230 • SELECTED TOPICS IN JEWISH LAW CH J5

CH. 15 CRIMINAL LAW • 231

only the least amount of force necessary to rescue the pursued, i.e., in Talmudic terminology
where the reasonable citizen "who cares" sees a civic and moral duty, under the circumstances,
"that he could have saved him [the victim] by maiming a limb [of the pursuer]." If he does not
to come to the defense of a person being attacked, and to rescue the victim from the pursuer.
do so, he is criminally liable for the injury he inflicts on the pursuer, and he certainly bears criminal
It is tme that Israeli law, along with most present-day legal systems, does not recognize a legal
responsibility if he kills him . . . .
duty to save someone in danger .... The "Good Samaritan" is not encompassed by the law's
13. It should be noted that the basic concept underlying the doctrine of defending others in cloak. Even under Jewish law, the duty imposed upon every person to rescue — in whatever manner
Jewish law arises from the values of the world outlook of Judaism, expressed in the verse in — his fellow who is in danger, is based on the commandment "Do not stand idly by the blood
Leviticus "Do not stand idly by the blood of your fellow." In the world of Judaism, this verse of your fellow." Although this is a very significant negative commandment, its violation is not
has been interpreted as extending far beyond the duty and the right, in criminal law, to save the punished by flogging, as no act is involved . . . .
victim from the pursuer; rather, it has been interpreted as a general religious-moral duty to rescue
16. Let us now return to the case before us. As stated, the incident occurred at 1:20 a.m. in
a person in danger.
December, on a wintry night in Jerusalem. The appellant and his friends in the apartment did
This duty . . . is expressed by Maimonides:36 not hear any knocking on the door. When the gas flow stopped, the appellant went to the apartment
Whoever could have rescued, but failed to do so, transgresses the commandment "Do not door, and, when he opened it, two people, dressed in civilian clothes, burst inside. Although they
stand idly by the blood of your fellow." Thus, one who sees his fellow drowning in the sea, possessed a search warrant, it is undisputed that they did not present the warrant when they burst
or being accosted by bandits, or being attacked by a wild animal, and who could have saved in, and did not say who they were or why they came. According to the appellant's testimony,
him — either by himself, or by paying others to save him — but failed to do so such he did not recognize them immediately, and after he recognized them he let them in and said:
a person transgresses the commandment "Do not stand idly by the blood of your fellow." "The undercover police have come." The magistrate's court did not accept this version and decided
that, as the policemen testified, "appellant recognized the policemen immediately upon opening
14 Having arrived at this point, let us return to the issue of the extent of the right of private
the door and nevertheless continued in his opposition."
defense where one is defending a third party. It seems to me that once the legislature has established
the basic principle that the principle of private defense - as a defense against criminal liability Even if we accept this factual finding — and it was indeed accepted by the district court —
is applicable both for self-defense and for the defense of a third party, then as to the scope it appears to me that there is no basis to criticize appellant's actions at the moment he opened
the door in the darkness of the night and saw two people, dressed in civilian clothes, burst inside.
tnZr-T" P""?16'the definition of tha Ph^ "others whom he was bound to
protect, it is proper to take a broad and liberal interpretation .... He was entitled, under the principle of private defense, to forcefully push the intruders through
the door and out of the apartment. By doing so he sought, first of all, to prevent injury to himself.
andAinWe haM T' the,princ'pl' 0f defendinS others involves concepts rooted in public policy
One might say that he had nothing to fear because it was not his apartment and he did not live
and m a social and moral view of the duty to come to the aid of another person who is in danger

5trr::nr::ribrmencan and Eng,ish ^- •« JtzsstZL

there, and normally those who break in direct their actions against those living in the apartment.
finrTth 1JUry' oonclusion is compelled by the logic and nature of civilized social life We If so, he could have turned aside and let them break in, but appellant could still claim that his
actions were in the defense of others, namely, the five men and women — friends of appellant
— who were in the apartment at the time. Under the circumstances, where two people broke in,
and he was standing opposite them and could prevent them from entering, he was exercising his
right to rescue his "pursued" friends from the two "pursuers" (who were, as stated, trespassing),
fearing injury or bodily harm to his friends. Even if appellant recognized the police upon opening
M """" * the door, there is a natural instinctive resistance to people bursting in, for at least a second or
. f - »» » W 1 rely «. two until he recognizes them. And even after he did identify them, since they came wearing civilian
liberal interrelation widens the scone of aonli/t- ^ T
mterPretin8 a cnminal statute, the broad, clothes and did not present a search warrant, at least a few seconds more were needed to weigh
and decide whether there was reason to fear a criminal intent on their part . . . .
of acquittaTof a person whTcom^s m Sof Zh ^ i"C,Ba,eS ,he P0*
to limit the scope of application of private defend F " ®
rth nnore - when the legislature desired 17. . . . To broaden our study, we will mention a similar judgment from the case of Palmer
restricting the defense to property of others "nl^eri i, ^ pro Perty °f others- il did 80 b* v. Reginam, [1971] 1 All E.R. 1077, 1088. Although that case dealt with the commission of a
term that establishes a clear legal definition as to^heml f' ^"S' ^ leglslature used a serious crime, the reasoning is the same:
who came to its defense. By contrast, with regard s tlhiTf T" S Pr<>Perty ^ 'he P6™" If there has been no attack then clearly there will have been no need for defence. If there
is "bound to protect," and the term "boun/has no defined"^ ^ telm has been attack so that defence is reasonably necessary it will be recognised that a person
defending himself cannot weigh to a nicety the exact measure of his necessary defensive
applicable - to thl extemTha^ano'thet w^nTs A ™, ""U thetp^ncjfIe of private defense is action. If a jury thought that in a moment of unexpected anguish a person attacked had only
pe is threatened with bodily injury — in any case done what he honestly and instinctively thought was necessary that would be most potent
36 MT, Roze'ah u-Shemirat ha-Nefesh 1:14, based on rh*. T*I evidence that only reasonable defensive action had been taken. A jury will be told that the
73a). ed on the Talmudic sources (Sifra, Kedoshim 2:4; TB Sanhedrin

defence of self-defence, where the evidence makes its raising possible, will only fail if the
 232 • SELECTED TOPICS IN JEWISH LAW CH. IS CH. 15 CRIMINAL LAW • 233

prosecution show beyood doubt thai whai the accused did was not by way of self-defence. It was not explained to us whether they had a reason to assume that the door would open in the
If the jury consider that an accused acted in self-defence or if the jury are in doubt near future. Perhaps they wanted to pass the night in the hallway of the house until the morning
as to this then (hey will acquit. hours when people go out to work.

I think that what the appellant did in those seconds comes within the framework of private 3. Suddenly the gas went out in the apartment. The magistrate's court judge determined that
defence, and even if it is said that what occurred in the last seconds creates a doubt as to whether the policemen shut off the tap for the tank, which is outside the apartment, in order to tempt one
it was private defense, even then, on the basis of this doubt, the appellant should be acquitted, of the people in the apartment to open the door of the apartment. The district court reversed this
as we have seen above. finding, since the defense did not question the policemen on this version, despite its importance.
In this, the ' .vrned judges were correct. The finding thus remains that the gas went out, but we
do not know how or what caused this.
19 Therefore, in my opinion, the appellant established the private defense of Section 18 of Be that as it may, immediately after the gas went out, appellant opened the door in order to
die Criminal Code Ordinance. 1936 (Section 22 of the Penal Law, 1977), and I would ;:rant the understand t!,;' reason for this. Appellant has a substantial "record," but the policemen did not
appeal and reverse the appellant's conviction for the offense of assault under Section /.49 of the come to am * him — he is not the owner of the apartment they were ordered to search, and he
above Ordinance (and Section 379 of the Penal Law). does not ev live there. He was only visiting.
The President (Sussman|:
As to how matters continued, police officer Cohen says: "When the door was opened, we burst
I With all due respect. I join the conclusion reached by my distinguished colleague, Justice inside," am lese words were adopted by the district court. They also correspond with the
Hon However, since I arrived at it by a different route than my distinguished colleague, I must testimony o: ippellant, who said: "1 went out to open the gas, and then the two burst in."
put my reasoning on the record. The sole question before us is whether the defense ot cessity Appellant stood at the doorway and reacted to the "break-in" by pushing the policemen out.
under Section IK of the ( innin.il Code Ordinance, 1936, is available to the appellant answer The clear a undeniable conclusion from this evidence is that the policemen acted unlawfully.
to this question. I may not turn for assistance to Jewish law. Jewish law is undoubtedly a valuable They were wearing civilian clothes, they did not announce themselves as policemen, and they
< u 11 inid asset "I "in people, Irom which both the legislature and the courts may dravs ation did not even show appellant that they had a search warrant from a court. Surely . . . they were
Hut wc are dealing here with a specific provision of a criminal statute which has a different origin not acting within the authority of the law, and therefore they had no more privilege than anyone
and has nothing to do with Jewish sources. I also venture to doubt whether the tppli i.on of else. A poll. :man who acts within his duty is entitled to maximum protection, but a policeman
Jewish criminal law would really he acceptable to the Israeli public. For example, would the Israeli who exceed"- the bounds of his authority is to be treated like any other citizen .... The district
pub ic be ready, in 1979, on the basis of the rules of Jewish law, to put an adulterous woman court was thu correct in acquitting appellant of the violations of the Penal Law Revision (Assault
to death by stoning, or. ,f she was a daughter of a kohen, by burning? on Police Of ficers) Law, 1952, of which he was accused and convicted in the magistrate's court,
m i, frt^Wr:l,Crri;Cohen camc at nighl t0 a house «n Jerusalem in order because of the unlawful way that the policemen purported to fulfill their duty. But the district
a « ° w* SCafCh WarTam fr°m a judgc of the magistrate's court. hat did court found opellant guilty of assault under Section 249 of the Criminal Code Ordinance, 1936,
According to the testimony of pohce officer Zaritski ... they suspected in the and dismissed appellant's defense that he acted out of necessity and therefore, by the directive
scan, h f Vi ' KC w£rc .l"? p ayed for 'ar*c sums of money"; "In the search order was written of Section 18 of the Ordinance, was not subject to liability.
^Of^ln, 1 WCr,Cd 10Ca,Ch ,hC p,aycrs ^-handed." So also his colleague, 4. Before us, the learned counsel for the defense spoke at length, arguing that appellant had
to the magistrate'* tun \u\ n l[r?^y ^,hcsc lwo errcd^ warrant was submitted to defend th< people in the apartment, as if only on that theory could he come within the protection
XZZfrZ ' * WaS isSUCd of a suspicion of a crime of Section 18. I feel no obligation to be dragged into a debate on this argument, since appellant s
,hC ,)angCrOU' ()rd,nance- « made no mention of forbidden games.
rescue and < liverance attend from another source. Appellant had the right to act as he did in
self-defense igainst the policemen's illegal action. A man opens the door of an apartment at 1:00
was a^cr^dn^ra^ lifter HW tT SUrprising' S'nCC "
in the morning, and in the doorway comes up against two strong men who burst in on him,
There were five to tr >nL- u ,k. y locked 'once" and no one answered.
that is, assault him. If a man so attacked does not have the right to self-defense, I do not know
of clear findings in the tudsmcnt >f tpartmcnl wh® had n°l yct 8one to sleep. In the absence
when a person will.
was possible thai no one heard the ml i?*®1?116 S C0Urt jud8c> the district court held that it
The Assistant State Attorney emphasized that appellant knew the policemen for, upon seeing
MMimption dM the people cloxd i£m*|vc7in ttS ,'m t°" U"' deC'Si0n cleafly negale* ,hc
for fear of the police apartment and did not want to open the door them, he cried out "undercover police, undercover police.' There was a controversy as to whether
appellant cried out immediately upon seeing the policemen or whether he did so only later. In
the district court, the defense attorney admitted that his client knew the two were policemen, but
and harder, (but) the ^t^'bT^cZs^fs Vi'Sit°r W°U,d **** kn0ckcd agai" did not know why they came. And in truth, when the two began performing their assignment
(Arrest and Searches) Ordinance (New VcrrioH |%o ^CC,,°" 45 ofthc Cnminal Procedure
without a word by assaulting the appellant, how could he know why they came? In any event,
not how they acted They waited outside for abL fiftL CnU7 by forcC Bul th,S *
as Policeman Cohen testified, the "delay" by appellant did not take more than a few seconds.
W "*** flf,ccn minutes or more. Why did they wait?
 234 • SELECTED TOPICS IN JEWISH LAW CRIMINAL LAW • 235
CH. 15 CH. 15
5. As far as I am concerned, it is immaterial whether appellant recognized the people is nni;„ the oresence of strangers in the stairway. Appellant opened the outside door mnocently in order
immediately or a few seconds after the commencement of the altercation.
d to the „as a„d then two people dressed in civilian clothes burst in. In these circumstances,
P

As my distinguished colleague Justice Landau has stated . . ., the symbol of a count,-y of law md considering that the intnidere did no, show a search wanant and did not say who they were
,„H th frS01
knowl&dn d H
aU

T* Z
"S
'ty Wh° 3CtS without authon'y stands

aPPe"am
no higher than any otto JZ
lmmedlaIe'y tha< he faced two police
knowledge did not authorize the policemen to begin performing their task hv
en^bis
u
appellant. The firs, step in this affair was the act of v.o^nceT^ed om bftheU a Z? Z
violence does not become proper and legal because it is done by persons of authority Th to STtousiof was instinctive until he identified them as policemen, and even if he .denied
ts tru. The assault of a citizen by a policeman is much 'PP°S,te them immediately, an additional second or two were needed for him to weigh and consider
there was a reason to fear whether they had criminal intentions.

*»is-ji ™r s t ~-—•»
was also no reason to assume that the unlawfuUctions onhe .
We are not obligated to limit ourselves to the P*nia * P° W
apartment- There
end ,n one *ssault-
jskskskk ks
there that could serve as a basis for my colleague s supp or
KS
defense counsel. Rather, we are obligated to discuss any otoer°H f 6 ™ formulated by the tha, a, any time, even in die firs, second after opening die dt»r, te feMe^ ot y my^
by the facts determined. . . . y 0ther defense whose exploration is invited
wony for the well-being or honor of others. There ,s no-dace n h.tiestrnnony:ofa m ^ g*
I regret that, in these circumstances the stafp caw f.» • A- . . extending help to the oppressed, which my co ' . his testim0ny
that
Police Law. The two [policemen] came'to a place, without evln W Vi°,aling thC
Samaritan who cares for the sick and the weak. response. Al, he said
for — dice players or drugs — did not act in amrA* •, ^ow,nS what they were in search pushing the policemen from the apartmen w sentence: "I prevented them because
committed an offense of assault against an innocent °f the laW> and to justify his aggression towards the jwhcemen is ^ f m these words that appellant
against the policemen who, it would appear in the enH A\A T J ACTL ° N BEEN TAKEN
I have a criminal past and I have dealings w.thpeople^ against „[S dealings with
and thus unsuccessfully performed their duty. 1 ^ything in the apartment acted as he did only in order to preven a po uniawful attack by the policemen.
I would allow the appeal and acquit the appellant.
Justice Asher: sseskses-r-.—- «»•
al/the^espcct 'and^honor ^ with ; _ «. ZSSZ £
claims it. That person must prove the defe y' defense . . .. In this case, appellant
as to whether the defense has been prove ^ magistrate-s court and of
did not succeed m meeting his burden, . , h intruders as policemen upon opening
the district court - that appellant immediately recognreeAejnund pollce" to

the door of the apartment and called out e w g sufficient to negate any claim by
warn his friends while he tried to delay the policemen - is sufficient g

the appropriate moment and see if they would have an on™*. .anSWer' they Voided to wait for him of private defense. , defense of
after a short while the door was opened by appellant who thO^ l° e"ter the np^ment. Indeed,
the »k- tl* h "* Ot Ih, o™„ •ZLSZZSS
the "obligation" to defend others. I will be satisfi
"

i,«_ »».«, * •*>»^flgsssas

«. „
m both of its parts, and he arrives at this conclusion bv rh^8"6 '1CVes th,s argument to be true
another person" applies even to a c^eJ

between a person claiming the right p

^efense ^d those for whose benefit that person

violentlyinrervenes. This view is contrary to the rex

, oprt:on i e Qf the Criminal Code Ordinance
where (here

at 1:30 a.m. Appellant and his friends did not hear kLckiLTrt^T0"* incident burred and Section 22 of the Penal Law, both of which to protect" . . -This
u not near knocking at the door and were not aware of is a special obligation of the accused towards people that he was P
 236 • SELECTED TOPICS IN JEWISH LAW CH. 15 CRIMINAL LAW • 237
CH. 15
is the existing law. As to what we would like the law to be, it seems to me that we must be particular, the argument is unsatisfactory when it concerns a value-laden legal principle that
careful of the tendency to introduce a "general obligation" of forceful intervention by anyone into in the view of a number of Supreme Court justices should be interpreted according to the
the conduct of others, wherever the intervener deems it appropriate to intervene. The idea is
moral and cultural principles of Jewish law. But why should this recourse to Jewish law be
appealing when one assumes that the person to be rescued is an innocent victim, and the assailant rejected in every case because of the presence of one rule in Jewish law that today's public
is acting unlawfully, but such an assumption is not realistic, for it is not always so. We must
would find unacceptable? Even on substantive grounds, President Sussman's argument is
remember that there are violent people who, in order to satisfy their instinct and lust for fighting,
untenable because the four types of capital punishment in Jewish law were abrogated when
are likely to abuse the license to intervene espoused by my colleague, and to fight rather than
the Sanhedrin went into exile,37 and death sentences by Jewish courts were abolished about
try to make peace. . . .
two thousand years ago, except for serious cases against informers, who endangered the very
I would dismiss the appeal. existence of the Jewish community.
It was decided by a majority to allow the appeal and to acquit appellant of the offense of which However, that is not the main reason the argument is puzzling. What is involved here is
he was convicted. . . . a provision of Jewish law requiring rescue of a victim from his attacker — the principle of
Jewish law that commands: "Do not stand idly by the blood of your fellow." What is the
NOTES relevance of the law regarding an adulterous woman to this? A comparison with English
criminal law exposes the flaw in the argument. Until the first half of the nineteenth century,
1. The dispute between Justices Elon and Asher in the Afanjar case appears to revolve around
the interpretation of the Israeli Criminal Code (which, in fact, is a Hebrew translation from the English criminal law had the "distinction" of being in the first rank for barbaric and brutal
English of the statute that had been in effect during the British Mandate and was based on common- execution of death sentences, which the English law of the time imposed for various offenses
law principles). Is this dispute only about the law as it is, or does it also address the law as it (over two hundred in number!) such as theft, forgery, robbery, and many other similar
should be? offenses, in addition to murder, treason, rape, etc.38 The descriptions by Radzinowich and
Holdsworth of these gruesome executions — some by hanging, some by burning (a method
2. The holding of Justice Elon that one may take action against an aggressor to save another reserved mainly for women), some accompanied by brutal abuse at the time of death and
person, despite the absence of any special relationship or responsibility towards that person, can some by abuse of the corpse after execution — are hair-raising to the point that it would
be found in somewhat similar forms in the law of both England and the United States (Rex v. be in bad taste to repeat them here.39 It is enough to note that even minors seven and ten
Duffy, cited in Afanjar, supra, under English law; People v. Williams under U.S. law). Assuming
years old were sentenced to death and executed.40 According to Holdsworth, the situation
that the Duffy and Williams decisions do reflect English and U.S. law, respectively, on the subject,
on the European continent was even worse.41 Yet, we have never heard that a court should
what are the similarities and the differences between the Anglo-American law, on the one hand,
not have recourse to English or Continental criminal law on any matter because of the
and Jewish law, on the other?
barbarity and brutality with which these legal systems operated until about 140 years ago.
3. In his opinion, Justice Sussman used the following argument to reject the application of Jewish Raising such an irrelevant argument solely with respect to Jewish law indicates that emotional
law in Afanjar:
factors which, with all respect, are not understood by those who are prey to them are strongly
I also venture to doubt whether the application of Jewish criminal law would really be at work.
acceptable to the Israeli public. For example, would the Israeli public be ready, in 1979, on Inapposite arguments or rather emotional reactions, like the one just discussed, are very
the basis of the rules of Jewish law, to put an adulterous woman to death by stoning, or, rarely raised, although they do appear from time to time. A different type of argument is
if she was a daughter of a kohen, by burning? more frequent. As has been seen, Justice Sussman, in his opinion in the Afanjar case, began
Do these harsh words of Justice Sussman make sense? Isn't it true that every legal system — with words of praise for Jewish law as "a valuable cultural asset of our people" from which
including those of England and the United States — constantly evolves, so that punishments which we may "draw inspiration." Similar words of affection and esteem are showered on Jewish
at one time were considered appropriate may now be considered unacceptable, or even barbaric? law by many others who praise its wisdom, culture, justice, and morality. Their words,
Does this mean that we must totally disregard all that a legal system has to say about a certain however, are only lip service not translated into action in any form or manner. Jewish law
subject, just because we find some of the punishments prescribed to be inappropriate under present-
37 TB Ketubbot 30a/b.
day conditions? In this connection, Justice Elon had the following to say in Jewish Law, at 1925-27:
38 See I Radzinowich, A History of English Criminal Law and its Administration from 1750, at 3-227 (1948); 11
It is extremely difficult to understand the pertinence of these last remarks. What possible Holdsworth, A History of English Law, at 556-86; 15 id. at 163-67.
relevance can punishment of an adulterous woman have to the question of the right to come 39 The interested reader may find the gory details in the sources cited supra. See also Manby v. Scott, 1 Mod. 124,
to the defense of another person? The first argument of Justice Sussman — that since the 132, 86 Eng. Rep. 781, 786 (Exch. 1663) (stating that prison authorities were not obligated to provide even minimal
P"nc'P'e of self"defense in Israeli criminal law is not derived from Jewish law, the principle food to a person imprisoned for failure to pay a debt; rather, "let him die in the name of God, says the law; and so
say I"). This language was quoted in State of Israel v. Tamir, 37(iii) P.D. 201, 208 (1983).
should be interpreted not in accordance with Jewish law but in accordance with the law from
40 See 1 Radzinowich, supra, at 12ff.
which it was derived — is understandable, although, it is submitted, unsound . . . . In
41 See 11 Holdsworth, supra, at 580-81.
 238 • SELECTED TOPICS IN JEWISH LAW CH. 15 CH. 15 CRIMINAL LAW • 239

finds no place in their judgments, either as a primary source of guidance or even as a source obligation existed only in particular circumstances where the duty arose because of some special
of illumination on a par with others. Pronouncements and practice bear no relation to each relationship between the rescuer and the person rescued. Such relationships include: a parent and
other; Jewish law is commended but not consulted. Why should this be? his child (Capacity and Guardianship Law, 1962); a firefighter and someone in need of assistance,
to whose call the firefighter is required to respond (Firefighters Law, 1959); and a driver and
THE "DO NOT STAND IDLY BY THE BLOOD OF YOUR FELLOW" LAW, 1998 an accident victim the driver sees while driving (Traffic Regulations, 1961, reg. 144(a)(2), 146(a)).
The Obligation To Rescue and Offer Assistance In circumstances where such relationships and their attendant obligations exist, it was felt that
the rescuer need not be reimbursed for his expenses. However, with the enactment in 1998 of
1. (a) Everyone is required to offer assistance to a person whose life or health he observes, the "Do Not Stand Idly by the Blood of Your Fellow" Law, this requirement to rescue became
as a result of a sudden occurrence, to be in severe and immediate danger, if he is able to a general obligation incumbent on everyone, and it was therefore necessary to specify that the
offer such assistance without endangering himself or others.
provisions for reimbursement of expenses found in the 1979 law do apply to one who undertakes
(b) One who informs the authorities or summons another person who can provide the to fulfill the more general obligations under the new law.
required assistance shall be considered, for purposes of this law, as having offered assistance.
3. The question of punishment for violation of this statute was troubling to the legislators. As
Authorities, as used in this paragraph, refers to the police, ambulance service, or fire
originally proposed in 1995, the bill provided for six months' imprisonment as a penalty for its
department.
violation. Apparently, many legislators believed that this penalty was too harsh, and the law, as
Reimbursement for Expenses and Damages
finally enacted, prescribed only a fine.
2. (a) The provisions of Section 5 of the Unjust Enrichment Law, 1978, shall also apply when
the rescuer has acted in accordance with his obligations pursuant to Section 1 [of the "Do BUCH v. AMORY MFG. CO.
Not Stand Idly by the Blood of Your Fellow" Law, 1998].
Supreme Court of New Hampshire
(b) The court may require the party who caused the danger to the person rescued —
including the person rescued, if that person caused the danger — to reimburse the rescuer 69 N.H. 257, 44 A. 809 (1898)
who has acted in accordance with his obligations pursuant to Section 1 for the reasonable
expenses and damages that the rescuer has incurred. Carpenter, CJ. [The plaintiff, an eight-year-old boy, who was found to be a trespasser in
defendant's factory, was injured when he caught his hand in the gearing of the machine. The
defendants were found not liable for the resulting injury.] . . .
4. Whoever violates the provisions of Section 1 of this law is subject to a fine.
Assuming, then, that the plaintiff was incapable either of appreciating the danger or of exercising
NOTES the care necessary to avoid it, is he, upon the facts stated, entitled to recover? He was a trespasser
in a place dangerous to children of his age. In the conduct of their business and management
1. This statute, which fully codifies in Israeli law the position of Jewish law on the duty to of their machinery the defendants were without fault. The only negligence charged upon, or
rescue, is unique in that its title is taken directly from a Biblical verse (Leviticus 19:16). The attributed to, them is that, inasmuch as they could not make the plaintiff understand a command
Explanatory Notes accompanying the original bill introduced in 1995 provided: to leave the premises, and ought to have known that they could not, they did not forcibly eject
The purpose of the bill is to embody in Israeli legislation the moral and social value set him. Actionable negligence is the neglect of a legal duty. The defendants are not liable unless
forth in the Torah (Leviticus 19:16) that imposes an obligation on every person to assist in they owed to the plaintiff a legal duty which they neglected to perform. With purely moral
saving the life of another. obligations the law does not deal. For example, the priest and Levite who passed by on the other
2. Section 5 of the Unjust Enrichment Law, 1978, provides: side were not, it is supposed, liable at law for the continued suffering of the man who fell among
thieves, which they might, and morally ought to have, prevented or relieved. Suppose A, standing
One who reasonably and in good faith acts to protect the life, bodily integrity, health, close by a railroad, sees a two-year-old babe on the track, and a car approaching. A can easily
dignity, or property of another person without being legally required to do so, and in so doing rescue the child, with entire safety to himself, and the instincts of humanity require him to do
incurs expenses or becomes obligated to pay expenses, shall be reimbursed by the person so. If A does not, he may, perhaps, justly be styled a ruthless savage and a moral monster; but
benefited for his reasonable expenses, including his obligations to a third person. If, in the A is not liable in damages for the child's injury, or indictable under the statute for the child's
course of the rescue, the rescuer incurs property damage, the court may require the person death.... "In dealing with cases which involve injuries to children, courts * * * have sometimes
benefited to pay the damages if it believes that, under the particular circumstances, justice
strangely confounded legal obligation with sentiments that are independent of law. . . . It is
so requires.
important to bear in mind, in actions for injuries to children, a very simple and fundamental fact,
By its terms, the 1978 Unjust Enrichment Law did not apply in situations in which the rescuer which in this class of cases is sometimes strangely lost sight of, viz. that no action arises without
was obligated to effect the rescue. That was because under the law as it then existed, such an a breach of duty." . . .
 240 • SELECTED TOPICS IN JEWISH LAW CH. 15 CH. 15 CRIMINAL LAW • 241

What duties do the owners owe to a trespasser upon their premises? They may eject him, using Breitel, Justice:
such force, and such only, as is necessary for the purpose. They are bound to abstain from any The question is whether one is criminally liable for assault in the third degree if he goes to
other or further intentional or negligent acts of personal violence — bound to inflict upon him,
the aid of another who he mistakenly, but reasonably, believes is being unlawfully beaten, and
by means of their own active intervention, no injury which by due care they can avoid. They
thereby injures one of the apparent assaulters. In truth, the seeming victim was being lawfully
are not bound to warn him against hidden or secret dangers arising from the condition of the
arrested by two police officers in plain clothes. Defendant stands convicted of such a criminal
premises . . ., or to protect him against any injury that may arise from his own acts or those
assault, for which he received a sentence of 60 days in the workhouse, the execution of such
of other persons. In short, if they do nothing, let him entirely alone, in no manner interfere with
sentence being suspended.
him, he can have no cause of action against them for any injury that he may receive. On the
contrary, he is liable to them for any damage that he, by his unlawful meddling, may cause them Defendant, aged 40, regularly employed, and with a clean record except for an $8 fine in
or their property. What greater or other legal obligation was cast on these defendants by the connection with a disorderly conduct charge 19 years before in Birmingham, Alabama, observed
circumstance that the plaintiff was (as is assumed) an irresponsible infant? If landowners are not two middle-aged men beating and struggling with a youth of 18. This was at 3:40 p.m. on October
bound to warn an adult trespasser of hidden dangers — dangers which he, by ordinary care, cannot 17, 1958 in front of 64 West 64th Street in Manhattan. Defendant was acquainted with none of
discover, and therefore cannot avoid — on what ground can it be claimed that they must warn the persons involved; but believing that the youth was being unlawfully assaulted, and this is not
an infant of open and visible dangers, which he is unable to appreciate? No legal distinction is disputed by the other participants, defendant went to his rescue, pulling on or punching at the
perceived between the duties of the owners in one case and the other. The situation of the adult seeming assailants. In the ensuing affray one of the older men got his leg locked with that of
in front of secret dangers which by no degree of care he can discover, and that of the infant defendant and when defendant fell the man's leg was broken at the kneecap. The injured man
incapable of comprehending danger, is, in a legal aspect, exactly the same. There is no apparent then pulled out a revolver, announced to defendant that he was a police officer, and that defendant
reason for holding that any greater or other duty rests upon the owners in one case than in the was under arrest. It appears that the youth in question had played some part in a street incident
other. which resulted in the two men, who were detectives in plain clothes, seeking to arrest him for
There is a wide difference — a broad gulf — both in reason and in law, between causing and disorderly conduct. The youth had resisted, and it was in the midst of this resistance that defendant
preventing an injury; between doing, by negligence or otherwise, a wrong to one's neighbor and came upon the scene.
preventing him from injuring himself; between protecting him against injury by another, and At the trial the defendant testified that he had known nothing about what had happened before
guarding him from injury that may accrue to him from the condition of the premises which he he came upon the scene; that he had gone to his aid because the youth was crying and trying
has unlawfully invaded. The duty to do no wrong is a legal duty. The duty to protect against to pull away from the middle-aged men; and that the older men had almost pulled the trousers
wrong is, generally speaking, and excepting certain intimate relations in the nature of a trust, a off the youth. The only detective who testified stated, in response to a question from the court,
moral obligation only, not recognized or enforced by law. Is a spectator liable if he sees an that defendant did not know and had no way of knowing, so far as he knew, that they were police
intelhgent man or an unintelligent infant running into danger, and does not warn or forcibly restrain officers or that they were making an arrest.
him? What difference does it make whether the danger is on another's land, or upon his own, Two things are to be kept sharply in mind in considering the problem at hand. The first is that
in case the man or infant is not there by his express or implied invitation? If A sees an eight-year-old all that is involved here is a criminal prosecution for simple assault . . ., and that the court is
boy beginning to climb into his garden over a wall stuck with spikes, and does not warn him not concerned with the incidence of civil liability in the law of torts as a result of what happened
or drive him off, is he liable in damages if the boy meets with injury from the spikes? . . . I on the street. Second, there is not here involved any question of criminal responsibility for
see my neighbor's two-year-old babe in dangerous proximity to the machinery of his windmill interfering with an arrest where it is known to the actor that police officers are making an arrest,
in his yard, and easily might, but do not, rescue him. I am not liable in damages to the child
but he mistakenly believes that the arrest is unlawful.
or his injuries, nor, if the child is killed, punishable for manslaughter by the common law or
under the statute . because the child and I are strangers and I am under no legal duty to protect
im. Now, suppose I see the same child trespassing in my own yard, and meddling in like manner In this State there are no discoverable precedents involving mistake of fact when one intervenes
with dangerous machinery of my own windmill. What additional obligation is cast upon me by on behalf of another person and the prosecution has been for assault, rather than homicide. . . .
reason of the child s trespass? The mere fact that the child is unable to take care of himself does There have been precedents elsewhere among the states .... There is a split among the cases
not impose on me the legal duty of protecting him in the one case more than in the other. . . . and in the jurisdictions. Most hold that the rescuer intervenes at his own peril . . ., but others
. . . Verdict set aside. Judgment for the defendants. hold that he is excused if he acts under mistaken but reasonable belief that he is protecting a
victim from unlawful attack . . . .
PEOPLE v. YOUNG
The modern view ... is not to impose criminal responsibility in connection with intent crimes
Supreme Court, Appellate Division, First Department for those who act with good motivation, in mistaken but reasonable misapprehension of the facts.
Indeed, Prosser would not even hold such a person responsible in tort ... . He makes the added
12 A.D.2d 262, 210 N.Y.S.2d 358 (1961) argument that "if an honest mistake is to relieve the defendant of liability when he thinks that
 242 • SELECTED TOPICS IN JEWISH LAW CH. 15 CH. 15 CRIMINAL LAW • 243

he must defend himself, his meritorious defense of another should receive the same consideration." good man has ingrained. Again, it is to be noted, in a criminal proceeding one is concerned with
the act against society, not with the wrong between individuals and the right to reparation, which
More recently in the field of criminal law the American Law Institute in drafting a model penal is the province of tort.
code has concerned itself with the question in this case. Under Section 3.05 of the Model Penal Accordingly, the judgment of conviction should be reversed, on the law, and the information
Code the use of force for the protection of others is excused if the actor behaves under a mistaken dismissed.
belief (Model Penal Code, Tent. Draft No. 8, May 9, 1958).
Judgment of conviction reversed upon the law and the information dismissed. All concur except
The comments by the reporters on the Model Penal Code are quite appropriate. After stating Valente and Eager, J J., who dissent and vote to affirm in a dissenting opinion by Valente, J. Order
that the defense of strangers should be assimilated to the defense of oneself the following is said: filed.
In support of such a ruling, it may perhaps be said that the potentiality for deterring the actor Valente, Justice (dissenting):
from the use of force is greater where he is protecting a stranger than where he is protecting
himself or a loved one, because in the former case the interest protected is of relatively less
importance to him; moreover the potential incidence of mistake in estimating fault or the I dissent and would affirm the conviction because the intent to commit a battery was
need for action on his part is increased where the defendant is protecting a stranger, because unquestionably proven; and, since there was no relationship between defendant and the person
whom the police officers were arresting, defendant acted at his peril in intervening and striking
in such circumstances he is less likely to know which party to the quarrel is in the right.
the officer. Under well-established law, defendant's rights were no greater than those of the person
These arguments may be said to lead to the conclusion that, in order to minimize the area
whom he sought to protect; and since the arrest was lawful, defendant was no more privileged
for error or mistake, the defendant should act at his peril when he is protecting a stranger.
This emasculates the privilege of protection of much of its content, introducing a liability to assault the police officer than the person being arrested.
without fault which is indefensible in principle. The cautious potential actor who knows the
law will, in the vast majority of cases, refrain from acting at all. The result may well be There is evidently no New York law on the precise issue on this appeal. However, certain of
that an innocent person is injured without receiving assistance from bystanders. It seems far our statutes point to the proper direction for solution of the problem. Section 42 of the Penal Law
preferable, therefore, to predicate the justification upon the actor's belief, safeguarding if provides:
thought necessary against abuse of the privilege by the imposition of a requirement of proper
An act, otherwise criminal, is justifiable when it is done to protect the person committing
care in evolving the belief. Here, as elsewhere, the latter problem is dealt with by the general
it, or another whom he is bound to protect, from inevitable and irreparable personal injury
provision in Section 3.09 . . . .
* * *
Apart from history, precedents, and the language distinctions that may be found in the statutes,
Similarly, Section 246, so far as here pertinent, provides:
it stands to reason that a man should not be punished criminally for an intent crime unless he,
indeed, has the intent. Where a mistake of relevant facts is involved the premises for such intent To use or attempt, or offer to use, force or violence upon or towards the person of another
are absent. True, there are occasions in public policy and its implementation for dispensing with is not unlawful in the following cases:
intent and making one responsible for one's act even without immediate or intentional fault. This • • •
is generally accomplished by statute, and generally by statute which expressly dispenses with the
presence of intent. Thus, it may well be that a Legislature determine that in order to protect the 3. When committed either by the party about to be injured or by another person in his
police in their activities and to make it difficult to promote false defenses one may proceed against aid or defense, in preventing or attempting to prevent an offense against his person, or
a police officer while acting in the line of duty only at one's peril, as do the English .... But a trespass or other unlawful interference with real or personal property in his lawful
this is not a part of the intent crime of assault as it existed under common law or as it exists possession, if the force or violence used is not more than sufficient to prevent such offense.
today under the statutes.
These statutes represent the public policy of this State regarding the areas in which an assault
will be excused or rendered "not unlawful" where one goes to the assistance of another. They
It is a sterile and desolate legal system that would exact punishment for an intentional assault include only those cases in which the other person is one whom the defendant "is bound to protect ^
from one like this defendant, who acted from the most commendable motives and without excessive (Section 42) or where the defendant is "preventing or attempting to prevent an offense against
force. Had the facts been as he thought them, he would have been a hero and not condemned such other person (Section 246). Neither statute applies to the instant case since the other person
as a criminal actor. The dearth of applicable precedents — as distinguished from theoretical herein was unlawfully resisting a legal arrest — and hence no offense was being committed against
generalizations never, or rarely, applied — in England and in most of the states demonstrates that his person by the officer — and he was not an individual whom defendant was "bound to protect.
the benevolent intervenor has not been cast as a pariah. It is no answer to say that the policeman It has been held in other states that one who goes to the aid of a third person acts at his peril,
should be called when one sees an injustice. Even in the most populous centers, policemen are and his rights to interfere do not exceed the rights of the person whom he seeks to protect. . .
not that common or that available. Also, it ignores the preemptory response to injustice that the We need not consider to what extent that rule is modified by Section 42 of the Penal Law since
 244 • SELECTED TOPICS IN JEWISH LAW CH. 15 CH. 15 CRIMINAL LAW • 245

there is no question here but that the person being arrested was not in any special relation to policy of law in most jurisdictions that the right of a person to defend another ordinarily should
defendant so that he was a person whom defendant was "bound to protect." It follows then that not be greater than such person's right to defend himself. Whatever may be the public policy
there being no right on the part of the person, to whose aid defendant came, to assault the officer where the felony charged requires proof of a specific intent and the issue is justifiable homicide
— the arrest being legal — defendant had no greater right or privilege to assault the officer. . ., it is not relevant in a prosecution for assault in the third degree where it is only necessary
The conclusion that defendant was properly convicted in this case comports with sound public to show that the defendant knowingly struck a blow.
policy. It would be a dangerous precedent for courts to announce that plain-clothes police officers In this case there can be no doubt that the defendant intended to assault the police officer in
attempting lawful arrests over wrongful resistance are subject to violent interference by strangers civilian dress. The resulting assault was forceful. Hence motive or mistake of fact is of no
ignorant of the facts, who may attack the officers with impunity so long as their ignorance forms significance as the defendant was not charged with a crime requiring such intent or knowledge.
a reasonable basis for a snap judgment of the situation unfavorable to the officers. Although the To be guilty of third degree assault, "It is sufficient that the defendant voluntarily intended to
actions of such a defendant, who acts on appearances, may eliminate the specific intent required commit the unlawful act of touching" .... Since in these circumstances the aggression was
to convict him of a felony assault, it should not exculpate him from the act of aggressive assistance inexcusable the defendant was properly convicted.
to a law breaker in the process of wrongfully resisting a proper arrest. [Judges Froessel and Van Voorhis dissented].
I do not detract from the majority's views regarding commendation of the acts of a good
Samaritan, although it may be difficult in some cases to distinguish such activities from those NEW YORK PENAL LAW, § 35.15(1)
of an officious intermeddler. But opposed to the encouragement of the "benevolent intervenor"
(as amended, Laws of 1968, Ch. 73)
is the conflicting and more compelling interest of protection of police officers. In a city like New
York, where it becomes necessary to utilize the services of a great number of plain-clothes officers, A person . . . may use physical force upon another person when and to the extent he reasonably
the efficacy of their continuing struggle against crime should not be impaired by the possibility believes such to be necessary to defend himself or a third person from what he reasonably believes
of interference by citizens who may be acting from commendable motives. It is more desirable to be the use or imminent use of unlawful physical force by such other person, unless.
and evidently up to this point the Legislature has so deemed it — that in such cases the
(a) The latter's conduct was provoked by the actor himself with intent to cause physical injury
intervening citizen be held to act at his peril when he assaults a stranger, who unknown to him
is a police officer legally performing his duty. In this conflict of interests, the balance preponderates to another person; or
in favor of the protection of the police rather than the misguided intervenor. (b) The actor was the initial aggressor; except that in such case his use of physical force is
nevertheless justifiable if he has withdrawn from the encounter and effectively communicated such
withdrawal to such other person but the latter persists in continuing the incident by the use or
Eager, J., concurs.
threatened imminent use of unlawful physical force; or
PEOPLE v. YOUNG (c) The physical force involved is the product of a combat by agreement not specifically
authorized by law.
New York Court of Appeals
NOTES
11 N.Y.2d 274, 229 N.Y.S.2d 1, 183 N.E.2d 319 (1962)
1. The doctrine of the Good Samaritan, as it is known in the modern legal literature, is a
PER CURIAM: controversial subject replete with elements of ethics, justice, law, and social policy, and has
Whether one, who in good faith aggressively intervenes in a struggle between another person and implications for both tort law and penal law. It appears that Jewish law takes the clearest and
a police officer in civilian dress attempting to effect the lawful arrest of the third person may most extreme position in favor of a duty of civic involvement.
be properly convicted of assault in the third degree is a question of first impression here. On the other hand, the Buch v. Amory case articulates the contrary doctrine in a particularly
The opinions in the court below in the absence of precedents in this State carefully expound sharp, concise fashion that reflects the classic approach of the common law to the issue. The basic
the opposing views found in other jurisdictions. The majority in the Appellate Division have conception at common law, which viewed the duty to come to the aid of one's fellow-man as
adopted the minority rule in the other States, that one who intervenes in a struggle between strangers merely an ethical obligation, led to some extreme results in the case law.
under the mistaken but reasonable belief that he is protecting another who he assumes is being For instance, in Osterlind v. Hill, 263 Mass. 73, 160 N.E. 301 (1928), one who rented out boats
unlawfully beaten is thereby exonerated from criminal liability .... The weight of authority holds and canoes, but who paid no heed to extensive cries for help by the renter of a canoe who was
with the dissenters below that one who goes to the aid of a third person does so at his own peril drowning, was sued in tort. The court held that the defendant had not violated any law, inasmuch
as he had no legal duty to save a person to whom he had rented a canoe.
While the doctrine espoused by the majority of the court below may have support in some States, Further, in Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959), the defendant was alleged to
we feel that such a policy would not be conducive to an orderly society. We agree with the settled have enticed the decedent to dive into a water-filled cut, where he drowned. The court held that
 CRIMINAL LAW • 247
246 • SELECTED TOPICS IN JEWISH LAW CH. 15 CH. 15

the fact that the defendant failed to assist the decedent during the decedent's distress did not form All those subject to the penalty of excision who have been flogged are thereby absolved from
the basis for a cause of action, since the defendant was not "legally responsible, in whole or in excision, as it is said: "Lest your brother be degraded in your eyes" (Deuteronomy 25:3) — once
part, for placing [decedent] in the perilous position." 397 Pa. at 322, 155 A.2d at 346. Critics he has been flogged, he is to be considered as your brother."
of this position maintained that it actually encourages apathy toward others in moments of peril.
M MAKKOT 2:8
On March 13, 1964, the "Good Samaritan" issue gained widespread notoriety with the infamous
Kitty Genovese murder, where a young New Yorker was murdered after her cries for help as [A manslayer who has been exiled to a city of refuge and returns from his exile after the death
she struggled to flee from her attacker fell on the deaf ears of all her neighbors. The legal of the High Priest] may return to the position in which he previously served — this is the view
community debated the implications of the Genovese affair, and the view was expressed that the of R. Meir. R. Judah says: He does not return to the position in which he previously served.
Anglo-American position had at least indirectly caused persons to remain on the sidelines rather
than intervene as Good Samaritans. TB GITTIN 55a

The various positions on this topic were discussed at length at a symposium entitled "Conference The Rabbis taught: If one stole a beam and incorporated it into a palace, the School of Shammai
on the Good Samaritan and the Bad — The Law and Morality of Volunteering in Situations of says that he must demolish the entire palace and restore the beam to its owner, but the School
Peril, or of Failing to Do So," held in 1965 at the University of Chicago. The papers presented of Hillel says that [the owner] can claim only the value of the beam, so as to encourage penitents
at that conference were published in 1966 in a volume, edited by James M. Ratcliffe, entitled (mi-penei takkanat ha-shavim).
'The Good Samaritan and the Law: The Morality — and the Problems — of Aiding Those in
Peril." Despite the widespread moral condemnation of the action (or lack thereof) of the bystanders CARMI v. STATE'S ATTORNEY
in the Genovese case, there seemed to be universal agreement that they did not violate any legal
Supreme Court of Israel, 1990
duty by standing idly by and doing nothing to aid the victim of this terrible crime.
2. For further discussion of the duty to rescue and the law of the "Good Samaritan," see Porush, 44(i) P.D. 353
Hok, Mussar ve-ha-Shomroni ha-Tov [Law, Morals, and the Good Samaritan], in Lashon,
Mahshavah, Hevarah — Kovez Mukdash le-Zikhro shel Yehoshua Bar-Hillel [Language, Thought, Before Deputy President Elon and Justices Halima and Maltz
Society: A Collection in Memory of Yehoshua Bar-Hillel] 295 (1978); Ben-Porat, Ezrah le-Zulat
Judgment
[Assistance to One's Fellow], 7 Iyyunei Mishpat [Tel-Aviv University L. Rev.] 269 (1980); Ben
Shlomo, Ha-Hovah le-Ha^il Nefashot [The Duty to Save Lives], 39 Ha-Praklit 414 (1990); Yadin,
Deputy President Elon:
Al Dinei Pikuah Nefesh [On the Law of Danger to Life], 2 Mishpatim 252 (1970); Biggs, "The
1. Appellant was convicted of a criminal offense. As a result, the disciplinary court of the Israel
Good Samaritan is Packing": An Overview of the Broadened Duty to Aid Your Fellowman, with
Bar Association found appellant guilty of a disciplinary offense pursuant to Section 75 of the ar
the Modern Desire to Possess Concealed Weapons, 22 Dayton L. Rev. 225 (1997); Heyman,
Association Law, 1961, and imposed a suspension from membership in the Bar Association
Foundations of the Duty to Rescue, 47 Vand. L. Rev. 673 (1994). A detailed analysis of the nature
four years, pursuant to Section 68 of the law. Appellant appeals to us from this decision.
and extent of an "innocent bystander's" duty to rescue under Jewish law may be found in
Kirschenbaum, The "Good Samaritan" and Jewish Law, 1 Dine Israel 7 (1976). 2. The acts which led to appellant's criminal conviction are detailed in a decision of this court

3. The refusal to recognize a legal duty to save another may also bring in its wake a refusal
to recognize a right to use force to defend others. The limits of self-defense was the central issue A decedent bequeathed to her nephew and niece certain sums of money which were in a bank
in People v. Young, which went all the way through the court system of New York and eventually account in the Bank Leumi le-Yisra'el. At that time, the beneficiaries were citizens ^d residents
led to the enactment of a statute amending the New York law. of Romania. Under Romanian law, the beneficiaries were obligated to transfer the funds to
Romanian Finance Ministry through a Romanian bank, and were entitled to receive the equivalent
4. Compare Afanjar with the decision in the Young case. Is the dispute between Justices Elon value in local currency. Appellant was employed by the Romanian government to deal with he
and Asher identical to the disagreement between the majority and minority opinions in Youngl funds, and they gave him an irrevocable power of attorney from the beneficiaries to transfer the
How would the court in the Afanjar case, following its rationale there, have ruled on the facts funds to Romania. Nevertheless, the beneficiaries informed appellant, through visitors to Israel,
of Youngl Could the Court of Appeals in the Young case have reached the same result on the that they wished the funds to remain in Israel. Appellant was presented with a dilemma, since
basis of different reasoning? How would the Afanjar case have been decided if the "Do Not Stand the regulations of the Romanian government contravened the wishes of the beneficiaries. The Israeli
Idly by the Blood of Your Fellow" Law, 1998, had been enacted before the events in that case Finance Ministry objected to the transfer of foreign currency to Romania, and required dial th
took place?
funds be converted to Israeli lirot. On March 2, 1972, appellant opened a bank account in he
§ 15.03 Rehabilitation names of the beneficiaries and deposited in the account the funds of the estate, after converting
them to Israeli lirot. On the same day, he withdrew from this new account most of the funds,
M MAKKOT 3:15 deposited them in his personal account, and used them for his personal needs.
 248 • SELECTED TOPICS IN JEWISH LAW CH. 15 CH. 15 CRIMINAL LAW • 249

Subsequently, the beneficiaries came to Israel and requested their funds from appellant. After assistance to the criminal offender in achieving repentance and rehabilitation. On this point,
their requests went unanswered, they brought a civil suit against appellant, and also filed a the Explanatory Notes to the bill stated:
complaint against him with the police. The civil suit was settled. Many citizens once convicted, however long ago and for whatever crime, major or minor,
3. As a result of the complaint, a criminal proceeding was brought against appellant, and he can neither obtain permits and licenses nor return to their occupations and take part in certain
was convicted by the district court of theft by an agent and forgery with aggravating circumstances work (e.g., as a member of the crew of an airplane or ship) and cannot even travel to certain
.... The court sentenced appellant to twelve months' imprisonment, with three months to be foreign countries .... The basic principle upon which this bill rests is that, with certain
served and the remainder suspended, and fined him 9,600 shekels. Appellant's appeal to this court exceptions, one should not be stigmatized all one's life because of a transgression but should
was successful in part, and his conviction of forgery was reversed. The sentence of the district be given the opportunity to turn over a new leaf; rehabilitation and full integration into society
court remained unchanged. should be encouraged.
4. As a result of this decision, on February 28, 1983, the State's Attorney brought proceedings The bill adopts the approach of the Halakhah expressed in the Enactment for the
pursuant to Section 75 of the Bar Association Law, requesting that appellant be permanently Encouragement of Penitents (takkanat ha-shavim), first referred to in Mishnah Gittin 5:5,
disbarred, pursuant to Section 68(5) of the law. On December 25, 1983, the District Disciplinary and later extended to other legislative and judicial measures to facilitate the offender's
Court of the Bar Association ruled that appellant had been convicted of a criminal offense involving repentance and return to society. In this connection, Hai Gaon, the head of the yeshivah in
moral turpitude, and suspended him from the Bar Association for five years. Both appellant's Pumbedita approximately a thousand years ago, wrote in one of his responsa:
appeal of the decision and the State's Attorney's appeal of the leniency of the sentence were The law is clear that nothing can stand in the way of repentance; God forgives every penitent
rejected by the National Disciplinary Court, but .... the suspension was reduced to four years, who He knows has regretted his ugly deeds and has resolved not to commit them again.
in consideration of the fact that appellant had spent a year defending himself against the disciplinary Although human beings do not know what is hidden but only that which has been openly
proceedings. revealed, if a long period of time has passed and the offender has given no indication of
5. The decision of the National Disciplinary Court was issued on July 18, 1984. After more covert or overt impropriety, and it is truly believed that he has repented, he is to be
than a year, on September 24, 1985, the President of Israel — pursuant to Section 18 of the Crime welcomed back in good standing.
Register and Rehabilitation of Offenders Law, 1981 — commuted the length of the limitations On the other hand — and this too is consistent with halakhic principles — the bill includes
period relating to the conviction of appellant, so that it ended on June 1, 1985. a number of limitations on the right of the offender to confidentiality of information
[Appellant argued, inter alia, that inasmuch as the limitations period with respect to his concerning his crimes. These limitations are based on considerations such as the seriousness
conviction now ended on June 1, 1985, he could no longer be subject to disciplinary sanctions. of the offense, whether the information is needed to assess fitness for a position whose
occupant should exemplify high personal standards, and whether confidence in a person
The following excerpt from the court's opinion deals with this argument, as well as with the
occupying a position of trust would be impaired by reason of the crime.
general subject of the Crime Register and Rehabilitation of Offenders Law, 1981, and its basis
in Jewish law:] This important principle of the rehabilitation of offenders ... by resuming participation in
society as an equal, has not yet been realized in most contemporary legal systems — even the
The Crime Register and Rehabilitation of Offenders Law, 1981
most enlightened ones. Jurists and scholars have had much to say on this subject.43
In Jewish law, this principle is fundamental to penal law, and it is rooted in the world of Judaism
25. Before we deal with the substance of appellant's claims, it is appropriate for us to say a — in its thought and practice — from the earliest times. The instmctive words of Hai Gaon, quoted
few words on the nature of this law and the sources from which it was derived. We have had above,44 have been condensed to a short phrase which perfectly expresses the ideal of rehabilita­
the following to say on this subject:42 tion: "Once he has been flogged, he is to be considered as your brother."45 This expression was
Another interesting example of a statute adopting the basic content of Jewish law, this time derived by the Sages from the verse in Deuteronomy 25:3: "[He (a guilty party sentenced to
in the area of criminal law, is the Crime Register and Rehabilitation of Offenders Law, 1981. flogging) may be given up to forty lashes, but not more] lest [being flogged further, to excess,
This statute regulates the recording of convictions, sentences, and other dispositions of criminal your brother be degraded in your eyes." We similarly learn in Sifrei:** "R. Hananiah b. Gamaliel
cases, and the procedures for disclosing such information. In addition, the statute includes •3 See Feller, Ha-Rehabilitazyah, Mosad Mishpati Meyuhad Mehuyav ha-Mezi'ut [Rehabilitation: A Particularly
provisions having "a social purpose of encouraging rehabilitation of penitents" by making it Indispensable Legal Institution], 1 Mishpatim 497 (1969); Living it Down: The Problem of Old Convictions The
possible to prevent the disclosure of information about prior convictions and to expunge criminal Report of a Committee Set Up by Justice, The Howard League for Penal Reform, The NaUonaJ Associat^n for the
records after the expiration of certain prescribed periods. This possibility of expungement, "as Care and Resettlement of Offenders 36-38, 44-46 (1970); Annulment of a Conviction of Crime, A Model Act, National
if the conviction had never occurred," is based on the Jewish concept of repentance (teshuvah), Council on Crime and Delinquency, 8 Crime and Delinquency 97 (1962).
*4 They are quoted in Kol Bo (a thirteenth- or fourteenth-century work which compiles laws and responsa), at 100.
as indicated in the Hebrew title of the statute, Takkanat ha-Shavim, a halakhic term connoting
*3 m Makkot 3:15.
42 Elon, Jewish Law, at 1707-08. 46 sifrei, Deuteronomy, Ki Te?e, sec. 286 (ed. Finkelstein, at 304).
 250 • SELECTED TOPICS IN JEWISH LAW CRIMINAL LAW • 251
CH. 15 CH. 15

says: 'All day long, the Torah refers to him as "a wicked person," as it is stated: "If the wicked the offender may not serve in such a position, even if he has served his sentence and repented.
one is to be flogged."47 However, once he has been flogged, the Torah refers to him as "your Therefore,
brother," as it is stated: "Lest your brother be degraded."' " whoever sins and has been flogged returns to his state of propriety, as it is stated: "Lest your
Based on this important principle, Jewish law established a series of laws whose purpose is brother be degraded in your eyes" — once he has been flogged, he is to be considered as
to rehabilitate offenders who have borne their punishment and to safeguard their rights as a person, your brother . . . .
brother, and neighbor .... The far-reaching effect of the Enactment for the Encouragement of If a High Priest sins, he is flogged ... in the same manner as any other person, and he
Penitents (takkanat ha-shavim) can be seen from the Mishnah in Gittin 5:5, mentioned in the [subsequently] may return to his high position.
Explanatory Notes to the bill which became the Crime Register and Rehabilitation of Offenders But if the head of the academy [i.e., the President (nasi) of the Sanhedrin] sins ... he does
Law, 1981, and from which the expression takkanat ha-shavim, which forms a part of the Hebrew not return to his position, and cannot even resume a position as an ordinary member ol the
title of the law, was taken. This mishnah quotes the testimony of the tanna R. Johanan b. Gudgada
Sanhedrin.52
(who lived at the end of the second century) concerning "a stolen beam that was incorporated
The same applies with regard to the crime of killing a person. In the Mishnah, the Sages disagree
into a palace; [in such a case, the owner may be compelled to] accept monetary compensation
as to the status of the prisoner who has been exiled to the cities of refuge, after he returns from
[rather than the return of the actual beam], so as to encourage penitents." In other words . . .,
he is not required to demolish his house in order to restore the beam to his neighbor; rather, it his exile, having served his sentence:53
is sufficient if he restores its monetary value. Why is this so? "For if you require him to demolish He may return to the position in which he previously served — this is the view of R. Meir.
the building and to return the beam itself, he will not repent."48 This enactment, which accords R. Judah says: He does not return to the position in which he previously served.
with the view of the School of Hillel, became the accepted law, and the opposing view of the The law has been settled in accordance with the view of R. Judah:54
School of Shammai — that "he must demolish the entire palace and restore the beam to its owner"
A manslayer who returns to his city after the death of the High Priest is to be treated in
— was rejected.
the same manner as any other person . ... for his exile has atoned for his cnme^Even though
The power of repentance, which rehabilitates the offender, erases the past, and opens a new his crime has been atoned for, he can never return to the position in which he previous y
page in his life, is set forth in the Torah, repeated in the Prophets and the Hagiographa, and served; rather, for his entire life he is removed from his high position, since it was throug
expressed in the ethical sayings and rules of the Sages. The "Great Eagle," Maimonides, devoted him that this great misfortune came about.
a separate section of his work Mishneh Torah to the topic of repentance.
The comments of Yom Tov Ishbili (known by the acronym Ritba), a great Spanish fourteenth-
"How great is the virtue of repentance!"49 Not only does the transgressor thereby erase the century halakhic authority, on this difference of opinion are interesting:58
stain of his transgression, but once he has atoned for his offense, repented from his transgressions,
Perhaps R. Judah disagreed only in the case of a murderer, or one who was sold and became
and mended his ways, he has earned a special status in society by means of his own willpower:
a servant to others, for these involve very serious and despicable crimes. But when other
A person who repents should not imagine that he is far-removed from the virtues of righteous crimes are involved, whoever has completely repented may be appointed — even in the firs
persons because of the sins and transgressions he has committed. That is not the case; rather, instance - to any appropriate position and, needless to say, he may return to a position to
he is beloved by his Creator, who delights in him as if he never sinned. Moreover, his reward which he or his ancestors have an established claim. . . .
is great, for he experienced the taste of sin, yet he desisted from it, repressing his evil 26 This approach of Jewish law and these basic principles concerning the rehabilitation of an
inclinations. The Sages have said: "Those who are completely righteous cannot stand in the
offender served as a guiding light for the legislature in enacting the Crime Register and
place where those have repented stand." In other words, they [who have repented] are more
Rehabilitation of Offenders Law. It is appropriate to examine the legislative history of thls
virtuous than those who have never sinned, for they have repressed their evil inclinations — which is of central importance in the world of criminal punishment — which can shed light
to a greater extent.50
on what we have said so far.
The power of repentance is such that "one who yesterday was hated by the Holy One, blessed The Crime Register and Rehabilitation of Offenders Law is the "final version" of many bills
^ He and was considered a detestable outcast — is today beloved, a delight, near to Him, that preceded it. The first bill was introduced into the Knesset under the name of the Delinquency
and a friend."51
Registration Bill, 1970. During the Knesset debates on the bill Yaalcov Shimshon shaptra,
This is the rule, but there are exceptions. If we are dealing with an extremely serious offense, Minister of Justice, compared the principles set forth in the bill with the position of Jewish law
or a sensitive position which must be filled by one in whom a high level of trust may be reposed, . ;56

47 Deuteronomy 25:2.
52 MT, Sanhedrin 17:7-9.
48 Rashi, Gittin 55a, s.v. Mi-penei takkanat ha-shavim. 53 m Makkot 2:8.
49 Maimonides, MT, Teshuvah 7:7. 54 Maimonides, MT, Ro?e'ah u-Shemirat ha-Nefesh 7:13-14.
50 Maimonides, MT, Teshuvah 7:4, quoting TB Berakhot 34b. 55 Ritba to Makkot 13a.
51 Maimonides, MT, Teshuvah 7:6. 5« 59 Divrei ha-Knesset (DK) 31-32, 114 (1971).
252 • SELECTED TOPICS IN JEWISH LAW CH. 15 CRIMINAL LAW • 253
CH. 15

Under this theory, once an offender has accepted the punishment imposed on him by the is: " 'Lest your brother be degraded in your eyes' — once he has been flogged, he is to be
court and served his sentence, he is considered as "your brother," and the conviction should considered as your brother/'" With regard to those who have repented, it is forbidden even
be expunged. This is an extreme approach since, under this approach, a person who is released to remind them of their prior acts.61
from jail no longer has any conviction on his record — no matter how serious the offense
or how extensive the punishment.
Regarding their return to their prior position:
But Jewish law itself limits this line of thought .... There is a difference between an
If we are speaking of a case in which they were removed because of an offense [they
offender who has [merely] accepted his punishment and one who has both accepted his
committed], we are particularly strict in determining whether their repentance was truly sincere
punishment and repented. And there is a difference between the competence of a person
. . ., or whether they are merely deceiving the court in their desire to be restored to their
. . . to give testimony and his fitness to accept a public office .... A distinction can also
positions. It must become clear that they can be trusted in the future.62
be made between a minor crime and a serious crime. There is also an interesting distinction
. . . between two officeholders — the High Priest and the head of the Sanhedrin. The High There are cases in which even a combination of punishment and repentance does not suffice
Priest can return to his position once he has accepted his punishment. The rule is different to enable a person to return to his position. However, the examples that I will cite from the
in the case of the head of the Sanhedrin — a judge. If he commits an offense, he may not sources demonstrate that only in very extreme cases — based either on the nature of the
return to his position, even if he has accepted his punishment. crime or the type of position in which the offender served - will a combination of punishment
and repentance not suffice to restore a person to his prior position.
It is understood that the term "repent" (hozer bi-teshuvah) is a moral one. If we translate
it into modem legal language, ... the approximate meaning is: How will a person act after
completing his prison term — will he act properly and with integrity for a significant period, The reasons why the President of the Sanhedrin may not return to his position are:
or not? 1. The refusal to allow the person removed from office to return is for his own benefit,
for otherwise [i.e., if he returned] his colleagues would disparage him.63
Even in the Middle Ages, when philosophical matters were more deeply rooted in society, 2. We are concerned lest the person removed from office take revenge against those who
the great Jewish jurist Asheri, the Ashkenazic rabbi of Sephardic Jewry, stated that one must judged him.64
pay attention to how he behaves. That is how we will know whether or not he has repented
3. Radbaz, in his responsa,65 gives two reasons for this law:
. . . . It is not sufficient that he states that he has repented . . . .
a. If the occupant of such a prestigious position commits an offense, he causes a great
desecration of the name of God; and
In his statement, the Minister of Justice referred, inter alia, to this court's decision in Anonymous b The President must guide the public in the ways of righteousness, as is stated:
v. Attorney General,57 in which Justice Kister cited some of the Jewish law sources on the subject hilkcsheshu va-koshu« -adorn yourself first, and only afterwanis may you ^orn others^
dealt with by the bill. Justice Kister began:58
Thus, the law that he may not be restored to his position applies only to a President [of
For it is appropriate to draw assistance from the approach of Jewish law and the tradition the Sanhedrin], while with regard to others who have committed offenses it is stated,
of the Jewish people with regard to offenders, their disqualification from public service, and he has committed an offense regarding his position, we remove him from his position,
the conditions of their return to legal competence and to their positions. It is also appropriate so that a stumbling block not be placed in front of him, until it becomes clear that he has
to mention the current trends regarding the rehabilitation of offenders, and the trend toward fully repented."
expunging offenses after an established time period has passed without any [farther] offenses
having been committed.
The above-mentioned cases are exceptional ones from which we can derive the entire rule:
He continues his description of the position of Jewish law:59 We may not close the door in face of those who sincerely and truly repent. To the contrary,
When a person has committed an offense, served the sentence imposed on him, paid for the
damages, and fully repented — i.e., regretted his actions — and his behavior indicates, in 60 TB Makkot 23a
the view of the court, that his actions will improve even in the future, he should be welcomed 61 TB Bava Mc?i*a 58b. . conh„Hrin
•2 Sh. Ar. HM 34:33 (at and ofRcma's gloss) and 34:34; Be, Yosef to Tur HM 34. The pnmary source ,s TB Sanhednn
and not reminded of his prior acts. In general, he is again qualified to fill the position in
which he served during the period when he committed the offense. The guiding principle 25.
63 Kesef Mishneh to MT, Sanhedrin 17:8.
5722(i) P.D. 673 (1968). 64 penei Moshe to TJ Sanhedrin 2:1.
58 Id. at 676-77. 65 Resp. Radbaz, VI, #2078. b
59 Id. at 677-79. 66 Zephaniah 2:1. The literal meaning of the Hebrew verse is "gather yourselves together.
 254 • SELECTED TOPICS IN JEWISH LAW
CH. 15
CH. 15 CRIMINAL LAW • 255
in the absence of a weighty reason, we should enable them to return to their daily lives, to
their occupations, and even to their positions. In sum, when time comes for the courts to interpret this law, they will be required to resort,
in a particularly great measure, to what the Jewish legal system has to say on this important subject.
Several years later, the bill was reintroduced as the Crime Register Bill, 1975 Again the This obligation is particularly significant in light of the Foundations of Law Act, 1980, which
Minister of Justice, Hayyim Zadok, pointed to Jewish law as the source of the bill:
establishes the principles of the Jewish heritage ... as complementary legal sources to the Israeli
It is fitting to point out that one of the foundations of Jewish law — and of Judaism — legal system.
.s the concept that repentance makes it possible for a person to turn away from his evil deeds 27. Before turning to respondent's arguments in the case at bar, let us briefly review the statutory
and open a new page in his life, free from the stains of the past. [Nevertheless, Jewish law] scheme. This law deals with two disparate subjects — first, the criminal record itself, and, second,
does not adopt the concept that the past is completely erased. Rather, it retains limitations the establishment of limitations periods for criminal offenses and the effect of these limitations.
on the concept of repentance, which depend on the nature of the offense, the nature of the The first subject is technical and administrative in nature, while the second subject — limitations
position sought, and the extent of trust required in the position that the one who has repented — is substantive, with its purpose being to restore the prior legal and social status of the offender.68
seeks to fill. v

As to the first subject, Section 1(a) of the statute provides: "The police shall establish a crime
Alongside the general principles whose purpose is to encourage and assist the offender register." Section 2 sets forth the details to be included in the register, and Section 3 provides
to return to the nght path, there are instances in which the nature of the offense, the nature that "the register shall be privileged, and no information shall be transmitted from it except in
of the position or the extent of the trust required [for the position] force us to place limitations accordance with this statute." Additional provisions in the law establish which bodies may have
on the general rule that the offense may be forgotten. While the general rule in Jewish law access to the crime register, and to whom and for what purpose information from the register
is that it ,s forbidden to remind the offender of his offense, the prohibition against mentioning
may be transmitted.
the past does not apply in those instances where the fact that the offender committed an offense
retains significance. The second subject — limitations with regard to criminal offenses — is dealt with in two ways.
First, Section 14 provides for "limitation of the conviction," but this section has only limited
coi^lStatCd a",Kf th'S t0f emPhasize ,hese two Principles: First - The principle of significance. Section 16, which provides for "expungement of the conviction," has much more
LTwhtn nfT® P3St °?ne h3S repented- Proposed for inclusion in the statute, far-reaching consequences, since it provides for the rehabilitation of the criminal, except for certain
t fcnv slnnd P ^ °
am ng th ™ US ^ SyStemS' Even Jewish law does recognize matters.
lai^ hat I have ?e T"L r, y°U a<XOrds with the Principles of Jewish
Section 14(a) of the statute provides that no information may be transmitted pursuant to Sections
^w that 1 have mentioned above. On the one hand, it forbids one to use knowledge of a
6 through 9 if, since the date of the judgment or decision, the limitations period has expired. Section
- that n alni e"l eS!ablijhed ~ without of damage to the public interest
who h , Pf \ T " g'Ven conditions. the [criminal] past of an offender
19 sets forth the consequences of the expiration of the limitations period, including, inter alia,
the provision that "information about a crime whose limitations period has expired shall not be
use of^Dereon \c '° l" behaV'°r ^ "° signiflcance- 0n other hand, it permits
use of a person s cnminal record in cases where the protection of the public interest has greater taken into account by one who would have been entitled to receive it [the information] were it
not for the expiration of the limitations period" (emphasis added) — i.e., the bodies specified
o
ot u
thetZ rl Z
record et-M and
indefinitely 'fr not^
does
S"Ch ^ " « the refendon
require expungement. in Sections 6 through 9. This latter section also provides that there is no obligation to transmit
information about a conviction whose limitations period has expired to persons not authorized
to take such information into account. Thus, these provisions regarding the limitations period are
As stated, the law took final shape in 1981. This time, the law was given the name "Prime limited in scope; they apply only to the transmission of information from the register to those
'SI ° a f nderS "a™'" Whe" the of Mo X S
N bodies mentioned in Sections 6 through 9. It follows that the bodies that are authorized to receive
the information other than by means of those sections . . . are not prevented from receiving this
""""•w i "" information by reason of the expiration of the period of limitations with respect to the conviction.69
theWwhLriaCk °f kn°wledge f a P^50"'5 criminal past is likely to result in great damage, By contrast, the other provision, which deals with "expungement of the conviction," is much
the Hihkhah requires one to inform others of his criminal past. See Hafez Hayyim by Rabbi broader, and provides for the rehabilitation of the offender. Section 16(a) of the statute provides
X nhvi'f °f R/hin' 9:1' ™S bM stren8thens this appreacl It dXo« that "when ten years have elapsed following the expiration of the limitations period ... the
of but rather takes the approach of limiting the disc,osure conviction will be considered as having been expunged, and no information about it may be
transmitted except to the bodies specified in Sections (b) through (e) of the first appendix, and
to the Attorney General" (emphasis added). Section 20(a) of the statute deals with the consequences
of the expungement of the conviction, and it provides that a person whose "conviction has been
Jewth'awtogoeToff C°mPr0miSe- ^ ^ "* de™d
68See Explanatory Notes to the Crime Register and Rehabilitation of Offenders Bill, at 216, Feller, Ha^a'at Hok

67 91 DK 1892 (1981). Rishum Avrenut. 5730-1970 [The Crime Register Bill, 1970], 3 Mishpatim 110 (1971).
69 See also Explanatory Notes to the Crime Register and Rehabilitation of Offenders Bill, at 219.