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Rabah bar bar Chanah citing R. Yochanan states: If an Aseh precedes (can be fulfilled even before transgressing) a Lav, we do not consider this a Lav she'Nitak l'Aseh. One is lashed for the Lav.
Rabanan says: Did you really say this?
R. Yochanan says: No.
Rabah: He did say it, and our Mishnah supports it!
1. "Vi'Shalchu Min ha'Machaneh (is an Aseh for Teme'im to leave the Mikdash). "V'Lo Yetam'u Es Machaneihem (is a Lav forbidding Teme'im in the Mikdash)";
2. (Mishnah): One who enters the Mikdash when Tamei (is lashed).
Question: Why did he retract?
Answer: It is because a Me'anes (rapist) is not lashed (for divorcing her).
1. (Beraisa): If a Yisrael raped a woman and divorced her, he remarries her, and he is not lashed;
2. If a Kohen did so, he cannot remarry her, so he is lashed.
3. A Yisrael is not lashed, even though the Aseh precedes the Lav!
Ula: The Torah did not have to say "v'Lo Sihyeh l'Ishah" regarding a rapist. We could have learned from Motzi Shem Ra:
1. Motzi Shem Ra did not do an action, yet he must marry her (if she wants). All the more so, one who raped her must marry her!
2. Since we do not need "v'Lo Sihyeh l'Ishah" to teach that he must marry her, we use it to teach that if he divorces her, he must remarry her.
Objection: We cannot learn a rapist from Motzi Shem Ra. The latter is more stringent, for he is lashed and pays!
Correction: Rather, the Torah did not have to say "v'Lo Sihyeh l'Ishah" regarding Motzi Shem Ra. We could have learned from a rapist;
1. A rapist is not lashed, yet he must marry her. All the more so, Motzi Shem Ra must marry her, for he is lashed and pays!
2. Since we do not need "v'Lo Sihyeh l'Ishah" to teach that he must marry her, we use it to teach that if he divorces her, he must remarry her.
Objection: We cannot learn Motzi Shem Ra from a rapist. The latter is more stringent, for he did an action!
Correction: Rather, the Torah did not have to say "v'Lo Sihyeh l'Ishah" regarding Motzi Shem Ra, for he is already married to her;
1. We do not need it to teach that a Motzi Shem Ra must marry her, so we use it to teach that if a rapist divorces her, he must remarry her.
Question: We should use it to teach that if Motzi Shem Ra divorces her he is not lashed (rather, he remarries her)!
Answer: Indeed, that is true. We learn a rapist from Motzi Shem Ra.
Objection: How do we learn?
1. We cannot learn from a Kal va'Chomer or Mah Matzinu (precedent). Motzi Shem Ra did not do an action (therefore, he is not lashed)!
Rava, and Ravin citing R. Yochanan: Rather, "Lo Yuchal Leshalchah Kol Yamav" - he is forever commanded to remarry her (if he will divorce her. This Aseh is after he transgresses, therefore he is not lashed. Ritva - this was R. Yochanan's reason all along. Rashi would say that after he retracted, he found a defense of his original teaching.)
1. Rav Papa asks: (R. Yochanan says that one is lashed for a Lav preceded by an Aseh.) This is unlike the Lav of muzzling (the paradigm Lav for which one is lashed)!
2. Rava answers: It is no worse just because an Aseh precedes the Lav!
3. Rav Papa asks: If so, we should say the same about a Lav she'Nitak l'Aseh!
4. Rava answers: There, the Aseh comes to avert the lashes!
2) BITLO "V'LO" BITLO
Question: We understand according to the opinion (that lashes depend on) Bitlo v'Lo Bitlo (whether or not he made it impossible to fulfill the Aseh). As long as he can remarry her, he is not lashed;
1. However, according to the opinion (that lashes depend on) Kiymo v'Lo Kiymo (whether or not he fulfilled the Aseh), if he does not remarry her immediately, he is lashed!
15b----------------------------------------15b
Answer: We are answering for R. Yochanan. He holds Bitlo v'Lo Bitlo (like the following dialogue shows).
A reciter of Beraisos): If a Lav has (is Nitak to) an Aseh, if (one transgressed and) fulfilled the Aseh; he is not lashed. If he was Mevatel the Aseh, he is lashed.
R. Yochanan challenges: That is inconsistent!
1. If you say 'if he fulfilled the Aseh, he is not lashed', you must say 'if he did not fulfill it, he is lashed';
2. If you say 'if he was Mevatel the Aseh, he is lashed', you must say 'if he did not Mevatel it, he is not lashed'!
3. The correct text is 'if he was Mevatel the Aseh, he is lashed. If not, he is not lashed.'
(e) Reish Lakish answers: It depends on Kiymo v'Lo Kiymo.
(f) Question: What is the source of their argument?
(g) Answer: They argue about whether or not Safek warning is considered warning;
1. R. Yochanan says that it is good warning. He holds Bitlo v'Lo Bitlo, so the Lav is not 'complete' until he is Mevatel the Aseh;
i. At the time he transgresses the Lav, we can give only Safek warning (we do not know whether or not he will Mevatel the Aseh. Nevertheless, he is lashed);
2. Reish Lakish says that it is not proper warning. He holds Kiymo v'Lo Kiymo, so one is lashed for the Lav itself (just he can exempt himself from lashes if he will fulfill the Aseh). He receives definite warning.
Question: I am sure most of us struggle with the fact that a rapist must marry the woman who he raped. Aren't punishments supposed to be just? How is it fair the rapist has to do this, and even worse, that the woman has to live for the rest of her life with the man that terrorized her life?!
I once heard an answer that made sense to me but I can't remember were. It used to be that if a woman was not a virgin, none would marry her even if it was because she was raped. Additionally, women did not work so they could not support themselves if they were unmarried. Therefore, when the Torah says that a rapist marries his victim, it is to ensure that the woman is supported for the rest of her life and does not need to live on the streets.
ReplyDeleteI think that the halachah is that the rapist is obligated to marry her, IF that is what she wants (Mrs. Block, please correct me here if I'm wrong). In a time when there was such a taboo on not being a virgin that it so drastically affected one's chances of finding a husband, and in a time when not having a husband basically meant living in poverty, many women felt that their rapists had not only robbed them of their virginity on a basic level, but also of their chances at leading a normal life. Therefore, many would elect to marry their rapists, so that they could at least have a husband and some semblance of a normal life (awful as it may be). It also discouraged men from rape if they did not want to be "tied" to their victim forever.
ReplyDeleteI believe that the Halacha is that the women can choose to marry her rapist (out of fear that no one else would marry her because she is not longer a virgin), and the rapist would have to marry her in such a situation, but she is not obligated to marry him. (and now I just looked up at Chana's answer who just said that she thinks this is the Halacha as well). I think that if you look at the Halacha from this perspective, it is incredibly just. If the women thinks that this rapist will terrorize her for her entire life, she does not have to marry him, but she does have the option to do so, so that she is not caught in a a situation where nobody will marry her.
ReplyDeleteI think that the halacha is that the rapist is obligated to marry the woman, but she can choose not to marry him. This is halacha's way for ensuring the woman's future. The rapist being put in jail would not help the woman after the fact, but if she would have trouble getting married because she is not a virgin, the halacha would solve her problem. I think that the halacha is looking for a way to help the victim in the best possible manner. Even though to us we see the punishment not fitting the crime, the Torah is looking out for the needs of the victim in the future, not just punishing people.
ReplyDeleteJust to piggy back on everyone's answers above, that the halacha is that the rapist has to marry his victim only if the women agrees and wants to, the rapist does not get off scott free, without punishment. Aside from having to marry her if she agrees, the rapist also has to pay her a hefty sum before marrying her. Not only doe he have to pay her fifty shekel before marrying her, as it says in Devarim 22:28-29, "then the man who lay with her shall give fifty [shekels of] silver to the girl’s father," he also has to pay a fine to pay back for the damage he caused her-indignity, pain, and loss. This will amount to a lot more than fifty shekel. Additionally, apart from this initial fine that the rapist has to pay, in marrying her he has to support her for the rest of her life as he could not divorce her. All together, these obligations on him might deter the rapist from raping someone. (this answer is based on an article from chabad.org by Lazer Gurkow)
ReplyDeleteAlong with everyone else, I think the halacha is that she can choose if she wants to marry the rapist or not. We give her this choice because a man may not want to marry her since she is no longer a virgin. This halacha focuses on the woman’s feelings and what she wants to do rather than automatically punishing the rapist.
ReplyDeleteAdding on to everyone else, providing this option to woman is the just punishment because it is giving her the option on how to continue her life. She is still able to remain single and have him punished but if she wanted to, she would be able to take control of the situation and marry him (in order to be married at all).
ReplyDeleteI agree with the majority, that the fact that a rapist has to marry the girl he raped is trying to protect the female. Additionally he is not allowed to divorce her, which is further protection.
ReplyDeleteWhile it initially seems "immoral" or "unjust" based on society's human rights perceptions today, as everyone mentioned above, the halacha is coming here in EXTENSIVE detail to protect the woman and to ensure that her life is not ruined because of her rapist's sin. Given that in numerous cases the man would in fact be given malkos, and therefore severely punished for his actions, I think justice is definitely served. The fact that the gemara discusses this issue in great length in many areas only furthur proves how much we respect and protect the woman in the terrible case of rape.
ReplyDeleteThis is a very good question and one that comes up very often. The only answer that is somewhat comforting to me is the one that everyone already stated, that the reason for this rule is for the woman- if she wants to have financial support, she can marry her rapist, but if she does not want to, she certainly does not have to. The main focus is on what the woman wants, not the rapist.
ReplyDelete