UNITED STATES
Huffington Post
Bennett L. Gershman and Joel Cohen
Prosecutors often deal with crime victims who do not want to testify. Victims are afraid they will be harmed by their abusers, such as victims of domestic violence. Others are embarrassed to testify in public and undergo brutal cross-examination, such as rape victims. Others are traumatized by the courtroom and having to face their abuser, such as child victims. The law has tried to accommodate these concerns through witness protection programs, rape shield laws, and closed circuit testimony. But sometimes the opposite happens: victims want to testify against their abusers but face pressure from friends, family, and powerful members of their own community not to cooperate with the authorities.
Recent disclosures have revealed that some ultra-Orthodox Jewish leaders, particularly in Brooklyn, N.Y., routinely pressure victims of child sexual crimes to not complain publicly against their abusers. Charles Hynes, the experienced district attorney in Brooklyn, N.Y., has been criticized of for appearing to allow these rabbis to dictate when and under what circumstances sexual abuse charges may be brought. Indeed, it certainly looks like obstruction of justice for rabbis to pressure a crime victim not to complain. As reported in the media, these religious authorities have repeatedly warned child victims of sexual abuse and their parents not to bring criminal charges against other Jews, claiming that it violates Jewish law, damages the reputation of the Orthodox Jewish community, and stigmatizes the alleged abuser and his family if the accusation is not true. When victims did not heed these warnings — even after being offered large sums of money not to complain, ostensibly for “therapy” for the child — they reportedly faced severe consequences — they were expelled from schools and synagogues, ostracized by the community, threatened with harm, and publicly humiliated, even spat upon. Mr. Hynes reportedly was assured by these rabbis that accusations would be allowed to be brought, but only if the rabbis first determined that the allegations were true.
What is going on here? Have these rabbis been delegated the “gatekeepers” of the criminal justice system? Should any government official ever permit religious leaders unilaterally to dictate public policy? The notion that a religious leader has been given the power to decide whether a member of his community can bring a criminal complaint poses a clear challenge to the First Amendment’s Establishment Clause by entangling religious leaders — either explicitly or implicitly — with the secular legal system’s prosecutorial decision-making process. Indeed, should church officials be allowed to decide whether a priest or minister alleged to have engaged in wrongful conduct be prosecuted? Should Native American tribes be allowed to decide whether one of its members should be exempted from prosecution for a criminal offense? Should a university be allowed to determine whether discipline should be imposed on one of its football coaches for child sexual abuse instead of criminal prosecution?
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