From Parsha to Halakha: Ki Teitzei – Is raping captive women permitted?
Trigger warning: rape
Going and coming
It’s peculiar that the parsha begins “Ki Teitzei la’milkhama,” “when you go out to war,” when it does not continue with laws of war. Most of the mitzvot of war were outlined in the previous parsha, Shoftim, in the section of Moshe’s speech dealing with laws incumbent on the government and leaders.[1] And while Parshat Ki Teitzei contains more mitzvot than any other in the Torah, only a couple towards the end of the parsha deal with war.
Rabbi David Tzvi Hoffman explains that Parshat Ki Teitzei begins the final section of this speech – laws that apply to the individual. He identifies an overall structure to these laws, but concedes that some mitzvot may not fit the general theme and were included due to a particular associative connection.[2] A few of the laws concern sanctity and laws between man and God, but the vast majority are interpersonal, jumping from domestic affairs (marriage, divorce, children, inheritance) to financial and professional matters (loans, agriculture, trade, workers rights), to gemilut chassadim (acts of lovingkindness like returning lost objects, burial, charity) to war and genocide (maintaining a holy camp, wiping out Amalek).
Given the wide array of laws, why begin this section with the laws of a man who takes a captive “eishet yefat to’ar,” beautiful (Gentile) woman from a foreign nation into his home. The following two laws also concern the household – lawful inheritance when a bigamist favors one wife over another and the fate of the rebellious son. Why does the Torah use the laws of eishet yefat to’ar to pivot from laws of leadership to laws of the individual?
From the top down
The Torah stresses that one of the central tasks of leadership is maintaining law and order. Parshat Shoftim ends with the mitzvah of egla arufa, the broken-necked calf. In the event a victim of a violent death is discovered outside the city and the murderer is unknown, justice cannot be served. The Torah commands the leadership of the nearest settlement – the elders, judges, Levites, and priests – to perform a ceremony involving the slaughter of a calf in a nearby wadi.
Why?
On the most basic level, it seems the leadership is tasked with this mitzvah because they failed in their duties – they did not prevent the crime and have not brought the murderer to justice. Therefore, they are responsible for restoring the balance in the wake of the violence that occurred on their watch.[3]
The egla arufa ritual has the different leaders saying and doing some strange things, and the commentaries struggle to understand what it is meant to accomplish. They seem to wash their hands of responsibility, but how can this cleanse the innocent blood that was spilled?
Based on the midrash, Rashi points out that the egla arufa ritual centers around lost potential – a calf that has never done work is slaughtered, and the wadi and field where the ceremony takes place must lie fallow forever. It’s possible that a similar loss of life and potential is necessary to restore balance.[4] On a less metaphysical level, this unusual, involved ritual should impress upon them the ongoing tragedy of wasted life and wasted potential. The ritual doesn’t change the past and doesn’t bring justice to the victim, but at the very least it may encourage the leaders to ensure it doesn’t happen again.
The mitzvah of egla arufa is only performed as the result of the leadership’s failure. It seems that the laws of eishet yefat toar are the result of individual failure.
Is it wrong if the Torah allows it?
But is it a failure to take an eishet yefat to’ar? After all, the Torah permits it.
Firstly, it is important to note that there are several widely-accepted rabbinic opinions that indicate that the Torah does not necessarily prohibit all unacceptable or “wrong” behavior.
Ramban maintains that there is a concept of “naval be’reshut haTorah,” degeneracy permitted by the Torah.[5] He explains that the Torah does not cover every improper action, and the mitzvah of “kedoshim tihiyu,” “you shall be sanctified” commands us to act properly and piously, distancing ourselves from overindulgence in physical delights even if the action is not expressly forbidden by the Torah.[6]
Furthermore, Chazal explicitly state that the law of eishet yefat toar does not claim that taking a captive woman is righteous, but rather “lo dibra Torah ela k’neged yetzer hara” – the Torah only spoke against the evil inclination (base physical urges).[7] This statement indicates that the Torah only permitted taking this woman because the urge to use captive women’s bodies might be so overwhelming that a blanket prohibition would be ignored.
Still, once it is permitted by the Torah, can it be considered a moral failing?
This hefty question is reflected in a midrashic conversation between King David and his trusted friend and advisor, Chushai Ha’Erki, as David is fleeing from his son Avshalom’s coup. Chushai intimates that this tragedy is a consequence of David’s marriage to Avshalom’s mother, an eishet yefat to’ar. David challenges this, stating that the marriage is permitted by the Torah. Chushai answers that he should have learned from the juxtaposition of eishet yefat to’ar to the laws of ben sorer u’moreh, a rebellious son, that the Torah expects this union to have negative results.[8]
A similar midrash explains that the laws following eishet yefat toar deal with dysfunctional family situations because this is what happens when a man takes an eishet yefat to’ar. Indeed, Ben Azzai explains that the family discord that follows is an example of aveira goreret aveira – sin leads to more sin – the man was supposed to send the eishet yefat to’ar away at the end of thirty days, not marry her. The Torah may allow it, but Ben Azzai explicitly calls this union a chet (sin).[9]
What is the sin?
In plain words, the Torah teaches that if a man goes out to war and sees a beautiful woman in captivity and takes her as a wife he brings her into his home, shaves her head and “does” her nails, she removed her clothing of captivity, cries for her parents for a month, and after all this he may have intercourse with her and she becomes his wife.[10] The section concludes:
“If you do not desire her and send her off on her own, you may not sell her for money, you shall not use her for your benefit, since you have forced her (inita).”
There are several possible sins here. One issue that is often raised is that of intercourse with a Gentile. According to Rav, the Torah allows for a man to take an eishet yefat to’ar (for intimate relations) once while he is at war, but once he does so he is obligated to take her home.[11] There he must give her time to mourn and, according to the sages, convert, and then he may take her as a wife or set her free.
As we saw in Parshat Balak the rabbis debate whether there is a blanket prohibition against intercourse with a non-Jewish woman.[12] At the very least, there is consensus that such a relationship is a sin if it is publicly known, and Rambam teaches this must be avoided in this case.[13]
Yet there are several Talmudic opinions that challenge the idea that the man may have relations with this woman before she spends thirty days in his home:
“The rabbis taught in a beraita: ‘You see among the captives’ – when she is [already] a captive. ‘A woman of’ – even a married woman.[14] ‘Beautiful appearance’ – the Torah only spoke against the evil inclination. It is preferable for Israelites to eat the meat of dying animals that have been ritually slaughtered, and not meat of carcasses that have died without ritual slaughter… ‘and you shall bring her’ – teaches that he may not pressure her [to have intercourse] during the war [but only once he has brought her to his home]…”[15]
Rav uses the beraita’s logic, “the Torah speaks to the evil inclination,” as a proof that the Torah permits the man to take the woman once while he is at war. Interestingly, the beraita indicates that this same logic can apply to the law that this man may not have intercourse with her until thirty days later, when he takes her as a wife after she converts. It seems the latter believes that a man will be able to control his urges if this woman is not completely off limits and he can eventually “have her.” Rav does not agree. It seems pertinent to note that the gemara relates several stories that indicate Rav had a problematic relationship with women and had trouble controlling his own libido.[16]
Conversely, the Jerusalem Talmud relates that Rabbi Yochanan sent a letter to the Babylonian rabbis vehemently disagreeing with Rav and unequivocally stating that the man may not have relations with an eishet yefat to’ar until after the process described in the Torah.[17]
The prohibition of rape
Since Ben Azzai maintains the Torah does not allow the man to have relations with this woman when she is a Gentile, what sin is he referring to?
There are several other options raised, many related to the woman’s pagan identity and forced conversion, but there seem to be two basic possibilities that tend to be overlooked.[18] The first is that the Torah doesn’t permit the man to have relations with the woman while he is at war, but he takes her anyway. In this case the man has committed a spiritual sin, between him and God, and we would expect him to have to repair it with a spiritual act, such as a sacrifice.
The second possibility is that the sin is not necessarily intercourse with a Gentile woman, but intercourse with a woman against her will.[19] Even if Rav is correct and the Torah permits bedding a captive woman while at war, this does not mean he is allowed to take her against her will. It’s also possible for the woman to remain unwilling thirty days later.
One might argue that the Torah may not consider this rape. After all, captives were chattel and it’s generally recognized that societal norms allowed for maidservants to be used for sexual gratification or procreation. Nevertheless, it doesn’t seem like the Torah allows for such behavior. As opposed to the cultural norms, the Torah generally prohibits sexual relations with maidservants.[20] Furthermore, Rambam and others maintain that even married couples must have consent. (In other words – spousal rape is prohibited.) So it’s possible the Torah considers this rape, or considers the coerced consent of a captive woman a sin.
There are several supports for this understanding. The first is the Torah’s use of the root ina, which means forced and is the biblical word used in cases of rape.[21] The second is basic psychology and sociology – even without the concept of “enthusiastic consent” it seems unlikely anyone would think a sexual relationship with a captive woman is not coerced. Finally, the mitzvah indicates this man “owes” the woman something. He must either marry her and treat her as a wife, not a slave, or set her free, no strings attached.
Indeed, these consequences seem similar to those of another law discussed in this week’s parsha – the consequences of a man who rapes a single woman. The rapist is forced to either marry the woman or pay her bride price. If married he can never divorce her. In both cases the man has two options – one is to marry the woman, the other involves loss of capital or property – paying the bride price or setting a woman free instead of selling or keeping her as a slave.[22]
Though the Torah does not explicitly prohibit rape, halakhic authorities overwhelmingly agree it is a Torah prohibition.[23] The “punishment” for rape seems outrageously light compared to the crime – shouldn’t a violent crime get a violent punishment? As we explained, the Torah does not necessarily agree. A man who beats another to within an inch of his life is not beaten, instead he pays damages. It seems the Torah thinks the victim of the crime is better served by receiving monetary reparations.
Some commentaries point out that the consequence for rape may be a powerful deterrent – if the man is forced to marry the woman he must provide for the woman her entire life, he’s responsible for all children, and they have equal share in his estate. The man who takes an eishet yefat to’ar either has the same responsibilities or loses out on a slave.
Conclusion
We originally asked why the Torah uses the laws of eishet yefat to’ar to bridge between laws addressed to leadership and those aimed at the individual. We further wondered why it appears after the laws of egla arufa. Based on what we have seen, it seems both these laws deal with a failure to prevent sin and maintain law and order. In one case this leads to murder, in the other, rape. The leadership must atone for the former, but it is up to the individual to repair what he can in the latter.
The rabbinic concept “lo dibra Torah ela kneged ha’yetzer” doesn’t necessarily mean the Torah permitted something because the urge is too strong. It could also mean that the Torah gives us this law after a person gave into their urges and sinned. She may be a lowly captive woman, but she is a human being, created in God’s image. Like the case of egla arufa, the Torah does not allow this man to ignore his failure or push it out of his mind. At the very least he may not leave this woman a captive, vulnerable to future attacks. He must allow her time and space to grieve, and restore her human dignity in the only ways possible at that time – either by marrying her or setting her free.
[1] See Rabbi David Tzvi (Radatz) Hoffman on Devarim.
[2] Ibid, beginning of Parshat Ki Tetze; Based on TB Yevamot 4a – juxtapositions can only be used to learn about a mitzvah in Sefer Devarim, and not in the other books of the Torah.
[3] See Ramban 21:4 who explains the reason is similar to the scapegoat and red heifer, which he explains are types of offerings brought outside the Temple – stressing the aspect of atonement.
[4] See TB Sota 46 and Rashi Devarim 21:4 that focus on the loss of potential. Rambam suggests a very different explanation – the whole thing is designed to ensure the matter is well-known and aids catching the killer.
[5] Ramban of Vayikra 19:2
[6] Nevertheless, Ramban seems to be focusing on spiritual misdeeds and personal sins that affect the relationship between us and our Creator, not moral crimes that harm other people.
[7] TB Kiddushin 21a-b
[8] This negative viewpoint is reinforced by other midrashic sources, such as TB Sanhedrin 49a that relates that David had four hundred children from beautiful captive women who acted like Gentiles and served as his muscle.
[9] Devarim Rabba 6:4
[10] Devarim 21:10-14. “You see a woman of beautiful form in her captivity, and desires her and you take her for you as a wife, and brings her inside your home and shave her head and do her nails. And she shall take off the clothing of her captivity from upon her, and sit in your home and cry for her father and mother a month of days.”
[11] TB Kiddushin 21b-22a. This law is an aside, part of a dispute between Rav and Shmuel, whether a Kohen is allowed to take an eishet yefat to’ar. Since a Kohen is not permitted to marry of have relations with a Gentile or a convert, does the permission to take an eishet yfat to’ar apply to him?
According to the gemara, Rav either includes the Kohen in the entire law, or at least allows him to have relations with her during the war, but then must set her free. Shmuel’s opinion is a bit more unclear, and it’s possible Shmuel disputes the very idea that the Torah permits the man to have relations with this woman before the end of the process. This source makes it seem like it was not uncommon for a Kohen to go out to war.
[12] In Parshat Balak we discussed whether the Torah prohibits sex with a Gentile woman if it is not intended for marriage. Those who say the Torah permits such relations explain that this is prohibited when it is publicly known, which would be the case in a war encampment. See Ritva Kiddushin 21b s.v. “ibaya lehu mahu…” Mishneh Torah
[13] Mishneh Torah Hilkhot Melakhim 8:2
[14] Many commentaries, such as Rambam and Meiri ad loc., explain that Torah law does not recognize marriage between non-Jews, although the rabbis prohibit relations between a Jewish man and a married, non-Jewish woman.
[15] TB Kiddushin 21b-22a
[16] See TB Yevamot 63a; Shabbat 11a; Yoma 18b; Berakhot 61a.
[17] TY Makkot 2:6
[18] Guide to the Perplexed III 42; Minchat Chinuch 532.
[19] See more in From Parsha to Halakha Vayishlach: Does the Torah prohibit rape?
[20] The case of a Jewish maidservant is complicated.
[21] See Netziv Ha’Emek Davar verse 14.
[22] Commentaries point out he may not take the eishet yefat to’ar as a pilegesh, a concubine, but rather she has a ketuba and is a full-fledged wife with all the rights.
[23] See more in From Parsha to Halakha Vayishlach: Does the Torah prohibit rape?
