A Woman’s Voice in Court

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A Woman’s Voice in Court

By Shoshana Carmon, “Nashim” Magazine – October 2018

In recent years rabbinical courts have changed their attitude towards women; slowly, perhaps – but surely.  One of the women responsible for this change is attorney at law and rabbinical court advocate Moriah Dayan, who fervently advocates for women imprisoned in hopeless marriages (agunot), and has now paved the way to the appointment of the first woman to a judicial position in the Rabbinical Courts Administration.

cover pageAttorney Shira Ben-Eli was recently appointed as judicial assistant in the Rabbinical Courts AdministrationThis is the first time in history that a woman will be serving in a judicial capacity in the Israeli rabbinical courts and thus be an official party to the decision making process exercised by this judicial religious body.  Attorney Ben Eli and the directors of the Rackman Center for the Advancement of the Status of Women under the auspices of Bar-Ilan University extended their gratitude to attorney and rabbinical court advocate Moriah Dayan, saying that “by virtue of her efforts this achievement was made possible.”  Three years ago Dayan petitioned the Labor Court requesting that women be allowed to run for positions in the rabbinical courts.  She won the suit – thus creating legal precedence.

“I am thrilled that I was a party to this struggle,” says Dayan, not without satisfaction.  “This fight was not aimed at the rabbinical courts; rather, I was fighting for myself and other women who, like me, wish to realize their full potential in Halachic settings as well as in religious institutions.”  For the past 13 years she has provided legal representation to agunot and women unable to obtain a get (Jewish divorce document) through the organization Yad La’isha: The Monica Dennis Goldberg Legal Aid Center, a division of the Ohr Torah Stone network.  Dayan serves in this non-profit organization as head of the Mediation Department, and as such, has been exposed to many difficult cases over the years.

One such example is the story of an ultra-Orthodox couple, who were previously non-religious, with ten children.  The husband was an ex-pilot, an intelligent and extremely capable man, who, for years, exercised physical violence against his wife and children.  On one such occasion, and as a direct result of the father’s violence, one of the children required medical attention, at which point the wife decided she could bear it no longer and filed a complaint with the police.  She also filed for divorce.  Consequently, the husband fled abroad, and for almost a decade moved around from country to country, slept in public parks and severed ties with his children.  He was so angry that his good reputation had been undermined that he was willing to lose everything he had – as long his wife suffered as well.

For years attempts were made to track him down, but the minute anybody was on his lead, he managed to escape someplace else.  Fortunately, at some point he entered a relationship and settled down in one of the Jewish communities in the USA, so that contact with him was finally made possible through the rabbi of his community.  He demanded that his wife appear before the rabbinical court in Chicago and testify that her original charges against him for violence were false, and also insisted, inter alia, that she go to his father’s grave and beg for forgiveness for preventing the children from being present at his funeral (notwithstanding the fact that he, too, had not been present at his own father’s funeral).  The wife was so desperate to be set free from this marriage that she was ready to meet all his terms, just to receive her get and set herself free.”

page 2Another incident involved an ultra-Orthodox couple with eight children.  “For years the wife had been trying to get a divorce from her husband, but the husband vehemently refused, saying it would hurt the children’s chances of getting good marriage offers.  However, we managed to prove in court that the husband had married another woman even while still married his first, with whom he had additional children, wherefore the rabbinical court ruled that he must grant his wife a get.  He appealed to the Rabbinical High Court of Appeals and his appeal was rejected.

However, when we arranged to meet him to finalize the terms, he showed up and feigned insanity, thus rendering it impossible to finalize anything.  He was withdrawn and uncommunicative, did not answer the questions put to him, and mumbled verses of prayer without looking up.  The rabbinical court sent him for a psychological assessment, but the psychologist said he could not conclude without reasonable doubt that the man was suffering from a mental disorder and therefore subject to involuntary commitment.  In such cases the rabbinical court does not have the authority to impose involuntary commitment.  For a period of two years the husband kept himself confined to his mother’s house and communicated with no one.  A private investigator we hired discovered that he had fathered a second son from his second wife but did not show up to the circumcision ceremony.  We ultimately requested of the rabbinical court to place him under arrest so that he be forced to appear at his hearings.  He was kept in detainment for three days and that seemed to cure him completely.  He appeared before the rabbinical court and seemed in good health, was very communicative and wanted to give his wife her get.  The day the get was settled, I honestly don’t know who was happier – the wife who was set free from the husband, or the husband who had set his own soul free.”

What can be done in order to prevent cases of get-refusal?

“The best solution is a prenuptial agreement.  Yad La’isha proposes to every couple planning a wedding to sign a prenuptial agreement along with the Ketubah.  From our experience, this type of agreement can prevent instances of get-refusal.  After all, it all begins with extortion.  Another piece of advice would be to turn to mediation, which takes the edge off the divorce process.”

page 3What is the fine line between an aguna (a woman imprisoned in marriage) and a mesurevet-get (a woman refused her get)? 

“An aguna is a woman whose husband has run away and is in hiding, whether in Israel or abroad, in defiance of the rabbinical court’s ruling that he give his wife a get.  Women who are mesuravot-get are those whose husbands live in Israel and even show up to the court hearings but nonetheless refuse to grant the get.”

After how long is a husband defined as a recalcitrant husband and the wife as an aguna?

“It’s not a matter of time.  If the husband persists in his refusal after three months of court hearings he is already considered a recalcitrant husband.”

Understanding a woman’s heart

It was recently reported that a woman rabbinical court advocate was attacked by her client’s husband inside the walls of the rabbinical court.  Dayan was never personally attacked, but was subject to numerous curses and accusations.

“Oftentimes men would call out to me the likes of – ‘You ruin homes; you ruin families; you hurt children’.  It’s very unpleasant hearing such words.  The female rabbinical court advocate tries to help women whose freedom is held in the hands of her recalcitrant husband.  In all the cases I’ve taken, the recalcitrant husband is the bad guy in the story, and if the rabbinical court advocate has succeeded in making him grant a get against his will, he will hate her for it.”

After a decade in which she handled the most severe of cases, three years ago Dayan started feeling some wear and tear and thought it may be time to look for new career channels.  “Because I am both an attorney and a rabbinical court advocate, I started toying with the idea of becoming a judicial assistant.  I happened to come across an ad for the position of judicial assistant in the rabbinical courts.  I said to myself – Bingo!  This is the perfect position for me seeing that I have experience both as an attorney specializing in Mishpat Ivri (“Hebrew Law”) and a rabbinical court advocate in the rabbinical courts dealing in matters of halakha (Jewish Law).

page 4“A previous legal action had forced the rabbinical courts to make the position available to women as well, and I felt that the road had been paved for women in general, and for me personally, to submit my application and compete for the position fair and square.  I was therefore appalled to discover that there was a built-in obstacle, also known as ‘an internal tender’, which basically meant that only workers of the rabbinical courts could apply for the position.  And since no woman was a current employee of the rabbinical court system, no woman could submit an application.”

Dayan did not give up.  “I turned to the Rackman Center, and after looking into it they said we have a case.  We petitioned the Labor Court with the help of Attorney Keren Horowitz of the Rackman Center and Attorney Elad Kaplan of the ITIM organization.  After an arduous legal procedure, we won our case and it was decided to divide the position into two: the first would be that of a civil judicial assistant in the Rabbinical Courts Administration; the second – a halakhic assistant in the Great Rabbinical Court of Appeals.”

Dayan has no doubt that she, and other women like her, can fill the new positions that have now become available to them.  “Today there are women who are real Torah scholars and morot halakha, who have been immersed in the world of Torah study and Jewish Law for many years.  Isn’t it obvious that if women can serve as President of the Supreme Court or the Minister of Justice they are also capable of holding important positions in the rabbinical courts?  There are even women who serve as leaders of large Orthodox communities, something which was unheard of twenty years ago.  Nonetheless, when it comes to the rabbinic establishment, one always gets stuck somehow, and what a pity this is so.  For this very reason I see Shira Ben Eli’s appointment as judicial assistant as a very important achievement.”

As far as you are concerned, is there any progress when it comes to agunot and mesuravot-get?

“Yes there is progress and there is more awareness.  Today everybody is familiar with the terms aguna and mesorevet-get.  Also the judges have demonstrated a greater openness in their rulings.  There are judicial panels that show empathy when a woman stands before them and says she can no longer live with her husband because he either repulses her or there is no love left.  In many such cases the rabbinical court coerces the husband to give the wife a get.  This is in keeping with the Halakhic rulings of the Rambam who states clearly that a woman who says that her husband repulses her can no longer have intercourse with him and the husband is coerced into giving her a get.  A woman is not treated like a prisoner and is never forced to have intercourse with a person she despises.  This is the Halakhic ruling of the Rambam.”

Acting as an interpreter of reality

Dayan wears two complementary hats – one as an attorney, and the other as a rabbinical court advocate, and can therefore represent clients both in civil courts as well as in rabbinical courts.

What does one have to study in order to become a rabbinical court advocate?

“A rabbinical court advocate studies the halakhot (Jewish laws) that are relevant to the issues debated in rabbinical court.  In order to pass the Rabbinate’s tests she must boast broad Torah knowledge, and be fluent in halakhic terminology used in the rabbinical courts.”

What does that mean?

“Let me illustrate with a story.  I had a case in which a woman asked for a get and the husband refused.  The rabbis asked her whether they had ‘ishut‘ (were intimate) and she replied, “of course,” when, in fact, she did not understand the halakhic implications of the Hebrew term, which actually means having intimate relations.  She had taken it to mean that they lived in the same house and managed a common household, and so replied in the affirmative.  In such cases where the couple is still having intimate relations, there is no reason for the court instruct that a get be given because the wife cannot concomitantly claim she has intimate relations with a person that repulses her.  I had to act as interpreter and explain to the rabbis what the wife actually meant, and she was then immediately granted her get.  So rabbinical court advocates sometimes have to act as ‘interpreters of reality’ in the rabbinical courts.”

What is the attitude of the religious establishment and the rabbinical courts toward female rabbinical court advocates?

“Today we are treated with respect, but it wasn’t so in the past.  Let me illustrate this with another personal story.  About a decade ago a mesurevet-get asked one of the dayanim (rabbinical judges) what he thought of me as a rabbinical court advocate.  The judge replied that he would not recommend me because ‘Moriah Dayan is a fighter and never compromises’.  A few years later, I represented another woman who had been an aguna for 13 years.  She asked the same dayan (the one who had not been willing to recommend me in the past) the same question: whether he could recommend Moriah Dayan.  This time round he replied: ‘Yes, she is superb!  She is a fighter who never compromises.'”

page 5A partner in the act of Creation

Dayan is currently celebrating 20 years of marriage, 20 years since Ohr Torah Stone established Yad La’isha, and 20 years since the founding of Mitzpeh Danny (literally: Danny’s Lookout), where she resides.  Mitzpeh Danny was created after the murder of Danny Frei, who was murdered by a terrorist in his own home in Ma’ale Michmas.  In wake of the horrendous incident, the residents of Ma’ale Michmas built a lookout on a nearby hill and called it Mitzpe Danny.  Itzik Sapir, a resident of Ma’ale Michmas, fixed his home on the hill, living in a caravan for a year and a half.  He was later joined by his friend, Shimon Riklin, also from Ma’ale Michmas.  Today 42 families reside there.

“We arrived in Mitzpe Danny following a visit to my parents who lived in Ma’ale Michmas,” Dayan relates.  “We saw a breathtaking view and fell in love with the place, so we moved to Mitzpe Danny right after we were married.  All five of our children were born here and we have remained till this day despite the difficulties.”

The panorama from Mitzpe Danny is exceptional.  One can see Jerusalem, the Dead Sea and the mountains of Moab.  At the foot of the hill lie the ancient roadways of Binyamin, which led from Jericho to Bethel during the times of the Prophets.  Archeological findings discovered in nearby caves attest to the fact that the caves served as a hiding place for fugitives during the time of the Second Temple.

But it was not only because of the view that the family became so attached to the place. “We wanted to be partners to the establishment of a new community,” says Dayan, “it felt like we were partners in the act of Creation.  Initially there were many difficulties.  We would laugh and say that the new locality is a very ruchani place – (ruchani means both “spiritual” and “windy” in Hebrew) because the winds on the hilltop were so strong that they blew off rooftops.  Living in a small caravan was no easy feat either.  We lived in the mobile unit for ten years until we moved to the house we built.  Over the years there were many cases of arson instigated by Bedouins who wished to harass us.   Those were difficult days and many left.  There was a sense of social instability, so much so that sometimes we were left wondering if our dream was the right one.”

Despite everything, they did not give in to doubts and fears, and stayed on.   “I think it was largely due to my husband, Rami, who insisted on staying and was able to convince me as well, although there were times when I just wanted to give up.”  Today Moriah and Rami are reaping the fruits of their labor and lead a happy life in the beautiful outlook in the house they built with their own hands; a house with thick walls made of natural Hizma stone which blends beautifully into the mountainous scenery.  Outside, a garden is underway, and inside the house Rami’s pottery works are on display.  Rami, who was previously a hi-tech worker, underwent professional retraining, and currently teaches Computer Science and Cyber Studies in a high school in Modi’in.  In his free time he is a clay artist.  Dayan is also proud to point out artworks by her mother – the artist Tamar Rimon, who paints in oil and also engages in textile art.

How does one maintain a happy marriage for two decades?

“It’s all about communicating.  It is of the utmost importance to constantly upkeep the relationship.  Of course it is difficult, and requires hard work.  I was attracted to my husband the minute I saw him 20 years ago, but I don’t rely solely on love at first sight.  Although it really was love at first sight, I know that a marital relationship is something that must be maintained.”

What did you learn from your daily encounters with the painful stories of couples at Yad La’isha?

“Marriage has its ups and downs, and so when things come up they must be talked out.  It’s best not to keep in feelings, but the worst is trying to educate your husband.  It is said that women today try to educate their husbands and appease their children.  The ideal situation would actually be the opposite.”

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