Sin-A-Gogue

by David Bashevkin

  Rather, it means, “Renew our lives, as you renewed our lives after we were exiled from the Garden of Eden.” “Hadesh yameinu ke-kedem” is then not a plea for restoration of a formerly perfect condition, but rather it is a plea for resilience, a plea for the ability to renew ourselves after future crises and dislocations, just as our lives have been renewed before.

  As Elie Wiesel said, “God gave Adam a secret—and that secret was not how to begin, but how to begin again.”74

  Similar to the Lurianic shift in perspective, the focus on Adam’s sin is not about reclaiming a utopian past but having the resilience and grit to create a more perfect future. We did not forfeit perfection with Adam’s sin but assumed the responsibility to create it ourselves.

  3

  SICK, SICK THOUGHTS: INTENTION AND ACTION IN SIN

  Nothing was your own except the few cubic centimeters inside your skull.

  —George Orwell, 1984

  By all accounts Gilberto Valle had sick, sick thoughts. In September of 2012, after growing suspicious, his wife installed spyware to monitor his online activities. What she found was horrifying. Her husband was having descriptive chats online about the kidnapping, rape, torture, and murder of her and several of her friends. Most shocking—he planned to cook and eat his victims. After being indicted on five counts of conspiracy to commit kidnapping, Mr. Valle, a member of the NYPD, was soon dubbed the “Cannibal Cop” by the media. At his trial Mr. Valle insisted that his online discussions, however detailed, were mere fantasy and did not constitute illegal activity. The prosecutor pointed to actual steps taken by Mr. Valle to commit crimes, including searching for victim information on a police database. Though the Cannibal Cop was initially found guilty in 2013, the ruling against him was overturned in 2014, and the 2014 ruling was subsequently upheld by the United States Court of Appeals for the Second Circuit in 2015. In the Second Circuit ruling, which upheld the district court’s dismissal of the case, the judge explained his ruling:

  This is a case about the line between fantasy and criminal intent…. We are loath to give the government the power to punish us for our thoughts and not our actions. That includes the power to criminalize an individual’s expression of sexual fantasies, no matter how perverse or disturbing. Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime. This does not mean that fantasies are harmless. To the contrary, fantasies of violence against women are both a symptom of and a contributor to a culture of exploitation, a massive social harm that demeans women. Yet we must not forget that in a free and functioning society, not every harm is meant to be addressed with the federal criminal law.75

  The court was clear: thoughts, however heinous, are not a crime.

  Edward Coke (1552–1634), the famed English jurist, created the phrase from which most contemporary legal considerations of criminality still derive: actus reus non facit reum nisi mens sit rea—an act does not make a person guilty unless the mind is also guilty.76 Nowadays legal scholars and lawyers evaluate culpability based on both the presence of actus reus, meaning an action, and mens rea, the mental component of criminality. Mr. Valle, of course, had mens rea of the worst sort, but those alone could not convict him. Without meaningful actus reus, his thoughts remained legally inscrutable.

  How would Jewish law approach the case of the Cannibal Cop? When considering the parameters of thought and action in determining religious criminality a few important distinctions must be made. First, not every divine sin is necessarily prosecuted in Beit Din, the Jewish court system. There are many religious prohibitions and sins that can corrupt religiously but are nonetheless unable to be prosecuted or punished in Beit Din. For instance, negative speech, known as lashon hara, is a Torah prohibition but is not prosecuted or punished in the Jewish court system. Secondly, much like American law, whatever combination of thought and action is required only constitutes one necessary criterion for punishment in court and is not sufficient to merit punishment on its own. Aside from committing a sinful act, there are a host of other requirements necessary to qualify for punishment in religious court. Among the conditions are warning, proper witnesses, and being of sufficient age for accountability for punishment. Lastly, the question of thought crimes in Jewish law must be distinguished from the question of whether thought has consequence in Jewish law. Thought, in the sense of conscience intention, frequently carries legal consequences in certain areas of Jewish law such as tithing, withdrawing ownership, and the nullification of hametz on Passover.77 Our discussion will remain focused on the role of thought and action when evaluating culpability for sin in Jewish law.

  Alone With Your Thoughts

  There shouldn’t be much to think about. The Talmud (Kiddushin 39b) states quite clearly—except for thoughts about committing idolatry—God does not punish for thoughts about committing sins. No conceptual idea or rationale is presented to justify the exclusion of thoughts from culpability; rather the Talmud cites verses to support its claim:

  But the Holy One, Blessed be He, does not link an evil thought to an action, as it is stated: “If I had regarded iniquity in my heart, the Lord would not hear” (Psalms 66:18). But how do I realize the meaning of the verse: “Behold I will bring upon these people evil, even the fruit of their thoughts” (Jeremiah 6:19)? In the case of an evil thought that produces fruit, i.e., that leads to an action, the Holy One, Blessed be He, links it to the action and one is punished for the thought as well. If it is a thought that does not produce fruit, the Holy One, Blessed be He, does not link it to the action.

  Similarly, the exclusion of idolatry from this rule is also derived scripturally by the Talmud.78 Aside from the exception of idolatry, the Talmud seems to establish as a general rule that God does not deem thoughts without action a religious crime.

  This of course is not the whole story on thought. Another Talmudic passage (Yoma 29b) states, “thoughts (hirhurei) of sin are worse than the sin itself.” This passage seems to indicate that thoughts are accounted when assessing sin.79 In fact, even without this passage the aforementioned passage of Talmud that excludes thought from culpability seems to be contradicted by a host of religious prohibitions. Some commentaries include the verse “and be not stiff-necked” (Deut. 10:16) as a general prohibition, even though it is apparently only a violation that can be transgressed with thought.80 Similarly, the prohibition not to covet a neighbor’s possessions (Deuteronomy 5:18), which is included in the second recording of the Ten Commandments, is according to some a prohibition of covetous thoughts.81 So when is the principle excluding thoughts from religious liability operative, as found in the passage in Kiddushin, and when are thoughts indeed considered to be sins?

  Oddly, most commentaries do not address this apparent contradiction. Rabbi Yehudah Loew (1512–1609), the rabbi of Prague known as the Maharal, does however suggest a simple distinction.82 He explains that when the initial formulation of a sin requires action, such prohibitions cannot be violated with thought alone. However, thought can still be considered a sin when the thought is the action—the very definition of the particular sin includes thought. This means a prohibition such as murder, which clearly includes an action, cannot be violated by mere thought, but if thoughts by dint of their formulation are the subject of the prohibition—then they are sufficient to be considered a sin. As such, our earlier assumption that Jewish law does not prosecute thoughts alone must be qualified. Thoughts can in fact be prohibited. But the prohibition must by definition require thought alone. If, however, an action is needed to violate a given prohibition, then thought alone will not be sufficient to be considered a transgression.83

  Attempted Sin

  Thought alone—unless it is the essence of the sin itself—is not considered a sin. Just beyond the threshold of thought crime lies a different form of crime known as attempt. Whereas thought crimes only possess mens rea, a criminal thought, attempt introduces elements of actus reus (albeit unsuccessful) as well. Common law has long
distinguished between a thought crime and an attempted criminal act.84 Thinking about murder is legal while attempting murder is illegal. Why such a distinction exists is less clear. In other words, what is the nature of criminality for an attempted crime? If the crime is unsuccessful why should the perpetrator nonetheless be punished? Aside from thinking, nothing else has been accomplished.

  Gideon Yaffe has spent much of his career attempting to define the criminality of attempt. Dr. Yaffe, a Yale Law professor, wrote a masterful work on attempted crime, aptly entitled Attempts. His work and approach reflect his academic background as a philosopher as opposed to a lawyer, giving much of his analysis a much needed conceptual approach. There are several core philosophical problems in the conception of attempt, but the one that is most relevant to our discussion is the nature of criminality for attempt. Namely, if no harm was done why is an attempted crime considered a crime at all—what happened to “no harm, no foul”? If no damage is incurred from an attempted crime, what distinguishes it from a thought crime? Yaffe presents three schools of thought in explaining the criminality of attempt.85

  Subjectivists posit that attempt is indeed a thought crime, but its criminality derives from the fact that it is a “special species of thought that is acceptable to criminalize (such as resolute intentions).” This view concedes that thought crimes generally should not be punished but explains that attempt—while a form of thought crime—should be an exception to that principle. As Yaffe notes, “The fundamental challenge for subjectivists, then, is to explain why it is not monstrous for a liberal society to punish attempts.” Objectivists, on the other hand, presume that attempt cannot be a form of thought crime, since punishment for a thought crime is simply inconceivable. Instead, they explain, that attempt must involve some sort of action that is punishable. For objectivists, the criminality of attempt rests more on the actus reus than the mens rea. Their challenge, as Yaffe explains, is how to “explain what it is about the conduct involved in attempt thanks to which it is punishable despite its harmlessness.”86 A final approach to the criminality of attempt, developed and preferred by Yaffe, is called the Guiding Commitment View. This view doesn’t distinguish attempt based upon either bad thoughts or bad conduct; instead the Guiding Commitment View proposes that the act of trying can be defined as a criminal act. According to Yaffe there is an overarching rule in the criminalization of attempt called the Transfer Principle, which assumes that “if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized.”87 Based on the Transfer Principle, the Guiding Commitment View establishes the criminality of attempt by setting clear guidelines for what is considered trying. Attempted murder is not prohibited because of the thoughts it necessarily contains or the act that it entails—it is illegal because it is an act of trying that is prohibited under the Transfer Principle. Yaffe defines the criminality of trying as follows:

  To try to act, in the sense of relevance to the criminal law, is to have an intention that commits one to each of the conditions involved in completion, and for one’s behavior to be guided by that intention.88

  Each of the three aforementioned approaches to the criminality of attempt draws different conceptual lines between thought crime and attempt. The courts as well have developed different tests to demarcate when plans and fantasies enter criminal territory. One important test, developed by Justice Oliver Wendell Holmes, focuses on how much planning still needs to be carried out in order for the crime to be successfully committed. Known as the “dangerous proximity” test, planning for a crime is deemed criminal when the likelihood of its completion, commensurate with the severity of the act, is considered dangerously close.

  In a way, an attempted crime is an ironic form of failure given that any crime is really a failure to obey the law—so, an attempted crime is really a failed attempted at failure. Of course, why an attempt fails successfully to break the law is an important legal facet when considering the criminality of attempt. Why a crime was not realized is an important factor in deeming whether the attempt was criminal. Many pages of legal literature have been written considering the question of impossibility—crimes that were attempted but that were not realized because they were never possible to execute.89 For instance, someone attempted to conceal stolen property, but it was later revealed that the property in question was never even stolen.90 Or imagine someone who kills someone—but claims that when the bullet was fired the victim was already dead.91 Recently, impossibility has been a frequent feature of law enforcement stings, such as in setups that involve fake narcotics or in nabbing pedophiles with adults who present themselves as underage minors.92 Applications of impossibility are usually divided into two categories: factual impossibility and legal impossibility. Regarding the former, factual impossibility occurs when unbeknownst to the defendant, the basic facts of an attempted crime make it impossible to have been successfully committed. For instance, a group of men were convicted of rape even though unbeknownst to them, the woman was already deceased at the time of the crime.93 Courts do not look at factual impossibility as a favorable excuse and consider such attempts criminal. Alternatively, legal impossibility occurs “when unbeknownst to the actor, what the actor planned to do had not been made criminal.”94 Cases of legal impossibility, such as someone who attempts to kill someone but the target turns out to be something else entirely like a tree stump or a branch, are considered by courts as lacking the elements necessary for criminal liability. Of course as many note, the entire difference between factual and legal impossibility is quite murky. The imaginary line dividing factual impossibility, which is deemed criminal, from legal impossibility, which is considered a valid defense, has rightly been criticized as “an illusionary test leading to contradictory, and sometimes absurd, results.”95

  So much for crime, but our topic is sin. Does Jewish law criminalize attempted sin? And does Jewish law consider aborted actions to be sins when they are legally or factually impossible to complete?

  A conceptual category of attempt, as is found in common law, does not seem to exist in Jewish law. Someone who attempts murder but is unsuccessful cannot be found liable for attempted murder—such a concept is not found in the Talmud. The closest example of a Talmudic ruling regarding attempted sin is based on a story in Exodus 2:13. Moshe finds two people arguing. Just as one lifts his hand to strike the other, the text reads, “And he (Moshe) said to the wicked man, why do you hit your friend?” Although no blow has landed Moshe already refers to the attempted assailant as a wicked person. Based on this biblical story, the Talmud cites the opinion of Reish Lakish that “he who lifts (raises) his hand to strike his friend, even though he did not hit him, is called wicked.”96 Later legal codifiers debate whether the “wicked” status would disqualify such a person from serving as a witness in Jewish court.97 Regardless, the attempted assault clearly has legal ramifications. This ruling, however, seems to be more localized—a similar status of “wickedness” is not found regarding other attempted sins. Indeed Jacob Bazak, the Israeli Supreme Court Judge, notes that “[i]t is not at all clear whether it is safe to deduce from that single Talmudic source a general conclusion that Jewish law considers an attempt to commit a crime to be a crime in itself.”98 Most likely this is a localized stringency regarding attempted assault rather than a general principle that criminalizes attempt.

  Interestingly, the form of attempt which does receive quite a bit of attention in Talmudic literature is the impossible attempt. As defined earlier, an impossible attempt is an attempt to commit a crime which for either legal reasons or factual reasons could never have been completed. Regarding what seems to be an evaluation of the criminality of impossible attempts, the Talmud (Kiddushin 81b) records the following:

  Rabbi Hiyya bar Ashi was accustomed to say, whenever he would fall on his face in prayer: May the Merciful One save us from the evil inclination. One day his wife heard him saying this prayer. She said: After all, it ha
s been several years since he has withdrawn from engaging in intercourse with me due to his advanced years. What is the reason that he says this prayer, as there is no concern that he will engage in sinful sexual behavior?

  One day, while he was studying in his garden, she adorned herself and repeatedly walked past him. He said: Who are you? She said: I am Haruta, a well-known prostitute, returning from my day at work. He propositioned her. She said to him: Give me that pomegranate from the top of the tree as payment. He leapt up, went, and brought it to her, and they engaged in intercourse.

  When he came home, his wife was lighting a fire in the oven. He went and sat inside it. She said to him: What is this? He said to her: Such and such an incident occurred; he told her that he engaged in intercourse with a prostitute. She said to him: It was I. He paid no attention to her, thinking she was merely trying to comfort him, until she gave him signs that it was indeed she. He said to her: I, in any event, intended to transgress. All the days of that righteous man he would fast for the transgression he intended to commit, until he died by that death in his misery.

  (The Talmud proceeds to explain the source of the idea that one who intended to transgress is punished even though he did not actually sin.) As it is taught in a baraita concerning a husband who nullified the vow of his wife: “Her husband has made them null; and the Lord will forgive her” (Numbers 30:13). With regard to what case is the verse speaking? Why would the woman require forgiveness if her husband has nullified her vow? It is referring to a woman who vowed to be a nazirite, and her husband heard and nullified her vow. And she did not know that her husband had nullified her vow, and she drank wine and contracted impurity from a corpse, violating her presumed vow.99

  Here the Talmud records two cases of impossible attempts. First, attempted adultery with the rabbi’s actual wife; second, an attempt to violate a vow which had already been annulled. This passage of Talmud concludes with the somber reaction of Rabbi Akiva to these attempts. When Rabbi Akiva would consider the case of the woman who attempts to violate her vow, he would cry.