Women's Voices, Men's Laws:
The Halakhic Process and Three Women's Accounts of Rape

Justin Jaron Lewis
University of Toronto

ABSTRACT

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 house but one young daughter. This is an excerpt from her words.”

“His letter arrived, asking again about a matter which he already asked about last summer, concerning a woman who was left without a husband, since he had gone to seek sustenance in another place, and the woman conceived and gave birth, and she says 'So-and-so, a bad and sexually licentious man, came upon me and raped me', and her house was outside the town, and [in the language of Deuteronomy 22:27] 'she cried out and there was no one to help her.'“

Rachel's story is in lines 4-12 of the responsum on her case:

“I received his letter, which asks about a woman who came to her husband in bitterness of spirit and begged him to teach her a way to do penitence, because she had done what was not good, and she told him the gist of the incident, that she had been travelling on the road with a youth, a relative of hers, and on the way they stopped for the night at a Jewish inn, and there were many non-Jews sleeping on the ground in the inn, and the woman was afraid to sleep there lest they take advantage of her, and she went with the youth into another room there in the inn and she lay down there, on the bed which was in that room. And during the night that youth came quietly and took hold of her to have intercourse with her, and she [in the language of Eyshet Chayil] 'girded up her loins with strength' and resisted him, and nevertheless he did not relent in his evil passion and did the evil thing. In such words the woman told the story to her husband. And [the questioner] asks if she is permitted to her husband (who is not a Kohen) or not.”

These women lived in Bohemia, then part of the Austrian empire. 9 Medieval Jewish life, with its judicial autonomy under rabbinic leadership, and its separateness from non-Jewish society, was just on the verge of coming to an end. 10 (Rachel speaks of her fear, probably justified, of non-Jewish men.) For Jewish villagers, such as Rivkah, life was to continue along very traditional lines for many years. 11

Each of the women speaks of a Jewish rapist; the man Rivkah accuses already has a reputation as a sexual transgressor. The rabbi who asks the Noda biYhudah about Sarah asks whether he should compel a divorce; the wording of the responsum suggests that he has already ruled that a divorce is required. If so, perhaps Sarah's husband defied his ruling; certainly such defiance was not unheard of. 12

Though one would like to know much more about the women, some of their motivations in telling their stories are easy to imagine. First of all, like anyone telling a story so personal, each of them surely wants to be taken seriously, to be believed.

Rivkah has the immediate motive of self-preservation. Having become pregnant during her husband's long absence, she tells her story to save her marriage and what security she has in her life. Also implicit in her words is a protest against her treatment, by her husband and others, being left alone and isolated for so long.

Rivkah has to say something; Sarah and Rachel do not. It is a feeling of guilt that motivates each of them, as they confess to having been raped long ago. Sarah is ill, perhaps feeling near death and wanting to clear her conscience; Rachel, apparently, just couldn't keep it to herself any longer.

Rachel specifically wants a program of penance, probably involving fasting and other kinds of self- mortification. 13 It is moving to note her trust in her husband, in choosing to confess to him rather than a friend or relative, and how she sees him as a religious authority qualified to prescribe penance.

Sadly, it appears that for a woman to feel guilty for being raped was normal in their cultural context. In the responsum about Rachel, the Noda biYhudah seems to assume that a raped woman indeed ought to do penance (line 33f).

Sarah and Rachel are doubly victims: raped and blaming themselves. Both are looking for forgiveness and healing.

II. THE ANSWERS -- THE HALAKHIC PROCESS

14

1. Sources

Talmudic Concepts

The Talmud is hardly mentioned in these responsa, but it is ever-present as a source of concepts and lines of thought. The most important Talmudic source is Ketubot, chapters 1 and 2, especially 12b - 23b (on Mishnayot 1:6 - 2:6), dealing with supposedly virginal brides who are found to be non-virgins and other instances of women suspected of sexual transgression. Some of the key terms used there and in these responsa are as follows:

Bari ushema bari adif: “Certain and unsure, certain is stronger.” If there are two counter-claims, and one claimant is certain about their statement and the other is unsure, the certain claim has more weight. If the claims are “certain and certain” this principle does not apply.

Hapeh she-asar hu hapeh shehitir: “The mouth that forbade is the mouth that permitted.” “A person who tells us something we would not have known had he not made his statement, is to believed if he then says something that cancels out the consequences of the first part of his statement.” 15

Yihud. In this context, the relevant law is that a married woman is not allowed to be alone with men other than her husband. Several details and qualifications of the law are mentioned in these responsa; e.g. ein osrin al hayihud: a wife who has commited yihud (been alone with another man) is not forbidden to her husband.

Lo mipihah anu hayyim: “We do not live from her mouth”: we do not have to accept her testimony. The Noda biYhudah also uses mipihah anu hayyim: “we do live from her mouth”. We only have her testimony to go by.

Migo. A technical term for the rule that we assume a person is telling the truth if, had they been lying, they could just as well have told a story more to their own advantage.

The second most important Talmudic source is the end of Nedarim (91a), which presents various cases where a woman indicated to her kohen husband that she had intercourse with another man. If she were believed, he would have to divorce her. The rabbis ruled that she should not be believed. Her statement may be a trick; she may be trying to get out of the marriage because “she has her eyes on another man”, einehah nitna b'aher.

The discussion of rape in Ketubot 51b is also significant. The issues include the possibility of a woman acquiescing in her rape. It also refers to the laws of women taken captive.

Post-Talmudic Sources

Rape is discussed in many places in halakhic literature. 16 The Noda biYhudah writes his responsa with attention to a number of different sources, starting with the Shulhan Arukh and its standard commentaries, and including other codes and responsa. Most of his sources refer back to other sources; I have generally not pursued these references, though we can assume that he did.

The two main halakhic statements to which the Noda biYhudah refers are in different parts of the Shulhan Arukh. They are not in Joseph Caro's original text, but only in the notes of the Rema. [R. Moses ben Israel Isserles, 1525-1572, Cracow, Poland] Both appear in the context of laws about a husband accusing his wife of adultery. It thus seems that rape in itself was not a very important subject to the codifiers, and that their concern was with its impact on men.

I will refer to these two texts, in terms of their sources, as “Mordekhai” and “Rabbenu Yonah.”

1. “Mordekhai”:

In Even haEzer 178:3, in the laws of sotah (a woman accused by her husband of adultery) there is a note about a woman who had been travelling with men and said she was raped. The source for this is an actual case described in Sefer Mordekhai on Ketubot chapter 2, paragraph 147. 17 Rema in Even haEzer summarizes:

“A woman who was in yih ud with men on the road [i.e. travelling as the only woman in a group of men], and she came [to the rabbis] and said “I committed yih ud and I was raped”. Some say she is believed on the principle of migo, since she could have said “no one had intercourse with me”. And some say she has lost her [entitlement to] migo, since she committed yih ud, contrary to the law.”

2. “Rabbenu Yonah”:

The other source is in Even haEzer 68:7, in the context of the laws of ta'anat betulim (a husband accuses his newlywed wife of not having been a virgin). The Shulhan Arukh says that the accused wife is forbidden to her husband, even if he is not a kohen, if she was betrothed to him before she was three years and a day old. (If she was betrothed, that is, before it was halakhically possible for her to lose her virginity. Therefore she must have lost her virginity while betrothed, which ordinarily constitutes adultery.) Rema notes that a more permissive opinion exists in some circumstances:

“And some say: the ruling that she is forbidden to her husband (when he is not a kohen) applies specifically when she does not try to justify herself. But if she said, 'I was raped', she is believed.”

Here the source is a statement of Rabbenu Yonah quoted in Tur Even haEzer 68. There, the reasoning is explained on the basis of “certain and unsure” (bari ushema):

“Because her claim is 'certain', and his claim is 'unsure', since he does not know if [her loss of virginity] was under duress or willingly. And 'certain and unsure, certain is stronger.'“

Maharam Alashkar [R. Moses ben Isaac Alashkar, 1466 (Spain)-1542 (Jerusalem)]: a restriction on Rabbenu Yonah

A restriction on this permissive option is found in a responsum of Maharam Alashkar 18 quoted in Knesset haGedolah 19 note 59 on Tur Even haEzer 68. (The Noda biYhudah notes that he does not have access to the responsum itself.) It says that Rabbenu Yonah's opinion applies of the woman does not name the rapist, or if he is not available. But if the accused rapist denies it, his denial is considered “certain”, and the case is no longer “certain and unsure” but “certain and certain”.

The following are the other sources cited in these responsa. Line numbers are indicated for the sources cited only once.

A book by Maharam Esh 20 , to which the author does not have access [first responsum on Rivkah, line 26f.]

A responsum of his own (perhaps the one about Rachel) [ibid.]

Beit Shmuel commentary on Shulhan Arukh, note 15 on Even haEzer 68 [the references include line 30 of the responsum on Sarah, where there is a misprint, 65 instead of 68.]

Its source, Maggid Mishneh commentary on Mishneh Torah, Sefer Kedushah, Hilkhot Isurei Bi'ah, 18:10

Helkat Mehokek commentary on Shulhan Arukh, note 10 on Even haEzer 68

The author's own responsum on Sarah

Tosafot on Sanhedrin 9b s.v. v'ein adam meisim atsmo rasha

[second responsum on Rivkah, line 26]

Helkat Mehokek, note 9 on Even haEzer 7:6 [ibid. 34 --there is a misprint, 40 instead of 7.]

Beit Shmuel, notes 12 and 9 on Even haEzer 7 [ibid. 35]

Havat Ya'ir (no page or chapter specified) 21 [Rachel line 16]

Pnei Yehoshua 22 , Kuntres Aharon on Ketubot, paragraph 30 [ibid. 68f.]

Tur Even haEzer 177, near beginning, quoting Rambam [ibid. 95f.]

Deuteronomy 22:24 [ibid. 98]

Ramban [R. Moses ben Nachman (Nachmanides), 1194 (Spain) - 1270 (Jerusalem)], commentary on the Torah, Deuteronomy 22:23-25 s.v.

inyan na'arah hame'orsah [ibid. 115f.]

2. Summaries of the Responsa and Comments

Sarah: Noda biYhudah Mahadura Kama, Even haEzer 71

This is the most straightforward of the three cases, encapsulating basic principles which reappear in the others.

“The mouth that forbade is the mouth that permitted.” The reason to forbid Sarah to her husband would be that she has had intercourse with another man. But we know this only from her testimony, and her testimony is that she was raped, so that she is permitted. [Line 6f.]

Mordekhai is not relevant here, because there is no question of the prohibition of yihud. [Lines 7- 9]

Even if there were initially a question of yihud, various principles of the law of yihud would lead us to conclude that yihud is not an issue in this particular case. [Lines 9-10]

Even if yihudwere an issue, and Mordekhai were relevant, the restrictive opinion there is based on the possibility of there being witnesses to the yihud. It would require us to wait and see if such witnesses can be found. Here, however, it is clear that any witnesses to yihud would have come forward already. [Lines 11-15]

If Sarah's husband were a kohen, we could apply “she has her eyes on another man.” Neither her telling her story as a confession nor her sickness at the time would compel us to believe her. [Lines 16-21]

It is simply obvious to the Noda biYhudah that Sarah is permitted to her husband. The sources clearly support him, and he does not need to interpret them creatively. He does read them carefully: whereas, apparently, the questioner, Rabbi Moshe, only read the opinions from Mordekhai as quoted in the Shulhan Arukh, the Noda biYhudah looks to Sefer Mordekhai itself. [Lines 7-9, 11-15.] As if to make the case more interesting, he discusses alternative scenarios, which become relevant in the other responsa.

Rivkah -- first responsum: Noda biYhudah Mahadura Tinyana, Even haEzer 14, first paragraph, and beginning of ibid., 15

Rabbi El'azar, the questioner, points out that the permissive opinion in Mordekhai is based on migo. But here, what migo is there? What better story could Rivkah have concocted? Could she perhaps have said that her husband came secretly and had intercourse with her?

The Noda biYhudah rejects the latter suggestion: her husband would know if he had been with her, and if not he would have to conclude she had committed adultery. [First responsum, lines 11-22]

Rabbi El'azar also notes an apparent contradiction between Mordekhai, which accepts a woman's word that she was raped on the basis of migo, and Rabbenu Yonah, which does not invoke migo but rather the principle of “certain and unsure”.

The Noda biYhudah makes an original and well-thought- out distinction between these sources. He argues that in Rabbenu Yonah, the woman has a hazakat kashrut, that is, she is presumed to be a good woman. 23 In the situation discussed in Mordekhai the woman has committed the sin of yihud and lost this hazakat kashrut; therefore, if we believe her, it has to be for another reason, namely migo. [Ibid. lines 23-38]

In this case, there is no issue of yihud. The Noda biYhudah lists reasons why this is so, including that Rivkah had no way of protecting herself from yihud, left isolated as she was. To paraphrase what he says, even if it happened it was no sin on her part. [Ibid. lines 38- 49]

In the absence of witnesses, even if Rivkah's story did include yihud, she should be believed on the principle of migo, since she need not have said that she committed yihud at all. [Ibid. lines 49-51]

Rivkah's hazakat kashrut depends on her husband's feelings about her. If he considers her a good woman, we may rely on Rabbenu Yonah's permissive ruling: we believe her, and the lack of migo doesn't matter. [Second responsum, line 9f.]

Maharam Alashkar's restriction on Rabbenu Yonah's opinion must be taken into account; if the accused rapist denied Rivkah's story, that would change the situation. However, it is not up to us to go looking for him. [Ibid. lines 10-15]

Here, the sources lend themselves to conflicting interpretations and require careful analysis. The Noda biYhudah seems to enjoy such analysis; it continues for several pages which I have not discussed here. His distinction between Mordekhai and Rabbenu Yonah is apparently original. 24 The sources he cites do not refer to hazakat kashrut in this context. It is striking that he has the confidence to use this distinction, which he has discovered by his own analysis, as a basis for decision-making.

He is also confident in relying on the most permissive opinion available, Rabbenu Yonah's.

However, he is not cavalier about his sources; although his argument points toward permitting Rivkah to her husband, Maharam Alashkar's restrictive view must be taken into account.

Rivkah -- second responsum: ibid. 15

Unfortunately, Rabbi El'azar, after permitting Rivkah to her husband in accordance with the Noda biYhudah's responsum, did send for the accused rapist, who denied having sex with her at all. Given Maharam Alashkar's ruling, this undermines her case.

Rabbi El'azar suggests that perhaps Maharam Alashkar was referring to a case where the accused rapist said that the woman consented, but not to a complete denial like this one.

The Noda biYhudah rejects this; if that were meant, the Knesset haGedolah would have said so. [Lines 15- 21]

His solution is based on a principle, found in Tosafot on Sanhedrin, that we can divide testimony in two and treat each part separately. Rivkah asserted that she was raped by so-and-so. Treating this as two separate claims, so-and- so now denies that he raped her, but no one has denied that she was raped. The reason for permitting her to her husband is that she was raped; we need not rescind that permission. [Lines 21-30]

The Noda biYhudah adds two points to strengthen his case:

A woman taken captive by pirates or enemies is ordinarily assumed to have been raped and forbidden to marry a kohen. 25 A woman who says she was taken captive but not raped, however, may marry a kohen. A witness who then comes and contradicts her cannot undo this permission. 26

Analogously, now that we have given Rivkah permission to stay with her husband, so-and-so's denial cannot change it. The Noda biYhudah notes that this analogy could be challenged, but is defensible. [Lines 30-35]

Maharam Alashkar's ruling is unclear anyway. [Line 35f.]

Here, the Noda biYhudah relies entirely on a rather forced interpretation of his sources. His source in Tosafot for dividing testimony in two deals with several examples, including a situation of homosexual intercourse, but none of the distinctions made there are exactly parallel to his. The laws applicable to captive women are designated in his sources as particularly lenient. 27 He seems to recognize the weakness of his argument in that he concludes by casting doubt on the substance of Maharam Alashkar's ruling, which has caused the difficulty.

Rachel: ibid. 21

Rabbi Leizer, the questioner, asks if we can apply “she has her eyes on another man” to permit Rachel to her husband. This is difficult because her telling the story as a confession makes it hard to disbelieve her, and because her husband isn't a kohen and her story doesn't forbid her to him.

The Noda biYhudah answers that we can indeed apply this principle. Her confession could be part of the trick. Saying she was raped could be a trick, too -- she may want her husband to conclude that actually she committed adultery, and divorce her. Therefore, her husband has the option of saying “she has her eyes on another man”, and simply refusing to believe her story at all, so that she is permitted to him. But this permission does not apply if he is sure she is loyal to him. [Lines 14-19, 23-38]

Here there is an issue of yihud, by Rachel's own admission. However, as explained above, the restrictive opinion in Mordekhai only applies if there are potentially witnesses. In this case, it is appropriate to make some inquiries as to whether witnesses could still be found, but if none are found it is not necessary to wait. [Lines 39-63, 116f.]

The Noda biYhudah distinguishes, as above, between Rabbenu Yonah and Mordekhai. 28 He goes into detail, resolving apparent contradictions among his sources. [Lines 64-91]

If there are no witnesses to her yihud, Rachel's story is to be believed on the principle of migo, since she need not have said that she committed yihud at all. [Lines 92-94]

Rabbi Leizer suggests that we should apply the presumption of Deuteronomy 22:24 that a woman who had illicit intercourse in town, and did not cry out, was willing and not raped. The Noda biYhudah answers that this is not to be taken literally. If the woman says that she struggled until penetration, that is the equivalent of “crying out” and she is permitted to her husband.

[Lines 95-116]

Of the four responsa, this is the one in which the Noda biYhudah is freest with his sources. In discussing whether the fact that Rachel was confessing means we must believe her, he notes [line 16] that the Havat Ya'ir ruled that way, but offered no proof; then he simply dismisses that opinion without arguing the point.

In his concluding paragraph on how to read Deuteronomy 22:24, he gives his interpretation as a “klal gadol” without stating the sources, and then says he has found the same ruling in Ramban's Torah commentary. [Lines 99, 115f.] A comparison with Ramban, however, shows that the Noda biYhudah goes further. I have not found in Ramban or elsewhere his conclusion that, if it is unsure whether a woman was raped or seduced, her own statement that she struggled is to be accepted as the equivalent of crying out. 29

On the other hand, in this responsum, unlike those about Rivkah where he relies on Rabbenu Yonah, he does not go by the most lenient option, but bases his discussion on the stricter of the two opinions in Mordekhai. There is the disappointing possibility that his disapproval of Rachel's behaviour leads him to rule more strictly. It is also possible that the difference reflects his own development as a halakhist - - the responsa on Rivkah are later, and he may have become more confident about making lenient rulings -- or that there is a specifically halakhic reason for it.

3. The Husbands and the Local Rabbis

The responsa give us a glimpse of how the women's husbands and their local rabbis respond to the women's stories.

It seems, between the lines, that Sarah's and Rivkah's husbands are loyal to them. As mentioned above, it may be that Sarah's husband refused to divorce her when Rabbi Moshe said to. In Rivkah's case, the first responsum makes her permission to her husband conditional on his trusting her. In the second one, permission has been given [line 30ff.], so he must have chosen to trust her. Presumably he trusted her already, despite the suspicion that must have been present in the community. The threat of divorce came not from him but from the halakhah and its representative, Rabbi El'azar.

Rachel's husband, by contrast, proves unworthy of her great trust. Apparently, on hearing her “confession” and plea for penance, he went to the rabbi to ask if he should divorce her.

As for the rabbis, both Rabbi Moshe, who asks about Sarah, and Rabbi Leizer, who asks about Rachel, seem strongly inclined to order a divorce. Rabbi Leizer makes several halakhic arguments which tend that way; in Rabbi Moshe's case, it is hard to see any halakhic justification at all. In view of what such a divorce would mean for the woman, it is difficult to think of these rabbis as other than hard-hearted. At least, though, they consulted the Noda biYhudah before compelling divorces. It is likely that not every stringent rabbi would have been so careful.

Rabbi El'azar, the Noda biYhudah's mehutan[first responsum on Rivkah, line 3], is much more considerate. Rivkah is in a very compromised position, and it's easy to disbelieve her story, but Rabbi El'azar is willing to propose quite far-fetched lines of reasoning in an effort to clear her.

On the other hand, he sends for the man whom Rivkah accuses of raping her and has him questioned, contrary to the Noda biYhudah's directives; the man's denial compromises Rivkah's position even further. It seems that Rabbi El'azar's desire to get at the truth, or the halakhically correct decision, took precedence over his inclination to protect Rivkah.

Finally, in each of these three cases, if the rabbi had simply chosen to believe the woman's story, there would have been no need for questions; it would be clear that she was permitted to remain married. None of the rabbis were willing to take the simple and humane route; none of them gave the woman the most basic thing she wanted -- to be believed.

4. The Noda biYhudah's Approach

In these responsa the Noda biYhudah, known as a great halakhic authority, shows his mastery of the halakhic process, using many sources, thoughtfully and skillfully, with an agenda: to avoid imposing divorces. In the responsum on Sarah, he indicates very clearly that this is the desirable conclusion in such a case [lines 23-25]: “We are extremely surprised that [Rabbi Moshe] was in such a hurry to rule that this woman was forbidden. He should first have studied carefully, and then, truly, he would have found the gates of permission open before him.”

This agenda is particularly clear in the case of Rivkah. Her story is, frankly, hard to believe: she apparently didn't say anything when the alleged rape happened; she accuses a man who already has a bad reputation and is therefore an easy target; it would not be too surprising if, abandoned by her husband as she was, she had found some comfort with another man. Yet the Noda biYhudah insists on interpreting the halakhah to clear her of the charge of adultery -- even after the accused rapist's denial undermines his original argument.

The Noda biYhudah does not simply rule as he pleases. His answers are apparently based on a thorough consideration of all the sources he considers relevant and important. However, as noted above, he simply dismisses an inconvenient source, Havat Ya'ir, that doesn't seem substantial enough to be worth dealing with; he is willing to resort to forced interpretations and dubious analogies; and he gives his own ideas, based on study of the sources, equal weight with the sources themselves.

In short, while he is conscientious in playing by the rules of the halakhic process, he is not led to conclusions by his sources, but, confidently and with some freedom, makes use of his sources to support the conclusion he has in mind from the start.

In his determination to avoid imposing divorces, the Noda biYhudah shows a humane attitude toward women, very different from the hasty strictness of Rabbi Moshe.

This humane attitude also shows in his evident disapproval of how Rivkah has been treated. He writes, “it is not correct for a woman to live alone, and especially in an uninhabited place... [but when her husband] left her abandoned in the house like this, what was she to do?...” [first responsum, lines 41-49]

We catch a glimpse of his feelings for his own wife in a touching personal note at the conclusion of the second responsum about Rivkah [lines 37-41]. He writes that the rebbetzin has been deathly ill for several weeks and he is deeply distressed and unable to think clearly. These are not the feelings of a misogynist.

However, aspects of the Noda biYhudah's attitude to the women deserve criticism. His interpretation of the distinction between Mordekhai and Rabbenu Yonah is original and useful, but it smacks of blaming the victim. A woman who accuses a man of raping her loses credibility if she admits to having committed yihud with him first. This anticipates the arguments made by defendants in contemporary cases of “date rape”, and defence lawyers who pry into rape victims' sexual histories.

His application of this principle to Rachel seems particularly harsh. Rachel's motive in taking a private room in the inn with her young relative was to protect herself from sexual abuse. The Noda biYhudah specifies that merely travelling with the young man was a forbidden act of yihud[lines 40-42]. But it hardly seems fair to expect Rachel to know this somewhat abstruse detail of halakhah.

The Noda biYhudah seems to assume Rachel knows another such detail, when he writes that we could suppose that “it is known to her that a woman is not believed, on the grounds of 'she has her eyes on another man', and so she proceeds subtly, saying [her story] by way of confession” [line 25f.] It is hard to imagine he could really believe Rachel thought like that. Rather, he is dealing with her, for purposes of his argument, as if she were versed in halakhah.

This is part of a larger pattern of treating the women as theoretical constructs. It is most striking in the case of Sarah, where he discusses how one should rule if she had said she was in yihud with the rapist or if her husband were a kohen. This treatment of real women as malleable abstractions may be inevitable in the context of responsa, where the author has to rule on the credibility of women he has never met. To some extent, it would be inevitable in any legal system based on laws and precedents: the real, individual women must be made to fit roles taken from older literature -- in these cases, the virgin maiden, the captive woman, the conniving wife of a kohen, etc.

Finally, there is the issue of whether the women are believed which, I have suggested, is the minimum that each of them wants.

The questioners, and the halakhic sources they refer to, assume that the women are not simply to be believed immediately. Rather, they are treated as suspected adulteresses under investigation. The Noda biYhudah subscribes to this assumption.

Furthermore, in his halakhic reasoning, whether or not to believe each woman becomes a functional question, subordinated to his purpose of preserving their marriages. In the hypothetical case of Sarah married to a kohen, and the real case of Rachel, he rules that the husband may dismiss her story as a trick. The motive, averting divorce, is admirable, but the method devalues the women.

III. What Has Happened to the Women's Stories?

Faced with three women whose marriages are threatened, the Noda biYhudah succeeds in using the halakhic process to save their marriages.

However, the women's marriages were only threatened by the halakhic process itself. If the halakhah states that a wife's confession to being raped does not affect her marital status, there would have been no threat at all.

Of the three women, only Rivkah told her story in order to save her marriage. One can imagine her being grateful at the outcome. She is also given the dignity of being believed.

The subtext of her story, however -- the protest against her isolation -- receives no answer.

Sarah and Rachel's concerns were quite different. Their stories were not told to save their marriages -- or to endanger them, which is how they were used. For these women, the whole process can only have been an ordeal.

Their need for forgiveness and healing is not addressed at all. Worse, their sense of guilt is likely exacerbated by finding themselves treated as suspected adulteresses.

The stories of Sarah, Rivkah and Rachel are cries for help. They are suffering. In the halakhic context, however, their husbands are the injured parties -- whether or not the husbands themselves see things that way. By law, the stories of women who say they have been raped are treated as evidence in deciding if they have betrayed their husbands. It is the women, not the men who have hurt them, who are liable to punishment.

We have seen women's stories placed in the hands of men. A woman tells her story to her husband. He brings it to a rabbi. The rabbi brings it to another rabbi, who considers the rulings of his predecessors. Then he tells the original rabbi what to tell the husband. The husband tells the woman whether she may still be his wife or not. Has anyone listened to the woman's story?

In these responsa, in the hands of a humane and well- intentioned master, the halakhic process has proved capable only of solving problems of its own creation. It has proved incapable of listening to women, treating them with dignity, or in answering their calls for help.

ENDNOTES

1. Elon, Jewish Law 1512.

2. Publication date of Noda biYhudah Mahadura Kama (Encyclopaedia Judaica 10:1389).

3. Like most collections of responsa, Noda biYhudah is arranged according to the four divisions of the Shulhan Arukh, of which Even haEzer is one.

4. Adar 5549 and Tevet 5550 (dates at beginning of responsa).

5. Sivan 5541

6. See Encyclopaedia Judaica 6:1350 f., s.v. Flogging; Elon 9, 10f; cf. Elon 11, 531, 802 on the execution of informers.

7. Based on Deuteronomy 24:4.

8. See Yevamot 33b, Ketubot 51b, Nedarim 90b f.

9. Encyclopaedia Judaica s.v. “Landau, Ezekiel” and “Bohemia”.

10. Historians often date the medieval period in Jewish history until the Emancipation -- e.g. Katz in Tradition and Crisis; Marcus in The Jew in the Medieval World. Jews were first recruited into the Austrian army in 1789 (Encyclopaedia Judaica 10:1390); Jewish judicial autonomy in Bohemia was ended by imperial decree in 1782. (ibid. 4:1177 f.)

11. The book B?hmische Dorfjuden describes the very traditional life of Bohemian village Jews at the turn of the twentieth century. Cf. Encyclopaedia Judaica 4:1178.

12. For example, Noda biYhudah Mahadura Kama Even haEzer 72 concerns a woman with a long standing reputation as an adulteress; her family and her husband's family terrorized anyone who spoke against her continuing the marriage.

13. Such penances are mentioned in Noda biYhudah Mahadura Qamma, Even haEzer 72.

14. (The first responsum on Rivkah is exceptionally long and complex. I will be analyzing only its first paragraph and the summary of its decision at the beginning of the second responsum on Rivkah. The other responsa will be dealt with in full.)

15. Steinsaltz Reference Guide 184.

16. See the footnotes in Entsiklopediya Talmudit 2:60 ff., s.v. anusah.

17. Mordekhai is a compendium of halakhic literature, arranged according to the Talmud, by Mordekhai ben Hillel haKohen, d. 1298, of Germany. It exists in two recensions, a longer one and a shorter one often printed with the Talmud. (Elon 1249.)

18. Of Spain and Egypt, late 15th - early 16th centuries (Elon 1302).

19. A collection of responsa arranged according to Tur and Shulhan Arukh, by Hayim Benveniste, 1603-1673, of Salonika, Constantinople and Izmir (Elon 1434f.)

20. A fuller citation is given in Otsar haPoskim 18:218, note 7 on Even haEzer 68:7.

21. Ya'ir Hayim Bacharach, d. 1702.

22. A commentary on the Talmud drawing on statements of rishonim, by Yaakov Yehoshua Falk of Cracow (1680-1756) (Elon 1129).

23. See Entsiklopediya Talmudit 14:26 ff., s.v. hazakat kashrut, where the term and its uses are explained. The term is not found in the Talmud but originates with the rishonim.

24. See the quotation and discussion of his distinction in Otsar haPoskim 18:218, note 7 on Even haEzer 68:7.

25. See Mishnah Ketubot 1:4.

26. Even haEzer 7:6 (based on Mishnah Ketubot 2:5.)

27. Even haEzer 7:7; commentators ad loc.

28. He says in the first responsum about Rivkah that he dealt with this question in an earlier responsum; this is probably it.

29. See Entsiklopediya Talmudika s.v. anusah



APPENDIX

REFERENCES

Hebrew and Aramaic Sources

Landau, Yehezkel Segal. Noda biYehudah. Mahadura Kama, New York: Halakhah Berurah, 5727. Mahadura Tinyana, Warsaw: Yitzhak Goldman, 1882 C.E.

Entsiklopediya Talmudit. Edited by Shlomo Zevin. Jerusalem: Hotsa'at Entsiklopediya Talmudit, 1949 C.E.

Otsar haPoskim (vol. 18). Jerusalem: Otsar haPoskim, 5752.

Ashkenazi, Shmuel. Otsar Rashei Tevot. Jerusalem: Rubin Mass, 1978 C.E.

Tur (Even haEzer, part 1). New York: Avraham Yitzhak Friedman, 1962 C.E.

Knesset haGedolah (Even haEzer, part 2). Jerusalem: Keren l'hotsa'at kol sifrei “Knesset haGedolah”, 5723.

Mishneh Torah l'Rabbenu Moshe ben R. Maimun (Sefer Kedushah); includes commentaries. Jerusalem: Yeshivat Ohel Yosef, 5746.

Pnei Yehoshua (part 3). Jerusalem: Shiloh, 5730.

Shulhan Arukh, Even haEzer (with commentaries.) New York: Avraham Yitzhak Friedman, 5726.

Torat Hayim: Hamishah Humshei Torah (includes Ramban's commentary). Jerusalem: Mossad Harav Kook, 1993 C.E.

Talmud Bavli (includes Mordekhai). New York: Hotsa'at haTalmud, 1958 C.E.

Talmud Bavli, Steinsaltz Hebrew edition (includes Tosafot with punctuation). Jerusalem: Hamakhon haYisre'eli l'Firsumim Talmudiyim, 1975 C.E.

Talmud Bavli, English/Hebrew edition. Edited by I. Epstein. London: Soncino, 1971, 1985.

Other Sources

Alcaly, R. The Complete English-Hebrew Dictionary; The Complete Hebrew-English Dictionary. Israel: Massada, 1990.

Donath, Oskar. B?hmische Dorfjuden. Br?nn: J?discher Buch- und Kunstverlag, 1926.

Elon, Menachem. Jewish Law. Philadelphia: JPS, 1994.

Encyclopaedia Judaica. Jerusalem: Keter, 1971.

Frank, Yitzhak. The Practical Talmud Dictionary. Jerusalem: Ariel, 1992.

Jastrow, Marcus. A Dictionary of the Targumim, the Talmud Babli... Reprinted, Israel, no publisher, n.d.

Katz, Jacob. Tradition and Crisis. New York: Schocken, 1993.

The Mishnah (Seder Nashim). Hebrew text with English translation of text and commentary by Pinhas Kehati. Jerusalem: WZO, 1992.

Marcus, Jacob R. The Jew in the Medieval World. New York: Atheneum, 1977.

Steinsaltz, Adin. The Talmud: A Reference Guide. New York: Random House, 1989.


Citation Format

Lewis, Justin Jaron. (1999). Women's Voices, Men's Laws: The Halakhic Process and Three Women's Accounts of Rape . Women in Judaism: A Multidisciplinary Journal: 2, 1. [iuicode: 5.2.1.5]



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