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| Binyan Tzion Rav Ettlinger |
This is not simply a case that the husband is told not to believe her and therefore he can stay married to her (Igros Moshe (E.H. III 16). Nor is it considered rape as it is if she were a child - since she was fully compliant. In short is there a heter for her to remain with her husband because her motivation was not to sin or to rebel against her husband - but rather because she thinks it is a mitzva?
Such a case was dealt with by the Binyan Tzion (154) and other rabbis about hundred and fifty years ago. The ruling of the Binyan Tzion that permitted her to remain with her husband has been cited in recent teshuvos dealing with adultery - Seridei Eish (3:124) and Tzitz Eliezer 5:22. However other poskim have disagreed with the Binyan Tzion - Sho'el umeshiv 3:48 and Yad Eleazar (109). The Yad Eleazar (13) deals with another case in which a woman didn't realize the man who came into the apartment and had sex with her was not her husband - but her brother -in-law. When she realized her mistake and protested he raped her and she became pregnant. In this case the Yad Eleazar permitted her to remain with her husband and declared that the child was not a mamzer. [See Infidelity and Intimacy in 19th century Vienna by Julie Lieber in NASHIM a Journal of Jewish Women's Studies and Gender Issues 2011]
[this is my rough translation - please check the original Hebrew]
Binyan Tzion (#154) … One day when the husband was away on business a man arrived in the village from Poland with ragged clothing and he requested from the wife a place to sleep. While the wife was very modest all her life, her religious righteousness blinded her and out of a feeling pity she gave him a place to stay as well as food and drink. However the guest refused to eat any meat and he refused to drink anything other than water. He did other ascetic acts which seemed to indicate he was a very pious person such as physical afflictions which he did to himself everyday. He sat in his room all day alone with a sefer in his hand. In addition every night he would say tikun chatzos at midnight and mourn for the destruction of the Temple. He also refused to sleep in a bed but instead slept on the ground with a stone for a pillow. Everyday he would immerse himself twice daily in the cold waters of a nearby stream even though it was winter. However one Friday night after the meal was finished and the children and servants had left the table and gone to sleep – this fraud remained sitting at the table alone with the woman. After they talked a while she started to ask him who he was and where he had come from and where was he going? He replied that he was G-d’s messenger and his name was Eliyahu the Prophet and he was gathering his fellow Jews from the four corners of the Earth and that he only revealed this information to certain pious individuals. The woman in her foolishness totally believed him. She then went to sleep in her bedroom which adjoined the dining room. This disgusting person remained sitting in his place study a sefer until midnight. After midnight he got up and quietly tiptoed to her bed and woke her from her sleep. He told her that he had traveled from one end of the world to the other and he had not found anyone as righteous as she was who was deserving to be the mother of the Messiah. But the problem was that her husband was not fitting to be the father of the Messiah. He said therefore he had been sent from Heaven to have intercourse with her and at the appropriate time she would give birth to the Messiah who would redeem all the Jewish people. He said he would give her sign that he was in fact Eliyahu. He said that the following Tuesday after he had left her, if she would open the trunk which stood in her bedroom she would find a treasure of gold coins. But this would only happen if she didn't open the trunk before he had left. He spoke these things in such a convincing manner that he succeeded in seducing her and having intercourse with her on Friday Night, Saturday night. However on Sunday before dawn this disgusting person fled from there and no one knew where he went. This foolish woman decided it would be a good idea to write to her husband that he should return home quickly since G-d had given them a great treasure. Her husband listed to her and returned on Tuesday. But when the woman opened the trunk she did not find any treasure that the seducer had promised her. When she realized that she had been tricked she screamed and cried bitterly and told her husband all the disgusting things that had transpired through this wicked man. She explained to him that she hadn't don't this to rebel against him but rather she had done it for the sake of Heaven. She explained that the seducer was ugly and very disgusting and she hadn't done it for lust. However her husband was not placated with this explanation and went to the Rav and told him everything and asked what the halacha was regarding his wife. The Rav sent for her and cross examined her carefully and she told him all the details mentioned here. The Rav ordered that they separate from each other until he had a chance to consult with other rabbis. [...]
Conclusion: As a consequence of this line or reasoning we are saying that when she deliberately had adulterous intercourse – for the sake of Heaven – it did not constitute rebelling against and betrayal of her husband. However it is not correct to disagree with the Maharik and Beis Shmuel and to permit that which they prohibit. Nevertheless I saw in Shevus Yaakov (2:117) that he was asked concerning a man who was walking with his wife and others in a forest when they were attacked by murderers and the only chance of saving their lives was if his wife had sexual relations with the bandits with her husbands consent. The question was since she had deliberately committed adultery to save their lives was she now permitted to her husband? The Shevus Yaakov answer is based on the Maharik who asked why is such an action different than what Esther did either as being forced originally or eventually doing it willingly since that was also a case where she committed adultery in order to save the Jewish people? … He states that if intercourse was not forced but was done for the sake of saving others – then she is prohibited to her husband but if the intercourse itself was forced then she is permitted to her husband. Now regarding our case the question is that when the seducer said to her that he was Eliyahu the Prophet and he was sent from Heaven to have intercourse with her and she believed this nonsense to such a complete degree that she contacted her husband so he could experience the wealth that had been promised by Eliyahu because she view as if she had already gotten it. Consequently because of her foolishness she viewed this as a Divine commandment to have intercourse with this man and there is no greater force than that. She clearly had no intent to rebel against her husband but her motivation was purely for the sake of Heaven. Therefore it should be viewed according to the Maharik and Achronim that she was totally forced to have intercourse and she is permitted to her husband in my humble opinion. However my psak should not be relied upon unless there are two other poskim who agree with this and thus I join with them to permit this woman to her husband. In particular as we noted in the question she was always a righteous woman and they have children. This is my humble opinion.
[this is my rough translation - please check the original Hebrew]
Binyan Tzion (#154) … One day when the husband was away on business a man arrived in the village from Poland with ragged clothing and he requested from the wife a place to sleep. While the wife was very modest all her life, her religious righteousness blinded her and out of a feeling pity she gave him a place to stay as well as food and drink. However the guest refused to eat any meat and he refused to drink anything other than water. He did other ascetic acts which seemed to indicate he was a very pious person such as physical afflictions which he did to himself everyday. He sat in his room all day alone with a sefer in his hand. In addition every night he would say tikun chatzos at midnight and mourn for the destruction of the Temple. He also refused to sleep in a bed but instead slept on the ground with a stone for a pillow. Everyday he would immerse himself twice daily in the cold waters of a nearby stream even though it was winter. However one Friday night after the meal was finished and the children and servants had left the table and gone to sleep – this fraud remained sitting at the table alone with the woman. After they talked a while she started to ask him who he was and where he had come from and where was he going? He replied that he was G-d’s messenger and his name was Eliyahu the Prophet and he was gathering his fellow Jews from the four corners of the Earth and that he only revealed this information to certain pious individuals. The woman in her foolishness totally believed him. She then went to sleep in her bedroom which adjoined the dining room. This disgusting person remained sitting in his place study a sefer until midnight. After midnight he got up and quietly tiptoed to her bed and woke her from her sleep. He told her that he had traveled from one end of the world to the other and he had not found anyone as righteous as she was who was deserving to be the mother of the Messiah. But the problem was that her husband was not fitting to be the father of the Messiah. He said therefore he had been sent from Heaven to have intercourse with her and at the appropriate time she would give birth to the Messiah who would redeem all the Jewish people. He said he would give her sign that he was in fact Eliyahu. He said that the following Tuesday after he had left her, if she would open the trunk which stood in her bedroom she would find a treasure of gold coins. But this would only happen if she didn't open the trunk before he had left. He spoke these things in such a convincing manner that he succeeded in seducing her and having intercourse with her on Friday Night, Saturday night. However on Sunday before dawn this disgusting person fled from there and no one knew where he went. This foolish woman decided it would be a good idea to write to her husband that he should return home quickly since G-d had given them a great treasure. Her husband listed to her and returned on Tuesday. But when the woman opened the trunk she did not find any treasure that the seducer had promised her. When she realized that she had been tricked she screamed and cried bitterly and told her husband all the disgusting things that had transpired through this wicked man. She explained to him that she hadn't don't this to rebel against him but rather she had done it for the sake of Heaven. She explained that the seducer was ugly and very disgusting and she hadn't done it for lust. However her husband was not placated with this explanation and went to the Rav and told him everything and asked what the halacha was regarding his wife. The Rav sent for her and cross examined her carefully and she told him all the details mentioned here. The Rav ordered that they separate from each other until he had a chance to consult with other rabbis. [...]
Conclusion: As a consequence of this line or reasoning we are saying that when she deliberately had adulterous intercourse – for the sake of Heaven – it did not constitute rebelling against and betrayal of her husband. However it is not correct to disagree with the Maharik and Beis Shmuel and to permit that which they prohibit. Nevertheless I saw in Shevus Yaakov (2:117) that he was asked concerning a man who was walking with his wife and others in a forest when they were attacked by murderers and the only chance of saving their lives was if his wife had sexual relations with the bandits with her husbands consent. The question was since she had deliberately committed adultery to save their lives was she now permitted to her husband? The Shevus Yaakov answer is based on the Maharik who asked why is such an action different than what Esther did either as being forced originally or eventually doing it willingly since that was also a case where she committed adultery in order to save the Jewish people? … He states that if intercourse was not forced but was done for the sake of saving others – then she is prohibited to her husband but if the intercourse itself was forced then she is permitted to her husband. Now regarding our case the question is that when the seducer said to her that he was Eliyahu the Prophet and he was sent from Heaven to have intercourse with her and she believed this nonsense to such a complete degree that she contacted her husband so he could experience the wealth that had been promised by Eliyahu because she view as if she had already gotten it. Consequently because of her foolishness she viewed this as a Divine commandment to have intercourse with this man and there is no greater force than that. She clearly had no intent to rebel against her husband but her motivation was purely for the sake of Heaven. Therefore it should be viewed according to the Maharik and Achronim that she was totally forced to have intercourse and she is permitted to her husband in my humble opinion. However my psak should not be relied upon unless there are two other poskim who agree with this and thus I join with them to permit this woman to her husband. In particular as we noted in the question she was always a righteous woman and they have children. This is my humble opinion.
"When she realized her mistake and protested he raped her and she became pregnant. In this case the Yad Eleazar permitted her to remain with her husband and declared that the child was not a mamzer."
ReplyDeleteIs a child born of rape not a mamzer?
@Moe - if it is claimed that the child is assumed to be from the husband than the child is not a mamzer.
ReplyDeleteIn the case of the Yad Eleazar - the husband was assumed to not to be able to be the father because of certain biological defects - nontheless it was paskened that the child was in fact from her husband. because some medical experts said it was possible that the husband was the father despite his biological problems.
There are similar "stretching for a heter" in cases where a child is born 12 months after the husband had relations with the wife - and yet there are poskim who say that we assume that the husband was the father.
So what would be a case where a child is officially recognized as a bona fide mamzer?
ReplyDelete@Moe - not sure what you are asking. If the posek or beis din says that the child is not the husband's then it is a mamzer. The point though is that there are times when the posek says the child is the husband when it is not highly likely
ReplyDeleteHow can infidelity or rape ever result in a mamzer? The child could always theoretically be the husbands. (Halacha doesn't use DNA or physical attributes to determine a mamzer.)
ReplyDeleteThe only exception that comes to mind is if the husband was away for over a year before the incident.
@ Moe - if the husband is known to be sterile. If the wife confesses and the husband believe her story. If there are witnesses which clearly establish that she was having an affair and she was not having relations with her husband. If she lleft her husband and got remarried without a get.
ReplyDeleteIn sum - it is really up to the beis din as to how they view the facts.
IOW a mamzer can only happen in unusual cases. A wife who has a healthy husband who isn't away from her on very long term travel, even if she admits to infidelity the resulting child cannot be a mamzer since the chazaka is it belongs to the husband.
ReplyDelete(If the husband believes her confession he must divorce her, but the child is still considered the husbands and kosher.)
רוב בעילות אחר הבעל
ReplyDeleteAlmost all cases of mazerus are when a married woman left her husband either without a get or with a passul get and then lives with another man. In such a case, there is no chazaka of rov be'ilos achar haba'al.
ReplyDeleteIs it correct to say that in previous eras, there was a tendency to remove the stigma of mamzerut , in every possible case, but nowadays, they are more "machmmir" and will try to prove mamzerus even with the slightest cause?
ReplyDeleteI'll just say this: I find it very hard to believe that in this day and age, women can be so stupid to fall for this scam - even women raised in such a sheltered way as a charedi woman. There is something DRASTICALLY wrong in the way young religious boys and girls are educated as they are growing up - I see evidence of this all over! It's people like this evil pervert - and the whole system that allows this to happen - that keep Jews sitting on the fence away from becoming more observant!
ReplyDelete"even women raised in such a sheltered way as a charedi woman."
ReplyDeleteSurely you mean "as a religious Zionist woman". 99% of Charedim have never heard of Sheinberg. (If you say "Rav Sheinberg" the automatic presumption will be R' Chaim Pinchas Sheinberg זצ"ל.)
The Binyan Tzion's argument is difficult to understand, and I think that it is not accepted. A woman who agrees to have sex in order to save lives is considered to be אנוסה. But a woman who agrees to have sex in order to create תיקונים or bring Mashiach etc. is no different to any other אומרת מותר who becomes prohibited to the husband, even if she is not blameworthy for believing the charlatan.
ReplyDeleteHaving said that, I wonder what the Halacha would be if the charlatan claimed that if she did not agree then she would be punished greatly (either in עוה"ז or עוה"ב), and out of fright she agreed. Perhaps in this case she is מותרת, just like presumably a woman who is threatened with being beaten up would be considered אנוסה and allowed to the husband.
By the way, if any תלמידי חכמים are reading this - does anyone know if a man threatened a woman to take all her money away unless she is מזנה with him, is she an אנוסה and מותרת or not? If she is an אנוסה, what about if it is not all the money, but only half? What about only £100? What is the cut-off mark?
Also, what if he only threatens to give her a hard slap in the face?
What if he threatens to publicly embarrass her and thus blackmails her into having an affair? Is this considered אונס or not?
The above questions are also נוגע to whether the perpetrator in these cases would be considered a רודף or not. [Presumably there would also be a נפק"מ for אונס ומפתה.]
Any comments are welcome!
Doesn't a woman have to verbally (i.e. out loud or scream) protest against the non-husband having relations with her in order for it to halachicly be considered to have been involuntary on her part?
ReplyDeleteNo - if he tells her not to scream or otherwise he will kill her, then obviously she is אנוסה even if she doesn't scream.
ReplyDeleteרמב"ם נערה בתולה א:ב
ReplyDeleteואיזה הוא מפתה ואיזה הוא אונס, מפתה לרצונה ואונס שבא עליה בעל כרחה. כל הנבעלת בשדה הרי זו בחזקת אנוסה ודנין בו דין אונס עד שיעידו העדים שברצונה נבעלה, וכל הנבעלת בעיר הרי זו בחזקת מפותה מפני שלא זעקה עד שיעידו העדים שהיא אנוסה כגון ששלף חרב ואמר לה אם תזעקי אהרוג אותך.
רמב"ם נערה בתולה א:ב
ReplyDeleteואיזה הוא מפתה ואיזה הוא אונס, מפתה לרצונה ואונס שבא עליה בעל כרחה. כל הנבעלת בשדה הרי זו בחזקת אנוסה ודנין בו דין אונס עד שיעידו העדים שברצונה נבעלה, וכל הנבעלת בעיר הרי זו בחזקת מפותה מפני שלא זעקה עד שיעידו העדים שהיא אנוסה כגון ששלף חרב ואמר לה אם תזעקי אהרוג אותך.
שו"ת אבני שיש חלק א סימן לב
ואם על דבר אשר לא צעקה בעיר הרי כתב הרמב"ן בפי' לתורה שלא דבר הכתוב אלא בהוה לדון בה מן הסתם בעיר מפותה ובשדה אנוסה אבל אם ראינו נערה שהחזיק בה האיש והיא נלחמת בו בכל כחה ובוכה ואוחזת בבגדיו או בשערותיו להמלט ממנו ולא ידעה לצעוק למה תסקל עכ"ל, הרי בהדיא בהיכא שראוה ב' עדים שנבעלה ולא צעקה אלא שהיא נלחמת להמלט דיינינן לה כאנוסה, וכן מוכח מדברי הרמב"ם פ"א מהל' נערה בתולה הלכה ב' וז"ל וכל הנבעלת בעיר ה"ז בחזקת מפותה מפני שלא צעקה עד שיעידו העדים שהיא אנוסה כגון ששלף חרב ואמ"ל אם תזעקי אהרוג אותך ומדקאמר כגון ששלף חרב משמע דלאו דוקא שולף חרב אלא כל דבר שיראה לעדים שאונס הוא דיינינן ליה כאנוסה, עיין שו"ת חכם צבי סי' קמ"ו וכ"ש אונס דנ"ד שהוא אונס בפועל שהיתה נלחמת בו ונשמטת אנה ואנה לדחותו מעליה.
Thank you. Obviously, the lack of screaming does not stop her being אנוסה if she could not escape the אונס by screaming. Do you have any info about the questions I asked, e.g. do threats to slap her/take all her money/ publicly embarrass her constitute אונס, for purposes of permitting her to the husband and possibly even allowing her (or somebody else) to kill him מדין רודף? [It might not be תלוי הא בהא - as we've discussed before, the ראשונים say that פיתוי קטנה אונס is only a היתר to the בעל, but does not create a דין of רודף. וצ"ע בנידון דידן.]
ReplyDeleteRather than using the 'i" word, which conjures up imagery, might be better to just say "sinned with".
ReplyDeleteMaybe we should use בא על, like the Gemara does.
ReplyDeleteNo
ReplyDeleteheadline says that woman sinned with spiritual advisor and next to it is photo of aruch l'neir - probably not the best choice, i'd remove the photo
ReplyDeletewell, maybe there were more lenient times, eg RMF - although it doesn't mean the further back we go, the more lenient - eg R' Henkin.
ReplyDeleteThere may be a problem with the husband or
ReplyDeletethe wife, but it mustn't be a reason to stop you from having children of your
own. Thanks to today's modern inventions and technologies, it has now become
possible for an infertile couple to bear their own children.
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