Rav Menashe Klein: How does calling an abuser a rodef - permit calling the police?

I had previously posted the teshuva of Rav Menashe Klein and child abuse. However there the concern was his insistence on following the strict letter of Torah law concerning witnesses. In our recent discussion of labeling an abuse a rodef he raises another important point - how does calling an abuser a rodef permit calling the police?

Notice the following discussion in the Rema and then read Rav Klein's teshuva.

Shulchan Aruch(C.M. 35:14): A woman is not a valid witness…Rema: All those who are invalid witnesses are invalid even in circumstances where Jewish men are usually not found. However all this is according to the strict letter of the law, but there are those who say that there is an ancient decree that regarding a place where men are not normally found such as the women’s section of a synagogue or any other circumstances where only women are typically present and not men. This decree also applies in regards to facts that woman pay attention to and men don’t - such as to testify that “this woman wore these clothes.” In these cases a woman’s testimony is believed (Terumas HaDeshen 353 and Aguda asara yuchsin). Therefore there are those who say that even one woman or a relative or child is believed concerning physical abuse or the shaming of a talmid chachom or other disputes and informing. That is simple because it is not normal to invite valid witnesses nor is there time to summon them to these events (Maharik 179, Maharam M’Rizborg, Kol Bo #116). These alternative witnesses are only believed when they claim that they are certain of what they are saying (Maharik 93).

Rav Menashe Klein (Mishneh Halachos 16:58): … Shulchan Aruch (C.M. 388:9) writes that it is prohibited to cause a Jew to be handed over to the secular government whether physically or his money - even if he is a wicked person and even if he irritates and causes someone distress. It would seem from this statement of the Shulchan Aruch that it is prohibited to report a person to the police. Nevertheless in Nishmas Avraham (C.M. part 4 page 207) he cites in the name of Prof Avraham Sofer that Rav Eliashiv, the Tzitz Eliezer, R’ Shlomo Zalman Auerbach classify a molester as a rodef (pursuer) and that they rule that it is permitted to report the molester to the police. However I don’t have this book to see what they actually said….

Concerning the issue of whether it is permitted to give him over to the secular courts (see Shulchan Aruch 388:9). But this that you want to say that he is a rodef (pursuer); I don’t know what you mean. In the case of the rodef we have an established principle that if we can stop him by damaging one of his limbs then he should be stopped that way. Therefore in our case we can say that after the matter has been clarified that he in fact committed the crime, nevertheless he can be stopped by firing him from the school and therefore he will not have the opportunity to do the crime again. Since the administration can stop him in this manner they have no right to punish him by given him to the secular government since he is no longer a rodef. Furthermore if he is now pursued after he has been fired then the victim becomes the rodef and the rodef becomes the victim. If it has been clarified before proper witnesses then there is an alternative way of dealing with him by firing him – it is prohibited to hand him over to the government. And surely in the case where the facts have not been clarified by proper witness as I said before – but only by means of circumstantial evidence. Nevertheless he does not have the status of a wicked person except by means of proper witnesses. So surely it is prohibited to hand him over to the police and to have him imprisoned. (Also because in the case of imprisonment when he is freed he will be like he was before.) Nevertheless after he has committed a transgression we have no ability give him a punishment of flogging because we don’t have a beis din with proper semicha. We do have the ability to make various decrees but what ever is done must be done according to the Torah and with a proper beis din. Nevertheless in a situation where all the clarifications of facts have not been done according to the Torah as we have written, even though it is possible to fire him from the school – but G‑d forbid to hand him over to the police and have him imprisoned.

Therefore I am extremely upset that there are rabbis that have decided to give permission in all cases to go to the civil courts. There are cases of people who have come to me where a child who learns in the school and has various problems with the teacher and has accused the teacher of pursing him in a disgusting manner. Even though there is no previous history of such a thing and he has acted like any other religious teacher. Nevertheless they go to a rav who tells them immediately to call the police. That is in my humble opinion a very serious prohibition. Concerning this the Shulchan Aruch (C.M. 26) says that a person who goes to the secular courts is a wicked person and is like one who blasphemes and raises his hand against the Torah of Moshe. The Rema adds to the Shulchan Aruch and says to punish anyone who assists in this endeavor. Thus one who rules that one should go to the secular courts is included in one who assists in this endeavor. In addition he is giving permission to be a moser and to go to the secular courts which is included in cherem – G‑d forbid.