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(Tablet Magazine)

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

In recent months, Americans have been carrying on an important national conversation about rape, especially on college campuses—whether it is the now-questioned Rolling Stone expose of rape at the University of Virginia, or the mattress protest at Columbia, or the new documentary The Hunting Ground. We talk so passionately about these issues because, more than most crimes, rape is both a profound personal violation and a deeply social act, one that involves large questions about gender, power, and privilege.

The rabbis of the Talmud, living as they did in the first centuries C.E., did not share our modern intuitions about these subjects. Under Jewish law, rape is indeed a serious crime, with penalties laid out in detail in the Book of Deuteronomy. But in this week’s Daf Yomi reading, as the rabbis explored the penalties for rape of a virgin, it became clearer than ever that rape was not the same crime to them as it is to us. Today, we consider it a crime of violence against an individual; for the rabbis, it was more significantly a crime against a woman’s reputation, which had serious effects on her social standing and her marriage prospects. Their remedy for rape, then, was not to imprison or execute the rapist, but to insist that he make reparation to the victim’s family—either by paying a fine or by offering to marry his victim.

The idea that a rapist should be punished by marrying his victim is likely to strike us today as outrageous, a travesty of justice. But that is because we are looking at the matter from the point of view of the woman who was raped, and imagining how she would feel spending the rest of her life living with her rapist. The Talmud, on the other hand, starts from the assumption that a woman’s well-being is primarily dependent on her reputation and her marriageability. Rape damages both of these, by depriving a woman of the major asset she brings to the marriage market, her virginity. Once a woman is known to be raped, the rabbis assume, other men will not want to marry her. It is up to the rapist, then, to make up for this injury by marrying her himself. As the mishna says in Ketubot 39a, “The rapist drinks from his vessel”—or as we might say, having made his bed he must now lie in it. Fortunately, the Gemara goes on to clarify that the victim has the right to refuse to marry her rapist.

For the Talmud, however, the repercussions of rape do not fall exclusively on the victim. Because a young woman is legally and financially under the control of her father, it is the father who stands to lose if she cannot bring as high a price in the marriage market. That is why the fine for the rape of a virgin, 50 silver shekels, is paid not to the woman herself but to her father, or if he is dead to her brothers. By the same logic, there is no fine for the rape of a woman who is presumed not to be a virgin. That is made clear in Ketubot 36b, where the mishna says that the fine is not paid by “one who has intercourse with a convert or with a captive woman or with a gentile maidservant.” Each of these women are presumed to have been unchaste, and so their reputation and marriage prospects can’t be further harmed if they are raped.

Things are complicated, however, by the fact that the word translated as virgin in this context, na’arah, can also be translated as simply “young woman,” a chronological rather than a sexual status. In fact, the rabbis define a na’arah very narrowly in terms of age. A girl can only be a “young woman,” legally speaking, from the age of 12 until the age of 12 and six months. Before that, she is a minor and ineligible for marriage; after that, she is a grown woman and out of her father’s control. It is only in the brief window of those six months, it seems, that the fine for rape would be paid to the victim’s father. This somewhat mitigates the paternalism of the law, though it also raises a new set of disturbing questions having to do with the rabbis’ ideas about when a girl is old enough for sex and marriage. (To us, of course, sex with a 12 year old would be child abuse.)

In addition to the statutory fine, the law holds that the rapist must pay compensation for his victim’s pain, humiliation, and degradation. (These penalties, too, are paid to the young woman’s father.) In discussing these penalties, the Gemara reveals more of its assumptions about what rape means. “For what pain” is the rapist obliged to pay, the rabbis wonder? According to Shmuel’s father, it is the pain caused when “he slammed her into the ground.” But as Rabbi Zeira points out, if this were the case then a rapist who “slammed her onto silk” would not be considered to have caused her pain. Surely it is not the type of bedding that matters, but the sexual act.

But is the sexual act painful for the woman only because she is a virgin? If so, couldn’t one argue that she is only undergoing the same pain that she would eventually have suffered when she lost her virginity consensually? This is the reasoning of Rabbi Shimon: “A rapist does not pay for the pain due to the fact that she will ultimately suffer under her husband.” What’s more, several rabbis’ wives are brought forward to testify that the pain of having sex for the first time is trivial: “Rav Pappa said: My wife, Abba Sura’s daughter, told me that it is like the feeling of hard bread on the gums.” But the rabbis reject this line of reasoning, pointing out the obvious truth that “One who has intercourse against her will is not comparable to one who has intercourse willingly.” The pain of rape, even speaking only of the physical pain, is not comparable to the pain of consensual sex.

What about the payment for humiliation? When the rabbis come to discuss this, in Ketubot 40a, they make clear that they are not talking about the victim’s subjective feelings of violation. Rather, they are once again weighing the loss of social standing, of public reputation, that goes along with having been raped in their society. (The idea that the victim of rape is disgraced, rather than the rapist, is one that sadly survives in many parts of the world today.) It follows that this humiliation is not the same for all women, since not all women have the same degree of social standing to lose. “Rabbi Zeira said: If one who engaged in forced intercourse with a daughter of kings pays fifty sela, does one who engaged in forced intercourse with the daughter of commoners pay fifty sela?”

To calculate the exact degree of damage to a woman’s reputation, the mishna lays down a very pragmatic rule: “One considers her as though she were a maidservant sold in the marketplace, and assesses how much she was worth beforehand and how much she is currently worth.” That is, Shmuel’s father explains in the Gemara, “One estimates the difference between how much a person is willing to give to purchase a virgin maidservant and how much a person is willing to give to purchase a non-virgin maidservant.” This is a completely “objective,” market-based way of valuing virginity as a commodity. If it strikes us today as an outrageous way of assessing the damage caused by rape, that is an index of how much our moral intuitions have changed—even, we might say, progressed—since the Talmud was written.

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