Volume 19 Number 89
Produced: Wed Jun 7 10:09:47 1995
Subjects Discussed In This Issue:
Betrothal of Minors
[Eliyahu Teitz]
Child brides
[Jack Stroh]
Dealing with fathers who marry off their young daughters
[Issie Scarowsky]
Kedoshim Tihyu
[Micha Berger]
Marrying Minor Daughters
[Eli Turkel]
Marrying off Minor Daughter
[Alana]
Minors and Emotions
[Zvi Weiss]
The Husband is Psychotic
[Akiva Miller]
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From: <EDTeitz@...> (Eliyahu Teitz)
Date: Tue, 6 Jun 1995 13:45:47 -0400
Subject: Betrothal of Minors
The following are general comments on some of the suggestions of the
past two weeks:
Any suggestion that relies on broad acceptance by rabbinic authorities,
in my opinion, is doomed to failure. See this past week's NY Jewish
News, which quoted 'a noted Boro Park rabbinic authority, who chooses to
remain anonymous'. Any posek who remains anonymous is not worth his
opinion. More troubling than that though was his opinion ( which I am
sure will be followed by many others ) that the whole issue is being
blown out of proportion. He feels that the Beit Din certainly rigged
the marriage so that it is not halachically valid.
There are a few problems with this line of thought. First, there is no
need for a Beit Din to be involved in the performance of these
marriages. Second, even if the Beit Din did rig the marriage, unless
they come forward and make this claim ( and bring proof to back
themselves up ) the father is still believed that his daughter is
legally married. I wonder if this same posek, based on his belief,
would allow his own son to marry the girl in question. If not, then his
claim is worthless. And even if he allows it, I would warn my children
not to marry any issue of that marriage for they are safek mamzerim, if
not actual mamzerim.
But what the whole line of reasoning shows very clearly is that there
are many rabbonim who do not see this matter as needing any halachic
remedy. So that basing an answer on widespread halachic support will
not be forthcoming in certain areas, thus dooming the proposed solution.
For this reason, any cherem hakehilla ( community wide ban ), as
suggested by Rabbi J. David Bleich, will similarly not work.
There was an article in the Jewish Press about this matter as well. I
feel that the author of the article was being very misleading in the
sources that he brought. First he quoted sources about marriage of a
minor by the mother or brothers, which is totally irrelevant to the
matter at hand. Then he quoted an Aruch HaShulchan about dina
d'malchuta, an issue that was raised in a posting in this forum. Even
if the law of the land prohibits marriages of minors, this would only
cause a problem l'chatichilla ( before the fact ) that it would not be
our policy to do such marriages. However, after the fact, the girl is
still married. This does not even touch on the entire issue of whether
dina d'malchuta applies in such situations or at all when dealing with
legislatures as opposed to monarchs.
Others wanted to nullify the marriage based on an idea of agency
(shlichut). This does not work. The father is not an agent for his
daughter ( minors can not appoint agents ). Furthermore, there is a
rule concerning agency that an agent can only act in a manner that the
original person can. For example, if a man made a shaliach to deliver a
get to his wife and then the husband is declared halachically
incompetent, the agent can no longer deliver the get. There is a
specific halacha that a father may marry off an incompetent daughter, so
this shows that the father is not acting through the power of sh'lichut.
Another possibility raised was that the G'mara states that there is an
issur to marry off one's daughter nowadays, and that Tosfots' leniency
regarding the plight of Jews in galut not being applicable the original
decree should come back into effect. There is discussion of this in
Otzar HaPoskim ( I do not have the sefer with me for the exact citation)
and the bottom line is that l'halacha, the g'mara is quoted not as an
issur ( prohibition ) but rather as 'We don't do this sort of thing'.
This being the case, it seems that l'halacha the prohibition was not
accepted and therefore the marriage would remain valid.
Finally I would like to raise a possible solution for everyone's
consideration. If a man, when he marries a woman makes a declaration
that he relinquishes all rights to the woman's property as relates to
inheritance, such a statement is valid ( it is in fact used for second
marriages where there are children from the first marriage, and the wife
wants her property to go to her children and not to her new husband ).
Such a statement is valid even though it is a davar shelo ba l'olam, a
situation that does not presently exist ( the man does not have rights
to the property yet and he is reliquishing his claim prior to having any
such claim ).
What if a man reliquished his rights vis a vis marrying off any
daughters he might have ( while they were minors ). As we see in Rama (
Even HaEzer 37, quoted in this forum previously ) a father can
relinquish such rights after his children are born. But based on the
previous halacha, he may relinquish rights that are not yet his. The
problem of davar shelo ba l'olam does not arise here because it is not a
sale; rather it is a person giving up something that might come to him,
which with proper intent can be done. So if women insisted on such a
document prior to continuing the marriage ceremony we could possibly
resolve this matter. There are even opinions that once this right is
released the husband can not retract his commitment. According to those
that allow him to retract we can structure the statement 'al daas rabim'
( by the opinion of the masses ) which effectively renders any attempt
to recant as null and void.
I await your scholarly responses.
Eliyahu
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From: Jack Stroh <jackst@...>
Date: Thu, 1 Jun 1995 22:21:47 -0400 (EDT)
Subject: Child brides
I join in the chorus of appalled fathers of Jewish daughters who are
looking for a way to "fry these guys." I applaud Michael Lipkin's
response (that a well positioned baseball bat between the eyes might
solve our problem) but don't see how we could actually legally (in a
civil court) defend ourselves against assault and battery charges. I
would much prefer we police ourselves in the USA, but, alas, we are too
splintered and can always find one Rabbi to take even an injurious stand.
I think what we might have to do is go after the "bridegroom" on this one
and claim to the authorities that this is a case of statutory rape. In
addition, there must be some sort of civil law against selling a minor to
another(with a dowry) akin to child slavery. Hopefully, we can solve this
one soon (the Refuah always comes before the Machalah- the treatment
precedes the illness).
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From: Issie Scarowsky <Issie_Scarowsky@...>
Date: 1 Jun 95 16:11:46
Subject: Dealing with fathers who marry off their young daughters
Three practical ideas for dealing with the problem of men marrying off
their young daughters:
-Encourage women who are married to anyone involved in the process,
including the organizations supporting this behaviour, to withhold
marital relations until the names of the girls' husbands are revealed
and the girls are divorced and free.
-Use the courts and/or child welfare organiztion to arrest the father
for entering into a marriage arrangement for his under-age daughter.
-Sue the father in civil court, on behalf of the daughter, for her loss
of quality of life, and for emotional stress, etc.
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From: Micha Berger <aishdas@...>
Date: Fri, 2 Jun 1995 07:39:13 -0400 (EDT)
Subject: Kedoshim Tihyu
In all this discussion about agunot and malicious fathers we've been so
busy looking within the dinim of marriage to find a prohibition that
we've ignored the obvious:
- Kedoshim tihyu - you must be holy. Any menuval birshus haTorah (one
who behaves disgustingly in ways that are otherwise permitted by the
Torah) violates this one.
- Vi'ahavta lirei'achah kamochah (love your friend as yourself). This
one would include a man who refuses to give a get even according to
the tanna who translates "re'achah" to mean your spouse.
-micha
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From: Eli Turkel <turkel@...>
Date: Wed, 7 Jun 1995 11:31:35 +0300
Subject: Marrying Minor Daughters
I asked an Israeli lawyer what would happen in such a case in
Israel. He said he was pretty sure that it was a criminal act to marry
off minor children (enacted to prevent Yemenite fathers from practicing
this). Furthermore, he suspected that besides criminal charges one could
sue the father for damages on the ground that she could no longer marry
a Cohen even if the husband agreed to a divorce.
There was an article in the Israeli newspaper Ha-aretz a short
while ago about "enforcement squads" in some neighborhoods to enforce
modesty rules. That with the approval of some "bet din" these squads
beat people up, force them to leave the community or even break bones if
rules were not kept to their satisfaction. A friend of my son was
recently sitting in a car in Bnei Brak with his girl friend when someone
came over to tell him to move or else.
I have grave doubts that a jury in the US would convict a woman for
hiring someone to beat up her husband who would do such actions.
Also I am interested to know if any major organizations have come
out officially against such deeds and have condemned the groups that
publically offer support for the husbands.
<turkel@...>
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From: Alana <alanacat@...>
Date: Fri, 2 Jun 1995 09:27:13 -0400 (EDT)
Subject: Re: Marrying off Minor Daughter
On Thu, 1 Jun 1995, Yosef Bechhofer wrote:
> What emerges from a brief perusal is that it is
> essentially impossible, in the absence of a Sanhedrin (Parenthetical
> Note: It may be imperative to reconvene the Sanhedrin at this juncture
> just to curb these evildoers!) to annul a marriage after marital
> relations have taken place.
This shouldn't be a problem though. Half of the issue is that the father
refuses to produce the man so that there can be a get. If he won't
produce the guy, how could there have been "marital relations"? If there
had been, surely at least the daughter would know who the man was.
Therefore there should not be a problem with annulment.
> It is also essentially impossible for a
> specific community, even before a Kiddushin ceremony, to enact an
> ordinance and decree that the marriage of any person who does not abide
> by that ordinance (such as, that marriages only take place in the
> presence of ten men - not Halachically required for the "Kiddushin", but
> only for the "Chuppa" or "Nisuin") and marries in fragrant violation
> thereof, is null and void. (The material on this issue is extensive,
> both pro and con the validity of such a decree, but the preponderance of
> opinion is that a local ordinance does not possess sufficient
> authority).
It should not be merely a specific community. It should be Jewish
leaders,as a whole, everywhere. That should take care of this problem.
Nevertheless, even barring that most (b/c I know there would be a few
disgusting people who would refuse to go along with the idea) of the
Jewish community should issue this decree, if there is a reasonable
minority opinion in favor of the possibility of local ordinance, that
should be reasonably acceptable.
> There is ample Halachic evidence, however, that an ordinance,
> backed up by a decree of annulment, issued before the fact (i.e.,
> unfortunately, this ordinance would not help ex post facto for any
> heinous act already perpetrated by an evil father, but would only apply
> to future cases), accepted by all the communities throughout the land
> (in our case, the United States) would in fact be sufficiently
> authoritative to render any Kiddushin performed in violation of the
> ordinance null and void!
In addition, while we're doing this, we should also be issuing decrees
to assist the problem of adult agunot. For example that no ketuba may be
written until a tenaim is signed that states that in the case of a civil
divorce both partners agree to appear before a bet din in order to give
a get and the partner who refuses is liable to monetary penalties (there
is such a document that is legally and halachically binding upon even
the O.) etc. That there has been no great outcry until children were
involved is a disgrace to Jews everywhere.
Alana
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From: Zvi Weiss <weissz@...>
Date: Fri, 2 Jun 1995 12:55:50 -0400 (EDT)
Subject: Minors and Emotions
1. Re Akiva Miller's comment about coercion. Halachically, a minor has
no "Da'at" to speak of -- except where CHAZAL made some enactment.
Thus, it does not appear to be meaningful to speak of "coercion" (in the
*halachic* sense!) where Da'at does not exist. Thus, Akiva Miller's
plea that this is coercive is simply not true halachically speaking --
at least not in a menaingful halachic sense (of course, it is unbearably
coercive to force a minor female into an intimate relationship...)
2. The definitons of the Pesulai Eidut (the disqualifications from
testimony) are quite specific. Despite the horror of the situation, one
cannot simply redefine the terms of Rasha D'Chams and/or sins with
Malkot to meet one's wishes. According to normative halachic standards,
it appears that the the actions of the father and the witnesses does NOT
meet those definitions and is thus likely to remain as valid.
3. That being the case, I would strongly prfer a solution where we
actively try to invalidate the witnesses (if we can find out who they
are) by quizing them about the event until they contradict each other.
Since witnesses are, I believe, qusetioned *separately*, there seems to
be a good chance of tripping someone up. Invalidating the testimony
clearly bypasses the father....
--Zvi
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From: <Keeves@...> (Akiva Miller)
Date: Fri, 2 Jun 1995 00:17:32 -0400
Subject: The Husband is Psychotic
Susan Hornstein wrote in 19#82:
>This possible solution was suggested by someone (whose name I do not
>have permission to use) as an idea put forth by Rav Herschel Schachter.
>Perhaps a person who would so brutally use the Halacha to harm 2 people
>(daughter and wife) must be considered a Shoteh (psychotic being the
>most useful translation) and therefore an invalid participant in a
>halachic proceeding. Even a person who would refuse his wife a get
>(without having committed the additional atrocity of using his child as
>a pawn) might fall into this category. If the man was considered a
>Shoteh, the child's marriage would be invalid, and there may be room for
>movement in the Get issue as well.
Sounds to me like a good idea for the current issue, but it would be
*counter*productive* for get issues. If you declare the man to be a shoteh,
then he is *unable* to give a get for lack of free will / informed consent.
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End of Volume 19 Issue 89