I. Disproportionate Punishment
This year’s Torah reading schedule places the issue of improper speech (lashon ha-ra) before us for two consecutive weeks. Understanding these laws requires also knowing when they do not apply. The Sages tell us that the “leprosy” of the metzora was caused by lashon ha-ra.1 Later, in the middle of what some call the Holiness Code, the Torah (Lev. 19:16) commands “You shall not go about as a talebearer among your people; nor shall you stand idly by your neighbor’s blood.” This latter verse prohibiting talebearing is immediately followed by a prohibition against watching your friend suffer, which the Sages interpreted to mean that you must intervene to prevent someone from being physically or financially damaged.2 This juxtaposition is no coincidence.
Without specifically citing this latter mandate but clearly influenced by it, the Chafetz Chaim rules that you may speak what would otherwise be forbidden as lashon ha-ra to save someone from harm.3 Normally, permitted talebearing requires seven conditions.4 Among them is that the repercussions to the subject be commensurate with Torah law. However, if someone will be overly punished, then you may not tell the story. For example, you presumably may not tell a member of an organized crime family the name of someone who stole his wallet (absent other considerations). While the thief, if caught, may be able to return what he stole which is otherwise sufficient cause for informing on him, the physical injury he may suffer, perhaps even death, is well beyond the Torah’s punishment.
This limitation severely hampers our ability to report crimes. If someone convicted would be subject to serious prison violence, as some claim, then reporting him would be forbidden as lashon ha-ra (regardless of mesirah issues).
II. Preventing Damage
However, the Chafetz Chaim explicitly acknowledges the impossible situation that would generate.5 Indeed, he uses that result as an argument that this ruling cannot be true. “If not so, no one will ever save his friend from a beating.” Instead, he differentiates between past crimes and future threats. You may not tell about a past crime if the perpetrator will be overly punished. However, if your intention is to warn potential future victims, then the extent of possible punishment is irrelevant if there is no other way to save them. While he does not state it explicitly, I believe he is concerned for the mandate not to stand idly by someone’s blood.
This explicit discussion is complicated by contradictions. Later, in that very chapter, the Chafetz Chaim rules that you may only denounce a liar to prevent him from spreading future untruths if you fulfill all seven conditions, including that of exaggerated punishment.6 We see a similar ruling in the same chapter about someone who will publicly denounce another in the future.7 All conditions still apply. The same is repeated later in the book.8
Given the clear statement and convincing rationale to permit lashon ha-ra in order to prevent damage, regardless of the possible extent of punishment, why does the Chafetz Chaim contradict this position? I have no conclusive answer but offer the following suggestion and welcome other possible resolutions.
III. Naming Names
Forbidden speech does not need to be direct or name the subject. As long as his identity is revealed, as long as the speech is damaging, it qualifies as lashon ha-ra.9 However, the Chafetz Chaim slightly amends this position. Among the seven conditions mentioned above to permit saying lashon ha-ra is that there is no other way to prevent the harm. If another remedy exists, you must pursue it.10 The Chafetz Chaim rules that if you can reveal the information and identity indirectly, you must do so rather than state it explicitly.11 While this type of speech is still forbidden, it is apparently a lesser offense than direct lashon ha-ra and must be preferred.
I tentatively suggest that this might explain the above contradiction in the Chafetz Chaim‘s rulings about preventing damage. You must save other people if you can. The Torah requires vigilance in protecting the innocent. If we fail to stop criminals because they will be overly punished, we allow them free reign to victimize us and destroy our communities.
However, if the perpetrator will be overly punished, we should bring about his capture indirectly. If our interpretation is correct, the Chafetz Chaim is saying that in such a situation you may –you must! — cause the perpetrator’s identity and actions to be revealed but you may not do so directly. While normally you must choose the lesser offense if it is an option, in a case of exaggerated punishment you may only act indirectly. Or perhaps said differently, you must create a situation in which an indirect revelation will protect the community.