By Rabbi Yair Hoffman for the Five Towns Jewish Times
It is an unfortunate reality that people have been stealing from the pushka in shul, perhaps since the pushka was invented. The topic, however, is in the news much more nowadays. The reason is, in all likelihood, on account of the precipitous rise in those ubiquitous surveillance cameras.
In previous times some of the stronger shul or community members would lie in wait, breathing very quietly, in order to catch the offender.
No longer. Now it can all be done even lying on the couch sipping lemonade while accessing the surveillance software through one’s smartphone. Two recent cases in the news bring this issue to the fore.
WHAT TO DO?
But the question is, what does one do with the ganaf when he happens to be an “insider” or a shul-member’s son?
There are generally three choices – none of them very good ones. Do you call the police on him and press charges? Do you ignore it and let him off with a weak warning? Or do you teach him proper fear of heaven by utilizing the bigger members of the minyan? Of course each community should consult with a Posek as to what should be done, but the following overview may be helpful.
IS CALLING THE POLICE CONSIDERED MESIRAH?
Would calling the police be considered Mesirah? According to many authorities, the halachic prohibition of Mesira is defined as informing upon another Jew where he or she would be subjected to punishment in a legal system not based upon Torah values. The laws of Mesirah are discussed in chapter 388 of the Choshen Mishpat Section of Shulchan Aruch.
The Talmud and halachic authorities inform us that, unless there are special circumstances warranting it, it is a very severe prohibition to inform upon a fellow Jew to the secular government. This is true even if the person being informed upon is in violation of secular law, Jewish law or is the source of great aggravation. It is true even if the secular government were to follow what would amount to the equivalent Jewish law on the particular matter.
Aside from these special circumstances, the prohibition of Mesirah is most severe; the Rambam tells us (Mishna Torah, the Laws of Teshuvah 3:12) that an informer has entirely lost his or her share in the world to come. The words of this Rambam are not an exaggeration designed to engender fear and prevent Mesirah from happening. The manner in which all halachic authorities cite and quote this Rambam is clear – the Rambam meant it literally – the informer has forfeited his or her share – unless, of course, the criteria of the exception circumstances were met.
The Gemorah in Rosh HaShana describes the horrifying Gehenam-filled fate of someone who engages in Mesirah. The Shach (Yore Deah 388:53) cites a number of authorities (Tosfos and Hagaos Ashri) that someone who actually converted to another religion is better off than someone who engaged in Mesirah – unless, of course, there are extenuating or special circumstances.
SPECIAL CIRCUMSTANCES EXCEPTION
What might be an example of the special circumstances? The Maharam Schick (1807-1879) in a responsum in the Choshain Mishpat section of his writings (#50), deals with a case where there was substantial evidence that a woman had killed her husband. He concludes that if, according to Jewish law, the evidence would have been sufficient to punish her, then she must be turned in to the authorities on account of the verse, “uviarta hara mikirbecha – and you must eliminate the evil within your midst.”
Is the prohibition of Mesirah still in full effect in our contemporary society? Some have made the argument that anti-Semitism does not play a role in the dispensing of justice in this country. Others claim that this may be true in some parts of the country – but in light of the comparatively severe sentencing given to a number of ostensibly observant Jews;, this is not altogether true.
IS AMERICA DIFFERENT?
So how do the Poskim view the prohibition of Mesirah in a just, western democracy?
THE LENIENT VIEWS
HaRav Yechiel Michel Epstein, one of the foremost Poskim of the 20th century and the author of the Aruch haShulchan differentiated between older corrupt governments and the honest governments of Europe (see CM 388:7), and especially the Czar’s government in terms of the prohibition of Mesirah. Some Poskim have said, however, that this paragraph was obviously inserted on account of the heavily anti-Semitic Czarist censors, and that it did not reflect the Aruch haShulchan’s true thinking on the matter. Yet, on the other hand, it is difficult to understand why the Aruch haShulchan would write so extensively in order to merely appease the censors.
In a similar vein, Rabbi Eliezer Yehudah Waldenberg in his Tzitz Eliezer (Vol. XIX #52) cites the Aruch haShulchan and concludes leniently. Rav Waldenberg was writing in Eretz Yisroel and did not have the same issues of censorship that it is claimed the Aruch haShulchan may have had. By the same token, Rav Yitzchok Shmelkes in his Beis Yitzchok (YD 49:12) concludes that an informer, a Moiser, does not have the halachic status of a Rodef because imprisonment does not lead to danger to life. Indeed, he concludes that informing does not even negate one’s eligibility to give testimony in a Jewish court of law.
Rav Shmuel Wosner zt”l in Shaivet haLevi Vol. II YD 58 cites the Gemorah in Bava Metziah (83b) to explain that when the issues are strictly of a financial nature, the laws of Dina D’Malchusa Dina – the law of the land is the law does apply and under Rabbinic guidance there may be room to be lenient.
THE MORE STRINGENT VIEWS
Rav Moshe Feinstein discusses the issue in two places. In Igros Moshe Orach Chaim Volume V (9:11) he discusses whether one may turn in a thief to the authorities. He concludes that when the punishment he will receive is so foreign to and in excess of Torah norms, it is not permitted to violate Mesirah.
Rav Moshe also deals with (CM I #8) the permissibility of a religious Jew serving in an accountant position to ensure that companies are in compliance with government regulation. There he concludes that it is permitted based upon the combination of two reasons – 1] that someone else would be doing it anyway and 2] his job is determining that the rules are being followed which is technically not Mesirah.
Rav Ezra Batzri in Dinei Mamonos 4:2 footnote five (p. 86) holds that Mesirah in not justifiable in contemporary society and makes the point that it is by no means clear that we are a just and fair society.
Being that the repercussions are so fraught with danger, it is better not to make that judgment call oneself and only do so after significant consultation with a qualified Posaik.
SO WHEN MIGHT IT BE PERMITTED?
The Shulchan Aruch (as amended by the Shach in 388:12 and 10) rules that if a person is causing significant distress to an individual, it is, nonetheless, completely forbidden to perform a Mesirah. If, however, the entire community is suffering then, after the person is warned (see Vilna Gaon and Sanhedrin 72b), they may report the offender.
Our question is would stealing a Pushkah be considered something in which the entire community suffers? If the funds were more significant – it would be understandable. However, in America, Pushkas, perhaps, may not seem to constitute such a significant source of funding to be considered that the “entire community is suffering.”
On the other hand, breaking into a shul should be something that is taken more seriously as it should be looked at as a major breach. As a fascinating sidenote, the Chasam Sofer (Gittin 7a) explains that the difference between an individual and the community is that for an individual loss there are people that are willing to take up the challenge themselves, but not for the community. That being the case, outsourcing it for the community was made permissible in order to protect the public interest.
THE SECOND OPTION
The second option of doing nothing runs the risk of allowing the person to develop further in his criminal ways. When Shlomo HaMelech (Mishlei 13:24) writes, “He who spares the rod hates his son..” – he was informing us of the far-reaching consequences of not nipping criminal behavior in the bud.
OPTION NUMBER THREE
The third option of physically ensuring that the offender not succumb to criminal activity again may, perhaps, be something that is allowed under Jewish law, but, in fact, is strictly forbidden under secular law. We will begin with the secular law. In New York State, for example, there are three classes of assault. Third degree assault, the most minor, is punishable by up to one year of jail plus fines. Second Degree Assault makes you a convicted felon and is punishable by up to seven years in jail. Third Degree Assault is punishable by up to 25 years in jail.
In halacha, there is a concept called Migdar Milsah (See Tashbatz Vol. III #168 based upon Yevamos 90b) where the Tuvei Ha Ir or the Roshei Kahal can apply corporal pressure to ensure that justice is served. Even though the Bach on the Rif in Perek HaGozel qualifies this as only leaders of the entire generation may do so, the practice in Europe was to allow the communal leaders to do so.
THREATENING MESIRAH
What about just threatening Mesirah? There is a story going around (we all certainly hope that it is not true) that a woman wanted a day care center to take in her child and was told that there was no more room.
She then told the operator that if they did not take in her child, she would promptly report them to the authorities. Rav Dovid Morgenstern Shlita, a Rav and Posaik in Yerushalayim and the right-hand man of Rav Elyashiv zatzal informed this author after consulting with Rav Elyashiv, that when a Mesirah is not warranted, there is absolutely no heter to cause someone such an anxiety even by threatening to do a Mesirah. Indeed, the Maharik (Shoresh 126) rules that someone important who threatens to do a Mesirah is forbidden to give testimony and is considered Pasul Le’Aidus.
OTHER FACTOR
This author would like to suggest an altogether new factor that might have very significant bearing on the decision as to what to do. That factor is that in breaking into the shul and stealing the Pushka – there may be a serious issue involving Pikuach Nefesh – saving a life.
Whose life?
The life of the ganaf.
The main reason that people are stealing is to obtain drug money. A prominent doctor recently informed me that in our community alone there have been ten drug-related deaths within the past 18 months. Drugs are no longer a no longer are a societal problem that has eluded our own community – it is a problem that has attacked our community too and coddling the ganaf may be the very worst thing we can do for him. It is this author’s view that stealing a shul pushka may be indicative of a drug problem and of a future overdose, may the Merciful One save us.
In order to save this young man’s life it could very well be that he, in fact, should be arrested and forced by a judge to attend a drug rehabilitation program. Many young men have been completely turned around by such a move. And many young men who were not arrested and charges were dropped went on to lose their lives through an overdose.
May Hashem help us all in reaching the correct decisions to make in this most difficult of issues.
the author an be reached at [email protected]
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One Response
To my knowledge, the penal code in most US jurisdictions treats theft of less than $300 as a “Class A” misdemeanor. Although the maximum penalty is a year in prison or $2,500 fine which are pretty stiff, they are maximums.
First-time offenders are usually treated very leniently (ie, dismissal of charges following “theft”-school or community service, etc).
I’m guessing that most pushkas are emptied regularly and contain far less than $300, so even arrest is unlikely and the encounter more of a “scare” tactic with the person being released with a warning. But, as the article notes, causing agmas nefesh from the mere threat of secular penalty may be assur.
More emotionally painful cases involving abuse of minors, etc., require a lot more scrutiny because the severe suffering of the victims is also in the balance, HaShem yiracheim.