About Sexual Harassment: My Jewish Standard - Dear Rabbi Zahavy - Talmudic Advice Column - for December 2017

Dear Rabbi Zahavy
Your Talmudic Advice Column

Dear Rabbi Zahavy,

I have been subjected to sexual harassment by a person of authority. I cannot avoid this person. He is persistent and aggressive towards me. He has made it clear that he wants to have sex with me. I am not interested in his proposition. I find his unrelenting advances intimidating and awful.
Is there some advice that you can offer to me from the Jewish perspective that will help me deal with this terrible situation?

Harassed in Hackensack

Dear Harassed,

I’ll try to offer some guidance, but as you can tell from the daily barrage of recent news stories, this sort of problem is serious in our society at large, it is widespread in our world, and it is terribly hard to resolve.

First, I’ll remind you that this problem is not new.

Second, I’ll assure you that this problem is nearly intractable. The Talmud has a saying that there is no such entity as a guardian who can be appointed to protect us from wanton sexual aggressions.

Third, I’ll nevertheless suggest some steps that you may take to help you avoid harassment, and protect your personal integrity.

We know that sexual harassment is not new because it is described in dramatic details in our ancient Torah in the book of Genesis, and in our sacred writings in the book of Esther.

The Hebrew slave Joseph, son of our patriarch Jacob, we are told in parashah Vayeshev, was subjected to harassment by the wife of his owner, Potiphar. Sure, you may rightfully object that ancient narratives are irrelevant, and ironic where they portray a man as the victim of harassment. That is not the usual case that we know of in most cultural and individual settings.

Look at how this story unfolds. The wife of the powerful vizier of Egypt took a sexual liking to her slave Joseph. She asked him for sex. He refused. She repeated and demanded. He fled. According to the midrash, she framed him, telling Potiphar that Joseph performed special sexual acts with her.

Potiphar believed his wife and had Joseph sent to prison. The obvious lesson of that story is that pushing back against power did not yield a good immediate result. Yet as that story and the subsequent narratives unfold in Genesis and Exodus, in prison Joseph interprets the dreams of Pharaoh’s baker and wine steward, then interprets Pharaoh’s dream — and then becomes vizier of Egypt. Joseph’s sexual harassment at the outset of the story led to the salvation of the tribes of Israel from the starvation of famine. Wow.

In our second example, at the beginning of the book of Esther, we are regaled with a saucy story of how the Persian queen Vashti was subject to harassment by the king. She was ordered to appear at his feast — the insinuation was that she was to appear naked for the delight of the guests and perhaps to provide them other sexual favors as well. She refused to be humiliated in this way, and was removed as queen. She might have been executed. The obvious lesson of that story is that pushing back against power did not yield a good direct result.

Yet as that story unfolds, we are told that this episode opened the door for the selection of Esther as the new queen. And that eventually resulted, after intrigues and meanderings of narrative epic proportions, in Esther saving the Jewish people from death and destruction at the hands of the evil enemy Haman.

And do not forget that the king decides to hang Haman only when he catches him in bed with the queen. Esther knew that Haman was begging for his life. But the king saw him as a sexual harasser and predator and sent him to the gallows.

Yes, these are some ancient Bible stories. Okay, sexual harassment is not a new problem. How does that help you today?

Let’s come down from our sacred texts to our profane earth, to the troubling events that have come out in the news of late, and to the terrible situation that you face in your life.

Let me be clear and absolute. I can assure you that the misconduct to which you are subjected is not part of God’s ultimate large plan for the salvation of the Jewish people. Sexual harassment, plain and simple, are acts of evil perpetrated by offenders against innocent victims.

Unfortunately, I also can predict that retaliation against the resistant victim, like that described in the ancient texts, also occurs in the modern cases that we face.

And further, the problem is that in modern times, even though there are some few laws that define harassment acts actionable, even criminal, society makes it hard to pursue claims and mainly ignores the bad actions that go on in this area — at least until they become celebrity news stories.

In Israel the legal situation in this matter is somewhat enlightened. There are specific disciplinary provisions. For example a civil service law says: “An employee shall not act sexually towards another employee, if the act harms or harasses the employee or his dignity, or if the act was not committed with his consent, explicitly or implicitly” (Section 43.422). Another civil service law specifies which acts are forbidden: “an act of a sexual nature — including speech or an allusion” (Section 43.421).

In 1998, the Knesset adopted a formidable sexual harassment law. It prohibits sexual harassment to protect people’s dignity, liberty, and privacy.

In Section 3, this law provides a list of acts that may be considered in certain circumstances to be sexual harassment. They include indecent acts; repeated suggestions of a sexual nature addressed to a person who has made it clear to the harasser that she is not interested in his proposals; repeated references that focus on a person’s sexuality, if the person concerned has made it clear to a harasser that he or she is not interested in his references; and degrading treatment in relation to the person’s sex or sexuality, including sexual orientation.

If there is a relationship of authority between the harasser and the harassee — perhaps between an adult and a minor or a disabled person, or between a therapist and a patient, or between an employer and an employee, those acts will be considered sexual harassment, “even if the harassee has not shown the harasser that he or she is not interested in such proposals or references.”

In the United States, workplaces and schools specifically are domains that are in general terms protected under federal laws. Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees based on sex, race, color, national origin, and religion.

Sadly, I must tell you that though the laws exist, as anyone who has had cause can attest to you that prosecuting their offenders is difficult, time consuming, expensive, and often not effective.

And so now — what should you do to avoid sexual harassment to begin with? Vice President Mike Pence has come up with a strategy for himself that resembles the ultra-Orthodox practice of avoiding yihud. In stringently observant circles, a man or a woman must avoid situations of yihud — being alone in a closed private room with a member of the opposite sex.

When conservatives bragged about Pence’s Puritan-like purity during last year’s presidential campaign, they said that he never dines alone with a woman who is not his wife, nor does he attend functions without his wife if alcohol is being served.

Of course, segregation of the sexes in schools and synagogues is a matter of public Orthodox policy, and it has been a core feature of Orthodox life for centuries, even millennia

In preparing to teach a course next term called “The Halakhah of Sexual Harassment,” I learned how quickly traditional Orthodox society is moving to bolster segregation of the sexes, and expand on the prohibition of yihud.

Based on the lessons of Rabbi Yaakov Ephraim Forsheimer, the rabbi and dayan of the Beis Midrash Govoha in Lakewood, Rabbi Yitzhak Levi Rublov recently published a 13-chapter Hebrew book on a website in Israel called, “A Locked Garden — Concerning the Laws of Yihud.” He saw the need to publish this book “because of the decline of the generations” in sexual morality. In his introduction, he remarks in amazement that the Shulkhan Arukh, the code of Jewish law from 1565, devotes only a single section to the laws of yihud (Even HaEzer 22). Rabbi Yitzhak Levi says that for nearly each one of Rabbi Yosef Caro’s 20 short paragraphs on yihud, he was compelled to write a whole chapter to expand upon and explain the halacha.

It seems from this development that the rabbis, at least those on the right, have given up on expecting adults to behave properly, at least when they are alone in mixed company.

Sure, many will say, shouldn’t men and women grow up, and learn to restrain their urges, to try to understand the nuances of relationships between the sexes, and to know better when sexuality is a permitted part of that mix and when it is not?

And yet consider so many prominent examples that have been publicized in the past few weeks alone. They are stories about educated and respected men who failed to grasp what is wrong with their repeated overt acts of sexual harassment.

I heard Dr. Ruth Westheimer speak recently at the Academy for Jewish Religion. She refused to talk about the epidemic of harassment. But she did offer this observation: If two people get into bed naked together, then consent for sexual activity is a given.

Sorry, Dr. Ruth. Though I did not object when you said that in your question-and-answer session, I don’t see that as a given. Even under those circumstances, “no means no.”

Today, colleges are particularly confusing places for defining the levels of sexual consent. Administrators at many campuses know this and are working hard to educate and develop policies to make the atmosphere safer and better. Gone are the days when Yale fraternity brothers can cheer gleefully on a Friday night of partying, “No means Yes. Yes means anal.” Those rowdies are gone from the campus, or at least their fraternity was suspended in 2014. And good riddance.

And finally, yes, some permutation of the Jewish laws prohibiting yihud might not be a bad idea for some circumstances. For instance, in your situation, you may consider avoiding meeting one-on-one with the person who is harassing you, if that is feasible. Although difficult to enact, advice to avoid yihud may help students grappling with those issues on campus, employees in the workplace, or other people elsewhere. Some form of yihud policy or practice may deny harassers the opportunity to harm their victims, and help our permissive culture rein in rampant sexual harassment.

The bottom line is that despite millennia of civilization, human nature has not changed. Sexual harassment persists. Yet there is a marked difference between our world and the ancient one. Today we have the power of the media, and the unprecedented ubiquitous technology to record and report every human action, good and bad. We have the power to bring immoral acts instantly before a crowd of good ethical people.

And we hope and pray that when they learn about it, the good people will step forward and exert pressure, by persistent social action and by campaigning for greater and more accessible legislation, to protect the victims and to punish the bad guys.

To conclude, let me phrase this point in the style of medieval rabbinic law. In twelfth century Egypt, Maimonides said (Mishnah Torah, Laws of Sanhedrin and the Penalties in their Jurisdiction, 24:5), “At any time, and in any place, a Jewish court has the license to give a person lashes if he has a reputation for immorality and people gossip about him, saying that he acts licentiously. This applies provided the rumor is heard continuously … and he does not have any known enemies who would spread this unfavorable report. Similarly, a person with such an unsavory reputation may be humiliated, and scorn may be heaped on his mother in his presence.”

Hmmm. Still something to think about, 800 years later.

Tzvee Zahavy received his Ph.D. from Brown University and his rabbinic ordination from Yeshiva University. He teaches advanced Talmud, halacha, and Jewish law codes at the Academy for Jewish Religion in New York, where he also serves as the coordinator of the rabbinics curriculum. He is a prolific author and has published numerous articles and books about Judaism and Jewish texts. Check out www.tzvee.com for more details.

The Dear Rabbi Zahavy column offers mindful advice based on talmudic reasoning and wisdom. It aspires to be equally open and meaningful to all the varieties and denominations of Judaism. You can find it here on the first Friday of the month. Please mail your questions to the Jewish Standard or email them to zahavy@gmail.com.

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