Refusal to
grant FOI request marks admission by Charles Hynes that suspected Orthodox
child abusers receive special treatment
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Charles Hynes's refusal comes as New York judges ruled for a mistrial
in the case of Baruch Lebovits (above). Photograph: New York Daily
News/Getty Images
|
Brooklyn
district attorney Charles Hynes has refused a freedom of information request
for details of child sex abuse prosecutions in the Orthodox Jewish community,
amid questions over the veracity of his arrest figures.
The refusal
coincides with the collapse of his most vaunted prosecution after appellate
court judges ruled on Thursday for a mistrial in the case of Baruch Lebovits,
sentenced in 2010 to a maximum 32-year jail term.
Lebovits
was convicted in March 2010 of abusing a 16-year-old boy. The DA's office said
it is prepared to retry the case. But victims' advocates say his mistrial is a
major setback in their efforts to encourage other child sex victims to risk
community censure and come forward. Advocate Joel Engelman said the decision
was "extremely demoralising".
The Guardian reported last month that the DA was facing accusations that he has
failed to tackle up the cover-up of abuse in Brooklyn's Orthodox community –
the largest Orthodox community in the world outside Israel. Rabbinic leaders
are accused of hampering efforts to uncover abuse, and many victims face
intimidation and threats to prevent them pressing charges.
The
Guardian and the Jewish Forward paper had submitted freedom of information
(FOI) requests for details of cases. But this week Hynes's office informed the
Forward that it was denying its request, because the close-knit nature of the
Orthodox community meant disclosing the names of defendants would reveal the
identities of the victims. The DA's spokesman, Jerry Schmetterrer, confirmed
that the Guardian's request would also be refused on the same grounds.
The
statement refusing the FOI request marks the first admission by Hynes that
suspected child abusers from the Orthodox Jewish community receive exceptional
treatment.
Hynes's
policy clarification follows recent claims to have radically increased
prosecutions through his Kol Tzedek outreach effort. Kol Tzedek, which features
a victims' hotline staffed by a culturally sensitive social worker, aims to
encourage reporting of sexual assaults and to break the cover-up of child sex
abuse by the Orthodox Jewish community.
The DA
credits the initiative, which began in April 2009, with a surge in arrests. In
January, the DA said the tally now stood at "over 90" arrests, a
figure confirmed again this week by his spokesman.
Of the 38
cases closed by November last year, 23 had concluded in guilty pleas and six in
trial convictions with nine dismissals and acquittals, Schmetterer said.
Fourteen of the convictions resulted in jail time. But at least nine of the
arrests ascribed to Kol Tzedek were in fact made before April 2009.
The
Guardian has learned of five: Stefan Colmer, extradited from Israel in 2008,
Yona Weinberg, indicted in 2008, Emanuel Yegutkin, arrested in January 2009,
Moshe Spitzer, arrested in March 2009, and Baruch Lebovits, whose landmark
conviction was overturned this week and who was indicted in 2008. The DA's
spokesperson confirmed in writing last month that all five men were being
counted as Kol Tzedek arrests.
The Jewish
Week knows of a further four arrests inaccurately credited to Kol Tzedek: one
convicted of attempting to kidnap an Hispanic girl, arrested in 2007; another
in mental health facility and unfit to proceed, arrested 2008; a third who
violated his probation and was reconvicted in 2009, first arrested 2002; and
Yehuda Kolko, whose case in 2008 saw him plead guilty to misdemeanor child
endangerment, not a sex crime. Kolko is currently being prosecuted for criminal
contempt.
Schmetterer
refused to answer questions from the Guardian. "I have nothing to say to
you," he said. "You have the (FOI) letter. I have nothing to
add."
The FOI
response – set out in a letter signed by assistant district attorney Morgan
Dennehy – appears to explain an apparent misinterpretation of a civil rights
statute previously used by the DA to explain why case information was being
withheld from public scrutiny.
Earlier
responses from the DA's office have cited New York Civil Rights Law 50B, which
protects the privacy of sex crime victims. 50B prohibits the release of
documents that could identify a victim. It does not, however, restrict the
release of case files in which the victims' names or other revealing
information has been redacted, said Martin Guggenheim, professor of clinical
law at NYU. "To my knowledge," Guggenheim said, "the law permits
the disclosure of reports so long as the public official does so in a manner
that ensures that the identity of the victim cannot be obtained from the
report."
Hynes's
argument – that the "unique" circumstances in the Orthodox community
prohibits release of any and all information, since to name the defendant is to
name the victim – apparently explains his over-stringent response to 50B.
Dennehy's
letter goes on to say that sex crime victims from the Orthodox community, if
identified, face unique challenges that will make them likely to withdraw
co-operation "making the prosecution of the defendants extremely
difficult". It would also prevent victims of unreported crimes coming
forward in the future if they feared their names would become known. Under New
York's FOI law, documents which could "interfere with law enforcement
investigations or judicial proceedings" are exempt from disclosure.
Roger
Canaff, a former sex crimes prosecutor in the Bronx, said he thought the reason
for the DA's silence was justified.
"There
are some situations where releasing suspect information could lead to unfairly
revealing victim information," Canaff said. "I can imagine a
situation where that could happen. So for the sake of the victims I think it's
OK to make an exception.
"I
haven't dealt with it myself, or seen it anywhere else, but I can understand an
office being concerned with that. I can't say whether that's what is going on
here, or something else, but I think it's a plausible explanation."
Community
activist Isaac Schonfeld, an Orthodox Jew from Borough Park, said the DA's
position was illogical because if the everybody in the community really did
know everybody else's business, the victims' identities woul already be known.
"I don't find the argument compelling," Schonfeld said.
"We
have this wonderful compassion in our community. Rather than channelling that
into covering up [child abuse], we should be using it to develop a more
comprehensive understanding of the problem, and giving the victims tools to
deal with it rather than just sweeping it under the rug."
"The DA should be challenging the community
to bring these issues into the open and to bring the perpetrators into public
view," he added.
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