Shabbat Parashat Chayei Sarah| 5767
Ask the Rabbi
Question: In our religious summer camp, some items were apparently stolen, and there were grounds to suspect a specific camper. We considered searching the camper’s belongings to try to catch him, return the stolen objects, prevent future thefts, and perhaps educate the offender. We decided not to do the search but could we have?
Answer: Psychological and educational issues need to be addressed in such a case by those who are familiar with the case’s dynamics. We will concentrate on the halachic principles.
Moving another’s possessions around while searching is not stealing, which is defined as taking something away from its owner, even temporarily (Rambam, Gezeila 1:3) or using it physically without permission (ibid. 3:15). Simply moving an object to another place where its owner maintains access is not stealing. However, going through another’s belongings compromises his right to privacy, a right that halacha defends. The gemara (first perek of Bava Batra) discusses in detail the concept of avoiding hezek re’iya (damage by seeing sensitive matters). Rabbeinu Gershom rendered a cherem (ban) against reading a friend’s letters without permission. According to many poskim, the prohibition to do so preceded the ban, which just strengthened the matter (see Encyclopedia Talmudit on Cherem Rabbeinu Gershom, 18).
May one invade a thief’s privacy in order to catch him? As a rule, one may take the law into his own hands to legitimately protect his interests. One who recognizes his stolen object in the thief’s property may enter his property and take it forcibly, if opposed (Bava Kamma 27-28; Shulchan Aruch, Choshen Mishpat 4:1). (According to one opinion, he should not do so surreptitiously and thereby look like a thief.) Presumably, this allows suspending other of the thief’s “civil rights,” including his privacy. The Chikekei Lev (I, Yoreh Deah 49) leaves as an unsolved question whether beit din can allow one who suspects that a letter contains improperly damaging information about him to read it in order to know how to act. The prominent dayan, Rav Shlomo Daichovsky (Techumin, vol. XI, pp. 299-312) discussed the matter regarding listening devices. He says that the Chikekei Lev would agree that one who has strong grounds to expect being damaged can use such a device to protect his interests. He says that this is all the more so when one has the opportunity to prevent another from sinning. In our case, it is a sin to possess stolen goods or steal more, and the staff might have been able to help facilitate the youngster’s receiving counseling that he likely needs.
One problem is that barring definite knowledge of the suspect’s guilt, one could be acting improperly toward the innocent. However, we have precedent in this regard, as well. The gemara (Bava Metzia 24a) tells of Mar Zutra, who suspected a certain yeshiva student of stealing a silver goblet, because he showed disregard for someone else’s property. Mar Zutra physically pressured the student until he admitted to the crime. Panim Meirot (II, 155) brings some more recent rulings in this vane of physical steps based on strong suspicions.
Another issue is that, classically, it is the one with the personal interest who may take steps to protect himself, whereas others should not (see Halacha Pesuka, Dayanim 4:16). However, this is apparently to prevent people who should not be involved from “sticking their nose in” without judicial authority. In our case, it is improper to allow an apparent victim to act based on his suspicions alone (see warning in Chafetz Chayim, Lashon Hara 7:14). The camp’s responsible staff members, who are mandated to supervise the campers’ welfare and conduct, are the proper people to be involved.
Thus, if the staff’s higher echelon, in consultation with its rabbi(s), were convinced that the suspicions justified a search, they could have halachically done so. (We would urge people to consult legal counsel regarding the legality of their actions and consider all relevant concerns.)
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This edition of Hemdat Yamim is dedicated
to the memory of R’ Meir ben Yechezkel Shrugs Brachfeld o.b.m.
Hemdat Yamim is also dedicated by Les & Ethel Sutker of Chicago, Illinois in loving memory of Max and Mary Sutker and Louis and Lillian Klein,z”l. May their memory be a blessing!