Rav Ovadia Yosef and Looking at Female Litigants

As we read recently in masechet Shevuot, we need to treat litigants equally. This includes, for instance, ensuring that they are dressed equivalently. In a section of a brayta on Shevuot 31 I discussed recently:

מִנַּיִן לִשְׁנַיִם שֶׁבָּאוּ לַדִּין, אֶחָד לָבוּשׁ סְמַרְטוּטִין וְאֶחָד לָבוּשׁ אִיצְטְלִית בַּת מֵאָה מָנֶה, שֶׁאוֹמְרִין לוֹ: לְבוֹשׁ כְּמוֹתוֹ אוֹ הַלְבִּישֵׁהוּ כְּמוֹתְךָ? תַּלְמוּד לוֹמַר: ״מִדְּבַר שֶׁקֶר תִּרְחָק״. כִּי הֲווֹ אָתוּ לְקַמֵּיהּ דְּרָבָא בַּר רַב הוּנָא, אֲמַר לְהוּ: שְׁלוּפוּ פּוּזְמוּקַיְיכוּ וְחוּתוּ לְדִינָא.

There are three halakhot with regard to a judge: From where is it derived with regard to two individuals who came to judgment, one dressed in rags and one dressed in a garment worth one hundred times one hundred dinars, that the judges say to the wealthy person: Dress like the poor person or dress the poor person in a garment like yours? It is derived as the verse states: “Distance yourself from a false matter.” The Gemara relates: When individuals would come before Rava bar Rav Huna for judgment he would say to them: Remove your fine shoes [puzmukaikhu] and descend for judgment, so you will not appear more distinguished than the other litigant.

Similarly, even if there is honor due to one litigant, such that one might stand for them, or allow them to sit, the Amoraim were exceedingly careful in balancing this out, so as not to dispirit the opposing party, thinking that they had no shot of prevailing in court. For instance, in Shevuot 30b, Rav Nachman arranges to have a duck thrown at him, to disguise the fact that he’s standing for Rav Huna’s widow:

דְּבֵיתְהוּ דְּרַב הוּנָא הֲוָה לַהּ דִּינָא קַמֵּיהּ דְּרַב נַחְמָן, אֲמַר: הֵיכִי נַעֲבֵיד? אִי אֵיקוּם מִקַּמַּהּ – מִסְתַּתְּמָן טַעֲנָתֵיהּ דְּבַעַל דִּינָא. לָא אֵיקוּם מִקַּמַּהּ – אֵשֶׁת חָבֵר הֲרֵי הִיא כְּחָבֵר. אֲמַר לֵיהּ לְשַׁמָּעֵיהּ: צֵא וְאַפְרַח עֲלַי בַּר אֲוָוזָא וּשְׁדִי עִלָּוַואי, וְאֵיקוּם.

The Gemara relates: The wife of Rav Huna had a trial pending before Rav Naḥman. Rav Naḥman said: What should we do? If I will arise before her in deference to her status as the wife of a Torah scholar, the claims of the other litigant will be suppressed, as it will be mistaken as a display of preference for the wife of Rav Huna, since not everyone is aware that one is required to show deference to the wife of a Torah scholar. If I will not arise before her, that would run counter to the principle that in terms of deference, the status of the wife of a ḥaver is like that of a ḥaver, who is devoted to the meticulous observance of mitzvot. Rav Naḥman said to his attendant: Go outside and cause a duck to fly and cast it onto me, and in that way I will be forced to arise in a manner that will fulfill the obligation to rise, without intimidating the other litigant.

Here as well, the gemara expresses concern that differential treatment will cause one of the litigants, here an am ha’aretz going against a talmid chacham, to become dispiritied.

רַב בַּר שֵׁרֵבְיָא הֲוָה לֵיהּ דִּינָא קַמֵּיהּ דְּרַב פָּפָּא, אוֹתְבֵיהּ וְאוֹתֵיב נָמֵי לְבַעַל דִּינֵיהּ. אֲתָא שְׁלִיחָא דְּבֵי דִינָא, בְּטַשׁ בֵּיהּ וְאוֹקְמֵיהּ לְעַם הָאָרֶץ, וְלָא אֲמַר לֵיהּ רַב פָּפָּא ״תִּיב״. הֵיכִי עָבֵיד הָכִי? וְהָא מִסְתַּתְּמָן טַעֲנָתֵיהּ! אָמַר רַב פָּפָּא: מֵימָר אָמַר, אִיהוּ הָא אוֹתְבַן, שְׁלִיחָא הוּא דְּלָא מִפַּיַּיס מִינַּאי.

The Gemara relates: Rav bar Sherevya had a trial pending before Rav Pappa. Rav Pappa seated him and also seated his litigant counterpart, who was an am ha’aretz. An agent of the court came and kicked and stood the am ha’aretz on his feet to show deference to the Torah scholars there, and Rav Pappa did not say to him: Sit. The Gemara asks: How did Rav Pappa act in that manner by not instructing the am ha’aretz to sit again? But aren’t the claims of the am ha’aretz suppressed by Rav Pappa’s perceived preferential treatment of Rav bar Sherevya? The Gemara responds: Rav Pappa said to himself that the litigant will not perceive bias, as he says: The judge seated me; it is the agent of the court who is displeased with me and compelled me to stand.

This is what ran through my mind when I heard an “inspirational” story about Rav Ovadia Yosef. I just searched find this presentation in Hebrew here, which I will translate:

כשהיה רבינו עובדיה זיע”א בצרפת, שאלו רב אחד, על מה ולמה זכה כבודו לזכירת התורה מופלאה שכזאת, והשיבו הרב על אתר, זה משום שכאשר הייתי יושב בבית הדין, והיו באות נשים לבית הדין, מעולם לא רמו עיני להסתכל באשה.

When Rebbeinu Ovadia zechuto yagein aleinu was is France, a rav asked him why he [his honor] merited to such an awesome recollection of Torah like this. And the rav [Ovadia Yosef] answered him on the spot: This is because, when I sit [preside] in Beit Din, and women come to Beit Din, I never lift my eyes to gaze at a woman.

Elsewhere I’ve seen this elaborated upon, that some women came to court dressed in an immodest manner, and so he consistently imposed this upon himself, to not look at any woman appearing in court.

This seems, ahem, short-sighted. Imagine a female litigant in a divorce, where they are arguing about money, or custody of the children. And the prominent judge only looks at her husband, but when she speaks, he never looks at her. Could this not impact her, dispirit her, and cause her to not present her case as forcefully as she could?

While Rav Ovadia Yosef undoubtedly had learned this gemara, it seems possible that he did not think about this frum behavior in a psychological or sociological manner, and realize what an impact it could have.

Besides the impact on the litigant, think also about the impact on the judge. There are plenty of halachic directives that the judge hear both litigants equally. Not only the dressed equally mentioned above, but also that he should not hear the arguments of one litigant when the other is not in court.

Similarly, I don’t think that a blind judge is the Torah ideal. A bribe should not be taken, כִּ֣י הַשֹּׁ֗חַד יְעַוֵּר֙ עֵינֵ֣י חֲכָמִ֔ים וִֽיסַלֵּ֖ף דִּבְרֵ֥י צַדִּיקִֽם, because a bribe blinds the eyes of the wise. A blind judge is halachically disqualified, with debate about a judge who is blind in only one eye (Sanhedrin 34). I would argue that this is not a mere technical requirement. Rather, a judge needs to observe the expressions of the witnesses as the testify, and the expressions of the litigants as they state their case and react to the other party’s claims.

Here, where a judge only look at the male litigant, he deliberately is receiving only partial data. He is blinded to the same data from the woman’s side, and might not find her as credible as he otherwise would. This could impact impartiality.

So, while modesty is generally a good idea, I don’t agree that it is a good idea for judges, and other dayanim should not be inspired by Rav Ovadia Yosef’s example.