Consent in Rape: Judaism

Now pray, I have two daughters who have never known a man,
pray let me bring them out to you, and you may deal with them however seems good in your eyes;
only to these men do nothing,
for they have, after all, come under the shadow of my roof-beam!

MISHNA: And these are the ones who are saved from transgressing even at the cost of their lives; that is to say, these people may be killed so that they do not perform a transgression: One who pursues another to kill him, or pursues a male to sodomize him, or pursues a betrothed young woman to rape her. But with regard to one who pursues an animal to sodomize it, or one who seeks to desecrate Shabbat, or one who is going to engage in idol worship, they are not saved at the cost of their lives. Rather, they are forewarned not to transgress, and if they proceed to transgress after having been forewarned, they are brought to trial, and if they are found guilty, they are executed.

The Gemara asks again: But from where do we derive that one may be saved at the cost of the pursuer’s life? The Gemara answers: It is derived by means of an a fortiori inference from the halakha governing a betrothed young woman who was assaulted by a rapist: If in the case of a betrothed young woman, whom the rapist comes only to degrade, i.e., the result of the rape will be that her status is lowered, the Torah said that she may be saved even at the cost of the rapist’s life, then in the case of one who pursues another person to kill him, all the more so should one say that he may be saved even at the cost of the pursuer’s life.

The Gemara asks: And with regard to the betrothed young woman herself, from where do we derive that she may be saved at the cost of the rapist’s life? The Gemara explains: As it was taught in the school of Rabbi Yishmael: The verse states: “For he found her in the field, and the betrothed young woman cried out, and there was none to save her” (Deuteronomy 22:27). But if there was someone to save her, he must do so by any means that can save her, even by killing the potential rapist.

§ Apropos the discussion of the obligation to allow oneself to be killed rather than engage in forbidden sexual intercourse, the Gemara notes that Rav Yehuda says that Rav says: There was an incident involving a certain man who set his eyes upon a certain woman and passion rose in his heart, to the point that he became deathly ill. And they came and asked doctors what was to be done with him. And the doctors said: He will have no cure until she engages in sexual intercourse with him. The Sages said: Let him die, and she may not engage in sexual intercourse with him. The doctors said: She should at least stand naked before him. The Sages said: Let him die, and she may not stand naked before him. The doctors suggested: The woman should at least converse with him behind a fence in a secluded area, so that he should derive a small amount of pleasure from the encounter. The Sages insisted: Let him die, and she may not converse with him behind a fence.

(1) Now Dinah, the daughter whom Leah had borne to Jacob, went out to visit the daughters of the land. (2) Shechem son of Hamor the Hivite, chief of the country, saw her, and took her and lay with her and disgraced her. (3) Being strongly drawn to Dinah daughter of Jacob, and in love with the maiden, he spoke to the maiden tenderly. (4) So Shechem said to his father Hamor, “Get me this girl as a wife.” (5) Jacob heard that he had defiled his daughter Dinah; but since his sons were in the field with his cattle, Jacob kept silent until they came home. (6) Then Shechem’s father Hamor came out to Jacob to speak to him. (7) Meanwhile Jacob’s sons, having heard the news, came in from the field. The men were distressed and very angry, because he had committed an outrage in Israel by lying with Jacob’s daughter—a thing not to be done. (8) And Hamor spoke with them, saying, “My son Shechem longs for your daughter. Please give her to him in marriage. (9) Intermarry with us: give your daughters to us, and take our daughters for yourselves: (10) You will dwell among us, and the land will be open before you; settle, move about, and acquire holdings in it.” (11) Then Shechem said to her father and brothers, “Do me this favor, and I will pay whatever you tell me. (12) Ask of me a bride-price ever so high, as well as gifts, and I will pay what you tell me; only give me the maiden for a wife.” (13) Jacob’s sons answered Shechem and his father Hamor—speaking with guile because he had defiled their sister Dinah— (14) and said to them, “We cannot do this thing, to give our sister to a man who is uncircumcised, for that is a disgrace among us. (15) Only on this condition will we agree with you; that you will become like us in that every male among you is circumcised. (16) Then we will give our daughters to you and take your daughters to ourselves; and we will dwell among you and become as one kindred. (17) But if you will not listen to us and become circumcised, we will take our daughter and go.” (18) Their words pleased Hamor and Hamor’s son Shechem. (19) And the youth lost no time in doing the thing, for he wanted Jacob’s daughter. Now he was the most respected in his father’s house. (20) So Hamor and his son Shechem went to the public place of their town and spoke to their town council, saying, (21) “These people are our friends; let them settle in the land and move about in it, for the land is large enough for them; we will take their daughters to ourselves as wives and give our daughters to them. (22) But only on this condition will their representatives agree with us to dwell among us and be as one kindred: that all our males become circumcised as they are circumcised. (23) Their cattle and substance and all their beasts will be ours, if we only agree to their terms, so that they will settle among us.” (24) All his fellow townsmen heeded Hamor and his son Shechem, and all males, all his fellow townsmen, were circumcised. (25) On the third day, when they were in pain, Simeon and Levi, two of Jacob’s sons, brothers of Dinah, took each his sword, came upon the city unmolested, and slew all the males. (26) They put Hamor and his son Shechem to the sword, took Dinah out of Shechem’s house, and went away. (27) The other sons of Jacob came upon the slain and plundered the town, because their sister had been defiled. (28) They seized their flocks and herds and asses, all that was inside the town and outside; (29) all their wealth, all their children, and their wives, all that was in the houses, they took as captives and booty. (30) Jacob said to Simeon and Levi, “You have brought trouble on me, making me odious among the inhabitants of the land, the Canaanites and the Perizzites; my fighters are few in number, so that if they unite against me and attack me, I and my house will be destroyed.” (31) But they answered, “Should our sister be treated like a whore?”

וישכב אותה ויענה, “he slept with her and subsequently abused her.” According to Rashi the word וישכב describes normal intercourse, whereas the word ויענהdescribes a more perverted method of sexual intercourse. Ibn Ezra understands the word ויענה as describing the pain involved in her having intercourse as she had been a virgin. Nachmanides writes that there is no need for all these explanations, seeing that any intercourse in which the woman is being raped is described in the Bible as עינוי, i.e. that is the meaning of the word ויעניה. In this instance, intercourse by mutual consent appears to have preceded the rape. The opposite was the case in the rape of Tamar by her half-brother Amnon. (Samuel II 13). There the rape is mentioned before the sexual intercourse. Some commentators suggest that Dinah had first been seduced, whereas Amnon never bothered to seduce Tamar.

(1) This happened sometime afterward: Absalom son of David had a beautiful sister named Tamar, and Amnon son of David became infatuated with her. (2) Amnon was so distraught because of his [half-]sister Tamar that he became sick; for she was a virgin, and it seemed impossible to Amnon to do anything to her. (3) Amnon had a friend named Jonadab, the son of David’s brother Shimah; Jonadab was a very clever man. (4) He asked him, “Why are you so dejected, O prince, morning after morning? Tell me!” Amnon replied, “I am in love with Tamar, the sister of my brother Absalom!” (5) Jonadab said to him, “Lie down in your bed and pretend you are sick. When your father comes to see you, say to him, ‘Let my sister Tamar come and give me something to eat. Let her prepare the food in front of me, so that I may look on, and let her serve it to me.’” (6) Amnon lay down and pretended to be sick. The king came to see him, and Amnon said to the king, “Let my sister Tamar come and prepare a couple of cakes in front of me, and let her bring them to me.” (7) David sent a message to Tamar in the palace, “Please go to the house of your brother Amnon and prepare some food for him.” (8) Tamar went to the house of her brother Amnon, who was in bed. She took dough and kneaded it into cakes in front of him, and cooked the cakes. (9) She took the pan and set out [the cakes],^-a but Amnon refused to eat and ordered everyone to withdraw. After everyone had withdrawn, (10) Amnon said to Tamar, “Bring the food inside and feed me.” Tamar took the cakes she had made and brought them to her brother inside. (11) But when she served them to him, he caught hold of her and said to her, “Come lie with me, sister.” (12) But she said to him, “Don’t, brother. Don’t force me. Such things are not done in Israel! Don’t do such a vile thing! (13) Where will I carry my shame? And you, you will be like any of the scoundrels in Israel! Please, speak to the king; he will not refuse me to you.” (14) But he would not listen to her; he overpowered her and lay with her by force. (15) Then Amnon felt a very great loathing for her; indeed, his loathing for her was greater than the passion he had felt for her. And Amnon said to her, “Get out!” (16) She pleaded with him, “Please don’t commit this wrong; to send me away would be even worse^-a than the first wrong you committed against me.” But he would not listen to her. (17) He summoned his young attendant and said, “Get that woman out of my presence, and bar the door behind her.”— (18) She was wearing an ornamented tunic, for maiden princesses were customarily dressed in such garments.^-c—His attendant took her outside and barred the door after her. (19) Tamar put dust on her head and rent the ornamented tunic she was wearing; she put her hands on her head, and walked away, screaming loudly as she went. (20) Her brother Absalom said to her, “Was it your brother Amnon who did this to you? For the present, sister, keep quiet about it; he is your brother. Don’t brood over the matter.” And Tamar remained in her brother Absalom’s house, forlorn. (21) When King David heard about all this, he was greatly upset. (22) Absalom didn’t utter a word to Amnon, good or bad; but Absalom hated Amnon because he had violated his sister Tamar. (23) Two years later, when Absalom was having his flocks sheared at Baal-hazor near Ephraim, Absalom invited all the king’s sons. (24) And Absalom came to the king and said, “Your servant is having his flocks sheared. Would Your Majesty and your retinue accompany your servant?” (25) But the king answered Absalom, “No, my son. We must not all come, or we’ll be a burden to you.” He urged him, but he would not go, and he said good-bye to him. (26) Thereupon Absalom said, “In that case, let my brother Amnon come with us,” to which the king replied, “He shall not go with you.” (27) But Absalom urged him, and he sent with him Amnon and all the other princes. (28) Now Absalom gave his attendants these orders: “Watch, and when Amnon is merry with wine and I tell you to strike down Amnon, kill him! Don’t be afraid, for it is I who give you the order. Act with determination, like brave men!” (29) Absalom’s attendants did to Amnon as Absalom had ordered; whereupon all the other princes mounted their mules and fled. (30) They were still on the road when a rumor reached David that Absalom had killed all the princes, and that not one of them had survived. (31) At this, David rent his garment and lay down on the ground, and all his courtiers stood by with their clothes rent.^-h (32) But Jonadab, the son of David’s brother Shimah, said, “My lord must not think that all the young princes have been killed. Only Amnon is dead; for this has been decided by^-i Absalom ever since his sister Tamar was violated. (33) So my lord the king must not think for a moment that all the princes are dead; Amnon alone is dead.”

If a man is found lying with another man’s wife, both of them—the man and the woman with whom he lay—shall die. Thus you will sweep away evil from Israel. In the case of a virgin who is engaged to someone —if another man comes upon her in town and lies with her, you shall take the two of them out to the gate of that town and stone them to death: the girl because she did not cry for help in the town, and the man because he violated his neighbor’s wife. Thus you will sweep away evil from your midst. But if the man comes upon the engaged girl in the open country, and the man lies with her by force, only the party who lay with her shall die, but you shall do nothing to the girl. The girl did not incur the death penalty, for this case is like that of one party attacking and murdering another. He came upon her in the open; though the engaged girl cried for help, there was no one to save her. If a man comes upon a virgin who is not engaged and he seizes her and lies with her, and they are discovered, the party who lay with her shall pay the girl’s father fifty [shekels of] silver, and she shall be his wife. Because he has violated her, he can never have the right to divorce her.

MISHNAH: The seducer pays for three things and the rapist for four. The seducer pays for shame, diminution of value, and fine. The rapist in addition pays for suffering; the seducer does not pay for suffering. The rapist pays immediately, the seducer only if he divorces her. The rapist drinks from his pot; the seducer may divorce if he wishes.

Similarly, the sages forbade a man to have marital relations while thinking of another woman. Nor may he initiate sex while drunk, nor out of spite or hatred, nor may he rape her or initiate sex while she is afraid. Nor may they have sex while either of them are excommunicated nor after he has decided to divorce her. If [the husband] does any of those things, the children will not be proper [citizens] but brazen, rebellious [people] and criminals.

When a person sees a rodef pursuing a colleague to kill him, or a woman forbidden as an ervah to rape her, and he has the potential to save the victim and yet fails to do so, he has negated the observance of the positive commandment: "You must cut off her hand," and has transgressed two negative commandments: "You may not show pity," and "Do not stand idly by while your brother's blood is at stake."

The Gemara comments: And Shmuel’s father disagrees with the opinion of Rava. As Rava said: With regard to any case that starts as rape and ends willingly, even if she ultimately says: Leave him, and she further states that if he had not forcibly initiated intercourse with her, she would have hired him for intercourse, she is nevertheless permitted to her husband. What is the reason for this? The evil inclination took hold of her during the act, and therefore she is still considered to have engaged in intercourse against her will. It is taught in a baraita in accordance with the opinion of Rava: The verse states with regard to a sota: “And a man lies with her…and she was not taken” (Numbers 5:13). This is referring to a woman who had intercourse but was not taken forcefully, i.e., raped, and therefore she is forbidden to her husband. It may be inferred from this that if she was taken forcefully, she is permitted to him. And the word “she” teaches that you have a case of another woman, where even though she was not taken forcefully she is permitted. And which case is this? This is any case that starts as rape and ends willingly. Although at the conclusion of the act she was not taken forcefully, she is nevertheless permitted to her husband, as stated by Rava.