The Mitzvah to Speak Lashon Hara

Let Them Talk

Rabbi Mark Dratch

JSafe: The Jewish Institute Supporting an Abuse Free Environment

“You are not allowed to say negative things,” they are told. “There’s no proof!”

The prohibition of Lashon Hara (slander, gossip, tale-bearing) is often used as a tool to silence abuse victims and their advocates from speaking out against abusers. “There are no witnesses.” “You can’t make this public.”

“Keep the secret! Remain silent!” And so women, girls, boys, and men are silenced and are often unable to get the help that they need or appeal for the support that they deserve. By invoking lashon hara improperly, the community to which they turn not only revictimizes them, but enables their abusers to continue abusing them and, potentially, others as well.

These attitudes are articulated by many: rabbis, friends, neighbors. They find expression in many places, including the following rabbinic legal responsum. The rabbi is asked whether one should report to the legal authorities a father who one suspects of sexually molesting his daughter or a teacher who one suspects of sexually molesting his student.

In response, he warns that, unless there are two valid witnesses who actually saw the assault, it is forbidden for anyone to speak about it at all, even the victim. He forbids others who may have learned of the molestation through hearsay or circumstantial evidence from saying anything, categorizing their comments as motzi shem ra - slander, distortions, and lies. In his opinion, the daughter’s disclosure is unacceptable: she is a minor, a female and a relative. The mother’s testimony is unacceptable: she is a relative and a female. The doctor’s opinion is unacceptable; based on his examination of the child, he can only testify that she had been abused, not who abused her.

Furthermore, the rabbi asserts, there is a hazakah (a legal presumption of human behavior) that a father does not molest his daughter, and, unless proven otherwise, this presumption overrides any concerns that may be raised. There being no acceptable or legally obtained evidence to support the accusation, any mention of it at all is prohibited.1
This response is unacceptable. Is it really prohibited for victims of abuse - whether child or adult, woman or man - to speak of the mistreatment and exploitation that they suffered?

Is this really what Jewish law expects when it comes to protecting individual innocents and society as a whole from real and potential perpetrators?

What are the laws of lashon hara? How do they apply to cases of domestic violence and child abuse? What do the sources really say?

May a survivor speak out? May others repeat the allegations they heard?

The Prohibition

“You shall not go up and down as a slanderer among your people; nor you shall stand by the blood of your friend; I am the Lord” (Lev. 19:16)

is the basis of the biblical prohibitions proscribing lashon hara (talk that is damaging to another’s reputation and is true), motzi shem ra (talk that is damaging and is false) and rekhilut (tale bearing). These prohibitions include not only speaking derogatorily, but listening to deprecating speech as well. The great works of Shemirat HaLashon and Hafetz Hayyim, authored by the revered sage Rabbi Yisrael Meir ha-Kohen Kagan (1838-1933) are the essential works in this area, and no discussion of lashon hara can begin or proceed without them. (For the purpose of this article, unless otherwise noted, the term lashon hara will be used to refer to all derogatory speech, including motzi shem ra and rekhilut as well.)

While these prohibitions are serious and consequential, they are not absolute. There are times when one must share disparaging and critical information with others.

There is a duty, for example, to testify in a court of law and to reveal information about another’s illicit behavior.2

What situations require disclosure? What are the conditions under which disclosure may take place?

At first glance, unless the speech fulfills all of the conditions necessary to be accepted as legal testimony, i.e., the statement of two valid witnesses, male, religiously observant and unrelated to each other or the subject of their testimony, any disclosure should be prohibited. The Talmud, Pesahim 113b, relates that one of three persons that “the Holy One, blessed be He, hates” is “one who sees something indecent in his neighbor and testifies against him as the sole witness.” Because a Jewish court requires two witnesses, the testimony of a single witness is invalid and ineffective. There being no possible appropriate and legal consequence to this revelation, the witness has succeeded in doing nothing more than defaming a person’s character.

The Talmud relates:

As it once happened that Tuviah sinned and Zigud alone came and testified against him before R. Papa, [whereupon] [R. Papa] had Zigud punished. ‘Tuviah sinned and Zigud is punished!’ exclaimed [Zigud], ‘Even so,’ said [R. Papa] to him, ‘for it is written, “One witness shall not rise up against a man, (Deut. 19:15)” whereas you have testified against him alone: you merely bring him into ill repute.’ R. Samuel son of R. Isaac said in Rav's name: Yet he (the single witness) may hate [the sinner].

The prohibition against lashon hara does not only pertain when one’s intentions are negative, i.e., the discrediting of another’s reputation—to shame him or degrade him; they apply even when one one’s intentions are neutral or one’s statements are merely in jest.3

The Obligation to Speak
There are times when a person is obligated to speak out, even when he is the sole informant and even though the information is disparaging. Specifically, if a person’s intent in sharing the negative information is for a to’elet, a positive, constructive, and beneficial purpose, the prohibition against lashon hara does not apply.4 Motzi shem ra, spouting lies and spreading disinformation, is always prohibited. And if the lashon hara serves as a warning against the possibility of future harm, such communication is not only permissible, but, under certain conditions it is compulsory. This applies even when one is the sole source of the information; the prohibition represented by Zigud’s testimony in Pesahim 113b applies only in a court setting.5

Although Hafetz Hayyim disagrees with this distinction and maintains that solitary testimony is prohibited both in a court and outside of a court,6 even he agrees that where there is a to’elet, such speech is permitted.

Rabbi Eliyahu ben Hayyim (Ra’anah) even allows seeking derogatory information about someone and permits the soliciting of witnesses of a possible transgression. Although Rosh7 bans such a public appeal unless two witnesses have already come forward against the alleged sinner - after all, “fishing” publicly for evidence against someone is itself damaging to that person’s reputation - Ra’anah explains that that applies only when there are no reasonable suspicions against the individual at all. But, when one is certain that a sin has been committed and that there exist witnesses who have not come forward, he may go public with an appeal for their testimony and a court may even threaten those reluctant witnesses with contempt if they do not appear.8

Commentators maintain that the distinction between derogatory speech that is solely detrimental and derogatory speech that serves a helpful purpose derives from the biblical verse itself. They point to the juxtaposition of the two clauses of the verse, “You shall not go up and down as a slanderer among your people” and “nor you shall stand by the blood of your neighbor” (Lev. 19:16) and note that although there is a prohibition of defamation (clause 1), that prohibition is overridden by the obligation to save another or to testify in his behalf (clause 2).9

Thus, the verse should be read, “You shall not go up and down as a slanderer among your people; but, nevertheless, you shall not stand by the blood of your neighbor (and you must speak out in order to prevent harm).” This obligation includes protection not only from physical harm, but protection from monetary and spiritual harm as well.10

Rambam codifies this reading as a matter of law:

Anyone who can save another and does not save him violates, “You shall not stand on the blood of your neighbor.” Therefore, one who sees his friend drowning in the sea or being attacked by robbers and is able to save him; or if he hears that others are conspiring to harm him and have set a trap, and he does not reveal this information to him, he violates that which is said in the Torah, “You shall not stand on the blood of your neighbor.”11

To’elet is a factor in permitting not only otherwise forbidden speech, but it is a consideration in all interpersonal (bein adam le-haveiro) prohibitions as well. R. Elhanan Wasserman writes:

All interpersonal injunctions are prohibited only [when the act is performed in a] destructive and deleterious manner, for no positive benefit. For example, the prohibition of “Do not hate your brother” prohibits only sinat hinam (wanton hatred), i.e., when he did not see him commit an illicit act. But if he witnessed an illicit act, it is permissible to hate him… So too regarding the prohibition of physical assault; Rambam wrote that this applies only if he strikes another in an aggressive manner…So too regarding the prohibition “You shall not go as a tale bearer”- one is permitted to speak lashon hara concerning those involved in disputes in order to quell the argument… Thus, all of this indicates that all these prohibitions are permitted for the purpose of to’elet.12

Nevertheless, there is widespread misunderstanding of the laws of lashon hara and many invoke this prohibition as an excuse for not sharing information, even when that information would be beneficial to another person. R. Yisrael Isser, author of Pit’hei Teshuvah, cautions against being overly righteous by being reluctant to share helpful, but derogatory information:

The Magen Avraham and the mussar books (ethical treatises) write at length concerning the prohibition of lashon hara. I have found it appropriate to write about the other side. There is a sin even greater than [speaking lashon hara], and one which is more widespread, i.e., the sin of refraining from informing another about a situation in which one can save him from being victimized - all out of concern for lashon hara… One who behaves in this manner, his sin is too great to bear and he violates, “You shall not stand by the blood of your brother.”13

R. Yisrael Isser emphasizes that this obligation to speak out applies not only when a person is in physical danger, but also when he is subject to potential financial or personal harm.

In addition, R. Yisrael Isser maintains that while some are tainted:

“if his intentions are good, i.e, for the purpose of warning his fellow and saving him from ‘the snare of the fowler,’ it is a great mitzvah [to share information] and a blessing will come upon him.” 14

The Listener
Although the Torah also prohibits listening to lashon hara, one may not lightly dismiss or ignore derogatory information that he hears about another person. While he should not accept unquestioningly a negative report as definitive, he should, nevertheless, consider that it might be true and proceed suspiciously and cautiously (derekh hashash be’alma), in light of the information he received.15 Gedaliah ben Ahikam, the assassinated governor of the Jews following the destruction of the First Temple, did not pay attention to such a report and, as a result, he was held liable for the deaths of eighty men.16 The Talmud explains that

“owing to the fact that [Gedaliah] should have taken note of the advice of Yohanan the son of Kareah (who told him that Shimon b. Netaniah wanted to kill him) and did not do so, Scripture regards him as though [Gedaliah himself] had killed them himself.”17

The Abused: Obligatory Lashon Hara
Often, a person who has been the victim of abuse or violence wants to share this information with others. Sometimes it is with a friend or family member. Sometimes it is with a police officer18 or therapist or lawyer or advocate.

Sometimes it is for the purpose of seeking legal or psychological help, sometimes it may be to warn potential victims of harm or danger, and sometimes it may be just to unburden herself.19

Said Rava,

“As to slander, though one should not believe it, one should nevertheless take note of it.” There were certain Galileans who were rumored to have killed a person. They came to R. Tarfon and said to him, “Will the Master hide us?” He replied, “How should I act? Should I not hide you, [the avengers of the blood] would see you [and kill you]. Should I hide you, I would be acting contrary to the statement of the Rabbis, ‘As to slander, though one should not believe it, one should take note of it.’ Go you and hide yourselves.”
See Hafetz Hayyim, Hil. Issurei Lashon Hara 6:10.

VALIDATING & LISTENING TO A VICTIM
IS KEY TO THEIR RECOVERY!

~~~~~~
1 Teshuvot Mishneh Halakhot, XIV, no. 58.
2 See Lev. 5:1.
3 Hil. Lashon Hara, kelal 4, Be’er Mayyim Hayyim, no. 1 citing Hil. De’ot 7:5.
4 See Hil. Lashon Hara, kelal 10 and Hil. Rekhilut, kelal 9.
5 Semag, prohibition 213; Sefer Hareidim 24:30.
6 Be’er Mayyim Hayyim, Hil. Lashon Hara, kelal 3:1.
7 Teshuvot haRosh 7:7.
8 Teshuvot Ra’anah I:111 quoting Teshuvot haRashba II:229.
9 See Ha’amek Davar; Ha’amek She’eilah, Parashat Vayikra 68:2; Or haHayyim; Meshekh Hokhmah.
10 Rashbam to Baba Batra 39b, s.v., u-man de’amar; Sefer HaMitzvot, neg., 297; Hinukh, mitzvah 237; Teshuvot Mishkenot Ya’akov, Hoshen Mishpat 12.
11 Hil. Rotzei’ah 1:14. See also Tur and Shulhan Arukh, Hoshen Mishpat 426:1.
12 Kovetz He’arot, Yevamot no. 70. In applying this ruling, R. Ovadia Yosef, Teshuvot Yehaveh Da’at, IV, no. 7, obligates a physician to report to the Department of Motor Vehicles a patient afflicted with epilepsy in order to have that patient’s license suspended. He rules that this obligation to prevent harm not only overrides the prohibition of speaking negatively about another, but even supersedes the doctor-patient privilege of confidentiality.
13 Orah Hayyim, no. 156
14 See also Hafetz Hayyim, Issurei Rekhilut, kelal 9.
15 Nidah 61a,
16 See Jeremiah 39.
17 Nidah 61a.
18 Issues of mesirah and arka'ot are beyond the scope of this paper. Nevertheless, there is ample precedent in Jewish law to allow a victim to report her abuser to civil authorities.
19 Because the overwhelming majority of subjects of violence and abuse are female, we will refer to victims in the feminine. It must be noted, however, that men and boys are also victims of domestic violence and child abuse as well, and that their ability to deal with abuse is much harder and more complicated for a variety of sociological reasons.

JSafe