Spinoff Rape Culture in Halacha/ Trigger Warning

marina

Wed, Apr 20 2016, 12:27 am

Trigger warning: don't read my list of questions if you were the victim of a s-xual assault.

So I have always had a lot of questions about how halacha views rape. Just going to list them here in no particular order.

1. Why is rape essentially a civil violation in halacha? The rapist pays a fine and is done? Not even lashes? You get kareis if you fail to bring the korban pesach, but for rape you just pay a fee? If your rape victim was engaged to someone else, you get the death penalty for raping her. But if she wasn't yet engaged, you pay a fine?

2. What is the whole thing about the woman who doesn't cry out in the city so she is not considered raped? Devarim 22:23-24. It seems like if you do not immediately call out against your rapist, you are presumed to have consented. Also MT Naarah Betulah 1:2 http://www.chabad.org/library/.....e.htm

3. Apparently if the victim is under 3, there is no fine? What happens to the rapist then?
1:8 http://www.chabad.org/library/.....e.htm

4. The fine the rapist has to pay differs based on the woman's lineage and beauty?
MT NB 2: 4-6

http://www.chabad.org/library/.....o.htm

5. Halacha appears to assume that consent is not age-dependent. Even HaEzer 177:1. You can consent even if you are a little kid.

6. Nowadays, the shulchan aruch holds that a rapist should be put into cherem until he comes to some financial arrangement with the victim? Even HaEzer 177:2? If rape is really a financial problem for people to work out, I really do not understand why people would call the police.

7. All of this applies only to virgins? What happens if you rape a non virgin?

8. There's a lot of blaming the victim in Devarim 22:23 - basically she is raped because she went outside, should have stayed in.

Quote:

And [another] man finds her in the city: Therefore, he lay with her. A breach [in a wall] invites a thief; had she remained at home, this would not have happened to her. — [Sifrei 22:103]
ומצאה איש בעיר: לפיכך שכב עמה, פרצה קוראה לגנב הא אילו ישבה בביתה לא אירע לה:

The more I read, the more questions I have so I'll just stop now.

newmammy

Wed, Apr 20 2016, 3:31 am

Here are my thoughts on the points you raised. They are very valid, and quite upsetting to us as we are inundated with our culture and legal system.
However, the Torah works on a completely different system.

Our society is based on rights, Torah is based on obligations.
In our society we have the "g-d given right to pursue happiness," the Torah outlines the obligation to SERVE g-d with happiness (must come from within, isn't owed to you by the world).
Our society declares that we own our bodies, Torah says g-d owns our bodies (forbidden to take ones own life). Etc. etc.

In the Torah crimes are are divided in two general categories, crimes against g-d and crimes against our fellow human.
When it comes to punishment, g-d can decide any consequence he wants for a crime committed against him. No matter how insignificant it appears to us, if g-d values Korban pesach he can punish with kares for disobedience.
When it comes to crimes against humans, there is a completely different system of punishment. The death penalty is used very rarely, the crimes that receive capital punishment include murder, kidnapping and certain cases of rape.

The vast majority of interpersonal crimes are handled with the exchange of money.
Violent crimes are considered inflicting personal damage. All people have a financial value and when one person damages another the guilty party must pay to repair the victim. The calculations that go into ascertaining the fine include factors such as dr fees, payment for loss of work, payment for loss of dignity as well as a base amount according to the nature of the injury.
The same applies for rape. Exept in certain cases, s-xual assault is considered similar to other forms of assault. This means that if a man assaults a woman he is obligated to pay her for the damage he caused, this includes medical fees and emotional trauma.

As far the money going to the father of a single girl, once again the Torah system is vastly different than our own.
From the Torah perspective, women are to be treasured and cared for, a woman should never have any financial or worldly pressures of any kind. To ensure this, women are in the care of their father until they get married and their husband takes on the responsibility of providing for them.
Traditionally, when a woman got married, the father would give a dowry to the new husband to have a nest-egg to begin to fulfill his new obligations.

When a single woman is raped, she may feel unwanted, like "damaged goods." She may feel like now no one will want to marry her. Her rapist is then obligated to give money to her father to contribute to her dowry. Now the result is that this woman becomes MORE desirable to other men as a prospective because she has a larger nest-egg. Hence, helping her heal and move on.

As far as your point about a girl under three years old. The strict halachic view is that since there is no physical, lasting damage to the girl's body, the offender does not have to pay damages. However, society on its own did find many ways of punishing such offenders.

There is definitely many different age and maturity categories in Halacha when it comes to the idea of consent. There are stages of a baby/toddler, girl, adolescent, young lady and woman. There are many different halachik guidlines based on these stages.

The point about "victim blaming," the Torah is simply saying that one must be extra cautious to avoid he-said, she-said situations. Halacha states that if you are in a situation that is impossible to decipher, the Bais din will not be able to rule in your favor.
Therefore the Torah encourages woman not to do things that are dangerous. This is for women's protection, just like most parents warn their daughters to stay in a safe environment.

The comment about "what happens to the rapist?" The same thing that happens to all the other violent criminals. Jewish society has always found a way to make criminals suffer for their crimes.

I don't recall if I addressed all your points, I'm pretty sure they are not in the same order you presented.
I am no writer or great debater. I do not have near the same level of education as you and I have no near your IQ. I'm sure that my explanations don't even come close to addressing your points and as it is Erev Pesach (and 3am Yawn

) I probably won't be able to continue this conversation.

All I wanted to with my post was highlight that the Torah legal and value system is vastly different than the one we are used to and that the Torah is NOT anti-women, rather it tries to protect women.

marina

Wed, Apr 20 2016, 3:56 am

The only time when rape is a capital crime is when it is someone else's wife. And there is no difference in that case if the intercourse was consensual or not - the man gets the death penalty regardless of whether the woman consented. So there is no non-monetary punishment for rape specifically, as I see it.

Also, I understand what you're saying that Jewish communities handled their criminals, but I dk abt that. It seems like there would have been a lot more incentive for the girl or woman not to report the rape than to report the rape, especially if there is no fine. What's the upside of reporting a rape where the rapist has no fine or any other consequence coming to him? Why would she even report it to start the process of developing some alternative response?

But I guess my question is really about Hashem and the way the heinousness of the crime is presented. It could have said Misa B'Yadei Shamayim or something like that to show how horrible this crime is, but I didn't find anything like that.

marina

Wed, Apr 20 2016, 9:17 am

PinkFridge wrote:

I'm not going to be on much till chol hamoed so I may not be following this.
Marina, I think it's a safe assumption that you've asked people about this. Have you got any answers you find at all satisfying or palatable? You know I'm asking this sincerely, but for the benefit of people who may not know me I have to stress that I am totally sincere and not at all adversarial.

This a great question!

I have asked some of the questions in general and in other contexts, but not in this detail. I've also tried to think of some answers for myself.

Some of the answers I have received include:

1. These halachos were progressive for the time and protected women in that culture. That's why I also included questions 5 & 6 here, something I haven't asked before.

2. Rapes were very unusual and when they became more common, prisons were implemented. I just don't know anything about this. What prisons? Where? How did they work? And still, why is there no acknowledgement of the impact on the woman? Why didn't the Torah use any sharp statements like calling this a toeva or evil or whatever? It's not just about the actual punishment for me, although that's a piece of it of course. It's also about why there's apparently no hashkafic condemnation of this horrible act.

3. The in-the-field criteria has been expanded and the rabbis would have been sensitive to any reason the woman may not have protested the rape. Again- I don't know enough about this to evaluate this. What happened? How was this practically investigated?

One unsatisfactory answer that I thought of myself is that in our society, monetary damages are also a thing. Civil lawsuits for example may note the rape victim's status. So a model whose career is derailed by a rape would probably stand to gain more money from a lawsuit than a regular person whose damages do not include a career loss. And a rapist may end up found not guilty because of a celebrity status and then the only consequence is essentially a big fine in civil court.

This answer was unsatisfactory to me because society considers rape a crime as well a civil tort. The perpetrator stands to lose his freedom and this acknowledges the trauma inflicted on the woman, unlike the above halachos.

Another answer I thought of for myself is that a child younger than 3 may not be as affected by the rape is because she may not remember it as a rape if at all. This answer is unsatisfactory because of course rape is still a horrible assault and the assailant needs to be punished even if the child doesn't remember. The child's memory cannot determine the rapist's punishment - that brings so many problems.

Last edited by marina on Wed, Apr 20 2016, 8:40 pm; edited 1 time in total

imasoftov

Wed, Apr 20 2016, 11:32 am

I don't know if this helps or just widens the question, but in halacha assault (unless it kills, with many limitations) is also a civil tort. And the way one of the categories of damages is assessed doesn't quite treat the victim as property but does head in that direction, the court takes the value of the victim on the slave market before and after the injury and awards him or her the difference. This is a non-Jewish slave who is really owned, and not the Hebrew servant who goes free after six years.

The link to Rambam in the OP says that a rape victim, in addition to the 50 shekel fine, also receives tort damages. I don't know whether a female slave's value goes down if she's been raped ... I'd have to look at the Hebrew (or maybe the footnotes) to see if that category is included in Rambam anyway.

What batei din did about that once slavery was abolished where they live, I don't know.

But the other categories of damages (compensation for pain, medical expenses, embarrassment, and lost earnings) would apply. How that compensation would compare to the 50 shekels is something else I don't know.

But assault is considered evil, even if the attacker pays compensation. For example the midrash cited by Rashi on Shmot 2:13 when Moshe tries to stop two Jews from fighting says that one who lifts his hand to hit another is called wicked even before the assault happens.

I also wonder how often the victim (or her father) agreed to marry the rapist. And how that worked out. But then I also wonder what happened to victims who didn't marry the rapist. What sort of man married them - someone who thought that a rape victim was less desirable as a wife, but a bigger dowry compensated for that? I don't get why the Torah doesn't tell men that rape victims are not at fault, but then I don't get why the Torah doesn't tell relatives of a murder victim to leave justice up to the courts.

marina

Wed, Apr 20 2016, 1:02 pm

imasoftov wrote:

1. So on one hand, yes it is helpful that you are pointing out that assault in general is usually a civil matter, because then it's not like rape is singled out here. At the same time, this does raise additional questions. Why isn't rape treated differently? Isn't rape automatically more traumatic than a slap or a punch? Even this rambam notes that there additional fines for embarrassment etc.

Why doesn't the rapist even get lashes as a standard consequence? Why not even that?

I guess if we say that this was written for a different time with different social norms, that explains the trivialization of rape. But if we accept the idea that the Torah is forever and that these rules should guide how we view rape in 2016, these halachos become really difficult to understand. I mean, there are people (many of them) who learn daily rambam, presumably to gain insight and enrich their lives in 2016. What are they thinking about when they come to these sections?

2. Assault maybe wicked in a medrash, but why isn't it as bad as other things which are explicitly condemned? If we want to know how Hashem views worshipping Zeus, we can randomly open up to almost any perek in the Chumash and see how evil and abominable and disgusting idolatry is to Hashem. If, in contrast, we want to know how Hashem views raping a three year old, we need to go to a medrash on a pasuk in shmos? And even then there's no distinction between slapping your rude neighbor and raping a child?

amother

Brunette

Wed, Apr 20 2016, 6:32 pm

happybeingamom wrote:

It is interesting when there was the rape of Dinah and the response of Shimon and Levi was very strong. This is a very different approach than financial compensation.

That was to defend their family's honor, was it not? Many men 'took care of' the rapists - but that was to defend the family reputation.

In general, I think this is reflective of ancient times - girls were the property of the males in their life. Like other property that was damaged, (sorry) punishment only involved financial compensation.

Does this bother me? Many things in the Gemara and Halacha bothered me tremendously when I held onto the view I was brought up with that it were timeless and not influenced by society or culture. Now I just accept that past generations had different views, am grateful that I live in a time where I have rights and mostly equality as a woman, and recognize that compared to other religions and cultures, the Jews treated their women relatively well.

But the Torah itself, like rape in Parshas Devarim - that is supposed to be timeless! Above cultural and societal dictation. Does the Torah really consider women as property???

What happens when I come across things like this?

I research and learn, chew over answers that are less than satisfactory, and then just stop thinking. I hate that I can't delve into some topics in Judaism without it leading to conclusions a frum person wouldn't want to reach, but that's life. Hopefully one day it will all make sense, and hopefully that isn't just wishful thinking on my part.

ETA: I somehow missed one of Marina's posts which asked the same questions as I did.

If anyone has an answer - I'd love to hear it!

amother

Navy

Thu, Apr 21 2016, 1:48 am

First of all, it is obvious that the passages you discuss were not the "punishment" for rape, there are several ways you can tell that, including that this whole thing does not apply to a bogros (one above 12.5 years), the Torah is only talking about the specific "punishment" of 50 shekels which only applied to very specific cases, in fact chazal state that the rapist has to pay boshas tzar and pgam which are all payment for emotional distress to be determined separately for each case which applied to any and all victims (though it's not mentioned in the Torah)....

Now, as for the criminal punishment for the rapist, here's a very important thing to know before you start asking any qs: We do not find in the torah punishment for social crimes, the concept of of prison is not mentioned for any aveira (even though it defiantly existed). The punishments that are mentioned are only for very specific cases--there has to be witnesses, pre-warning etc

Say 100 people witnessed a murder--but one witness was a relative to the accused. That disqualifies everyone from testifying. Do you think such a person was let loose? Chazal mentions imprisoning a person in a kipa. Sometimes a thief would have a hand cut off.

The Torah gave the authority of determining punishments for social crimes to the local governments of the time. This is likely because as societies evolve appropriate punishments vary. One society's torture is another society's perfectly legitimate way of keeping law and order.

Marina, the Torah is not a law book, it is about mitzvos which many of them does not make sense to a western (or any) mind at all. The very basis of Judaism is that there is a deeper meaning to each mitvah the Torah discusses. Again, it is not a law book. What becomes a mitzvah discussed in the Torah and what does not is not comprehensible and does not have anything to do with civil or criminal law.

Bottom line: the law is up to local authorities.

cip

Thu, Apr 21 2016, 1:50 am

I'm gonna try to respond a bit to questions 8 and 4 regarding blaming the victim and lineage.
In modern society would we not find a difference in punishment for a rapist who rapes a showgirl dancing in a bar at night compared to a rapist who would brake into the home of and hold a knife to someone like Kate middelton? One has a reputation to protect and one does not.
John kasich recently took flak for saying that a college student could try to protect herself from rape by not hanging out drunk in bars at night. I agree that he has a very valid point. The torah gives laws of yichud and tznius to protect women. Thay are not for restictive purposes but for protective purposes. As parents tell kids not to get into cars with strangers or other similar safety precautions. Its for protection. Not restriction.
That obviously doesn't make it right for the rapist when a girl puts herself in a compromised situation. Just means the girl could have sometimes protected better. Not always of course. Often rapes happen in the best of situations but more often I suspect it happens in a compromised situation. That is why we have laws of yichud and tznius.