Mishpatim-Ki Teitzei: Mitzvot 61-557-558 – Concepts 131-133 – The Young Girl
Mitzvos 131-133 deal with laws regarding a na’arah betulah, a virgin girl between the ages of twelve and one day and twelve and a half and one day. Mitzva 131 (positive commandment 52 in the Rambam’s count) regards one who seduces a na’arah betulah (Ex. 22:15). Mitzvah 132 regards one who rapes a na’arah betulah and must then marry her (Deut. 22:29); mitzvah 133 teaches that after marrying her, he may not divorce her (unless she commits adultery).
A “na’arah” halachically “belongs” to her father, as he supports her and takes full responsibility for her sustenance and care until she is married. Thus, if a man seduces a virgin girl between the ages of twelve and twelve and a half, he must pay a fine to her father; if he rapes her, he must marry her, and if she declines, he must pay the fine. The girl has been hurt and feels vulnerable; she must be given a sense of stability and confidence that she will be cared for. The perpetrator must therefore provide funds for her support.
Interestingly, there is no separate mitzvah in the Torah that one who rapes a na’arah betulah must pay a fine; this requirement is included in the mitzvah regarding seduction. This seems a bit counterintuitive, since rape would appear to be worse than seduction. The gemara explains that this is because seduction of someone more vulnerable, such as a twelve year old girl, is always a little too close to rape. In modern legal terms, it is “statutory rape.”
The Torah conveys this by describing two different situations. If a woman is raped on a street, in a crowd, she must bring witnesses that it was rape and not consensual. But if the event took place in the field, when there were no people around, we automatically assume that she was threatened. She yelled, but no one was there to help her. It does not matter if the man claims that she was willing or if she was dressed as a prostitute. According to the Torah, whenever a woman is at the mercy of a man, especially when she is younger and immature, we automatically consider any physical interaction between them to be rape. Whether he actually held a knife to her or not, his actions are classified as rape if she had any reason to be frightened of him.
A girl once related the following horrible story to me. She went out on a date with a guy, someone she saw davening every day, and afterwards, he walked her back to her room on a college campus. He walked into her room, making her very uncomfortable. He asked her, “Have you ever had a man alone in your room before?” She responded, “Of course not! If my parents knew about this they would kill me.” After hearing this, he raped her. When she asked him, “How can you do this?” he said, “I know you are not going to tell anyone, because you don’t want to tell anyone that you let a man into your apartment!” This guy did not pull a gun on her, but the moment he used her reputation as leverage, he became a rapist.
What would the Torah command regarding this situation? The Torah speaks only of a na’arah betulah, a girl between the ages of twelve and twelve and a half, and that obviously does not address 99 percent of all rape situations. The Torah cannot deal with absolutely every human situation, and therefore provides us with broad concepts from which to derive the laws that apply to other situations. Chazal took the building blocks provided by the Torah, which are inadequate to fully maintain society, and developed a system of law that could respond to all societal problems. Chazal understood that underlying the law of the na’arah betulah was the Torah’s concern that any woman whose world has been shattered must be provided with security and stability, and the halacha developed accordingly.
In the case of a rape, the rapist is obligated to provide his victim with security. If she consents to marry him, he must marry her and can never divorce her. The Maharal of Prague uses this halacha as a analogy for the relationship between God and the Jewish People. The gemara in Shabbos describes that at Har Sinai, God lifted the mountain above the heads of the people and told them, “If you accept the Torah, then this will be your wedding canopy; if not, sham tehi kivraschem – this will be your grave!” The Jews, in essence, were forced to accept the Torah – they were metaphorically raped. In fact, because they were coerced, they were not truly obligated to fulfill the Torah until they accepted it willingly at the time of Purim. The halacha dictates that a rapist must marry his victim and may never break off the relationship; thus, in compelling the Jewish People to accept the Torah, God, so to speak, obligated Himself to never be able to back out of his relationship with them!
The girl is given the choice; even if her father suggests that she marry the man, she may reject the option. The Torah allows the girl to say, “I do not want to marry the person you set aside for me or the person you chose for me, even though that means that you will have to continue to support me.” The idea that a girl can reject her family’s choice of husband for her was revolutionary at the time of the Torah, and even at the time of the gemara.
If the victim chooses not to marry the rapist, the Torah obligates him to pay her father fifty shekel, which the gemara explains is restitution for what he took from her – the physical pleasure he derived from the intercourse. This payment – the kenas – does not cover the other damages that he is obligated to pay. First, he must pay for boshet, the embarrassment he caused his victim and her family, which is calculated based on her position and his position in the community. He must also pay for pegam, the damage he caused to her reputation. Although she had many potential suitors before and her family would have offered a dowry of $1,000, now, people will not be interested; she is no longer a virgin, and who knows what diseases she carries? Her parents will now have to increase her dowry, and the rapist must pay for that differential as well. In addition, he must pay for the physical pain that he caused her, tzar. (This would not apply in a case of seduction alone.) Interestingly, this value is determined by the perpetrator himself. He must consider how much he would be willing to pay to avoid the pain that he caused her, which obviously requires him to think about what he did to his innocent victim and be sensitive to her needs. Finally, he must pay for any doctor’s bills that resulted.
After computing these values, the perpetrator may very well conclude that the payment option is too expensive; he would rather marry her. Either way, he had to undergo this “sensitivity training” exercise, this evaluation of the damage he caused her. In fact, quantifying the damage in practical terms is a lot more effective than subjective evaluations of what constitutes “harassment” or any sensitivity courses offered by businesses. If you say that making a derisive comment is worth $1,000, chances are people will think twice before they speak! Moreover, these computations demand that the man actually communicate with his victim in an attempt to quantify her pain. If he has any hope of bringing down the amount, he actually has to sit and listen to his victim vent, to learn how to listen in an attempt to understand how she was hurt – what a great way to start a marriage!
Because authentic semichah is no longer intact, beit din cannot administer fines. While a rapist must still pay for boshet, pegam, tzar, and doctor’s bills, we cannot charge him the kenas. Instead, we excommunicate him from the Jewish community, and he is only allowed back in if he pledges to either support her for the rest of her life or to pay the sum that she demands. A potential rapist must thus consider if he wants his wages garnished for the rest of his life, probably a more effective deterrent than a prison term. (When I was a prison chaplain, I was absolutely terrified of Lemual Smith, who had raped and murdered six corrections officers. My clerk, one of the Jewish inmates, told me not to worry. “He wouldn’t hurt a fly – women, anytime, but not a fly!”)
In our time, we pasken that a rapist must marry his victim if she is willing, but the primary objective of the beit din is to restore the woman’s equilibrium. If she needs to be provided with a home, if she needs bars on her windows or a burglar alarm installed on her car, of if she needs to take karate courses to learn how to protect herself, it is his responsibility to pay for them. Instead of putting him in jail, Jewish law requires that the rapist work to restore her sense of security. There is no way out of this obligation; he cannot claim that he cannot afford to pay. He must beg if necessary, but he must pay her what he owes.
Obviously, we must also be concerned that a rapist will repeat his crime. The Jewish community must always have policemen to protect its members. Once someone committed a crime such as this, he would be watched and followed.
The point of this punishment is not to make it hurt so that he won’t do it again. It is to make it hurt so that he realizes that what he did was wrong and to make it right again. The objective of all of the Torah’s punishments is to teach, to encourage teshuvah.
Motzi Shem Ra
Mitzvos 134-135 deal with laws regarding a Motzi Shem Ra, a man who attempts to destroy his wife’s reputation by claiming that she was unfaithful. Mitzva 134 is a positive commandment – a Motzi Shem Ra must remain with his wife forever. Mitzva 135 is a negative commandment – the Motzi Shem Ra may never divorce his wife (Deut. 22:19). In fact, even a future claim that she committed adultery and that there are therefore grounds for divorce would have to be substantiated by two witnesses who actually witnessed the crime; since he lied once about his wife, we don’t believe his claims about her.
In the case of a Motzi Shem Ra, a man marries a woman who claims to be a virgin after an engagement of a year. The day after the consummation of the marriage, he comes before the court and claims that she was not, in fact, a virgin, and that he suspects that she lost her virginity between the time of their engagement and the time of their marriage. Since he is accusing her of adultery, a capital offense that incurs the death penalty, the case is immediately transferred to a court of 23 judges. The man must recognize that his accusation is not simply a matter of a fine; if his wife is convicted, she will be put to death. He must then bring witnesses, and, in theory, she may be sentenced to death based on their testimony. If it turns out these witnesses were lying, the witnesses are executed. (Torah law dictates that lying witnesses are punished with whatever punishment their testimony would have caused the accused, whether monetary payment, lashes, or the death penalty.) But even before witnesses are called, the man must bring the sheet from their wedding night. If there is blood on the sheet attesting to the woman’s virginity, the man is declared a Motzi Shem Ra, who lied to ruin his wife’s reputation.
This man is clearly a fiend; by accusing his wife the day after the wedding, he makes it abundantly clear that he was after one thing only. He wants to divorce her now, but he’s not interested in paying for the divorce, so he lies to get out of the marriage. He never cared for this woman, and now that he’s slept with her, he’s no longer interested.
The Sifri quotes Rabbi Shmuel: “Come and see how much hatred causes, that it leads to lashon ha-ra!” The Sifri notes that we learn from here that even if you begin with what seems to be an insignificant aveirah, it will ultimately lead you into dangerous territory. This man violated “ve-ahavta le-rei’acha kamocha;” after all, the primary obligation to “love your neighbor as yourself” applies to your spouse, and he did not love his wife. And because he failed to fulfill this mitzva, he violated the negative commandments of bearing a grudge or taking revenge, and subsequently the commandment of “Do not hate your brother in your heart.” Ultimately, this led to his willingness to commit murder; he wishes to have her put to death! This is what happens, the Sifri notes, when you marry someone and there is no love.
The Motzi Shem Ra is fined a hundred shekel for lying about his wife and he is not permitted to divorce her. The gemara notes that this fine is twice the amount of the fine administered to the rapist; the penalty for what you do with your mouth is greater than for what you do with your hands! Chazal recognized that damage through negative comments is often much more destructive than any physical damage. In fact, the halacha dictates that if a man hits his wife, he is punished with niduy – he is not given honors in the synagogue or any position of honor in the community, but people can still talk to him. If a man verbally abuses his wife, however, he is totally excommunicated. He must wear sackcloth and ashes, he is not allowed to wear shoes, he is not allowed in the shul, and no one is allowed to walk within six feet of him until he figures out a way to appease her. (In the days when there was one central beis din, they had ultimate authority and everyone respected their command.) In general, there are much firmer laws about what happens if you spread a rumor about someone or embarrass them in public than if you actually hurt them.
Ironically, schools tend to punish children only when they hit others; we barely do anything when a child calls someone a name. We convince ourselves and our children that “sticks and stones will break my bones but names will never hurt me” – but it isn’t true! The gemara teaches us the opposite approach; we should respond much more emphatically to verbal abuse than to hitting.
Mitzvos 136-8 deal with the sotah, a woman who is suspected of adultery. Mitzva 136 is the positive commandment to undergo the process of determining whether she had sinned. Mitzva 137 is the negative commandment not to put any oil in the sotah’s mincha (meal offering); mitzva 138 is the negative commandment not to put any levonah, frankincense, in her mincha.
In the case of a sotah, a man tells his wife, in front of two witnesses, not to be alone with a certain man. Despite his warning, the woman is seen by one witness entering a room with that man, and she is secluded with him for enough time for them to commit adultery. When her husband finds out, he accuses her of committing adultery; from that point on, he is no longer allowed to have relations with her. If he is certain that he has never committed a sexual sin in his life, he may proceed with the rest of the process, but if he has, it will be ineffective. He then brings her to the kohen; to humiliate her, her hair is uncovered and her clothing removed. For a pious woman, this is the greatest humiliation possible! (Incidentally, this was one of the criticisms of Schindler’s List – not the nudity of the victims in the gas chambers, but the fact that the mistress was also portrayed nude. Because she clearly was not embarrassed in that state, one might conclude that neither were the victims, whereas the truth is that this was devastating for those used to walking around completely covered.)
The Kohen makes the accused woman swear that she did not sleep with the man. Her oath is written on a piece of parchment with the name of God, and the parchment is dipped into water until all the ink dissolves, including the name of God. The name of God is erased to give the water its magic potency; God is willing to have His name erased in in order to bring peace to her family! She is then warned: If you sinned, upon drinking this water, your body will implode in the same way that the sin traveled into you – in the lower area and into the stomach. The man who sinned with you will explode the same way. This is so well publicized that it is likely that the man may intercede and admit that he slept with her, even if she continues to deny it. They then bring a sacrifice with no oil or incense and she drinks the water.
If the woman dies immediately, it is clear that she sinned. If she did not die immediately, she did not sin, and the water will then bring her blessings. If she had ugly children, she will have beautiful children; if she had girls, now she will have boys. Chazal say that Chana used this idea to her advantage. She told God, “If you see me you will see me” – if you do not give me a child, I will make Elkanah suspect me and I will have to drink the water, and because, of course, I will not actually commit adultery, you will have to give me children! Since you will have to give me children anyway, you might as well do it to me now!
Interestingly, the Torah describes a similar process after the sin of the Golden Calf. In order to determine who had sinned, Moshe ground up the Calf and mixed it with water. Whoever died upon drinking the water was a sinner. The Jewish People were like a wayward wife accused of wrong-doing, a sotah, so God tested them in a similar fashion.
One of the halachic concepts associated with the laws of sotah is safek tumah be-reshus ha-yachid. The woman was secluded with a man in a reshus ha-yachid, and we do not know if she is tamei, impure for her husband or not. Because of the doubt, we declare her tamei until she undergoes the sotah process. If, however, she were to be seen in public with the suspected man, she would still be considered tahor – a safek tumah be-reshus ha-rabbim is considered tahor.