Rabbi Jachter's Halacha Files
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A Student Publication of the Torah Academy of Bergen County


Parshat Vayechi             21 Tevet 5764             January 10, 2004          Vol.13 No.18

 

Emotional Homicide: The Prohibitions Of Embarrassing Others In Public
Part 2 of 2

by Rabbi Daniel Z. Feldman
Reprinted from “The Right and the Good” with permission of the author

Last week, we printed the first part of Rabbi Feldman’s article in which he discusses the Talmud’s comment that embarrassing another publicly is similar to homicide, and whether this implies genuine equivalence between homicide and embarrassing another in public.
It is interesting to note that this question of how to evaluate the Talmud’s comparison seems to be reflected consistently in other comments of the previously cited rishonim.  David HaMelech’s retort to his tormentors included the admonishment that one who shames others in public forfeits his eternal reward. This notion is in fact stated authoritatively a number of times in the Talmud.  Commentators offer several possibilities to explain the basis for such a severe prohibition.
 As noted earlier, Rabbeinu Yonah views humiliating others to be a subcategory of murder, necessitating martyrdom, in his Shaarei Teshuvah and in comments to Pirkei Avot. His explanation of the penalty incurred maintains the integrity of this position.  He reasons that he who publicly shames others logically shares the punishment of a murderer, who in theory also deserves to be stripped of his portion in the world to come.  However, the murderer actually has an advantage in this area.  He has committed a crime that is universally acknowledged as horrendous, and society instantly will register its complete rejection of his actions.  Consequently, he will recognize the gravity of his misdeed and will repent fully. Having done so, he will continue to bear the responsibility for his actions on the temporal plane but will ultimately achieve atonement, and the eternal punishment will be suspended.  However, a person who embarrasses others, although spiritually he is equivalent to a murderer, may never reach such a realization.  Society will not rebuke him comparably, if at all, and in his own mind he has committed no serious transgression.  Thus, the repentance effected by the shedder of blood will not be undertaken by he who humiliates his fellow, and the eternal punishment will not be suspended.
 The Rambam offers a different rationale, and once again it is one consistent with his previously noted position.  In his commentary to the Mishnah he observes that shaming others does not appear to be a prohibition that one would intuitively associate with such a severe punishment as losing one’s portion in the future reward.  However, the action is indicative of the nature of its protagonist.  One who would engage in such behavior, writes the Rambam, can only be one of low character and underdeveloped morality, an individual whose behavior in general will inevitably result in spiritual condemnation.  Thus, the Rambam, who declined to impose martyrdom to avoid humiliating others, apparently feeling the homicide/humiliation comparison to be non-literal, is here loyal to that position.  In his view the transgression itself did not earn the punishment, but rather revealed a personality who will prove himself in other ways to be deserving of such. 

The P’nei Yehoshua, in his commentary to Bava Metzia (59a), suggests another basis for this notion.  There is a widely held assumption that one who commits suicide, at least in the absence of certain mitigating conditions, forfeits his portion in the world to come.  Nonetheless, the Talmud states that it is preferable to hurl oneself into a fiery furnace before shaming another.  It must be, writes the P’nei Yehoshua, that embarrassing others carries a punishment at least as severe as suicide, or else the latter would not be a preferable option.  This explanation is slightly difficult to understand, however, as a person who is halakhically compelled to sacrifice his life cannot readily be considered as one who has committed a transgression of suicide. This objection is raised at length by R. Binyamin Aryeh Weiss.
The Iyun Yaakov (Bava Metzia 59a), commenting on the Talmud’s statement that it is preferable to have relations with a possibly married woman rather than humiliate another, highlights another aspect of this transgression.  In his opinion, martyrdom is an option rather than an obligation, a recommendation based on the severity of the punishment.  This penalty is greater than that for adultery, as the Talmud implies, because adulterous tendencies are a normal part of human makeup and a source of great temptation.  Humiliating others, however, is not an innate human tendency, and thus its egregiousness is not mitigated by the realities of mortal weakness .  The author of the Midrash Eliyahu notes a further manner in which humiliation is more severe than murder: physical death occurs once and is over with, while the emotional pain lasts and reverberates.
The P’nei Yehoshua offers another possibility (Bava Metzia 58b), this time in the name of the Tosafot Yom Tov citing the Midrash Shmuel.  One who embarrasses another and strips away his sense of dignity violates his tzelem Elokim, his creation in the image of God, as noted earlier in the name of the Alshikh. It is this divine image that is the basis for the soul.  One who has displayed a disregard for this image, therefore, undermines his own conception of a soul. The Sefer Tikkunei Teshuvah expresses a similar notion, ruling that one who humiliates others must fast as an atonement, and that acquiring the forgiveness of the injured party is not sufficient.   This builds on the assumption that there exists here more than an interpersonal crime, but rather an attack has been committed against God himself through the vehicle of the divine image.  This is a concept that has groundings in midrashic sources.  R. Tanchuma, in a discussion of the severity of humiliating others, is quoted as remarking, “Know: whom are you disgracing? ‘In the image of God he was created’!”  Further, the Talmud derives significant halakhic principles from the verse, “He who mocks the poor blasphemes his creator.”
As the prohibition of embarrassing others is generally referred to as “humiliating others in public,” halakhic authorities turn their attention to the definition of “public,” and then to the question of whether the presence of the public is an indispensable element of the prohibition.  While the term “b’rabbim,” in public, is often taken to signify a group of ten, many assume that for the purposes of this transgression three people constitute an audience.   This was the opinion of the Pri Megadim in his Matan S’kharan Shel Mitzvot, cited approvingly by the Shut Binyan Tzion.  In this generation, R. Ephraim Greenblatt ruled accordingly, noting the opinion of the Gerrer Rebbe, the Sefat Emet, in his commentary to Pirkei Avot.  R. Binyamin Yehoshua Zilber concurs, explaining that the main concern is exposing the humiliation to public knowledge, a task generally assumed to be accomplished once three people know about it.  He concludes that this group of three may include both the victim and the perpetrator of the embarrassment, thus in actuality necessitating only one witness.  He then notes an additional difference between this “public” and that normally utilized in halakhah.  While a minyan for the purposes of, for example, prayer, requires ten men, in this instance, certainly no distinction is made between male and female, as all are equally forbidden this behavior.
Even if the definition of “public” is reduced from ten or more to three, or perhaps one additional party, many authorities held that even this number was not necessary for the prohibition to take effect.  The Pri Megadim rules accordingly, citing the language of the Rambam that it is forbidden to embarrass a fellow Jew, “and all the more so in public.”  This is also the opinion of the Kol Bo (67) and the Sefer Yereim, and, later, R. Yisrael Meir haKohen Kagan.  The first Lubavitcher Rebbe, in his Shulchan Arukh HaRav, acknowledges that this may not be the implication of Rashi but writes that it is certainly the opinion of the Rambam and the Sefer Mitzvot Gadol; further, in the Torat Kohanim, the Midrash does not even contain the words “in public.”  R. Y. H. Henkin proves at length that the prohibition is in effect even in private, and suggests based on the text of the Rambam and the Tur that the word “b’rabim,” meaning in public, should be amended slightly to read “b’dvarim,” meaning “verbally.”   However, the Sefer Mitzvot Katan (126) does require an audience.
Several authorities suggest an intriguing possibility.  It is conceivable that the prohibition exists in full force regardless of the presence or absence of an audience.  However, in order to incur the condemnation discussed in the Talmud, such as forfeiting one’s portion in the world to come as well as the exhortation towards martyrdom, the transgression must be committed in public.
R. Shimon b. Tzemach Duran, the Tashbetz, notes that in the process of humiliating another, one commits two distinct transgressions, evolving from two different passages in the Talmud.  The first is the topic of the Talmudic text cited earlier (Bava Metzia 58b), ona’at d’varim, “verbal” oppression, subsumed within the biblical prohibition, “a man shall not oppress his friend.”  Verbal oppression is a larger category, comprising any damage inflicted upon a person (including a child) that is not physical or monetary but rather emotional.  The Talmud cites several examples of this, such as falsely raising the hopes of a merchant one has no real consideration of patronizing; reminding a repentant individual or a convert of his past behavior; telling someone his misfortunes are a result of his misdeeds; perpetrating a painful practical joke; and, of course, embarrassing another individual.  Thus, all humiliation is subsumed under the umbrella of verbal oppression, as it inflicts emotional pain.  R. J. David Bleich  notes another common element to the examples in the Talmud; all the instance display a lack of regard for the value of the other individual.  The Talmud displays an exquisite sensitivity to the potential of even an accidental misplaced word to cause great anguish: “To one whose relative has been hanged, do not say, ‘hang this fish’.”   This attitude is also evidenced by countless enactments of the Rabbis designed “sh’lo l’vayesh,” not to embarrass.  It would seem that no reason exists to distinguish between private and public violations of this prohibition.
Further, the Talmud elsewhere notes another relevant transgression. The Torah obligates every individual to take upon himself the spiritual well-being of his fellow, exhorting. “you shall surely rebuke your friend.”  However, lest one think this project should be pursued even if it results in “changing the color of his face,” the Talmud is quick to cite the end of the verse: “and you shall not bear iniquity because of him.”  The warning is not to allow the fulfillment of this commandment to simultaneously cause a transgression of humiliating another. It would then appear to go without saying that one without the religious motivation of rebuke is certainly admonished to take care in his treatment of others; this is similar to the prohibition or striking another, which is derived from the warning to the administrator of the penalty of lashes, “forty times you shall hit him, do not exceed this.”  If in the midst of a biblically sanctioned punishment a prohibition against additional lashes still exists, how much more so when there is no such setting.
If the prohibition of verbal oppression addresses the hurt feelings and emotional scarring caused by embarrassment, another element of the offense yet remains to be covered by “you shall not bear iniquity because of him.”  In addition to the pain felt by the humiliated individual, there is the completely separate component of the stripping away of human dignity, the lowering of status within society.  In this respect, it would seem more likely that the degree of publicity attendant to the incident would have a direct effect on the severity of the offense.  This follows along the lines of the aforementioned comments of the Alshikh, the Tikkunei Teshuvah, and the P’nei Yehoshua; the Divine image, the source of human dignity, has been compromised.  Along these lines as well, R. Shalom Martzbach suggests that one may waive one’s right to be protected against verbal oppression in its base form, but not if humiliation is involved, as this offends the Divine image.  This violation is to a great extent defined by the presence of a community in which to bear the disgrace, and thus it is understandable that the greatest level of condemnation should be reserved for those who would inflict humiliation in such a setting.
This distinction is perhaps implicit in the words of the Menorat Hamaor, who divides his treatment of the prohibitions concerning shaming others into two parts.  In the first, he writes: “Whomever says, in front of his fellow, intentionally, things that will cause his fellow embarrassment when he hears them, and whitens his face, due to the humiliation that he feels, and the fact that he believes that all who are present know that these things are against him,” has committed a transgression that is equal to spilling blood.  Here the focus is on the pain caused to the victim, perhaps reflective of the prohibition of verbal oppression.  In the second part, there is a slightly different emphasis: “and one who says in public, things that are against the honor of his fellow, and that this is something that it is clear that those who are present are aware it is being said about him, and this is something serious in the eyes of man, concerning such a ‘whitening’ it is better for one to be killed, and even burnt, rather than whiten his fellow’s face in public.” In this instance reference is made to the destruction of the dignity of the afflicted party, possibly the intended beneficiary of the protection of “you shall not bear iniquity because of him,” and it is here that the Menorat Hamaor emphasizes that it is preferable to be killed rather than allow oneself to trample over this injunction.
Similarly, Rabbeinu Yonah’s language also supports such an approach.  Later in Shaarei Teshuvah he writes: “If a man shall remind his friend, in private, of the misdeeds of his ancestors, he violates that which is written in the Torah, ‘a man shall not oppress his friend.’ And if he shall humiliate him concerning his ancestor’s actions in front of others, concerning this our Rabbis have said, ‘those who embarrass others in public descend to gehinnom and do not rise up’ (Bava Metzia 58b).”  R. Yerucham Fishel Perlow assumes that the latter stricture is a reference to “you shall not bear iniquity.”
 R. Perlow does, however, explain the position of R. Saadiah Gaon in his Sefer HaMitzvot (prohibition 56) differently.  In his view, R. Saadiah Gaon considers the distinction between the two prohibitions to lie in the fact that while verbal oppression implies some level of malice, the instance of “you shall not bear iniquity” is unique in that one who is rebuking another presumably has his best interests at heart.  Nonetheless, the prohibition is in effect, and R. Saadiah Gaon feels it is particular to the instance of rebuke.
It should be noted that in light of this, even if the assessment of Rashi’s opinion that an audience is necessary for “you shall not bear iniquity” is correct, there appears to be no reason to assume this would hold true for the prohibition of verbal oppression.  Thus, it follows that to humiliate someone even in private is prohibited according to all authorities, at the very least on the strength of one prohibition if not two.
Additionally, the prohibition of “you shall not bear iniquity” would appear to contain the further egregious element of an internal moral contradiction.  ne who undertakes the task of rebuking another, with the mindset of setting him on the straight and narrow, and yet he himself, at that very moment, is violating a serious prohibition, certainly strikes a dissonant chord.  This is highlighted by the words of the Rambam and the Sefer HaChinnukh, who observe that while it is at times permissible to embarrass one for the purposes of rebuke, this is limited to offenses against God; but for offenses among men, it is better to avoid embarrassment.  This notion emphasizes the incongruity of exhorting an individual to be mindful of his friend’s honor at the very moment his own is being impinged on by the rebuker.  This is sharpened by the position of the Minchat Chinnukh, who maintains that specifically offenses against the one rebuking should be overlooked rather than embarrassing another, but crimes against a third party should not be.  This further underlines the element of the lack of respect shown to the subject of rebuke undermining a simultaneous exhortation to respect the one rebuking.
The Chinnukh concludes his discussion of the prohibition of humiliating others by noting that there is no punishment of lashes for this offense, in spite of its Biblical status, as it is a non-physical crime, although he does end with the ominous phrase, “many messengers exist for the Almighty to exact payment from those who violate his wishes.”  The Mordechai, however, does mandate lashes for the transgression of verbal oppression. This opinion is also considered in the responsa of R. Meir of Rothenberg.  The Chiddushei Anshei Shem raises the objection of the non-physical nature of the offense, and concludes that the reference is to the rabbinical version, “makkot mardut,” which may actually be applied more severely.  The Rama cites this interpretation of the Mordechai.  Monetarily, however, the Talmud excludes verbal embarrassment from the reparations associated with personal injury.  In either case, R. Shlomo Luria rules that the lashes can be commuted to a monetary fine; whether such fines are paid to the victim or to charity is a matter of some dispute.  The Rosh recommends excommunicating one who humiliates others, and the Rambam notes that latitude is granted to a rabbinical court to take punitive and preventative action as they see fit.  Special consideration is given if the humiliated party is a Torah scholar.  R. Zvi Lifshitz, writing in the halakhic journal Techumin, undertakes an extensive discussion of financial penalization of those who embarrass others in modern times.
R. Moshe Sofer, the Chatam Sofer, rules in a fascinating manner concerning an incident of verbal oppression.  The case concerned a man, shochet of the community, who played a practical joke on an individual who was known to value greatly the mitzvah of milah.  The shochet told this man that he had had a boy, and that the man was invited a few days hence to perform the honors.  After traveling several hours to the Brit, the man was greatly disappointed to find that the shochet had actually had a girl, and had merely played a cruel game with him.  The Chatam Sofer was asked whether this shochet should be removed from his position.  While he allows the shochet to keep his job, the Chatam Sofer excoriates him at length and finally levels on him a fine of ten gold coins, a sum prescribed by the Talmud as a penalty to be paid to one who has had performance of a mitzvah “stolen” from him.
The logic of the Chatam Sofer’s ruling is illuminating.  It does not seem indicated that he felt the man deserved to be compensated equally for a non-existent mitzvah to the manner he would have been had there actually been a milah to perform.  Rather, it would appear that his evaluation was as follows: The man was willing to make a significant journey on the assumption that he would be rewarded with a mitzvah.  As no such mitzvah exists, he has a right to the monetary value of that prize for which he agreed to undertake this trip, a value represented in the Talmud by ten gold coins.

These efforts notwithstanding, a quotation from the Talmud makes clear the futility of attempting to ever completely rectify the damage wrought by the humiliation of others. “R. Yochanan said in the name of R. Shimon B. Yochai, greater is the transgression of verbal oppression than that of monetary oppression, for in reference to one the Torah says, ‘and you shall fear your God’ and in reference to the other it does not say ‘and you shall fear your God.’  R. Elazar said, one is against an individual himself, and one is against an individual’s money.  R. Shmuel B. Nachmeni says, one is subject to repayment; the damage caused by the other can never be repaid.”

 

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