Enough with the “Penetration Fallacy”

We have a serious problem when people say, “But it wasn’t rape,” or “Sexualizing a child without touching is creepy but not sexual abuse.” Creepy is practically a synonym for sexualizing.
Sex crimes should be seen from the point of view of harm to the victim/survivor, not in terms of the mechanics and body parts. There is what I call a “penetration fallacy” where the halachic and legal criteria of severity ignore the psycho-emotional harm.
Professionals report profound harm including suicides and overdose deaths because of sex abuse that did not involve penetration  of any sort. As long as the sexual dimension is apparent enough to make it creepy, it becomes possible for it to seriously harm a child. Not every child. Resilience varies. Some can come out pretty well from horrific things while others are deeply harmed by lesser things.
Even the law recognizes the victim’s perspective by considering victim impact reports and statements in setting sentences. The law bases the amount of civil judgements on the basis of the effects such as subsequent functional impairment, not just the acts. This is correct because some children are more harmed by fondling than others are by penetration.

Jewish law has explicit categories for harm: nezek, tzar, ripui, sheves and boishes. Sex abuse, depending on the particulars can include all five: physical harm, pain, medical healing costs, incapacitation, and shame.

Even those who don’t know technical halacha ought be sensitive to the ethical concern woven through rabbinic teaching about the grave sin of shaming others or even speaking hurtful words. It ought to be so much more obvious that violations of intimacy and tznius in ways that shame are especially grave sins and deeply harmful.

Yeshivish guys, stop asking, “Is she still a besulah (virgin).” It is almost never of any halachic consequence for their future marital status. It is true that a cohen gadol (high priest) can only marry a besulah. But even the most highfalutin schadchanim (matchmakers) are not offering any of them up.
There is a problem of discrimination against survivors of abuse who are open about their victimization. But the cure is not halachic, it is waging war on abusers instead of stigmatizing victims.
The rabbinical community should educate the public to understand these many aspects of the harm of child sex abuse. Instead we still hear echoes of the claim that it was nisht geferlich (not terrible) because there was no penetration. It is time to replace the penetration fallacy with a victim-centered understanding of the harm. It is time for more rabbinic leadership to give attention to these grave tznius violations instead of obsessing about the gauge of stockings and the length of skirts. A longer skirt is of no consequence if it can be lifted and removed with impunity because there is no penetration.


19 thoughts on “Enough with the “Penetration Fallacy”

  1. Bingo. Right on target. Is a man forcing oral sex on a child (as giver or as taker) OK because there may not technically be penetration? How about making the child undress to gratify the abuser who gets himself off at the sight? No penetration so OK? Hardly. All bad, all ugly and, frankly, evil to the extent that the community looks the other way.

  2. If the abuser was a close family member, besulah has some relevance. Just halachic, not moral or legal.

    I think the reason people ask about penetration is because there are no mistakes possible with penetration. If there was no penetration, those who are so creeped out by the concept of abuse that they cannot believe it, convince themselves that there must be some mistake.

    Which brings me to my next point. Until you understand qnd empathize with the urge to disbelive stories of abuse, without passing judgement or attacks, you will not have the tools to change people’s minds. People are nit, in general, evil. There must be a way to reach them and explain the point in an effectual way.

    • Yes, Besulah can have relevance for marriage to a Cohen if the perpetrator was a close relative. That is why I had a slight qualification. But most people asking the question are not assuming that rare combination. And they ask it in cases where the reporting is clear that the perpetrator was not relative. it come up a lot with Rabbi Dovid Weinberger and Rabbi Elimelech Meisels.

      I understand the need to confront denial and educate. Ultimately, enough victims in the community have to talk openly for people to believe that is indeed possible for seemingly normal frum people to do these horrible things. But that takes a lot of courage in the current climate. I am encouraged to hear of more and more victims sharing their stories with friends and relatives in private. Awareness is rising, but not by enough yet.

    • Marcus,
      Your second paragraph. You exhort us to rise to a level of empathizing with all those many (most?) people who disbelieve,
      I have lots of issue with this paragraph, although evidently YL had fewer.
      Orthodox Jews, k’dugma, for sure would believe stories of child sexual abuse (CSA) amongst the Catholic clergy, or amongst any other clan.
      “People are not evil in general” WOW!
      not so much the meaning (that is a subject for a thesis), but applying it to this topic???
      “There must be a way to reach out to them…….”
      Hey, there, trying not to be sarcastic, but,
      how do you suggest that occur,?????
      Do you think that if every single Rabbi in the world would preach from the bimah re this topic, that he would change the beliefs, outlooks of his congregation??
      Do you?
      I don’t but how would you effectuate that occurring???
      In the frum world, there are so many non intellectual rational reasons for most if not all to deny. denial.
      The most ethical parents will not enact decisions if it will affect the other 12 progeny,
      The best of the best won’t. won’t.
      For at the end of the day, their most important commitment is to their children,
      AND who wants to make a shidduch with someone from a family where there was abuse, from. the the Rosh Yeshiva, lo chashuv.

      The perception is that the survivor, the victim is damaged.
      an example after the manis affair, a student at the seminary in Skokie (or environs), posted on FB that she had been raped,
      The dean of women, Esther Shkopf received copy from classmate,. Wrote to the rape victim “you have besmirched yourself and the reputations of your classmates”. that is the famous girls part of Skokie Yeshiva,

      Tell me, please, how could you possibly change outlook of kahal Yisrael?
      LO CHASHUV that some parents might be disturbed, but, they have another dozen progeny,
      Where is their loyalty?
      Can they fight the system?
      What about shidduchim?
      The most enlightened of parents in the charedi community will still opt to protect their survivor (if he/she came out) and for sure the others children.

      • “The perception is that the survivor, the victim is damaged. An example after the Manis affair, a student at the seminary in Skokie (or environs), posted on FB that she had been raped,
        The dean of women, Esther Shkopf received copy from classmate,. Wrote to the rape victim “you have besmirched yourself and the reputations of your classmates”. that is the famous girls part of Skokie Yeshiva”

        And that, friends, in a nutshell is what’s so seriously wrong about reilgious orthodoxies of all sorts, Judaism prominent among them. Blame the victim. It’s wrong, it’s obscene and it’s’ cruel – but then the hyperreligious don’t care about any of that. Notional purity and total conformity are what matters to them. So what if a child was raped? Best not to rock the boat. Sickening!

        • You are right in describing the problems of the orthodox world. However there are important exceptions. Thanks to advocacy, there is change but not nearly enough. However, the problem is not limited to relgious orthodoxies. It is also true of secular athletics (e.g., Baylor football and women’s gymnastics) and secular universities. It is a problem whenever leaders of institutions favor their own interests over their clients and members.

          I concentrate on the orthodox Jewish world because that is what I know the most about and feel most able to somewhat affect. But this blog is not intended to claim orthodoxy bad, rest of the world good when it comes to abuse.

          • Yes, agreed. though there are those who would say that certain sports have taken on a religious aspect such as football in Texas, which brings us back to Baylor.

            That aside, collateral damage inflicted on the family of the abused is a characteristic of certain religious communities and some other small, tight-knit societies. A college athletic team and its sponsors may close ranks to protect a transgressing player however when the victim speaks out they in most instances have no power to make it difficult for his or her siblings to find marriage partners or to ruin the family business unless it happens in a small town and at the high school level. However a non-Orthodox / non-Jewish family can move away if the atmosphere in their town becomes poisonous and build a life elsewhere . That option’s not realistically open to an Orthodox or Hasidic family; where will they go? Out among the non-Jews, to live in isolation? Unlikely. To a similar community in another city? Word will travel and they’ll be marked there, too. Unless the marked family is willing to abandon its Orthodox religion they’re trapped.

            • The Baylor scandal has been replicated on many non-religious campuses. What you speak of as quasi-religious is another word for celebrity culture. for the victim, what matters is how dependent he or she is on a closed social network. If they would find it terrible or unthinkable to leave that culture, they are vulnerable in various ways. Haredi society is an extreme example of that but not the only one.

            • The Baylor scandal has been replicated on many non-religious campuses. What you speak of as quasi-religious is another word for celebrity culture. for the victim, what matters is how dependent he or she is on a closed social network. If they would find it terrible or unthinkable to leave that culture, they are vulnerable in various ways. Haredi society is an extreme example of that but not the only one.

            • I agree with your comment, re “being trapped” for moving to a different orthodox or charedi community does not bring anonymoty.
              Again, though, an aside, many molesters flee to e”y either pre or post court dealings,
              They are free, shade into the background, disappear, not extradictable, a shonda.

              Surely for an entire family, and problem of parnassah, it gets more complicated,
              One last personal opinion, an agunah, where clearly the situation will go on for decades (that is some percentage of agunot), wouldst that they would free themselves, not 38 years aguna,
              Leave orthodoxy, practice it, but get civil divorce and live one’s life. These women don’t have to be victim’s until end of life.
              A shonda that this situation occurs, a shonda, for the Rabbi’s can do ANYTHING THEY WANT, if there is a will, they will find a way, like shabbos elevators, stam k’dugma, but they care not for the agunot, nor for the ostracized family, for they have major skeletons in their own closets. FOR SURE, even if not themselves.

              For an entire family, for sure far far far more complicated, Perhaps those in that situation need an organization like Footsteps, NOT TO leave orthodoxy, but to help them relocate, to E”Y” or, i am not in creative mood, so, or or
              I personally would donate to such an organization, rather than watch a family being destroyed, feeling helpless, and the ortho/charedi community so very very non forgiving. Given the percentages of abused children, in ortho communities, one might hazard a guess that some of the “gestapo” Jews have (busha cherpa shonda) within their own families. I jest, being a victim of CSA is not in any shape or form a shonda, however the charedi world treats them as such.
              l’hefech, lock up the perp, for life, even worse,
              eh, oy gevalt, sometimes i think (please god, do not strike me down) that we need some vigilante groups withing Jewish communities, when the law enforcement fails to do it’s job.
              I know that is taboo, but destroying an entire family is also taboo and evil and (what is busha, cherpa, shonda, raised to the power of infinity, i math???)

  3. Yerachmiel,
    This post (thank you for revisiting us) is by far far the finest most perceptive, brilliant, important article that any of us have ever read on the multitudinous aspects, ramifications, of child sexual abuse, Yes, I have the audacity to make that claim in the plural with full confidence.
    Kol Hakavod!

  4. Or… an absolute phallusy!

    Seriously though, a fantastic article.

    One point however:” The rabbinical community should educate the public to understand these many aspects of the harm of child sex abuse…”
    There are plenty therapists who need to appreciate this too. Even non-Jewish ones. I know of a respected non-jewish therapist in Montreal who is guilty of the following and thus allowing an abuser a free conscience to continue his nefarious practices:

    When is comes to incest, particularly, some therapists find it easier to blame the “it’s part of growing up” card way too easily. Being drawn into the long and tortuous process of dealing with cases of abuse is too daunting I suppose.

    Abuse, grooming and control play major havoc on the psychological make-up of a child that has eternal ramifications – on their life and the lives of the ones that deserve their love as children and as adults.

    There is no excuse nor justification for abuse and the sooner a case of abuse is competently dealt with, by the authorities, professionals and the abuser too, the sooner there is a chance for healing and ability to move on.

    • Thank you for the comment. You are somewhat right about people imagining that abuse should be evaluated by analogy to heterosexual, adult, “normal” sex. But I also heard penetration questions about Malka Leifer, the notorious female abuser of her students.

    • Avruhum,
      so very right. In ortho/charedi communities, the major percentage of abused children are male, due to availability, The rabbis (except in rare exceptions like Weberman) have little chance of contact with girls.
      RE: instances of abuse within families, in most cases aka ‘incest” these claims are not, in the most part, made within the SOL, and so the fxxker is free, and the survivors, be it sons or daughters, or grandchildren, never report it to authorities, and in most cases , not to family, except perhaps 30 years later.
      Then, to destroy the family, more likely not to be believed,
      Hey, a story, An adult daughter during therapy, (one of 4 progeny). announces to family that her GRANDFATHER ABUSED her,
      she is only one to make this claim, another sister evidently screamed and yelled, BUT BUT the story is, (since the Jewish wife of the father) is related to me), his response was, “what’s the big deal, there was no penetration”. omg omg omg, YL your article struck me. The father protecting the grandfather who abused his oldest daughter.
      (4 sibs) and the father had one sib,
      place your bets how many of the others did the grandfather abuse?? do they remember the abuse?
      The father, with “what’s the big deal, there was no penetration” well my cousin should have, (fill in the blanks here). and no pedophile only molests once, likely that of other 3 sibs, more were abused by grandfather, and also likely that the father and his one brother were also abused,

      HERE IS REAL LIFE STORY. should not the father have expressed fury re his father’s abuse of his oldest daughter? but not,
      why not? for perhaps he too was abused by his father but does not remember,

  5. this sick obsession of the some in the Jewish community and the antisemitic authorities with jewish personal lives, has led to some very sad realities on the ground in the ultra orthodox neighborhoods such as boro park, where the gender separation is regularly enforced, and authorities came to see innocent flirting and mingling as ‘harassment”, im aware of a few instances where cops told citizens they shouldn’t mingle with girls in boro park because quote “its harassment”, i do not think there exists a greater human rights violation than that, and its unfortunately practiced by the upscale members of the nypd with the help of their Jewish friends, if you think these people care about the dignity and respect of Jewish people and their children, you are sadly mistaken, they are haters plain and simple, may hashem punish them

  6. A lot of states have clauses that touching genital or private areas over the clothing to arouse to qualify as statutory rape.

    • I would like to see some specifics. I believe any sexual activity with a minor below the age of consent is considered a sex crime, but not that any contact would qualify as 1st degree assault (aka rape). I suspect you are confusing the concept of statuatory and rape. I do not know the laws in all 50 states, but would be very surprised to learn I am wrong.

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