CCAR RESPONSA
New American Reform Responsa
41. A Criminal as a Member of the Congregation*
QUESTION: A member of our congregation was (several years ago) convicted of brutally murdering his wife by repeatedly stabbing and drowning her in a bathtub in the presence of one of his children. He is serving a lengthy prison term and shows no remorse as he claims to have acted in self-defense; his children live with members of the congregation and attend our religious school. The man is still listed on the congregations membership roster. May we expel him from membership? (Los Altos CA)ANSWER: We must ask ourselves about the purpose of expulsion from a congregation which is the equivalent of the herem or nidui in past ages. At times the herem was invoked to protect the congregation or to indicate that certain kinds of action were considered reprehensible and would not be condoned by the community. This power was invoked for criminal acts, various types of dubious financial transactions, rebellion against the existing religious or governmental authorities both Jewish and Gentile, or any person whose deeds seriously threatened the community. On other occasions the herem or nidui was used as a way of punishing an offender and forcing that individual to repent and return to the community. Maimonides listed the twenty-four possible causes for imposing various forms of the ban; they were casually mentioned in the Talmud (Ber 19a; Yad Hil Talmud Torah 4.14; Shulhan Arukh Yoreh Deah 334.43). We should also note that in the last century the herem was used in unsuccessful attempts to quell liberal tendencies in various European communities. In other words, this was part of the struggle between Orthodoxy and Reform. The various forms of exclusion nidui and herem were imposed for limited periods and seldom permanently. Furthermore, the bans remained in force only as long as the individual did not change his/her ways. The bans meant social and religious ostracism so no one could associate with the individual on a social basis or in business relationships; the individual could not be counted as part of the minyan or as part of mezuman, his children were not circumcised or married (Shulhan Arukh Yoreh Deah 334.10 and Isserles). For most purposes he was treated as a non-Jew (Shaarei Tzedeq 4.5). He/she was also excluded from all congregational honors and privileges. As the punishment was so severe some rabbis abstained from using it while others sought to limit its range (Solomon ben Aderet Responsa V #238, etc.). The herem did not necessarily preclude attendance at services or worshipping with the congregation although it often did. The authorities always hoped that the individual under the ban would repent and this was considered as possible to the very end of life. Even convicted unrepentant murderers, who were executed were buried in the Jewish cemetery albeit in a separate corner; they were considered a part of the community. Burial itself was considered an act of possible repentance; it was mandated in order to show proper respect for the human body (Semahot II; San 47a; Yad Hil Avel 1.10; Tur Yoreh Deah 334; Shulhan Arukh Yoreh Deah 333.3). Apostates, who were frequently a thorn in the side of the Jewish community, were also still considered part of the community; they were permitted to be buried in Jewish cemeteries for two reasons: (a) In order to spare the feelings of the surviving Jewish family members. (b) If they died suddenly, on the assumption that they had actually repented just before their death. Clearly the community does not need to distance itself from this murderer in order to demonstrate abhorrence of his crime. We might, therefore, exclude this individual from membership in order to punish him, but it is doubtful whether this would be an effective tool. We might rather say that given the conditions of modern Jewish life in which a large percentage of individuals remains unaffiliated, we should encourage the affiliation of all Jews with the hope that those who are criminals or on the borderline of legality may be moved toward an ethical and moral life. We would make an exception only for individuals who represent a clear danger to the Jewish community (like Messianic Jews, certain political offenders, etc.). This particular individual can, of course, not attend synagogue services but the fact that he continues to be informed of congregational activities and receives the regular mailings may prompt him in a positive direction. As an individual who is a criminal and has been convicted, he should be denied all special rights and privileges. He can not claim any of the honors or privileges normally accorded to a member of the congregation (Shulhan Arukh Orah Hayim 153.21 and commentaries; Toldot Adam Vehavah 23.1). This would include those privileges normally associated with his status as a father. He may, for example, be excluded from participation in any rites or services connected with his children, nor need his name appear in the published directory of the congregation. As we normally exclude members who may be somewhat in arrears in dues payment, we may certainly exclude a member who has committed a serious offense. This individual should be retained as a member of the congregation with the hope that he will ultimately repent and change his attitude. He may, however, be excluded from all privileges and honors normally due to members of the congregation.April 1988
If needed, please consult Abbreviations used in CCAR Responsa.