The lawyer for Baruch Lanner, the Orthodox rabbi convicted of sexually abusing two girls in his New Jersey religious school, presented arguments to that state’s Appellate Division of Superior Court this week that the verdict should be thrown out and a new trial ordered because the judge gave improper directions to the jury and should have separated the two cases.
“The acts alleged and arguably proved — contact consisting of several brief touches over clothing and nothing more — was insufficient to rise to the level of conduct that considered in light of reasonable contemporary standards, would tend to impair the moral[s] of an average child,” attorney Nathan Dershowitz contended in court papers.
Dershowitz, who was slated to repeat his position during oral arguments before the court Wednesday, insisted that even if such conduct “might be considered sufficient,” the judge’s failure to “tell the jury that it must evaluate the proofs in light of reasonable contemporary standards” constituted reversible error. The girls were students at the Hillel High School in Ocean, N.J., where Rabbi Lanner served as principal.
But Deputy Attorney General Analisa Sama Holmes maintained in court papers that the conviction must be upheld because Rabbi Lanner had “used Hillel as his personal kingdom to select vulnerable students and to victimize them at whim.”
“Although defendant argues that not every touching is meant to degrade a child,” she said, “his touching is criminal because he touched the victims’ intimate parts — inner thighs, breast and buttocks — which under no circumstance is acceptable behavior in any community. His actions are also suspect by the very manner he executed them, cornering his victims up against the wall …”
Although Superior Court Judge Paul Chaiet did not advise the jury to use “reasonable contemporary standards” in evaluating the charges, Holmes said “the jury in fact applied” them. She said it is “difficult for any jury to conclude that touching a child’s breasts, legs and vaginal areas did not violate community standards.”
Rabbi Lanner, 54, who was also a former regional director of the Orthodox Union’s National Council on Synagogue Youth, was convicted in June 2002 and sentenced to seven years in prison. He is out on bail pending appeal.
His arrest followed an investigation by The Jewish Week that implicated him in the abuse of NCSY teens — boys and girls — throughout his nearly three decades with the organization.
In his appeal, Dershowitz argued also that the jury improperly considered a second-degree charge of child endangerment because such a charge applies only when the defendant stands in for a parent, and “there was no evidence that Rabbi Lanner had assumed a parent’s role.”
“As the trial court noted at sentencing, ‘But for the second-degree offense in this case, [Rabbi Lanner] would not be going to jail,’ ” Dershowitz said.
And Dershowitz insisted that the two alleged victims should have faced the rabbi in separate trials because a “joint trial simply allows the state to cumulate individually weak cases and invites the jury to convict on the basis of propensity.”
But Holmes replied in her papers that parents who pay for a private school education “should expect” the principal to assume responsibility for their child while at school.
“Is a private school principal who may teach your child … to be treated as a complete stranger for child endangerment crimes involving sexual assaults and offensive touching of their private areas?” she asked. “The testimony showed that defendant was a powerful member of the Orthodox Jewish community who influenced the NCSY.”
Holmes refuted Dershowitz’s claim that the victims’ allegations warranted two separate trials, pointing out that even if they were severed, the prosecution could have admitted evidence of the other victim’s complaint.
In rebuttal, Dershowitz said the state’s claim that Rabbi Lanner committed “atrocities” seeks to convey “the message that the defendant is a monster who committed horrific acts of sexual abuse.”
“This court should not be misled by the state’s tactics,” he argued. “To refuse to see gradations and treat all improprieties involving minors the same way is to denigrate the seriousness of the most serious crimes, the real atrocities that, unfortunately, do occur.”