by Larry Cohler-Esses and Hella Winston (Jewish Week)
November 12, 2008
State Assembly member Dov Hikind was subpoenaed Monday to provide testimony and files he has compiled about rabbis and yeshiva employees who have allegedly sexually abused children under their charge, and rabbinic leaders who may have protected the abusers.
The Brooklyn Democrat says he has assembled detailed dossiers on "hundreds" of such cases. But he said he would "go to jail for 10 years" rather than reveal the names of the alleged victims, whom he has guaranteed anonymity.
Michael Dowd, the attorney who served the subpoena on behalf of several clients allegedly molested by their yeshiva teacher as children, said he was willing to keep the names of the alleged victims from becoming public. He is representing his clients in a civil suit against Yeshiva Torah Temimah in Flatbush and its longtime teacher, Yehuda Kolko, who was convicted of child endangerment last April.
"I'm willing to try to work with him in a way that protects the sources yet exposes the villains," said Dowd of Hikind. "I am not at all seeking to do harm or impair his progress, but I have a responsibility to my clients."
Hikind also faced new pressure this week over his effort — publicized on a recent edition of his radio show — to work with a chasidic man who has come to him acknowledging he has repeatedly molested children, and confesses to one incident as recently as two months ago. Hikind says he has gotten the man into therapy with a "top person in the field" and has declined to disclose his name or tell law enforcement authorities about what he knows.
On Tuesday, Marci Hamilton, a Yeshiva University law professor and national expert on child sexual abuse, said Hikind's holding back of this information "is outrageous. At this point he's engaged in obstruction of justice. Is there any indication that [the abuser] has taken anyone over state lines? It seems to me if local prosecutors won't do it, the FBI should be called."
A New York police department source with long experience in sex crimes said that even in cases where therapy might help repeat sex offenders, it is essential that the process be overseen through the legal system. Otherwise, she said, there is no way to ensure the offender's continuing participation and no way to identify him so as to protect the public in case of relapse.
Bill Josephson, a senior partner at Fried Frank and Harris who served as a top lawyer to former Attorney General Eliot Spitzer also asked, "Why aren't they convening a grand jury?" Given Hikind's public acknowledgement that he has gathered a virtual mountain of first-hand testimony of sexual wrongdoing,
"Why can't you empanel a grand jury and then subpoena Dov? Josephson asked. "He can't hide from [a criminal] subpoena. That's a very powerful instrument."
Asked if Hikind's collection of evidence might move him to empanel a grand jury to investigate what is happening within the Orthodox community on this issue, a spokesperson for Brooklyn District Attorney Charles Hynes said only, "If Dov Hikind has evidence of wrongdoing or criminality, we are open to hear it. I can't say we will empanel a grand jury."
Access by prosecutors to the most recent victim of Hikind's self-confessed chasidic abuser might enable state authorities to prosecute him. If the victim is a minor, as the abuser's past prey have been, he would fall within the state's narrow statute of limitations for such criminal prosecution.
But Hikind said, "He has many victims. None of those will come forward. That's part of the story.
"The therapists say that if you don't stop one of these people they will have a hundred victims," Hikind said. "Believe it. Just this guy started listing to us a lengthy list of his own victims from the past 10 years."
The developments marked a new twist in Hikind's campaign to get the Orthodox community to address a problem he has come to view as much more widespread than he ever imagined, one in which he says he is trying to do the right thing.
Last April, after the conviction of Rabbi Yehuda Kolko of Yeshiva Torah Temimah for child endangerment, Hikind began addressing the issue bluntly on his weekly call-in radio program. He invited members of the Orthodox community who had been molested as children to come to him with details about their experience and about rabbis, teachers or others in the community who were responsible.
Stunned by the massive response, the state lawmaker now says he has assembled testimony and information detailing at least 1,000 cases of childhood sexual abuse.
In the Rabbi Kolko case and others, victims who were ultimately willing to come forward publicly say that they told school administrators about what their teachers were doing to them but that the administrators did nothing, or even tried to keep them silent. Some report receiving threats and pressure when they do speak out or seek to go to the authorities.
In the ultra-traditional Orthodox community overall, there is a widely acknowledged taboo about going to secular authorities to prosecute such crimes. And in Brooklyn, some victims who have come forward complain that the D.A.'s office does not prosecute such cases vigorously. They cite Rabbi Kolko's ultimate sentence.
Hynes negotiated a controversial plea bargain that reduced the felony sexual molestation charge to misdemeanor that did not require Rabbi Kolko to serve prison time or register as a sex offender.
At the same time, Hikind and other observers say the community's own rabbinic leaders have failed to deal with the problem internally.
Many of his informants are now adults over the age of 23 — the state's deadline for allowing criminal prosecution of a child sexual abuser and for most civil suits, as well. But even those who are not, says Hikind, are not willing to go to secular law enforcement authorities.
Some have criticized Hikind for making this determination on his own. In the Rabbi Kolko case, a determined detective produced victims willing to come forward by obtaining class lists of hundreds of students taught by Kolko over the years and going from door to door seeking victims who would work with her. Some who initially refused were, in the end, eager to testify.
Hikind says he believes strongly that victims should go to law enforcement authorities and that he encourages them to do so. But given the reality of community reluctance, he says he will use the information he has amassed to go to rabbinic leaders and get them to deal with the situation internally.
He hopes to secure their cooperation in establishing a communal registry that would list the names of teachers removed from schools due to abusive behavior.
But apparently recognizing that many schools are often reluctant to dismiss such teachers in the first place, Hikind has at times appeared to envision forming some sort of rabbinic panel with a more ambitious, quasi-judicial function.
"It's sort of hard to investigate yourself," Hikind admitted in an interview last September. "There's got to be a system where trusted people, respected leaders, who are not directly a part of that particular organization examine everything. We have to make judgments. We do that all the time."
Last August, Hikind threatened to reveal the names of abusers publicly if communal rabbinic leaders failed to act. This week, Hikind said it would take "another two months" to finish his "current phase." He said that Assembly Speaker Sheldon Silver (D-Manhattan) had recently allocated money for him to hire a staff person for the project.
Survivors for Justice, a new group of self-described childhood victims of sexual abuse in the New York Orthodox community and their advocates, dismissed the willingness and ability of rabbinic leaders to play the role Hikind envisions.
"We applaud Dov Hikind's efforts, but we believe it is crucial that any information [he] has be brought directly to the police," the group said in a statement. "It's crucial in an effort to prevent sexual abuse from continuing that all perpetrators be brought to justice. We are dealing with sex offenders, and they need to be arrested, prosecuted and registered in order to protect our children."
Dowd, who is representing alleged victims of Rabbi Kolko in their suit against him, the school and its administrator, said, "With all due respect to his intellect, skill and ability, [Hikind] can't be the arbiter of what is useful to my case. The lawyers representing those who are abused are in the best position to do that. Therefore, I have to depose him, question him under oath."
Dowd stressed, "I mean no harm. We are both pointed in the same direction." He said he was willing to agree to "reasonable constraints" on his use of Hikind's material. But he added: "I fully intend to use any information that proves the case."
Hikind said he had turned Dowd's subpoena over to "a lawyer for the Assembly" who will determine to what extent he is required to cooperate as a state legislator. But regardless of the lawyer's determination, expected Wednesday, "Hell would have to freeze over for me to disclose any of the private things to anybody," he said.
Some legal experts said that Hikind might find a successful argument against having to comply with Dowd's subpoena by citing the state constitution's speech and debate clause — a provision that grants privileges and immunities to lawmakers in connection with information they gather for the purpose of legislating. A few said he might also be able to resist the subpoena under the state's shield law for journalists since he used his radio program to gather some of the information.
Hamilton, the Yeshiva University legal expert, was unfamiliar with the state constitutional provision. But under the federal constitution's speech and debate clause, "The activity must be related to his role as a member of the state legislature," she said. "Here, it is hard to argue he was engaged in a legislative issue, because he was restricting his interest to his own religious sect. In any event, speech and debate only goes to words, not to illegal acts."