Halachic justification for Kolko's defenders

By Rabbi Daniel Eidensohn (Daas Torah blog)
July 7, 2013

I have been getting feedback regarding the views of the Lakewood rabbonim who defend Kolko. The picture is getting clearer and better balanced. Unfortunately it is also clear that there are rabbonim - including major poskim who have approved the course of action of Rav "S" but are intimidated against publicly acknowledging this. It is disgusting that they feel threatened and will not admit what they view is the proper halacha in this case. Rav "S" clearly has major poskim to rely on. Hopefully this public presentation of views will lead to improvements in dealing with sexual abuse and less fear in presenting differening views.

My understanding of the the view of the Lakewood rabbonim is basically this:
Kolko is a nebach but he is not a pedophile (i.e., he doesn't have a sexual desire for children) and he definitely is not a rodef. He is a lonely guy who befriended a kid (11 years old) who had no friends. They alleged that this kid seduced him into doing things he didn't want to do and would never had done without being seduced. Therefore he can not be viewed as dangerous to others and is "innocent" of being a pedophile. He clearly does not deserve jail time since he didn't initiate any wrong behavior - but was seduced. This apparently is also the view of Rabbi Belsky. Since they don't view Kolko as a rodef there was no heter to go to the police and thus the father is a moser. Consequently the rabbonim didn't do anything wrong by calling the father a moser and driving him out of Lakewood - and do not need to apologize. Rather Rabbis "S" is the aggressor for calling the police and causing Kolko to be given a severe jail sentence - which helps no one and is totally unjustified. Anyone who doesn't understand these elementary facts doesn't belong in Lakewood.

Update: This explanation not only is nonsense but it is immoral. They are shamelessly putting the blame on the victim. At least they acknowledge that Kolko is guilty of what he was charged with. The issue shifts simply to whether the father had the right to call the police. [see below] Aside from the fact there is no evidence that Kolko was "seduced" - it is a common excuse given by pedophiles

However their allegations still don't make the father a moser for calling the police. A problem with their view is that an adult male who was seduced by a male child is still chayiv misa. If the adult has been seduced numerous times by this or other children and yet insists on remaining in contact with these and other children - and "allows" himself to be seduced - isn't this the classic rodef [Sanhedrin 73a) that one needs to save him from himself to stop him from sinning? He obviously can not control himself. So even if you want to say he is not a rodef to harm the child [a problematic assertion] because he allegedly is not initiating the sexual contact and the child allegedly asked for it - why isn't he a rodef for sin and thus needs to be stopped? In Kolko's case it has been alleged that he has had sexual contact with more than one child - and yet he refused to quit teaching and being a camp counselor. Lakewood rabbonim would have had a stronger case if they had required Kolko to quit teaching and spend his day packing candy in Brooklyn where he would have minimal contact with children. To base a case on the ridiculous assertion that an 11 year old made him do it is embarrassing! It is fairly common for a pedophile to complain that he had been seduced by the child.

See this article in the National Catholoci Reporter where a priest with a PhD in psychology claims the children seduced the priests You might want to do a google search at the outrage that claim caused.
I think the key to understanding the differing views in the Kolko case is a passage in Rambam Chovel u'Mazik (8:11). In a section dealing with moser he states, "And thus one who distresses the public can be turned over to the police but not one who distresses the individual."

According to the simple reading - the Rambam is talking about verbal distress - not financial or physical distress and certainly not threatening life activity. Thus calling the police is permitted to stop someone from verbally abusing 3 or more people. This is the understanding of the Chasam Sofer as well as the Pnei Yehoshua and the Minchas Yitzchok. They view the basis for the Rambam as Gittin (7a). Thus they understand that if the distress is in fact financial or physical (e.g., beating) - then they claim the Rambam would permit calling the police even for an individual. There are other sources in the Achronim that permit going to the police if someone is physically assaulting another person - even though it is not life threatening. Obviously sexual abuse of a child - even not involving penetration - would justify calling the police

However others view this Rambam as talking about someone like the counterfeiter who is endangering the community or a missionary. The Tzitz Eliezar applies it to a teacher who is abusing young girls. Since there is no Torah prohibition against this he applies this Rambam to justify calling the police. However if the teacher only abuses a single young girl - then he holds that the Rambam doesn't provide a heter. Rav Eliashiv disagrees with the Tzitz Eliezer because he claims abuse destroys the victim and thus it doesn't matter whether it is boy or girl and how many. It is pikuach nefesh and the abuser is a rodef. However it is argued by the Lakewood rabbis that if the adult does not take the initiative then he would not be viewed as a rodef and there is no heter to call the police.

Thus we have three levels - 1) one can only go to the police if it involves either life threatening actions or to save the abuser from doing a sin that he is chayiv misa for (e.g., mishkva zachor) and there is no other way of stopping the act. The concern is only when the adult is clearly the aggressor rather than mutual consent - otherwise the adult is not considered a rodef. This is apparently the view of Rav Scheinberg and Rav Menashe Klein (Sanhedrin 73a).

2) It is permitted to go if the child's psychological health is threatened by the abuser and this would increase the likelihood of suicide or severe psychological trauma. This is apparently the view of Rav Eliashiv and other contemporary gedolim. Beis din is not viewed as capable of protecting against this type of aggression. Beis din is not needed but a rav should be consulted for objectivity and to prevent the world being hefker. It is not clear what their attitude would be if the child initiated the sexual activity. I think that the majority would hold that the adult is still responsible for the resulting activity - not the child. For example the Rambam holds that a child is responsible for sexual activity and thus a seduced child is guilty while the majority view is that a child is not considered liable and all sexual activity of a child with an adult is considered rape.

3) It is permitted to call the police as protection - even against serious verbal harassment - if there are at least 3 victims and an individual can call the police for financial or physical harm. Moser is understood as being only if it is a willful act to hurt another. But if you call the police solely to protect yourself or others - it is not considered moser. No beis din is need since it is simply an act of self preservation. A rav should be consulted - but there is fact is no aveira if he isn't. This is the Chasam Sofer (based on Gittin 7a) and others. Clearly a father or anyone else can call the police to protect a child from any sexual activity.