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עשה תורתך קבע – אמור מעט ועשה הרבה

More Mitzvahs, More Mitzvahs

Posted by rabbiart on August 26, 2009

We left off our study of Ki Tetzei’s mitzvot with #556 – not to punish anyone compelled to commit a transgression, or in the Hebrew שלא לענוש האנוס. The Torah’s verse on point deals with the case of a man who forces himself on a woman without her consent, and states clearly that guilt is not ascribed to the woman, and she is not punished in any way וְלַנַּעֲרָ לֹא-תַעֲשֶׂה דָבָר . We can pause here for two thoughts; the first is to notice the alarmingly large number of societies where – to this day – the blame and punishment falls not on the man but the woman, and the disturbing tendency of even women’s rights organizations and their advocates to gloss over these terrible injustices in favor of continually hounding you know which country I mean where – in the main – women have equal rights and protections. We can only lament the fact that some of the more traditional segments of klal yisrael are a bit less progressive in this regard.

The Torah anticipates “more modern” systems of jurisprudence which also operate to avoid punishing individuals who commit offenses under compulsion, against their will, and without intent.  This includes the three cardinal transgressions which one is not supposed to commit even under the threat of death.  For a system often described (some might say accused) of being patriarchal or male oriented, the Halachah makes an interesting exception to this rule.  A male who has – under duress – forbidden sexual congress is still subject to penalty, because, as Raba says in Talmud Yebamoth 53B (Soncino translation) “there is no compulsion in sexual intercourse since erection depends entirely on the will!

The specific case is made into a general rule that applies in every place and time – that we are duty-bound to to punish a compelled person with any penalty.

We come next to a seemingly strange and cruel mitzvah – #557 the duty of a rapist to take his victim for a wife.  Having just absolved – of any court imposed punishment – a woman who is the victim of a rape, does the Torah now intend to sentence her to a life of living with the rapist?  Not only this, but the next mitzvah – #558 – is that the rapist is never to divorce the victim.  How can this be? How can the Torah be so cruel as to command these mandates?!

The answer is clear. The Torah does not intend for these consequences of rape to occur.  The Torah (yes, I’m anthropomorphizing for convenience) designs – and is designed for – a world in which people carefully consider the consequences of their contemplated actions.  The Torah firmly believes – as it were – in the power of deterrence. To quote from Sefer HaHinuch “when he [the rapist] is aware [of the consequences of his actions] he will overcome his passion and refrain from committing this villany, in view of this penalty.

Rabbinic tradition quickly learned that deterrence is not a fail-safe mechanism. Rapes do occur. Men are not dissuaded by potential consequences.  Gradually, the Halachah created a set of exceptions and conditions so that a raped woman would not be sentenced to marriage and life alongside a person who had committed a horrible crime upon her.

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