Tuesday, July 17, 2012

Fiduciary relationship - free-will or rape?

I recently received the following letter
I am writing to you about finding sources in halacha regarding sexual abuse. I have an adult client who was molested by an adult from the age of 12-18. This adult man was responsible for her housing and care. She was told by her rabbi that she bears no responsibility even though she sometimes took the initiative. She clearly has emotional and psychological problems and a low I.Q. However she understands right from wrong and knows that after 12 she is an adult. She doesn't understand why she is responsible if she transgresses Shabbos or doesn't say a beracha before she eats but she is not responsible in this area. She definitely is very upset by what she did as well as being told she didn't sin.
 Any suggestions of where I might look to find this information?
 In secular law there is a concept called a fiduciary relationship where one person is dependent on another because of trust or expertise or authority. It accepts that because the relationship is not equal one party will submit to doing things against their free-will and is therefore not held accountable. Thus in the realm of sexual abuse a commanding officer having a sexual relationship with a subordinate would be considered rape rather than an act of free-will.  It sometimes also applies teachers and students, employers and employees as well as rabbi's and congregants. Is there a comparable view in halacha?

All I could find is that the seduction of a child is considered rape by all authorities - except for the Rambam. For an adult the only exemption is if she is a shoteh. Any suggestions?

Recent lawsuit concerning whether in NY State - rabbi-congregant is considered fiduciary relationship
Update - these are the halachic issues that need clarification:

Questions 1) Tinok shenishba (Shabbos 68a) : If she lives a life sheltered from knowledge of sexuality – has she sinned by participating in sexual activity? In other words is she a tinok shenishba in regards to sexuality? In fact this is even more of an excuse than tinok shenishba in that she has been taught by authority figures that the sexual activity is permitted.

Question 2) yetzer elabasha  (Kesubos 51b) - Even if she knows it is wrong do we say that if she were abused as a child but she enjoys and participates as as 12 year – do we say “at first it was rape but then it becomes willing and therefore she is patur? Would we also say this if she was first abused as a 12 year old? Or is this leniency only for a single act of intercourse but it doesn’t carry over to the future? The Hafla’ah (Panim Yofos Vayikra 20:17) says that she is guilty only if she was warned in between sexual acts - while Kerisos (15a) indicates that each maaseh bi’ah is viewed separately.

Question 3) Does halacha acknowledge that there are authority figures such as a father or rav whose authority or trust overcomes free-will and therefore seduction by an authority figure is considered rape – even for an adult?

Question 4) Does halacha acknowledge that sexual abuse – where there is psychological trauma and strong conflicting feelings that involve guilt and shame – that the victim isn’t viewed as sinning even if at some point he/she initiates the activity?


  1. According to Halacha, she is a child until age 11 and 353 days. On her 12th birthday she is, halachicly, an adult. (Secular law provides that she becomes an adult at age 18 but the "age of consent" [sexual] is 16 in most U.S. States, but as low as 14 in some U.S. States.)

    In Halacha there is no concept of "fiduciary relationship" between two adults -- i.e. if she's over age 12, being an adult there is no fiduciary relationship issue.

    Considering she consented (and initiated, in fact), she has in fact sinned. No more and no less than the man involved. Again, assuming it was consensual on her part and she was over the age of 12 and she is not a halachic shoteh.

    1. having said that, would you say the same thing applies if the rapist was her father or grandfather, and she was above age 12?

    2. Rape or consensual sex? The difference (from her perspective) is vast. The case in the above story clearly indicates it was consensual, not rape.

    3. As far as what she is considered in the matter.

    4. If she (being above 12 years of age) and her brother or father have consensual sex, both parties are equally guilty.

    5. @daas torah: Is what Abe says true or is he just slandering the torah?
      Would such a girl be condemned to death along with the perpetrator (if proof of the act could be brought)?

    6. Helas if a girl is an adult at 12 and she is married and commits adultery what is the halacha? If she is 12 and has a willing incestural relationship with her brother or father - what is the halacha?

      Do you agree that a 12 year old girl or a 13 year old boy could ever be liable to the death penalty for a sexual crime?

      My question is whether there are mitigating circumstances in a case of incest or a teacher that would say it is rape in the same way if she were less then 12 it all seduction is considered rape.

    7. So if I were an upright, torah-true jew, I should consider it is OK that a girl age 12 is sentenced to death, if, after being groomed, she agrees to have sex with a brother/father/stepfather?

    8. There is something about your complete lack of empathy with what Helas is objecting to that pains me every time it occurs. A halachic approach to life requires, first and formost, a yashrut empathy with the human concerns and "fairness" of the matter. And then one explores the halacha and even if it rules harshly, the presentation of it, because there is a channel of genuine empathy, can be accepted in sweetness (despite the "disappointment" of not getting answer one hoped for). This attitude of "you're such a jerk (and heretic) for feeling that the halacha is missing something", is so offensive. Besides, it is the concern that something is missing here, that prompts a reassessment, incorporating factors that were not considered before, that bring about shifts (like the one we are witnessing around mosrus and child abuse).

      The concept of ones (coercion) very well might stretch to include psychological ones, where a young girl's daat might be manipulated by a trusted adult, in such a way that a posek might call that rape, even though it wasn't a physical coercion. That could be explored. It sounds very plausible to me. And that would acknowledge the concern (on the level of yashrus) that Helas is expressing.

    9. What about Ketubot 51b: If it begins with *ones* then even if she responds and becomes willing, the act is *ones*. Maybe that could be interpreted to include either 1) if the seduction occurred before 12, and was therefore *ones* then once her sexuality was awakened, his continual seduction after 12 is still in the status of *ones* . or 2)that his authority and influence over her constitutes a kind of psychological *ones*. And once the liason was started through that kind of *ones* so all continued unions carry that same status, even if she was willing and even if she initiated.

      Also I know that for many religious girls who are sheltered from the whole subject of sexuality, they don't even know that what they are doing is called ariyos. They know something feels wrong and yet there is pleasure, and someone they trust has initiated it, and so they might also initiate but they don't even know it is sexuality and ariyos. I may sound implausible but I know for a fact that it is true.

    10. If you were an upright, torah-true jew, should you consider it is OK that a boy age 13 is sentenced to death, if, after being groomed, he agrees to have sex with a male?

    11. Yakov LevadoJuly 15, 2012 4:14 PM

      What about Ketubot 51b: If it begins with *ones* then even if she responds and becomes willing, the act is *ones*
      That case as far as I can tell only applies regarding the same incident. What I am looking for are teshuvas which in fact extend in the way you suggest. So far I haven't found any.

    12. RDE: Have you found anything indicating that it only applies in that case? (That case is a man raping an eishes ish, right?) Or, how did you determine it is only applicable in that case?

    13. Ben benoJuly 15, 2012 2:45 PM

      There is something about your complete lack of empathy with what Helas is objecting to that pains me every time it occurs.

      Your approach is not the way the talmidei chachomim I have known approach questions. Both you and Helas go into a discussion - to paraphrase Helas - that if it doesn't fit Western secular values - it is slandering the Torah. You keep insisting that my concern to know what the Torah holds indicates a lack of empathy on my part. That is absurd. We clearly have different priorities. It seems that only if there is not even a minority view agreeing with your preconceived ideas that you grudgingly accept that the halacha is other than what you hoped. You give primacy to "intuitions" or secular values.

      someone who doesn't know too much can be excused for presuming that the Torah will be in according with their pre existing views but both you and Helas seem to have much more than a beginners understanding and yet you both are willing to challenge the Torah to agree with you.

    14. I don't know if you had any direct or extended contact with R. SZ Aurbach. But he was a posek as I am describing. His compassion for the sensibilities of the questioner came first and was verbally expressed, and from there, he delved into the halacha and the psak. I had the privilege of spending much time in his presence. His empathy was palpable and also verbally conveyed. He didn't accuse people of having secular values when they felt that the apparent halacha seemed cold and cruel. And often he found a halachic support for their concern. And if he didn't he expressed respect and empathy for it.

    15. Yes I had the great privilege to meet R' S. Z. Auerbach. I think we are talking about two different things. I agree if a abused child came to me that there is a need for empathy. If an aguna came to me I would be empathetic with her suffering. But we on this blog on primarily talking in the abstract as to what the halacha is. There is no abused child or abandoned wife sitting before us. In fact this charge of lack of empathy ignores the impetus for this discussion. The case that started this discussion involved a young lady who was shown sympathy and leniency - and yet she didn't buy it. Is it empathetic to keep repeating to her "don't worry about it you have done nothing wrong" when she refuses to accept it? She is asking for din not mercy!

      When you read the Shulchan Aruch - there is a lot of textual analysis but very little of you would call empathy. If you walk in to a surgery going on - there is little empathy. Empathy is reserved for before and after surgery.

      Another issue is that I am not interested in apologetics on this blog. If you want apologetics please go elsewhere. I am assuming that the readers on this blog are committed to Torah and they just want the information as to what the halachic issues are. I am not a salesman or a spin doctor. I am not going to cherry pick the literature to make somebody feel happy when it is a distorted understanding of what real poskim think.

      We went through this issue for geirus. There were a number of people who just wanted to hear the wonderful things that rabbis have to say about geirim. They didn't want to know the genuine difficulties or anything negative. Sorry - this is the wrong blog for that. If main stream sources also have negative things about geirim or people want to know what are the challenges geirim face in our community - I want to put the information on the table and provide a context to understand it. This approach was clearly appreciated by other geirum who had been battered by the system or were just entering and appreciated being told the truth.

      Finally, I require a basic respect for the Torah. If a person wishes to ridicule or make snide comments about halacha then I will let them know I won't tolerate it. I am not sure what Rav Shomo Zalman Aurbach would have done if someone came to him and ridiculed the Torah. I know what other gedolim have done - and it wasn't tolerant empathy.

      In sum Helas is not a tinok shenishba. she is well aware of her hostilitiy that she is expressing. But I will tolerate it only up to a point for the sake of conveying information. If you think that she is an ignoramus who just needs more empathy - then the two of you should correspond and maybe you can help her. I think you are severely underestimating her intelligence and knowledge. The fact that she continues posting here indicates she views that she is getting something out of the dialogue. The fact that I put up with the sometimes irritating comments also should be understood to mean that she does make significant contributions to the discussion.

    16. Well this blog provides me with insights about the torah, which in turn, could be a basis for deciding whether I can subscribe to it or not.

      However, your views are often so extreme and remote from anything that is done in reality that I doubt it would be OK to reject the torah based on what you say about her.

      So your blog, your comments and other commentators often provoke movements of disgust (against the torah) in me, but very often I learn later that these (disgusting) opinions are not "the truth", that there is much more room for leniency than you make look it.

      The issue of Gerim you raised here is a good example. You, daas torah, seem to hold mainly with the saying "kashim gerim kesapachaT". I do not think that this is the mainstream view of torah on gerim. So Gerim might be insulted by what you and other commentators say about them on this blog. But that is not "the opinion of the torah". The torah says "ahavta et ha ger".

      In this thread, you made it clear that "a married 12-year-old who commits adultery should be sentenced to death".

      A few weeks ago, you made a point that it is not possible to marry of 12-year-olds or under-12-years-olds according to halacha, and you were insulted when I suggested it could be possible.

      To state my opinion very clearly: I do not think that 12-year-olds should be married, I do not think they should be sentenced to death for any kind of "sexual misconduct". Both would be immoral in my view.

      To answer Abe's question: I do not think that a 13-year-old boy who has a seemingly consensual relationship with an older male should be sentenced to death, and, in general, I do not think that homosexuality as such should carry a death penalty.

      So yes, I am an apikores.

    17. Helas have you ever considered using dialectic instead of black and white absolute fixed positions?

      Both the statement that gerim are scabs and that you most love them are true. Chazal talk about the left hand pushing away while the right pulls closer. If you don't understand the dialectic nature of halacha - despite it apparently being stated as fixed positions - you just aren't going to get anywhere.

    18. I realize the topic has moved on and this is barely on point but I must disagree with your response to my comment about R. SZ Aurbach. Compassion was not just behavior that he adopted to be polite when there were troubled people present. Rather he kept these people in his heart and they were the lens through which he approached his halachic research. In exploring the status of a twelve year old girl seduced/raped by her father, troubled by her guilt, his question would be: What does HaShem (the Wise and Compassionate One) want to say to this girl through His halacha and through me as its emmisary. And his whole research was informed by that compassion.

      It is that abiding compassion that I feel is missing in your responses to Helas and others on this blog. And I don't think a person can (and should) poskin halacha without it. And I don't think one is anywhere near close to the halacha l'maysa without it, even if one compiles an impressive list of sources.

    19. This is not psak it is theoretical research! I was asked for sources - not for psak! I would agree that a posek needs to be be sympathetic and understanding - but I am simply compiling a list of sources. I am not a posek and have never claimed otherwise.

      When you sit in on a shiur in yeshiva or read a gemora etc - this is not l'maaseh and it is done in academic detached manner. That is the way I was taught by Rabbi Friefeld and all my rebbeim. When he was talking mussar he would be very warm and empathetic. This was also true when he was answering a real question personally. But when he taught gemora the focus was understanding - not feeling the suffering of the person who lost his arm and therefore needed to be compensated. When learning the gemora about the punishment for transgessing Shabbos or killing - which magid shiur tries to generate empathy to feel the pain of the victim!?

      Was your yeshiva any different? Which yeshiva teaches differently?

    20. When learning gemara how to compensate the loss of an arm, you have to delve into the functionalities of the arm and what can not be done after the loss in order to calculate the damages.

      However, there is an important difference between your example and what Abe and you are doing here: when compensating the loss of an arm, you don't point fingers against the arm-loser and tell him it is his fault.

      However, this is what you were doing with this victim of sex abuse, and any victim of sex abuse who was in a similar situation (constant abuse by a family member, leading her to initiate it on occasion) and who reads those comments will feel she "really deserves death penalty". And this is unbearable.

  2. and, can you please provide the source where the Rambam says that the seduction of a child isn't rape? What does the Rambam consider that?

    1. Aruch HaShuchan (E.H. 178:27): The Beis Yosef writes in 178:3 “a child who has been married by her father and she commits adultery willingly – there are those who say that she is prohibited to her husband…. Others say that she is not prohibited to her husband unless he is a cohen.” That is because the seduction of a child is considered rape. The first opinion that she is prohibited to her husband is that of the Rambam (Hilchos Sotah 2) and Rambam (Hilchos Issurei Biah 3:2) who doesn’t agree that sedution of a child is considered rape. However all the poskim reject his words….

      רמב"ם (הלכות איסורי ביאה ג:ב): הבא על הקטנה אשת הגדול אם קידשה אביה הרי זה בחנק והיא פטורה מכלום ונאסרה על בעלה כמו שביארנו בהלכות סוטה, ואם היא בת מיאון מכין אותו מכת מרדות והיא מותרת לבעלה, ואפילו היה כהן. +/השגת הראב"ד/ ונאסרה על בעלה. כתב הראב"ד ז"ל /א"א/ לא ידעתי למה נאסרת על בעלה ישראל שהרי אמרו פיתוי קטנה אונס הוא עכ"ל.+

      רמב"ם (הלכות סוטה ב:ב): ואלו הן הנשים שאינן ראויות לשתות אע"פ שהיא רוצה לשתות ובעלה רוצה להשקותה אלא יוצאות בלא כתובה משיבואו עידי סתירה אחר עידי קינוי ויאסרו על בעליהן לעולם, וחמש עשרה נשים הן, ואלו הן: ארוסה, ושומרת יבם, וקטנה אשת הגדול, וגדולה אשת הקטן, ואשת אנדרוגינוס, ואשת הסומא, או החגר, או האלם, או מי שאינו שומע, או שהוא כרות יד, וכן החגרת, והאלמת, והסומה, וכרותת כף, ושאינה שומעת, כל אחת מאלו אינה ראויה לשתות.

      רמב"ם (הלכות סוטה ב:ד): קטנה שהשיאה אביה אם זינת ברצונה נאסרה על בעלה לפיכך מקנין לה, לא להשקותה אלא לפוסלה מכתובתה כמו שאמרנו, אבל קטנה בת מיאון אין מקנין לה שאין לה רצון להאסר על בעלה ואפילו היה כהן לא נאסרה עליו. +/השגת הראב"ד/ קטנה שהשיאה אביה אם זינתה ברצונה אסורה על בעלה. א"א והלא אמרו (יבמות לג) פיתוי קטנה אונס הוא ועוד התראה לקטנה אינה התראה שאין לה דעת אלא אם זינתה ודאי אסורה לבעלה כהן ולא מצאתי הפרש בין קטנה לקטנה לענין פיתוי לומר קטנה בת מיאון אין לה רצון ויתן את הצער כמו אנוסה אלא כולן שוות להתפתות בקלות הדעת.+

    2. משך חכמה (ויקרא כ:טו - טז): ואיש אשר יתן שכבתו בבהמה מות יומת ואת הבהמה תהרוגו. ואשה אשר תקרב (אל כל בהמה לרבעה אותה) והרגת את האשה ואת הבהמה. לפי מה שחידש רבינו הגר"א באליהו רבא למסכת נדה, באשה קטנה הנרבעת, אין הבהמה נסקלת על ידה, דפיתוי קטנה אונס וליכא תקלה על ידה. אבל בקטן הבא על הבהמה נסקלת הבהמה על ידו, דאין קישוי אלא לדעת, ורצון גמור הוא ובר קטלא, רק רחמנא חס עליה, והוי תקלה גמורה ונסקלת הבהמה. לפי זה אתי שפיר הא דבאשה כתיב "והרגת את האשה ואת הבהמה" - היינו היכא דהיא בת עונשים נסקלת בהמה על ידה. אבל באיש כתוב באנפי נפשיה "מות יומת האיש, ואת הבהמה תהרוגו" - היינו אף אם השוכב אינו איש, שהוא קטן, גם כן "הבהמה תהרוגו". ואתי שפיר מה שתניא בפרק ארבע מיתות (סנהדרין נד, סוף עמוד ב) (תניא כוותיה דרב): זכר בן תשע שנים ויום אחד (הבא על הבהמה בין כדרכה בין שלא כדרכה) והאשה המביאה את הבהמה (עליה בין כדרכה בין שלא כדרכה, חייב). ולא תני שלוש שנים באשה, דבקטנה אין הבהמה נסקלת על ידה. אבל מהא דמייתי סייעתא לרב משמע דדייק דבנשכב זכר מיירי, מדלא תני באשה בת שלוש, מוכח דבאשה לכל עריות כן לא תני, ורק בזכר בנשכב בן תשע הוי רבותא, יעויין ברש"י. סוף דבר, הדבר נכון בלשון הכתוב ובברייתא בסייעתא דשמיא. ועיין שם בדברי הגר"א.

    3. ערוך השולחן (אבן העזר קעז:ה): והנה לפי דעת הרמב"ם והטור נראה דבקטנה לא משכחת לה כלל ברצון דפיתוי קטנה אונס הוא אך הרמב"ם לית ליה האי סברא כמבואר דבריו בפ"ב מסוטה ובפ"ג מאיסורי ביאה וכבר בארנו טעמו בסי' ס"ח ולכן לא הזכיר זה אבל על הטור קשה למה לא הזכיר זה:

  3. Secular legal concepts such as 'fiduciary relationship' and 'knowing right from wrong' might be overly reductive - as the law tends to be - with respect to the psychology of this relationship.

    Was there an operative factor of dissociation in the girl's participation in the sexual relationship? Did the caregiver, consciously or unconsciously, exploit the dissociation? What was the character of this relationship, as well as other caregiver relationships, before the girl was 12?

    If da'at is sufficiently disrupted - especially if involuntarily - the prerequisites for an aveira might be lacking.

    Investigating "low I.Q." as a cofactor might also be highly relevant.

    1. solid points - just need suggestions as to who talks about this in the halachic literature

  4. The best thing for her to do is ask for Hashem's help in this matter.

  5. from age 12 - 18? That is totally illegal in US or UK law. The perpetrator is legally a rapist, and should be reported to the authorities.

    1. the issue of what to do with the adult was not an issue- either because he has been charged or that the girl didn't want to bring charges.

  6. The Halacha on rape is that she is considered Onas if it starts against her will even if afterwards she desires it.

  7. Asher Pihem Diber ShavJuly 14, 2012 at 2:54 AM

    I am not sure the Halacha. It is however not an isolated incident that family members have had sexual relations with daughters and sisters. It is unfortunately something which has happened perhaps not often, but it does occur. Yes! it does occur. It is even found in families that shun the tv, internet, and or the Zionist Medina. It is one of the many things that if we keep sweeping under the rug, will only get worse. I have personally dated a woman who had this same predicament. Sometimes they were participants, sometimes it was rape. They also tend to cover for their parents, siblings, as some abused and molested tend to do. It may well be that she sinned over the course of time. See Gemara Avoda Zora in regard to a woman who was captured in time of peace, and in time of war. See Rashi and Tosfos. If it was the wife of a Yisrael, some say she is forbidden because it is impossible that she didn't have sex consentually over the time. See also Sh'ut Mimamakim about a woman who was used as a prostitute by the nazis. He rules in that case she is permitted to her husband. Either way, Important here is that we realize. We have sinners amongst us. Yetzer Hora is alive in 2012. There are real sinners even amongst those who claim to be, or look rabbinical. Like the gemara says dor sheshofet es shoftov. Tol kisim mibein shinecha. Tol kora mibein eynecha. In my opinion she is a mefutah. All dinim regarding a mefutah applies to her.

  8. This is one of those things that the Torah just does not get into, and what little has been said does not clarify the issue. Face it, the issue was not discussed in our mesorah.

    A child who has been molested by a trusted adult is likely to become confused about what is right and wrong, and will gain a distorted understanding of sexuality. They were brainwashed and are a tinok sh'nishba.

    Now, if you want to get into other issues, about whether a cohen can marry such a person, I could care a less, and anyway, that isn't what this victim was asking.

    What AH you are for looking at this from your limited halachic perspective and stating this so unequivically. You're over onas devarim...It's not enough for a child to be raped, you'll tell them halachically it was their fault...Disgusting and so ignorant. This is not Torah.

    1. Jam you have two problems 1) you don't bother reading what is here before you act like an oracle as to what the will of G-d is 2) you have no concern for understanding the halacha because you just know and don't want to get confused with the facts.

      The letter was sent to me because the young woman already had been given the message that she had been raped and it wasnt' her fault - and yet she wasn't satisfied. She wanted to know - not like you - what the Torah actually says.

      If the circumstances were different then it might be advisable to give her the answer that you stated - but she wasn't looking for what she perceived as a pat on the head

      The Torah does in fact discuss the issue of whether seduction of a child constitutes rape. I was asking regarding special dependency whether there was a similar halacha.

      The rabbi she spoke to his a major talmid chachom - I am trying to find out what the basis for his psak was.

      If you aren't interested in what the halacha says then please find a different blog to make comments

    2. I think that JAM has a point and that his approach of tinok shenishba should be investigated further.

    3. Asher Pihem Diber ShavJuly 15, 2012 at 5:33 AM

      The Torah did not get into ? lol... Ok do you even hear what you are saying ? Hashem.. who created the world. Who created the Human being, Who wrote our holy torah, did not get into this and it cannot be derived from our torah.
      For the record. The only thing the torah didn't get into, were things the torah didn't have to get into. As the talmud says often, lama li kra ? sevara hu. Why do we need to write it in the text ? it is logic. Logic and common sense doesn't need to be written. The Torah is true. This case as awful as it is, is plainly written about in the gemara and rishonim. It is not the first case of a woman getting raped or taken advantage of in our history. The Halacha here may be complicated, But to say that the torah doesn't speak about it or couldn't concieve an answer to this unique problem is quite rediculous, and borderline heretical.

  9. Mishna Halacha (9:252): I saw that you asked according to the view that it is possible for a man also to be filled with uncontrollable lust – how was it possible for Pinchas to kill Zimri? Doesn’t it say in the gemora how many times did he have sex? There is no greater uncontrollable lust than this. In my humble opinion, this question is the result of a major misunderstanding. That is because it is pashut that between one session of intercourse and another – we don’t say that there is an uncontrollable lust. Even between one sex act and another we don’t say it. It is obvious with a woman also that if she were raped at the beginning but at the end it was willing – that is referring to the beginning of intercourse and its end. In other words intially when the penis penetrated the smallest amount it was rape but she became willing when it fully penetrated. However if he finished and then started over again, this is a new act of sex. If he doesn’t force her the second time but she asks him to do it – she is obviously liable. Would you say that if a woman was raped once and she got uncontrollable lust for it, that she would hence forth be permitted to fornicate with that man again? G d forbid to say such a thing. This conclusion is also found in the Chasam Sofer simon 202 based on the Pnai Yehoshua (Kesubos 51b) that one is obligated on every single act of intercouse and for every sexual contact.… Similarly we find in Machana Chaim (65). Also look at Mishna Halachos 4:198)…

  10. This seems to provide for the possibility that an extended relationship that started out a rape in fact remains rape - unless the woman was warned to stop

    Panim Yafos (Vayikra 20:17):… Furthermore it would appear that even though it says in Kesubos(51b): “She is liable if she wasn’t forced but there is another case in which she was not forced but nevertheless she is permitted to her husband. What is that? It is the case where she was raped but in the end she was willing. What is the reason? Because her lust was uncontrollably aroused, that is apparently only in regards to that she is permitted to her husband. However if she was warned after she was willing and she is able to separate from him – she is deserving of death if she continues – even though she was strongly aroused. We see that that is the halacha from the fact that they were held accountable for every incident of sexual contact as we find according to R’ Eliezer in Kerisos (15a). Thus we find that even in a case where she was raped and her lust was strongly aroused – if she was warned and did not separate from him – she is liable to kares as he is. So this that is says that he had sex with his sister – that refers to a case which was rape from beginning to end as the Ramban notes:”The case of rape that the Torah permits is only when she cries out in protest from beginning to end.

  11. this clearly indicated that each act of intercourse is separate

    Yam Shel Shlomo (Kesubos 4:32): Kesubos (52b): “Rava said that all that starts as rape and at the end she is willing – even if she says to the men who come to save her ‘Leave him alone because even if he hadn’t attacked me I would have paid him’ – she is permitted to her husband What is the reason? Her lust was aroused by the rape. A braissa taught the same principle as Rava: ‘She wasn’t forced’ (Bamidbar 5:13) so she is prohibited to her husband. That means if she had been forced she would be permitted. There is another case where even though she wasn’t forced she is permitted. What is that? Whatever starts out as rape but in the end she was willing…” And this is the halacha and it is all true. The verse quoted by the braissa is only an asmachta because even without the verse, how could you conceive that she would be prohibited to her husband? She was forced by her aroused lust! Proof that it is only an asmachta is from the fact that Rava did not interpret any verse but simply said that she was permitted because her lust was aroused. This is apparent from the SeMag (Positive 48)… Thus is apparently sufficient from logic to say that she is permitted. After two years I found it stated explicitly in Tosfos (Yevamos 56b). However it would seem that this is only if she is totally passive and she says to leave him alone but she didn’t do any action. However if at the end of sexual relations she did a movement which of bringing them together – she is prohibited. That is because by bringing her body closer for sexual activity that activity is an act of willingness and she is deserving of kares. In such a case she would be prohibited to her husband and it is not applicable to say that her lust was aroused since she did an action. Similarly if a man was forced into a sexual situation but he didn’t have an erection – but then he became erect – and the erect penis was inserted into her – he is exempt even from having to do teshuva. That is only where he could not avoid the deed even by accepting death. However in that situation if he prolonged the sexual relation – even a little – and thereby increased the pleasure a bit – he is liable for kares and he must do complete teshuva and so I wrote in Yevamos (6:3).

  12. This thread is an excellent illustration of how torah law is not determined in our day and age and could land anywhere if we were to rule a country according to halacha.

    On the one hand, we have the anonymous "gadol betorah" who tells this desperate woman that she is free of sin.

    On the other hand we have commentator Ave who states that if we had the good fortune to live in a state ruled according to halacha, this woman would be executed (provided the requirements in terms of witnesses etc. were met), and the blog author confirms that this view is correct...

    quod erat demonstrandum: we have no clue what a state ruled according to halacha would look like. It could range from worse than the taleban regime in Afghanistan to a quite acceptable democracy.

  13. this is an intermediary view. rape can produce enough of a force that she complies and she is permitted to her husband and yet she still had free will if she wanted to stop - she didn't and thus is required to bring a korbon.

    Ein Yitzchok (E.H. 1:70): It would seem that there is a difference between being obligated in a korbon and saying that her act is not deliberate and thus is permitted to her husband. We can answer that saying her lust was aroused (yetzer elabasha) is not considered overwhelming forced. Rather it is like an accident which which is close to being unavoidable. Because if she struggled greatly against the lust she would be able to overcome it. Nevertheless it is also like a case of overwhelming force (onas) and it is called close to being overwhelming force (onas). Therefore in regards to a korbon we find that there is an obligation when it is close to overwhelming (onas). Consequently even though her lust is aroused nevertheless she is obligated to bring a korbon because this is called close to onas but she is permitted to her husband since it was like an onas and close to onas is included in the verse of being forced (nitfasa). That is because there is a clear aspect of onas as the Rambam writes…. This is also apparent from the Yerushalmi(Sotah 4:4) which brings this derasha…. The main point is as I have said that this that lust is aroused (yeter elabsha) is not overwhelming force. This that Rashhi describes it as onas, we can explain that it is not complete onas but is only close to it. We see from Makkos (9 and 7) and Shabbos 72) that something close to onas is described as if it were complete onas and that is true here also.

    1. Daas Torah,

      Could you sketch-out conceptually (I realize it's all tentative for now!) how you relate these sources to your clinical-halakhic and clinical-psychological understandings of the case at hand?

      The analogies to 'rape' and 'seduction' seem overly-reductive to me so far. A modern-day analogy that migh be closer is a child of a prostitute who grows up in brothels.

      Another analogy that comes to mind would be young girls who were forced into prostitution in the concentration camps. What we commonly mean by 'rape' does not connote a social order "designed" for subjugation-by-trauma.

  14. You should really explore the approach of tinok she nishba: she grew up with the wrong values and was made to feel that it was OK, so she ended up initiating it.

    On this blog, a girl who was victim of sexual abuse by her father and other men from a very early age states that she was groomed to initiate sexual contact as soon as her father was angry, since this would calm him down (and spare her other forms of punishment). this was so engrained that it became the normal reaction to angry men in general.


    Any professional working with young victims of sexual abuse will confirm that oversexualised behaviour is one of the long-term consequences they have to battle.

    So it might well be, that all those consequences of sexual abuse were not known in the past, and that a rabbinic tribunal (in the distant past) might have ruled that she was guilty.

    Postulating a guilty verdict or even a death penalty with everything we know about sexual abuse now would be a strong miscarriage of justice. To me, it would seem as contrary to torah values as the sentence against the girl in sdom who was sentenced to death and executed in a cruel way for giving bread to strangers, which in turn prompted the destruction of Sdom.

    we see that in our world, the jurisdiction and legislation about sexual matters have evolved. The question of consense has become central, the question of "appropriateness" more marginal.

    I don't think that a halachic state - if it was to be founded now - could just ignore this evolution of society and pronounce death sentences for consensual homosexuality while letting rapers of little girls off the hook.

  15. PS: It is well documented that orgasm is a physiological reaction and can occur in the context of a rape against the will of the victim.

  16. Perhaps the concept of "tinok shenishba" is applicable in many of the scenarios discussed here.

  17. This is not psak it is theoretical research! I was asked for sources - not for psak! I would agree that a posek needs to be be sympathetic and understanding - but I am simply compiling a list of sources. I am not a posek and have never claimed otherwise.

    When you sit in on a shiur in yeshiva or read a gemora etc - this is not l'maaseh and it is done in academic detached manner. That is the way I was taught by Rabbi Friefeld and all my rebbeim. When he was talking mussar he would be very warm and empathetic. This was also true when he was answering a real question personally. But when he taught gemora the focus was understanding - not feeling the suffering of the person who lost his arm and therefore needed to be compensated. When learning the gemora about the punishment for transgessing Shabbos or killing - which magid shiur tries to generate empathy to feel the pain of the victim!?

    Was your yeshiva any different? Which yeshiva teaches differently?

  18. With all due respect Rabbi Eidensohn, I do feel we need some more understanding regarding what in reality can be called "seduction," and what is actually "rape" even though it looks like "seduction" but in the end analysis the victim really had no choice.
    A freind of mine was sexually abused by her father for many years. While no force was used, believe it or not, she had no idea what was happening. She grew up in a Chassidishe community where anything about sex was censored completely, thus, she had no idea what sex was. And for sure she didn't know that this is something regualarly done between adults, and must only be done with one's spouse.
    Furthermore, in her family system her father was the one teaching the children about the Mitzvos, what was permitted and what was prohibitted. Thus, I blieve you can clearly see from this example that even though she was paseed 12, and wasn't physically forced, there is just no-way the Rambam would be referring to an incident like this as seduction.
    And this is not an isolated situation. As mentioned before, most chassidishe kids don't know about sex until they get married, thus their knowledge about immorality is also very limited until then.

    Thus my point is that we cannot assume to understand that the Rambam is using the word persuation to mean when the girl was only spoken to and not physically forced. We really do need to clarify what constitues seduction, and what really is force even though only words were used.

    1. I think we need to distinguish between empathy and understanding.
      I am trying to understand what is going on in terms of the halachic analysis. If halacha does not allow for mitigating circumstances than all the shared pain is not going to change anything. On the other hand if a clearly permitted mitigating circumstance can be generalie to include the psychological reality of an abuse victim - then it should be explicated.

      I agree with your analysis - the problem has been to find a source that validates it. I think that one of the sources that I posted can be used to generalize the way you are suggesting. I am in the process of working on it now and hope to have something by tomorrow.

    2. I beg to differ. It is not a purely theoretical discussion, and you made it sound as if it was based on a real case.

      Even though Abe's death sentence could not be executed in our day and age, it would be a strong condemnation of the victim to state that the perpetrator and the victim are equally guilty according to halacha (as one commentator, I think it was Abe, did in this thread).

      furthermore, I am a bit surprised that a professional psychologist should not be aware of the facts cited by fordaas and would be ready to go about a distinction between rape and seduction in the way the sources above describe it (if she moved, it was seducation, but if she didn't it was rape, etc.)

      By the way: there might be a reason that the age of consent is 16 to 18 in most of our societies. It could really be that girls in the society the chachamim referred to were mature at an earlier age.

      Personally, it makes me cringe even to consider holding a 12-year-old responsible for crimes with a death sentence... (I also shudder when I read that 16-year-olds were tortured and sentenced to death in Khomeini's Iran).

    3. As far as sources are concerned, fordaas made an excellent point for "tinok shenishba", i.e. someone was taught wrong values by the family of origin.

    4. Helas all the conjecture in the world is meaningless without sources. Please show me a single source that a victim of sexual abuse is considered a tinok shenishba!

    5. Here:

      A non-frum Jew (who was born as such to a non-frum family and never knew anything about Torah or frumkeit) is a tinok shenishba. He/She is exempt from punishment from all the aveiros he/she commits every day, multiple times a day. Even a death-penalty aveira, like Chillul Shabbos.

      Now a 12 or 13 or 14 year old girl, or a 13 or 14 or 15 year old boy, who voluntarily commits a halachic sexual crime that carries a death-penalty --- BUT, and this is the important part, never knew there was anything wrong with that sexual behavior (because his father never provided him/her with chinuch a father is obligated to provide his child to know right and wrong), is apparently the same tinock shenishba as the never frum person described above.

    6. the scenario you are describing is not uncommon - where are the teshuvos that say what you are saying?

    7. Where are the teshuvos saying a never frum person is a tinok shenishba?

      This scenario is exactly the same scenario (in this regard) as a never frum person.

    8. tinok shenishba is not a blanket excuse not to get punishment

      It apparently appears only once in Shabbos(68b) and I haven't found a single statement that it applies to sexual transgressions. There is also no such thing in reference to murder or stealing.

      שבת סח:

      והכי איתמר, רב ושמואל דאמרי תרוייהו: אפילו תינוק שנשבה בין הנכרים, וגר שנתגייר לבין הנכרים - כהכיר ולבסוף שכח דמי, וחייב.

      ורבי יוחנן ורבי שמעון בן לקיש דאמרי תרוייהו: דוקא הכיר ולבסוף שכח, אבל תינוק שנשבה בין הנכרים וגר שנתגייר לבין הנכרים - פטור. מיתיבי, כלל גדול אמרו בשבת: כל השוכח עיקר שבת ועשה מלאכות הרבה בשבתות הרבה - אינו חייב אלא אחת, כיצד? תינוק שנשבה לבין הנכרים, וגר שנתגייר בין הנכרים ועשה מלאכות הרבה בשבתות הרבה - אינו חייב אלא חטאת אחת. וחייב על הדם אחת ועל החלב אחת ועל עבודה זרה אחת, ומונבז פוטר. וכך היה מונבז דן לפני רבי עקיבא: הואיל ומזיד קרוי חוטא, ושוגג קרוי חוטא, מה מזיד - שהיתה לו ידיעה, אף שוגג - שהיתה לו ידיעה. אמר לו רבי עקיבא: הריני מוסיף על דבריך, אי מה מזיד - שהיתה הידיעה בשעת מעשה, אף שוגג - שהיתה לו ידיעה בשעת מעשה. - אמר לו: הן, וכל שכן שהוספת. - אמר לו: לדבריך אין זה קרוי שוגג, אלא מזיד. קתני מיהא כיצד תינוק, בשלמא לרב ושמואל - ניחא, אלא לרבי יוחנן ולרבי שמעון בן לקיש קשיא! אמרי לך רבי יוחנן וריש לקיש: לא מי איכא מונבז דפטר - אנן דאמרינן כמונבז.

      רמב"ם שגגות ב:ו

      כל המחוייב חטאת קבועה על שגגתו ועשה בשגגה ונודע לו אחר שחטא אף על פי שלא היתה לו ידיעה בתחלה שזה חטא הוא הרי זה חייב חטאת, כיצד תינוק שנשבה לבין העכו"ם וגדל והוא אינו יודע מה הם ישראל ולא דתם ועשה מלאכה בשבת ואכל חלב ודם וכיוצא בהן, כשיודע לו שהוא ישראל ומצווה על כל אלו חייב להביא חטאת על כל עבירה ועבירה וכן כל כיוצא בזה.

      רמב"ם שגגות ז:ב

      כלל גדול אמרו בשבת כל השוכח עיקר שבת ושכח שנצטוו ישראל על השבת, או שנשבה והוא קטן לבין העכו"ם או נתגייר קטן והוא בין העכו"ם אף על פי שעשה מלאכות הרבה בשבתות הרבה אינו חייב אלא חטאת אחת שהכל שגגה אחת היא, וכן חייב חטאת אחת על כל חלב שאכל וחטאת אחת על דם שאכל וכן כל כיוצא בזה בעבודות אלו, וכל היודע עיקר שבת אבל שכח שהיום שבת ודימה שהוא חול אף על פי שעשה בו מלאכות הרבה חייב חטאת אחת על היום כולו וכן חטאת על כל שבת ושבת ששגג בו.

    9. didn't you cite a godel, a short while ago, who said that what is halacha has to be dealt with with halachic tools and what is reality has to be dealt with by experts on reality (e.g. doctors to determine pikuach nefesh on shabbat or for fasting).

      So I think we are dealing here with a case where the reality of rape or sexual abuse has to be established in a case where there was seemingly consense. Therefore, it would be a case for your expertise as a psychologist and medical sources, not so much halachic ones.

      If as a professional you state that something like grooming exists and can even lead to the victim initiating intercourse, we have established it was rape in an extended sense.

    10. I would agree with you if after a thorough search of the literature and nothing relevant - either for or against the idea occurs. We haven't gotten to that stage yet.

      That is seems to have happened with child abuse - the psychological relality was declared to be pikuach nefesh.

    11. Where is the problem? So the tinok she nishbah should bring one chataat for all the transgressions (of the same type) they committed out of ignorance.

      Why should this not apply for this type of transgression?

    12. DT/July 16, 2012 1:42 PM: "If halacha does not allow for mitigating circumstances than all the shared pain is not going to change anything."

      DT/July 16, 2012 7:08 PM: "the scenario you are describing is not uncommon - where are the teshuvos that say what you are saying?"

      Where does one go looking for the relevant sources? What kind of sources does one look for? It can depend on the conceptualization you start with.

      To illustrate what I mean, I'll build on your secular-law analogy to 'mitigating circumstances' (http://en.wikipedia.org/wiki/Attendant_circumstance), but switch-over to the categorically different issue of 'mens rea' (http://en.wikipedia.org/wiki/Mens_rea). Mens rea is not fundamentally to be found in the penal code about sexual crimes, nor in the case law about sexual crimes. Mens rea is to be found among our most fundamental understandings of what law-in-general is and criminal-acts-in-general are, insofar as they are about the causes of human agency.

      As 'mens rea' underlies secular law, so 'da'at' underlies the system of the halacha. Da'at, and conditions under which a human agent possesses it sufficiently, are the issues within the case-scenarios like tinok shenishba, etc. It does not follow that tinok shenishba is the precise operative halakhic category. An illuminating analogy is not the same as the thing-itself.

    13. Correction: "As 'mens rea' underlies secular criminal law ...".

      Postscript: I'm not sure that the halakhic category is not tinok shenishba. I'm not sure if we have enough of the girl's biography - esp. before age 12 - to speculate usefully.

  19. RDE:

    Then how is a never frum person (who never knew of Torah or frumkeit) exempt for punishment from Chillul Shabbos (a death-penalty crime) and moral laws that carry a death penalty, based upon his status as a tinok shenishba?

    1. Please give me a clear definition of tinok shenisbha and the halachos that it applies to.

    2. I don't have the answer at my fingertips. Nevertheless, as a starting point, I'd suggest researching the relevant teshuvos on tinok shenishba applicable to a never-frum person. I've learnt, and I don't have the sources handy, that a never frum person (who never knew of Torah or frumkeit) is exempt from punishment based upon his status as a tinok shenishba. Therefore, I am suggesting, the very same basis may apply to a young halachic adult who was never taught the aveiros and right and wrong of sexual behaviors. He simply doesn't know what he is doing is an aveira or even wrong in any way. Much like the never-frum person.

    3. Why should a child who was imprisonned by a sexual pervert (family member) not be a tinok shenishba? The tinok is nishba by the pervert...

      If the person entered the child's life later on, it is still tinok shenishba because in this realm, even later on, the child is as innocent (and uninformed) as a baby...

    4. Again the tinok shenishba does not simply mean that the person is ignorant or isolated. You keep assuming you know what the halachic status of tinok shenishba is and then you say A = B. But you have not found any sources that validate your definition and until that happens you can't say A = B.

      to put it another way - halacha provides us with boxes to buid with. you can't build with a box of your own making that hasn't been certified as being a halachic box.

      It is equivalent to saying we know the Torah is merciful and just and therefore there can't be a concept such as mamzer which punishes the innocent. That is Reform Judaism

    5. Daas Torah: How about we start with you providing sources defining what Tinok Shenishba IS (rather than what it isn't.)

    6. Actually if you have been reading the comments I gave four sources already

    7. "you can't build with a box of your own making that hasn't been certified as being a halachic box.

      It is equivalent to saying we know the Torah is merciful and just and therefore there can't be a concept such as mamzer which punishes the innocent. That is Reform Judaism"

      So how did your gadol come to the conclusion that she is free of sin? Is he also a reform jew?

      I think on the contrary: coming to Abe's conclusion that the "victim is as guilty as the perpetrator and should be condemned to death" (provided the requirements in terms of witnesses etc are met) would condemn the torah as an immoral system.

      Of course, there are many people (like christopher Hitchens and others) who do condemn the torah as immoral per se. But do we really have to blow their horn?

    8. Helas wrote: So how did your gadol come to the conclusion that she is free of sin? Is he also a reform jew?

      Helas you presume to know a solution which doesn't involve halacha while I know that he has a basis in halacha which I am trying to find out.

      Just because there is a difficulty - that doesn't mean that all possible resolutions of the difficulty are acceptable.

      Any solution is required to remain with the framework of halacha.

      Again your belief that Torah has to answer to secular morality is simply irrelevant here.

      when you drive a car - do you utilize rules that make sense to you even though driving laws disagree with you and may cause a crash with those who are following the system?

      The framework for this blog is Orthodox Judaism - not the university or Reform Judaism

    9. "Helas you presume to know a solution which doesn't involve halacha while I know that he has a basis in halacha which I am trying to find out."

      So why don't you just go and ask him, or why does the author of the letter not go and ask him, if there is an issue of confidentiality.

      Trying to guess what a sage thought when he rendered a psak looks like an awful loss of time to me, and carries a very high risk of error to boot. Therefore, it is immensely uneconomical...

      furthermore, I do not think it is a good idea to discuss this matter without compassion on a public blog, in the way you and Abe did it, since it might insult and hurt other victims who went through similar ordeals.

  20. I think that in our day and age, there is enough psychological evidence to state that "ones" can also be caused simply by having a psychological ascendent on someone, even though there is no immediate violence or threat of violence involved.

    This is particularly frequent in cases of sexual abuse...

    1. the question is whether it is recognized. For example the Tzitz Eliezer says that a teacher who molests young boys should be reported because that is a case of rodef. Molesting girls would not be a case of rodef. In contrast Rav Eliashiv says both cases are rodef because the molester is destroying them psychological. thus we see that the Tzitz Eliezer doesn't accept this psychological factor in this case of abuse while Ravv Eliashiv does.

      You can't say that there is a recognized psychological "factor x" - if you can't find poskim who will agree.

    2. I think Civilian makes an important point. Just as a Downs child is not obligated to the mitzvas because he cannot have the proper daat, so does it only make sense that a 12+ young women as fordaat described would also not have the requisite daat to be accountable to the mitzvah that she is being judged for.

      I don't think that tinuk she'nishba applies for the 7 mitzvot benei noach. I think those are obligations that are intrinsic to the soul, and for which one cannot plead ignorance of the law. But I think the mens rea / daat issue is the way to go.

    3. And also, given the extreme stringencies in regards to gittin, that the husband's daat must be absolutely uncoerced (as discussed at length on this blog), and given the subtleties of what constitutes coercion and compromised daat, it seems clear that in most cases of youth-abuse, but certainly in the case we are discussing of fordaat, there was not sufficient daat on the young woman's part to call this a seduction, and so it is more accurately labeled a rape (an act that occurred without the person's daat / knowledgable consent.)

  21. wouldn't the fact that the Rambam is talking about this 12 year old being an Aishes Ish make all the difference here? An aishel ish by definition knows about sex, and is also aware about the pain and betrayal she is perpetrating against her husband. Thus perhaps we can understand why she is held accountable, bec even though she might be groomed by the perpertator, one cannot really say that she doesn't realize what she is doing.
    Perhaps we can ask the question, is grooming possible in the case of a child that is in a married relationship, or perhaps much of grooming relies on the fact that the child is ignorant, and nieve

    1. a 12 year old aishes ish might not know about adultery etc. In other words what is the difference between and 11 year old and and a 12 year old or a 20 year old?

    2. I am proposing that the Eishes Ish part somehow removes the innocence of the girl. And her being 12 means that she is now deemed capable enough to be able to withstand the seduction (by choosing to act on what she knows, and not on what she is being told,) and thus she is now held accountable.

  22. DT: "I haven't found a single statement that it [tinok shenishba] applies to sexual transgressions."

    See kriat ha-tora for Mincha of Yom Kippur (Vayikra 18):

    כד. אַל-תִּטַּמְּאוּ, בְּכָל-אֵלֶּה: כִּי בְכָל-אֵלֶּה נִטְמְאוּ הַגּוֹיִם, אֲשֶׁר-אֲנִי מְשַׁלֵּחַ מִפְּנֵיכֶם.

    We are uniquely nationally constituted through "אֲנִי יְהוָה, מְקַדִּשְׁכֶם".

    1. Rabbi Eidensohn, even though I do strongly believe that "halacha is halacha is halacha!!" and no matter if it makes sense to us or not, the halacha still remains halacha, i.e. it overides our feelings and it is the law, I still must say that in this case something so outrages is being purposed, (i.e. that the victim of sexual abuse through grooming is deserving of capital punishment,)that it would be perverse for us to accept that we do understand this halacha correctly.
      From my perspective, the Rambam DEFINITLY didn't say that, and our work right now is to understand why the situations we are talking about differ from the example the Rambam gave.

      I do appreciate the idea that tinok shenishba doesn't exist regarding sheva mitzvos bnei Noach, which a moral heart/soul should instictively intuit. Like everyone should know that murder is wrong, even though they grew up with murderers all around them. So my question becomes, why are the above mentioned cases different?

      I'm wondering if perhaps those authorities claiming that one is instinctively required to realize that imorality is wrong, didn't envision a world where kids would have ABSOLUTELY NO IDEA about the facts of married life. I'm wondering if such a situation ever existed in the past. After all, as a community we were able to acomplish this only because of the heavy censoring we employ. And so many times this censoring distorts reality and truths, and yet we continue to censor.

      also, once again as I posted above, isn't the Rambam speaking stictly about an Aishes Ish, which would make it much easier for us to understand why the cases we are talking about are different?
      And the woman who mentioned, was she married?

  23. Chazon Ish O"H 87:28, Y"D 1:6 and 2:28.

    He seems to be under the impression that everyone today is a Tinok Shenishba.

    1. In regards to what? That is he not an apikorus? That he is not considered mechalel Shabbos bfarheskia? Does he say it in regard to the entire Shulchan Aruch?

    2. http://www.vbm-torah.org/halakha/mechalel.htm

      The Chazon Ish (YD 2:28) writes:

      There is another condition - that the person's act should be considered willful, not coerced. As the Rambam said (Hilkhot Mamrim 3:3), "Their (the Karaites') children and students are considered to be coerced and to be like a tinok she-nishba (a child who was taken captive by non-Jews and raised as a non-Jew)." A tinok she-nishba a) brings a sacrifice (when he begins to live as a Jew) as it says in Tractate Shabbat, Chapter "Klal Gadol;" b) we are commanded to ensure his survival and c) even to desecrate the Shabbat in order to save his life. Furthermore, the Hagahot Maimoniot (Hilkhot Mamrim 6) writes that a person is not categorized as a rasha unless he transgresses intentionally and refuses to accept rebuke. At the end of his book "Ahavat Chesed," the Chafetz Chayyim quotes the Mahari Molin's opinion that it is a mitzva to love evil people ("resha'im") for this reason. It is related in the name of the Maharam Lublin that today, we are always considered "before having given rebuke" because (as the gemara says) we no longer know how to properly and effectively administer rebuke. Non-observant Jews are therefore considered "anussim" - under extenuating circumstances - and we cannot consider a woman absolved from yibbum (the levirate marriage if the remaining brother is a Shabbat desecrator). The same holds true for other halakhot (i.e. Sabbath desecrators are always considered full-fledged Jews)."

      This principle, that Shabbat desecrators are nowadays considered anussim, was already enunciated in the writings of Harav Avraham Yitzchak Kook (e.g. Iggerot Re'aya 1:171). What makes the Chazon Ish's statement innovative is that he explicitly relates to the laws that apply to a "mumar" - one who habitually transgresses.

    3. Chazon Ish (Hilchos Shechita 2:16): I believe that the legal permission to kill heretics only existed in a period of time when G d’s Providence was revealed to everyone. In other words, only in such a time when miracles were common and they all heard the Bas Kol (Heavenly Voice) and they saw and acknowledged the unique Providence for the righteous of the generation. The heretics in those eras - despite the great manifestation of spirituality - had an especially powerful lust for pleasure and rejecting all religious obligations. In such circumstances, the destruction of the wicked served the clear purpose of improving the world. Everyone at those times knew that corrupt morals and violating religious commandments brought about suffering in the world such as plague, war and famine. However at a time when there is the absence of such clear awareness of the importance of spirituality, then killing heretics does not bring about improvement but rather makes things worse. That is because in such a non spiritual world, the punishment of heretics is viewed as destructive and as religious coercion. Therefore, since the whole reason for punishing heretics is to improve society, it cannot apply to an era when it is not generally perceived as an improvement. Thus in our current situation, we are obligated to bring the non observant back to the light of religion - with acts of love and affection to the best of our ability.

  24. "Questions 1) Tinok shenishba (Shabbos 68a) : If she lives a life sheltered from knowledge of sexuality – has she sinned by participating in sexual activity? In other words is she a tinok shenishba in regards to sexuality?"

    Here it is much worse than even that. She is actually being trained that illegal sex (per halacha) is actually okay. So she is even a greater oness than a tinok who was never trained right and wrong. She is being mis-trained as a child.

    1. Not so simple. Think about a suicide bomber growing up in a culture where he is taught that killing Jews is what G-d wants him to do. Can we say he shouldn't be held responsible because he was mis-trained? or do we understand that every human being is expected to understand instinctually that murder is wrong, thus he should be held responsible.
      I believe this is at he heart of the issue whether tinok shenishba is applied to sheva Mitzvos bnei Noach.

      But I also do maintain that for those kids growing up with no awareness of sexuality, it is equivelant to somene not understanding what life and death is, (if we can picture something like this,) thus he has no understanding of the consquences of him killing people.

    2. Well, in fact you do have an analogous problem with child soldiers (some of which were even forced to kill their parents).

      They were abused and trained to kill. Most likely, they will continue doing so as long as they are with their Army, even when they advance in age. Later, when they are brought back into society, they are told that they are not guilty of their atrocities. Whether they manage to become law-abiding citizens is another question.

    3. I beg to differ. This child soilder, no matter what ideology he is brainwashed into believing, still has the instinct to want to live. Thus, on some level the child should know that living is also extremley important to the other individual he is killing, and once he is above 12, when he already is more mature and could think things through better, I do believe it is reasonable to say that he has some choice in the matter, and by continuing to do what he is doing he is ignoring some basic deep moral instinct that's insisting that what he is doing is very wrong. Thus I can understand if the Halacha insists that he is held accountable on some level.
      While even though it is true that the child who is involved in adultery also feels on some level that it is wrong, thus all the guilt and shame that comes with it, yet if she isn't educated about sex I do feel she doesn't have the info to be able to make the connection like what are these feelings of guilt pointing to? I mean, she knows it isn't wrong to show affection, and without knowing what sex is how can she distinguish when just simply showing affection to her father turns into this horrible sin?

  25. "Knowing right from wrong" may be considerably more susceptible to disruption by abuse during adolescence than by abuse limited to childhood.

    Thornberry, et. al.: The Causal Impact of Childhood-Limited Maltreatment and Adolescent Maltreatment on Early Adult Adjustment.

    J Adolesc Health. 2010 April; 46(4): 359–365.

    << The average causal effect of childhood-limited maltreatment is
    rather modest. There are no significant effects for any of the
    criminal behaviors or the health-risking sex behaviors. There is,
    however, evidence of a causal impact of childhood-limited maltreatment
    on the frequency of drug use and on problem drug use. Childhood-limited maltreatment victims are also significantly more likely to report suicidal thoughts and more depressive symptoms.

    In contrast, there is a more consistent impact of adolescent maltreatment on these outcomes. Indeed, the only outcome without a significant effect is depressive symptoms. Study participants who were maltreated during adolescence have significantly higher levels of general offending and greater involvement in violent crime and official arrests/incarcerations. They exhibit significantly higher levels of alcohol use, drug use, problem alcohol use, and problem drug use. They engage in more risky sex behaviors and are more likely to
    report a diagnosis of an STD. Finally, they are significantly more likely to report suicidal thoughts than those who were never maltreated. >>

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