Women's Voices, Men's Laws: The Halakhic Process and Three Women's Accounts of Rape
Lewis, Justin Jaron, Women in Judaism
In cases of rape, one might expect the rabbis to punish the transgressors, even if they could not be convicted under the stringent Talmudic rules of evidence. However, in the responsa of three late 18th century women the issue of punishment does not arise. Moreover, the halakhic process, in these cases, has proven capable only of solving problems of its own creation and incapable of listening to women or answering their calls for help.
Justin Jaron Lewis is a doctoral student in Jewish Studies at the University of Toronto, with a special interest in Hasidic narratives. He is also studying toward rabbinic ordination at the Academy for Jewish Religion, and is the 1999 Hort Memorial Fellow at the YIVO Institute for Jewish Research in New York City. He is currently teaching an online course on Jewish texts @CDRommu.org.
I. Three Women's Stories
Responsa are answers by rabbis to questions asked usually, but not necessarily, by other rabbis. The questions, however, arise out of the lives of Jews of all kinds, and give us a chance to hear their voices. In one classic collection of responsa, Noda biYhudah, I have found three cases involving married women who say they have been raped. The women are not named, but I will follow a convention used in other responsa and refer to them as Sarah, Rivkah and Rachel. (1)
The responsum on "Sarah", published in 1776, (2) is number 71 in the Even haEzer section of Noda biYhudah, first series (mahadura qamma). (3) There are two responsa on "Rivkah", dated to spring 1789 and winter 1789/1790, (4) numbers 14 and 15 in Even haEzer, Noda biYhudah second series (mahadura tinyana). The responsum on "Rachel", dated to spring 1781, (5) is number 21 in the same series.
In cases of rape, we might expect the issue to be the guilt and punishment of the accused rapists. In principle, it could have been; rabbis could have transgressors punished, by flogging and in other ways, even if they could not be convicted under the stringent Talmudic rules of evidence. (6) In fact, however, that issue does not arise in these responsa.
According to halakhah, a wife who commits adultery must be divorced, without payment of her ketubah. (7) A wife who is raped, on the other hand, remains permitted to her husband (unless he is a kohen, which is not the case here.) (8) In each of the cases under discussion, the question addressed by the rabbis is whether the woman who says she has been raped must be divorced as an adulteress. Such a divorce, of course, could ruin a woman's life. She would be cast out with no support, and stigmatized in her community. She might well be left destitute and alone.
In this context, the Noda biYhudah (Rabbi Ezekiel Landau, 1713-1793, of Prague) records the women's stories, though very briefly and in his own literary Hebrew.
Sarah's story, found in lines 3-4 of the responsum on her case, reads as follows. (Line numbers refer to the printed editions listed in the bibliography, counting from the beginning of the responsum with the heading as the first line.)
"We received his [the questioner's] letter concerning the matter of the woman who, in her time of illness, confessed her sin, that she had fornicated under duress, when a man who was staying in her house came and raped her. His honour [the questioner] is in doubt whether to compel her husband to divorce her."
Rivkah's story is told in lines 7-11 of the first responsum on her case, and again in lines 4-7 of the second:
"I received his letter yesterday concerning the matter of a woman whose husband went far away, and about a year and a half after her husband had left her she gave birth. And the claim she makes is that she was raped, by a bad and sexually licentious man, one of our people, since her husband had abandoned her in a dwelling very far away from the town and no one was with her in the …
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Publication information: Article title: Women's Voices, Men's Laws: The Halakhic Process and Three Women's Accounts of Rape. Contributors: Lewis, Justin Jaron - Author. Journal title: Women in Judaism. Volume: 2. Issue: 1 Publication date: Annual 1999. Page number: Not available. © Not available. COPYRIGHT 1999 Gale Group.