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But as a condition for assenting to divorce, S. demanded that his wife drop the lawsuit that our office had filed in her name against him and his father in the Jerusalem Family Court, a civil court. M. had sued them for damages for the 10½ years that they had falsely imprisoned her in a cell of constrained social and emotional movement, and had wrested from her -- with cynical indifference -- the right to marry, to have children, and to be intimate with a man. M. agreed to that demand. The rabbinic judges insisted that M. give in, and, besides, it was the best offer that M. had had in years.
Divorce in Israel must take place in religious court; and under Jewish religious law, a divorce must be granted by the husband to the wife. As the rabbinic courts have interpreted that law, the husband is virtually free to chain his wife to a failed marriage, or set the terms -- in property, finances, child custody and more -- for her release. Until now, the price S had demanded for his wife's freedom had been far higher than dropping her civil claim.
Ironically, that same day, at the same time that S. was giving M. her get, Judge Ben-Zion Greenberg of the Jerusalem Family Court (a rabbi and Orthodox Jew ) threw out S.'s motion to dismiss his wife's claim for damages. He held: "The infringement upon the autonomy of a woman that is caused when her husband refuses to give her a get is actionable under the Israeli Torts Ordinance." The judge based his ruling on the "right to personal autonomy" that he believed is reflected in the aspirations of Israeli society to respect the dignity and freedom of human beings and that is anchored, he argued, in Israel's Basic Laws and in the laws of the Torah.
Judge Greenberg is not alone in regarding the misuse of Jewish law to chain a wife as grounds for civil action. That idea is beginning to gain momentum in courts around the world. In April last year, Judge Gartenstein of the New York Supreme Court held that a husband who unconscionably withholds a get is liable for the tort - the wrong -- of intentional infliction of emotional distress and displays "extreme and outrageous conduct that so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society." A judge in Montreal is currently hearing a claim that the withholding of a get restrains a woman from "going on with her life."
As an activist and the director of a legal aid office that represents women bound to dead marriages by their recalcitrant husbands, I applaud these brave new decisions and creative lawsuits. What matters is not what "right" the judge hangs her or his opinion on. The key is that legal systems have begun to acknowledge, to give form and name, and to redress the previously ignored or discredited harm done to women through the misuse of Jewish law, and to give silenced victims a voice.
This is the start, not the finish. Judges should fine-tune their ears to the nuances of harms imposed upon the women that stand before them, and to the variety of people who contribute to that harm. Women should not have to wait 10½ years before in order to establish a cause of action that a judge just cannot ignore. And they should be allowed to sue all those persons who aid and abet in the perpetration of harm -- including relatives, lawyers, and even rabbis who pressure them to give in to their husbands' demands, however arbitrary, as a precondition for receiving a get.
Furthermore, judges must not acquiesce to arguments that divert their attention and distance them from the injuries that they should be redressing. The desire to accommodate multicultural sentiments should not blind them to injury inflicted through use of religious law. Arguments of separation of religion and state, raised in the Diaspora to urge civil courts to stay out of issues of religious divorce, should yield to the compelling interest of the state to prevent a religious group from harming its female constituents. As to the claim of some rabbis that an award for civil damages would result in a religious divorce granted under duress and therefore invalid, let the women choose between damages and the get -- and let the rabbis beware of the possibility of personal liability for their actions. Once the civil courts recognize that chaining a woman to a marriage is basis for damages, the rabbis may discover that they have the keys to those chains.
To contact the Yad L’isha Max Morrison Legal Aid Center, call the hotline at: 02-671-0876.