Lethal Self-Defense against a Rapist and the Challenge of Proportionality: Jewish Law Perspective
Porat, Benjamin, Columbia Journal of Gender and Law
E. Proportionality and the Mishnaic Ruling
In summary, it would appear that although the term "proportionality" does not appear in the sages' lexicon, the essential concept of proportionality plays a central role in their discussion of the limits of self-defense The tannaitic sources assume that the right to self-defense is conditioned upon full proportionality between the crime and the corresponding defensive action taken in response. Therefore, self-defense against rape does not automatically include the right to kill the rapist, aside from certain specific cases.
Rabbi Judah extrapolates that deadly self-defense must be limited to cases involving a threat to the victim's life. Rape itself does not justify the use of deadly force in self-defense.
The sages expanded the boundaries of legitimate self-defense somewhat further, ruling that in any case in which the penalty for the sexual assault would be death, the victim is permitted to defend herself even at the expense of the attacker's life. In keeping with this, the sages rule that in cases of rape accompanied by aggravating circumstances--rape combined with forbidden sexual relations--the victim may employ deadly self-defense against her rapist. However, in more common cases of rape, not punishable by death, the victim is not permitted to kill her rapist in self-defense.
As mentioned, while the above discussion is generally considered by scholars to sum up the Jewish law position on this issue, (134) in the following part I will attempt to challenge this view and present a more complex picture.
IV. "In Pursuit of a Maiden"--The Law in Practice (halakha le-ma'aseh)
I will argue that while the previous section accurately reflects the theoretical law (halakha) on this matter, it is not fully representative of the realm of the law in practice (halakha le-ma'aseh). On a practical level almost every case of killing a rapist in self-defense may be sanctioned de facto, (135) regardless of the victim's marital status (betrothed or single). (136) Furthermore, not only will the defender be acquitted post facto, but it would seem that in practice, employing such self-defense will be considered appropriate to begin with. (137)
In light of the Mishnah's characterization of rape, (138) the following analysis will mainly address a third-party passerby defending the victim. Later on I will also discuss action that can be taken by the rape victim herself.
This duality lends a fascinating complexity to the ruling of the Mishnah. On one level, discernible by the common reader, the Mishnah creates the impression (halakha) of a rigid standard of proportionality and exacting precision as to the use of deadly force in self-defense; killing a rapist in self-defense is only permissible in particularly severe cases. On another level, accessible only to the critical one, the Mishnah's ruling sets a practice (halakha le-ma 'aseh) of a somewhat more lenient standard of proportionality, effectively allowing almost all rape victims to defend themselves even at the expense of the rapist's life. This phenomenon is reminiscent of Meir Dan-Cohen's discussion of "acoustic separation." (139) However unlike in Dan-Cohen's work, which notes the distinction between "conduct rules" and "decision rules" (in other words, one set of rules addressed to the general public and another set of rules addressed to the judges), here the emphasis is on the distinction within the conduct rules themselves, whereby the law seems to voice one rule to the average citizen reading the law at first glance and a different rule to the citizen reading the law from a more cautious and complex perspective.
Nevertheless, this case is not the classical example of the distinction between law (halakha) and the law in practice (halakha le-ma'aseh). In general, the difference between halakha and halakha le-ma 'aseh usually stems from the existence of numerous contradictory sources, with one source expressing the position of halakha, and another the position of halakha le-ma'aseh. …