Mental Illness in Jewish Law (2)

by Dr. Rael D. Strous

For Part 1, click here.

 

THE POSITION AND CHARACTER OF THE SHOTEH IN SOCIETY

 

Armed with the approach we developed last week to understanding the general exclusion of the shoteh from mitzvot, we can now address particular examples that demonstrate the halakha's attempt to balance compassion to the shoteh with the rights of the community.  We will also notice how the halakha does not simply attempt to prevent any harm from befalling the shoteh, but also strives to ensure his rightful place as a member of the community.

 

1) DAMAGES: While psychotic, a state of profoundly impaired insight and even disconnection with the world, a shoteh may be unable to distinguish the nature of cause and effect resulting from his actions.  Consequently the shoteh becomes exempt from responsibility for certain damages. The mishna in Bava Kama informs us that the shoteh is absolved from accountability if he injures another individual, but if someone injures him, he is accountable for any damages.[19] This rule applies not only to damage committed by the person himself (adam ha-mazik), either the shoteh or the one who harms him, but also applies to damages caused by property (mammon ha-mazik). For example, if a shoteh's animal gores the animal of a sane individual, the shoteh is absolved from repayment.  However the reverse is not the case.[20]

 

2) PROPERTY: Since a shoteh is unaware of what is in his domain (reshut), he is exempt from contributing teruma, a halakhic and communal duty which requires the ability to discern what belongs to him and what possessions he controls.[21] Furthermore, if a shoteh finds something, it would be adjudged stolen.[22] Considering the shoteh's lack of comprehension of what truly belongs to him, and the consequent eventuality that he might take an object that did not in actuality belong to him, this halakha aids in safeguarding the property of others.

 

It is interesting to note however that, as long as the shoteh is psychotic and is deemed incompetent to manage his own affairs, the beit din is permitted to take from his property in order to support his wife and children (even including the purchase of jewelry for his wife).[23] The beit din's unilateral action appears to be sanctioned in this manner based on the assumption that the psychotic individual would surely want to support his wife and children.  Essentially, the beit din is asserting that the shoteh has a responsibility to his dependants despite his ill state and interjects in order to facilitate this charge.  In a similar vein, there is an opinion that the beit din is permitted to give money from the shoteh's property as a contribution to tzedaka in his name, and thereby allow the shoteh to merit the reward of the mitzva even without his knowledge.  Here too, the beit din acts on the assumption that had the shoteh been sane, he would surely do the same.[24] The Chatam Sofer similarly discusses the matter of the shoteh and tzedaka (charity), and states that the meritorious act - even if done by others for his benefit - will "protect" him, despite him not being commanded in the mitzva of tzedaka.[25]

 

3) SHELICHUT: A shoteh is unable to take upon himself the responsibility for others' wellbeing.  This has particular relevance with respect to fulfilling the role of intermediary or emissary (shelichut).[26] Classic examples of this principle found in Talmud and halakha include the inability to facilitate the fulfillment of someone else's obligation (to be motzi him) in certain mitzvot such as the following: blowing the shofar,[27] baking matza,[28] functioning as a messenger for the task of setting up an eruv on Shabbat,[29] and serving in the role of a "messenger" for the purpose of the delivery of a get.[30] However, a shoteh is permitted to write a get for someone else, with the proviso that someone else watches over the shoteh in order to vouch for the authenticity and accuracy of the get and to ensure the shoteh's competency during the writing process.[31] We can suggest that this particular halakha once again defends against the unnecessary exploitation of the shoteh by others on the one hand, while also protecting sane individuals from the vagaries and idiosyncrasies of a psychotic individual who may not offer reliable agency in cases of need and potential dependency.

 

4) BUSINESS: A shoteh is considered unqualified to engage in business negotiation (lav bar masa u-matan). Therefore transactions established by the shoteh are regarded as null and void (ein ma'asim kayamim), [32] and he is unable to retain ownership rights (ein lo zekhiya).[33] However, as the Rambam mentions, others are able to obtain possessions for the shoteh through the legal mechanism of zakhin adam she-lo be-fanav (one can accept a [monetary] privilege for someone else, even in his absence).[34] In addition, the shoteh is entitled to receive a salary and the benefits of any work he accomplishes.[35] While we could suggest that the above laws of business concerns discriminate against the shoteh, we could conversely view these rules as a means of protecting the shoteh against irrational and incriminating financial transactions, with significant potential loss.  Moreover, this designation safeguards the rights and interests of the community at large who themselves may incur significant loss as a result of these transactions, without any recourse to retribution for their damages.  Thus, particular care and discretion is required in any financial dealings with the shoteh.  For example, loan repayments are waived for the shoteh even in a case wherein the shoteh was in remission and there were witnesses at the time of the loan verifying the shoteh's competence.[36] It has therefore been suggested that extending a loan to a shoteh assumes that it is considered as an aveida mi-da'at (an accepted loss).[37]

 

5) MARRIAGE AND DIVORCE:[38] A shoteh is considered incapable of adequate intention and commitment to a "lifelong" partner; he lacks control of the basic mental faculties required for marriage.[39] Therefore, according to the Tur, a shoteh is unable to get married (or divorced).[40] This ruling is based on a gemara in Yevamot (112b), which declares that Chazal did not ordain marital status for the shoteh or shota.  It should be duly noted that this declaration is in contradistinction to the status of the cheresh (deaf-mute) who is allowed to marry.[41] The Shulchan Arukh concurs with the opinion that the shoteh is not allowed to marry.[42] Incidentally, the Rema is of the opinion that the above statement only applies to a "shoteh gamur," but not to one who is lucid (da'ato tzelula) despite a weak and otherwise impaired "mental status" (dala ve-kelusha harbeh).[43]

 

With reference to yibum and chalitza, the halakha becomes more complex.  A shoteh is considered fit to act as a meyabem and accordingly to enter a levirate marriage.  However, he is unable to perform the act of chalitza and therefore unable to release his deceased brother's wife from yibum, since he does not possess adequate understanding (mi-shum de-lav bnei da'at ninhu).[44] Tosafot consider the inability of the shoteh to perform chalitza to be due to the fact that he would lack the intellectual faculties to make sense of all regulations inherent in the process.[45] The Rambam cites a reason for this prohibition being that the shoteh lacks the intelligence to read and to comprehend.[46]

 

This situation wherein the shoteh may perform yibum but not marriage stems not from any intrinsic ability of the shoteh to perform the act of yibum, but rather from the automatic status he attains as the brother of this woman's deceased husband.  It is her marriage to the sane brother that establishes the connection of yibum, and consequently consummation of the levirate marriage lacks the positive initiative demanded of a normal marriage.  Due to this very same reasoning, the sane wife of a shoteh is not liable to undergo yibum or chalitza since their marriage had no legal standing in the first place (mipnei she-ein lahem ishut klal).[47]

 

6) THE INSANE WIFE: Arguably the halakha's finest example of sensitivity to the shota finds expression in the prohibition against divorcing a woman who has become a shota (nishtateit).  The halakha forbids abandoning such a woman and denying her the protection provided by the marriage.[48] The Rambam clearly explains this ruling as being a protective measure to shield her from abuse, since she is unable to safeguard herself.[49] But we do not ignore the interests of the sane husband.  It may be permissible for him to remarry with the provision of a heter me'a rabanim (permission of one hundred rabbis).[50] He is however obligated to provide her with food and drink from her own means, but not she'er, kesut and ona (fod, clothes and marital relations), as we cannot expect a ben da'at to live in the house of shotim.  The Rambam adds that he is not expected to provide medical treatment or redeem her if necessary.[51] The Tur and the Ra'avad, however, assert that he is obliged to provide medical treatment for her. [52] The Ra'avad explains that perhaps her psychosis derives from an illness, and therefore he is obliged to assist in treatment.

 

An additional instance of forbearance with respect to the psychotic female can be noted in the opinion of the Seridei Eish who maintains that there is room for leniency in allowing sterilization of a shota, out of significant concern for her welfare and potential exploitation.[53]

 

7) PSYCHOSIS AS A LIFE-THREATENING ILLNESS: Psychosis is a medical illness that can demand emergency medical treatment.  For example, the rate of suicide in schizophrenia approaches 10%, and, in a state of acute psychosis, potentially violent acts dangerous to self and others are not uncommon.  Management of psychotic disorders frequently requires pharmacological intervention in order to circumvent these problems.  It therefore becomes permitted to set aside the laws of Shabbat, Yom Kippur, Yom Tov etc. in order to treat the shoteh, since while in the state of psychosis, he is considered as a choleh she-yesh bo sakana (dangerously ill person).  This sensitivity to mental illness even extends to preventing severe mental illness that could feasibly endanger life.[54]

 

8) SOCIAL OBLIGATIONS TO THE SHOTEH: The community has an obligation to assist and protect the shoteh or shota.[55] Not simply a general obligation, this responsibility finds a number of particular applications.  The mishna in Nidda 13b discusses how a daughter of a kohen who happens to be a shota is assisted by others with nidda preparation and cleansing in order that she be able to share in the eating of teruma.  Similarly, male shotim were assisted by others in the tahara process and observed in the maintenance of this purity in order that they may participate in meals of the kohanim.[56] In addition, the courts are obligated to appoint a guardian (apotropos) for a shoteh, in order to protect his rights.[57]

 

CONCLUSION AND IMPLICATIONS

 

As is clearly evident, there are many broad applications of halakha to the shoteh on an individual and communal level.  Understanding these applications further dictates not only the considerate attitudes toward the shoteh, but also the process of determining who precisely is a shoteh.

 

Over the past few decades, the field of psychiatry has made great progress.  These ubiquitous advances have contributed significantly not only to the understanding of the brain both in its normal and aberrant functioning, but most importantly to the successful treatment and relief of many mental disorders, including some of the most severe and previously treatment-resistant psychotic illnesses.  It is imperative to communicate this progress with the Torah community and to consider its relevance to the appropriate and sensitive application of talmudic and halakhic concepts today.  The assumption as expressed in the Talmud "shoteh lo samei be-yadan" (essentially "once insane, always insane" since we have no cure)[58] may, for example, no longer necessarily apply in light of current clinical practice.

 

From the example of the spirit and elan of the halakha in relation to the shoteh, it behooves us, likewise, to maintain sensitivity to him in the more interpersonal realm.  The Talmud in Berakhot cites Rava who instructs us that the ultimate purpose of Torah wisdom encompasses beneficence toward others.[59] Not only will the shoteh benefit in this manner, but extending sensitivity and discretion toward those less fortunate, and afflicted by disabling illness, is intrinsically itself a fulfilling process.

 

 

 

FOOTNOTES:

 

[19]     Bava Kama 87a.

[20]     e.g. Bava Kama 39a, 42a, Yerushalmi Bava Kama 5:5a.

[21]     Shabbat 153b.

[22]     Gittin 59b, 61a.

[23]     Ketuvot 48a, Rambam Ishut 13:7, Shulchan Arukh Even Haezer 70:6.

[24]     Rambam Nachlot 11:11, see also Kesef Mishneh.

[25]     Chatam Sofer, Orach Chaim 2.

[26      Rambam Ishut 3:17, Me'ilah 7:1; Tur Choshen Mishpat 96, 188.

[27]     Rosh Hashana 29a, Yerushalmi 3:48c, Tur Orach Chaim 589.

[28]     Tur Orach Chaim 460.

[29]     Eruvin 31b, Yerushalmi Eruvin 3:20c.

[30]     Gittin 9a, 23a, Yerushalmi 2:44a.

[31]     Gittin 22b, Yerushalmi 2:44a.

[32]     Tur Choshen Mishpat 235.

[33]     Tur Choshen Mishpat 243.

[34]     Rambam Zekhiya Umatana 4:7. The Rosh maintains that this applies only in the case of the "cyclical shoteh" (itim chalim itim shoteh); see Rosh Ketuvot 2:14.

[35]     Ketzot Hachoshen 243:6.

[36]     Tur Choshen Mishpat 96

[37]     Sefer Haterumot Sha'ar 36, Chelek 1, cited in Mishpetei Hada'at.

[38]     I would especially like to emphasize the abbreviated nature of the discussion in relation to this particular subject, since the area of marriage has occupied most of the responsa relating to the shoteh.

[39]     Rambam Ishut 2:26, 4:9.

[40]     Tur Even Ha'ezer 44:2.

[41]     Yevamot 112b.

[42]     Even Ha'ezer 44.

[43]     Rema on Even Ha'ezer 44.

[44]     Tosefta Yevamot 2:6, Yevamot 104b.

[45]     Tosafot Yevamot 104b.

[46]     Rambam Yibum Vechalitza 6:3,6.

[47]     Rambam Yibum Vechalitza 6:8.

[48]     Yevamot 112b.

[49]     Rambam Gerushin 10:23.

[50]     This refers to the release from the decree of Rabbeinu Gershon prohibiting marriage to a second wife.  This release requires the assent of 'one hundred rabbis.'

[51]     Ibid.

[52]     Tur, Even Ha'ezer 119, Ra’avad on Rambam Gerushin 10:23, see halakhic analysis in M. Brayer, "The concept of insanity in rabbinic law and in psychiatry," Proceedings of the Association of Orthodox Jewish Scientists, 1990; 10:11-66.

[53]     Responsa, Seridei Eish 3:21.

[54]     Responsa Tzitz Eliezer Chelek 8, Siman 15, Perek 12, Ot 5; Nishmat Avraham Even Haezer 145:3.

[55]     Rambam Peirush on the Mishna, Bava Kama 87a.

[56]     Tosefta, Nidda Perek 2.

[57]     Ketuvot 48a, Rambam Mekhira 29:4.

[58]     Gittin 70b.

[59]     Berakhot 17a.