Incestuous Rapists Get What They Deserve

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

Tractate Ketubot, which Daf Yomi readers have been exploring over the last month, is traditionally known as the Shas katan, the “little Talmud,” because it touches on such a wide range of legal subjects that it seems to encapsulate the whole Talmud. This week’s reading, in chapter 3, offered a good example of that comprehensiveness. The main subject of the chapter is the law regarding compensation for rape: In which cases does a rapist have to pay restitution to his victim, and when is he punished with the death penalty? But in the Gemara, the rabbis use these particular laws to explore much more general principles of punishment, in cases ranging from Shabbat desecration to the eating of consecrated produce by a non-priest.

At the center of these discussions is the question of whether it is permitted to punish someone twice for the same crime. In American law there is the concept of “double jeopardy,” which holds that no one can be tried twice for the same offense; once you are acquitted at trial, you are immune to further prosecution. The Talmudic concept is similar in outline, but quite different in detail. For the Talmud is trying to make sense of the Torah’s laws about crime and punishment, which often seem to prescribe two penalties for the same offense. In Deuteronomy 22, for instance, the law holds that a man who rapes a virgin must pay her father a fine of 50 shekels of silver. This is in keeping with what we have already seen to be the conception of virginity as a commodity under Jewish law. To take a woman’s virginity is not just to harm her but to cause her father a financial loss, since it will impair her marriage prospects.

But what happens, the Talmud asks in Ketubot 36b, when the victim of rape is someone forbidden to the rapist by the laws of incest? “One who engages in intercourse with his daughter, with his daughter’s daughter, with his son’s daughter,” or with certain other female relatives, “is liable to receive the death penalty,” the mishna says. What is unclear is whether, in these cases, the rapist also has to pay a fine. Do both punishments come into effect, or does the harsher penalty cancel out the lighter one?

The simplest answer would be to enforce both penalties: The rapist should pay a fine and then be put to death. But the rabbis cling to the principle that there can be only one punishment per crime. This may seem contrary to the legal codes established in the Torah. But there are many cases when the rabbis seek to rationalize and moderate Torah law, and whenever they do so they claim to have a scriptural basis for their rulings. Thus, in Ketubot 37a,the rabbis quote a phrase from Deuteronomy, “according to the measure of his iniquity.” What this means, the Gemara explains, is that “you can hold [a criminal] liable for one iniquity, but you do not hold him liable for two iniquities.” When the same act constitutes two crimes—say, the crime of rape and the crime of incest—it can only be punished under one statute, not both.

Yet the discussion of the death penalty raises an obvious problem. The Torah requires execution for certain crimes, but that punishment could only be carried out by the Sanhedrin, the supreme Jewish court; and the Sanhedrin was abolished at the time of the destruction of the Temple. By the time the Gemara was compiled, there had been no actual death penalties carried out by Jewish courts for several centuries. Under these circumstances, how could Jewish law be enforced? This problem has occurred to me many times in reading the Talmud: How does a legal system remain effective when its punishments have become virtual?

The answer, according to Rav Yosef in Ketubot 30a, is that while human justice is suspended, divine justice remains in force. “From the day that the Temple was destroyed, although the Sanhedrin was abolished the four death penalties were not abolished,” he maintains. The four types of execution under Jewish law are stoning, burning, decapitation, and strangulation, and according to Yosef, a person liable for one of these punishments will always die accordingly. “One who was liable for stoning either falls from the roof or a beast tramples him. And one who was liable for burning either falls into a conflagration or a snake bites him. And one who was liable for decapitation is either handed over to the ruling monarchy or bandits attack him. And one who was liable for strangulation either drowns in a river or dies of diphtheria.” In all these cases, what looks like accident or fate is actually “the hand of Heaven” making sure that the punishment fits the crime.

To take a woman’s virginity is not just to harm her but to cause her father a financial loss.

The obvious objection to this tidy account is, of course, that it is not true. Surely the rabbis themselves could have thought of cases where someone was guilty of a capital crime yet did not die a gruesome, fated death. Harder to disprove, however, is the idea of karet, being “cut off,” the punishment that the Torah prescribes for many crimes against God. Because this cutting-off is metaphysical, a removal of the soul from God’s presence, there is no way to dispute it. “My karet is like your death penalty,” the Gemara imagines God saying.

The principle that you can’t be punished twice for the same crime leads the rabbis to some complex speculations. Say, for instance, that a thief steals a purse on Shabbat and carries it into the public domain. For the theft, he should have to pay restitution to the purse’s owner, while for the Shabbat violation, he is subject to stoning. Does this mean that the more severe punishment cancels out the lesser one, so the thief doesn’t have to pay restitution? This seems especially unfair in a situation where the penalty of stoning is unenforceable and is left up to God. It seems very much as if the thief is taking advantage of the law to get away scot-free.

To avoid this conclusion, the Gemara divides the theft into discrete actions. As soon as the thief lifts the purse, he becomes guilty of theft; only once he carries it four cubits in the public domain does he become guilty of Shabbat desecration. As a result, the second act does not void the first, since they are two separate crimes. The rabbis go on to imagine objections and counter-examples, designed to test this principle. What if instead of lifting the purse, the thief dragged it? What if he picked it up not intending to take it out of the house, then changed his mind and did so?

With all these analogies, the modern reader may feel that the original crime of rape is being tacitly diminished. Indeed, the very distinction between rape of a virgin, which requires the payment of a fine, and a rape of a non-virgin, which doesn’t, is invidious: It turns virginity into property and rape into a kind of theft. So, it is somewhat reassuring to learn, in Ketubot 32a, that in all cases a rapist is required to pay compensation “for humiliation and degradation” and also, separately, “for pain.” Compensation still seems to imply that rape is a case of personal injury, rather than a moral crime. But at least it recognizes that the woman herself, rather than her father or her family honor, is the injured party.

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Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.