Rodef I - to save perpetrator from sin

This is the first in a series of postings dealing with the halachic basis for calling the police and dealing with a child molestor. It is primarily focused on the dynamics of the halacha. The bottom line is that major poskim clearly permit calling the police to protect a child from being molested. This discussion is part of the sefer about child abuse that I am currenly working on.

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One of the important considerations - as to whether to call the police in the case of child abuse - is whether the molester has the status of rodef (pursuer). The widespread assumption is that the purpose of this halacha of rodef is protecting the victimization or harm to another person. But this is clearly wrong.

Sanhedrin(73a):MISHNAH. THE FOLLOWING MUST BE SAVED [FROM SINNING] EVEN AT THE COST OF THEIR LIVES: HE WHO PURSUES AFTER HIS NEIGHBOUR TO SLAY HIM, [OR] AFTER A MALE [FOR PEDERASTY]. [OR] AFTER A BETROTHED MAIDEN [TO DISHONOUR HER].1 BUT HE WHO PURSUES AFTER AN ANIMAL [TO ABUSE IT]. OR WOULD DESECRATE THE SABBATH, OR COMMIT IDOLATRY, MUST NOT BE SAVED [FROM SINNING] AT THE COST OF HIS LIFE.[Soncino translation]

The literal translation of this mishna is that "the following are potential vicitims who are saved from harm at the cost of the life of the pursuer". However, Rashi - following the understanding of the gemora - specifically rejects this

Rashi(Sanhedrin 73a): Are saved - from sin. At the expense of their lives - anyone can kill the rodef to save him from sin - and this is learned from the Torah verse.

Tosfos(Sanhedrin 73a) is bothered by this reading. However he concludes it is necessary to accept this understanding that we are not concerned with the victim - but rather the spiritual well being of the rodef. That is because of the case in the mishna of pursuing an animal [for sexual purposes]. Tosofos notes that it obviously makes no sense to say we are killing the rodef because we are concerned to protect an animal from being raped. Therefore the concern of the mishna is saving the rodef from sinning.

Tosfos points out that rodef is not solely to stop the person from sinning. There are two conditions to be able to stop the rodef by killing him - 1) he must be attempting to commit a sin which is punished either by capital punishment or kares 2) there has to be a person who suffers directly from the sin.

Thus Shabbos and idolatry are not part of rodef because there is no victim. Rape of an unmarried woman would also not be included because there is no death penalty or kares for it. [The Tosefta & Yerushalmi are more inclusive than the Bavli]

Another major consequence is that if the rodef has actually committed the crime - we can not stop him from continuing to engage in the act by killing him. This is the psak of the Shulchan Aruch(C.M. 425:3)

.שולחן ערוך חושן משפט סימן תכה סעיף ג

וכן הרודף אחר הזכר או אחר אחת מכל העריות (לאנסה), חוץ מהבהמה, מצילין אותו אפילו בנפש הרודף. ואם רדף אחר ערוה ותפס ושכב עמה, כיון שהערה בה, אף על פי שלא גמר ביאתו, אין ממיתין אותו עד עמדו בדין

In view of the above - only child abuse which is punishable by kares or death is relevant. - e.g incest or gential penetration for homosexual relationship. Obviously this would exclude many cases of child abuse. This would mean that the law of rodef would not justify calling the police in most cases.

The only way to invoke rodef is to assert that abuse is pikuach nefesh. However, this is problematic for a number of reasons to be discussed in the next post.

Remember major poskim do permit calling the police for child abuse - the reasons will be discussed in a later post.