Thursday, May 10, 2012

Outcast Offenders – Understanding and High Expectations

From The Age newspaper

A white newspaper columnist called it “a Textbook case of society’s failure to save a child[1]”.  “Diane[2]” is a 15 year old Aboriginal girl who will be sentenced by an Australian court next Monday, 14 May 2012. She has repeatedly brutally attacked girls and women, stomping on one girl’s face before robbing her. She is illiterate, has trouble hearing and has an IQ score in the lowest 1 per cent. She is a regular drug user suffering unresolved grief who had thought of killing herself. The Columnist suggests that this case points to “a deeper failure to resolve the legacy of indigenous dispossession and alienation”.

This is not about what the courts should decide in these cases. It is about the broader moral question of how we think about alienated offenders with difficult circumstances be they black, brown or white. I think there is a lot of merit to the understanding approach that takes into account the horrific things done to Aboriginal people, the impact of the collective memory and ongoing issues and the individual hardship that people like Dianne experience. Still, I also worry about communicating a message to people of her situation that society is prepared to accept violence and robbery from them, because we think they cannot help themselves. What is the right response?

Death of the Blasphemer-Outcast-half-Breed-“Bastard”
There was a man of mixed heritage, son of Egyptian father and an Israelite mother named Shelomit of the tribe of Dan who quarrelled with an Israelite man[3]”. The Torah does not tell us the name of either of the flawed men who were quick to fight[4], but as a device let us call our Protagonist by the name Ben.

I feel for Ben, a half-Egyptian among the recently liberated Israelite former slaves. His mother Shelomit is described as a flawless beauty[5] that was a bit of a flirt, happily chatting with anyone[6]. Ben’s Egyptian father was an Egyptian task master who came to see his mother’s husband Dathan[7]. When the Egyptian official came into their tent Shelomit, flirted with him. The Egyptian hid behind a ladder[8] and when the husband went out he raped her[9]. Ben was the result of their encounter and according to one view his status was like that of a “Bastard[10]”. The Egyptian realised that the husband, Dathan, knew what happened, so the Egyptian beat him and tried to kill him. Moses appears on the scene at that moment and miraculously kills the Egyptian by pronouncing God’s name[11].  Dathan survives and divorces Shelomit. Shelomit’s brothers are furious and seek to kill Dathan[12]. What a load of baggage for a young man trying to find his place in the world.

Ben first identified with his absent Egyptian father but then decide to convert[13] and join his mother’s family[14]. The Israelites camped according to their tribes and Ben approaches the Dan camp[15] to join his mother’s tribe.  He receives a hostile reception, a Dan man fights with him, he degrades Ben’s mother[16], he tells Ben “you are a Bastard and the son an Egyptian[17]!” Ben asks the Israelite man, “where is my Egyptian father?” He is told that his father was killed by Moses by use of God’s name. Ben has been deeply humiliated by this stage, contrary to the idea “don’t rush out to fight[18]” he hurries[19] to the court of the great prophet Moses, his father’s extra-judicial killer[20], to resolve the issue but he loses the case[21].  Utterly rejected and furious, Ben pronounced the same Divine Name used by Moses to kill his father and blasphemes. He is promptly imprisoned and obeying divine guidance, he is executed, the whole camp stoning him.

How serious is Blasphemy?
The first objection the modern reader would raise is about Blasphemy being punished by death. I must be honest that I am glad that the laws relating to Blasphemy and punishments are not in force today. To try to imagine how seriously Blasphemy was taken it useful to read a description of the procedures of a Blasphemy. “The whole day [of the trial] the witnesses are examined by means of a euphemism for the divine name, ‘may Yose smite Yose.”  When the trial was finished, the accused was not executed on this evidence, but all persons were removed [from court], and the chief witness was told, ‘State literally what you heard.’ Thereupon he did so, [using the divine name]. The judges then arose and tore their garments (a sign of mourning), which were not to be resewn….[22]”. For the purpose of this discussion, it is useful to put to one side, the question of the harshness of the punishment or even the question about whether Blasphemy should be a crime. Instead let us focus on the moral question about how someone like Ben is to be approached can be considered in the light of this story and its commentaries.

Difficult Circumstances Defence
I would think Ben would be entitled to some understanding for his situation. We find that Job is not judged for his complaints against God[23], because, “Job, not with knowledge does he speak[24]”. Out of the difficulty of his pain, he is considered to not be of sound mind[25]. Based on this, our sages have concluded that a person is not punished for what s/he says in a situation of pain[26]. I wonder why Ben, is not let off the hook?

The bigotry/personal animosity motive?
Traditional commentary rejects the idea that the killing of the “son of the Egyptian” was motivated by hatred in the heart related to the fight with the “Israelite man[27]”. The Torah repeatedly emphasises equal treatment between the stranger and the long-standing “citizen”. It raises this point again twice! along with a few other laws in middle of the story of the Blasphemer[28]. We are then told, “the Israelites took the blasphemer outside the camp and stoned him…just as the Lord had commanded Moses[29]”.  The motive was solely to obey God’s command.

Combination of Understanding with high standards 
One approach to this issue combines genuine humility and understanding with high expectations. “One should not judge his fellow until being in their place[30]”. For it is literally his “place” i.e., his physical environment that causes him to sin, since his livelihood requires him to go about the market-place all day…(or) he is of those who sit at the street-corners. Thus his eyes see all sorts of temptation; and “‘what the eyes see, the heart desires….”. In addition a person who had the benefit of religious knowledge is encouraged to consider him/herself “lowly[31]” in comparison with an uneducated sinner. One must also avoid judgement based on other factors including individual temperaments. Alongside these teachings sits the following statement: In truth, even he who is extremely passionate by nature, and whose livelihood obliges him to sit all day at the street-corners, has no excuse whatsoever for his sins…For he should have controlled himself and restrained the feeling of desire in his heart….[32]”.  

I still have trouble with the whole sad episode of Ben, from his rejection by the tribe of Dan to the confirmation of that rejection by the court of Moses and Torah law, through to his execution. How do we reconcile this story with teachings about the importance of caring for the vulnerable and human dignity? Returning to the original question about the offender-victim, I will not make any attempt at offering solutions to the problems that led up to Dianne’s scheduled court appearance. But I will repeat what an Aboriginal community worker I have great respect for told me in another context, that it is vital that young people in her community learn that they have choices about their future.

[1] Horin, A, When all else fails, society can too. Sydney Morning Herald, Weekend Edition, 5-6 May 2012
[2] Not her real name
[3] Leviticus 24:10
[4] Klei Yakar
[5] Shemot Rabba 1:32
[6] Vayikra Rabba 32:5, Midrash Hagadol, also cited in Rashi, Her name is taken as a clue that she was a loose woman, “Shelomit” which is related to the word Shalom/peace and this is interpreted as asking everyone how they are, the name Dibri is closely related to the word for talking Daber and is also taken as reflecting her chattiness.
[7] Shemot Rabba 1:32
[8] Vayikra Rabba
[9] Midrash Hagadol
[10] Torat Cohanim, Vayikra Rabba 32:4
[11] Shemot Rabba 1:34
[12] Sefer Hayashar, and Midrash Divrei Hayamim L’Moshe cited in Torah Shelaima vol 8, p.77
[13] Torat Cohanim
[14] Hizkuni
[15] Torat Cohanim
[16] Zohar Vayikra, 106a, cited in
[17] Hizkuni
[18] Proverbs 25:8
[19] Yelamdenu
[20] There is an implied criticism of this killing in Midrash Petirat Moshe in which God asks Moses “did I tell you to kill the Egyptian?” Moses counters by pointing out God’s killing of the first born Egyptians, to which God retorts, “are you like me, to make die and make live, can you give life like I do? Cited in Torah Shelaima vol 8, p.81
[21] Torat Cohanim
[22] Mishna Sanhedrin, 7:5
[23] Job 9:24 “The earth has been given into the hands of a wicked one; he covers the faces of its judges. If not, then who is he?”
[24] Job 34:35
[25] Metzudat David
[26] Talmud Bava Basra 16b
[27] Ohr Hachayim, Ramban and Seforno on Leviticus 24: 23
[28] Leviticus 24: 16 & 22
[29] Leviticus 24: 23
[30] Pirkey Avod 2:4
[31] Pirkey Avot 4:10 combined with Talmud Bava Metzia 33b as explained in Tanya 30
[32] Tanya 30, translation text taken from Lessons in Tanya

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