Our Gemara on Amud Aleph discusses a process by which we can discern if an ox who became accustomed to goring can recover its prior status of a docile ox, thereby reducing the owner’s liability back to half damages.

וְתָם – שֶׁיְּהוּ הַתִּינוֹקוֹת מְמַשְׁמְשִׁין בּוֹ וְאֵינוֹ נוֹגֵחַ

And it reverts to its former innocuous status if children touch it and nevertheless it does not gore; 

Tosafos (ibid, sheyiyhu) explains that this an extreme proof of its docility as children do not have the sense to be cautious and could easily provoke the ox to gore them.  According to Tosafos, we are evaluating and testing the ox’s temperament and noting it is safe for children.

There is a famous Maharam Merutenberg (Tur O.C. 114) who extrapolates from our Gemara a trick to create a chazakah so that he can assume he said Mashiv Haruach in Shemoneh Esre even if he doesn’t remember, even without 30 days passing. He should say it 90 times on Shemini Atzeres, which will be equivalent to 30 days (of approximately 3 daily Shemoneh Esres.) However, Rabbenu Peretz (ibid) disagrees with the Maharam Merutenberg. He says, the lack of goring, despite being provoked, indicates something about the nature of the ox. In other words not goring doesn’t make the ox into something else or change its nature, but rather, it shows something about the nature of the ox has changed for unknown, spontaneous reasons. On the other hand, he says, when it comes to human regulation and habit, who says saying something 90 times or even 1,000 times changes this aspect of human nature? We may not know what changes human nature. So according to Rabbenu Peretz you can’t apply a halakhic chazakah to every aspect of human behavior unless our sages have specifically endorsed and codified the application (such as 30 days, but NOT 90 iterations.).

This brings to mind the errors that were made decades ago in response to sexual predators in the Orthodox community. Certain rabbinic authorities were found to have erroneously turned a blind eye or even participated in covering up crimes because of a well meaning belief that the person did teshuvah. I believe misapplication of halakhic technical thinking and misguided halakhic rationales, such as the concept of accepting the Baal Teshuva have been incorrectly applied to dangerous and unmanageable compulsive behavior. We have come to understand that sexual abuse is not merely a moral lapse, but rather comes from more complex psychological dynamics that cannot be remediated by remorse alone. Teshuvah is fine for God but it doesn’t necessarily make the potential offender safe. Similarly, since halakha did not categorize certain molestation in severe terms, it led to assuming there was minimum psychological damage. But spiritual damage and psychological trauma may not always correspond. If a sexual sin is not defined as sexual intercourse and therefore considered less severe halakhically it has nothing to do with trauma. It’s like comparing violating Shabbos to verbally abusing someone. Technically and legally, Shabbos is more severe, however the psychological damage for verbal abuse could be far worse. 

Regardless, human behavior is complex and cannot be predicted in the same manner as a beast. Perhaps the children can be proven to be safe with this ox who was formerly dangerous, but we cannot say the same for a former predator. That is not to say that all predators or sexual offenders are the same. The research shows that they are different kinds of predators and not all are alike. There are those who have committed one time crimes never to offend again and others who molest hundreds. Expert assessment is required so as to neither panic and excessively ostracize the offender, especially in the case of adolescent offenders, and at the same time not to minimize the possible severity and concern that the behavior is part of a predatory personality and behavioral profile. The bottom line is that halakha can tell us what is permissible or impermissible, and it can also provide moral guidelines and boundaries, but it cannot predict human behavior nor diagnose that which is considered illness or health anymore than it can tell us how to build rocket ships. (I suppose a master of Sefer Yetzira could fly to the moon using “sheimos”, but that is not in the typical expertise of a posek.)

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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