Rena Kosowsky
The Torah’s Harsh View of Rape
Every year, the American Law Institute releases a model penal code which enumerates the ideal laws that they believe state legislatures should pass. This past year, The Model Penal Code: Sexual Assault and Related Offenses,[1] outlined several standard cases and the optimal associated laws. Remarkably, every single one of the general cases described in the law brief, produced in 2021, are mirrored in the Biblical narrative.
The first case is “sexual assault by aggravated physical force or restraint” (§213.1, p. 87). In this scenario, the assailant forces the victim to engage in sexual activity by threatening severe physical violence (§213.1.1.b.ii, p. 87). Similarly, the second case is “sexual assault by physical force or restraint” (§213.2, p. 131). The only difference between the two cases is the severity of the physical threat.
The first case in the law brief is reminiscent of the story of the pilegesh be-Giv’ahiv’a (Shoftim 19). In this story, a female concubine is unfaithful to her husband, and flees to live with her father. After some time, her husband tracks her down, and forces her to reunite with him. On their way home, they stop for the night in Giv’ah, where the Jewish men living in the town surround the house and demand to rape the man staying inside. Under threat of his own rape, the man instead offers up his concubine. She is subsequently gang-raped to death by the men outside:
And they abused her all night until the morning, and they sent her out at the light of day (Shoftim 19:25).
This is a terrifyingly real case of sexual assault by aggravated physical force.
Another similarly tragic scene is described later in Tanakh, which corresponds more to the second case of the law brief than the first. Amnon, the son of David, tricks Tamar, the daughter of David, into coming to his room by feigning illness. When the two of them are alone together, Amnon grabs Tamar (va-yahazek bah), and asks her to have sexual relations with him (Shmuel II 13:11). She explicitly refuses:
Don’t afflict me, for this is not done in Israel; do not do this disgusting thing (Shmuel II 13:12).
However, Amnon refuses to listen to Tamar:
He was stronger than her, afflicted her, and raped her (Shmuel II 13:14).
Though the threat was not as severe as in the pilegesh be-Giv’ah case, this is a definite example of the second category, sexual assault by physical force.
The third case, described as “sexual assault of an incapacitated, vulnerable, or legally restricted person” (§213.3, p. 146), entails sexual penetration while the victim is “sleeping, unconscious, or physically unable to communicate lack of consent” (§213.3.1.b.i, p. 146) and/or if the victim was given a “substance” without their “knowledge or consent” (§213.3.1.b.ii, p. 146). This is the fate that befalls Lot after the destruction of Sodom. Lot and his daughters flee to the hills, and Lot’s daughters, believing that all of humanity has been wiped out, decide that it is their responsibility to repopulate the planet. Knowing that Lot will not agree to what they have in mind, they take matters into their own hands. The Torah relates:
They gave their father wine that night; the oldest came to lay with him, and their father did not know of her lying with him and getting up from him (Bereishit 19:33).
The combination of tricking Lot into getting drunk and then raping him while he is blackout drunk is a clear case of sexual assault of an incapacitated person.
The fourth case in the code is “sexual assault of a vulnerable person” (§213.3.2, p. 146). This includes a victim who is “passing in and out of consciousness” (§213.3.2.b.ii, p. 147) and “lacks substantial capacity to communicate lack of consent” (§213.3.2.b.iii, p 147).
After surviving the Flood, Noah is understandably traumatized. The world as he knew it is over. Millions have died, and he and his family are the only remaining human beings on earth. In this difficult situation, Noah turns to alcohol. After getting drunk to the point that he passes out in his tent, Noah’s son walks in on him.
Ham, the father of Canaan, saw the nakedness of his father, and he told his two brothers outside (Bereishit 9:22).
While the simple understanding of the text implies that this is a minor transgression, Rashi cites the Rabbis in Sanhedrin 70a who explain that the word “va-yar,” and he saw, should not be translated in the typical sense, but rather as rape or castration. Rashi’s interpretation is bolstered by Noah’s reaction when he wakes up. The verse says:
And Noah knew what his youngest son had done to him (Bereishit 9:24).
“What his youngest son had done to him” implies that Ham performed an act, and didn’t merely look at Noah’s nakedness. The punishment that Noah gives his sons lends even further support:
And he said: Cursed is Canaan; a servant of servants he will be to his brothers (Bereishit 9:25).
Cursing Canaan with eternal slavery would be a rather extreme reaction if all Canaan did was look at Noah while naked. The clear takeaway from Noah’s severe response is that he was taken advantage of at a time when he had no ability to communicate consent or lack thereof.
The fifth case described in the model penal code is “sexual assault of a legally restricted person” (§213.3.3, p. 147). This involves a victim who is “in custody, incarcerated…under civil commitment…or in any other status involving a state-imposed restriction on liberty” (§213.3.3.b.i, p. 147). The assailant, on the other hand, is in a position of authority over the victim and is aware of the power imbalance.
Joseph is a slave owned by Potiphar, severely limited in liberties. He is completely subservient to his master and his master’s wife, Eishet Potiphar. The power discrepancy here is far more serious than that of a boss and employee. Joseph is the property of Potiphar, and by extension Eishet Potiphar, and is completely beholden to their whims. Knowing this, Eishet Potiphar says to Joseph, “Sleep with me” (Bereishit 39:7). The verse says outright that Joseph refused (Ibid. 39:8). Furthermore, the uncommon ta’am ha-mikra (cantillation) there shows how vehemently, and perhaps how often, Joseph turns Eishet Potiphar down. However, Eishet Potiphar does not give up:
And she asked him day after day, and he did not obey her to lie with her to be with her (Ibid. 39:10).
Ultimately, Eishet Potiphar forces herself on Joseph when nobody else is in the house, and Joseph runs out to escape the assault. Even though Joseph is a slave of the household and is obviously forbidden to Eishet Potiphar, she repeatedly verbally harasses, and eventually physically assaults, Joseph.
The sixth case is “sexual assault by extortion” (§213.4, p. 208). In this case, the assailant threatens “to take any action or cause any consequence” (§213.4.1.b.iii, p. 208) if the victim does not submit to sexual penetration. Two examples of such a case are the sons of Eli Ha-Kohein in Shmuel I and the benei elohim in Bereishit.
In the case of Eli Ha-kohein, his two sons, Hofni and Phineas, take advantage of women who come to the Mishkan (Tabernacle) to bring sacrifices:
They would lie with the women who came to the opening of the Tent of Meeting [to offer korbanot (sacrifices)] (Shmuel I 2:22).
Radak explains that the purpose of these women’s korbanot was to complete the purity process after having recently given birth. The women were bringing a korban to end their niddah status. This was a crucial step without which the women would not be able to physically reunite with their husbands. At this time of extreme vulnerability, Eli’s sons abused their positions of power as kohanim.
The second example is presented very early in Tanakh, during man’s primitive days on earth. Bereishit 6:2 tells us:
The sons of God saw that the benei elohim (daughters of man) were pretty, and they took wives from whomever they chose.
Ibn Ezra explains that benei elohim does not literally mean the “sons of God,” but rather the sons of judges. Chizkuni comments that God was angry with the benei elohim for raping the women. Ramban adds that a primary aspect of the corruption that would lead to the world being destroyed by the Flood, is this act by the benei elohim.
In both of these cases, that of Eli’s sons and that of the benei elohim, the text implies that the women were put in a position where they needed to submit to their assailants to avoid consequences, such as not being able to bring a korban or incurring unfair judgment. In addition to extortion, both of these cases include an element of abuse of power.
The seventh case is “sexual assault by prohibited deception” (§213.5, p. 237). According to this law, if the assailant causes the victim “to believe falsely that the [assailant] was someone else who was personally known to that person” (§213.5.1.b.ii, p. 237), the assailant is guilty. When Jacob comes to Padan Aram, he meets Lavan and his two daughters. Jacob is immediately taken with Rachel, Lavan’s younger daughter, and offers to work for Lavan for seven years in exchange for Rachel. Lavan agrees to the deal and, after seven years of service, the wedding night finally arrives. However, the Torah relates:
At night, Lot took Leah, his daughter, and brought her to Jacob’s tent, and Jacob lay with her (Bereishit 29:23).
When Jacob wakes up in the morning and realizes what has happened, he berates Lavan, saying, “Did I not work for Rachel?!” (Ibid. 29:25).
The previous night, Jacob believed that he was with Rachel. It was under these false pretenses that he had relations with Leah. When exclaiming about what has happened to him, he even uses the word “deceived,” saying, “Why did you deceive me?!” (Ibid 29:25).
Jacob only slept with Leah because he believed she was Rachel. He had no notion that the woman he was sleeping with was not the one he had fallen in love with, the one he had given up seven years of his life to earn, but rather her sister.
The eighth case is “sexual assault in the absence of consent” (§213.6, p. 253). This crime involves sexual penetration when the victim does not consent and the assaulter “is aware of, yet recklessly disregards” (§213.6.2.b, p. 253) this. When Shechem sees Dinah, he acts immediately:
Shechem, son of Chamor, the Hivite, the leader of the land, saw Dinah, took her, lay with her, and afflicted her (Bereishit 34:2).
The series of verbs in this pasuk indicates an impulsivity on the part of Shechem. As soon as he saw Dinah, he was interested in her and quickly acted on that interest. Malbim comments that Shechem took advantage of Dinah, which is in no way her fault. It is exceedingly clear to Malbim that Dinah cannot be blamed for the crime committed against her. Ramban says that any time sexual relations are nonconsensual, they are considered to be an affliction. This is a blatant case in the Torah of sex without consent. It is also a very impressive example of Rabbis taking a firm stance that rejects victim-blaming.
The other cases described in the model penal code are either less severe forms of a crime already listed (e.g., offensive sexual contact by physical force [§213.7, p. 284] as opposed to sexual assault by physical force), or the same crime, but committed against minors. The only new case included in these further listings is incest (§213.8.2, p. 317) which we find in the Noah, Lot, and Tamar of Samuel II narratives.
It is rather unbelievable that all of the cases described in the model penal code are represented in Tanakh; it speaks volumes about the depth and foresight contained within the Torah. While all of the cases themselves are important, what is even more important is the reactions to the events that took place, and what we can learn from them. All of the cases described come with dire consequences. After the pilegesh be-Giv’ah case, there is a civil war. The entire tribe of Benjamin, the perpetrators of the crime, is decimated to the point of near extinction. In the case of Lot, the whole city of Sodom was wiped out. Granted, this destruction occurred before Lot was raped by his daughters. However, it is all but clear that the daughters’ actions embody the values of Sodom. As for the children born of Lot’s affair with his daughters, their male descendents are banned from ever converting and marrying into Judaism, which is a measure only taken in extreme circumstances.[2] Noah curses his rapist’s family line into permanent servitude. After the benei elohim take advantage of the benot ha-adam (daughters of man), Hashem completely destroys the world. The punishment for Eli’s sons is the ending of Eli’s family line in the kehunah (priesthood) service. Shechem and his whole city are wiped out. Amnon is killed. These stories make it clear that the punishment for rape is a severe one. Just as the victim’s life was disrupted and sometimes destroyed, so the punishment for sexual assault disrupts, and sometimes even destroys, the perpetrator.
The Torah She-be’al Peh’s Harsh View of Rape
Throughout the Talmud, the Rabbis also have a strongly negative view of rape. For starters, Eiruvin 100b outlaws rape generally. Rav Asi is quoted as saying that a man cannot force/compel his wife to have sex with him. The Gemara goes on to list Rabbi Yehoshua ben Levi, Rav Ika bar Chanina, and Rava as agreeing with this. This shows a halakhic precedent for the idea of requiring consent and the illegality of pressuring a woman into having sex. A similar idea is seen in Nedarim 20b, where the Gemara lists “defective children,” children who come from inappropriate or illegal relationships. Included in these problematic relationships are a woman who has sex with her husband out of fear, a woman who is raped, a man who thinks he is having sex with a different woman, and a couple that has sex while drunk. These are scenarios that in modern times are recognized as rape. It is impressively forward-thinking that the Gemara already recognized them as problematic 1500 years ago. The descriptions also correspond to the Tanakh stories listed above, showing the expression of these stories in halakhah. Another example can be found in Sanhedrin 75a, where it is taught that if a man is lovesick over a woman and cannot be cured unless he has sex with her, it is preferable for him to die rather than sleep with her. Even if all the man needs is to see her naked, it would still be better for him to die. Further, in Yoma 9a it is stated that Shiloh was destroyed for two reasons: forbidden sexual relations and the desecration of items declared sacred (kodshim). The Talmud explains that forbidden sexual relations here refers to Eli’s sons, who raped the women bringing korbanot to the Mishkan. Sexual assault, then, was one of the two reasons that Shiloh, the place of the Mishkan and center of Judaism at that time, was destroyed.
Rambam, in his Mishneh Torah (Hilkhot Dei’ot 5:4), codifies the laws of permitted and prohibited sexual encounters. He rules that a husband and wife cannot have sex under the following circumstances:
Neither of them should be drunk, lazy/tired, or in mourning. She should not be sleeping. He should not coerce/compel her if she does not want [to have sex]; rather, sexual encounters should be entered willingly and happily by both parties.
As early as the twelfth century, Rambam relied on the Torah as a source for high standards of consent. He forbids sex if either party is unconscious or in a state of lower awareness, and cites the halakhah that when someone is emotionally vulnerable because they are in mourning, they should not be engaging in sex. He further gives a basic definition of consent by saying that if a woman does not want to have sex, she should not be pressured into doing so. In other words, any sexual encounter entered unwillingly by either party is not consensual according to Rambam.
Looking at these sources exclusively, the Torah seems to take a hard line against rape. However, there are many more sources on this topic.
The Torah’s More Lenient View of Rape
Though both the narrative sections of the Torah as well as the law as seen in the Talmud and Rambam express a very harsh attitude toward rape, other precepts seem to tell a different tale. The Torah states that if a man rapes a single woman, the penalty is that he pays a fine to her father (Devarim 22:28). This sounds as though rape is a civil offense, far below a crime deserving to be punished capitally. The Torah goes on to say that if the victim wants to marry her rapist, he must marry her and is never allowed to divorce her (Devarim 22:29).[3]
This law seems to indicate that rape is a crime the Torah takes lightly; it is a minor violation, similar to damaging someone else’s property. How can we reconcile the narratives of the Torah that tell us stories of death and destruction as punishment for rape with the legal section that tells us that the consequence for rape is a mere fine?
A closer read reveals that the laws do in fact match the unforgiving stance of the narratives – but only in rape cases involving a married woman. Just a few pesukim prior to the shockingly lenient penalty for the rapist of a virgin, we are taught:
If the man finds a betrothed woman in the field and grabs onto her and lies with her, the man who lay with her will be killed (Devarim 22:25).
In other words, if the victim is a betrothed[4] or married woman, then the rapist receives the death penalty, a punishment that is much more in line with the unforgiving narratives of the Torah.
The chapter further elaborates that while the man shall be put to death,
Do not do anything to the woman, for the woman has not sinned; just as a murder victim has not sinned when they are murdered, so a rape victim has not sinned (Devarim 22:26).[5]
This statement of the Torah is far ahead of its time. Removing the blame from the victim, and not saying that she was asking for it by how she dressed or acted, is a revolutionary statement on the part of our ancient text.
Nonetheless, we cannot forget the law regarding a single woman who is raped. How can the Torah mete out a mere fine in such a case? Does the Torah view rape as a minor infraction if the victim is single?[6]
Rav David and Rav Avraham Stav suggest a more nuanced analysis in their recent article, Pigi’ah Minit vi-Hatradah Minit Bi-Halakhah, (Sexual Assault and Sexual Harassment in Halakhah). They start by analyzing several sources that reveal halakhah’s serious treatment of rape of single women.
The first source the Stavs bring is the Sefer Ha-Hinukh (Mitzvah 557), which views the consequence of forced marriage of a rapist to a single woman, if she chooses, with no possibility of divorce, as a strong deterrent to the rapist. Not being able to divorce the victim is no small matter. It creates a serious role reversal between the man and the woman, and forces the rapist to provide for the women he abused for the rest of her life. This is meant to dissuade perpetrators, who will not think it is worth it to rape a woman if there is the possibility of being permanently responsible for her.
The Stavs then cite the world of more practical halakhah. The Mishnah (Ketubot 3:4) classifies raping a single woman under laws of damage. It lists the four payments that the rapist must pay to the victim’s father: embarrassment, damage, the fine (delineated in the Torah), and distress/pain. Ralbag (Devarim 22:28) adds that if the situation calls for it, the rapist also pays for the time the victim is unable to work and for her medical bills. Since the list of the specific matters he is responsible to pay for is almost identical to the list that someone must pay their victim if they poke out the victim’s eye or cut off their arm (Bava Kama 83b), it could be inferred that raping someone is committing the crime of havalah (injuring someone). However, this is debated among the Rishonim.
The Stavs then quote opinions which say that rape is like stealing. When describing Shechem’s rape of Dinah, a single woman, Rambam (Hilkhot Melakhim 9:14) says that all of the people of the city of Shechem were obligated to die because Shechem, the prince, stole, and none of the city residents interfered to stop him. The Minhat Hinukh (Mitzvah 35) says that a non-Jew who rapes someone is obligated in death because he violated the prohibition of stealing, so the same is definitely true of a Jew.
Within the range of halakhic opinions that the Stavs bring, there is a gap between the rape of a married woman and the rape of a single woman. However, Rabbis Stav use the sources listed above to suggest that the different elements of the crime apply equally to both married and single women. The only clear difference in the times of the Torah was the issue of pegam, the effect on a woman’s reputation. In the times of the Torah, a married woman who was raped faced far more dire social consequences than a single woman who was raped. In today’s society, that is no longer the case. Based on this, Rabbis Stav reach the following conclusion:
The reality of rape victims in our day, considering the ongoing mental consequences, even if she is a pure (i.e., has gone to the mikveh) single woman, is closer in essence to raping and violating one of the arayot, the forbidden sexual relationships (Stav 102).
Knowing all that we do about the halakhic background on rape, it is quite obvious to the Rabbis Stav that, from a halakhic perspective, nowadays a single woman being raped is equivalent to a married woman being raped.[7]
Despite their policy for single women, the Torah was ahead of its time in many ways with regards to its approach to rape. This is evident in the strong stance it takes against victim blaming, the autonomy of a woman to decide whether or not she wants to marry her rapist, the halakhah that at least in some cases a bystander can and must try to kill a potential rapist to save the victim, and the general security nets in place for a victim of rape. These show the Torah’s strong commitment to doing everything possible to prevent rape from happening and to support its victims in the event that it does.
The Stavs interpreted halakhic texts to take the Torah one step further, using the more extreme view of the Torah on rape as their guiding light. Although there are certain sources that seem to say otherwise, many mainstream ones clearly indicate the Torah’s stringent treatment of rape. The Stavs interpret the more lenient views on rape in lieu of the social mores at the time and determine that they must be re-interpreted in light of more modern considerations.
What does this all mean?
It is certainly not a rarity for halakhic literature to present us with conflicting ideas, both on major and minor issues. We have two contradictory creation stories in the first two chapters of the Torah. We are given the commandments regarding korbanot throughout the Torah[8] and they are a key part of our ritual services; however, the nevi’im make it sound as though God has no interest in korbanot.[9] There is an ongoing debate between the weight of rabbinic versus Divine authority, as is evident in the tanur shel achnai story.[10] The countless examples of contradictory ideas being presented does not represent a mistake on the part of the Rabbis or God, but rather it shows us that there is validity to different opinions and paths. Judaism is not a black and white religion and does not present us with black and white solutions. Rather, to truly understand the depths of different ideas, we have to parse through the sources, understand the nuance, and make informed decisions.
In rape and sexual abuse cases, there is a lot of information to sift through, and the takeaway is multi-layered. The initial narrative sections present us with exceptionally stringent responses to rape cases. Almost all include death, sometimes through genocide or war, and generally contain some form of destruction. The extremity of the reaction to rape does not visibly alternate based on whether or not the victim is single or married. However, the actual laws that the Torah gives us regarding rape clearly distinguish between single women and betrothed or married women, with more lenient punishments in the case of single women. One reason for this is that the Torah was given to a certain people at a certain time. Seeing the Torah as an eternal document is a Jewish value, but often in so doing, we lose the perspective of the reality of the Torah’s historical context. While the Torah is definitely still applicable to us, there are many references that a modern person would not immediately understand,[11] but that were meaningful and significant to the nation that received the Torah. At the time that the Torah was given, there was a serious status difference between married and single women. For one thing, the socioeconomic structure generally did not allow for financial independence for women. Marriage was necessary for economic viability. The societal expectation was that every woman be married; this and having a family was their raison d’etre.[12] As a result, a single woman had a lower social status. The laws the Torah enumerates reflect this reality: they are more stringent in the case of a married woman because it was considered a higher offense to attack someone of higher status. This is due to the reality of legal and social practice at the time.[13]
In interpreting the Torah, the rabbinic authorities generally take a more stringent view regarding rape and sexual assault cases. They put in place protections for women, set impressive standards for consent, and take a forceful stance against victim blaming. They seem to be drawing more from the rigid approach to rape presented in the case of married women than the lax one presented in the case of single women. They do not necessarily go so far as the stories in the Torah, but they do treat the issue more intensely than the laws of the Torah seem to, showing an important sensitivity.
What we see in the development of the halakhot surrounding rape is that as women’s status changed in society, so did certain halakhic norms around them. Another example of this can be seen in the advances in women’s learning. The Chofetz Chaim famously advocated for women to learn Judaic studies as a response to women being able to access education in all arenas other than their religion.[14] While previous halakhic pesak had been opposed to women’s learning, the real world situation of women’s education being normalized caused the Chofetz Chaim to change the Jewish practice in this area. This same basic concept is what the Stavs advocate for in their article: At the time the Torah was given, there were significant substantive differences between married and single women. Living in our current world, where women can support themselves financially, and being single does not mean that they are viewed as less-than, the punishment for the rape of a single woman should be the same as the punishment for the rape of a married woman.
Resolving The Tension Between The Texts
Conflating the cases to make the laws be standard across the board regardless of marital status is certainly one way to handle the two attitudes of the Torah. I would like to propose an alternative interpretation of the Torah’s choice to include these different approaches. I believe that we should see both models and consider them when making practical halakhic decisions in this realm. That means treating rape seriously, punishing the perpetrators harshly, but also keeping in mind the possibility for rehabilitation as opposed to giving up on the culprit altogether.
There are some hints for a rehabilitative possibility that appear throughout halakhic literature. For starters, the punishment of a fine for the rape of a single woman shows the Torah giving the rapist a second chance. He has committed what was at one point considered a lower offense,[15] and so he is able to do teshuvah (to repent) in this world, as opposed to facing the death penalty. Further, the chance, should the woman choose, for the man to marry his victim, also provides him with a lifetime opportunity to repent for his crime.
Another example is found in the case of eishet yefat to’ar.[16] This is a case where a man rapes a woman during wartime.[17] The man is not killed, but he is certainly not off the hook. He must take the woman into his house for a month. At the end of the month, he can either marry her[18] or release her. He cannot sell her or benefit at all financially from her.[19] Forcing this man to be with his victim for 30 days while she mourns communicates to him a poignant message. He is confronted face first with the pain he caused, and is given the option to take responsibility for it.
Another hint to the rehabilitative process is the ultimate value of the fine. The text of the Torah simply says hamishim kesef, the equivalent of 50 silver coins of some unknown value. The Gemara (Bekhorot 49b) explains that this kesef is measured in maneh tzuri. Rashi comments that maneh tzuri is based on the value of money in the country of Tzur, meaning that each coin has the same value as a sela, which is worth four zuz.[20] In other words, a fine of 50 kesef is worth 200 zuz. We know from the mishnah (Peah 8:8) that if somebody has 200 zuz, they cannot collect charity.[21] We can infer that 200 zuz is enough to cover somebody’s cost of living for a year. The Mishnah (Ketubot 39a)[22] says that a rapist must not only pay the 200 zuz, a year’s salary, but also must cover the costs for his victim’s shame, damage, and distress/pain. As mentioned earlier, Ralbag[23] holds that if payment for medical bills and time off from work are necessary, the rapist is also responsible for those. Furthermore, we know from the Gemara (Bava Kamma 83b) that if somebody injures someone else, there are five payments they must make: damage, distress/pain, medical costs, time off from work, and shame. If a rapist injured their victim in any way other than the rape, e.g., if he cut her,[24] he is liable to pay the payments around that injury in addition to the payments for the rape itself.
With all of these payments piled up, the fine ends up being a sizable amount more than a year’s salary (200 zuz). Most people will not be able to afford this price. However, the payment is non-negotiable. The natural path for somebody who had a debt they could not pay at the time of the Torah was to sell themselves to work off their debt. We have a precedent for this idea in the Torah:
If your brother grows poor and is sold to you, do not work him with the work of a slave. (Vayikra 25:39)
Ibn Ezra comments that this person either sold himself to you, or was sold by beit din because he stole and could not pay the fine. Being owned as a slave and having to work day in and day out to pay off the debts you have as a result of your actions is a serious form of rehabilitation. Somebody who sells himself into slavery can be enslaved for six years or more.[25] This is not a short time stint, but rather is a reality that can last a person decades.[26] Although the pasuk says “do not work him with the work of a slave,” Malbim comments that though you cannot force an eved ivri to do the work of a slave, meaning to do demeaning acts such as carrying his master’s clothing to a bathhouse, or removing his master’s shoes, the law is different with a Jewish slave. Since a Jew who sells himself to another Jew is thought of as free, he can be made to do these more demeaning acts because he opted in to this position.[27] Performing degrading tasks, being practically owned by your fellow Jew–these are not matters to be taken lightly. Rather, it is in infrastructure for the rapist to face what he did, improve himself, and ensure that he never commits a similar crime again.
Conclusion
Generally, the Torah presents us with different options, and the Rabbis typically prefer the stricter view. They are given the option to take a more lenient stance, with the law about single women to hang their hat on, but that is not the route that most accept. There are two things to learn from this. One is that the Rabbis were likely influenced by, and responding to, the world around them.[28] In the world that the Rabbis inhabited, sexual assault against anybody was punished severely.[29] This is reflected in how they ruled regarding sexual assault cases. The second thing to learn is the seriousness with which the Rabbis treated the issue of sexual abuse. Centuries before our time, they were willing to confront controversial topics head on, not shying away from what others might consider taboo. The Rabbis even put in place preventative measures to avoid sexual assault. For example, the Talmud teaches that King David decreed that the prohibition of yichud applies to men being alone with single women (and not only to being alone with married women) because of what happened with Tamar and Amnon.[30] In other words, the law of yichud with single women was instituted in large part to prevent sexual assault.
It is exactly this point that makes it so ironic that the modern Jew often shies away from conversations about sex and sexual assault. Anyone who learns Talmud can testify to the reality that the rabbinic authorities took the opposite approach: no topic is considered too inappropriate for discussion and debate. If the poskim were willing to talk about sexual topics, we should be as well. We should not ignore serious issues, but rather should treat them with the seriousness they deserve. These Rabbis were not afraid to take a strong stance defending victims, nor should we be. They went so far as to codify measures to prevent sexual assault, and so we must emulate their approach, making decisions based on current research.
Ignoring sexual assault or pretending it does not happen does not make it go away. Instead, it creates a culture that enables rampant abuse that goes unaddressed. We have seen the dangers of turning a blind eye in cases dating back decades as well as more recent cases in the Modern Orthodox community. Communities that suppress open dialogue about sexual assault do not avoid the issue, but rather help it along. Judith Herman put it best when she said, “It is very tempting to take the side of the perpetrator. All the perpetrator asks is that we do nothing. The victim, on the contrary, asks the bystander to share the burden of pain. The victim demands action, engagement, and remembering.”[31]
This is not an issue that can be resolved by looking away. The choice to ignore sexual assault is the choice to allow and endorse it. The way to combat sexual assault is to confront it head on. If we want to be true, Torah-abiding Jews, it is imperative on us as a nation to treat sexual assault with the seriousness it deserves. That means community leaders and institutions, especially schools, must take an active role in educating the community about safe and unsafe behaviors, recognizing red flags, and knowing the proper response to a case of sexual abuse. Not to do so is to ignore the clear message of current research, halakhic poskim, and God.
[1] Stephen J. Schulhofer and Erin E. Murphy, Model Penal Code: Sexual Assault and Related Offenses (Philadelphia: The American Law Institute, 2021).
[2] The Torah seems to explicitly state the reason for Ammon and Moav’s ban: “For the matter that they did not greet you with bread and water on your journey when you left Egypt, and that they hired Bilam, son of Be’or, from Petor Aram Naharayim to curse you” (Devarim 23:4-5). The incest is not the reason stated in the text for their rejection from Am Yisrael. However, if one views the story of these two nations as one continuous narrative, then their story follows from the incestuous beginnings, through their refusal to give Benei Yisrael food and water after coming out of the desert, their hiring of Bilam to curse the Jews, until the story of Rut, which is their redemption arc. With this perspective, it is clear that all of these events are interconnected, and the ban on their marriage into the Jewish people is in some part connected to their origin of incest. Alternatively, Rabbi Yehuda Rock suggests that if one reads the pasuk in context, the immediate prior pasuk prohibits a mamzer from ever joining the congregation of Israel, and it uses the same language as that used to ban Ammon and Moav – “Lo yavo mamzer/Amoni u-Moavi bi-kehal Hashem; gam dor asiri lo yavo lo bi-kehal Hashem” – “A mamzer/Ammonite and Moabite may not be admitted to the congregation of God; even the tenth generation may not be admitted to the congregation of God.” The identical language implies that the prohibitions are the same and that the reason for Ammon and Moav’s exclusion is that they are essentially national mamzerim; their progenitors were born of incestuous relationships. Perhaps their failure to greet Am Yisrael with bread and water is the reason for the prohibition which comes after this explanation: “Do not seek their peace or their welfare all your days, forever” (Devarim 23:7).
[3] The woman is given a choice; the man is only compelled to marry her if she is interested in marrying him. (See Shemot 22:15-16, which discusses the case of a seducer. There it is explicit that the woman does not have to marry him; it is only the perpetrator who has no say in the matter.)
[4] A betrothed woman in halakhah is a woman who has undergone kiddushin, the first stage of marriage. She is still forbidden to be intimate with her quasi-husband until they undergo the second and final stage of marriage, nisu’in. However, they are considered halakhically married to the degree that should they decide not to go through with the marriage, she would need a get, and should she have an affair, it would be considered adultery, and both she and her lover would be liable for the death penalty.
[5] It should be noted that three verses prior, there is what, at first glance, seems to be a similar case with a very different ruling. The verse says,
When there is a virgin woman who is betrothed, and a man finds her in the city and sleeps with her, both of them are taken out of the city and stoned; the woman [dies] because she did not call out in the city, and the man because he afflicted the wife of his fellow… (Devarim 22:23-24).
This seems to be a case in which a woman who is raped is killed, which would be opposed to the Torah values we have been presented with thus far. Upon closer examination, we see some key differences between this verse and verse 26, which explains why the Torah rules differently in the city case than the field one. In verse 26, the text specifically uses the language “and he grabbed her,” indicating that this was not a consensual sexual encounter. In verse 23, the text only says that the man “slept with her.” The language of grabbing hold of someone that we see in verse 26 is found throughout Tanakh in cases of rape. The same word is used in the story of the pilegesh be-Givah (Shoftim 19:25) and twice in the story of Tamar and Amnon (Shmuel II 13:11,14), two of the more violent rape cases. A similar word is also used in the story of Joseph and Eishet Potiphar (39:12). Further, Tanakh regularly uses the language of “seeing” and “taking” (which is similar to the language of “va-yachazek,” “he grabbed hold”) someone as an indication of rape (Bereishit 6:2, ibid. 9:22, ibid. 29:23, ibid. 34:2), language which does not appear in verse 23. Abarbanel comments on verse 23 and says that this is clearly a case of consensual sex, or else the Torah would not be punishing the woman, “because the Torah does not punish a man or woman unless they did an action willingly and with intention, but if they were forced or did something accidentally” they would not be punished. Further examination clearly indicates that verse 23 is a case of consensual sex.
[6] Another statement of the Gemara that recognizes the severity of rape of a married women, but seems to belittle that of a single woman, is Sanhedrin 73a:
A murder case is juxtaposed to a case of rape of a betrothed woman: Just as one can save the betrothed woman from being raped by killing her attacker, so too can one save a potential murder victim by killing the murderer.
There are only two cases in halakhah in which one is allowed, perhaps even mandated, to kill an about-to-be-sinner before they commit the crime, in order to prevent the crime from happening. Those two cases are rape and murder. Even a person running to do avodah zarah may not be killed to prevent that egregious sin from being committed. However, this is only to prevent the rape of a betrothed or married woman (or some other situation in which the relationship between the rapist and his victim is inherently obligated in kareit or death by beit din, even had she been a willing participant). The Gemara indicates that if the woman about to be raped is single, a bystander would not be permitted to kill her attacker to prevent the rape. Once again, the Gemara seems to be distinguishing between rape of a betrothed or married woman and rape of a single woman, with the former being treated as one of the worst possible crimes and the latter much more leniently.
Some attempt has been made to equalize the practical law in both cases by pointing out that most single women are in a state of niddah, so that a sexual relationship with them would also be inherently obligated in kareit, thus permitting a bystander to kill their potential rapist as well. Even according to this view, if a single woman did not yet get her period or had been to the mikveh, one would not be permitted to kill her potential rapist to save her. It is only through the “loophole” of niddah elevating the forbidden status of a single woman and the rapist’s relationship that her rapist could be preventatively killed. Regardless, the halakhah still indicates that rape of a single woman in and of itself is not a serious enough crime to warrant killing the rapist to save the woman.
[7] Rav David Stav and Rav Avraham Stav, “Pigi’ah Minit vi-’Hatradah Minit Bi-Halakha,” Tzohar 43.
[8] Leviticus 1:2; Leviticus 23:8; Leviticus 23:10; Leviticus 23:36, et al.
[9] Amos 5:21-25; Isaiah 1:1-17; Jeremiah 7:21-23; Hosea 6:6, et al.
[10] See Bava Metzia 59b.
[11] For example, the Torah references many figures that appear in Mesopotamian mythology. An instance of this is that Yam, the Hebrew word for ocean, is the god of the sea in Canaanite mythology (see Joshua J. Mark, “Yamm,” World History Encyclopedia, 4 Nov. 2018.).
[12] Jake J. Jones, “Pre-Biblical and Old Testament Rape Law Parallels: Recurring Androcentric Themes in Historic Biblical Text,” (capstone project, Rutgers University – Camden, 2013), pp. 1–2.
[13] Ibid.
[14] Likkutei Halakhot, Sotah p. 21
[15] I.e., raping a single woman, which in the time of the Torah was seen as a lower offense than raping a married woman.
[16] Devarim 21:10-14
[17] This is according to the opinion of Rav. See Yerushalmi Makkot 2:6.
[18]In an attempt to right his wrong. At that time, marrying this woman meant taking financial responsibility for her life and giving her a social status.
[19] This entire passage is very difficult to understand. Upon first glance, it seems to institutionalize a process for rape. However, if we look deeper, it is clear that the presence of this law does not mean the Torah allows rape. The same way that bringing a korban hatat does not mean the Torah condones sinning, but rather accepts the reality that sins happen, and has a response in such an event, so too here the Torah has a response to rape in the context of war. Yerushalmi Makkot 2:6 says that Rabbi Yohanan holds that a man cannot have sex with the eishet yefat to’ar until he has gone through the 30 day process. The Korban Ha-Eidah comments that the first time the man has sex with the woman before this 30 day process has taken place is forbidden, and how much more so the second time. In other words, although in the case of eishet yefat to’ar the rape is not allowed, when such a thing happens, the Torah requires the man to take responsibility for his action.
[20] The Gemara later elaborates (Bekhorot 51a) that although the pasuk about the fine does not specifically use the word shekel, the Mishnah (Bekhorot 49b) teaches us that even in a rape case, you pay according to the value of Tzur. Rashi comments that we follow Rav Asi (Bekhorot 50b), who says that anytime the Torah says kesef it refers to kesef tzuri.
[21] Specifically, they cannot collect leket, shikh’hah, pei’ah, and ma’aseir ani.
[22] This is also brought down in practical halakha (Shulhan Arukh, Even Ha-Ezer 77:1)
[23] Devarim 22:28
[24] If, during the course of the assault, the woman is cut and bleeds, the rapist would have to pay all 5 payments for the cut. (Rambam, Hilkhot Hoveil u-Mazik 2:6).
[25] Kiddushin 14b
[26] A person who sells himself into slavery must be freed in the yoveil year. However, until that point, he remains a slave. (Rambam, Hilkhot Avadim 2:3)
[27] Rambam, Hilkhot Avadim 1:7.
[28] This is often the case in halakhic pesak. For example, Rav David Tzvi Hoffman writes in his responsa, Melameid Le-ho’il, vol. 1, Orah Haim 29, addressing the question of whether people who violate Shabbat in public should count for a minyan, that although there are many sources that would seem to suggest that they should not, Rav Hoffman, responding to the reality around him, notes that the practice is to count these people. He proceeds to give halakhic validation for this practice. Rav Hoffman lived in Germany from 1843-1921, a time when many Jews worked on Shabbat. Recognizing this reality as well as the common practice around him, Rav Hoffman issued a pesak to support what was actually happening in the world.
This is one of many classic examples of pesak halakhah being determined based on the social reality at any given time.
[29] “History of Sexual Abuse and Harrassment,” Center for American Studies, Columbia University, 2021.
[30] Avodah Zarah 36b
[31] Judith Lewis Herman, Trauma and Recovery: The Aftermath of Violence – from Domestic Abuse to Political Terror, Basic Books, 2022.
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