How Do the Rabbis in the Talmud Address Rape?

By Maggie Anton | June 27, 2016

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The Torch explores gender and religion in the Jewish community. Named for Deborah the Prophetess, "the woman of torches," the blog highlights the passion and fiery leadership of Jewish feminists, while evoking the powerful image of feminists "passing the torch" to a new generation. Disclaimer: All posts are contributed by third party authors. JOFA does not assume responsibility for the facts and opinions presented in them.

With the deplorable situation in Santa Clara (the Stanford rape case), there has recently been a media focus on rape. Those who look to the Bible for advice or consolation will not find it. What they will find is Deuteronomy 22:28-29:

If a man finds a virgin girl who was not betrothed, and seizes her and lies with her, and they are found, the man who lay with her shall give 50 shekels of silver to the girl’s father, and she shall become his wife, because he violated her. He shall not send her away all the days of his life.

Fortunately, the Talmud treats rape differently, and more humanely, than the Torah does. Unfortunately, the Torah text is the only one many Jews are familiar with. Yet by the time the Talmud is being created (Third-Fifth Centuries CE), the Rabbis have reinterpreted this piece of Torah to mean something else entirely, just as they did for the infamous “eye for eye, tooth for tooth” verse in Exodus 21:24, when they interpreted it to mean monetary compensation. The Mishnah (Bava Kama 8:1) states, “One who wounds his neighbor is liable to pay for five damages: permanent impairment, pain and suffering, healing expenses, loss of time from work, and shame.” It doesn’t matter if the injury is accidental or deliberate.

READ: The Silence of Dina and Other Rape Victims

To the Rabbis’ credit, they treat a sexual assault victim the same as anyone else injured during an attack (Bava Kama 83b-84a), with the addition that the man who rapes a virgin also has to pay the biblical 50-shekel fine. They did not hold the woman responsible for encouraging the assault by how she dressed or where she walked, for example. The rapist, like other assailants, had to pay compensation for any permanent impairment (particularly loss of virginity), the pain she suffered, and her shame. This assumes the rape victim was not injured so badly that there were medical expenses or time she was unable to work, otherwise she would receive that compensation as well.

All agreed that she could refuse to marry the rapist.

While deciding how much a rapist paid his victim as recompense for pain, one rabbi proposed no money at all since the maiden would ultimately have suffered the same pain on her wedding night. But his idea was angrily rejected because, the Talmud declared, “There is no comparison between losing her virginity under the bridal canopy and losing it on a dung heap.” (Ketubot 39b, Yevamot 34a)

Unlike most societies, including some modern ones, the Rabbis prohibit marital rape. To clarify what constitutes forced sex, the Rabbis taught that a couple should use the bed only if the woman was willing. If she said yes she consented, and if she said no she didn’t. Silence was not consent. The verse from Proverbs 19:2, “Also without consent, an improper soul; he who is hasty with his feet is a sinner,” is interpreted to mean that it is forbidden to force one’s wife in marital relations, the result being children of bad character. (Eruvin 100b, Kiddushin 13a, Yevamot 53b-54a)

Another section of Talmud teaching that bad sex produces bad children condemns several sexual circumstances that the Rabbis believed resulted in offspring who rebel and transgress. These circumstances include: (1) the woman feared the man, (2) he forced her, (3) one of them hated the other, (4) they were fighting, (5) they were drunk, and (6) one of them was asleep. Note that the first two would be considered rape today, and the last two would preclude consent. (Nedarim 20b)

On the authority of three great medieval scholars — Rabbi Shmuel, Rabbenu Yaakov Tam, and Rabbi Yitzhak — the sons of Rabbi Meir [and of Joheved, Rashi’s daughter], Jewish law puts one who assaults his wife in the same category as one who assaults a stranger. This rule can be traced back further than Rashi’s grandsons, back at least to the Mishnaic period when the Tosefta states: “One who injures his wife, whether he injures her himself or causes others to injure her, pays the five expenses.” (Bava Kama 8)

Thus, we see that the Talmudic rabbis were not only more progressive (and dare I say feminist) on the subject of rape than one would think for views promulgated 1,500 years ago, but also way ahead of many views still held today.