Unchained reaction
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Rabbi Mendel Epstein (left) has been hailed as “one of the foremost experts” on Jewish divorce law. Rabbi Martin Wolmark is a member of the Agudath Harabonim religious court. Both have worked on behalf of agunot. Now, both are in a federal prison in Trenton, charged with arranging a kidnapping to force a husband to give his wife a divorce.
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It was a crime a thousand years in the making.
On September 29 – so the FBI alleges in a criminal complaint filed in the U.S. District Court in Trenton – Rabbi Mendel Epstein drove from Brooklyn, across state lines, to New Jersey’s Middlesex County to case the joint.
Would a warehouse there really be a good location to lure a man to in order to beat him and force him to grant his wife a religious divorce?
Epstein saw that it was good, according to the allegation, so four nights later he drove to Monsey, where he met with Rabbi Martin Wolmark, the head of Yeshiva Shaarei Torah there, and convened a religious court that promised, in exchange for $50,000, to procure a divorce for a woman who was, in fact, an undercover informant.
Epstein was recorded explaining the next step: “What we are going to be doing is kidnapping a guy for a couple of hours and beating him up and torturing him and then getting him to give the get,” meaning the religious divorce.
You can learn a lot about the laws of Jewish divorce from reading this criminal complaint.
Also about torture techniques.
Epstein favored electric cattle prods.
“If it can get a bull that weighs five tons to move… You put it in certain parts of his body and in one minute the guy will know,” Epstein explained.
Or in the words of the Daily News headline after the FBI made the arrests last week: “Shock and Oy!”
All told, 10 suspects were arrested in New York and New Jersey, including the two rabbis, a kidnap team, and a scribe prepared to use feather quills to write the traditional divorce document.
They all are being held without bail in Trenton.
The quirks in Jewish law that make religious divorce so difficult have provided fodder for family and civil court for decades.
Now, in the 21st century, the case of the agunah – literally, a woman chained to her ex-husband, a man from whom she may be legally divorced but to whom she remains married in religious law – has become a federal case.
And behind the case, explaining the wire transfers and the scribe and the cattle prod and the van with darkened windows, lurks the unlikely specter of Moses Maimonides, who decreed more than 800 years ago that a Jewish court can decide that a man must divorce his wife, and having thus ruled, the court can whip him until he says, “I want to divorce her.”
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Consent under torture may sound like a tortured definition of consent. But for halacha – Jewish law – consent is the key question, because divorce – as described by the Torah, elaborated in the Talmud, and then debated by another millennium of rabbis – is generally the sole prerogative of the husband.
It all starts with Deuteronomy, which puts it like this: “When a man takes a wife, and marries her, then if it comes to pass that she find no favor in his eyes, because he has found some unseemly thing in her, that he writes her a bill of divorcement, and gives it in her hand, and sends her out of his house….”
Note that it’s all up to the man.
The Talmud softened that, and gave situations where a man could be compelled to divorce his wife.
Which naturally raised the Talmudic question: Were the Talmud’s examples the only cases where a divorce could be compelled? Or were they simply a representative sample?
Maimonides ruled that even in a case where a woman had no specific grounds to explain her desire for a divorce other than her disgust with her husband, “We force him to divorce her immediately, for she is not as a slave” – though the woman does not receive the divorce settlement promised in her ketubah – her marriage contract – when she leaves of her own volition.
This view was rejected by Ashkenazi authorities. Rabbenu Asher, who lived in Europe a century after Maimonides died in Egypt, described the Maimonidean position as “perplexing.
“How can one justify forcing a husband to give a get and to set a married woman free? Let her not have relationships with him and let her remain an eternal widow, for she is not commanded to beget children and merely because she desires to follow the fancy of her heart and has cast her eyes upon another and desires him more than the husband of her youth, shall we give in to her lusts, and force her husband who loves the wife of his youth to divorce her, God forbid?”
Between these two medieval positions are generations of rabbinic debate back and forth – and, if the FBI affidavit describing Epstein’s recorded boasting is to be believed, one or two dozen customers willing to pay $50,000 to halachically end a marriage, even if they had to commit some felonies along the way.
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Orthodox rabbinic leaders were quick to distance themselves from the rabbis now sitting in federal prison.
The evening after the news broke, Rabbi Mordechai Willig, a leader of the Beit Din of America court of the centrist Rabbinical Council of America, was leading a previously scheduled session of practical rabbinic training for the National Council of Young Israel.
Willig emphasized to the participants that they can never do anything illegal, and that when one rabbi does something inappropriate, “everyone whose first name is Rabbi is sullied,” according to Rabbi Perry Tirschwell, executive director of the National Council of Young Israel.
At Agudath Israel of America, the umbrella charedi group, executive director Rabbi Chaim Dovid Zweibel suggested that the divorces beaten out by Epstein’s “kidnap team” go beyond the realm of acceptable pressure.
“There is a considerable body of opinion that you can only take steps consistent with the law of the land,” he said. “Some would question the validity of a get that was procured in those circumstances.”
But Epstein and Wolmark are hardly fringe players in the charedi world.
The Five Towns Jewish Times, an Orthodox weekly on Long Island, this week described Epstein as “the kind of guy that knows his way around the maze of divorce law as it interfaces with halacha or Jewish law. Many will say that he is one of the foremost experts on the matter.”
In August the paper published an interview with Epstein about “A bill of rights of a Jewish wife” that he had drafted. In the interview, which quickly made its way on Facebook beyond the Five Towns, Epstein said, “A wife must be treated with respect and not be abused. A woman in an abusive relationship has a right to seek a get.”
Within some circles, though, allegations of the violent side of his agunah activism seemed to be already known.
In a comment posted to the article on September 9, a reader wrote, “This man has been beating anyone he can as long as he gets paid. Where is the story of him having men and women beaten under the guise of halacha. His connections with Ken Hynes have kept him out of jail, so far,” referring to the Brooklyn district attorney who has been criticized for failing to prosecute crimes committed by charedim.
Back in the 1990s, Epstein was the target of a civil suit by a rabbi who alleged that Epstein ordered his beating by a kidnap crew that tortured him and shocked his genitals with a stun gun in attempt to force him to give his wife a divorce.
Dr. Monty Weinstein, who works in family therapy, told the Daily News this week that he’s heard stories about Epstein’s non-kosher tactics over the past few decades, but that his complaints always fell on deaf ears.
“What bothered me is that the police and courts didn’t care,” Weinstein was quoted as saying.
As for Wolmark, his prominence in the Orthodox world can be seen in a 2011 “seruv,” a document issued by the Union of Orthodox Rabbis accusing Aharon Friedman, a party in a hotly contested divorce, of being in contempt of court for not giving his wife a get.
Wolmark is one of six signatories, alongside Rabbi Yisroel Belsky, a halachic authority of the Orthodox Union; Rabbi Herschel Schachter of Yeshiva University, the OU’s other halachic authority; Rabbi Shmuel Kamenetsky, rosh yeshiva of the Yeshiva of Philadelphia and a member of Agudath Israel’s Council of Torah Sages; Rabbi Gavriel Stern; and Rabbi Aryeh Ralbag, former chief rabbi of Amsterdam and head kashrut coordinator of the Triangle K kashrut supervision organization.
“Any person who has the ability or opportunity to influence him to free Tamar Epstein [his wife] from the chains of her agunah status is obligated to do so and doing so will indeed be the fulfillment of a great mitzvah,” the seruve declared. “Tamar Epstein is hereby granted permission to take whatever appropriate steps are necessary to extricate herself from the chains of this agunah situation.”
What’s appropriate?
In August 2012, the Washington Jewish Week reported that Friedman was beaten in his wife’s driveway by two or three masked men.
Rabbi David Eidensohn, a Monsey rabbi affiliated with the radical anti-Zionist Edah Charedis movement, has opposed Schachter and his Organization for the Resolution of Agunot, which organizes public protests against men who refuse to give their wives a get.
The Friedman-Epstein case may be the highest profile case it has taken on, because of Friedman’s job: He is a senior aide to a congressman – Michigan Republican Dave Camp.
Eidensohn, who believes that even public embarrassment is too coercive, has accused Schachter of improperly quoting the Maimonidean ruling in favor of beating husbands in public lectures.
On his blog, Eidensohn noted that videos of Schachter’s lectures on agunot, where he talked of the propriety of beating get refusers, were removed from the YUTorah.org web site this week.
And indeed, at least three of Schachter’s lectures on the topic of agunah at that site, which had been there recently enough to remain in the Google search index, now return the message, “I’m sorry, the shiur you requested is not available.”
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Zweibel had other problems with the arrested rabbis’ alleged behavior – in particular, their failure to provide a proper court hearing before ruling that a divorce was mandated.
“On the surface” of the allegations, he said, “this particular scenario was beyond the realm of anything the halacha might countenance. It seems as if the role of one of the rabbis was to determine whether the circumstances justified a beit din ruling that you could force the guy. It clearly was done in a way that leaves a lot to be desired. The whole case was a sham. The rabbi didn’t go on more than a woman’s crying and signing a check. It’s very troubling” that the court didn’t hear what defense might be offered by the husband who was allegedly refusing to grant the get, Zweibel said.
The allegation that the Prodfathers – as the Daily News dubbed the white bearded rabbis nabbed by the FBI – would create an ad-hoc beit din, or court, to decide the case highlights one of the central facts of the agunah in America: There is no central rabbinical court – or even the ability to create one. There are no centralized standards.
(The same halachic issues undergird a different set of problems in Israel, where government-funded centralized courts provide the only avenue toward Jewish divorce.)
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The first American rabbinic body to offer a solution to the agunah problem was the Conservative movement’s Rabbinical Assembly, which in the 1950s introduced a modification to the traditional Jewish marriage contract, drafted by the movement’s premier Talmud scholar, Rabbi Saul Lieberman. The new clause mandated that the couple would turn to the Rabbinical Assembly’s court and obey its dictates.
While Lieberman sought Orthodox approval, Orthodox rabbis rejected the proposal without proferring suggested improvements.
“We can only hope that the apparent failure in practice of the Conservative venture will in some measure make up for the lack of foresight in initiating it,” a young Rabbi Norman Lamm wrote in 1959 in Tradition, the Orthodox journal he helped found the year before. “And at the same time, we earnestly pray that this attempt, ill-fated and ill-advised though it was, will cause our leading Halakhic scholars to intensify their search for an authoritative remedy for this most distressing problem.”
Eighteen years later, Lamm was president of Yeshiva University. And writing in Tradition on the agunah question, Attorney Irwin Haut noted Lamm’s hope that the Lieberman ketubah would prod the search for a halachically acceptable remedy for the agunah problem, adding acerbically: “Apparently, it has not.”
In fact, it was the charedi Agudath Israel organization that would take the next public step for agunot, championing a law in New York State that effectively made the giving of a get a precondition for getting a secular divorce. The law, passed in 1983, required each party in the divorce to certify that there were no barriers to remarriage – in other words, that a Jewish divorce had been given.
The law was opposed by much of the non-Agudah Jewish community on the grounds that it violated the separation of church and state, but it became law nonetheless. In 1992, the law was strengthened, allowing the family court judge to consider a spouse’s withholding of a get in dividing up property. “That one is more controversial,” Zweibel said; financial pressure is considered more serious than holding up a civil divorce, which has no halachic significance.
Did these legal efforts – which were successfully legislated only in New York State – work?
“We hear in the field that they have had an impact, but I couldn’t objectively quantify it,” Zwiebel said.
Zweibel said he has not heard of as many agunah situations as he used to years ago, even as the number of divorces has gone up in his community.
“Without a question there has been a spike in divorces and broken engagements,” he said. “We’re still nowhere near the percentage of the broader society around us, but is has been a dramatic rise.”
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In 1992, the centrist Orthodox Rabbinical Council of America came up with its solution. It introduced an agreement that couples would sign before their marriage. The agreement’s broad outline replicated the approach the Rabbinical Assembly had adopted a generation earlier, though it differed in details: It was a separate document, rather than an addendum to the ketubah; and rather than leaving future financial penalties in the hands of the beit din (in this case the RCA’s Beit Din of America), it stipulated that if a couple separated without a get, the beit din would assess spousal support obligations of $150 a day.
The document was drafted by Rabbi Mordechai Willig of Yeshiva University and came with the imprimatur of former Israeli Chief Rabbi Ovadia Yosef, renowned for both his halachic acumen and his concern for agunot.
“It was one of the major ways Rav Ovadia Yosef has positively impacted American Jewry,” said Rabbi Howard Jachter, who heads the RCA committee devoted to helping agunot, primarily through promoting the use of the prenputial agreement.
The RCA agreement passed its first court test late last year when a Connecticut court ruled in the case of Light v. Light that rather than requiring a religious performance, “the relief sought by the plaintiff is simply to compel the defendant to perform a secular obligation, i.e., spousal support payments, to which he contractually bound himself.”
“It has become a standard in the modern Orthodox community,” said Jachter, who teaches at the Torah Academy of Bergen County in Teaneck. “I told my students today, when you guys are going to get married, you’re all going to sign a prenuptial agreement.”
Jachter attributed use of the agreement (which can be found at theprenup.org) for the low incidence of agunot in the modern Orthodox community.
In the Agudah world, “the right type of prenup is at least acceptable to the most charedi type of perspective on these issues,” Zweibel said. “In practice, I don’t see most marriages in the charedi community including a prenup. As to why that is, I’m not sure.”
There’s a third factor that has come into play, beyond the get law and the prenuptial agreement: a cultural change of attitude.
“There’s no longer a boys-will-be-boys attitude to guys who refused to give a get, from the modern Orthodox to the moderate charedi,” Marc Stern, legal counsel of the American Jewish Committee, said, adding that according to the constitution of the Agudah-affiliated synagogue he belongs to, “a man who refuses to give his wife a get cannot be a member in good standing.”
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But for agunah activists, such as the women of the Jewish Orthodox Feminist Alliance, these proposals are band-aids. They don’t help a woman whose husband is immune to public pressure, or who has signed a prenuptial agreement but can treat $150 a day as pocket change. They don’t help if the husband is the type of man who, in Israel, would sit for years in prison rather than grant his wife a divorce.
It’s the sort of frustration that makes it understandable that there might be a demand for black-market, black-bag, black-hat solutions.
Understandable but not acceptable to Judy Heicklin of Teaneck, JOFA’s president.
“Fundamentally, we’re outraged,” she said.
“It’s not bad enough that these women are abused by their husbands. Then they turn to authority figures who are demanding bribes to solve what should be a fundamental human rights issue. It’s heartbreaking, the women who are caught in this horrible situation. And it’s a shame. It’s a stain on our entire community,” Heicklin said.
Heicklin said JOFA feels that halacha should be able to solve the problems, neither leaving women helpless, nor pawning the solution off to the secular court, as the prenuptial agreement does.
Not that she wouldn’t insist her children get married with a prenup.
But JOFA would like to see “more systemic solutions” in halacha.
Such solutions were the focus of a conference JOFA ran with the Tikvah Center at the New York University School of Law in June.
While the details vary, and draw from legal precedents across the generations and around the world, the basic idea is to follow the views of those halachic authorities that allow a court to annul a marriage.
Rather than try to compel the husband to divorce his wife voluntarily, the court rules that the couple was, as it turns out, never married after all. The agunah is free.
There are a couple of principles of halacha by which this can play out. There’s the idea of “mekach tauot” – that the women’s acceptance of the marriage was based on mistaken information – had she known the actual circumstance, she never would have consented. In other words, the consent she thought she was giving didn’t actually apply.
And then there’s the still more radical possibility of the court declaring the marriage null and voice. “You are betrothed to me according to the laws of Moses and Israel,” the husband says to the wife – and the argument has been made that the marriage is therefore conditional on the continuing approval of the law, as embodied in a beit din. Let a beit din pull out the approval, even retroactively, and the betrothal and the marriage never happened.
Retroactive annulment makes many halachic authorities, and plenty of ordinary people, uncomfortable. There is the whiff of legal fictions – and perhaps of time travel, which might even be more disturbing.
If the couple wasn’t married, then what was going on all those years?
Since halacha doesn’t make children of unwed parents illegitimate, unmarrying the parents has no effect on the children.
Except: Not for those who don’t accept the legal reasoning, and don’t consider the annulments valid. For them, the woman is still married – and children from a subsequent marriage would be mamzerim, bastards, unable to marry other Jews.
“We have to craft solutions that have a higher threshold of acceptability in divorce law than in kashrut,” said one centrist Orthodox rabbi familiar with agunah issues. “You don’t want to do things a significant segment of the community says produces illegitimacy.”
In the late 1990s, a beit din under the auspices of Rabbi Emanuel Rackman freed agunah by annulling marriages – to the consternation of most of the Orthodox community. Now, it seems that the left wing of Orthodoxy might pick up the baton.
At this summer’s agunah conference, Rabbi David Bigman, of the Ma’ale Gilboa yeshiva of Israel’s religious kibbutz movement, called for restarting the Rackman court. And Rabbi Asher Lopatin, the new president of the liberal Orthodox Yeshiva Chovei Torah, echoed the call; more recently Rabbi Zev Farber, a YCT-ordained rabbi, has called for the liberal Orthodox community to set up its own religious courts that would use all methods – from prenuptial agreements, to writing gittin, to anulling marriages – to solve the agunah problem, without worrying about acceptance from all sectors of Orthodoxy.
“Even if only 15 percent of the Orthodox community accepted this new beit din’s freeing of agunot, seeking a spouse among 15 percent of the Orthodox community would be a vast improvement for agunot who had been unable to marry anyone at all in the Orthodox community,” longtime agunah activist Susan Aronoff said.
In 1998, Rabbi Mayer Rabinowitz, a Conservative rabbi in Teaneck, made a similar statement in Jerusalem. Rabinowitz was then the chair of the Conservative movement’s beit din, which had begun annulling marriages.
“A woman from a very Orthodox community in New York turned to us to help her free herself from her recalcitrant husband,” Rabinowitz said. “She had 17 decisions from Orthodox batei din ordering her husband to give her a get. He refused to abide by these decisions.
“When I explained to her that our beit din was part of the Conservative movement, and our annulment would probably not be recognized in her community, she answered that she was aware of the facts. She realized that if she remained in her community, she would never be able to remarry. Nevertheless she wanted closure. Psychologically it was necessary for her to know that she was finally free of him, and therefore she turned to us.
“We annulled the marriage,” he said.
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In part, it’s a debate over the nature of marriage.
Is traditional Jewish marriage – with its inherent inequalities – a good thing? Or is it an institution that needs to be repaired?
“In the grand scheme of things, when we hear the horror stories of the agunah situation, you also have to look at the society around us and see how marriage has become a very weak situation and how family life has changed so dramatically in ways that are not for the better,” Zweibel said.
“The idea that some have put forward that women should have the same ability to initiate the divorce process, just as a man can divorce a woman against her will – it’s clearly contrary to halacha.
Heicklen and other liberals, however, see a process of halachic evolution over the centuries, “looking at the protections that have been built in over the years to help women.
“I don’t think that story is done yet,” she said.
The notion that divorce should be completely up to men “is not really respecting the inherent dignity of all us being created in the divine image, and I think that’s an anti-Torah perspective,” she said.
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In the core of traditional Jewish marriage, kiddushin, the husband acquires the bride. Because this doesn’t conform with contemporary values of equality, some people have suggested that it’s timme to drop that traditional form altogether.
In her book “Engendering Jewish Judaism,” Rachel Adler of the Reform Hebrew Union College in Los Angeles put forward a model for a Jewish marriage that was modeled on a business partnership, rather than an acquisition. (In the Mishnaic tractate on marriage, the first mishna on “a woman is acquired” is followed by one on how a slave is acquired, and then on how an animal is acquired.)
A proposal put forward by the liberal Orthodox blogger who goes by the moniker “Dov Bear” is less complicated. He suggests replacing marriage with the legal concept of pilgashut, or concubinage.
“You need ritual to get into a kiddushin relationship and you need a ritual to get out of a kiddushin relationship, and that exit ritual requires the man to cooperate. Without his cooperation the woman is stuck,” Bear said. “However, the kiddushin relationship is not the only halachic relationship that permits men and women to live together and raise a family.”
Does that offer less holiness than a traditional halachic marriage?
“Something is holy if you believe it is holy,” Bear said. “What tradition are we losing? We can still initiate the pilegesh ritual with a big party.”
Like the prenuptial agreement, eliminating kiddushin would solve the problem only in the future. Unlike a prenuptial agreement, it wouldn’t rely on financial inducements or the possible enforcement of secular authorities, instead ensuring from the beginning that a marriage couldn’t lead to an agunah situation.
However, it’s still too radical a notion for JOFA.
“We think the halacha is so profound and divinely inspired that solutions can and should be found within halacha,” Heicklen said. Still, “I certainly understand the impetus for those kinds of solutions and why people are so frustrated with the lack of progress that people are reaching out for those solutions out of frustration.”
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Whatever the wink and nod the Orthodox community gives to bullying tactics, it’s unlikely that the cattle prods will be taken out any time soon. And while some activists may be happy for a solution that moves halacha to a more egalitarian stance, that’s unlikely to be accepted any time soon in much of the Orthodox community – including the segments with which Rabbis Epstein and Wolmark work.
It could be that agunah, for the Orthodox, will be like love for the poet Leonard Cohen, who sang,
“The holy books are open wide
“The doctors working day and night
“But they’ll never find that cure for love.”
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