Monday, September 12, 2011

I'm Really Not A Kofer... I Hope.

As most (or all) of the readers have probably realized by now, I'm a guy who holds very strongly of the halachic, Torah observant form of Judaism, and don't generally tend to point out things I find in the Torah or elsewhere in Tanach to be objectionable or worth changing or whatever. I really don't identify with the people who categorize themselves as liberal Orthodox and rally for the change of halacha to fit our modern times, or modify things to be more in accordance with current philosophic trends. However, two mitzvos in this past week's parsha of Ki Setzei really, really bug me.

I don't want anyone to make the assumption that I've become a biblical critic, reducing the word of G-d to nothing more than yet another literary document that humans can examine and argue with at will. Far be it from me to challenge the authenticity of our mesorah. I just don't understand the greater functionality of these mitzvos (both are similar as you'll soon see), specifically from a woman's perspective.

Cue shriek of horror:
Oh no! Shades of Grey has become a liberal feminist!

I will admit that I thought that the girls I would eventually date who attended Stern College for Women would be of the more pro-feminist sort, and in fact read a number of more modern Orthodox books on the subjects of women and halacha, such as several titles by Rabbi Yehuda Henkin (who isn't so left-wing anyway), but I never actually encountered anyone like that while I was dating. That topic probably deserves a post of its own, so I will simply attribute my inquiries on the parsha to insights developed from my pre-dating research.

Into my questions, both from
chapter 22.

Mitzvah 1: In Devarim 22:13-21, the Torah tells us about a man who marries a woman, hates her and decides to besmirch her name by claiming he discovered she wasn't a virgin, implying she was unfaithful to him while they were betrothed via erusin (in which they are halachically married but unable to cohabit), and that his father-in-law tricked him into marrying an immoral woman.

There are two potential conclusions. If she's guilty, she's executed as an adulteress. If her parents prove her innocence, the man pays a fine of 100 silver shekels to her father, and has to remain married to her, unable to divorce his wife for the rest of his life.

Mitzvah 2: Devarim 22:28-29 - If a man grabs hold of and lies with a virgin, who is not betrothed, he pays her father 50 silver shekels as a fine. He must also marry her because he afflicted her, without the possibility of ever divorcing her for the rest of his life.

Now, granted that I can see, from my very lowly human perspective, that the Torah is perhaps teaching the man a lesson about his bad behavior, and he will hopefully do teshuva and become a proper husband, turning his lust/ill intents into true love and caring for his new wife. However, having had some experience with human nature and hearing/meeting individuals who are not by any means model men or husbands, I don't think that will always be the case.

If so, and the man remains the testosterone fueled jerk he was before he was hauled to beis din to answer for his impetuosity, does the woman have any say in this?

The answer I DON'T want to hear is that the Torah was written in a patriarchal society where woman never had any rights, and thus we see the man-made hand behind our holy scripture. I don't believe such things, especially after learning more in-depth about mitzvos such as onah, which is one of the 3 biggies I'm now responsible for as a husband. So please spare me any such diatribe of that nature in the comments section.

After explaining my questions to ASoG while we at Shalosh Seudos together, I asked her if she were hypothetically in such a position, would she have any desire to remain married to a man who either defamed her or forced himself on her. Her answer was an emphatic no. I don't think I'm crazy, and I definitely know ASoG's isn't a feminist of any sort.

I checked Rashi, who doesn't comment, and Artscroll's Stone Chumash commentary is completely silent on this section. I confess that such was the extent of my research, and have not looked into any further sources since I don't really have the time presently. As it goes, grad school and marriage will do that to a person.

I hope to find a source, or that someone will tell me where one is located, that says the woman has an option to refuse to marry this guy just like she does by yibbim if her brother-in-law is unappealing to her.

Any readers out there have any thoughts or sources they'd like to contribute?


  1. What happens if the husband dies and his brother is married? Or if he has no brother?

  2. Are you referring to a case of yibbum?

  3. Enjoying this blog. I was actually wondering the same thing myself as I was prepping the parsha. I do know the Torah cites that a woman must agree to marriage (when eliezer meets Rivkah). Wouldn't this apply?

  4. Ruchi Koval - welcome! It sounds like a good source for the idea that her consent is warranted, but this case is also a bit different since the man is being forced to marry/remain married to the woman as a "penalty" of sorts. According to a pshat reading, she doesn't seem to warrant as much of a say as Rivkah very clearly does with Eliezer when her family asks her directly if she wants to go with him to marry Yitzchak.

    I imagine there might be a source in chazal somewhere about this. If there isn't, I'll have to stick with my more positive understanding...

  5. I don't know the answer to your question, but I am fairly certain you are incorrect about yibbum. A woman cannot refuse yibbum, it is only the man who may do so through chalitza.

  6. Keep in mind, we have to bring things to a more cultural perspective of the time.

    Women's security was based on having a spouse. Finding means of supporting herself were not as readily available as it is today.

    If a woman was violated, her chances of marriage, and so, financial security, plunged. A man must therefore take responsibility for his actions, and marry her, providing her of the potential home he had robbed her of.

    A woman must be willing in order for a marriage contract to be valid, so there is no concern in terms of enforced marriage on her part.

    This law was a major coup for women's rights at the time, in which her attacker would have to be answerable for her future.

    Consider, for instance, Amnon and Tamar. After he lures her and rapes her, her brother Avshalom are furious in his refusal to marry her. Even SHE wanted to be married to him to cover her dishonor, as no other would have her now.

    Avshalom eventually kills Amnon for refusing to marry his sister. Tamar lives out her days, unmarried, childless, her life destroyed by Amnon.

    Today, things would be a little different. A raped woman would not be considered "damaged goods," nor would she seek out any favors from the rapist.

    In the end, many matters cannot be viewed with the "modern" eyes of today; times have changed quite a bit from 50 years ago, how much more so than from 3,000.

  7. ljakw - yes, a woman can indeed refuse yibbum if she does not want to marry the guy. I keep finding a lot of sources that quote this halacha, but none that original citation in Shas. Any help, readers?

    Princess Lea - Granted, the Torah was given in a historical context, and that can, at times inform us regarding some interesting nuances of halacha, such Rambam's discussion about the laws of avoda zara/korbanos and Dr. Barry Eichler's essay on Ben Sorer Umoreh from last week's parsha in the YU Parsha book "Mitokh Ha-Ohel." However, I still believe very firmly that the Torah has a distinct but equal approach to men and women (mostly) and doesn't try to "harm" women. So while a historical context might make some sense, it still doesn't sit well with me entirely. Chazal have also demonstrated a greater understanding and fairness of women in numerous Gemaros that I've seen, so I won't be satisfied with a simple historical context response. Thank you for presenting the point respectfully.

    Thankfully, a reader emailed me a reference in Kesubos, which is located on Daf 39A and can be read here:
    which demonstrates that Chazal do indeed learn that the woman can refuse to marry the man who assaulted her.

    But that's only half the discussion. What about a woman being able to divorce the husband who defamed her reputation? Now even I admit this might be trickier, since I'm not sure if this fulfills the halachic requirements that allows a woman to demand a divorce.

  8. Again, if we go by those times, a man defames his wife and wants to divorce her. So who would marry her then? She would be robbed of her home and be devoid of support. This law is probably on the books so that a man would not be tempted to defame his wife - he is unable to divorce her, no matter what he may threaten or demand. While a woman may ask for a divorce, ultimately he must provide the get. If he would try to wiggle out of the marriage by forcing her to request the divorce, that is not even an option available to him.

    Again, another coup - you destroy your wife's name, you won't be able to get rid of her. Better not start.

    Keep in mind marriage was a very different animal. The wife had her life. The husband had his. They didn't spend their free time chatting and sharing beliefs about the world. She was cooking, cleaning, preparing for the winter, caring for children, he was scraping a living from the ground. Maybe they managed a "Hi" before they passed out every night from exhaustion.

    People didn't have the luxury of standing on ceremony. Being able to eat came first.

  9. First of all you have to remember that during Biblical times women didn't have earning power. And if you think that's all old history look at some Islamic states today. Marriage was not based on romance but economics. The woman had full rights to demand sustenance, sex and anything else she needs from her husband. As a result the marriage of the rapist isn't so much a reward to the rapist as it is to the woman who now, in a society where her non-virgin status puts her at a marital disadvantage, has security of property and person within this forced marriage. Meanwhile the guy, who didn't want her permanently, is stuck with her and has to support her no matter what.
    (Also you should know that divorce isn't impossible. It's just she has to consent to it while under halacha (before the cherem of Rabbeinu Gershom) one can divorce his wife without her consent.)
    Furthermore, remember that penalties are supposed to give you second thoughts before you commit the crime. The idea that this virgin is now going to be your wife should suffice to deter you from going after her in the first place.

  10. I have a different take on this, though it may take some explaining.

    In both cases, this man built a connection with a woman. Either he chose to propose and become halachically engaged or he had sexual contact (which does build a connection). In both cases, the connections go sour, either through defaming or forcing.

    I believe the imperative for marriage is not simply one of proceeding with the act of nesuin/chuppah. The ketubah is one document that outlines many obligations that marriage entails. The point here, I believe, is that the man built the connection, soured it, but is now required to marry her -as in genuinely give, fulfill his obligations to her as a husband, thereby building/restoring a positive connection.

    Anything less, and he has not fulfilled this halachah. So if he goes through with the wedding but treats her badly, he's still in violation of the halachah (and violating her), because there is no marriage without the obligation, without the genuineness, without the giving.

    Once he built a connection, the Torah will not "let him off the hook" with her. He must now learn and give of himself in a genuine way and build a positive relationship with her. Even if the money is a penalty for the reduction in value, the Torah teaches him that he is responsible for the relationship -building a healthy positive connection -once he started it.

    While many of us would like nothing to do with someone who has done wrong (violating us emotionally or physically), the message here is a strong one -that even acts that violate build a connection, and that we have a responsibility to restore the connection to positivity, not to sever that connection.

  11. As many of the previous commenters already mentioned, a woman really had no footing in the world if she wasn't married.
    As a matter of fact, this was the case until up to about 100 years ago or even later.
    So one can imagine that it would be tough to find a match for a girl that wasn't a virgin. Therefore the Torah forces this guy that tried taking away her future to marry her.
    There isn't much of the modern love factor in the Torahs description of the laws of marriage and the like.
    The Torah is concerned with the laws and protecting people's rights.

    Love is an emotion and cannot be regulated.

  12. David_on_the_Lake and others - Nowhere did I mention love or anything of that sort. I'm not talking about the woman not wanting to marry/stay married to the guy because she doesn't have a Disney princess marriage. I'm talking about hard facts that this guy clearly has major issues and might very well not be worth being married to, since he could continue to do hurtful and harmful things to her.

    I agreee that it is important to talk about the economical aspect, and the practicality of society that she may never get married otherwise, and that may very well be the answer to my question in the end. But I want to examine the issue from all sides. Plus, even in that context that so many readers are citing, I have an objection:

    The Torah also talks about divorce in Ki Seitzei - and it mentions that a man will still marry a woman her first husband suspected of immoral behavior and divorced her based on his unproven concerns. Not only that, but her first husband may even want to marry her AGAIN after being divorced from her second husband, and the Torah prohibits that (for clearer reasons that want to avoid wife swapping and rampant promiscuity).

    Clearly there was a market for divorced, non-virginal women as well. So while your points are well taken, they do not address the issue in it's totality. I can imagine a scenario that if someone would marry a woman who has a supposed bad reputation based on her divorce, that a man would also, and more willingly, marry a woman of good standing who was forcibly violated or falsely accused and proven innocent in beis din.

  13. In the case of the divorced woman..the Torah is laying down a possibility and reacting to that possibility.

    In this case the Torah is giving a woman the right to obtain her future security from the man who possibly took it from her (if she so chooses).

  14. In those days, there is a big difference between divorced and "damaged goods." The only way a woman could be without blemish was that she, ahem, lost her virginity through accepted boundaries.

    The Torah made it that divorce could be granted based on burnt dinner to ensure there was no stigma upon a divorced woman. I'm sure a woman who already has experience running a household would be able to remarry; a girl who was no longer "pure" would be beyond the pale.

  15. An אנוסה or a מפותה need not marry the perpetrator if she does not wish to do so - here's Rambam's formulation of the law:

    המפותה שלא רצתה להנשא למפתה. או שלא רצה אביה ליתנה לו. או שלא רצה הוא לכנוס. ה"ז נותן קנס והולך ואין כופין אותו לכנוס. ואם רצו וכנסה אינו משלם קנס אלא כותב לה כתובה כשאר הבתולות. אבל האנוסה שלא רצה היא או אביה להנשא לאונס הרשות בידם ונותן קנס והולך. רצתה היא ואביה ולא רצה הוא כופין אותו וכונס ונותן קנס שנאמר ולו תהיה לאשה הרי זו מצות עשה. אפילו היא חגרת או סומא או מצורעת כופין אותו לכנוס ואינו מוציא לרצונו לעולם שנאמר לא יוכל לשלחה כל ימיו הרי זו מצות ל"ת:

    נערה ובתולה א:ג

    הוצאת שם רע is a different story, as the couple is already married. We'd have to get into a discussion of the Sugya of מאיס עלי.

    And by the way, you most certainly do *not* have a mizvah of "ona'ah" - that's actually an extremely serious averah, *particularly* toward one's wife:

    לעולם יהא אדם זהיר באונאת אשתו, שמתוך שדמעתה מצויה אונאתה קרובה

    You mean 'onah' ;)

  16. Thank you Yitzchak for the comment and the correction :)


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