MARITAL RIGHTS OF A RAPED WOMAN

QUESTION:

If a married woman is raped, is the husband required to divorce her? What, in general, is the status in Jewish law of a woman who is the victim of a rapist? (Asked by S.S.)

ANSWER:

THE PROBLEMS, marital and legal, involved in the crime of rape are being discussed nowadays quite frequently and heatedly. This is true partly because of the general laxity of present-day morals and also because many social-minded people, and especially advocates of women’s rights, protest the present treatment by the civil authorities of a woman who declares that she is the victim of rape. The charge is often made that the police question the woman in such a way as to imply that she was not raped at all but had consented to, or even encouraged, the sexual encounter. For all these reasons, it becomes rather important nowadays to analyze the status in Jewish law of a woman who is raped or who says that she has been raped.

The laws on this matter go all through Jewish legal literature, beginning with the Bible, continuing in the Talmud, and finding permanent place in the Codes, such as the Shulchan Aruch and Maimonides. It becomes clear, even from a cursory reading of the material involved, that Jewish law has maintained an attitude which is precisely the opposite of that imputed to the legal authorities today. That is to say, Jewish law, from the very beginning, comes to the defense of the woman who is raped or who claims to be raped. The Bible, in Deuteronomy 22:29, says that if a man rapes an unmarried woman, he must pay a fine and then must marry her and may never divorce her. The Mishnah repeats this law in Ketubos 3:4. The Talmud, discussing the matter in Ketubos 39b, says that the rapist must pay for the pain and shame that he has caused, and must marry his victim even if she is blind or lame (or deformed). The Shulchan Aruch, in Even Hoezer 177:3, modifies this law as follows: The rapist must marry the girl provided the father and the girl both consent to the marriage. And the Shulchan Aruch continues that if he divorces her, he must be compelled to take her back again.

Of course, rabbinical courts today do not deal with such matters. They confine themselves to cases in civil law, such as contracts, debts, etc., but do not consider that they still have the right to deal with criminal law, such as murder, rape, etc. (see Choshen Mishpot # 1) . Nevertheless, it is the decision of the scholars that the rapist, while he can no longer be legally compelled to do so, should be pressured to marry her (of course, as the Shulchan Aruch says, if she consents to be married to him). (See article “Anussa” in Ozar Yisroel.)

All this applies to an unmarried girl who is the victim of rape. But what if the victim is a married woman? Is there any reason in the law for the husband to divorce her? The questioner has the impression that this is so. This impression has some logic since it is based upon a clear analogy, namely, that if a woman is voluntarily and definitely immoral, her husband must dvorce her. The question asked here is therefore the following: Does this duty to divorce her apply to a woman who is the victim of rape? Definitely not! The Talmud in Ketubos 51b, discusses the matter and clearly states that if a wife is the victim of rape, she is permitted to continue as wife to her husband. The ground for this permission is the general principle in rabbinic law that a person under compulsion is forgiven whatever sin he may have committed {onus rachmona patray). In fact the Talmud says that if she is being raped but during the process yields and participates willingly, even then she is to be forgiven because her desire has overcome her.

So the Shulchan Aruch, in Even Hoezer 6:11, states as a law that a woman who is raped is permitted to remain married to her husband. See Be’er Hetev, ibid., who says it is obvious (pashut) that she is permitted to remain his wife. The Encyclopedia Talmudis (s.v. “Anussa”) refers to some authorities who are in doubt as to whether the husband need divorce his wife. But actually their doubts concern only the question of whether the wife was really raped or not. Yet even as to such doubts, the presumption of the law is that her statement is generally to be accepted as true. Of course if it is certain that she had been raped, then all authorities agree that the husband may keep her as his wife.

The Shulchan Aruch, stating this law, adds, however, that if her husband is a priest, she is not permitted to remain married to him. This exception is due to the special laws of ritual sanctity that surround the priesthood. For example, it is not a sin for a woman to be a divorcee, yet a priest may not marry a divorcee. In other words, the priest must follow special laws of sanctity which do not necessarily reflect upon the character of a wife.

It is interesting that even with regard to a raped woman and a priestly husband, there is a variation of the law which indicates that the attitude of Jewish law is exactly opposite to that which is imputed to present day authorities. This variation is found in Even Hoezer 6:13. If it is proved definitely that the woman was raped, then, as has been stated, the priest may not retain her as wife, just as he may not marry a divorced woman. But if there is no proof, but she declared that she has been raped, the priest may continue to keep her as a wife, although after the priest dies his widow may not marry any other priest because of doubt.

Also related to the above discussion is the question of a captive woman. Here, too, the question rises of Jewish women taken into captivity and the presumption that they are raped as helpless captives. May the husband keep a captive woman after she is ransomed? These questions are discussed in the Shulchan Aruch, Even Hoezer 7, and it is clear that the slightest proof that the woman has remained pure is accepted both for Israelite and priestly husband. See especially the famous responsum of Meir of Rothenburg in Responsa Literature, pp. 99 ff.

To sum up: Contrary to the alleged attitude of present-day civil authorities, Jewish law from the very beginning has always been on the side of the woman victim. If she is unmarried, the rapist must marry her if she consents to the marriage. If she is a married woman, the husband may keep her, unless he is a priest, for priests are subject to special laws which do not reflect upon the character of the woman.