Except, of course, for the fact that without the hackers, the codes and flags wouldn't be released. So the existence is still very much the fault of the hackers.
And to an extent, this proves that Rockstar isn't completely lying. The Hot Coffee modders have clearly modified the code to swap out the naked textures and there are other modifications to the gameplay in certain versions of the mod to "enhance" the visits (unlocking all girls, etc.)
So like I had mentioned earlier, the truth is in the middle. What Rockstar left in, but kept locked, was a lame, unfinished and only semi-raunchy "sex" game with no nudity. The modders have enhanced this by placing naked textures and altering gameplay.
In the end, Rockstar probably should have just kept silent. I really doubt they are legally liable for the actions of other people altering their code. Nor do I see how the ESRB could have predicted this without doing the same level of hacking ... which the fact is quite advanced seems to have escaped just about everyone on this issue.
What's next? The ESRB going to get crucified if someone introduces a "blood" mod to a game? I mean, we all know bloodshed isn't as bad as fellatio, but I guess they better start hiring some hackers just to be prepared.