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October 16, 2013

Outmoded divorce law a real shandah

http://www.jewishjournal.com/opinion/article/outmoded_divorce_law_leading_to_back_alley_beatings_a_real_shandah

Rabbi Mendel Epstein and three others were arrested after they allegedly plotted to kidnap Jewish husbands and torture them until they agreed to divorce their wives. Federal authorities say Epstein charged up to $100,000 to “convince” the husbands.

Rabbi Mendel Epstein and three others were arrested after they allegedly plotted to kidnap Jewish husbands and torture them until they agreed to divorce their wives. Federal authorities say Epstein charged up to $100,000 to “convince” the husbands.

The FBI arrested two prominent Orthodox Jewish rabbis and two of their associates overnight Oct. 9 in New York. Allegedly, these rabbis arranged back-alley beatings for men who refuse to divorce their wives. Understanding their alleged crimes requires a short background in Jewish law.

Jewish law recognizes that some marriages may end in divorce, and includes provisions for how it should be done. In order to divorce in Jewish law, the husband, who accepted the responsibilities of marriage and the financial obligations of divorce at the wedding ceremony, must formally end the marriage with a divorce document, a “get.” This document must be given by the husband to the wife.

Most divorces go smoothly, with the parties in full cooperation. The husband gives the get and all ties are severed. However, there are a significant number of cases in which a recalcitrant husband refuses to give the get. It can be for financial reasons, it can be for vindictive reasons and it can be simply because the husband is holding out hope for reconciliation. Whatever the reason, when a husband does not give his wife a get, she is chained to him and cannot remarry under Jewish law. We call this woman an agunah.

Few things play at the heartstrings in a more profound way than the agunah. The woman is a double victim. She is a victim of an arcane, one-sided system of dissolving a marriage, and she is a victim of a husband who is taking advantage of that system.

A woman can become desperate for her get. It can begin to consume her life. Protests and social pressure might help, but sometimes the recalcitrant husband digs in his heels.

In extreme cases, the woman in these dire straits would call the two rabbis who were arrested on Wednesday evening. For a fee, the FBI describes, these rabbis would make the husband “an offer he couldn’t refuse.” Allegedly, the rabbis’ thugs would physically coerce deadbeat husbands to give their desperate wives a get. Using props more familiar to mob films and torture scenes, the FBI complaint describes, the thugs would beat husbands until they actually handed over a signed get. Perhaps most shocking of all is that their actions, according to the complaint, were sanctioned by a rabbinical court.

It’s a clumsy solution, but it has precedent in Jewish law. It has its roots in the Talmud and is explicitly codified by Maimonides (Mishneh Torah, Laws of Divorce 2:20).

Rabbi Joseph Telushkin explains the precedent well in his book “Jewish Wisdom”:

“Because the Rabbis were conscious of the inherent unfairness in divorce laws, over the centuries they established new laws to protect women. The tenth-century Rabbi Gershom, who also issued a decree against polygamy, legislated that it was illegal to divorce a woman against her will, a law that has remained in effect since. During the twelfth century, Maimonides ruled that if a man refused to grant a divorce to a woman who was entitled to it, he was to be whipped without mercy until he did so (Mishneh Torah, “Laws of Divorce,” 2:20). The legal precedent for his ruling was the talmudic law, “If a man refused to give a woman a divorce, he is forced until he declares ‘I am willing’ (Babylonian Talmud, Ketubot 50a). That Maimonides was willing to accept as voluntary a statement elicited by whipping indicates how anxious he was to assist a woman who was being mistreated.”

However, in the United States this kind of activity is illegal, and the public is painting these rabbis as villains.

It’s not so simple. In the ugly mess of the agunah crisis, these rabbis could be a woman’s only hope. While I can’t condone violence, and while I can’t support thuggery, we must see these rabbis for what they are. They are knights in shining armor for these chained women. Like our favorite fictional vigilante, they may not be the hero that we want or deserve, but sometimes they are the hero that we need.

Disgusted might not adequately describe our feeling over the allegations of violence and Mafia-like tactics toward recalcitrant husbands, but these rabbis were heroes to women left with no options.

There is no doubt that these arrests will serve as another wake-up call to the Orthodox Jewish community. The agunah crisis must be solved.

One solution for preventing an agunah crisis is the Halachic Prenup. This is available and comes recommended by foremost rabbinic authorities. The prenuptial agreement triggers a daily fine of $150 if a husband withholds a get. It’s not a very elegant solution, but it works. The Halachic Prenup is gaining traction and hopefully our discomfort with violent solutions will push more rabbis to insist on it at every wedding they officiate.

Perhaps there is also an alternative solution: a conditional get that triggers after an agreed-upon event. There are halachic nuances that would be required to make it work, but I believe there is a way. Perhaps all Orthodox Jewish marriages should include a conditional get that triggers with a specific future event. If the husband refuses to give a new get during subsequent divorce proceedings, the conditional get takes effect. I think it’s at least an option worth exploring.

Until such time that all Orthodox Jewish marriages are subject to the Halachic Prenup or some other preemptive solution we will have an agunah issue. That it came to violence in the most recently reported case is a very sad commentary on what it feels like to be an agunah.

That rabbis were inflicting violence is a terrible consequence. But the real villains are the recalcitrant husbands. Let’s not forget that these rabbis were heroes to the chained women. But at the same time, we should not need such complicated heroes. There are preemptive solutions, and they must become universally instituted.

A version of this column originally appeared in Haaretz.


Rabbi Eliyahu Fink, J.D., is the rabbi at Pacific Jewish Center/The Shul on the Beach in Venice. Connect with Rabbi Fink through Facebook, Twitter or e-mail. He blogs at finkorswim.com

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