Wednesday, April 02, 2014

Tortured Distinctions

by Sherry F. Colb

In my Verdict column this week, I take up the dilemma of the "Agunah," a traditionally observant Jewish woman whose ex-husband refuses to grant her a religious ritual divorce, known as a "get."  A woman in this situation is "chained" to her prior marriage, unable -- within the Orthodox or Conservative Jewish communities -- to enter into another marriage without violating the religious proscription against adultery.  In the column, I discuss the gender inequity at the heart of this dilemma and the consequences for the Agunah as well as for her offspring.

In this post, I want to explore an issue that arises out of the one of the "Agunah" stories in the news to which I refer in the column.  In this story, a group of men offered their services to agunot (plural of agunah) to force recalcitrant ex-husbands to grant their ex-wives a get through kidnapping and torture techniques, including the use of what are frequently called "cattle prods" but which I would instead call "torture devices that use electric shocks against sentient animals to force them to go to their unnecessary deaths."  In the case of the get-seeker, torture would be inflicted as a means of motivating ex-husbands to do what they should have done on their own:  release an ex-wife from being religiously bound to a man to whom she no longer wishes to be in a relationship.

Is torture in this situation wrong?  I (and I suspect most people) would take the position that it is.  Yet I also understand why a woman might be desperate enough to resort to it.  If a woman lives within an Orthodox community and believes herself to be prohibited from dating or marrying a new man without a get, then her ex-husband's inexcusable recalcitrance keeps her from forming new romantic connections, from marrying again, and from having children without they and their own descendents having to bear the stigma of mamzerim (loosely translated as bastards) who are similarly barred from marrying within this community. Most people within the relevant communities themselves believe that it is outrageous (and a form of domestic abuse) for a man to refuse to grant his ex-wife a get, but traditional Jewish law appears to provide no substitute for the man choosing to do the right thing, if shaming and efforts at moral persuasion and other non-violent methods do not work.

When a man's behavior is acknowledged by almost everyone to be inexcusable and abusive, which is the case for the refusal to grant a get, then it is easy to understand (even if we still reject) the drive to use torture to compel the man to do the right thing.  This is probably the drive that has led some police officers who are certain that they have a guilty suspect in custody to use physical force and threats to produce the confession that they regard as rightfully theirs.

When police torture a suspect, of course, this is different from torture-for-a-get in a variety of respects, including the fact that (1) our Constitution and the ethics that motivated its creation and ratification grant a person the right to refuse to confess, notwithstanding her guilt, and (2) police who coerce a confession ordinarily cannot really "know" that the suspect is guilty, and thus torture can result -- and has resulted -- in false confessions by tormented suspects.  By contrast, (1) Jewish law does not recognize a "right" to withhold a get from one's ex-wife (though it does give a man this power over a woman to whom he was married), and (2) there are virtually no situations in which a tormented man might grant a woman the get that she seeks when she is not truly entitled to the get.

Yet despite the fact that the man has no right to withhold a get and the corresponding fact that virtually no man who grants the get under torture will have given up something to which he has any rightful claim, most of us would consider torture in these circumstances to be immoral.  Indeed, the very fact that people are driven to commit acts of torture to obtain a get represents a good argument for revisiting the get requirement.  One possibility that occurs to me is that perhaps whenever people have a Jewish wedding ceremony, a new custom emerge that requires the man to sign a get and deliver it to the rabbi who marries the couple (or to a community safety box) for safekeeping.  Then, if and when the two people divorce, the trustee of the get can deliver it on the ex-husband's behalf.

To the extent that we believe torture is wrong in these circumstances, though, why is that, if it is intended  to compel what is truly obligatory behavior?

One general answer that I discuss in more detail in an article entitled Why Is Torture "Different" and How "Different" Is It?, published in the Cardozo Law Review in 2009, is that torture is an extreme form of violence that should be permissible, if at all, in only a very narrow category of situations.  One such legitimate category, I argued, is self-defense, in which torture (though not usually thought of in this way) is already lawful.  Consider the following scenario.

A man, Doe, is holding a pillow over a child's face, suffocating the child.  The man's much weaker roommate, Koe, notices what is going on and screams at Doe to stop what he is doing.  Doe refuses to stop, even when Koe ineffectually tries to pull Doe's hands off the pillow.  Desperate for a means of saving the child, Koe grabs a pair of scissors and cuts into Doe's arm.  Doe shrieks in pain but continues holding down the pillow.  Koe then takes the scissors and  jams then as hard as he can into Doe's back.  Now in excruciating pain, Doe lets go of the pillow, which Koe quickly removes from the child's face, thereby saving the boy's life.

In the above scenario, Koe uses pain to disable Doe from carrying out his act of violence; he uses the infliction of torments -- or torture -- as a means of stopping Doe from carrying out a murder.  Absent viable alternatives, I think most of us would regard Koe's actions as justified in defense of others.  Instead of killing Doe to save the boy's life -- which Koe could legitimately have done, if necessary -- Koe tortured Doe to do the same thing.

How is the Doe & Koe scenario different from the sort of torture about which our debates ordinarily center -- torture of terrorist suspects, for example, in an effort to obtain actionable intelligence?  One important way in which the two scenarios differ is that in Koe's case, Koe is using torture to stop an action in progress, while in the case of the terrorist suspect, the interrogator is using torture to motivate an inactive person to do something.  This difference turns out to be important for several reasons that I explore in greater detail in my Cardozo article.  One of the main distinctions is that when we torture an inactive person to motivate him to act, we could well be torturing the wrong person -- that is, we torture a terrorist suspect who could turn out to be innocent and thus ignorant of whatever it is that interrogators hope to learn from him.

If the torturer is wrong about what the suspect knows, then the one who is being tortured actually has no effective way to make the torture stop, by contrast to Doe, who can make his own torture stop simply by letting go of the pillow he is using to suffocate the child.  This is why a subject of instrumental torture may endure much more pain than the torturer originally intended to inflict -- it takes quite a bit of torture (perhaps enough to kill the subject) to satisfy an interrogator that the subject truly cannot meet the torturer's demands. Escalation is almost inevitable when the torturer has erred in selecting the subject, thus leading to the greatest suffering for those who are innocent and unable to do what is asked of them.

How does the torturer who attempts to obtain a get for an agunah fare in this analysis?  Such a torturer is plainly attempting to motivate someone (a recalcitrant ex-husband) to do something he has been refusing to do rather than to stop doing something he has already done:  the action in question is granting his ex-wife a get. This fact would seem to place the "get" torturer in the category of interrogators who torture terrorism suspects (and criminal suspects) for information or evidence, the sort of torturer about whom we should be most wary and to which absolutist opposition arises.

On the other hand, in the case of the recalcitrant ex-husband, unlike the case of a terrorist suspect, there is much less of a worry that the torturer may end up inflicting torments upon the "wrong" person.  Say the "get" torturer, Knuckles, enters the wrong home and tells the man he finds there, Earnest, to sign a get for Jane Roe or be tortured. Earnest says "I am not married to Jane Roe."  If Knuckles does not believe Earnest , then Knuckles might say "just sign it" or I will start hurting you.  At this point, Earnest can sign the document, and Knuckles will go away with the document.  The would-be torture victim, in other words, can complete the task requested of him even if he is the wrong person.  For a terrorism suspect, this is not true.

Whether this distinction is sufficient to move the "get" torturer closer to the category of legitimate self-defense/defense-of-others torture is unclear.  However, another factor that suggests that torture is wrong when used to obtain a get is the possible disproportion between the harm to be prevented -- the inability of the woman to marry -- versus the excruciating pain to be inflicted on the recalcitrant ex-husband.  Unlike an actual kidnapping or attempted murder, the ex-husband is arguably doing something substantially less threatening and harmful and is accordingly less deserving of harsh methods of intervention.

From the point of view of an agunah, however, placing her in a kind of excommunicated state -- where no man in the community would be willing to marry her and where her children with any man who is willing may suffer their own stigma of excommunication -- is a very serious matter indeed.  And as I concluded in my column, I will conclude here:  there has to be a way to solve this problem other than torture or relying on the good faith of men who are, by definition, acting in bad faith.  Giving people the power to do harm without remedy virtually invites self-help.

9 comments:

Tardigrade said...

"most of us would consider torture in these circumstances to be immoral."

I don't.

I also happen to be a man.

I also happen to consider myself relatively moral (though recognize that my stances toward receiving and inflicting harm differ from many).

It has long been socially sanctioned in many communities for men with beefs toward each other to fight it out (with varying degrees of rules and endpoints depending on the seriousness of the matter).

Given that last bit, I think your statement is possibly wrong. While you may be right that "most of us" would consider torture wrong in this situation, I bet a large minority wouldn't. Possibly even including a significant number of such men who are tortured to sign the get.

t jones said...

Regarding this blog and your Verdict article:
a. Reform Jews I know do not consider themselves less "observant" than Orthodox or Conservative Jews. The converse is probably not true, but then I doubt the majority of your audience is Orthodox and Conservative Jews.
b. I suspect that torture under all circumstances is immoral. I would quibble, in addition, with your expansion of the definition of torture to include your hypothetical in which a weaker person stabs a stronger assailant in order to interrupt the ongoing assault on a third person. If Koe were stronger, would you consider his grabbing Doe by the neck and pulling him off the child (the likely choice were Koe stronger, and also likely to result in the infliction of some pain on Doe) also to be torture? I would limit "torture" to the intentional infliction of pain on someone over whom the torturer has asymmetric power (e.g., a suspect in police custody, a kidnap victim, the child with the pillow over its face). In the Koe/Doe case, Koe does not have that kind of power over Doe.
c. It's hard to believe that current Jewish law, as it has evolved over the past 20+ centuries from the various rules and commandments set out in the Old Testament, would condone torture in order to "obtain" (in only the most formalistic sense, given the element of coercion) a get, or would consider a get obtained via torture to be valid.
d. One would hope that Rabbis who are willing to resort to physical torture (a subset of Rabbis fortunately outside of my personal experience) would be willing to resort to a less drastic (and more rabbinic) solution, such as adopting the presumption that when one is asked to deliver something one has no authority to withhold, the thing has been delivered.
e. Are prodded cattle's deaths "unnecessary" because if they were they not slaughtered they would never die? Do you mean "premature" deaths? Or do you consider their lives (and therefore deaths) "unnecessary" since they only exist to be killed because they were bred for "unnecessary" consumption following their slaughter?

Ari Abelman said...

This is not actually a problem in Conservative Jewish communities anymore. See http://en.wikipedia.org/wiki/Lieberman_clause.

It remains a huge problem in the orthodox world.

Sam Rickless said...

There does seem to be a difference between torture and the intentional infliction of severe pain. The difference, as tjones suggests, has to do with asymmetric power. The torturee is helpless, cannot do anything to prevent the torturer from torturing the torturee. This is indeed part of what makes it so much more difficult to justify torture than it is to justify the intentional infliction of pain. (Having said that, I should note that it doesn't follow that torture is never justified. Surely there will be extreme circumstances in which torture is justified. Both consequentialists and non-consequentialists can be on board with this.)

I think tjones's suggestion at (d) is clever and would work to solve the get problem.

But I do think that there is something missing from this discussion. According to Conservative and Orthodox Jewish law, there is nothing that can be done to force an unwilling ex-husband to grant his ex-wife a get, and there is no legitimate way for the ex-wife to get around the absence of a get. Two things follow from this. The first is that Conservative and Orthodox Judaism, as currently practiced, is profoundly immoral, not just because it permits rank injustice under its religious laws, but because the rank injustice that it permits is deeply sexist. Anyone who voluntarily and knowingly remains in a community that sanctions such injustice is, ipso facto, immoral. There are only two moral options. The first is for Conservative and Orthodox Jewish communities to disband. The second is for Conservative and Orthodox Law to be changed to say that no get is required under religious law for a divorced woman to remarry (and have children with her new spouse). The latter change is so obviously the right thing to do that it raises the question why Conservative and Orthodox Rabbis have not forced such a change. If they haven't done it, the only reason I can think of is that they are incorrigible sexists themselves. Shame on them. They are morally sick. And I don't have any problem saying this as a Jew. One of the basic tenets of Judaism is that injustice, wherever it exists, should never be tolerated. This is part of Tikkun Olam. And if repairing the world means anything, it means repairing one's own house. The idea that the only injustices that should be repaired are the ones practiced by those outside one's own community is itself a symptom of moral sickness.

Suppose, then, that I am right that Conservative and Orthodox Judaism, as currently practiced, is deeply immoral. This raises the question why an ex-wife who cannot obtain a get would want to stay in a community the leaders and members of which refuse to change its immoral religious rules. By insisting on a get (through persuasion or torture), the ex-wife is buying into morally reprehensible rules. That is so sad it makes me weep. What it means is that the ex-wife is too weak, or brainwashed, to leave a community that treats her as less than a full human being.

Paul Scott said...

I certainly hold Sam's views since they are a subset of my disdain for all religions. The husband is really doing the wife and any children they may have a favor since this sort of social oppression may be just the thing she needs to cast off the foolishness of her religion.

That said, from my limited understanding (conversations with an Orthodox co-clerk some 15 years ago), the "get" is not so one-way. Either party can invalidate it as it requires mutual consent. I have no idea if it must originate from the man (probably), but I do recall that mutual consent was essential. This would mean a woman could also refuse to co-operate *and* that torture would be meaningless since a "get" got under torture would not be consent.

Further, for those demonizing the practice as if Orthodox Jews are so oddly behaving, similar requirements exist, to greater or lesser degrees in Catholicism, Greek and Russian Orthodox and, of course, in some of its most oppressive forms, in Islam and Evangelical Christianity.

Inside religions, the idea of free divorce is a very modern idea and I would guess not held by the majority of religions - it just seems that way to most people because America is largely Protestant.

Paul Scott said...

As to torture, my opinion on it has evolved to a more favorable position the more I learn about it. I have had the advantage of talking to some military personnel willing to openly discuss classified information and the more I learn about it the less it offends me.

Firstly, contrary I think to common understanding, torture has little to nothing to do with the infliction of pain. It is almost exclusively about disorientation and fear. Pain, apparently (probably do its its release of adrenal hormones), is clarifying and thus largely counter productive.

Secondly, torture is used to confirm facts already known or suspected from other sources. Asking questions without context is next to useless and thus not done. This, in turn, minimizes the risk of an "innocent" subject.

I think people largely get their perspective on torture from fiction or from things like Abu Ghraib. Abu Ghraib was simple abuse - torturous abuse to be sure , but not something designed to elicit information from the subjects. The torture that is carried out in places like Guantanamo is of a very different nature and while I remain skeptical I don't think the issue is simple either morally or empirically.

Joe said...

Two things in response to PS' comments.

[1] I get a decent amount of my info on torture from those in the know, not 24 aficionados. They, including many in the military (some of the most passionate critics here) and those expert in the field (such as a strong critic of waterboarding), oppose it.

And, interrogation generally regards things "suspected." What sort of limit is that? A major issue here is that there is loads of info out there and winnowing is a major job of intelligence operations. I speak as a novice, but I'm very dubious about that "check" to abuse.

[2] As to "disdain for all religions" -- I find this sort of thing overbroad. Personally, I find it hard to "disdain" a variety of religions. Unless one is a true believer, e.g., I find it hard to fathom how one can 'disdain' a Unitarian.

"Religion" covers so much ground that what I really think people are talking about is CERTAIN religions such as those with the intricate rules (often based on faith) like involved in "gets" here. Broadly speaking, what specifically is there to disdain about "religion" as compared to any number of ideologies and belief structures?

Does one have similar disdain for the overall life affirming belief many vegans have with food rules, ways of life and even ceremonial practices? "Religion" does not just mean "irrational" beliefs. It is an overall system of beliefs, practices and conscientious frameworks.

"Value voters" aren't just conservative Christians. If the word is being used as it should here, "disdain" is overbroad.

Rose Warissa said...

One possibility that occurs to me is that perhaps whenever people have a Jewish wedding ceremony, a new custom emerge that requires the man to sign a get and deliver it to the rabbi who marries the couple (or to a community safety box) for safekeeping. Then, if and when the two people divorce, the trustee of the get can deliver it on the ex-husband's behalf. fifa 14 ultimate team coins  Elo boost  fifa ut coins  elo boosting service 

Shak Olreal said...

At this point, Earnest can sign the document, and Knuckles will go away with the document. The would-be torture victim, in other words, can complete the task requested of him even if he is the wrong person. For a terrorism suspect, this is not true.
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