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Ki Tezei 5772

By: Rav Uri Cohen

What Can the Torah Teach Us About Rape?

By Rav Uri C. Cohen

It is little wonder that rape is one of the least-reported crimes. Perhaps it is the only crime in which the victim becomes the accused and, in reality, it is she who must prove her good reputation, her mental soundness, and her impeccable propriety.

Freda Adler, Sisters in Crime (1975), Chap. 9.

INTRODUCTION

Many cultures of the past have treated rape lightly. Even today, periodically some politician or other public figure makes an insensitive comment about rape. Fortunately, the subsequent outrage indicates that many today have some recognition that rape is much worse than previously thought. There is still a long way to go, but attitudes are changing.

RAPE IS TRAUMATIC

For example, there's a growing understanding that rape is not sex that happens to be perpetrated by force; rape is assault.<1> And it is not only a physical attack but a personal and psychological attack as well. As Rabbi Aharon Lichtenstein explains in a Hebrew article about the Talmudic treatment of oness (rape) and mefateh (seduction):

[T]here is an element of trauma [in rape]. This perception is comprehensible, though perforce it is also dependent upon the "environment" of the one contemplating how society relates to the matter. . . .

If the Jewish nation today followed Torah law . . . it is a near-certainty that we would support a much more substantive punishment [than the original payment of damages],<2> out of the perception that we are dealing with a serious attack for which financial compensation alone will not suffice. This is so whether the punishment is intended as a deterrent, or whether it is intended in accordance with the Torah outlook as I understand it as a reprisal, to attack the criminal who attacked.<3>

As rape includes an element of trauma, it's not surprising that rape victims sometimes suffer from posttraumatic stress disorder (PTSD).<4> Among other symptoms, this sometimes includes psychic numbing, diminished responsiveness to the external world.<5> Once we become aware of this phenomenon, we can recognize it in the case of Dinah. When she is raped by Shechem (Bereisheet 34), her reaction isn't recorded in the Torah. This may be an indication of numbness and withdrawal. As a recent thesis elaborates:

[The Torah] realistically portrays many of the dynamics of rape. In the biblical story, Dinah shifts from grammatical subject in the first verse to grammatical object in the second verse. Looking beyond the literary environment of the text into a contemporary world in which rape is a common occurrence provides clearer insight into the story. The act of rape momentarily negates the womans agency. The rapist treats his victim as an object. . . . During the rape, her intentions and words do not matter. The biblical story of Dinah reflects this dynamic. . . .

The rape is a jarring blow and many women take a great deal of time to recover from it. Some do not recover at all. These women may continue to feel that they lack agency, that they are objects, and that they cannot speak. Society reinforces these effects by encouraging silence on the part of women who have been raped. Some women take years to speak about their rape; some never do. The biblical story also reflects these real life dynamics. No one asks Dinah about her experience, no one asks her how she feels. The other characters use the rape as an excuse for their own actions, while Dinah tries to recover her sense of self in silence and isolation.<6>

DON'T BLAME THE VICTIM

Lawyers defending accused rapists sometimes launch attacks on the victim. If it can be shown in court that she had been sexually active in the past, the implication is that she couldn't have been raped in the present. In the 1970s and 80s, almost all jurisdictions in the United States adopted some form of "rape shield law" to protect the victim from cross-examination about their past sexual behavior. Interestingly, the Torah expressed similar sensitivity a long time ago. It's in this week's parashah:

(23) [This is the law] where a virgin girl is betrothed to one man, and another man comes across her in the city and has intercourse with her. (24) Both of them shall be brought to the gates of that city, and they shall be put to death by stoning. [The penalty shall be imposed on] the girl because she did not cry out [even though she was] in the city, and on the man, because he violated his neighbor's wife. You shall thus rid yourselves of evil.

(25) However, if the man encountered the betrothed girl in the field and raped her, then only the rapist shall be put to death. (26) You must not impose any penalty whatsoever upon the girl, since she has not committed a sin worthy of death. This is no different from the case where a man rises up against his neighbor and murders him. (27) After all, [the man] attacked her in the field, and even if the betrothed girl had screamed out, there would have been no one to come to her aid.<7>

The Torah is speaking about a na'arah me'urasah, a teenage girl who has undergone kiddushin. She is halakhically considered married, so if she consents to sex with any man besides her husband (the case of mefateh) it's adultery and both she and the man are executed. But notice what comes next, in the case of oness the Torah defends the victim over and over. It's as if the verses are responding to people who are skeptical that it was "legitimate" rape. We can imagine the back-and-forth like this:

Torah: Only the rapist shall be put to death.

Skeptic: Really? Isn't there a general rule with any prohibited sex that the man and woman must receive the same punishment as each other?

Torah: You must not impose any penalty whatsoever upon the girl. . .

Skeptic: None at all?! Adultery is adultery!

Torah: . . . since she has not committed a sin worthy of death.

Skeptic: I don't understand. How is this different from the previous case, where she had sex and was executed?

Torah: This is no different from the case where a man rises up against his neighbor and murders him.

Skeptic: Hmm, you're saying this case is more like murder than seduction. Well, of course I agree that we don't blame the victim at all in a case of murder. But there, the victim is completely passive. Here, she was a participant in the adultery. Maybe she was asking for it? Maybe she enjoyed it? Shouldn't we look into her past, or at least what she was wearing in the present?

Torah: After all, [the man] attacked her in the field.

Skeptic: Why should the location make a difference? Just because a field is isolated doesn't mean she was attacked. Okay, there are no witnesses to testify that she must have consented because she didn't scream. But by the same token, there are no witnesses to testify that she must have been attacked because she did scream. Without witnesses, isn't it a case of "he-said, she-said"? We can't know whether she's lying (and it was seduction) or he's lying (and it was rape). Why not resolve the issue by looking into her sexual history?

Torah: Even if the betrothed girl had screamed out, there would have been no one to come to her aid.

Skeptic: Oh, I get it. You're saying that it's about her point of view. As long as she could assume that nobody would help her, there would have been no point in screaming.<8> It isn't considered "he-said, she-said" because we are giving the benefit of the doubt to the victim. Radical!

While the previous exchange does not appear in the traditional commentaries, it is noteworthy that a major halakhic commentary of the early twentieth century turns the Torah's defense of the victim into a halakhic obligation:

It is a negative commandment addressed to the members of the beit din (rabbinic court), telling them that they must not do anything at all to her. This is telling them not only to eliminate the death penalty, but that she is not to be embarrassed with any punishment whatsoever.<9>

RAPE IS COMPARED TO MURDER

The Gemara uses the Torah's comparison of adulterous rape and murder to derive important rules. Just as murder is yehareg v'al ya'avor one must allow oneself to be killed rather than murder, so too one must allow oneself to be killed rather than commit adultery. And just as for rape, nitan lehatzilah benafsho one may save the rape victim by killing the would-be adulterous rapist, so too one may save the murder victim by killing the would-be murderer.<10> On the latter rule, Dr. Bonna Devora Haberman comments that "Western justice systems have not yet attained this level of sensitivity about rape."<11>

These rules are limited to the specific case the Torah describes, which is a combination of adultery and rape. Nevertheless, the comparison can still teach us something about rape in general.

For example, Rabbi Yoni Lavie reassures a rape victim that there's nothing wrong with her:

You definitely do not need to do teshuvah for anything. The lowlife who did this to you he's the one who needs to do teshuvah, and who knows if he can ever atone for what he did. The Torah determines that rape is like murder "This is no different from the case where a man rises up against his neighbor and murders him." Does someone murdered in cold blood by terrorists need to do teshuvah for what they did to him? Imagining that there's something not right about you and that you are guilty in some way this is a type of psychological poison or venom that the one who attacked you left with you. The only sinner is him. You are the last one in the world who needs to be ashamed. The opposite! You are pure, pristine, and righteous.<12>

DAMAGES FOR THE DAMAGE DONE

What punishment does the Torah determine for a rapist when the victim was not already married? The perhaps surprising answer is monetary damages.<13> This is a variation of the general rule in the Mishnah that when one person injures another bodily, he must make five different payments: nezek (general damages), tzaar (pain), boshet (embarrassment), ripui (medical expenses), and shevet (unemployment).<14> These vary with each person, and are determined by the beit din based on the individual case.<15>

One might wonder how this punishment fits with an approach that is sensitive to the crime of rape. Here are three possible answers. First, in secular law the rape victim usually gets no compensation at all. In Torah law, the rapist must pay compensatory damages directly to the victim. At least she gets something.<16>

Second, for bodily injury in general, the written Torah declares that it deserves "an eye for an eye,"<17> the oral Torah demands monetary payment instead. The message is that the criminal cannot possibly make up for what he did, because there is no realistic punishment that would fit the crime. Unlike a system of incarceration, in the case of paying damages there is no pretense that justice has been done.<18>

Third, a system in which punishment is based on each individual case allows for change within the system. True, a beit din in a generation that isn't very sensitive to rape might well charge the rapist a relatively small amount. But a beit din in a generation whose eyes have been opened to the enormity of rape and its sometimes lifelong consequences might well impose a tremendous amount of damages. It has been suggested that a beit din taking this approach today could arrive at a figure of half a million shekalim.<19> In the same way that in a progressive tax, the tax rate increases as the taxable base amount increases, so too the Torah's punishment for rape can be described as a progressive punishment. The more seriously we view rape, the more serious the assessed damages will be.

We see that the Torah, while written thousands of years ago, still has much to contribute to todays discussions about rape.

NOTES

1. One contemporary Orthodox rabbi sees this idea in the Gemara (Ketuvot 39b). See Rabbi Mark Dratch, "Sexual Abuse and Marital Rape," JSafe: The Jewish Institute Supporting an Abuse Free Environment, Apr. 24, 2006. http://www.jsafe.org/pdfs/pdf_032206_2.pdf

2. One suggestion along these lines is that a rapist should get life in prison. See Arakhim MeAchorei HaChadashot, Vol. 39 (25 Tammuz 5756), pp. 2-3.

3. Rabbi Aharon Lichtenstein, "The Moral Significance of the Laws of the Rapist and the Seducer" [Hebrew], Alon Shvut Bogrim, Vol. 14 (Nissan 5761), pp. 83-84. The translation is my own.

4. See, for example, Dr. Matthew Tull, "Risk for Developing PTSD from Rape." http://ptsd.about.com/od/causesanddevelopment/a/risksexualabuse.htm

5. See, for example, Mary P. Koss and Mary R. Harvey, The Rape Victim: Clinical and Community Interventions (Sage Publications, 1991), pp. 78-79.

6. Rabbi Julie Pfau, Dinah is Still Silent: Trauma and the Unrealized Potential of Midrash (MA Thesis, Emory University, 2002), pp. 170-171. For a parallel contemporary midrash, see Rivkah Lubitch, "Midrash Dinah," Deot, Vol. 15 (February 2003), p. 37. http://www.toravoda.org.il/files/Deot15.pdf

7. Rabbi Aryeh Kaplan, The Living Torah (Moznaim, 1981), Devarim 22:25-27 (p. 975).

8. The Ramban suggests this in his commentary on Devarim 22:23. See the analysis in Rachel Biale, Women and Jewish Law (Schocken, 1984), pp. 247-248.

9. Rabbi Yerucham Fishel Perla, Commentary on Sefer HaMitzvot of Rabbenu Saadia Gaon, Vol. 3, #37 (page 363 or kuf-pay-bet).

10. Yoma 82a-b.

11. Dr. Bonna Devora Haberman, Difficult Texts, Sh'ma, 31/579 (April 2001/Nissan 5761), p. 2. http://www.shma.com/2001/04/difficult-texts/

12. Rabbi Yoni Lavie, "I Suffered a Sexual Assault" [Hebrew], Olam Katan, Vol. 147, Shmini (28 Adar Bet 5768). http://www.makshivim.org.il/ask_show.asp?id=217630 The translation is my own.

13. The rapist is also forced to marry the victim, if, and only if, she wishes to marry him. This rule requires a full treatment of its own. For one approach, see Rabbi Dovid Orlofsky, Understanding Rape in Halacha, Da Ma Lhashiv (Jem Sem), 1 Sivan 5761. http://www.jemsem.org/index.php?option=com_ content&view=article&id=283&Itemid=54

14. Mishnah, Bava Kamma 8:1 (83b).

15. Rambam, Mishneh Torah, Hilkhot Na'arah Betulah 2:4-6. Cf. Shulchan Arukh, Even HaEzer 177:1. In the case of rape, nezek is referred to as pegam. There is also a kenas, monetary fine, but this is limited to a case where the victim is a na'arah.

16. Helene Schwartz [Kenvin], Justice by the Book: Aspects of Jewish and American Criminal Law (Womens League for Conservative Judaism, 1976), p. 75.

17. Shemot 21:24, Vayikra 24:20, and Devarim 19:21.

18. Avi Grossman, "A Man's Responsibility" [Hebrew], Makor Rishon, Sept. 14, 2008.

19. Arakhim MeAchorei HaChadashot, op. cit., p. 3.

 

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