122 Mark Washofsky

religious behavior(minhagei yisrael). It does not apply to the non­observant Jews of modernity, who of course live among us and cannot claim ignorance of the Torah and the halakhah.”' R. Yitzhak Halevy Herzog, the chief Ashkenazic rabbi of Israel from 1936 until his death in 1959, disqualifies two witnesses to a“wedding ceremony” that was staged in jest(kidushei sehok) on the grounds that they are not religiously observant.“I am quite hesitant,” he writes, to accept these witnesses on the grounds that, as“captive infants,” they are not to be disqualified as intentional sinners (resha’im). After all,“here in the land of Israel these persons are surely aware of our strenuous efforts to prevent the desecration of the holy Sabbath”; that is, their non-observance cannot be the result of ignorance of the true standard of Torah and halakhah.” Similarly, R. Moshe Feinstein disqualifies a non-observant witness to a wedding, dismissing the contention that he ought to be accepted because he is a“captive infant .” On the contrary, says Feinstein , even if we declare him to be a tinok shenishbah, such a person by definition does not believe in the Torah and in the doctrine of reward and punishment. He is therefore either unaware of or indifferent to the prohibition against false testimony and as such cannot be trusted to serve as a witness. In fact, however,“we should not define these individuals as ‘captive infants,” inasmuch as they see observant Jews all around them. As R. David ibn Zimra teaches us, the tinok shenishbah is a rare, almost non-existent thing.” Again, the point is that the non­observant Jews of our time can hardly claim that they are unaware of what the Torah demands of us. In a 1993 responsum, R. Shmuel Halevy Wosner of Benei Berak puts the objection this way:*

When the Talmud (B. Shabbat 68a) defines the tinok shenishbah as“one who is coerced,” this is true only so long as he does not know he is a Jew... Once he learns, however, that he is a child of the people of Israel , he is a considered a Jew in all respects. Thus, he is an apostate, albeit an apostate out of weakness(mumar lete’avon) rather than out of