Yefat to'ar and contemporary sexual violence

Yesterday’s Torah reading on the subject of the Yefat To’ar – the beautiful captive – took on an acute relevance this year in light of the recent Eilat rape which has horrified Israel. Statistics released in news reports connected to the rape (as well as those reporting the recent #MeToo revelations) demonstrate that what might have once been regarded as unpleasant isolated incidents are actually symptoms of a widespread societal sickness.

People tend to offer solutions which fit with their existing worldview. Some religious thinkers see the sexual violence as the result of an overly-sexualised society in which teenagers are prone to translate prevalent, often violent, pornography and sexual images into real life. They argue for increased boundaries between the sexes and a reduction in the exposure of teenagers to powerful sexual images.

On the other hand, those coming from a secular standpoint believe that the plague can be resolved, or at least significantly diminished through education. By seeking to change the way in which society in general and men in particular view women, masculinity and rape culture (see more here).

While Judaism Reclaimed only deals with the phenomenon of Yefat To’ar in passing, I was pressed by a (female) reviewer to include a lengthy footnote on the subject (a footnote she edited ). At first viewing, there seems little in the passage of Yefat To’ar that we may be inclined to take instruction from in terms of combating sexual violence in the 21st-century. Taking a broader perspective however, including the teachings of the accompanying Oral Tradition, I believe that we can draw inspiration from the Torah’s overall approach to the phenomenon.

The basic law of Yefat To’ar conveys the Torah’s belief that mere moral teaching alone may often fail to curb the powerful male sexual desire – particularly in scenarios in which he does not feel immediately threatened by the long arm of the law. However, the laws themselves are to read – according to the Midrashic tradition – in context of their placement alongside the Ben Sorer Umoreh (Wayward and Rebellious Son) to impart the Torah’s severe warning of the consequence of such awful conduct. If this is correct, and any lesson from Yefar To’ar is to be transposed to tackling today’s plague of sexual violence, it may be to combine the two approaches cited above: both to reduce the exposure of teenagers to violent sexual images and culture and to accompany this with re-educating today’s youth towards a healthier frame of mind.

THE JUDAISM RECLAIMED FOOTNOTE:

“Yefat to'ar causes understandable consternation among those fortunate to live in peaceful societies, distant from the sobering realities of warfare, particularly those involving close combat. Even recent warfare, however, provides numerous examples of how human behaviour tends to be affected by the atmosphere of impunity and lawlessness which typically prevails in war zones. From 'comfort women' in the Japan-Korean war to ongoing inter-African conflicts, last century’s world wars, and the recent Arab uprisings, rape has often been regarded as a weapon of war and a legitimate incentive to soldiers risking their lives. Recently even non-combatants such as UN aid workers have been implicated for sexual abuse in lawless war zones.

The question that must be posed is that, if all of the armies partaking in the horrific history of human warfare had adopted the laws and teachings of yefat to’ar, would there have been a considerable reduction in the amount of war crimes relating to mass rape and sexual abuse. Note that the Torah does not encourage or condone the yefat to'ar. It is a framework to guide and coax the soldier caught up in the heat of battle, surviving on his primal instincts, away from immorality and abuse by 'putting off' the captive woman until after the battle when, hopefully, his passions will have subsided, and the morality of real life resumed. Midrashim, quoted by Rashi on the passage of yefat to’ar make it clear that, even when the soldier takes a yefat toarin a permitted manner, this is very much frowned upon by the Torah. In fact, these midrashim teach that the laws of yefat to’ar are deliberately placed adjacent to those of the ‘hated wife’ and ‘wayward and rebellious son’ in order to show the likely effect that taking a yefat to’ar will have on the family life of this weak-moralled person.”

First posted to Facebook 30 August 2020, here.

The Torah's perspective on rape and sexual abuse

For almost a week now, my Facebook feed has been awash with angry posts. Initial reports of rape and abuse perpetrated by prominent children’s author, Chaim Walder, drew understandable outrage. Particularly jarring in recent days though has been the response to his suicide which saw him being feted and praised by leading rabbis and communal figures. In place of clear moral leadership, condemnation and efforts to support victims of abuse, they inexplicably sought to place blame on those who had investigated and publicised his crimes. More on this at the end of the post.

In the lengthy threads I scrolled through on the topic, one claim which surfaced several times is that the Torah does not condemn or provide clear punitive measures for rapists and abusers – and that this might have contributed to the less serious response to Walder’s crimes in some rabbinic circles.

Judaism Reclaimed addresses the Torah’s attitude to rape in the broader context of whether Jewish criminal law could ever provide a practical basis for a country’s criminal law system. Even when it comes to murder, a crime for which the Torah applies a clear capital punishment, the oral tradition places so many barriers to a Sanhedrin’s guilty verdict (such as the murderer needing to receive and verbally accept a warning from witnesses) that it would have been an extremely rare occurrence. Custodial sentences are absent from Torah law. So how would the Torah itself intend for a society to function based on its own criminal law?

The answer is found in the Derashot of the Ran, where the distinct prerogatives of the Sanhedrin and the king (or government) are outlined. The role of the king is like that of a government of any country: to provide a system of justice which maintains law and order. Drawing upon Talmudic passages in Sanhedrin, Rambam teaches that the king is not bound by the Torah's strict evidential and procedural constraints; this allows him to deal with offenders whose activities lie beyond the Sanhedrin's reach. The Sanhedrin, by contrast, is concerned solely with imparting what the Ran terms 'mishpat tzedek amiti' – specific divine attitudes and lessons. For example, divine justice demands that, in order for a death penalty to be declared, there must be absolute certainty that the accused carried out the offence, and did so intentionally (hence the need to deliver a formal warning). However the practicalities of keeping law and order in society require the Sanhedrin’s system to coexist with an effective governing system.

Thus the Torah’s criminal law was never intended to operate as the sole basis for running a country. Biblical passages describe kings such as David And Solomon dispensing practical “governmental” justice, in a system which includes jail sentences to keep dangerous convicts (and pesky prophets!) off the streets.

It is against this backdrop that Judaism Reclaimed examines the Torah’s approach to rape. Aside for a fine which is payable in very specific cases, the rapist – like the perpetrator of any violent crime – must fully compensate his victim for any pain, humiliation and other losses suffered. Quite apart from these basic compensatory measures, however, which are the remit of the Sanhedrin, we must also consider the important issue of maintaining law and order by preventing dangerous and violent individuals from threatening society.

What sort of attitude and reaction to sexual violence do we find being taken by governmental bodies in the Torah?

The rape of Dinah by Chamor led to a death penalty being imposed not merely on the perpetrator but also on all apparent accessories (“shall our sister be made like a harlot?”). A further example is that of Amnon’s rape of Tamar, a crime which was avenged through Absalom’s killing of Amnon leading to a fall-out which eventually spiralled into national rebellion.

Perhaps the most powerful biblical passage when examining current events, however, is the tragic incident of pilegesh b’Give’ah — the gang-rape of a concubine— towards the end of the book of Shofetim. For readers of one of Tanakh’s most harrowing passages, the reaction of the religious and political leaders of the day offers at least a crumb of comfort: the nation unites to demand that the perpetrators be brought to justice “for they committed lewdness and disgrace in Israel”. When the men are not handed over, the other tribes rally behind Pinchas – the leading sage of the generation – to declare war on the entire tribe of Binyamin which is sheltering the abusers.

For readers of the harrowing media accounts of Walder’s crimes last week, however, no such comfort and moral clarity was provided by our rabbinic leadership. Pinchas declared war against the tribal leaders of Binyamin for refusing to hand over those who sexually abused a concubine – a woman who, it can be presumed, came from the lower strata of ancient Israelite society. Our rabbinic leaders, by contrast, have attempted to close ranks behind the reputation of a powerful abuser and declare war, instead, on his vulnerable victims.

One of the clearest and most consistent messages we are taught by our prophets is the religious and moral duty to stand up for the weakest members of our communities. Not to allow the “strangers, widows and orphans” to be abused and downtrodden by society’s most powerful members.

At a time when those who claim to speak in the name of the Torah are doing the very opposite of this, protecting the forces of evil by attempting to squash and silence their innocent victims, we are all required to speak up and protest this dangerous desecration of God’s name and give voice to those who are being greatly harmed by it.

First posted on Facebook 2 January 2022, here.