Testimony of minor is not to determine guilt but only to protect victims - Rav Dovid Cohen

Journal of Halacha and Contemporary Society Fall 2012

Letters

Dear Editor,

In Rabbi Reiss's article (JHCS, Pesach 5772) on child molestation he writes about the difficulty to know for certain  that molestation has occurred: "One hurdle is that acts of child molestation typically occur in private, with only the children able to testify about what has transpired." He then applies the Ramo (Choshen Mishpat 35:14) that in circumstances where the   only individuals present are minors, they  can testify with respect to actions  committed in that venue. However, it seems   to me that the Ramo is not applicable in our situation, because   we are dealing with minors who are the injured party, as is quite clear from the quoted section above. The Ramo did not   permit "testimony" from minors if they are the Baal Davar  (plaintiff or defendant), as that is not "testimony" and they are   not "witnesses" but rather Baalei Davar. [The Shach and Aruch   Hashulchan say that even relatives are not included in the Ramo's rule, Kal V' homer the Baal Davar.] The only   applicability of the Ramo would be if a minor witnessed an act of molestation  committed against another person, which is of  course not the typical situation and is not what is being   discussed here.

Sincerely,

Rabbi Binyamin Cohen

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Journal of Halacha and Contemporary Society Spring 2013

Letters

To the Editor:

In the Fall edition of this journal [LXIV], Rav Binyamin  Cohen, sh'lita, comments on an earlier article about child  molestation. There, the author had relied on the ruling of  Ramo [CM 35:14], that it is permissible for beit din to accept the  testimony of a minor if there is no other choice. Rav Cohen  argues, however, that this ruling should not apply to a child's  accusations about what was done to him, because he is a  litigant in the matter, and the testimony of a litigant is not  acceptable in a Jewish court. (On the other hand, if the child is  testifying about something he saw being done to another  person, Rav Cohen would allow Ramo's ruling to apply.)

However, I wish to point out what I think is a fundamental  error in his objection: in these situations, our batei din are not  sitting in judgment concerning punishment or payment. They  are seeking to protect the members of the community, trying  to determine whether the accused offender is to be dismissed  from the position which gives him opportunity to molest.  Their function is not to gather "evidence", but rather to make  a finding according to umdenah (a logical or reasonable  inference: even circumstantial evidence). Anyone's "testi­mony" can be used to establish an uindenah.

The problem of molestation in a community therefore does  not go under the label of nezikin (damages) but rather under  the rubric of hilchot rotzeach ushemirat hanefesh (laws of murder  and protecting life), and the batei din are simply there to  protect the victims. If it is necessary to incarcerate the  offenders in order to protect the victims - so be it.

Rav Dovid Cohen
  Brooklyn, NY

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