Friday, August 24, 2012

Defining Onas (force) by others

The issue of onas (force) is an important one in a number of halachic areas. I would like to review a number of relevant sources to get a clearer understanding of what onas means. Onas also needs to be distinguished from forcing oneself. This is a critical issue for the case of get me'usa as well as whether  a wife is prohibited to her husband after rape as well as defining rape itself. I will make a separate post of sources where the force is described as forcing oneself.

Kesubos (51b): Shmuel’s father said that the wife of a Jew who has been raped – is forbidden to her husband since we are concerned about the likelihood that even though she was forced to have sexual intercourse but at the end she willing enjoyed it. Rav raised an objection to Shmuel’s father, It says in her kesuba “that if you are captured I will redeem you and take you back as my wife”? Shmuel father was silent…. What could he have replied? That the law was relaxed in the case of a captive since her rape is only suspected. According to Shmuel father, what circumstances would a raped woman be permitted by the Torah to her husband? If there were witnesses that she cried during the rape - from the beginning to the end - she would be permitted to her husband. However this ruling differs from Rava. Rava ruled that even when intercourse began by compulsion but ended with consent and even if she said to not harm her assailant and even if he had not attacked her she would have hired him to do it – she is permitted to her husband. What is the reason? – He aroused in her an uncontrollable passion – which is a form of compulsion. There is a braissa which is in aggreement with Rava. It says in Bamidbar (5:13): That a woman is prohibited to her husband if she had intercouse without being seized. It follows from this that if she was seized than she is permitted to her husband. But there is another case that even though she wasn’t seized she is permitted. What is that? Any woman who began intercouse under compulsion but at the end was willing.
Beis Shaarim(O.H. 283):  The Ra’ah learned this din from the case of the women who was originally raped but at the end she was willing. In that case whether the beginning of the intercouse was forced by rape or by threatening to kill her – she did not get pleasure from the beginning of the intercourse but rather suffered… And at the end of the intercourse in which she has pleasure, that pleasure is itself forced as is stated in Kesubos (51b) because the lust is aroused. Rashi explains that it means that the pleasure is also forced… So that is true here where he is forced to eat i.e., the food is forced down his throat to a point it can’t come back. In such a case even though he gets pleasure from the food – he does not have to say a beracha on this pleasure  since it was forced and he can’t help but having pleasure. Similarly if they say he will be killed if he doesn’t eat so he is obligated to eat because of “Chai bahem” (You shall live by them) he is being forced to have this pleasure and therefore doesn’t have to say a beracha. However if they beat him to force him to eat and he has the ability to withstand the beating and not to eat but he decides he would rather eat then to received the blows – he is not considered as being forced to have the pleasure.
Rambam (Hilchos Sanhedrin 20:2): Whoever is forced to do something which is punishable by the death penalty – the court does not kill him. Even though it is for a matter for which he should rather die rather than transgress and even if his transgression caused a profanation of G‑d’s name but since he was forced he is not killed for it. This is learned from the case of a betrothed woman who is raped the verse says “Do not do anything to the woman.” This is a warning to the beis din not to punish someone who was forced to do the act.
Panim Yofas (Bamidbar 5:19): It says in Shulchan Aruch (E.H. 178:3) that if a woman was secluded with a man who subsequently raped her – she is prohibited to her husband since she caused the rape by being secluded with him. Also look at my comments to Kesubos (51b) where Shmuel’s father said that a married women who is raped is prohibited to her husband because we are concerning that while the beginning of intercourse was with force but she participated willingly at the end. The gemora there concludes however that she is permitted to her husband because uncontrollable lust was aroused by the forced intercourse. We prove there that she has a presumption of innocence. However when she transgresses the prohibition against seclusion with another man she loses that presumption of innocence because of the suspicion that she willing participated at the end…

No comments :

Post a Comment

please use either your real name or a pseudonym.