Class Notes - Class #2

When the family was the basic economic unit, and where women had very few other ways to make a living, a woman made a living by being married.  Women would typically marry as teenagers.  Adult women or sexually experienced women might find it very difficult to find a husband. Earlier we saw mitzvot that require a man who seduces a virgin woman to marry her or to pay a substantial penalty. The next several mitzvot deal with other situations where a man’s bad behavior makes a woman economically vulnerable by limiting her prospects of marriage.

Mitzvot #557 and 558 deal with rape.  According to the source verses, Deut. 22: 28 – 29, a man who rapes a virgin na’arah, a girl within the six months after the onset of puberty, pays a penalty to her father of 50 shekel of silver and is required to marry her and not divorce her.  The fine is payable to the girl’s father but if she has no father the fine goes to her.  If a man rapes an adult woman the case is a standard case of battery and the rapist is subject to paying damages.

Our author explains that rape is a heinous crime, and serious penalties for rape will deter potential rapists.  Here the penalties are not the usual criminal penalties, but rather are obligations on the rapist that provide the woman with an option that may help her in her disadvantaged situation.  Deterrence comes if the potential rapist knows he will have to deal with the victim indefinitely. 

 The marriage prospects of a rape victim are reduced.  This rubric provides her with the alternative of marrying the rapist if that seems like a better option than looking for another husband.  In particular, the victim and her father get to choose whether she marries the rapist. If they do not choose to go through with the marriage, the fine the rapist pays might provide a dowry substantial enough for the girl to find another husband.  If they choose marriage, the rapist has no choice, and subsequently he may not divorce her.  But no ketubah is required for that marriage.  The rabbis instituted ketubah as a way to discourage divorce.  Here, the man involved does not have the option to divorce her so no ketubah is needed. The author does not say if divorce is possible should the woman want that divorce.  But if after the marriage the bride is found to have had inappropriate sex before the marriage, the husband may divorce her. He is not required to marry her if some other mitzvah, d’oraita or d’rabbanan, forbids the marriage.

The author provides substantial detail about the financial damages in rape cases. The fine of 50 shekel only applies to rapes of women in a specific age range.  We saw earlier that sexual acts involving girls under the age of three do not count as sex at all, so these mitzvot do not apply if the victim is younger than three years old.  The source verses refer to a na’arah, so these mitzvot do not apply if the victim is an adult.  Apparently the rape of an adult woman is considered an ordinary battery.  A woman is considered a “bogeret,” an adult, beginning six months after she shows physical signs of puberty.  Those six months were considered the prime time for a woman to marry.  The marriage would have been arranged by her father. 

Even within that age range, the fine does not apply in all cases.  Since the source verses specify a “b‘tulah,” a virgin, there is no fine for raping a sexually experienced girl or for women we might suspect are sexually experienced.  That includes:

a divorcee;

a convert, since a woman who converted after the age of three is always presumed to be sexually experienced;

a girl who had been kidnapped and might have been raped while a captive;

a girl who had been accused of improper sexual relations, about whom two witnesses say she was willing to have sex with them;

a shifchah, a slave girl who when she becomes an adult either marries her master or his son or goes free;

a girl whose father has died and is married as a child by her mother or brothers, and who can reject the marriage when she becomes an adult;

a girl who does not show signs of puberty even after the age when that would be expected,  who may have been taken advantage of sexually because no pregnancy would result;

 a cognitively impaired or deaf/mute girl who might have been taken advantage of sexually without fully understanding what was happening.

The fine is punishment, compensation paid for the “enjoyment” of the sexual act.  According to Rambam, if the rapist is required to pay a fine, the rapist also pays other damages that would be required in any other case of battery, for example pain and suffering and medical expenses, but if the rapist is not required to pay the fine the rapist does not pay other damages either.  Our author disagrees, though, arguing that even if there is some reason why the rapist does not pay the fine, the rapist should still be liable for the same damages as in any other case of an attack by one person on another person.

In cases where rape is alleged, there is always an issue of whether the sexual relations were forced or consensual.  If there is no other evidence, halachah determines this issue by presumption.  If the alleged rape occurred in an isolated area, for example in a field, the sexual relations are presumed to be forced, since if the victim had called for help no one would have heard her.  If the alleged rape occurred in town, or in a place where had the victim called for help she would have been heard, since she did not call for help the sexual relations are assumed to be consensual.

The author also discusses what sexual activity constitutes rape.  He cites Rambam for the proposition that only normal vaginal penetration constitutes rape, but our author is puzzled since he thinks that Talmud would include anal penetration as equivalent.   The author also mentions, without explaining, that the rapist is not subject to a fine unless there were witnesses although a warning is not required.  Imagine, for example, witnesses seeing a rape by a rapist so well armed that the witnesses are afraid to intervene.  And the author explains that if the rapist marries the victim and then divorces her, he is required to remarry her.  If he does, he is not subject to other punishment since his wrongdoing was corrected.  But if for some reason he cannot remarry her, for example if he is a cohen, he is subject to malkot.

The author explains that monetary fines were only imposed while the Temple stood.  But the mitzvah that the husband not divorce the wife remains applicable.

Mitzvot #553 and 554, positive/negative pair, forbid the husband who wrongly accuses his wife of adultery from divorcing the wife, and require him to pay a penalty of 100 s’la’im of silver and/or be punished with malkot. The rabbis understand these mitzvot to apply only in a very specific situation.

The source verses, Deut. 22: 13 - 19, describe a situation where a father arranges a marriage for his virgin, na’arah daughter.  After the wedding, the husband accuses the wife of not having been a virgin.  The father brings a garment that serves as proof of her virginity.  That shows the husband has accused her wrongly.  The husband pays a fine of 100 shekel of silver to the father, and the husband is prohibited from divorcing the wife. The source verses do not include a specific prohibition on the husband from falsely accusing his wife, but our author explains that the husband is guilty of prohibited gossip. 

Later rabbis understand this mitzvah as limited to a very specific situation. Our author explains this mitzvah as Rambam understands it.  Let’s start with a background case.

A husband marries a woman through eirusin and nisuin.  The woman is a na’arah, a girl within the first six months of the onset of puberty.  After they have had sex, the husband goes to beit din claiming that she was not a virgin and he brings witnesses that after eirusin but before nisuin the wife had sex with a different man.  If those witnesses are convincing, the wife is guilty of adultery and incurs death by stoning. 

Now consider a variation.  In response to the husband’s witnesses, the wife’s father brings witnesses who testify the husband’s witnesses were somewhere other than where they said they were at the crucial moment.  We have a classic case of “scheming witnesses,” where the first set of witnesses are punished with whatever punishment would have come to the person they testified against.  So if the father’s witnesses are convincing, the husband’s witnesses incur death by stoning.  Because of these mitzvot, though, the husband also is subject to malkot and pays father 100 s’la’im of silver. The husband is also forbidden from divorcing the wife. The author does not say whether the husband could divorce his wife if she wanted the divorce, or whether both husband and wife are stuck in the marriage. Even though the husband’s only offense was verbal, these mitzvot create an exception to the general rule that someone who violates a prohibition but whose only act is speech is not punishable.

Consider a variation on the prior case.  The husband brings a second set of witnesses who testify that the father’s witnesses were not where they claimed to have been.  This is a case of a second set of scheming witnesses, and as we saw earlier we would normally not act on a second set of apparently scheming witnesses.  But this case is an exception.  If the husband’s second set of witnesses are convincing, the wife is subject to stoning as an adulteress, and the witnesses the father brought are also punishable with stoning.  Our author does not say what would happen if the chain of testimony continued.

The author explains that the criminal punishments and monetary fine could only be imposed while the Temple stood and Jewish courts dealt with cases involving fines.  But the mitzvah that the husband not divorce the wife remains applicable.

These mitzvot are not easy to understand.  The rubric described in the Torah might be a way of trying to limit honor killings. Consider a case where a father arranges a marriage for his virgin daughter, and after the marriage is consummated the husband accuses the daughter of not having been a virgin.  If the father believes the husband, the father might be tempted to kill his daughter.  Perhaps these verses tempt the father to defend the daughter rather than killing her.  The prohibition on the husband divorcing the wife also helps rescue the wife from a terrible situation in which her reputation has been ruined and she would have trouble finding another husband. 

The rabbis limit this rubric to a wife who is a na’arah, basing themselves on the language in the source verses.  It is not clear why this case should be limited to a wife who is a na’arah, since the age of the woman in this situation does not seem particularly relevant.  It is not clear what kind of proof would be considered sufficient to prove this kind of case, which may be why the rabbis limit it to a case of scheming witnesses. 

We have seen other cases where various mitzvot seem to be addressing a certain type of problem situation but where we cannot quite get a handle on why the parameters of the mitzvot are what they are.  This may be another example.

 

The next group of mitzvot define various classes of people Jews are forbidden to marry.

            Mitzvah #559 forbids a Jewish man whose reproductive organs were destroyed or severely damaged by some human action from marrying or, according to some authorities, from having sex with a Jewish woman.  Such a man may marry a woman who is a convert.  A man whose reproductive organs were destroyed or severely damaged because of a birth defect or illness is permitted to marry.  The author explains in detail what kind of physical damage trigger the applicability of this mitzvah. 

            Our author tries to explain why there should be a different rule for a man emasculated by human action and a man emasculated by illness or birth defect.  Earlier we saw a mitzvah that prohibits castration.  According to our author, the shoresh of this mitzvah is to discourage emasculating men.  The author explains that some political leaders recruit emasculated men for certain political positions, especially positions that put women under their control.  And men are sometimes willing to be emasculated in order to achieve high political position.  But if men know that they will never be able to marry and settle down with a family the men will not allow themselves to be emasculated.

            Jews are prohibited from marrying non-Jews, and such a marriage does not take effect.  Several mitzvot restrict marriages between Jews and people from other specific nations who convert to be Jewish. 

Mitzvah #563 prohibits Jews from marrying converts descended from Esau/Edom for the first two generations, and also prohibits Jews from refraining from marrying such converts after the first two generations.  Mitzvah #564 requires the same for Egyptian converts.  Thus, the convert and child of the convert may marry other converts but not born Jews, and the grandchild of the convert may marry a born Jew. Thereafter the descendants of the convert and a born Jew may marry.  If a woman converts while pregnant, the child is considered second generation, so a born Jew may marry that child’s child.  The prohibitions in these mitzvot apply to both husband and wife in the prohibited marriages.

 We saw that Jews were prohibited from making peace with the nations of Amon and Moab.  Mitzvah #561 prohibits Jewish women from marrying male descendants of Amon and Moab even if those men convert to Judaism.  This is different from the mitzvot about Edomite and Egyptian converts that we saw above; this prohibition goes on indefinitely.  But it only applies to male descendants of Amon and Moab.  Women converts from Amon and Moab, and the descendants of those women, may marry men born Jewish.

The different rules for Egyptian and Edomite converts versus Amonite and Moabite converts raise issues about the status of children when one parent comes from Edom or Egypt and the other parent comes from Amon or Moab.  Our author says the child takes on whichever status is more restrictive.

The author says these mitzvot no longer apply.  As he told us earlier, when the Assyrian king Sennacherib conquered Israel he relocated large groups of Jews and people from other nations.  When those people intermarried with the local population, the national identities were entirely mingled so that it is no longer possible to designate a particular person with a particular ancient nation.  Since the descendants of Amon and Moab are a tiny minority of the world population we can ignore the possibility that any given convert is descended from those nations.

These mitzvot seem based on the notion that Jews will not want to marry descendants from Egypt, Edom, Amon or Moab even if they convert to be Jewish because of the terrible treatment Jews received at the hands of those nations.  Edomites are descended from Esau, and in Tana’itic literature Edom is often associated with Rome, but our author does not say what Edom did that was so awful.  Egyptians enslaved the Jews.  Jews might want to avoid marrying descendants of those nations.  The point of these mitzvot is to correct that mistaken notion.  Our author gives two reasons.  First, the suffering inflicted on the Jews by the Egyptians and Edomites was mandated by God.  The Egyptians and Edomites were agents of God’s will.  Second, we need a reminder not to hold that history against converts from those nations.  As our author has told is several times, converts deserves respect and good treatment. 

Amon and Moab are a different story, though. They called on Bala’am to curse the Jews.  And when the Jews were passing through their territory peacefully they refused to provide food and water.  This was gratuitous bad behavior, worse than the ongoing bad behavior of the Egyptians because it was one outrageous incident rather than an ongoing pattern of behavior.  The author speaks movingly about why the actions of Amon and Moab were so awful.  He pictures the Jews travelling without sufficient provisions, seeking food and water and being refused.  That act of refusing needed supplies was a public demonstration of depravity beyond correction. Since showing hospitality to strangers was a man’s role rather than a woman’s role, born Jews are only prohibited from marrying male converts from Amon and Moab, not female converts.  We can hear the author’s horror at leaving the travelers without necessary provision.  The Amonites and Moabites are utterly wicked, and these mitzvot serve to remind Jews to reject that model.  Rather, these mitzvot remind Jews to be generous and kind.  Yet again we find our author taking an obscure mitzvah, which does not apply to our behavior directly, and reworking it into a moral lesson that applies to us individually and nationally.  To take a very current example, think about the relevance of our author’s shoresh to African refugees currently coming to Israel.

At first glance we might have though these mitzvot show prejudice against certain converts to Judaism.   The shoresh our author provides for these mitzvot is surprising, turning that notion on its head and interpreting these mitzvot as a protest against inappropriate prejudice.  But there are some difficult points in the author’s explanation.  Is one incident of horrible behavior really worse than smaller but ongoing incidents of bad behavior?  Do sons inherit a tendency to bad behavior but daughters not inherit that tendency?  And if the point of these mitzvot is to keep Jews from inappropriate behavior toward converts, why prohibit the marriages these mitzvot prohibit? 

At the end of mitzvah #546 the author clarifies that Jews do not have an affirmative duty to marry descendants of converts from the nations mentioned in these mitzvot.  These mitzvot simply clarify when it is permitted to marry those descendants.  But, says our author, families careful about their lineage would not arrange such a marriage.  That may just be a statement of fact.  But our author seems to imply the behavior of such families is proper, and it seems odd that he should think so.  Our author seems to have a complex notion of how a parent’s bad behavior influences a child, and envisioning inherited character traits based on nationality.  That question is important in the next mitzvah as well.

            Finally, mitzvah #560 prohibits a Jewish woman from marrying a “mamzer” and prohibits a Jewish man from marrying a “mamzeret.”  Although the term mamzer is often translated as “bastard,” that translation is misleading.  A child whose parents are not married is not per se a mamzer.  A child is a mamzer only if a marriage between the child’s parents would not take effect, that is to say the sexual liaison between the parents is forbidden d’oraita and potentially punishable by death or karet.  There is an exception to that rule; the child of a man and a woman who was a niddah at the time of their sexual relations is not a mamzer.  A child whose mother is not Jewish is not a mamzer.  The child of other prohibited sexual liaisons is not a mamzer.

The child of prohibited sex that fits the above criteria is a mamzer ever if the sex act was not voluntary, for example if the child was the result of rape.  The child is a mamzer even if the parents believed in good faith that their sexual liaison was permitted.  For example, if a woman who has good reason to believe her husband died remarries and then it turns out her first husband is still alive, the children of her second marriage are mamzerim.  Currently,  mamzerut can occur when a couple married with a full Jewish wedding and then separated with a civil divorce but without a Jewish divorce, a “get.”  If the wife has a child later, that child is a mamzer.

A mamzer suffers severe restriction as to marriage partners: the mamzer may only marry another mamzer or a convert to Judaism.  A child of two Jewish parents who has one parent who is a mamzer is a mamzer, and that status continues indefinitely through the generations.  Therefore the child of a mamzer and someone the mamzer is permitted to marry is still a mamzer.

But that is the only disability of a mamzer.  The mamzer inherits along with his or her siblings, counts in a minyan, and has all the privileges and obligations of other Jews.  And a mamzer is deserving of honor if his or her behavior merits honor.  A mamzer who is a Torah scholar gets more honor than a cohen who is ignorant.

A mamzer is permitted to marry a convert, although the children will be mamzerim.  The mamzer may also marry the descendants of converts who marry each other, although the child of a convert and a born Jew may not marry a mamzer.  When someone converts, many people in the community are likely to know the person is a convert.  But after a few generations of the convert and his or her family living as Jews in the community, the communal memory of the convert in the family may dissipate.  As long as the community is aware that ancestors in the family were converts married to each other, the children of that family may marry mamzerim.  Once the communal memory disappears, the descendants of those converts may not marry mamzerim.  The author does not talk about why the descendants of converts might be willing to marry a mamzer given that the children of that marriage will be mamzerim.

The author clarifies the status of a child of various sexual unions. Recall that an eved c’na’ani is in an intermediate state between being a non-Jew and being a convert, and the eved c’na’ani /shifchah will become a convert if he or she is freed by the master.  The author traces the status of a child systematically through all the possible cases of parentage, tracking whether the child is an eved and whether the child is a mamzer.  This is a systematic attempt to cover all the possibilities, but it also helps lead to a solution to the problem of the compromised status of the descendants of a mamzer.

1.       If both parents are Jewish, and if either (or both) parent if a mamzer, the child is a mamzer.

2.      If the mother is Jewish and not a mamzeret, the child is Jewish and not a mamzer even if the father is a non-Jew or an eved c’na’ani

3.      If the mother is Jewish and a mamzeret, her child will be a mamzer whether the father is a Jew, a non-Jew or is an eved c’na’ani.

4.      If the father is Jewish and a mamzer and the mother is Jewish, the child is Jewish and a mamzer.

5.      If the father is Jewish and a mamzer and the mother is not Jewish, the child is not Jewish.  If that child converts, the child is an ordinary convert and not a mamzer.

6.      If the father is Jewish and a mamzer and the mother is a shifchah, the child is an eved c’na’ani.  If that child is freed, the child becomes an ordinary convert.  The child is not a mamzer and may marry ordinary Jewish like any other convert.  That is the case where the Jewish descendants of a mamzer lose the status of mamzer.  Note this is a solution for a mamzer but not for a mamzeret.

The shoresh for this mitzvah focuses on the abominable behavior of the parents.  Our author says that the tendency to bad behavior will be inherited by the mamzer children so this mitzvah helps protect the rest of the Jewish community from those dangerous people. 

The marriage prohibitions on a mamzer are disturbing because they seem unfair.  The mamzer’s parents were involved in maximally prohibited sexual behavior, and perhaps knowing that the child of such a union will be a mamzer will deter some of that illicit sex.  But the child of that union takes the consequences for the parents’ bad behavior.  The author assumes that the child will inherit the parents’ tendency to behave badly, but the child suffers severe penalties even if the child does not follow the parental model.  And the penalties might themselves encourage the mamzer child to bad behavior. 

All of the descendants of a mamzer are themselves mamzerim, so we would expect that over time certain families of the Jewish community would become identified as mamzerim.  But that is not what happens.  Instead, the Jewish community has techniques for quietly undermining the severe restrictions on mamzerim.  

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