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Ki Tezei 5765

By: Rav Michael Susman

Our Parsha begins with the rather strange and shocking mitzvah of Eishet Yifaat Toar, the beautiful woman taken captive during a war, and the procedure to be followed when marrying her. While upon first reflection, the use of the word "mitzvah" to describe the abduction and rape of a captive woman may seem bizarre, the fact is that the situation that the Torah describes is the basis of no less than three separate mitzvot cited by the Sefer HaChinuch (# 532-534 in the standard edition). In our shiur this week we will examine this issue and see if we can understand what the Torah wishes to teach us throught this mitzvah.

The Gemara in Kiddushin, (21b-22a) discusses the parameters of this case. What emerges is that the Torah recognizes that the unique circumstances of war create a situation where a man may be overcome by lust. The Torah therefore seeks to regulate this behavior by establishing ground rules by which the soldier may in fact satisfy his desires. In a nutshell, he is required to take the woman into his home, and after a waiting period during which she is left to mourn, he is allowed to marry her (if he still wishes). (The various meforshim discuss the concept and purpose of this waiting period and the various actions which the woman must perform during them, but that is not the focus of our discussion.) Let us examine the Gemara more closely.

The Gemara's starting point is a Kohen, who is normally forbidden to marry a convert. Since to ultimately marry her, she will have to convert, does the law of Yifaat Toar apply to him? The Gemara cites two positions amongst the Amaroim. Shmuel says that a Kohen is forbidden to have relations with the Yifaat Toar, while Rav permits them. The Gemara then examines these two positions and offers two possible scenarios for the dispute. In the first scenario, both Rav and Shmuel would agree that a Kohen would be permitted to have relations with the women once (biya rishona), because the entire premise of the halacha is based on the concept of "lo dibra Torah eleh k'neged Yetzer Hara", the Torah only permits this act because of the passion and lust which is known to overcome soldiers in the heat of battle (literally, the Torah only spoke due to the evil inclination). A Kohen, after all, is subject to the same temptations as any other soldier, and therefore is also granted the license to sate his lust. The question that Rav and Shmuel are debating is the subsequent step (biya shenia). Having raped the woman, may the Kohen now continue in the path described by the Torah, ultimately marrying this woman despite the fact that she will be a convert? Rav claims that since the woman was already permitted to the Kohen in circumstances that would generally be prohibited (rape, which was only permitted due the exigencies of war), she remains permitted to him though she would normally be prohibited to him as a convert. Shmuel, on the other hand says no, as the two actions (the original rape and the ultimate marriage) are not connected. Shmuel's insistence on separating the two is borne out by the fact that the there is no guarantee that a marriage will ever take place. In fact, according to many of the meforshim, the purpose of the waiting period described in the Torah is precisely to discourage such a union.

The second scenario that the Gemara suggests is that both Rav and Shmuel agree that there is no possibility for marriage between the Kohen and the Yifaat Toar due to her convert status. The question is whether the waiver that the Torah gives to allow the initial rape of the woman applies to the Kohen or not, since he will never be able to marry the woman. What is clear from the discussion is that in either scenario, the soldier rapes first and marries second, with the question being if and how the halacha of Yifaat Toar is affected by the special status of the Kohen.

On the face of it, is difficult to find words which adequately convey the shock and horror that this halacha, and the Gemara's discussion of it, should engender. How can the Torah allow rape? Is this a value system to which we should aspire! Would we seek to justify a system which would condone such behavior on the part of our sons, or lay our daughters open to such violation by others under any circumstances?

On an intellectual level as well, the logic behind the statement "lo dibra Torah eleh k'neged Yetzer Hara" seems unfathomable. Is not the purpose of the Torah and Mitzvot precisely to confront and tame the Yetzer Hara, not to accommodate it? Taken to its logical extreme, all mitzvot may give way when the Yetzer Hara proves too strong. "Just say no" becomes "just do it". After all, who can be expected to resist the temptations around them?

In fact, the discussion of this Halacha has a decidedly different flavor in the Yerushalmi (Makot, Perek 2, Halacha 6) quotes the position of Rabbi Yochanan, who flatly rejects the possibility that the Torah would sanction rape under any circumstance. ("Ani omer lo biela rishona vlo shniya, eleh l'achar kol hamaasim haelu". I say, not initial intercourse and not subsequent (intercourse), except after these acts i.e. the waiting period and marriage). This position changes our entire landscape. The Torah is neither sanctioning nor condone such a heinous action as rape. Rather, the Torah provides us with a clear and unambiguous path to satisfy the desire one might have on the one hand, while at least preserving (if not enhancing) the sanctity and dignity of the relationship between man and woman on the other. It is worth noting that many prominent Rishonim, such as Rashi (according to Tosafot in Kiddushin dibbur hamatchil Shelo Yilchatzena) and the Ramban (Devarim 21:13), adopt the position of Rabbi Yochanan over that of Rav and Shmuel.

Nonetheless, we are still confronted with two problems. Firstly the fact remains that the position of Rav and Shmuel, as quoted in the normally authoritative Bavli, accepts the possibility of Torah sanctioned rape in the case of Yifaat Toar. No less an authority than the Rambam accepts this position as normative Halacha. Secondly, if we accept the position of Rabbi Yochanan as Rashi and the Ramban do, how are we to understand the concept of "lo dibra Torah eleh k'neged Yetzer Hara". According to this position, there has been no accommodation of the Yetzer Hara!

Tosafot raises the second question when critiquing Rashi's opinion, and offers the following answer. The Yetzer Hara is driving the soldier toward relations with an individual who would usually be forbidden to him. The assumption is that this "forbidden fruit" aspect, combined with the power that being part of a conquering army gives the soldier, is what is creating the attraction in the first place. By creating a framework that will ultimately enable him to satisfy his desires the soldier is now given the tools with which he can control his lust and not act in a forbidden fashion. Thus, the Yetzer Hara is "accommodated". In this context it is worth noting the position of the Ramban, that the case of Yifaat Toar is the only one in the Torah where a person may be forcibly converted (see Devarim 21:12). Hence, the soldier knows beyond any doubt that ultimately he will be permitted to have relations with this woman, while the Torah has ensured that even in a war situation sanctity and dignity are preserved.

The position of Rav and Shmuel, and consequently the question of how the Torah could ever surrender the moral authority of Torah and Mitzvot to the dictates of human lust remain problematic. Rav Baruch Epstein, in his work the Torah Temima, attempts to limit the scope of both Rav and Shmuel's position as well as the application of "lo dibra Torah eleh k'neged Yetzer Hara", by confining the discussion to the case of war alone. According to the Torah Temima, the unique situation created by war requires unusual license which can never be granted elsewhere. The Torah of course recognizes that there are circumstances where the mixture of desire and power will prove irresistible to some. That is in fact the standard recipe for all sin in any time and place. When a person desires something, and has the capacity to accomplish or acquire the object of their desire, only that individual can determine if the goal is a permissible one and if not, prevent himself from transgressing. Failure to control one self leads to sin. In war, however, the situation is radically different. The ultimate goal must be to win. If repressing one's animal desire will reduce his effectiveness as a soldier, then even rape may be overlooked. Hence, though accommodation will be made to the Yetzer Hara in this extreme situation, it will not affect the rest of the Torah worldview.

This approach is ultimately unsatisfying on two levels. Firstly, as Rav Elchanan Samet notes, the point where the halacha of Yifaat Toar begins is generally the point where victory has been secured, and the conqueror is looking to enjoy the fruits of victory. Therefore, the question of effectiveness as a soldier is no longer at issue. Moreover, as any officer can attest, a soldier's effectiveness is most often enhanced, and not reduced, by a greater degree of control and restraint. Hence, the Torah Temima's suggestion is questionable at best. Finally, even if we were to accept his opinion at face value, the suggestion that the Torah would ever condone such base behavior as rape, or that by doing so the overall moral authority of the Torah would remain unaffected, is a highly dubious one at best.

In his commentary to Yifaat Toar, Rabbenu B'chaya ben Asher offers a startlingly different approach to our problem. Clearly uncomfortable with the entire issue, he begins with an introduction praising restraint and attacking those who allow themselves to be controlled by the desire of their heart and eyes, rather than the other way around. He then proceeds to claim that the laws of Yifaat Toar come to bring Kedusha even to the situation of war, though how his acceptance of the position of the Bavli over the Yerushalmi is to be understood in this context is left unexplained.

After explaining the parsha along the standard lines outlined in the Gemara, he suggests a different, allegorical approach. Essentially, says Rabbenu B'Chaya, we need to understand the parsha of Yifaat Toar not as halacha but as allegory. There is no Eshet Yifaat Toar at all; rather there is man in constant confrontation with his baser instincts, his Yetzer Hara. Yifaat Toar represents the Yetzer Hara. The Yetzer Hara, like an alluring, forbidden relationship, comes to tempt and deceive, to take control of an individual rather than allowing a person to control one's own behavior. When we are told that "lo dibra Torah eleh kneged Yetzer Hara", the meaning is not that we are some how accommodating the Yezer Hara. In fact, the opposite is true. In the allegory of Yifaat Toar we are being taught how to tame and control the Yetzer Hara. All the demands that are made on the woman once she enters the soldier's home are all allegories for defanging the Yetzer Hara so that, like the Yifaat Toar who ultimately abandons idol worship and enters into a sanctified relationship with her Jewish husband, the Yetzer Hara also becomes a tool for Kedusha.

Of course, Rabbenu B'Chaya is not denying the Halacha of Yifaat Toar as derived by the Gemara and codified by the Rambam (though perhaps we could suggest that he envisions a parallel to the laws of Ben Soreh u'Moreh, the Rebellious Son, where the halacha exists, though it was never practically applied). Nonetheless, his suggestion, that the Torah would never have us seek accommodation with our baser instincts, but instead is constantly instructing us to seek and exert control over our behavior, resonates deeply.

Finally, it is worth considering the approach of Rav Samson Rafael Hirsch to our problem. Rav Hirsch does not deal directly with our questions, but he establishes a baseline which merits consideration. According to Rav Hirsch, the Torah will on occasion use an extreme case in order to educate for the more common situations. If the Torah can insist on norms for the treatment of the Yifaat Toar, a woman who in any other society would have no protections and would be forsaken to the whims of her captors, imagine the respect and sanctity that must be accorded to one's partner in a normal relationship. In Rav Hirsch's view, there is no such thing as compartmentalization. One can not strip an individual of all dignity in one situation, and expect to know how to treat a different individual or relationship with respect and sanctity. All of our actions affect our personalities. Of course, the opposite is true as well. If one's behavior in non-extreme situations does not reflect fairness and dignity, then in an extreme situation the descent to barbarism is short and swift.

This past week we have been witness to horrifying pictures of the destruction of shuls and sanctuaries in what was Gush Katif. That our Palestinian neighbors are capable of behaving in such a fashion, while not surprising, is yet another reminder of what a people without a sense of dignity or sanctity is capable of. In fact, given their past record of atrocities, it is perhaps just a benign reminder. Sadly, what is also not surprising is the lack of outrage elsewhere. Can one imagine what would happen if any other people were to desecrate places of worship? Would there not even be a headline on CNN if it were churches that were torched? Would the New York Times not howl in outrage if Mosques were destroyed by Hindus? Instead we are told that "Gazans Revel in Ex-Settlements".

This, too, is an example of base behavior being dictated by a lack of sensitivity on a daily basis. In a world which is blind to sanctity, even destruction becomes a source of revelry, and defilement is of no importance. Our goal must be to bring sanctity and dignity to a world which has lost all understanding of the meaning of these concepts.

Shabbat Shalom


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