The Mishnah, Jerry Sandusky, and Jewish Education

by Rav Shai Cherry, Ph.D. Shaar Hamayim: A Jewish Learning Center

According to the Mishnah, we are all mandatory reporters. I suppose Joe Paterno, and the rest of those at Penn State who had carnal knowledge of Jerry Sandusky, werent Mishnah mavens. So, whats a better excuse: A) My Mishnah teacher didnt get to the very end of the eighth chapter of tractate Sanhedrin; or B) I didnt know what I should do about a middle-aged man molesting young boys?

The Mishnah does not simply mandate reporting, the Mishnah actually requires that we disable a predatory pedophile even if it means killing him! We are to do whatever is necessary to save the perpetrator from committing such an egregious transgression.

The following are to be saved [from transgressing] even at the cost of their lives: one who pursues after his neighbor to kill him, after a male, or after a betrothed woman. (Mishnah, Sannhedrin 8:5)

Among the many reasons I am blessed to teach Torah is that, unless Im under a serious case of self-delusion, I would have known what to do had I walked into the locker room. Maybe Jerry

Sandusky was the king. And maybe Joe Paterno was the King of kings. The Mishnah knows from such salaciousness from kings of flesh and blood. Perhaps that is why the rabbis describe God as Melech malchai hamlachimthe King of kings of kings.

It is often the case amongst liberal Jews that we think of the Talmud as filled with intellectual etudes to sharpen our minds. That is true, but it is more. The Talmud is the Rabbinic version of Platos Republic its our version of a realistic utopia. In a real utopia, you dont have sexual perverts. In a realistic utopia, you know how to minimize their damage. The Talmuds scenarios train us for the unexpected. The Talmud doesnt just demand abstract reasoning, it demands concrete action. No doubt, some images from the Talmud will no longer move us. But, when the building falls down, rather than running away or gawking at the carnage, were commanded to clear the rubble to determine if anyone is still alive. The image from that text (Mishnah Yoma 8:7) might even shake a witness out of shock. We know what needs to be done because weve studied it, even though we thought we were studying it for philosophical principles and not rehearsing for an unanticipated crisis.

In studying the Talmud, though, we learn even more than it contains. The Mishnah, edited in the early 3rd century by Rabbi Yehudah Hanasi, is largely a repository of legal traditions. It forms the foundational stepping stones of the two Gemaras, the Jerusalem and the Babylonian. (The Mishnah and the Babylonian Gemara comprise the Babylonian Talmud, while the Mishnah and the Jerusalem Gemara comprise the Jerusalem Talmud.) There are relatively few biblical

quotations in the Mishnah, and many scholars see the Mishnah as a stand alone piece of legal literature that is not based on rabbinic or midrashic interpretations of the Torah. Two generations after the Mishnah began circulating, an appendix appeared which linked the legal traditions of the Mishnah back to Moses and Mount Sinai. The claim of this appendix, Avot, is that Moses received both a written Torah and an oral Torah at Sinai, and the Mishnah reflects that oral Torah transmitted through the generations.

Just as biblical scholarship has undermined the claim about the role of Moses and the written Torahs origin at Mount Sinai, there is a similar critique of Avots claim concerning the oral Torah. There was, to be sure, an oral tradition that existed along side of the Torah, but just as the Torahs laws developed and changed over time, so, too, did the laws that were eventually recorded in the Mishnah.

Lets return to our mishnah (lower case for the individual tradition), the one that requires we kill someone, if necessary, who is pursuing after a male. The written Torah, it is true, commands killing many categories of peoplebut its always after theyve committed whatever it is the Torah has prohibited. Our mishnah is amazing, in part, because of its permissiveness. Were obligated to kill someone because of what they intend to do.

Heres where we go from amazing to astonishinghow can we know anyones intention? If someone is pursuing another to kill him and he has a hatchet in his hand and hes screaming, Im going to kill you! thats a strong indication of intention to kill. Whats the corollary in our case? Short of catching the perpetrator in flagrante delictoas Sandusky reportedly was what are grounds for reasonable suspicion that would activate this mishnah?

I dont know, nor does the gemara on this mishnah even address the question. Thats unusual for the Talmud. We are left with an unprecedentedly permissive and far-reaching mishnah it demands we take the life of a pursuer if we feel/judge/believe that a child is at risk of abuse. I know of nowhere else in rabbinic literature where such a drastic and irrevocable act is mandated predicated on the subjective sense of a single witness.

And thats the ultimate lesson from our mishnah. The sexual abuse of a minor is so transparently evil and so shattering to the victim that any bystander simply must protect that child even if it means killing a mentally ill predator. The Rabbis of the Mishnah legislated this legal aberration from their own sense of morality due to the gravity of this case. The Mishnah might not be from God in any simplistic, literal sense, but it is surely godly. It seeks to protect one divine image from another whose divine image has been perverted. How are we to understand and how are we to heal a society which produces so many who turn aside from the evil that assaults others? What was obvious to the Rabbis of the Mishnah has, tragically, become obscure. It may be nave to think that studying Talmud will make us more moral; but

its equally nave, and far more dangerous, to think that morality does not require moral education. And if we Jews dont get that from our tradition, then from where?