Today I was listening to a podcast on This American Life about a young pedophile who has never acted upon his urges. “Adam” has created an online support group for those with similar attractions to children who hope to never become sexual offenders.
The premise for Adam’s support group is that one doesn’t have to actively abuse children to be classified as a pedophile – having sexual feelings for kids is enough to be considered a pedophile who is at risk of committing criminal sexual offenses against children. Adam advocates that providing therapeutic support for those “pre-offenders” like himself can save many children from ever being abused.
Adam brings awareness to a new shade of grey that heretofore has not existed for sex offenders – classifying a person as being at risk to abuse before they ever have a chance to take action. It’s these ever evolving shades of danger and risk that enlighten society about the warning signs of abuse and provide us with a growing set of tools for prevention.
In trying to figure out why orthodox society sometimes seems so blind to the dangers of child sexual abuse and its various gradations, one of my theories is the absence of multiple moral shades of grey when it comes to sexual mores in our society. On a very basic level, non-marital sexual contact is a black and white issue – all such activity is assur (a sin/forbidden).
If there are any publicly defined shades of grey in the category of illicit sexual contact, the two most highly cited are homosexuality and adultery (for a married woman). However, for the most part, every non-marital/niddah sexual encounter is off limits, hence the tendency to attribute a moral equivalency to all such “black” encounters.
As such, a consensual heterosexual encounter between two unmarried adults is considered by some to be on a par with “consensual” heterosexual activity between an unmarried adult and a minor. I have even heard the argument that if the minor involved is a halachic minor (under twelve for a female and under 13 for a male) such activity might even be less problematic, as a minor is not responsible nor judged for their actions under the Jewish legal age of culpability.
The concept of rape comes up many times in the Torah, but rape is thought of in the more traditional sense of a physical overpowering and struggle between two adults, and less of a psychological manipulation and betrayal of trust. Without the victim crying, screaming for help, or physically fighting their attacker, such a forced encounter can be doubted as actual rape. In fact, the Torah states that if a betrothed woman is raped in a city and doesn’t cry out for help (since a city is a well populated area where help would be within earshot) it’s assumed that the encounter was consensual. As such, both she and her rapist are put to death.
Rabbi Mark Dratch wrote this passage on the topic of putting the onus on the victim to vocally protest in order for a sexual encounter to be classified an nonconsensual:
“While one opinion holds that a rape victim’s protest must be continuous from the beginning to the end of the attack, the authoritative position is that an initial protest alone is sufficient in order to establish nonconsent.
Despite their differences, both of these approaches places the onus of proving lack of consent on the victim herself, a burden which many contemporaries argue is unfair and inappropriate. For one thing, it ignores the responsibility of the rapist. For another, there may be times when a woman is unable to protest or is in effective in communicating her dissent.
Ann Cahill, in her Rethinking Rape, argued: Specifically with regard to rape, consent theory falters on locating the ethical wrong of rape in the absence of the victim’s consent. To approach the wrong of rape as embedded in the nonconsensual nature of the act is inevitably to place the ethical burden on the victim. The ethical question that courts must pursue becomes whether the victim sufficiently communicated her nonconsent, or whether that nonconsent was likely given the history of the victim.
Yet, evaluating the presence of any protest may be the only way for judges who, in order to reach decide the legal consequences of the rape, must determine whether or not the victim consented to the sexual encounter.
Nevertheless, Jewish law understands that there may be times that a woman is unable to protest, and that lack of protest is not necessarily a signal of consent. Rambam writes, for example, that if she was threatened to remain silent while a sword is being held to her throat, absence of protest is not an indication of consent. There are other limitations on her ability to refuse sexual activity and to withstand coercion as well.”
Putting the burden of protest on the victim is not only problematic in instances of adult rape, but also in instances of child sexual abuse, because many times victims tend to walk willingly into the trap set for them by the predator. Often the abuser is someone the child knows and trusts, and someone their family knows and trusts. Telling the victim that they will get into trouble if they reveal the abuse is usually enough of a threat to keep a child silent throughout their ordeal. Often the implicit threat of physical harm due to the size disparity between adult and child, is also enough to discourage any cries for help or attempts to fight back.
This points to the discrepancy in what is considered a “criminal act” in halacha and what is considered a “criminal act” in secular law. It seems that is only within the last few decades that sex with a minor has even been addressed in the orthodox community. Most people assumed it didn’t happen, and those who, sometimes for nefarious reasons, knew it did happen, felt confident that since halacha doesn’t directly address the prohibition of sex with a minor, even if their activities fell within the all-encompassing “black zone,” of aveiros, the act was no blacker than any other sexual prohibition.
Because secular authorities have made it abundantly clear that pedophilic acts are most definitely heinous criminal offenses, our religious authorities have had to change the way such offenses are dealt with in our own communities. No longer is a warning and a slap on the wrist enough of a punishment. No longer is it adequate to allow religious authorities be the sole judges and juries in child sexual abuse cases. Today, immediate disclosure to the police upon hearing such allegations is the only sufficient response.
However, it’s taken us a long time to get to this place (and some of us still aren’t there yet) precisely because of the disparity between civil law and religious law, and because of the false moral equivalency that considers all sex “offenses” to be equal (with the exceptions of homosexuality and adultery). In some cases this moral generalization punishes consenting adults (in terms of public condemnation), while being lenient on criminal abuse (giving a warning and in some cases relocating the culprit to a new community to remove him from the victim, yet also provide him with a fresh start).
I think there is a fear that if sexual prohibitions are assigned shades of grey (i.e. consensual heterosexual activity between single adults where the woman has used the mikvah would be given the slightest grey coloration while same sex rape of a male minor would be given the blackest shade) we would be given the message that some non-kosher relations are simply a matter of not being “glatt kosher” vs. plain old kosher (or perhaps cholov yisroel vs. cholov stam).
Basically, there is a worry that Jewish people would be more lenient regarding sexual ethics if there was any hint that some transgressions are far worse than others. Therefore, all extramarital touching is condemned (i.e. a coach giving a high five to an opposite gender player, rape, being alone in a closed room with someone of the opposite sex, incest, a husband and wife directly passing the salt during the wrong time of the month, consensual sex between unmarried people, a husband holding the hand of his wife during childbirth, masturbation), and with equal condemnation comes equal dismissal of such rebuke for those who are tempted to stray.