A history correction
Blu Greenberg on non-get systemic solutions to free women
2010. An eminent rabbinical judge/yeshiva head stands before a large audience. “Iggun [the phenomenon where a Jewish woman is “chained” to her marriage] is not a problem of the law. It is a problem of a few bad men.”
2014. I am sitting in a coffee shop in Riverdale with Y, a lawyer, professor and staunch aguna activist. She genuinely wants to protect our mutual friend Rabbi Simcha Krauss from fallout over his interview about the new International Beit Din he was establishing. Y says, “He should not have said that he wants to solve 95% of the cases,” meaning it will look too easy, too facile. For emphasis, she repeats, “He should not have said that.” I look directly at her and say, “You’re right! He should have said 100%.” Long pause and then she responds, “Well, I have to think about that.”
2015. A rabbinical judge in central Israel, a friend of the aguna cause and helpful to the aguna activists, is discussing solutions applied in his beit din. “When we have a 20- to 30-yearold, we are quick to find her a solution. When the woman is 40 or older, there’s no rush.”
2016. A friend calls to ask for advice. Her granddaughter is entering the divorce process, and the wealthy grandma fears it will be a case of massive extortion. Do I think the rabbis of the International Beit Din for Agunot can help her? I reassure her, certain that when the time comes, they will do their utmost. Several months later I meet her on the street. “What happened with your granddaughter?” Remembering our conversation, she says, “Oh! No problem. It all worked out. He didn’t ask for as much money as we feared.” “Baruch Hashem,” I reply, not quite understanding my own words.
2016. At a public meeting convened by a major Modern Orthodox rabbinic organization, the chairman of the event, an esteemed pulpit rabbi, opens with these words “The aguna is a symbol of our kiddush Hashem.” Others like him have referred to the phenomenon of iggun as our Akeda, sincere theological statements from our models of religious leadership.
Anecdotes are not scientific research. But these and 100 others like them define the widely held communal paradigm regarding iggun. Let us extrapolate some views:
1. The current mindset – from aguna activists as well as establishment leaders – is that iggun is a feature of Rabbinic Judaism and thus will be with us for a long time.
2. At best, this subtly serves to perpetuate the rabbinic view of divorce as the absolute right of the husband, which is how the rabbis of the Talmud interpreted Deuteronomy 24:1-4, “... and he shall write her a writ of divorce...”
3. A tone of regret, yes, but the word “injustice” toward individual women and therefore the whole class of women simply never comes up.
4. Nor does the concept of gender equality in an era where it is now widely accepted as an ethical norm.
5. Some accept the idea that a woman’s life, happiness and freedom are not a priority.
6. Again, the law should not be touched, as it is not the problem.
7. A woman is lucky if she can buy her way out. (Everyone knows that the “over my dead body” cases are much harder to resolve.)
8. The “get” has become a weapon, a sacrosanct weapon in divorce proceedings, and not a man’s basic responsibility to his wife.
In addition to anecdotes, we also have hard facts that beg a midcourse correction. In 2013 and again in 2018, Ruth Halperin Kaddari and her colleagues at Bar-Ilan University researched the Israel divorce courts and found a huge extortion market operating alongside judicial divorce: for every aguna, there are 10 times as many women who obtain their get by paying extortion. In fact, in a third of all Israeli Jewish divorce cases, the wife is threatened with extortion. When analyzed along religious identity lines, half of the Orthodox wives are threatened. (Anecdotally again, many sympathetic rabbinical judges see their benevolent role as negotiating on behalf of the wife a better get price. And these women are considered the fortunate ones.)
All of this is not to deny that during the past 60 years much attention has been paid to individual case resolution and to prevention. Many solutions have been offered during these intervening years: preand post-nuptial agreements, communal shunning, shaming rallies, jail time for Israeli recalcitrants, detectives pursuing a missing recalcitrant husband, conferences and papers galore, aguna activist groups, and even private foundations that will support a payoff. And more.
Yet, here we are in an age of divorce, looking down the path of future history, with no real universal solution. Even the most hopeful solutions such as the prenups inoculate far less than half of the Halacha-abiding community. What is lacking is the global impulse to finally end iggun and to end it now, to eliminate get abuse for all generations going forward.
For that to happen, there must be a new and genuine focus on systemic solutions, i.e., non-get solutions, culled from within the body of inherited rabbinic law and continuous with it. These solutions cover all cases of abuse and not only those who have signed prenuptial agreements. These non-get solutions must be applied in the divorce courts and can be called into use immediately – for they exist. To maintain communal unity, these solutions must be recognized by a solid percentage of the population and must stand not only as a matter of Halacha but also of practice and not merely theory.
Wider application of systemic solutions will prevent individual lawlessness, discourage get refusal, eliminate extortion and power plays in divorce negotiations, level the field in a determining financial arrangement. It will also meet contemporary standards of equal dignity for men and women – even in a matter as contentious as divorce.
The fact is that as far back as 60 years ago, there have been numerous attempts to institute and apply ancient systemic solutions. Among them, the seminal work of rabbis Eliezer Berkovits and Zev Falk, the beit din of Rabbi Emanuel Rackman, the nine-year Manchester Aguna Project headed by Bernard Jackson, great individual rabbinical judges such as rabbis Ephraim Greenblatt and Gedalia Dov Schwartz, some Israeli rabbinical judges and individual haredi rabbis who applied systemic solutions under the radar. More recently, a few special batei din have applied solutions in the most egregious cases.
2014. At an aguna conference in Israel, a prominent member of the Chief Rabbinate speaks of his commitment to agunot and what he has done on their behalf – most recently, his new ruling of increasing jail time for a get refuser from 13 to 20 years. He also mentions in passing that some people speak of other solutions which he is aware of, but he waves them away with a figurative swipe. Later he is asked how he helped the aguna by adding seven more years, and he quickly takes offense.
SO THIS is the essence of the problem – the resistance of the establishment courts and judges to the wider systemic solutions that are available, now.
In some ways this is quite surprising, since all of the systemic solutions and applications are located in or emanate from the Talmud itself or the work of the Rishonim and Aharonim.
These systemic solutions were developed to help not only the classic aguna whose husband disappeared but the victims of recalcitrance. Indeed, the most widely used systemic solution which operated in the courts for a long period of Jewish history is “kofin oto”: the court determines that the recalcitrant husband merits coercion and it forces him – by flogging or other means – to write the get. This achieved justice for the hapless wife yet technically did not violate the rabbinic principle of a man’s free will, which explains why the rabbis tacked on the phrase “until he says I want to [write her a get].” However, physical coercion is not legal in modern societies, and this is why systemic solutions must be now utilized.
But the rabbis of ancient times understood that there were situations where non-get systemic solutions had to be applied to free a woman, classic aguna and get-refused victim alike. It is these that bear examination in the discussion of midcourse correction.
The writer is an author and activist. This is the first part of a series of articles on agunot.