In 2015, a London jury acquitted a Saudi millionaire of a rape charge after he claimed that he had “tripped and fallen on an 18-year-old girl who was sleeping at his apartment after partying with him, penetrating her by accident.” Obviously, that’s preposterous. But he isn’t the first person to use that excuse. Indeed, today’s daf offers us a similar case:
Rabba said: One who fell from a roof and was inserted is liable to pay four types of indemnity.
According to this scenario, someone falls off a roof and lands, erect genitals first, into someone else who is … naked and standing on their head? The “inserter” is liable to pay four different types of damages: injury, pain, loss of livelihood and medical costs.
However, he is not liable to pay for the shame he caused her, as the Master said: One is not liable to pay for shame unless he intends it.
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Whether or not the person on the roof intended to have intercourse with the person standing below, they are still liable to pay for the physical and financial damage that they cause. But the Gemara insists that shame is different, because one must intend to shame someone in order to be liable for it.
Shame is a complicated emotion. In many ways, the feeling of shame has more to do with the person being shamed — their sense of self, their insecurities, their public persona — than it does with the situation causing them shame. One person might be ashamed by something that another person could just brush off. It is so innately personal that perhaps it cannot be judged on its own right. But it is strange to me that the shamer is only liable if the shaming was intentional — after all, the physical harm was also not intended, and is also deeply personal.
Why are we even talking about this? The Gemara discusses this scenario because of one addendum to the case:
And if she is his yevama he has not acquired her.
In the context of discussing yibbum, the Gemara is looking at the border cases, the gray areas, to determine whether or not yibbum has taken place. In this case, the rabbis insist that in order for yibbum to be effected, the man must intend to have intercourse with his yevama.
Let’s be frank: This case is ridiculous. While I can see someone using this dubious excuse to try to escape a conviction, I can’t imagine a world in which this ever happened — or ever will.
But I don’t think the rabbis imagined that world either. Rabbinic test cases are often fairly outlandish (remember the sukkah made out of the side of an elephant?). These wild test cases have two important functions.
First, looking at the boundary cases can help us clarify the legal principles at stake in all cases. After all, if we can determine which principles are most operative and most important (in this case, for example, we determine that intention is more important than the act of penetration itself), we can apply that knowledge to a whole range of realistic cases.
Second, rabbinic discussions of outrageous test cases present rabbinic legal thinking as totalizing and comprehensive. There is no situation too “out there” for the rabbis to have addressed, and nothing too outlandish to stump rabbinic law. The rabbis are certainly creative, but they are also making the case that participating in the rabbinic project is comprehensive, leaving no stone unturned and no rooftop accident unexplored.
Read all of Yevamot 54 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on April 30th, 2022. If you are interested in receiving the newsletter, sign up here.
