While trying to understand the Torah view of rape and sexual abuse, it is important to be aware that these same questions apply in the secular world. Furthermore the current understanding of rape and sexual abuse as primarily psychological abuse and trauma to the victim - is only about 30 years old. The following are some of many articles on the topic.
Statutory Rape - In History Context
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Guardian In 1862 the US physician Dr Edmund Arnold testified in court that it was "very improbable" that pregnancy could result from rape,
because "in truly forcible violations … the uterine organs cannot well
be in a condition favourable to impregnation". Before dismissing such
comments as a relic of the 19th century, fast forward to last year, when
Bryan Fischer of the American Family Association claimed that trauma
from a "genuine case of forcible rape" would make it "difficult" for a woman to conceive a child.
That
rape has long been contested ground is perfectly illustrated by a new
book, Redefining Rape: Sexual Violence in the Era of Suffrage and
Segregation. Written by the feminist historian Estelle B Freedman, the
book covers key moments in the history of rape, and includes more recent
controversies – such as the speech by US Senate candidate Todd Akin
last year in which he used the term "legitimate rape" to argue against abortion in cases of rape and incest.
In
British law, which provided the basis for many American statutes, the
term "rape" originally referred to the nonsexual crime of violent theft
(from the Latin raptus or rapere). It was not until the 12th-century Codex of Gratian that a clear distinction was made between abduction and rape, with the latter defined as "forced sexual intercourse".
In
the 15th century, the father or husband of a raped woman pressed
criminal charges because the legal definition of rape in England had
narrowed to apply to the theft of a woman's virtue, either a daughter's
virginity or a married woman's honour.[...]
A point that may have been neglected is that of Shimon and Levi in the abduction of Dinah.
ReplyDeleteThere seems to be a difference between consensual and seduction vs. forced and abduction. Abduction, which occurs in rape, could be punishable by death, as seems to have happened in the story of Dinah.
There is no textual indication that Dinah was raped, i.e., the terms "hazaka" or "tefisa," which indicate force.
DeleteThat is a good point R' Joe,
Deleteit does say וַיִּקַּח אֹתָהּ וַיִּשְׁכַּב אֹתָהּ, וַיְעַנֶּהָ.
So what does it mean tafas, lakach - soudn similar, but the text does not say much about resistance etc.
About that third paragraph, In Lex Julia de Publica (published in 3rd cent, but at least the laws had to be old enough for the book to claim to be Julius Caesar's laws) Digest 48.6.3.4 & 48.6.5.2, "raptus" is defined as kidnapping for the purpose of sex. It looks like the term broadened in usage and then returned to something close to its original meaning.
ReplyDeleteSee also the definition of the term in Adolf Berger's Encyclopedic Dictionary of Roman Law, Volume 43, pg 667, here.
Also interesting, according to Berger (no relation) under Roman Law a rapist violates both raptus and vis (use of force). It would be hard to believe, then, that chazal would not have prosecuted a rapist for nezeq (damages, ie vis) in addition to the specific charge of me'aneis (rape). They were certainly aware that the surrounding society considered it both.
ReplyDeleteRabbi Orlofksy claims:
http://www.jemsem.org/index.php?option=com_content&view=article&id=283&Itemid=54
Rape is a difficult subject for society. On the one hand it is a sex crime. On the other hand, the women's movement has fought for years to have rape recognized for what it is - an act of violence. The Torah recognizes the legitimacy of both views. Today, the most common form of rape is what is known as date rape. Some guys, unfortunately don't respect the fact that no is no. Now, what happens if there is a relationship between two decent people and the man, perhaps thinking the woman really wanted to have relations, forces himself on her. She loses her virginity, perhaps she is pregnant, and all the years spent preparing herself for a particular type of life is destroyed. The Torah says she has the option to demand that the man "do the right thing" and marry her. But it is her choice, not his. If she doesn't want to marry him, that's it. But if she does, then the man loses the right to divorce her. The Torah gives the man responsibility for the marriage under the assumption that he is trustworthy. A man who shows he isn't to be trusted, loses that right. She can still go to court to get divorced from him, but he can no longer initiate proceedings.
Assuming, that she isn't interested in marrying him, or in fact if he was a disreputable individual who attacked her, then the Torah recognizes the act for what it is - an act of violence. We then calculate the damages, pain, suffering, etc. If she ends up in therapy for the next twenty years, he pays. Since there is no loss of a limb per se, the virginity is seen as the limb. A woman who is a virgin commands a larger kesuva than one who isn't. As such, that loss is also given to the woman. If the woman is a minor than the fine is paid to the father, who has responsibility for his daughter and essentially is given all of her earnings. But the fine is also seen as a form of punishment, which is waived in an instance where the felon takes responsibility for his actions, since that ultimately is the purpose of our legal system as I explained earlier.
This is by no means an exhaustive study but I hope it gives some insight into a difficult subject.
Sincerely,
Dovid Orlofsky
the uterine organs cannot well be in a condition favourable to impregnation". Before dismissing such comments as a relic of the 19th century, fast forward to last year, when Bryan Fischer of the American Family Association claimed that trauma from a "genuine case of forcible rape" would make it "difficult" for a woman to conceive a child.
ReplyDeleteIt has in fact been dismissed as a premodern superstition and the fact that Bryan Fischer of the American Family Association repeats it only characterizes him as an ignorant loony.
Furthermore the current understanding of rape and sexual abuse as primarily psychological abuse and trauma to the victim - is only about 30 years old.
ReplyDeleteI'll go out on a limb here and make the astonishingly novel claim that the change happened only because women are now weighing in on the issue. It doesn't take a gemara kop to see that if women were still confined to the kitchen and the nursery, as they were until a few decades ago, our view of rape would not change much from what it was 200 (or 2000) years ago.
technically, from a torah perspective, the punishment / damages from rape are either 50 shekel (whatever that means) or marry the girl for unmarried woman or appropriate punishment for "eishet ish". no money besides the 50 shekel. and no cohen in the future (unless you hold she is permitted, as we seem to hold today in most cases, unless married or otherwise forced) (though cohanim would anyway only married "almanot" from another cohen, for certain non "de'oraita" reasons)
ReplyDeleteThe Torah's punishment for this wrong is the only true just correction. The goyim's prescription is worse than the crime.
DeleteBoth of you are mistaken. It's a regular case of nezeq, with up to all 5 payments applicable just like any other nezeq. When the gemara says you pay pegam, it's defining the size of bodily damage, given that it doesn't actually impair her physical function. See Kesuvos 39a-b, or 32a, or the discussion on BQ 4b about which of those payments can be collected in a court that lacks true Moshe-derived ordination, Shavuos 33a, etc....
DeleteAlso, the argument is as specious as claiming that killing without witnesses who forewarn the murderer is no big deal because there is no mandatory punishment. A proven killer who didn't qualify for the death penalty was thrown in jail (food optional). The vast majority of murderers that Sanhedrin was convinced of their guilt ended up in jail. Sanhedrin had an obligation keeps society safe, and for that reason, other violent criminals were also thrown in jail. The punishments discussed in Mesechtos Sanhedrin and Makos were actually a minority of the ones Sanhedrin meted out.