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The Torahs #MeToo Moment

By: Rav Michael Susman

Our Parsha begins with one of the more troubling situations that we find in the Torah, the case of the Yifaat To'ar, the non-Jewish woman who catches the attention of a Jewish soldier during a time of war. The Torah describes the procedure that allows for the soldier to abduct the woman, perhaps even to rape her once (this seems to be the conclusion of the Gemara in Kiddushin (21B-22A) and is subsequently a machloket Rishonim), and then marry her.  The rationale behind this law is famously known as "Dibra Torah Kneged Yetzer HaRa", that the Torah comes to accommodate an individual's most base instincts, and is the subject of discussion in the above quoted Gemara.

While we are familiar with the fact that for practical reasons the Torah will allow questionable practices to continue in a highly regulated setting (sanctioning slavery comes to mind as a prime example), the concept of Dibra Torah Kneged Yetzer HaRa is clearly in another category. The sanctioning and regulating of slavery can be rationalized as accommodating an unhealthy societal reality while actively limiting it with the aim of  ultimately abolishing it (for a masterful presentation of this theory, see  Rav Elchanan Samet's Iyunim L'Parshat HaShavua, third series, Parshat Mishpatim). Dibra Torah Kneged Yetzer HaRa seems to be advocating something radically different.  To paraphrase the Gemarah's words, it is preferable to eat from questionably kosher fare instead of outright treif. In other words, we recognize that the soldier will not be able to control himself, so let us at least create a framework of (admittedly distasteful) permissibility within which he can release his urges.  When we stop to think about it, this is not only morally troubling, but it is logically untenable. It seems inconceivable that Chazal would even suggest the existence of such a category.  After all, any time we sin is by definition a capitulation to our Yetzer HaRa. A broad application of this principle would essentially negate the entire concept of Mitzvah and Aveira and of Sachar v'Onesh. And yet not only do Chazal suggest Dibra Torah Kneged Yetzer HaRa, but this position is adapted as the halacha by Rambam (Hilchot Melachim Chapter 8) and others.

What is perhaps more troubling is that it didn't have to be this way. In contrast to the approach of the Bavli that we referenced above, the Yerushalmi has a somewhat different take on the passukim. The Yerushalmi (Makot 2:6) cites R. Yochanan as rejecting Rav's assertion that the Torah permitted the rape of a Yifaat To'ar. Rather, says R. Yochanan, the Yifaat Toar remains forbidden to the Jewish soldier until after all the steps outlined in the Torah for her ultimate conversion to Judaism and marriage to her captor have been fulfilled (lo biah rishona v'lo biah shnia).

R. Yochanan's reading of the passukim is compelling; Ramban (21:13) actually states that this approach is the simple meaning of the passukim (v'zehu maashmauto shel mikra). Moreover, Rav Yehuda Cooperman in his work Kedushat Peshuto Shel Mikra suggests that this Yerushalmi is the basis of Rav Saadia Gaon's position (Sefer HaMitzvot of Rav Saadia Gaon, Positive Command #74) that if an individual desires a woman that he captures in war, he is commanded to convert her.  As Rav Cooperman points out, at first glance the thought that the case of the Yifaat Toar might be an actual command as opposed to a reluctant dispensation is jarring. In light of R. Yochanan's position in the Yerushalmi, however, it makes perfect sense. We are no longer talking about Dibra Torah Kneged Yetzer HaRa, a concept which is not even mentioned in the Yerushalmi, but rather a normative path to marrying a war bride, bereft of moral compromises.

This of course just begs the question. Why did the Baalei Halacha choose the interpretation of Dibra Torah Kneged Yetzer HaRa in the Bavli as being normative, even though, as we saw in the words of Ramban, the simple meaning of the passukim seems to be in consonance with R. Yochanan's position in the Yerushalmi?

I would like to suggest that the Bavli takes a more jaundiced view of human nature, and more fundamentally the Torah itself refuses to view man through rose colored lenses.  Dibra Torah Kneged Yetzer HaRa means that we accept man for what he is, not for what we wish him to be.

Let us begin with the questions that we raised at the beginning of our study.  How could the Bavli even suggest that the Torah would entertain the concept of Dibra Torah Kneged Yetzer HaRa? Rav Baruch Epstein (Torah Temima Devarim 21:11 note 72) suggests that the concept of Dibra Torah Kneged Yetzer HaRa is limited to times of war. When going to fight, an army needs to be totally "locked in" on its mission, and we cannot allow anything, not even morality, to take away from the chances of succeeding in that mission. A soldier who is distracted by restrictions on his sexual urges will be a less effective soldier. Therefore, the Torah reluctantly allows for Yifat To'ar though only in a situation where the urge is overwhelming and even then within the limitations delineated by the Torah. In a situation of clashing values, being victorious in war or being thoroughly ethical in one's conduct, the Torah chose realism over a too difficult to achieve ideal. The Torah chooses to encourage ethical behavior but ultimately recognizes that some, perhaps even many, will not be able to uphold that standard. As a result the Torah offers a second, less desirous path.   

R. Epstein seems to be echoing and expanding upon the position of Ralbag (I have no idea if he saw Ralbag or not). Ralbag claims that the Torah on the one hand allowed for the rape and subsequent marriage but on the other hand did everything possible to discourage it. All the limitations on completing the process of marrying the Yifaat To'ar, as well as the financial price of setting her free if he ultimately chooses not to complete that process, are designed to discourage the soldier from taking her in the first place. Everything that the Torah can do to discourage the practice is employed, but nonetheless reality demands that Yifat To'ar not be entirely forbidden. Dibra Torah Kneged Yetzer HaRa. (As an aside, this approach also gives added power to the famous Midrash , quoted by Rashi, and just about everyone else, including Ralbag, that the ultimate fate of the soldier who marries the Yifaat To'ar is to come to despise her and to see his family destroyed by jealousy and ultimately rebellious children.)

Ultimately of course, all of this is deeply unsatisfying. While the reality of man's baser instincts might be to take advantage of an enemy captive, can we truly accept that the Torah gives higher value to other priorities than to ethical behavior?  In an undated  sicha to Yeshivat Har Etzion, Rav Aharon Lichtenstein zatz"l (click here to read) stresses that the Torah's reluctant submission to reality should be understood as just that, accepting reality while at the same time critiquing this reality and most importantly, demanding of the soldier (and, by extension, of all of us) to strive for much more.  We should never acquiesce to accepting the lesser of two evils as our standard when we can in fact rise above both evils. And we should always strive to achieve what the Torah expects of us, and not what the Torah might permit, due to extenuating circumstances. 

But Rav Lichtenstein adds that there is another message for us in this Parsha. We should not view achieving what the Torah expects of us as being some expression of righteousness, thereby rendering the Torah's minimal demands as being an acceptable level to settle for. Nothing could be farther from the truth! Our goal must always be to strive for and to achieve what the Torah expects of us, even if in the past we have settled for less. We can only accomplish as much as we strive for, and we dare not strive for anything less than what we should, and can, achieve.

Shabbat Shalom and Ketiva V'Chatima Tova     

 

 

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