Parshat Vayishlach – Is rape prohibited by the Torah?
TW: rape
Many are under the mistaken impression that rape is not prohibited by the Torah; this could not be further from the truth and no legitimate halakhic authority would claim it is.
Parshat Vayishlach tells us of Shechem’s rape and kidnapping of Dina, Yaakov’s daughter. In response Yaakov’s sons kill Shechem and his father, and massacre all the men of Shechem. The proportionality and morality of their response is debated, but it is important to note that the other two biblical accounts of rape have similar deadly consequences.[1]
These narratives seem to appropriately reflect the criminal evil of sexual assault. Unfortunately, many modern readers of halakhic sources in the Written and Oral Torah that discuss rape often perceive them as minimizing the crime and ignoring the woman’s personhood, finding the sources incongruent with modern understandings of justice, morality, and sexual assault.
This incongruity is all too often resolved on a superficial level. Some quickly dismiss all questions concerning the righteousness of the Torah as stemming from invalid, flawed modern viewpoints. Others jump to justify the sources in a specific historical context, ignoring any questions that remain. Others use this as one more excuse to reject the Torah.
None of these are acceptable responses. Although the questions and feelings these sources elicit are disturbing, we do ourselves and the Torah a disservice if we refuse to confront them and use them in our struggle for understanding. Our Torah is an eternal source of righteousness and justice, strong enough to withstand intense scrutiny.[2]
To paraphrase a talk given by Rav Aharon Lichtenstein on these issues, the intent here is not to give all the answers. What we will do is shine a light on some of the questions and find some answers. Some of these will resolve our conflicts, others will raise more questions. We are not here to obfuscate or apologize, we are here to deepen our understanding of Torah and give us enough insight to maintain our faith in the face of lingering questions.[3]
Rape and Torah law
The Torah discusses the repercussions of rape in Devarim 22, in the context of other laws involving intercourse between men and women who are not married to each other; the consequences of these actions vary depending on the woman’s marital status and her complicity in the act. The section begins with the case of a man who claims his new wife was not a virgin, followed by the punishment for consensual adultery, before moving on to the laws of a na’ara me’urasa (betrothed maiden) and rape of a na’ara p’nuya (unattached).[4]
Na’ara meurasa – betrothed maiden
“If a na’ara betula me’urasa belonging to a man is found by another man in the city and he lays with her, you shall take the two to the gate of the city and stone them and they shall be put to death – the na’ara because she did not scream in the city and the man because he afflicted/forced (ina) the woman of his fellow, and you shall expunge the evil from your midst.”(verses 23-24)
“But if the man finds the betrothed girl in the field and forces (ina) her and lies with her, the man who laid her is put to death, and him alone. And you shall not do anything to the girl, she does not bear a deadly sin, for this thing is like a man who rises against his fellow and kills him. For he found her in a field, the betrothed girl screamed and there was no one to save her.” (verses 25-27)
Before we bring our questions on these sources, let’s see the final case.
Na’ara btula asher lo orasa – single maiden
If a man forces himself on a maiden who is not betrothed (or married) he must pay her father 50 pieces of silver. The father can force him to marry the girl and he may never divorce her. This case seems most similar to that of Dina in this week’s parsha. Indeed, in that case Shechem offers to pay a high bride price for Dina and marry her.[5]
Chazal compare this law to verses in Shemot 22(15-16) that describe na’ara mefutah – a man who seduces an unattached maiden. Chazal rule that in both cases the father can force the man to marry his daughter, and whether or not they marry the man must pay the father the bride price as a fine. The major difference seems to be that a rapist is never permitted to divorce his victim, whereas a seductor is.
Questions
And this brings us to our first major question. How can there be so little difference between the consequences of rape and seduction? These sources seem to focus on the physical loss of the woman’s maidenhood without her father’s consent, and not on the violent assault! Why is the “consequence” marriage? How can marrying her rapist be a form of justice or righteousness?
The laws of a na’ara me’urasa also seem to overlook the crime of rape. The man is stoned for having relations with another man’s woman, just as he is executed if he is caught with any of the arayot; the rape only relieves the girl from any culpability.[6]
All of this makes it seem like the Torah is more concerned with a girl’s virginity and purity than it is with the violent act of rape. Does the Torah even consider rape a sin?
Furthermore, the Torah seems to blame the rape victim in certain cases – and executes her! Verses 22-23 state that if a na’ara me’urasa is taken in the city and does not scream she also gets the death penalty. The next case informs us that outside the city people are less likely to hear her scream and save her and so she is not liable if she did not cry out.
These questions lend credence to claims that the Torah objectifies women, treats them as the property of their fathers or husbands, ignores the violent nature of rape, and discounts the trauma the woman undergoes. But it is not only our modern sensibilities that rejects these abhorrent ideas as incongruent with the just Torah.[7]
Halakhic applications
Rabbinic sources hesitate to describe the case of a na’ara me’urasa in the city as rape. Indeed, since one cannot be liable for a capital offense without two witnesses and a warning many scholars have struggled to imagine how a rape takes place under such circumstances. The Netziv concludes that verses 23-24 must be referring to a woman who eventually participated willingly, citing that the text describing the act in the city states “vayishkav ima” – “he lays with her” and in the field “vayishkav ota” “laid her” – the former denoting her participation, the latter her objectification. He explains the term “ina” – afflicted her – as referring to the repercussions of losing her maidenhood. (Ha’Emek Davar)
While such a reading may be preferable to ruling that a rape victim is sometimes killed in punishment for her own rape, it still does not sit well with modern sensibilities. How can one think an act that begins as rape could end as something else? And while there are both rabbinic and academic opinions that seem to accept the possibility that “ina” does not refer to non-consensual intercourse but rather the loss of her maidenhood, this interpretation is incongruous with the text. In the book of Shemot the case of mefateh does not use the term “ina” even though the man must pay a fine for taking the girl’s maidenhood. Additionally, the account of Pilegesh ba’Giva in Shoftim (19:20) uses the word to describe the rape of this unnamed concubine, who cannot be presumed to be a virgin.
In his commentary on the Torah, Ramban asks a similar question – why should it matter if she screams? If “a man grabs her and she fights him with all her might and cries and holds his clothes or hair to escape him and she does not know to scream – why should she be stoned?”[8]
He explains that the Torah is not describing a set of conditions that must be fulfilled to determine whether the act was rape or consensual. This is not theoretical law but examples of hypothetical situations – case studies. The first describes consensual intercourse, and so both are culpable and executed; the second describes rape and so the rapist is executed, and the woman is blameless. If a woman does not consent then it is rape, even if it takes place in a city and she does not scream.[9]
Is a rapist punished for his crime?
Until this point we have seen two potential consequences for the rapist. If the victim was one of the arayot then he is put to death, a punishment no different than if she consented to the act. If she was permitted and a virgin he has to pay a fine and may be forced to marry her without the option of divorce. We questioned the proportionality of these consequences.
The Mishna in Ketubot 3:4 explains that in addition to the “kenas” (fine) one who seduces a single na’ara pays damages for boshet (humiliation) and pegam (deprecation). A rapist must also pay tzaar (pain) on top of that. The pegam in this case is the difference in dowry between a virgin and non-virgin. The damages are determined on a case-by-case basis, the kenas is set at 50 silver pieces. This additional fine is unique and may be meant as a deterrent.
The Yerushalmi brings the opinion of Rabbi Shimon who excuses the rapist from paying tza’ar, since he claims that the pain refers to the pain of the loss of her virginity and she would eventually lose that. The gemara sharply rejects this opinion stating “A [na’ara] who is taken by force is not comparable to one taken willingly; and one taken in the dung heap is incomparable to one taken in the chuppa.”[10] Rif (Shut HaRif 39) rules that a na’ara who is not a virgin might not get damages for pegam, but she is entitled to boshet and tzaar.[11] Ralbag on Devarim adds that, when relevant, damages will include payment for medical treatment (ripui) and loss of income during recovery (shevet).
Where are the punitive consequences?[12]
The Torah states that one is liable – “an eye for an eye, a tooth for a tooth…”[13] The Mishnah rules that this is fulfilled by paying damages.[14] Rabbi Yehudah HaLevi explains that justice would not be served if this law were applied literally. Firstly, there is no way to ensure that the purposeful injury inflicted as punishment is exactly equal to the damage it caused. Furthermore, such injury also does not benefit the victim; receiving financial damages does.[15]
Rav Aharon Lichtenstein points out that when one person wrongs another there are two aspects that need to be rectified – the offender must be judged for his irresponsible, anti-social, or immoral behavior, and the victim must receive restitution. These two aspects are often at odds with each other. For example, there is a halakhic rule that if a person commits an act that is liable for more than one punishment “kim lei bederaba minei” – they only bear the more serious consequence. If a man strikes a pregnant woman and aborts her fetus, he must pay damages to the father. If she is also killed, he is executed but is exempt from paying damages.
It is possible to infer that in cases of rape the Torah tries to balance between these aspects, adding that the fine and high sums of damages also act as a deterrent and a punishment. Although we might want the assailant to physically suffer for the harm they have done, in the long run the maiden may be better off with the money or even a husband who must financially provide for her for her entire lifetime.
Similarly, Sefer HaChinuch states that these laws are both a punishment and deterrent to prevent men from using women as they please. If a man commits such a crime he can’t just walk away or act like it is not a big deal; instead, he is now obligated to immediately pay a large fine to her father and to provide for this woman for the rest of her life. (Mitzvah 557) Based on this Rav Avraham Stav states that the “punishment” is unusually strict – it’s a life sentence.[16] Just as the maiden may be better served by the halakhic repercussions, society at large may benefit from the deterrent of such lengthy and expensive consequences.
So is rape a sin?
Rambam rules that anyone who injures or strikes another Jew transgresses the prohibition “lo yosif.”[17] Avnei Nezer explains that one who rapes a virgin is liable for “lo yosif.”[18] Since a rapist who is not executed must pay damages it is logical to include it in the general prohibition of violence against another.
Unfortunately, some halakhic opinions argue that rape is not considered injury – some limit injury to cases where the victim was previously a virgin since there is a measureable physical damage, others explain that the rapist did not intend to cause harm but was only interested in his own pleasure.[19] These opinions are abhorrent to the modern reader. Perhaps the most problematic explains that a rapist is not causing harm because the act itself is something that was meant to happen to a woman. The only problem is that neither the girl nor her father consented – therefore he must pay for enjoying her without permission.[20]
As disturbing as such framing is, it leads to another possible criminal category – that of theft. Rambam explains that Shechem’s actions against Dina was theft, which is prohibited by the Noahide Laws and punishable by death. Although one might think that Rambam does not refer to the rape but rather that Dina was not free to leave afterward, other opinions more explicitly describe rape as a form of theft.[21]
Perhaps the most convincing argument of the sin of forcing intercourse on any person without consent comes from the fact that halakha recognizes the possibility of spousal rape and prohibits it.[22] There may not be a clear category to put it in or appropriate punishment, as well as troubling sources that imply otherwise; nevertheless halakha clearly rejects the idea that a woman is merely an object for her husband to use as he pleases.
Rav Lichtenstein points out that rape is both a physical assault as well as a psychological one; it invades one’s personhood and seeks to control it. The magnitude of this trauma is amplified when the psychological aspect is considered. He raises the possibility that in a more collectivist society when people were less concerned with the individual and less sensitive to psychological trauma the crime was not considered as severe – both by society, as we saw, and also by the victim.
His suggestion is novel. He does not claim that our modern sensibilities do not represent Torah values, but he also rejects the idea that the Torah tradition would disregard the victim’s trauma. Instead, he posits that the two are connected and that societal changes may also affect an individual victim’s level of trauma. He suggests it is possible that if a Beit Din were to judge this case, they would apply a much harsher sentence.
The severity of the crime
Up until this point we have ignored one key line from Devarim 22: “For this thing is like a man who rises against his fellow and kills him. For he found her in a field, the betrothed girl screamed and there was no one to save her.”
Chazal use this comparison between the rape of a betrothed girl and murder to learn that both are cases where the soon to be perpetrator can be killed to prevent the crime:[23] “[The Torah] compares a murderer to the betrothed girl. Just as a betrothed girl can be saved with his [the rapists’s] life, so too a murderer can be saved with his life.” This is not merely a suggestion, one is obligated to try and stop the perpetrator.
The subsequent discussion in Talmudic and rabbinic sources teach us that this applies to all cases of arayot, but not necessarily all cases of rape.[24] Nevertheless, some have suggested that this does not make much of a practical difference. A witness does not always know if the assailant and victim are arayot, but most women are, by virtue of being married, or single and possibly nidda.[25]
Even though the halakhic applications of this comparison are limited, “a verse cannot be removed from its plain context,” these midrashic explanations do not negate the plain meaning of the text.[26] The plain meaning of the verse is clear, the crime of rape is akin to murder – the violence, the powerlessness, the dehumanization – all of it is reflected in the plain meaning of the text.
It does not make sense to limit this statement to just rape of a betrothed girl, it is clearly talking about the crime of rape itself, no matter the perpetrator or the victim. As Rav Yaakov Ariel writes, “The Torah teaches us that the serious psycho-spiritual harm that is created by the rape is commensurate to the grievous physical harm created by murder. What’s the difference between destroying physical life and destroying the life of the soul?”[27]
Final thoughts
Rape is never an easy topic to discuss. And most legal systems still struggle to adequately address the crime. Torah, halakha, can only be understood when viewed within a broader context. Though by no means complete, we tried to give some of that context here. Halakha can be understood as an attempt to apply Torah values to real world situations. This world is imperfect, it is not a world of truth. In the wake of such a heinous crime there is no way to right the wrong. Halakha tries to find the best resolution for a horrible situation, as it strives to maintain justice and righteousness.
[1] After the people of Geva Binyamin rape the unnamed concubine (Shoftim 19-21), and after Amnon rapes Tamar (Shmuel II 13) the perpetrators are killed along with their communities.
[2] Grappling with the Torah is not for the faint hearted. Many modern Jewish scholars compare the struggle to the description of Yaakov’s confrontation with the angel in this week’s parsha. The Torah uses the term “vayeavek” which is generally interpreted as wrestle but is similar to the word for embrace – when confronted with a challenging passage or idea one must wrestle and embrace at the same time. Our struggles with these sources do not always reach a satisfying resolution; they can be exhausting and leave us limping. The only way to come out of such bouts with our faith intact is to embrace the elements of our tradition that fortify our faith. Many Jewish philosophers throughout the ages have described questions that are better than the answers they have been able to find or comprehend. This is not a deterrent. They maintained that, when put in perspective, these lingering questions were far overwhelmed by the truth, righteousness, and justice of God and the Torah that they did comprehend. The steady base of faith remained intact even if they remained with questions.
[3] Rav Aharon Lichtenstein, written and edited by Aviad HaCohen https://asif.co.il/wp-content/uploads/2017/08/bn14_08ral.html#_ftn1
‘למשמעותם הערכית של דיני אונס ומפתה’, עלון שבות יד הרב אהרון ליכטנשטיין
[4] Important terms:
Me’urasa – betrothed/engaged. During this stage she is not permitted to be intimate with anyone, the man she is engaged to or anyone else; if she is willingly intimate with the latter they are both sentenced to death.
Stages of female development:
Na’ara – the Talmud explains that this Torah term relates to a girl on the cusp of womanhood, from the age of 12 years and one day for about 6 months, or from the early signs of puberty until a certain stage of development. This is a stage of halakhic limbo, the na’ara has some entitlement to her own property and to accept her own marriage proposal but is still her father’s charge.
This is opposed to the next stage, a bogeret – a mature woman – and the previous stage of minor – ketana.
An unmarried bogeret is independent, and there are several unique halakhot that apply to her, particularly surrounding the question of whether one can expect a woman of this age to exhibit physical signs at losing her virginity (TB Yevamot 59a). Nevertheless, such a status is not always included in discussions of women, for example the Talmud does not address what happens if she is raped.
A ketana, a minor girl – until the age of 12. Until she reaches the stage of na’ara her father may marry her off without her consent or sell her as a Hebrew slave (the rabbis prohibited fathers from marrying off their daughters without her informed consent). She has no property of her own, it belongs to her father (though the same is true for a katan, an underage boy).
[5] And while it is unthinkable that a woman would want to marry her rapist, unfortunately this was probably considered the best option available to her. To understand the desperation of this woman one need only look how Tamar begged Amnon not to send her away after he raped her, claiming that refusing to marry her now was a greater evil than the rape. (Shmuel II 13:16) When he refuses and has his attendant throw her out she puts ash on her head, rents her tunic, and walks around screaming until her brother Avshalom tells her to ignore it. We leave Tamar sitting desolate in her brother’s house. We never hear from her again.
[6] Arayot are people who are forbidden to have intercourse with each other – such as close family members and women who are married or betrothed to another man. The category includes a single woman who is nidda (ritually impure due to menstruation), but there is some debate as to what happens in her case.
[7] These are only a small sample of the questions these sources raise. The Torah only mentions rape of a single or betrothed girl who is a virgin, why no mention of a woman who is not a virgin, who is single, married, divorced, or widowed? And what about a male victim or female perpetrator? What about spousal rape? Some of our discussion will touch on these issues, but much of it is beyond our scope.
[8] We should note that Ramban seems to reject the idea that there is an “appropriate” way for a rape victim to react in the moment. Although he describes classic forms of struggle he also uses the curious phrase “she does not know to scream,” perhaps reflecting the idea that a rape victims reactions do not have to be rational to a bystander.
[9] The Torah’s assertion that a rape victim is blameless and may not be put to death is novel. Even today there are girls and women around the world who brutally slain in so-called “honor-killings” after they are raped.
[10] TY Ketubot 3:5. The gemara uses the term “niv’elet,” a term used throughout halakhic sources which presents women as passive in all types of intercourse. The term is perhaps better translated as “penetrated,” but as it is also related to the idea of the husband’s ownership we used the more delicate translation of “taken.”
[11] The Talmud discusses aspects related to any woman who is arayot. Rishonim debate if a woman who is not a virgin gets the same damages as a woman who is a virgin. Yet a single woman – meaning after her 12th birthday or certain signs of puberty – is not addressed. Perhaps this is because such a thing was rare – the norm was that girls belonged to their father and women to their husbands. A pre-pubescent girl lived at her father’s house, and around the age of 12, when she reached majority, she was married. Nevertheless, Philo of Alexandria states that a man who rapes a widow is guilty of violence and shaming and the Beit Din decides what he should “suffer or pay,” indicating that the normative halakhic process at this time could also be punitive.
[12] As we mentioned, all biblical narratives that describe rape mention catastrophic repercussions – all resulted in massacres. Some may claim the disgust was not directed at the assault on the woman, but rather the sin of arayot or the affront to the honor of the man or men she belonged to. And in the case of Pilegesh Ba’Giva the latter is certainly plausible. But both these arguments are less convincing with the case of Tamar. The text describes her as arguing “Don’t force me for such things are not done in Israel, do not do this abhorrent thing. Where will I take my shame? And you will be like one of the degenerates of Israel.” Since Tamar seems to think King David would allow Amnon to marry her it’s possible that they were not actual brother and sister and their union would not be prohibited. Therefore, arayot is probably not an issue. And since the text takes pains to relate her trauma and her brother Avshalom reactions to it, it seems likely he is initially motivated to avenge Tamar’s honor more than his own.
[13] Indeed, The Code of Hammurabi states that the punishment for a married man who rapes another man’s wife is that his wife is raped. Yes, the objectification of the woman is appalling. The assailant should suffer the assault.
[14] Bava Kama 8:1
[15] Sefer HaKuzari III 46
[16] https://www.academia.edu/43312753/%D7%A4%D7%92%D7%99%D7%A2%D7%94_%D7%9E%D7%99%D7%A0%D7%99%D7%AA_%D7%95%D7%94%D7%98%D7%A8%D7%93%D7%94_%D7%9E%D7%99%D7%A0%D7%99%D7%AA_%D7%91%D7%94%D7%9C%D7%9B%D7%94
[17] Mishneh Torah Hilchot Chovel u’Meizik 5:1. Devarim 25:3 states that when giving lashes as a court ordained punishment the inflictor may not give extra lashes. Rambam infers that if one may not hit a sinner then certainly they may not hit anyone else.
[18] Even HaEzer 87
[19] Minchat Chinuch 49, Chazon Ish Choshen Mishpat 19:5
[20] We should also point out that even now, many do not view rape as an abhorrent act of violence and domination, but as much less serious failure of the perpetrator to control their sexual urges.
[21] Mishneh Torah Melachim 9:14, Minchat Chinuch Mitzvah 95, Meiri Beit Habechira Sanhedrin 57a “Hagneiva”
[22] TB Eruvin 100b, Mishneh Torah Hilchot Deot 5:4, Hilchot Issurei Biah 21:12, Shulchan Aruch Even HaEzer 25:2. TB Bava Kama 8 rules that a man who injures his wife has to pay damages.
[23] TB Sanhedrin 73a
[24] In this case the gemara states these laws apply to all biblical arayot that are punishable by karet. (TB Sanhedrin 73a) Some argue this is only in cases where a potential offspring from the union would be considered a mamzer (Rashi), others claim that it also includes a single woman who is nidda. (Minchat Chinuch Mitzvah 600)
[25] Rav Avraham Stav, ibid. and Benny Porat, Harigat Anas k’Hagana Atzmit https://www.daat.ac.il/mishpat-ivri/skirot/skira.asp?id=187
[26] TB Shabbat 63a
[27] Techumin 31 pg 181 “סמכות הנהגת ציבורית בענייני מוסר”
