Sivan 5761 – Understanding Rape in Halacha

1 Sivan 5761

Dear Rabbi Orlofsky:

Recently someone I know read a book called “Genesis and Justice” by Alan Dershowitz, in which she came across, among other things, the Biblical punishment for rape. To say that she was upset would be an understatement, especially since the author of the book emphasized all the points of the halacha which most people would find upsetting – mostly the fact that the fine is paid to the father, as if the only damage done was to him because his “property” is now diminished in value.

Anyhow, after a long discussion, I decided to find out exactly what the halachos about rape are. I realize that this is a heavy question, and I understand if you will uncomfortable to answer it. However, if you could recommend an exposition on the topic — not a whitewashed, apologetic one but one that really explains the laws – I would appreciate it.

Thank you.

Name & Seminary withheld

Dear Friend,

First of all, I think it is a very important topic to discuss. It doesn’t often come up, but since it has been dealt with in a book that’s available to the general public, I think it should be discussed in an open forum like JemSem.

I frankly don’t believe that I’m qualified to explain any topic related to Torah, certainly not a definitive exposition, but I will share with you my thoughts and if you consider it a whitewash then I will be happy to suggest some people who are much more educated than myself.

Let’s present the problems first. A cursory reading of the parsha of oness, as rape is called by the Torah (and is, by the way, the source for the exemption of oness in all of Torah law) in Parshas Ki Saytzay, will present the following picture. A man who rapes an unmarried girl who is a virgin between the ages of twelve and twelve and a half must pay the father a fine of fifty selaim, the equivalent of two hundred zuz. That is the amount of money that must be paid by a man who marries a virgin in the event of his death or divorce. Additionally, the man may never divorce this woman.

It wouldn’t even take a Naomi Ragen to twist these laws into a scenario of pure horror. A man wants to sleep with a woman who spurns his advances. One day he lies in wait and brutally rapes her, tossing her the money with a laugh. Should she go to the court and he would admit his crime, he will be exempt from the payment since it is a fine and there is a principal that if you admit to a crime, you are exempt from paying the fine. Additionally, the judges will force her to live with this demon for the rest of her life with no hope of escape. It makes a good plot for a cheap novel, but bears no relation to reality.

Let’s begin by understanding the Torah’s system of justice. In New York, a fellow comes up to you and grabs your purse. You scream “thief!” and a passerby tackles the mugger. A policeman brings him to prison until his case comes to court. He is sentenced to years of prison as punishment for his crime. You get back your purse and justice has been served.

Now, in a Torah society, this fellow would be hauled before a bais din. The judges would hear the evidence and then, in keeping with Torah law, return your purse to you and send everyone home. Not a particularly effective approach apparently, since the thief wasn’t punished. There was no retribution. What’s to stop him from doing it all over again?

The proper parallel to the Torah understanding of thievery however is really closer to home. Your child is playing with the neighbor’s kid when, as happens, one of them starts to cry. “He took my toy!” the neighbor’s child wails. What is your response for your son? Imprisonment? Hard labor?

Unlikely. More likely you will say, “it’s wrong to take something that doesn’t belong to you. Give it back”. Because you are starting with a basic underlying assumption – my child is a good boy. He sometimes forgets how to behave properly. Therefore we have to inculcate him with values – if you take something from someone, give it back. If you make a mess, clean it up. If you break something, you pay for it.

Justice among good people works the same way. Take responsibility for your actions. Pay for what you damage, give back what you take. That’s why there is a principle in the Talmud; you can not have a verse that gives a punishment without first having a verse that gives an azhara, a warning. First there has to be a “thou shall not” before any punishment can be initiated.

Now let’s examine crimes of violence. A person gets so angry with someone that he pulls out a hatchet and chops off his arm. An unbelievably heinous act. The same principle applies – make restitution. Not an easy thing to do, but as in all things, halacha makes calculations. There are five things you need to pay him. First of all you have to pay his medical expenses. Then there are his lost wages for the time he was bedridden. You have to pay him for the physical pain and the embarrassment, what today is called “mental anguish”. Finally, you have to pay him for the lost income because of the loss of his limb. Together this amounts to an enormous amount of money. But instead of imprisonment, even for such a terrible crime, we apply the same principle – you damaged, make amends for the damage you caused.

Rape is a difficult subject for society. On the one hand it is a sex crime. On the other hand, the women’s movement has fought for years to have rape recognized for what it is – an act of violence. The Torah recognizes the legitimacy of both views. Today, the most common form of rape is what is known as date rape. Some guys, unfortunately don’t respect the fact that no is no. Now, what happens if there is a relationship between two decent people and the man, perhaps thinking the woman really wanted to have relations, forces himself on her. She loses her virginity, perhaps she is pregnant, and all the years spent preparing herself for a particular type of life is destroyed. The Torah says she has the option to demand that the man “do the right thing” and marry her. But it is her choice, not his. If she doesn’t want to marry him, that’s it. But if she does, then the man loses the right to divorce her. The Torah gives the man responsibility for the marriage under the assumption that he is trustworthy. A man who shows he isn’t to be trusted, loses that right. She can still go to court to get divorced from him, but he can no longer initiate proceedings.

Assuming, that she isn’t interested in marrying him, or in fact if he was a disreputable individual who attacked her, then the Torah recognizes the act for what it is – an act of violence. We then calculate the damages, pain, suffering, etc. If she ends up in therapy for the next twenty years, he pays. Since there is no loss of a limb per se, the virginity is seen as the limb. A woman who is a virgin commands a larger kesuva than one who isn’t. As such, that loss is also given to the woman. If the woman is a minor than the fine is paid to the father, who has responsibility for his daughter and essentially is given all of her earnings. But the fine is also seen as a form of punishment, which is waived in an instance where the felon takes responsibility for his actions, since that ultimately is the purpose of our legal system as I explained earlier.

This is by no means an exhaustive study but I hope it gives some insight into a difficult subject.

Dovid Orlofsky