Six Things Broyde Gets Wrong about Abuse

By Asher Lovy
New York Jewish Week
March 6, 2018

http://jewishweek.timesofisrael.com/six-things-broyde-gets-wrong-about-abuse/


While I’m not entirely sure what prompted Rabbi Michael Broyde to write the article he published in the Jewish Week last Tuesday offering six policy suggestions to address sexual abuse, there were a few things that struck me as odd about it. First, it coincided with the legislative day at the state capitol of the New York Coalition to Pass the Child Victims Act. That, coupled with the points he makes later in the article about the irrelevance of “ancient” cases, was enough to give me pause. But as I read through the article, it seemed increasingly like a policy statement written by an institution trying to hedge its bets on sexual abuse.

I’d like to offer some commentary and rebuttal to his six points.

He starts off seemingly calling for transparency, and makes an open appeal to victims of abuse and their families to report abuse immediately to the proper authorities. I say seemingly, because instead of coming out and saying that, he instead says, “When there is a reasonable basis for allegation of abuse, the proper secular authorities must be called and the person in question must be subject to a thorough and complete investigation by them.”

That statement sounds remarkably like Agudath Israel’s 2011 psak on the issue of reporting sexual abuse, which includes, in its fifth clause, a line that states: “Because the question of reporting has serious implications for all parties, and raises sensitive halachic issues, the individual should not rely exclusively on his own judgment to determine the presence or absence of raglayim la’davar. Rather, he should present the facts of the case to a rabbi[.]”

Rabbi Broyde attempts to reassure readers in his next sentence. “This cannot be done by a panel of rabbis or by members of a school board.”

The language in his first point is puzzling, because a reasonable person would assume that only people with a reasonable basis for alleging sexual abuse would allege sexual abuse, but his second point disappointingly offers clarification: “Second, we must recognize that false accusations are sometimes raised; the rights of those who have been accused are also important.”

Yes, false allegations happen. They do happen… roughly two percent of the time. It is therefore surprising that this would be the second of six points in his plan to fight sexual abuse. He seems, however, to be setting readers up to be more open to the idea that reports not only can be, but often are, false.

Broyde goes on to say that while “media plays an important watchdog role…they are almost never the right channel to conduct such an investigation.” He warns: “Particularly in an era of anonymous Internet accusations, we have to maintain a presumption of innocence in the face of an accusation.”

Presumption of innocence until proof of guilt is a legal standard that often gets grossly misapplied in the public discourse surrounding sexual abuse. While it is certainly a principle to which we should adhere as a society, neither the law, not the principle, require us to be credulous idiots. For the purposes of due process and maintenance of civil liberties, innocent until proven guilty is a standard we use in court to ensure that those charged of crimes are given a fair trial. The law, neither in spirit nor letter, requires that someone who stands accused of raping or molesting a child must be hired as a babysitter, schoolteacher, or tutor.

Rabbi Broyde bemoans the “low threshold to guilt” which “drives competent people out of communal service,” while offering no examples beyond this hypothetical strawman to back up his concerns. Particularly in a community where silence, coverup, and ostracism of the victim has been commonplace, it’s more than a little disingenuous to condemn those in the press and the watchdogs who have worked for over a decade to expose harmful predators—despite the community’s best efforts to the contrary—often at great personal expense.

In fairness, however, that’s his next point: “These observations are only of value if we open ourselves and our institutions to external investigations that punish those who are guilty and exonerate those who are not.”

Yes, were the community more open to allowing the proper authorities to handle abuse allegations, as opposed to immediately attempting to silence victims and sweep abuse under the rug, those of us who are concerned with the safety of our community’s children might not have to rely on the actions of the press, bloggers, and activists who have been putting themselves on the line to hold the community accountable.

He continues: “Procedure needs to be in place so that when an investigation takes place, names and accusations are not released to the public until there is a determination that such is proper.”

When investigations are conducted by law enforcement, names are not released until an arrest is made. Once an arrest is made, the name of the arrestee, and the charges for which an arrest warrant was issued, are both made available to the public by law enforcement, and often get publicized by local, occasionally national, press, and various watchdogs.

Occasionally, when there are no arrests to be made, often because the statute of limitations has already expired, or because of concerted community efforts to cover up the abuse, victims will take their story to the press, who investigate and report what they believe to be the truth. Additionally, due to the prevalence of coverup in the Orthodox community, there are a number of watchdog organizations, most notably Jewish Community Watch, which will conduct their own investigations, and if they deem the case credible, will warn the community about an alleged abuser they believe to be a threat. In such cases, defamation laws act as a deterrent to false reporting through the press or watchdog groups.

As I stated earlier, innocent until proven guilty does not require that we act like credulous idiots until a jury hands down a verdict. Best practices suggest that during an investigation, an alleged abuser be suspended from any position they may hold which brings them within proximity to or gives them authority over children, and that they be monitored in settings with unsupervised children.

Broyde then calls on us to make sure we differentiate between various forms of abuse—physical, emotional, and sexual. “Sexual contact with students ought to be prosecuted to the full force of the law, and it should not be tolerated anywhere in our community. Physical contact and emotional abuse are more complex and hard to evaluate, and should be left to experts to determine.”

While we agree on proper procedure for alleged sexual abusers, I’m not sure, however, how he’s suggesting the community handle cases of alleged physical, or emotional abuse. In fact, school faculty, clergy, babysitters, etc., who are accused of physical and emotional abuse should be suspended pending investigation.

Physical abuse is very clearly against the law and should be reported immediately to authorities. While the law has yet to catch up to our understanding of emotional abuse, any allegations of emotional abuse should be taken seriously, and thoroughly investigated. Having suffered sexual, and physical, as well as emotional abuse, I can say with certainty that all leave lasting scars and can cause lasting damage to a child unless properly addressed.

He is right, though, we definitely need a “better system for checking references for teacher-candidates.” Fingerprinting and background checks should be standard practice in all yeshivos for faculty candidates.

His fifth point is what hits closest to home for me. For the past twelve years, activists in New York State have been attempting to pass the Child Victims Act, which would eliminate the civil and criminal statutes of limitations prospectively, and open a one-year retroactive window during which civil cases, whose statutes of limitation have previously expired, could be brought to court. New York State is one of four states, including Michigan, Alabama, and Mississippi, with appallingly short statutes of limitation.

Allowing the victims of old cases to sue in court accomplishes two things. First, given the often staggering expense of treatment over the lifetime of survivors of sexual abuse, survivors would be able to shift the burden of payment to the abuser, where it belongs. Second, and perhaps most importantly, it would allow survivors to legally identify their abusers to the public.

Most cases of sexual abuse are never reported. The ones that are usually get disclosed decades after the incident. Of the cases that are reported, the majority of cases never reach a courtroom. Of the ones that do, a vast majority never result in conviction. And yet, according to many studies, 1 in 4 girls and 1 in 6 boys under the age of 18 have been sexually abused, mostly by family members, or acquaintances. In states with short statutes of limitation, the vast majority of abusers walk free. On average, each abuser can have dozens of victims over the course of their life. Opening the retroactive window would allow survivors to identify those predators who have, thanks to these short statutes of limitation, been free from prosecution for all these years, many of whom have continued to abuse others.

The retroactive window would also allow to suits against negligent institutions. Under the law, institutions are negligent if they knew about abuse happening in their institution and either did nothing about it, thus allowing more abuse to take place, or actively engaged in coverup. Most institutions, in New York at least, are insured against judgments from such lawsuits. However, since insurance companies often adjust their costs and prerequisites for issuing policies based on past payouts that they’ve made on behalf of their policyholders, it’s not only imperative that institutions be sued for past negligence to disincentivize future negligence, but also to make certain that insurance companies themselves will insist that institutions adopt more rigorous preventative measures in the future before issuing new policies.

Being that the nature of the crime itself almost guarantees delayed reporting, often because of threats, both implicit and explicit, made by the abuser; the shame the victim feels; and communal, family, and social pressures, among a host of other factors, a short statute of limitations ensures that most cases will never be reported. It is this gross injustice that the Child Victims Act seeks to correct.

Along with the Catholic Church, and Boy Scouts of America, Agudath Israel has been fighting tooth and nail against the Child Victims Act. One of their favorite talking points is Broyde’s fifth on his list:

“Fifth, the distant past is long behind us, and secular law has statutes of limitations for a good reason. It is both very hard to prove and very hard to disprove allegations of misconduct and abuse when they are decades old. None of this should diminish our deep empathy for those who were abused, and we need to do all that we can do to help reduce their pain and encourage therapy for the victims and repentance by abusers.”

Broyde and Agudah may wish the distant past were long behind us, but if my PTSD, and the PTSD, eating disorders, depression, suicidal ideation, addictions, and relationship issues of my fellow survivors have no statute of limitations—if we don’t get to turn off all the pain we experience daily at some arbitrarily predetermined date—then neither do our abusers, or the institutions responsible for enabling them. We don’t forget what happened to us. We remember it all too well. It haunts many of us, hurting us years, decades, after the abuse itself is over. Broyde’s “deep empathy” matters about as much to survivors as “thoughts and prayers” matter to the victims of mass shootings. Actions speak louder than words.

Furthermore, if Broyde were really concerned with making sure survivors get the treatment they need, he would be standing with us on the front lines in our state houses, fighting for the Child Victims Act, so that survivors can hold abusers, and enabling institutions, responsible for paying the costs of the abuse they perpetrated and covered up.

I’m all for addressing “the problems of abuse in a way that allows us to avoid the terrible pitfalls that other communities have suffered,” but if Michael Broyde’s idea of “a nuanced solution” involves broadly casting doubt on the claims of survivors of child sexual abuse, and insinuating that we are responsible for promoting “solutions that destroy all that is good in the Jewish educational system as a casualty of rooting out abuse,” then his motives as someone who claims to harbor “deep empathy” for us are, to say the least, suspect.