Rape

Ketuvot 65a ~ Too Drunk To Say No

In today's daf, the Talmud is discussing the provisions that an absent husband must legally provide for his wife, at least until his return home. Wine is not to be provided - unless the woman is used to drinking it (רגילה שאני). In this case, she may be given a single cup of wine, even though her husband is not at home. And then comes this teaching:

תנא: כוס אחד יפה לאשה, שנים ניוול הוא, שלשה תובעת בפה, ארבעה אפילו חמור תובעת בשוק ואינה מקפדת

One cup of wine is good for a woman; two is a disgrace; if she drinks three cups of wine she will verbally demand marital relations. And after four cups of wine a woman will solicit even a donkey in the marketplace, and she could not care...

The Effects of Alcohol on Sexual Desire

The pharmacological effects of alcohol have been extremely well studied.  Although in popular culture alcohol is thought to be a sexual stimulant, its physiological effects actually reduce sexual arousal. Alcohol also causes disinhibition, making those who have been drinking more likely to engage both in sex, and in sexual risk-taking. Alcohol has depressant effects and caused its disinhibition all the animals models in which it has been tested, including, most recently, the nematode, c. elegans. It is these effects that the Talmud is referencing here, in so far as they effect only women.  (Men's sexual desire and sexual performance is also affected by alcohol, but since this is not the subject of the discussion in the daf, we won't go there.) 

...alcohol specifically disinhibited these behaviors [locomotion, feeding and escape] in worms...
— Topper SM, et al. (2014) Alcohol Disinhibition of Behaviors in C. elegans. PLoS ONE 9(3): e92965. doi:10. 1371

Too Drunk To Say No

The Talmud describes an effect of too much alcohol: it causes such a degree of sexual disinhibition that an intoxicated women looses all sense of propriety. In fact, she gets so drunk that she is prepared to commit bestiality.  In the United Kingdom three high profile court cases (the Dougal case-November 2005, the Hagan case-November 2006, and the Bree case-December 2006) illustrated the talmudic supposition in today's daf. In all cases the women who were raped were heavily intoxicated and the defendants, who admitted having had sexual intercourse but denied rape, were acquitted. If a woman is drunk, her no doesn't mean NO

Writing in the Stanford Law Review, Karen Kramer outlined ways which cultural myths surrounding alcohol and the place of men and women in society converge to produce a double standard. If the rapist was drunk, it reduces his culpability; if the victim was drunk, it increases her culpability.

Expectancy beliefs about alcohol - which include the beliefs that alcohol increases sexual arousal, loosens women's sexual inhibitions and increases men's feelings of power and dominance - interact with traditional notions of male aggressiveness and female submission  to set the stage for acquaintance rape. When a woman is visibly intoxicated a man may interpret friendly or flirtatious behavior an invitation to have sex. Believing that alcohol reduces a women's inhibitions, the man may read her behavior as a demonstration of her true but disguised desire for sexual activity.  Even if she fails to become physically affectionate, since alcohol is a depressant, the woman may be less able to resist unwanted sexual advances. Her lack of resistance may sound like a resounding "yes" to a man who subscribes to the tradition model of male aggression and female submission.  Moreover if the man is drinking as well, he may feel safe disregarding her will,because he knows that he can blame his aggressionon the alcohol. This is not to say that any sexual interaction between intoxicated individuals constitutes rape, but drinking does enable a man to overpower an unwilling woman while feeling confident that he can blame his own actions on the alcohol.

Over  twenty years ago, the journalist Helen Benedict in her book Virgin or Vamp described the myth of our culture in which women who drink too much are "asking for it." I had no idea that the myth could also be found embedded in our Talmud. 

 

 
 
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Ketuvot 29 ~ The Terror of Rape

משנה מסכת כתובות פרק ג משנה א 

אלו נערות שיש להן קנס הבא על הממזרת ועל הנתינה ועל הכותית הבא על הגיורת ועל השבויה ועל השפחה שנפדו ושנתגיירו ושנשתחררו פחותות מבנות שלש שנים ויום אחד הבא על אחותו ועל אחות אביו ועל אחות אמו ועל אחות אשתו ועל אשת אחיו ועל אשת אחי אביו ועל הנדה יש להן קנס אף על פי שהן בהכרת אין בהן מיתת בית דין: 

These are the girls (aged between twelve and twelve and a half) for who a fine is levied for raping them...

Today we begin to study the third chapter of Ketuvot, which focuses on the damages to be paid to a virgin who was raped, (or seduced,) by a man. These laws were later codified in the Shulhan Arukh, the code of Jewish Law, written by R. Yosef Karo (d. 1575) in sixteenth century Israel.

שולחן ערוך אבן העזר הלכות אונס ומפתה סימן קעז 

סעיף א

 המפתה בתולת ישראל (עד שלא תבגר, והיא מבת שלשה ואילך) (טור הרא"ש), משלם בושת ופגם וקנס. ואם אנסה, משלם עוד צער. ואם נשאה המפתה, אינו צריך ליתן קנס

סעיף ב

אונס ומפתה, דנין אותה בשלשה דיינים, ובלבד שיהיו סמוכים, בא"י. והאידנא שאין סמוכים, מנדין אותו עד שפייס את חבירו; וכד יהיב ליה שיעור מאי דחזי למיהב, שדינן ליה. (והבת, כל זמן שהיא ברשות אביה, הכל לאביה (גם זה שם). ועיין בטור סימן זה שהאריך בדינים אלו, והרב המחבר קצר בהם, שאינם שכיחין 

סעיף ג

האונס את הבתולה, חייב לישא אותה, ובלבד שהיא ואביה יהיו מרוצים, אפי' היא חגרת או סומא, ואינו רשאי להוציאה לעולם אלא לרצונה. לפיכך אין צריך לכתוב לה כתובה. ואם עבר והוציאה, כופין אותו להחזירה

As an emergency physician, I have cared for a number of women who have been raped.  I have interviewed them, examined them, and collected forensic evidence. The horrors of their having been assaulted was, I am sure, compounded by my legally necessary but emotionally gratuitous clinical exam. There is a danger that the talmudic discussion can, likewise seem overly clinical. But behind the legal back and forth is a brutal reality. To help keep the victim front and center, let's talk about the crime of rape.

International Rape Statistics

Rape plagues society everywhere. It's really hard to get accurate statistics to compare countries, since reporting rates and definitions of what actually constitutes rape vary. With that caveat, here's what the UN found:

Penalties for Rape

United States. In 2008, there were about 203,000 victims of rape age 12 and older. The penalties for rape vary by state. In New York, rape in the first degree is a felony that carries a penalty of 5-25 years in prison. In New Jersey, first degree sexual assault carries a sentence of 10-20 years. In Massachusetts, rape that results "in serious injury" (doesn't all rape result in that?) is punishable by life in prison, and no less that 20 years if committed by force (isn't that all rape?). The rape of a child under 16 carries a similar penalty. In 1977 the Supreme Court ruled that under the Eighth Amendment, the rape of an adult woman could not carry the death penalty. There are almost 160,000 men in prison for rape in the US.

US. Department of Justice. Office of Justice Programs, Bureau of Justice Systems.   Prisoners in 2013  .

US. Department of Justice. Office of Justice Programs, Bureau of Justice Systems. Prisoners in 2013.

United Kingdom. Rape carries a penalty of 11-17 years in custody, with a minimum of 10 years in prison if the victim was a child between 13 and 16 years of age.  If the victim was under 13, the starting penalty is 13 years in prison. The average time served for rape in the UK is eight years.

Israel. Rape of an adult carries a penalty of 4-16 years in prison. In addition the victim may receive damages of up to 228,000 NIS. Rape of a child under 16, or carried out with a firearm, or with the assistance of another person, carries a minimum sentence of 20 years (see חוק העונשים התשל׳ז–1977, and later amendments). 

Causes of Intentional Injury by Gender and Population. From Gofin, R. et al. Intentional Injuries Among the Young; Presentation to Emergency Rooms, Hospitalization and Death in Israel.     Journal of Adolescent Health    2000:27:433-44.

Causes of Intentional Injury by Gender and Population. From Gofin, R. et al. Intentional Injuries Among the Young; Presentation to Emergency Rooms, Hospitalization and Death in Israel.  Journal of Adolescent Health 2000:27:433-44.

In a study of children with intentional injuries treated in Israeli ERs, the rates for rape were 1.5 times higher in the Jewish children compared with Arab children. 

Although selected cases may reach the ER, it is estimated that between 1-4 in 10 or 20 cases of rape are reported. Stigmatization, fear, and feelings of shame or guilt may preclude rape disclosure by victims or their caretakers.
— Rosa Gofin. Intentional Injuries Among the Young In Israel, 2000.

 

Jewish law. Rape (including rape of a child older than three) is punishable by a fine of 50 shekels paid to the father of the victim.  The rapist is required to marry his victim (unless she or her father refuse) and he cannot forcibly divorce her.  In addition, the rapist must pay damages for pain and suffering, and monetary loss, the latter based on the lower value a woman who is not a virgin has in the market for marriage. If the rapist marries the victim, some of these fines are not levied. There are no fines for the rape of a child under three, or the rape of an unmarried  woman who is not a virgin. Rape of a married woman is punishable by death.

A President of Israel, A Convicted Rapist

In December 2010, then President of Israel Moshe Katsav was convicted of rape while he had been  serving as Israel's Minister of  Tourism in 1998. The verdict was upheld by the Israeli Supreme Court, and Katsav began his seven-year prison sentence in December 2011. The national shame at this crime was perhaps slightly mitigated by one of its lessons, articulated by Prime Minister Netanyahu, "that all are equal before the law, and that every woman has exclusive rights to her body."

In his commentary to R. Karo's  שולחן ערוך,  R. Moshe  Isserles (d.1572)  explained that the שולחן ערוך did not detail the laws of rape, because it was such a rare crime - (הרב המחבר קצר בהם, שאינם שכיחין).  How wrong, how very sadly wrong, he was. 

 

 

 

 

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Ketuvot 3b ~ The Law of the First Night

A virgin who gets married on Wednesday must first have intercourse with the governor
— Ketuvot 3b
Jules Arsene Gardie,   Le Droit Du Seigneur  1872

Jules Arsene Gardie,  Le Droit Du Seigneur 1872

Mazal Tov; When's The Wedding?

Today, when a bride and groom wish to secure a wedding day, it will depend on their budget and the availability of the caterer. My, how things have changed. In the times of the Mishnah, the wedding day was decided by the availability of the local rabbinic court, the Bet Din. Then, a wedding (of a virgin) could only take place on the night before the Bet Din convened.  This would ensure that if, after their magical first night, the groom suspected that his bride had not been a virgin, he could take his claim to court the very next day.  

מפני מה אמרו בתולה נשאת ליום הרביעי שאם היה לו טענת בתולים היה משכים לב”ד
Why did they teach that a virgin must only marry on a Wednesday? So that if the groom questioned her virginity, he could hurry to the Bet Din...
— Ketuvot 3a

Today's page of  Talmud explains that this happy custom changed during a period of persecution. Rabbah, a forth century Babylonian sage, explained what this is all about: "[The authorities] said, "a virgin who gets married on Wednesday will first have intercourse with the governor" (הגמון). In order to avoid this awful legal rape, the wedding was moved a day early, to fly, so to speak, under the radar of the local governor. 

Jus Primae Noctis in the Talmud & Midrash

The law that Rabbah referenced is known variously as Jus Primae Noctis, the Law of the First Night and, much more graphically, as The Right to the Thigh - Droit du Cuissage. Its origins are further explained in the Talmud Yerushalmi, which dates it to the time of the Bar Kochba revolution:

 תלמוד ירושלמי כתובות פרק א הלכה ה  

בראשונה גזרו שמד ביהודה שכן מסורת להם מאבותם שיהודה הרג את עשו...  והיו הולכין ומשעבדין בהן ואונסין את בנותיהן וגזרו שיהא איסטרטיוס בועל תחילה התקינו שיהא בעלה בא עליה עודה בבית אביה 

 

In the beginning, they [the Romans] decreed destruction in Judea (for they had a tradition that Yehuda killed Esau) ... and they enslaved them and raped their daughters, and decreed that a soldier would have intercourse [with a bride] first. It was then enacted that her husband would cohabit with her while she was still in her father's house. 

A reference to Primae Noctis also appears in the Midrash Rabbah, a collection of rabbinic homilies edited sometime in the forth or fifth century. As told in Genesis 6, “the sons of God saw that the daughters of man were beautiful (tovot), and they took wives from whoever they chose.” The Midrash focuses on that word beautiful, and explains:

בראשית רבה (וילנא) פרשת בראשית פרשה כו 

אמר רבי יודן טבת כתיב, משהיו מטיבין אשה לבעלה היה גדול נכנס ובועלה תחלה, הדא הוא דכתיב כי טבת הנה, אלו הבתולות ויקחו להם נשים מכל אשר בחרו, אלו נשי אנשים, 

“Rabbi Judan said the word tovot (טבת) – beautiful – is written in the singular, [but read as a plural]. Meaning that the bride was made beautiful for her husband, but the lord of the nobles had intercourse with her first...”

This midrash is cited by Rashi (d. 1105), the great French exegete, in his commentary to the Torah.  And this isn't the only time Rashi uses Primae Noctis to explain a historical event.  According to Rashi, it was this law that precipitated the rebellion of the Maccabees against their Greek oppressors, an uprising that culminated in the miracle of Chanukah:

תלמוד בבלי שבת דף כג עמוד א 

דאמר רבי יהושע בן לוי: נשים חייבות בנר חנוכה, שאף הן היו באותו הנס

 רש"י שם:  שגזרו יוונים על כל בתולות הנשואות להיבעל לטפסר תחלה  

Rabbi Yehoshua ben Levi said: Women are obligated to take part in the lighting, for they were included in that miracle...
Rashi: For the Greeks made an edict that all virgins who were about to marry must first have intercourse with the Prefect...

JUS PRIMAE NOCTIS...IN THE Movies

There are numerous references to Primae Noctis in ancient and modern literature, from the Epic of Gilgamesh to The Marriage of Figaro. One recent example can be seen in the movie Braveheart, when the evil King Edward gallops into a village, to interrupt a wedding celebration. “I’ve come to claim the right of Primae Noctis. As lord of these lands, I will bless this marriage by taking the bride into my bed on the first night of her union.”  And as the groom is restrained by Edward's henchmen, Edward reminds the peasants “it is my noble right.”  

Jus Primae Noctis. Is there a more fearsome example of feudal barbarism? Of what one scholar called “a male power display…coercive sexual dominance…and male desire for sexual variety”?  But the legend, despite its appearance in many guises, is, fortunately, likely to be nothing more than just that: a legend.  

Jus Primae Noctis...is a Legend

Perhaps the most comprehensive investigation of the legend of Primae Noctis is The Lord's First Night: the Myth of the Droit de Cuissage, by the French social scientist Alain Boureau. (I bought my copy for less than $10, and no, you can't borrow it.) His careful analysis is particularly important since, as we have seen, Rashi, our favorite French commentator, cites this legend twice. After a meticulous two-hundred page review of every alleged appearance of the legend, Boureau is clear:

“[T]he droit de cuissage never existed in medieval France. Not one of the arguments, none of the events insinuated, alleged or brandished, holds up under analysis.”
— Alain Boureau, The Lord's First Night,

Others scholars agree with Boureau. In 1881, the German historian Karl Schmidt concluded that the right never existed.  In 1973, the historian J.Q.C. Mackrell noted that there is "no reliable evidence" that it existed. And Prof. Tal Ilan, now at the Free University of Berlin, addressed the myth of Primae Noctis in a magnificently titled 1993 paper: Premarital Cohabitation in Ancient Judea. Prof. Ilan noted that that “all medieval literature that evokes the custom of Jus Primae Noctis has been proven to be folkloristic and has no historical basis.” But what about the evidence from the Talmuds, and the Midrashim? Don’t they provide evidence that Primae Noctis was indeed practiced in the time of the Talmud? Not so, claims the professor:

“If a motif of this sort could have appeared in a sixteenth-century document and upset the entire history of medieval Europe for the next two centuries, the same motif likewise could have cropped up in the fourth -or fifth-century Palestinian Talmud, falsely describing events of the second century.”

Instead, Prof Ilan suggests that the Talmud used the myth of Primae Noctis to excuse the behavior of some prospective couples, who would engage in sexual relations before they married.  “the jus primae noctis was conveniently drawn in order to explain and justify a custom that seemed to the rabbis to undermine their view of proper conduct in Jewish society.”

Some events do take place but are not true; others are—although they never occurred.’
— Elie Wiesel, Legends of Our Time

There is some further support to the claim that primae noctis never existed, and it is not one I have seen suggested before.  It is a claim from silence.  I've checked over 100,000 responsa, and there is not one on this topic. Not a single one.  If primae noctis really was a law of the Greek and Roman empires, and a feudal right across medieval Europe, then why were its implications for the Jewish community never discussed in the responsa literature?  This silence supports the conclusions of work done by Boureau, Ilan and others: it never existed. In fact Boureau wonders what muddled thinking would lead anyone to believe it existed in the first place: 

It has been clear from the start that no matter what social restrictions were put on conduct and the management of wealth, and no matter how violent mores became, the principle of free choice of an unfettered matrimonial life was the most sacred area of individual liberty in medieval Europe. The Church, European society's principal normative center, very early removed all restrictions on the marriage of dependents, and it imposed consent as a sacramental value.  No juridicial form, no custom, could attack that principal...sanctified in the twelfth century by the establishment of the sacrament of matrimony.  

History and Heritage

The historian David Lowenthal has explained the differences between history and heritage. While history "seeks to convince by truth," heritage "passes on exclusive myths of origin and endurance, endowing us alone with prestige and purpose." Heritage, continues Lowenthal, commonly alters the past: sometimes it selectively forgets past evils, and sometimes it updates the past to fit in with our modern sensibilities. Sometimes it upgrades the past, making it better than it was, and sometimes it downgrades the past, to attract sympathy.  And so, how we read the Talmud will depend on whether we see it as a work of history or as a book of our heritage.  

There you have it...some of it fact, and some of it fiction, but all of it true, in the true meaning of the word
— Miles Orvel, The Real Thing: Imitiation and Authenticity in America

There are stories both wonderful and terrible from our Jewish past. Some are factual, and some are not, and a measured approach to how we might approach these stories has been suggested by Judith Baumel and Jacob J. Schacter. They explored the claim (published in The New York Times) that in 1942, ninety-three Beis Yaakov schoolgirls in Cracow committed suicide rather than face rape by their German captors. They concluded that the evidence to support the truth of the story is not conclusive one way or the other

Whether or not it actually happened as described is difficult to determine, but there is certainly no question that it could have happened...in response to those claiming that the incident was "unlikely" to have occurred, let us remind the reader that the period in question was one during which the most unlikely events did occur, when entire communities were wiped out without leaving a single survivor...Maybe it did happen. But maybe again it didn't. Could it have happened? Of course.

We have just commemorated the seventieth anniversary of the liberation of Auschwitz. The horrors of the Holocaust left in their wake a hope that, having touched the lowest levels of depravity, humanity would say Never Again, and a new era of responsibility for all of would follow. But our recent history shows that this lesson was not learned, that the world can be a truely terrible place. The legend of Primae Noctis is not likely to have been trueBut some stories are true, even though they never happened. Ask yourself, from what you know about Jewish history, could it have been true? Yes. And that's what makes it all the more terrifying. 

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