THE MENTALLY RETARDED AND THE LAW

QUESTION:

The question asked here is specifically concerned with the mentally retarded and the insane Jews who are in state institutions. What are their religious obligations as to food and worship, etc.? (Asked by Rabbi Gary A. Huber, St. Louis, Missouri.)

ANSWER:

The science of psychiatry and the techniques of psychoanalysis are new So it is no wonder if Jewish traditional law has not yet come to terms with them. The interest in this field of study is just now beginning to emerge and there are a number of new halakhic studies on the subject. There are two essays by Mosheh Spero in Vol. 7 of Assia (the new medico-halakhic periodical published in Jerusalem under the editorship of Abraham Steinberg) and there is also a thoroughgoing study by Issacher Bergman in Hapardes, Vol. 58:5, which marshalls almost all the talmudic and responsa statements on the question of the mentally defective and those who are outright insane.

The specific question asked here concerns the Jewish religious obligations of the mentally deficient (and insane) patients in a state institution. This question has been asked a number of times in Europe during the past century. The government institutions in Europe did not provide kosher food. Therefore, if we send a patient to the institution, we share the responsibility of forcing him to eat trefa food. May we do so?

There is a brief responsum on the matter by David Hoffmann of Berlin (Melamed Moil Yoreh Deah 31). He is inclined to be permissive, hoping that the patient may avoid meat and eat milk foods. But there is a fuller responsum by the great Hungarian authority Moses Sofer (Responsa Orah Hayyim 33). He mentions the general rule frequently stated in the law that the insane or mentally defectives are not in duty bound to obey the commandments. Therefore if they violate them, they are not punishable since they are not obligated at all. The only doubt in the mind of Moses Sofer is that although they are not obligated to eat only kosher food, nevertheless it may be a sin on our part to send them to where they will eat trefa food. He finally ends up with a guarded permissiveness, namely, that we may send children (who being minors are likewise not punishable for violations) but that when they reach Bar Mitzvah age (if they are improved enough) we should take them home again.

In this responsum, Moses Sofer gives all the law applicable in the question, primarily that a mentally deficient adult (shotah) is free from the obligation of all the commandments. A mentally deficient child is free on two counts, being mentally deficient and being a minor.

This does not mean that Jewish religious observance should not be provided, or special food if possible. There are varying degrees of mental deficiency and whatever religious observance they can grasp may be of help to them and should be provided. But it must be borne in mind that if these religious observances cannot be provided for, then no sin has been incurred by the patient.