By Bennett L. Gershman and Joel Cohen (Huffington Post)
May 24, 2012
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?
What exactly should a prosecutor do when religious leaders pressure victims, especially victims of child sexual abuse, from coming forward with complaints? Take the hypothetical case of a young boy in a parochial school who claims that his basketball coach engaged in improper sexual conduct with him in the locker room. The youth and his parents want to bring this allegation to the police and the district attorney. The head of the school learns of the allegation and pressures the parents not to bring the complaint. He advises the parents that he will determine whether the child's complaint should be referred to the authorities. He offers the parents $20,000 for psychological counseling for their son. He assures the parents that he and his staff will determine whether the accusation is credible and will take appropriate action against the coach.
Assume further that the parents reject these importunings, and the youth and his parents go to the district attorney's office to make a complaint. While investigating the youth's accusation for corroboration, the prosecutor learns that other classmates have also may have been abused by the coach, but when the prosecutor and his staff -- including professionals skilled at interviewing and counseling child abuse victims -- seek to interview the classmates they refuse to cooperate because of pressure from the school. To build a case against the coach, the prosecutor must take the awkward step of compelling these young boys to testify by subpoenaing them, but the school authorities advise the victims' parents to defy the subpoenas and the children to refuse to testify.
The problem presented by this hypothetical was not created by the district attorney, although he may have allowed it to happen by failing to reach out to the community and its leaders, first by trying to educate them, and then by using available legal tools to deter them, for example, by prosecuting them for obstruction of justice and intimidating witnesses. To be sure, an accused person may present himself to religious officials as a righteous individual with a superficially appealing demeanor and character and thereby persuade these officials that there is no reasonable basis to conclude that he defiled young boys or girls. But should religious officials be making subjective and arguably self-serving credibility decisions of an accused rather than having that decision made objectively by professionals such as police officers and prosecutors? That these religious officials are burying their heads in the sand and for sectarian and selfish reasons refusing to acknowledge what may be a serious pattern of criminal acts by sexual abusers in their community cannot be countenanced. The district attorney must convey a stern message that religious obstructionists will pay a price for their obstruction.
The fact that some persons, including children, make false complaints is an unacceptable reason for allowing outliers to conduct their own private investigations. Charging crime in a secular society operating under legal rules resides with the prosecutor and his staff who have the experience to assess the credibility and provability of complaints. To be sure, the justice system makes mistakes, some of which may be corrected by early dismissal of weak charges, a jury's acquittal, and by appellate review. But religious leaders, be they Jewish, Christian or otherwise need to back off. Their duty is to teach the moral life, not become enablers of its antithesis.
And if a prosecutor's outreach doesn't work and religious leaders (or others) continue to cross the line by discouraging criminal complaints, a prosecutor may -- probably does -- need to bring criminal charges against religious leaders for obstruction of justice even when they may honestly believe that an individual has been wrongly accused. Otherwise our legal system confronts the dangerous terrain of allowing people to take the law into their own hands. Indeed, District Attorney Hynes, in the wake of these revelations, has created a task force to let the ultra-Orthodox religious leaders in question know that if they continue to act as vigilantes who terrify victims against bringing complaints they will face prosecution themselves.