NEW YORK (Nov. 25)
When is a rabbi supposed to keep as confidential information someone tells him during counseling, and when should it be divulged?
It is a complicated ethical question, Jewishly speaking, according to several experts on Judaism, legal issues and rabbinic practices.
A new, precedent-setting ruling by a New York state court is also highlighting the fact that the question is complicated in terms of the civil legal system.
Issues raised by the case have broad ramifications for the Jewish community – - in both legal and congregational settings.
Several Jewish groups — including Agudath Israel of America and the Orthodox Union — are closely following the case and may file briefs in upcoming rounds of the legal battle.
The New York Board of Rabbis said it is considering running a symposium to examine the implications of the case.
A New York State Supreme Court judge recently ruled that Rabbi David Weinberger was wrong to disclose a congregant’s confidences by revealing them to her estranged husband and testifying before the court that oversaw their divorce.
Chani Lightman, a 38-year-old Orthodox woman, nurse and mother of four daughters, has been trying to obtain a divorce from her husband since 1995.
She says Hylton Lightman, a prominent pediatrician in the Five Towns region of Long Island, has so far refused to give her a get, the Jewish divorce that only a man can issue according to halachah, or Jewish law.
He is said to have filed a get with Rabbi Motti Wolmark of Monsey, N.Y., who said, through his secretary at Yeshiva Shaarey Torah, that he had no comment on the matter.
Chani Lightman has been given no opportunity to accept the get if there is one, said her attorney, Daniel Schwartz, and “if her husband believes that she has been unchaste, he is obligated to give her one forthwith.”
The Lightmans are in the middle of civil divorce proceedings, and the court has awarded Hylton temporary full custody of their children.
Chani Lightman said she went to Weinberger, who was her pulpit rabbi, and another rabbi in the community, Tzvi Flaum, in 1995 to discuss her troubled marriage because she was aware that her husband had also spoken with them.
During her separate meetings with one of the rabbis, she revealed that she had stopped going to the mikvah, the ritual bath into which observant women immerse themselves after menstruating and before resuming sexual relations with their husbands, because she wanted no further intimacy with her husband.
She also told Flaum, according to the affidavit he submitted to the court, that she had seen another man socially.
The rabbis submitted affidavits on Hylton Lightman’s behalf as part of the divorce proceedings, saying that she was not living as an Orthodox woman should.
Chani Lightman took the unusual step of suing the two rabbis because they disclosed private information to her husband and to the court without ever getting her permission to do so.
Hylton Lightman told his wife and her attorney, they each said, that he would give her a get only if she dropped the lawsuit against the rabbis.
On Nov. 18, Justice David Goldstein ruled that Weinberger owes Chani Lightman damages for causing her harm. In his decision, Goldstein called Weinberger’s disclosures not only “improper” but “outrageous and most offensive.”
No date has yet been set for either his ruling on the amount the rabbi owes his former congregant, or for Flaum’s hearing.
The attorney representing them both, Franklyn Snitow, said that he intends to appeal the ruling on Weinberger’s case.
Lots of Jews turn to their rabbis for pastoral counseling during troubled times. Lightman’s cases poses several thorny questions, among them, “How private is the information a congregant shares with his or her rabbi?” and “Does a person run the risk of making public the most intimate details of his or her life when they turn to a rabbi for guidance?”
Unlike New York, most states do not have clergy-penitent privilege, which legally protects what someone tells their rabbi or minister.
But according to Rabbi Michael Broyde, many other states have an exception for Roman Catholics, who are required as a religious act to confess their sins to priests so that their clergymen can grant them absolution.
Broyde is acting director of the law and religion program at Emory Law School in Atlanta and is a member of the Beth Din of America, a Jewish religious court.
The New York court ruling has also raised questions about how involved civil law should be in deciding whether a rabbi’s judgement is correct.
David Zwiebel, director of government affairs for Agudath Israel of America, a group representing fervently Orthodox interests, is closely following this case. He said he has received a large number of phone calls from concerned rabbis since the ruling was handed down.
It is likely that the Agudah will file a friend-of-the-court brief on behalf of the defendants after they appeal, he said.
“The general rule in secular law and halachah is that things said in confidence must be kept in confidence,” he said, adding: “There are times, though, when the general rule must be breached.”
The rabbis in this case were “concerned over the mental and spiritual well- being of the children. The rabbis are entitled to make these sorts of judgements,” Zwiebel said.
“If a civil court is saying that they are not, it comes awfully close to the kind of entanglement that the First Amendment is designed to prevent.”
Zwiebel said the decision is already having a chilling effect on the ability of rabbis to counsel their congregants because they fear that if they learn anything they feel compelled to report, they might be sued.
But what constitutes that point at which a rabbi should feel compelled to divulge private information learned during counseling?
According to Rabbi Joel Meyers, director of the Conservative movement’s Rabbinical Assembly, “the rules of confidentiality are rather vague.”
“Every situation has to be weighed carefully as to whether confidentiality is maintained or not,” he said. “There is a tendency for confidentiality to be maintained, but there are times when it becomes clear that harm will be done if it is not.”
In Jewish terms that is the bottom line: Will someone be hurt if the rabbi does not intercede?
If people declare their intention to physically harm themselves or others, the rabbi is obligated to do whatever it takes to stop them, said several experts.
But that law of lashon harah, guiding potentially damaging speech, “can be used and interpreted very subjectively so therefore needs a lot of thought,” said Michael Rothschild, director of the Chofetz Chaim Heritage Foundation, an Orthodox group that, among other things, teaches about Judaism’s guidance on the impact of words.
The reality of rabbinic life is that these issues only come to the fore in the context of a divorce or fight for custody of children, said Meyers.
Snitow, the defendants’ attorney, maintains that “there was never any expectation of privacy” when Chani Lightman went to talk to them. “It was never intended as pastoral counseling or a penitent’s confession,” he said in an interview.
That, said Lightman’s attorney, is simply untrue.
The impact of what the rabbis did, said Chani Lightman, has “been like a nightmare.
“I’ve lost custody of my children, and I’ve been obliterated” in the community, she said. “Other women should not be bamboozled by the rabbis and turned into a pariah.”