
\___/ \___/|___/\___| .__/|_| |_| +1-201-833-9674
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From: Perry Smith <psmith@...>
Date: Tue, 13 Jun 95 18:39:55
Subject: Child brides
Although the halachik discussion provoked by the incident of a father
marrying off his minor daughter has been very interesting, what is most
important is to solve the problem, which means preventing it from
happening again and if possible nullifying what has already happened. I
spoke to a very learned Rabbi (I don't have his permission to use his
name so I won't) who is on the Va'ad Ha'pskim in Jerusalem. He said:
1) It was extremely unlikely (read it won't happen) that a blanket
takanah would be issued from Israel. The case happened in the US and
therefore any action must come from there.
2) Where are the wives of these men ? Have they turned to anybody for
help ? He suggests that the wives take the following actions:
2a) If the people involved are part of any congregation, whether that
be a Chassidic sect or even a Young Israel, the wives should try to get
the leader of the congregation to act on their part by either reasoning
with the fathers or publicly explaining why this action is wrong.
2b) Get a lawyer (or anybody else that will) contact the major Jewish
organizations in the US and try to get them to issue some sort of decree
against this practice.
I think we must act _together_ with these women if this issue is to be
resolved properly.
Perry
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From: Yehoshua Kohl (n) <yoshikoh@...>
Date: Fri, 9 Jun 1995 13:08:54 GMT
Subject: Re: Kiddushei Ha Av
I thought to perhaps contribute a few points to the discussion
of the father's recieving kiddushin for his daughter.
The validity of the witnesses in so far as the participation in
this particular act is difficult to question. Who is to say that they
violated any Issur? The did not necessarily know that the father had any
evil intentions. Additionally, I'm not sure that a bitul asseh is a
p'sul aidus either (v'ahavta l'reyecha etc.)
I was recently speaking to a renowned talmid chochom in
Yerushalayim who, I was sure, had not heard of the case as he doesn't
recieve newspapers and rarely has contact with America. He told me that
there was a case like this in Montreal last year and the issue was taken
to Rav Shlomo Zalman Auerbach ztz'l. His p'sak to matir the daughter was
based on a challenge to the fathers ne'emanus to say that he was
m'kadesh his daughter. There were several points that were made
apparently. One is the obvious rishus of the father, and another
involved a teshuvos Rebbe Akiva Aiger which also deals with the father's
ne'emanus but attacks the issue of why he is ne'eman.
If anyone has heard anything about this, I would be interested in
hearing.
^ Yehoshua and Aviva Kohl ^
^ <yoshikoh@...> ^
^ Jerusalem,Israel ^
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From: <sbechhof@...> (Yosef Gavriel Bechhofer)
Date: Fri, 9 Jun 1995 09:35:26 -0500 (CDT)
Subject: Re: Marital Relations
I am confused by Akiva Miller's suspicion that marital relations have
taken place here. Do we suspect that this father convinced his daughter
to have relations with a man she could not identify?
Yosef Gavriel Bechhofer
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From: Zvi Weiss <weissz@...>
Date: Fri, 9 Jun 1995 09:28:51 -0400 (EDT)
Subject: More Misc Comments
1. It is not obvious to me that the idea of "tripping up the Eidim"
based upon contradictions would not help. While it is true that Eidim
in this case are not simply "factual" but actually "define" the act of
Kiddushin, that does not mean that the same rules of impeachment would
not apply. I would appreciate it if anyone has source material on this
point.
2. The Gemara ststes that the Father's Ne'emanut is based upon the
verse: Et Biti Natati La'ish hazeh -- I have given my daughter to this
man. Since there is a Torah derivation, it is not so easy to disregard
the father's ne'emanut.
3. However, there is also the matter of Din M'rumeh -- a "twisted" or
distorted act that perverts the halacha -- *That* may provide a further
basis for impeaching the father's reliability.
4. It is almost always possible to ensure that the father will still be
able to talk -- without "compromising" the ability to inflict rather
substabtial amounts of pain on the father. Perhaps, if all such fathers
are made to realize that as soon as possible, they will realize that
harming their daughters in this way is NOT any sort of "life insurance
policy" -- it is a certain guarantee to their being crippled and maimed
(but not killed).
--Zvi
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From: <rmeyer@...> (Rabbi Raphael Meyer)
Date: Wed, 14 Jun 95 18:07:48 -0700
Subject: Power to change the Torah
It is clear from Hilchos Gitten that the Chachamim do not have the power to
change a D'Oreisa. When invalidating a Geirushin D'Oreisa because of a
ruling D'Rabanan, the Gemara always states "Afkinu Rabanan L'Kidushim
Mineh." The Rabanan were retroactively removing the Kiddushin (since the
Kiddushin is performed K'das Moshe V'Yisrael). If they could nullify a
D'Oreisa, there would be no need for this Halachic maneuver. They could
outright nullify the Gerushin D'Oreisa.
Yisrael Rice
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From: <ntuttle@...> (Norman Tuttle)
Date: Thu, 8 Jun 95 20:42:47 -0400
Subject: Trustworthiness, Witnesses, & Marriage of Minors
[In truth I wish to respond to my own critique on right-wing, which I
suspect was fairly harsh, but first I am checking up on some of the
issues involving WLIR radio and Touro college including a statement by
the Vaad Harabonim of Monsey. Now back to the issue everyone else is
discussing...]
Some have posited that the witnesses to the "Underage Marriage
Transaction" were acting in an improper way at the time of this
transaction. In fact, there is nothing inherently wrong with witnessing
a Torah transaction; it may only be wrong afterwards when they are
silent about the transaction and do not bring the details to Bet Din.
Unfortunately, halachically they can get away with this as long as they
are not summoned to the Bet Din (once they are summoned to Bet Din,
witnesses are not allowed to withhold testimony according to Torah Law).
Two solutions to this are as follows: (1) Force the father to divulge
the names of the witnesses. (2) Issue a summons to the community that
the witnesses should step forward & testify about what actually
happened.
If, in fact, we must believe the father when he says he married off
his underage daughter, we would have to assume that she is now married
and have to utilize the information in the above paragraph to determine
to whom she is married. In addition, we should be able to summon the
father himself to Bet Din to determine the subject to whom he married
his daughter. If the father himself testified before Bet Din that he
married off his daughter, why didn't that Bet Din subject him to a
Drisha V'Chakira (complete questioning) to determine exactly what
happened? He didn't say that he forgot the Chatan's name, only that he
wasn't divulging it--it would be up to Bet Din to force the issue and
then he would be required by Torah Law to respond.
Let's say that the Bet Din was unsuccessful at forcing the father to
come forward, he chose to ignore the Torah law not to withhold
testimony, and the civil penalties of the land were not sufficient to
stimulate him to testify (assuming some extension of the NYS Get Law).
We should still be able to get all the Rabanim of the world to unite (or
at least a major Bet Din) to summon the witnesses, whoever they are, to
come forward and testify about the transaction which occurred. If they
did not come up at that point, they would be in violation of the Torah
prohibition not to withhold testimony just as the father is. If they
would claim not to have heard of the summons, Hashem would know what was
in their minds and punish them accordingly: if a group of Rabbis wants
people to know about a proclamation which they are making, they will
make sure everyone knows about it (witness the Monsey WLIR ban). As a
matter of fact, if the Rabbis got together and made a blanket statement
(Gezeira) that such covert transactions must be registered in a Bet Din
and elucidated there, this would effectively place both father and
witnesses in all similar situations in a Torah violation if they did not
subsequently adhere to the summons and specify the full details of the
transactions before Bet Din.
The above analysis assumes that marriage took place, & therefore the
only way to proceed would be to first determine the identity of the
putative husband. However, if witnesses do not come forward, I doubt
that we can actually assume that a marriage took place since father's
Ne'emanut (trustworthiness) is in doubt.
How is this? A witness is normally valid to testify unless certain
factors disqualify the testimony. Besides gender, age, and
religious-status qualifications for certain types of testimony, there
are other factors such as whether the witness had been involved in
certain types of robbery & fraud [Pasul], whether the witness is related
to one of the people involved in the activity being testified about
[Karov], and whether some benefit may accrue to the witness by
testifying to the activity [Noge'a B'davar], even indirectly.
Apparently, certain types of testimony bypass or inherently exclude some
of the above disqualifications. For example, a father's testimony is
accepted regarding the B'chor (or first-born) status of his son, and
from the Torah, he is given this primary mandate to recognize the
B'chor. Another example is the one which others have already stressed,
that the father can testify that he has married off his underage
daughter. Regarding another qualification, that of being Noge'a B'davar
(an interested party), this would seem to follow from the fact that he
is already a father & a relative. However, the truth is that, in
traditional situations, the girl was married off generally for her own
benefit. The father already benefitted from the money transferred at
the time of Kiddushin by the new husband. By testifying that his
daughter has gotten married, he prevents himself from being able to
marry her off again, thus putting himself at a disadvantage
(monetarily-wise) unless she is already 12. (12.5?) If he testifies
falsely that his daughter was married off, he prohibits her from ever
marrying a Kohen, besides the above disadvantage. Therefore,
traditionally, the father was not a Noge'a B'davar to testify that his
daughter was married, but the opposite.
If the standard case discussed in the Gemara of a father being
believed to have married off his underaged daughter occurred when the
father was NOT Noge'a B'davar, we must assume that this is in fact a
requirement for his testimony to be valid. In the present case, we have
a surety that the father is Noge'a B'davar and certainly invalid to
testify that his daughter has been married, since he is using this
transaction as leverage to remain in his own marriage. As a matter of
fact, he benefits directly from his daughter's marriage, since the
Ketuba provides for his wife and her unmarried daughters (giving him one
less to provide for in the event of a divorce). Thus, in the case that
no witnesses have shown up to testify that a marriage has occurred, we
have to conclude that none occurred, despite what the father says, since
he is a Noge'a B'davar and cannot be relied on to testify impartially.
I am aware that this situation is not ideal and may cause a condition
of doubt in people's minds regarding the status of the daughter.
However, her status is no worse than the condition of a woman for whom
her husband has been presumed dead upon the evidence of a single
witness, a case in which the Torah permits the woman to remarry. Since
there is no reliable testimony to the contrary, the daughter remains in
her presumed status, which is as an unmarried woman. If the witnesses
would identify themselves, and affirm the father's claim, the daughter
would be considered married, and one of the solutions mentioned at the
top of this thesis would have to be employed. If a marriage did
actually take place, it seems that it would be valid.
Nosson Tuttle (<ntuttle@...>)
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End of Volume 20 Issue 2