(2011/5771)

Last week began our review of how the Beth Din of America resolved the Agunah issues caused by the September 11, 2001 terrorist attacks. We outlined (in an essay archived at www.koltorah.org) the basic methodology of resolving Agunah challenges as well as the basic facts surrounding the 9/11 attacks. We begin to present this week how the Beth Din actually resolved all of the cases before them. 

Identifying the Man’s Remains: Classical Simanim

The simplest way to solve an Agunah’s case is to find the husband’s body within three days of his presumed death. The Shulchan Aruch (Even HaEzer 17:24-26) codifies the Mishnah (Yevamot 120a) according to which one may identify a husband within three days of death, but only if the face (including the nose) is intact. In the absence of such evidence, however, Simanim (identifying characteristics) on the body of the deceased are necessary for identification. Many of the most obvious traits, such as a ruddy complexion or the fact that he is either tall or short, do not suffice, as they are quite common. Rather, witnesses must find a Miman Muvhak (a unique characteristic) in order to identify the husband (Shulchan Aruch E.H. 17:24). The Beit Shmuel (17:72) and Aruch HaShulchan (E.H. 17:172) cite the Mas’at Binyamin (63) as asserting that if fewer than one in a thousand people share this feature, then it is classified as a Siman Muvhak.

In the absence of a Siman Muvhak, we check for a middle category, Simanim Beinoniyim, features that are neither very common nor very rare. Rather than automatically accepting or discounting a Siman Beinoni, the practice is to treat two such Simanim as equivalent to one Siman Muvhak. Furthermore, one such average Siman may be combined with other relatively convincing evidence that indicates that the body is that of the missing husband. The Aruch HaShulchan (ibid.) cites an opinion that “numerous” inadequate Simanim may be combined to constitute one Siman Beinoni, but each case must be judged independently by the leading Halachic authorities of the time, who must evaluate whether all of the various types of inadequate Simanim in the particular case indeed combine to render the odds of a mistaken identity less than one in a thousand (the aforementioned definition of a Siman Muvhak).

An enormous volume of literature exists consisting of classification of specific features. For example, the Otzar HaPoskim (5:288-324) summarizes responsa addressing no fewer than 165 bodily features. In addition, the Otzar HaPoskim (5:206-280) summarizes the various opinions regarding what combinations of Simanim are adequate to identify a husband.

Identifying the Remains: Modern Techniques

Classifying dental records and DNA evidence in terms of the above categories of Simanim is critical in resolving the plight of World Trade Center Agunot. The Beit Shmuel (17:72) rules that a hole that goes through an entire tooth constitutes a Siman Muvhak. The Aruch HaShulchan (E.H. 17:173), writing in the late nineteenth-century, asserts that holes in teeth do not constitute Simanim Muvhakim, as they are very common. However, Rav Moshe Feinstein (Iggerot Moshe, E.H. 4:57, writing in 1959) and Rav Ovadia Yosef (Yabia Omer, E.H. 6:3:4:20, writing in 1974) rule that dental records may help identify a missing husband, in conjunction with other evidence. Rav Ovadia explains that the dental records are much more specific than the identifying marks that the Aruch HaShulchan addresses. Rav Zalman Nechemia Goldberg mentions in his responsum on the 9/11 attacks that Halachic authorities in Israel commonly accept dental records as a Siman Muvhak. The Beth Din of America partially relied upon dental records for identifying some of the missing husbands. Rav Zalman Nechemia Goldberg even accepts dental records that were procured by Halachically invalid witnesses, especially since they acted as government workers, which increases their trustworthiness, as will be explained later.

In recent years, Posekim have been asked to address the Halachic status of DNA testing. Posekim do not accept or require a DNA test to determine an individual’s status as an illegitimate child. However, Rav Shmuel Wosner and Rav Nissim Karelitz (Techumin 21:123) rule that DNA is admissible as partial evidence together with other corroboratory evidence to determine the identity of a missing husband. They believe that DNA evidence constitutes a Siman Beinoni. Rav Wosner and Rav Karelitz far prefer a DNA test using a sample from the missing person’s personal effects (such as hair from his hairbrush or saliva from a toothbrush) to a DNA test that uses the DNA of immediate family to make an identification.

Rav Zalman Nechemia Goldberg writes at some length on this issue and concludes that DNA evidence constitutes a Siman Muvhak. He notes that the chance of error regarding DNA evidence ranges from a billion to one to a quintillion to one, far exceeding the requirement that a Siman be shared by no more than one in a thousand people in order to constitute a Siman Muvhak. Rav Zalman Nechemia Goldberg draws an analogy between DNA evidence and Rav Yitzchak Elchanan Spektor’s ruling (Ein Yitzchak, E.H. 1:31) that a photograph of a missing husband showing that he is dead is sufficient evidence of his death. Rav Shlomo Zalman Auerbach (cited in Nishmat Avraham, E.H., p. 37) similarly seems to regard DNA evidence as conclusive proof regarding all areas of Halachah. Rav Eliezer Waldenberg is cited (Nishmat Avraham ibid.) as ruling that DNA evidence constitutes partial evidence for Halachic purposes. The Beth Din of America partially relied upon DNA testing in the identification of some of the missing husbands. For a more thorough discussion of DNA evidence and Halacha, see Gray Matter 3, pp. 168-181.

Assuming that these forms of evidence fundamentally may identify a husband, one could still question whether civil authorities should be trusted when they report the results of these processes. The Shulchan Aruch (E.H. 17:14) codifies a ruling of the Gemara (Gittin 28b) that one may not rely upon the report of a non-Jewish court that it has executed a Jew. The Rishonim, early authorities, explain that the authorities might falsely report that they executed a Jew in order to glorify the effectiveness of their judicial system, or simply to instill fear in the residents of the land.

The Acharonim, later authorities, debate, though, whether we may rely upon a government-issued report that someone has died when it is clear to us that the concerns offered by the Rishonim do not seem relevant. In the early nineteenth-century, two premier authorities of the time debated this issue. Rav Mordechai Banet sent a letter to Rav Moshe Sofer (Teshuvot Chatam Sofer, E.H. 43), arguing against the validity of such a report, but the Chatam Sofer replied that one may accept it. Later nineteenth-century authorities, such as Rav Yitzchak Elchanan Spektor (Teshuvot Be’eir Yitzchak, E.H. 5:4) and Rav Shlomo Kluger (Teshuvot Ha’Elef Lecha Shlomo, E.H. 97) accept Chatam Sofer’s lenient view. Rav Kluger explains that that non-Jewish government officials fear the consequence of being caught as liars, so we may trust their reports. In fact, the Aruch Hashulchan (E.H. 17:80), writing in the late nineteenth-century, records that the lenient view has generally become accepted, though as thorough an investigation as possible should be conducted in order to corroborate the report (also see Teshuvot Yaskil Avdi, E.H. 5:20:3).

Rav Yitzchak Elchanan Spektor’s reasoning on this matter appears quite cogent. He notes that, unlike other areas of Halachah, a non-Jew’s testimony is valid regarding Agunot if he speaks about the matter in passing (Meisi’ach LeFi Tumo). On the other hand, a non-Jew has credibility in other areas of halachah only if he testifies about a matter in his professional capacity (Uman Lo Meira ANafsheih), such as a chef testifying that a food item does not taste like a non-Kosher ingredient that fell into it by mistake. Accordingly, reasons Rav Yitzchak Elchanan, a non-Jew testifying in his professional capacity is certainly believed in the context of Agunot, where the Halachah is extraordinarily lenient about the type of testimony that is acceptable.

Rav Moshe Feinstein (Teshuvot Iggerot Moshe, E.H. 1:48) admits the testimony of the United States War Department that the plane of a missing pilot plunged into the English Channel during World War II; elsewhere (E.H. 4:58:7), he similarly accepts the testimony of the Belgian government that the Nazis transported a missing husband to Auschwitz. Rav Ovadia Yosef (Yabia Omer, E.H. 7:14) admits the testimony of the Russian government that a missing husband died in a battle with the Nazis during World War II.

Accordingly, the Beth Din of America partially relied upon the New York City Medical Examiner’s testimony regarding DNA tests administered under his auspices. Rav Mordechai Willig notes that he and other members of the Beth Din of America were permitted to visit and evaluate the procedures of the New York City Medical Examiner’s laboratory. Rav Willig was duly impressed by the professionalism of this office and concluded that the chance of error in the operation of this office is virtually nil. In fact, Rav Yona Reiss reports that the Medical Examiner’s office told him that dental records are examined no fewer than five times to ensure an accurate identification.

In addition, Rav Zalman Nechemia Goldberg writes that we may rely upon American Airlines’ assertion that a missing husband was on board one of the planes that crashed into the World Trade Center. He reasons that they also have a professional reputation to uphold and thus may be trusted according to Halachah. He adds that there is no apparent reason for American Airlines to lie about such a matter, as it only serves to increase their exposure to liability for the passenger’s death.

Personal Items in the Wreckage

In some situations, a husband’s body cannot be found, but people do discover personal items of his near the scene of the disaster. In fact, a pair of pants (that had pieces of skin and bones) were found in the World Trade Center wreckage containing the wallet (including a driver’s license and credit cards) of a missing husband whose body was not found.

The Shulchan Aruch (E.H. 17:24) rules that even highly unique items that are found on a body cannot serve to identify the body, for the missing husband might have lent these items to someone else. The Shulchan Aruch makes no exceptions, apparently disqualifying even items that one normally does not lend. However, the Chelkat Mechokeik (17:42) cites a dissenting opinion, which permits identifying a body based on the discovery of highly unique and personal items such as one’s wallet or ring, which one does not normally lend to others. The Beit Shmuel (17:69) adopts the latter position. The Otzar HaPoskim (5:173-205) summarizes rabbinical rulings about whether any of ninety-five personal items constitutes something that people would not normally lend.

Rav Moshe Feinstein (Iggerot Moshe, E.H. 4:57) and Rav Ovadiah Yosef (Yabia Omer, E.H. 6:3:2) combined the discovery of such items with other evidence in order to identify a missing husband, and the latter suggests that finding a husband’s army uniform is better evidence than other garments, as the army does not permit lending it to other people. Thus, Rav Gedalia Dov Schwartz reports that the Beth Din of America partially relied upon the discovery of the pants containing personal items of the aforementioned missing husband. One may add that although one might lend clothing to others, one does not normally share business attire with others. Businessmen in many companies are quite meticulous about their appearance and generally wear only items that are professionally tailored to fit them perfectly. Thus, it would be highly unlikely for someone to lend his pants to a friend to wear at his business office on a workday. Rav Zalman Nechemia Goldberg further comments that in today’s affluent society, men do not commonly lend their pants to others.

Next week we shall IY”H and B”N conclude this series with a discussion of situations where no remains are found.