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Parshat Emor            8 Iyar 5763              May 10, 2003              Vol.12 No.28

 

The Beth Din of America’s Handling of the World Trade Center Agunot – Part One:
Methodology of Agunah Crisis Management

by Rabbi Chaim Jachter

The tragic events of the September 11, 2001 terrorist attack on the World Trade Center buildings resulted in over two thousand deaths. As a result of this tragedy fifteen cases of Agunot were presented to Batei Din in the New York metropolitan area.  Ten of these cases were presented to the Beth Din of America, the Beth Din of the Rabbinical Council of America and the Orthodox Union.  In this series of essays, we shall present the basic Halachic approaches and sources for the permission the Beth Din gave for these women to remarry based on a Halachic determination of the deaths of their respective husbands.  Responsa regarding this vitally important issue have been published.  The Teshuva of Rav Gedalia Schwartz, the Av Beit Din of the Beth Din of America, appears in the 5763 issue of HaDarom, the Torah journal of the Rabbinical Council of America.  Teshuvot from Rav Zalman Nechemia Goldberg regarding all of the cases, and from Rav Ovadia Yosef regarding one case (a Sephardic husband) appear in the 5763 issue of Kol Zvi, the Torah journal of the Kollel Elyon of Yeshiva University.  Rav Mordechai Willig’s careful and methodological categorizing of the Halachic issues regarding this tragedy also appears in this Torah journal.

We should note that there is also an issue for husbands whose wives were missing.  However, we are much more lenient for men (see Pitchei Teshuva Even HaEzer 1:14) since the prohibition for a married man to marry is only rabbinical in nature whereas the prohibition for a married woman to marry another man involves a very severe biblical prohibition, whose violation constitutes a capital offense.  Rav Yonah Reiss, the administrator of the Beth Din of America, informed me that a number of husbands called the Beth Din of America regarding their wives who were missing after the World Trade Center attack..  Rav Reiss told me that the Dayanim followed the ruling of the Gesher HaChaim who rules that a husband may remarry if there is adequate evidence that a wife was at the place where a tragedy occurred and that most people who were in her location and situation perished.

Introduction
Before discussing the World Trade Center Agunot, we will present a basic overview of the process of determining the death of a husband when no body is found.  We should note that rabbis of all generations devote an extraordinary effort to resolve cases of Agunah.  In fact, the Otzar HaPoskim, an encyclopedic work that summarizes the responsa literature to the Even Haezer section of Shulchan Aruch, devotes (in its 1982 edition) no less than eight volumes spanning approximately 1500 pages to this topic alone.  Fifteen hundred pages merely summarize the responsa literature to the subject of Agunah!  Poskim traditionally devote an incredible amount of time and effort to resolving problems of Agunah.  An example is Rav Yitzchak Herzog, the chief rabbi of Israel at the time of the establishment of the state, writes (Teshuvot Heichal Yitzchak 2:9) that although his doctors gave him strict orders not to read anything, he violated their command in order to research and issue a ruling regarding an Agunah, because of the compassion he felt for the Agunah.  Some rabbis were famous specifically for their special attention, sensitivity, and creativity in this area of Halacha.  For example, Rav Yitzchak Elchanan Spektor (for whom Yeshiva University’s Yeshiva component is named) was especially renown for his mastery and his focus on this subject.

From the time of the Gemara, Poskim have tried to be lenient and creative as possible while maintaining the integrity of the Halachic process.  Teshuvot Sam Chayi (number 17) describes the attitude of a Posek grappling with an Agunah situation, “it is comparable to one who is running away from a lion and has encountered a bear, as the battle is fought both from the front and behind; just as he fears being lenient so too does he fear being strict”.  For further discussion of the general attitude of profound urgency Poskim maintain towards Agunah problems, see Rav Ovadia Yosef (Teshuvot Yabia Omer 6:3) and the Otzar HaPoskim (8: 203-211).

This process continued in the twentieth century as Poskim responded to the enormous challenges that arose during that war-filled century.  For example, Rav Moshe Feinstein (Teshuvot Igrot Moshe Even HaEzer 1:41-51 and 4:56-58) ruled extensively regarding Agunot because of the Holocaust.  Rav Yitzchak Herzog (Teshuvot Heichal Yitzchak 2:1) writes at length about the rulings he issued regarding Agunot during the period of the Israeli War of Independence.  Rav Ovadia Yosef (Teshuvot Yabia Omer 6: E.H. 3) records his rulings regarding the Agunot of the Yom Kippur War of 1973.  Regrettably, Poskim have once again been summoned to deal with the many Agunot resulting from the World Trade Center terrorist attack.

Methodology
The Otzar HaPoskim (8:203-211) outlines the basic methodology of Poskim regarding cases of Agunah.  The first point Poskim emphasize is that this is not a matter for just any rabbi to resolve.  Rather, it is appropriate that only a rabbi of great stature should rule upon such a matter of great urgency (see the many sources cited in the Otzar HaPoskim 8:206-207).  Moreover, the practice is that whenever possible, three rabbis of eminent stature should agree before a lenient ruling is issued.  The Aruch HaShulchan writes:

It is a general principle regarding permitting Agunot to remarry that in any case where a lenient ruling is not obvious and a rabbinic ruling is necessary, that even the greatest of rabbis should not issue a permissive ruling until two other great rabbis concur with his ruling.  This has always been the practice of all eminent rabbis as is evident from all of the responsa literature….and one should not deviate from this practice.  (E.H. 17:255)

Indeed, the Beth Din of America assembled Rav Gedalia Schwartz, Rav Hershel Schachter, and Rav Mordechai Willig, three of the foremost rabbinical authorities in the  Orthodox community, to deliberate and rule concerning the WTC Agunot.  Moreover, the Beth Din of America consulted with Rav Ovadia Yosef and Rav Zalman Nechemia Goldberg who issued permissive rulings, before the Beth Din of America permitted these women to remarry.  A basis for the practice of consulting numerous authorities might be the fact that in the context of a central discussion in the Gemara (Yevamot 121a) regarding Agunot, the Gemara cites a verse from Proverbs chapter eleven that teaches that salvation comes when one seeks much advice.  

Teshuvot Chavatzelet HaSharon (number 28) records the practice of Poskim in resolving Agunah situations to first research the matter thoroughly.  First, they arrived at a lenient decision based on common sense alone and only subsequently they explored whether there is a Halachic basis for a lenient ruling.  In the WTC situation, Rav Yonah Reiss, the administrator of the Beth Din of America, devoted months of meticulous research in coordination with many public and private agencies and firms, to create the “raw material” from which the Dayanim of the Beth Din could arrive at appropriate Halachic conclusions.  His research included obtaining telephone, cell phone, subway, and elevator records as well as the results of DNA testing and dental records.  In fact, the leniencies of the Gemara and all subsequent authorities are predicated on the assumption that exhaustive research has been undertaken (“Ishah Daykah U’Misabah”, Yevamot 115a, Raavad to Rambam Hilchot Geirushin 13:19, and Beit Shmuel 17:10). 

A hallmark of acceptable resolution of Agunah situations is proper Beth Din proceedings.  The Beth Din must know the appropriate questions to ask witnesses and how to properly collect information from the witnesses.  Indeed, improper collection of evidence has in the past impeded a lenient resolution of Agunah situations (see for example, Teshuvot Beit Shlomo 43). 

The Otzar HaPoskim (8:204) notes that in all of the responsa literature regarding Agunot the Posek records that the witnesses were given very stern warnings to testify truthfully.  Although a warning to tell the truth is a standard feature at all Beth Din proceedings (see Shulchan Aruch Choshen Mishpat 28:7), in the context of Agunot the Beth Din administers sterner warnings than usual.  This is done because the rules regarding the validity of witnesses and evidence are relaxed for the purposes of permitting an Agunah to remarry.  For example, women (even the Agunah), relatives, and those who are inadmissible witnesses only on a rabbinic level are acceptable witnesses in this context (Yevamot 121-122 and Shulchan Aruch E.H. 17:3).  Hearsay evidence (Eid Mi’pi Eid) and the testimony of one witness are also acceptable in this context (ibid).  The stern warnings are administered to counterbalance these leniencies. 

We should note that Rav Ovadia Yosef (Teshuvot Yabia Omer 8:18) rules that the testimony of most non-observant Jews today is accepted in the context of Agunah.  This is quite noteworthy as Rav Yosef in numerous Teshuvot (in the same volume of Yabia Omer) rules that generally speaking, non-observant Jews are not acceptable witnesses in almost every other area of Halacha.  For further discussion of the status of today’s non-observant Jews regarding their acceptability as witnesses, see Gray Matter (1:83-90).  

Moreover, some well-meaning people would be tempted to lie to help the Agunah since in their estimate the husband has died.  The severe warnings serve to counter such attitudes.  Indeed, the Rambam (Hilchot Geirushin 13:29) explains that the reason why Chazal have relaxed the laws of testifying in the context of Agunah is because people are severely disinclined to testify falsely when the lie can be discovered and they will be inextricably caught lying thereby ruining their reputations.  The severe warning serves to reinforce this attitude as it instills fear in the witnesses that there will be harsh consequences if they are caught lying.

The Otzar HaPoskim (8:210) notes that the norm of Teshuvot regarding Agunot is to collect many reasons to support a lenient ruling, reflecting the enormous responsibility that weighs on the shoulders of Poskim who issue rulings on this matter.  Finally, Poskim must be deliberate when issuing lenient rulings regarding Agunot.  The Otzar HaPoskim (ibid) notes the practice of many rabbis to wait until the end of a year from the time the husband was missing to issue a lenient ruling.  Indeed, Rav Gedalia Schwartz reports that when he consulted with Rav Ovadia Yosef regarding one of the WTC Agunot, Rav Ovadia agreed with the ruling but advised that the Beth Din wait until a year has elapsed since the September 11, 2001 attack to issue a lenient ruling. 

The Otzar HaPoskim, (ibid p. 206) concludes that once a duly recognized and competent Beth Din has issued a lenient ruling to permit an Agunah to remarry, another Beth Din or Rav should not attempt to revisit the case and review the cogency of the Beth Din’s ruling.  Otherwise, the Agunah’s plight would never be truly resolved until she receives approval of every Halachic authority in the world, which is obviously unnecessary.

Next week, we shall review the rulings the Beth Din of America issued regarding the World Trade Center Agunot.

Next Part
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