Spinoff Rape Culture in Halacha/ Trigger Warning

marina

Thu, Apr 21 2016, 12:52 pm

Yael wrote:

I got an email from a man who wished to contribute to this thread but couldn't join. He asked me to post on his behalf.

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Hi, I tried to reply to the article about rape, but could not join since I am a man. I'd only like to point out that women aren't viewed as property, Chas veshalom.
That said, the best answer was that given by newmammy
I'd like to point out to a great passage of the Talmud
In Sanhedrin 75a it is brought down that the rabbis from forbade a lady to stand unclothed next to a man , who would not see her, only to have his yetzer calmed down. They said that he should die before she should demean herself. And there's an opinion there that she wasn't married.

So, first I looked up this Gemara and it does not say abt demeaning herself. It says one opinion is bc of the honor of her family and the other is bc of immorality. http://www.come-and-hear.com/s......html

Second, these explanations do not distinguish btw forced and not forced. The response would have been the same, it seems, if the woman was willing. It's not like they said " it is forbidden because she is not interested and we don't force a woman to undress if she does not want to."

Third, okay so let's say rape is forbidden. Of course, I'm sure it is. But there is no harsh language against it and no swift proscribed punishment other than a fine. Why?

causemommysaid

Thu, Apr 21 2016, 1:10 pm

Yael wrote:

I got an email from a man who wished to contribute to this thread but couldn't join. He asked me to post on his behalf.

Quote:

This is a little creepy. Just saying

marina

Thu, Apr 21 2016, 1:55 pm

amother wrote:

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.

The Torah may not be a law book, but the Gemara is. Where can I find anything in the many many detailed volumes of the Gemara about how rape was dealt with and some insight on how severely it was viewed? So many theoretical discussions in the Gemara, I'd think there would be something. Maybe there is something I just don't know.

It's not like rape was invented yesterday- it's been around forever. What did those local authorities do? Today it is very easy to tell what is the consequence for rape, even though it's also based on state laws.

And why again is there no condemnation? Nothing about how evil and wrong rape is? Nothing calling it wicked or evil or an abomination?

ora_43

Thu, Apr 21 2016, 2:40 pm

Just re: your first question for now -

As previous posters said, pretty much every crime was what you're calling a "civil case." It was an entirely different type of justice system. What some would call a "restoration model," as opposed to the American system, which is a "revenge model." In other words, the focus is on restoration for the victim, rather than punishment for the attacker.

(just ftr, I'm quoting Ruth Morris on that, and she doesn't like either model)

That's pretty typical for a tribal justice system. A lot of places on earth today still run on restorative justice. There are Arab villages in Israel where murder is a "civil case" - a killer going to jail won't stop a blood feud, but a killer's family coming to an agreement with the victim's family regarding compensation will. I think it'd be a mistake to dismiss that as trivializing murder. (Even if I can't imagine doing that myself.)

Beyond that, as previous posters said, the Torah punishments are a minimum. It's not *the* punishment for all places and times, it's just the bare minimum an attacker can do. Local authorities can impose harsher laws.

And one last point - IIRC the punishment you're talking about is assuming the girl/woman involved can't prove it was rape. And the man would get the exact same consequences if it wasn't rape.

marina

Thu, Apr 21 2016, 3:32 pm

cip wrote:

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.

I've definitely heard this perspective that yichud and tznius being protections for women. I don't agree with this because that's not how the halachos read and those are not the reasons given. Tznius sefarim explicitly talk about protecting the men. Yichud is explicitly because it might lead to a s-xual relationship not bc it might lead to an assault. The halachos of yichud do not bear out that the idea is to protect girls. For example,

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A non-Jewish man is permitted to be in Yichud with a Jewish girl under the age of Bas Mitzvah, and a non-Jewish woman is permitted to be in Yichud with a Jewish boy under the age of Bar Mitzvah.[37]

From here http://www.sichos-in-english.o.....#t37. No. 7

Obviously if the idea was to protect girls, this Halacha would come out differently.

marina

Thu, Apr 21 2016, 3:57 pm

ora_43 wrote:

I don't understand your last paragraph.

As for a different system of justice, we do know very clearly how seriously the Torah takes other interpersonal crimes. Adultery, murder, theft/ kidnapping, perjury- these are in the aseret hadibrot.

Moreover, you and I and every other person on this forum can list sources explaining how terrible is lashon hora and embarrassing someone in public and jealousy.

But rape? Molestation? We are struggling to find something, anything. Why isn't there even a very basic something like: Rav Huna says "he who takes a woman by force, forfeits his share in the world to come." That seems to be a very minimum floor.

All I can think of is the general shulchan aruch thing abt how it's assur to have relations if either is angry or drunk etc

marina

Thu, Apr 21 2016, 8:13 pm

cbsp wrote:

I remember when I discussed this (quite heatedly) with my Rov (can not quote sources at the moment but didn't want to forget to come back to the discussion after yontif) he made the very strong point that there's still a heavenly judgement, that the monetary compensation doesn't absolve the perp from getting his dues...

Don't know who stated it above, but I've never heard that bais din actually cut off a thief's hand. I was always taught "an eye for an eye, etc." was for monetary compensation... Do you have a source for that?

I'd think heavenly judgment would be appropriate if there would be warning ahead of time. Say a rapist dies and is told that he is now going to burn in hell for as long as possible, or whatever the worst punishment is. He can legitimately say that nothing in the Torah She Bchtav or shebaal peh really emphasized to him how terrible this sin was.

ora_43

Sun, Apr 24 2016, 1:38 am

marina wrote:

That's ridiculous.

For one thing, like I said earlier, look at any case where rape appears in Torah. When a man's mistress was raped and killed, it started a war; could anyone legitimately read that and think that Jews didn't see rape as a serious crime?

For another, it's a combination of things that are mentioned as being forbidden. There are plenty of sources about how physical assault is terrible, and about how s-xual immorality is terrible. "But I didn't know those things were terrible if I did both at the same time" would be the world's stupidest excuse.

And man-who-isn't-on-imamother did mention one source, kinda, toward the end of his post. In the gemara it says that if a man is insisting he be allowed to touch, or talk to, or even just look at a certain woman, because he wants her so badly he thinks he's going to die, he shouldn't be allowed contact with her against her will even if he is actually, literally going to die.

eta - yes, there's no explicit mention of "for this sin, you burn in hell for XYZ time" - but that doesn't exist regarding any crime. There's no mention of punishment in the afterlife in the Torah at all, AFAIK.

ora_43

Sun, Apr 24 2016, 2:20 am

marina wrote:

But rape? Molestation? We are struggling to find something, anything. Why isn't there even a very basic something like: Rav Huna says "he who takes a woman by force, forfeits his share in the world to come." That seems to be a very minimum floor.

You're judging a non-American culture by American rules.

For one thing, you're still taking for granted that "taking a crime seriously" = "talking about how the perpetrator is a horrible person and about the punishments they will get." Whereas in many cultures, including to a large extent ancient Jewish culture, "taking a crime seriously" = "ensuring the victim is properly compensated." (when it comes to crimes between people, not crimes against G-d)

You don't have to accept that as *the* definition, but do understand it goes both ways. You're deeply disturbed that ancient Jewish culture didn't talk about how terrible rapists are; someone from ancient Jewish culture would be deeply disturbed that in Western culture rapists don't have to compensate their victims.

For another, in Western culture "rape" 1. is a single crime 2.covers a variety of types of rape, while in ancient Jewish culture it wasn't one crime, it was one of several possible crimes and/or a combination of crimes, depending on the identity of the victim. You're expecting one clear, concise quote on "rape," but someone from that culture would see rape as one of several potential crimes (rape that violates a Torah command on s-xual immorality (ie that is also adultery, incest, or homosexuality), rape that involves taking virginity (which had a monetary value), rape which doesn't involve taking virginity, rape with physical assault... etc). It'd be like expecting Western law to make a single statement about the punishment for "killing" that includes everything from manslaughter to first degree murder.

ora_43

Mon, Apr 25 2016, 2:34 am

Now to get into more questions.

marina wrote:

1. Why is rape essentially a civil violation in halacha? The rapist pays a fine and is done? Not even lashes?

Re: "not even lashes" - halachic punishments punish the most severe aspect of the crime someone committed, and nothing else. So nobody gets both a fine and lashes for the same crime, IIRC.

Quote:

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.

"In the city" and "in the field" are more of general categories than specific places. Like, if someone is in the city but the rapist has a weapon, that's "in the field" - ie, a situation where the victim wouldn't be expected to yell for help.

But yes, overall there's an expectation that a victim of attempted rape would yell for help if she's able to (ie, not restrained and not in immediate physical danger) and if there are people around. That doesn't mean rape can't happen under other circumstances - see eg the case of Amnon and Tamar, which was rape (and which Avshalom immediately recognized as rape) even though it happened in the palace. But halacha does have to decide the "he said, she said" question somehow, and that seems to be where the line was drawn, even recognizing that it wasn't perfect.

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3. Apparently if the victim is under 3, there is no fine? What happens to the rapist then?

If the victim is under age 3, it's treated as a case of physical assault. So there is a fine, but it's for injury to the victim, not for lost virginity.

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

I hadn't heard of that, but it makes a kind of sense. If there was a flat fine for every case of rape, some victims would not be fully compensated. Eg if everyone paid 100 silver pieces, what about a very beautiful girl from a noble family who would have made a marriage worth 500 silver pieces?

Yes, it's creepy to us today to think of girls as being worth more or less money for marriage, but since that was the situation...

Paying more or less based on the size/age of the victim and attacker (as explained in the link) definitely makes sense. It sounds like basically an extra fine for attacking an underage girl, who would naturally suffer more pain.

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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.

The shulchan aruch isn't the final source for what we do nowadays, if by "nowadays" you mean now in 2016 as opposed to "sometime in the last 500 years." Now, in 2016, there are options that most Jews didn't have 400+ years ago - including calling the police. Which is the preferred option according to most modern-day halachic authorities AFAIK.

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

Then there's a fine, but the fine doesn't include the payment for lost virginity.

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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.

That's not the pshat.

marina

Mon, Apr 25 2016, 9:10 am

ora_43 wrote:

First of all, s-xual immorality is a big deal for women. For men, it's not, especially with a Jewish woman, because one way to marry a woman is biah. It's not a good idea to keep on "marrying" different women every night, but one or two is not a big deal at all. The entire concept of pilagshim goes against your argument. You really think Sholom Hamelech had a full wedding with each of his concubines?

And the story in the Gemara has nothing to do with rape! No one said she was unwilling! And it's a lechatchila concept not an after the fact punishment. Had the guy been like " screw it, I'm sleeping with this woman she and I love each other and that's it," he wouldn't have gotten the death penalty. He might not have even gotten lashes. It's about the women not sleeping around- not the men refraining from rape.

As for physical assault, yes it is mentioned in a few places. Is physical assault, say punching someone in the face, different than rape? Where's that source?

If you compare it to other punishments, say for being mechallel Shabbos or speaking lashon hara, the contrast becomes even more stark. There is a whole Sefer on punishments- Shaarei teshuva. I'm going to look and see what it has on rape. But apparently none of us know it.

marina

Mon, Apr 25 2016, 9:39 am

ora_43 wrote:

Yes, I am judging this by my culture. Like I said, if I want to dismiss this as ancient history, understanding this is easy. I'm trying to understand from the perspective of people who read daily rambam, from people who find wisdom in this today.

We compensate our victims- that's what civil lawsuits are for.

And all of your examples of rape have one thing in common - s-xual act by force. Where is there anything about that? We definitely have information about murder - accidental and purposeful- in Halacha. So it's not like we can't make distinctions.