Reading and Seeing Child Marriage in the Talmud

(Special thanks to the author who created the artwork for this article.)

The marriage of minor orphans is described in the Talmud as a takanat hakhamim, a decree of the sages. The stated reason for the decree was so as not to leave the daughters of the poor vulnerable to being treated in minhag hefker, essentially being sexually exploited or abused by multiple persons outside any formal, and thus traceable, arrangement.^[1] By choosing this way to frame the issue, the Talmud is communicating that it considers its legal recognition of child marriage to be a harm-reduction measure, and a bitter one. Further exploration of the issue reveals that men whom the rabbis consider admirable do not marry children, and in fact those who engage with children sexually are condemned. R. Shimon bar Yohai equates child marriage to murder,^[2] while in Niddah 13b, a statement attributed to the sages asserts that sexual activity with minors delays the coming of the Messiah. This tension – the legal recognition of child marriage on the one hand, and the condemnation of those who marry children on the other – is not the paradox it seems. Rather, legal recognition was seen as a method of keeping abusive situations visible and open to rabbinic influence. This influence was used to redirect power into the hands of the child herself.

It is perhaps tempting to read child marriage in the Talmud another way: as though the rabbis thought of the child’s husband as a protector figure, who was expected to keep his relationship with her strictly platonic and pseudo-parental. This reading does not explain why the rabbis expressed distress over the situation and sought ways to undermine the husband’s authority, as I will discuss. Nor does it explain why those who marry children are portrayed as repulsive figures. Rabbinic culture does not imagine such a thing as a sexless marriage,^[3] and certainly not in the case of such a great power imbalance.^[4] The reality is that rape was understood to be an inherent aspect of child marriage, discussed not merely in aggadata but in halakhic texts as well; in Niddah 44b, for example, rape is discussed as a method by which children enter a legal state of marriage.

However, the desire to imagine that a rapist is, in fact, a protector, is an important one to examine, as it forms a key part of the discourse around modern cases of child sexual abuse in Jewish (and other) communities. In 2003, Chaim Walder, who raped children and adults, was awarded the Prime Minister’s “Child Protector” award. This ironic situation represents more than just catastrophic coincidence. It speaks to a powerful wish to avert our gaze from predation, and especially from those undergoing abuse. A victim of Walder, going by the pseudonym of Rena Salomon, writes of the adulation heaped upon her abuser:

Do you know what it is at twelve years old to have every girl in your class know that you know cw [Walder] and be reminded of this daily? Can you imagine what it feels like to be raped at ten in the morning and then return to school, and all the girls crowd around to ask, “How did it go?” Do you know what pain and anguish it is to return to class after being assaulted by this monster only to discover that the Morah is reading aloud from Yeladim Mesaprim [Kids Speak] as a reward for good behavior?

Why didn’t I tell my mother? You must be joking.

Responding to the same case, Rav Shraga Feivel Zimmerman describes how many victims told him that more than the sexual assault itself, it harmed them to encounter marginalisation and silencing at the hands of their communities, who instead directed attention and admiration toward their abuser. R. Zimmerman notes that while it is impossible to eradicate sexual assault, what communities can do is change how they direct their attention and compassion in its wake.

With this suggestion, R. Zimmerman is picking up the Talmud’s harm-reduction approach to child abuse. As described above, this consists of keeping abusive situations accessible to effective intervention. The primary method of intervention, miun, is the sages’ true innovation with respect to child marriage, and it is an intervention which derives its power from giving child brides space to be seen and heard.

Miun, literally “refusal,” is a unique method of divorce by which orphaned minors can dissolve their own marriages. All the child needs to do is to express her wish to leave the marriage, using any clear phrase she chooses. Beit Hillel and Beit Shammai disagree over the particulars of what is required. According to Beit Shammai, she makes her declaration in court, in front of a judicial panel of three, with her husband present. According to Beit Hillel, she can do so anywhere she finds even two unrelated strangers in good communal standing, even without her husband present.^[5] In fact, the exertion necessary for a child to initiate this procedure is even less than Beit Hillel’s wording might at first indicate: as long as she finds a responsible adult,^[6] and he calls over a second person, she is able to free herself.

Both Beit Hillel and Beit Shammai react to child marriage by concentrating legal power in the hands of the child herself. Beit Hillel does something more: by making any adult member of the community a potential participant in miun, which can happen anywhere at any time, the community itself has been transformed into stakeholders in the child’s well-being. Beit Hillel’s demand that the community be available for intervention is itself an intervention, in the form of creating vigilance toward the child and the man who married her.

Interestingly, the Gemara understands both Beit Hillel and Beit Shammai to have constructed their positions around their perceptions of the welfare of the child:

Rav Papa said, “The positions of both Beit Shammai and Beit Hillel are based on money [the financial well-being of the child]. Beit Shammai’s position is based on money, because [they reasoned that] if you say a married minor may perform miun, he will seize and consume her resources, since she can leave. And Beit Hillel thinks the opposite, that if she has access to miun, he will improve her resources, lest her relatives work on a plan and get her away from him.^[7]

Beit Shammai, ostensibly the stricter opinion, expresses concern that if miun is easy, available, and frequent, the man will treat his wife as utterly disposable. Beit Hillel, on the other hand, reasons that the husband will be more motivated to treat her well if he knows she can leave at any time. Neither evince any words of respect, let alone concern, for the husband himself.

A second important point is that even Beit Shammai appears to abandon their requirements when it comes to practical application:

What about Pishon the camel-driver?^[8] His wife refused him in his absence. Beit Shammai said to Beit Hillel, “Pishon the camel driver used a crooked measure, so they took crooked measures against him.” But he was consuming her financial resources, so she was obviously fully married. Didn’t Beit Shammai say a fully married child^[9] can’t exercise miun? “They tied him in two knots.”^[10]

These “knots” are deviations from the formal understanding Beit Shammai themselves have established with regard to proper miun. They are uninterested in justifying themselves using legal reasoning or any sort of intellectual gymnastics. Their argument for bending their own rules is purely emotional: They see Pishon as a bad man, and want to punish him. What is involved is more than turning a blind eye to something that already happened; they looked for an opportunity when Pishon was absent, then seized it.

Beit Shammai’s reliance on emotional reasoning, and the unquestioning advancement of this reasoning among the later amoraim on the daf, reveals something important about miun. It cannot be understood solely as legislative innovation, but as an emotional intervention. Emotional interventions appear in Rabbinic literature where the ordinary working of the world has created dysfunction. The one encountering this dysfunction is at a seeming impasse: unable to dismiss either the present trouble or the different trouble that would arise if things worked a different way. In our case, Beit Shammai is confronted both with the pain of Pishon’s wife, and the pain they worry will manifest in the absence of rabbinic oversight. Because of the latter, they do not recraft their legal position: they see no better systematic way out of the wicked problem of the sexual exploitation of children. But in the Talmud, sages are not merely called upon to legislate problems. They must also really see problems, bringing the fullness of their presence to the site of suffering.

This theme of truly seeing problems and their emotional gravity appears in numerous stories throughout the Talmud. Emotional interventions are described in terms of vision: setting one’s eyes on a person, and letting that act of presence serve as a catalyst. Vision in the Talmud is thus the complementary sense to hearing, which is the sense associated with law and regulation.^[11]

One example involves the release of R. Shim’on bar Yohai from his imprisonment in a cave:

R. Pinhas ben Yair, the son-in-law of [R. Shim’on bar Yohai], heard what happened and went to meet him. He took him to the bathhouse. He was caring for his skin, and saw gashes in it. He began to cry, and the tears fell into the wounds and made him wince. He said, “Woe is me, to see you like this.” He replied, “Happy are you to see me like this, because if you did not see me like this, you would not have found me like this.”^[12]

R. Pinhas “heard what happened,” but this is not enough: he must see him. His attempts to physically care for R. Shim’on’s wounds only cause greater pain, and he is confronted with his inability to fix things. But his act of vision on R. Shim’on’s wounds is portrayed as the catalyst for a more foundational type of healing: R. Shim’on’s reintegration into the family, and the deepening of their relationship as Torah scholars.

When sympathetic vision is called for, its absence is ruinous:

The afflictions of Rebbe [R. Yehudah Ha-Nasi] came about because of something he did, and left because of something he did. How did they come about by something he did? A calf was being led to slaughter, and broke away and hung its head in the folds of Rebbe’s robe. It was crying. Rebbe said to it, “Go, since you were created for this.” They [the heavenly powers] said, “Since he had no mercy, give him afflictions.”^[13]

It is important that this story does not take place in a cultural context of vegetarianism. The death of animals is understood to be an inevitable cost of human life. It is precisely amidst despair of fixing the problem of predation that a demand arises for the presence of vision.

The laying-on of eyes is not only imagined as a catalyst for healing, at least not in the short-term sense. For example, when Rav Sheshet puts his eyes on someone who is rude to him, the person is instantly incinerated.^[14] Although Rav Sheshet is blind, an encounter with his focused eyes causes the rude man to feel all too seen, indeed, exposed to the bone. Thus, the stories of Rav Sheshet and R. Pinhas are not as different as they first appear. Their eyes act in the same way: to bring their target into an awareness of themselves which is vivid beyond language.

To understand the relevance of vision to miun, we must first understand that the above acts of vision, and dozens of others like it in aggadata, are not merely Talmudic literary quirks. Strikingly similar imagery is used in Vedic literature to illustrate a sudden encounter with truth beyond language.^[15] The theme recurs in the Western literary tradition as well. In Jane Eyre, Jane is punished at her boarding school by having to stand on a stool in the middle of the room for a day.^[16] At first, she feels her suffering, pointless and unjust, as an excruciating humiliation. But a sudden glance from her fellow student instantly connects her to an inner dignity, a sense that martyrs and heroes have endured this same type of suffering. Her pain remains, but she is no longer degraded by it. Oscar Wilde uses remarkably similar language to describe the power a simple hat-tip from a friend had for him as he was brought from prison to count.^[17]

In miun, the vision given by the court or by adult bystanders enables the child to express her real wishes, and so free herself. Halakhah does not demand that the adults do or say anything, but give the child their full attention. At the same time, unlike other supervised changes in legal status, such as an ordinary divorce between adults, no specific verbal formula – no matter how brief or simple – is required of the petitioner. This places a demand on the adults in the situation to understand the child in her own words, on her own terms, and to see her how she sees herself.

Thus, miun is partly a legal activity, involving the hearing of the child’s refusal, and partly an emotional activity, bringing presence to her suffering, sight to her pain. Its requirements are flexible, subject to the internal drive of the sages to intervene on her behalf. Much about it may surprise us. The perception of children as sexually vulnerable is often thought to be modern; so too might the Talmudic observation that children will not be able to assert their real wishes in the presence of their rapists.

Yet these are plainly familiar perspectives to the sages, many of whom are depicted as coming from difficult backgrounds themselves, including key figures in conversations about child marriage. In a sugya about yibum, R. Eli’ezer teaches that rabbis must proactively teach children to perform miun, and arrange levirate marriage between the appropriate surviving adults alone.^[18] While it is difficult to say anything decisive about his background, some elements of his biography seem significant. Imma Shalom, his wife, describes his affect during sex as panicked, “as if being forced by a demon,” and that it takes place both at the darkest part of the night and as fully clothed as possible.^[19]

Imma Shalom presents this as a manifestation of her husband’s piety, and by accepting her report at face value, the text seems to honor her ability to love and respect her husband as he was. Without falsifying this in any way, it is also possible to notice certain surprising behaviours as a through line in R. Eli’ezer’s life. In Avot De-Rabi Natan, he is pictured as a young man almost constantly unhappy at home, and his departure at 22 years old from the family farm is narrated as a miraculous escape. From the time he left until he arrives at the beit midrash of Raban Yohanan ben Zakai, he goes to desperate lengths to avoid eating, refuses to talk when addressed by an admired teacher, and smells so badly he repels those around him.^[20] It is possible to see here indications of a very sad family life. Pirkei de-Rabi Eliezer (chapter 2), in its retelling of this story, adds an important detail. Raban Yohanan ben Zakai, after gazing at R. Eliezer’s face, gifts him with a new lineage of “Avraham, Yitzhak, and Ya’akov” – demonstrating a sympathetic vision of his own. Whether or not we regard this detail as historically accurate, it is yet another literary reminder of the power of seeing.

My suggestion is not that every sage acting against child marriage had personal reasons for doing so, but rather that the reality of trauma was well-known in their world, whether by direct experience or in their circles of colleagues, friends, and families. While it can be uncomfortable to think of Hazal as people who experienced abuse, I suggest that part of that discomfort comes from a cultural instinct that it is shameful and undignified to have been abused. Yet to make a dichotomy between powerful, untouchable rabbis and unnamed, non-specific victims is another way to avoid truly seeing. It also does not necessarily reflect how the sages of the Talmud saw themselves or their world. As the amora Ulla notes, all of “us” may have sexual violence somewhere in our family history – if we care to look.^[21]

The Talmudic encounter with child marriage as a living practice draws to a close with Rav, who forbids the practice altogether: “It is forbidden for a man to marry off his daughter while she is a child, until she grows up and says, ‘I want so-and-so.’”^[22] Rav here introduces a fresh perspective on the wicked problem of sexual exploitation. He reframes the issue altogether: his root concern is the cultivation of close, authentic relationships between parents and children, which will enable young people to recognize and speak about their own desires in a safe environment, and so eventually choose a suitable partner. Embedded in his teaching is an expectation that parents are present and attentive to their children throughout their development, on the watch for fledgling wishes and expressions of sexual autonomy (even if his expectation of what age that might take place is younger than we would consider it in today’s society). Rav is not asking what to do about predators like Pishon, but how to raise children who know themselves and communicate with their family: children who will, in other words, be both seen and supported should they encounter abuse, and consequently have greater resilience. There is an echo here of Beit Hillel’s mobilization of a watchful community, but Rav has focused on the child’s immediate family, extending the efficacy of this watchfulness into the preventative realm.

The Talmudic conversation around miun has much to offer in an age where popular conversations around child abuse largely center around abusers: mostly about how severe we can get away with being, occasionally about how much compassion we think we can afford. That discourse which does relate to those who have experienced abuse is almost entirely about the depth of their dysfunction. Something about the voracious public response to suicide in the Walder case, both his own and that of one of his victims, highlights this phenomenon. As Salomon writes:

I, and survivors like me, are not interested in being looked at as pitiful, stained misfits who now deserve your “deepest sympathies.” Rather, we need people to believe us and in us. And we need people to treat us as true survivors who have withstood the horrors of abuse and molestation and are still functioning human beings.

What is missing is the discourse of liberation so central to all facets of Talmudic thinking about this matter, from miun to the memra of Rav. If we have no sense that children can free themselves from abuse and thrive, how can we provide the support necessary for them to do so?