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THE DAFYOMI DISCUSSION LIST
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Rosh Kollel: Rabbi Mordecai Kornfeld
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Re: Sanhedrin 021 Gezeirah of Yichud after Amnon and Tamar
David Goldman asked:
>>Does the fact that the gezeyra against yichud with an unmarried woman was
made after the mayse with Amnon, and since there is no law from the Torah
as a lav for rape, mean that this was the FIRST case of rape? (With regard
to rape, there was the mayse of the Pilegesh Bagiva which was a different
situation.) And since rape by necessity takes place in yichud, WHY wouldn't
the gezeyra have existed before because of the yetser harah, unless
technically raping a pnuya wasn't considered any kind of aveyra?
If there are no two eydim or hasroa in a case of rape, how could the man be
made chayav to marry her or pay a fine? Indeed, by definition rape is
coercion and passion on the spur of the moment, so it is unlikely there
could be eydus and hasroa.
In terms of Tamar, why did she tell Amnon not to send her away AFTER she
permanently injured him with a hair and hated her? And if she was concerned
for her own shame WHY did she want to then publicize the whole inyan
instead of hide it from the public instead of leading to a chilul hashem
affecting the reputation of Dovid and his family?!<<
The Kollel replied:
>>1) I will first address your questions about rape.
a. There is a law in the Torah against rape. The verse in Devarim 22:28
states that if a man raped a single girl, he must pay 50 silver Shekalim,
he must marry the girl, and he may never divorce her. It is reasonable to
assume that the episode of Amnon and Tamar was not the first rape ever.
b. We see in Devarim 22:25 that rape takes place in a field. Even though a
field is not necessarily a situation of Yichud, nevertheless rape can
happen there.
c. Even though rape is forbidden by the Torah as we have seen, it does not
follow automatically that a Gezeirah would be made against Yichud so that
one should not come to rape. A lot of the Gezeiros of the Rabanan were made
only in later generations. I suggest that since rape was an unusual
circumstance in the early days, Chazal did not see that it was necessary to
make a Gezeirah of Yichud to prevent it from happening (see Beitzah 2b,
"Milsa d'Lo Shechichah Lo Gazru Bah Rabanan"). However, the incident of
Amnon and Tamar was extremely famous (or, more accurately, infamous), so
Chazal decided that since this terrible thing had happened it was necessary
to strengthen the Halachah and be more stringent and prohibit Yichud also
with a single girl.
d. The Rambam (Hilchos Na'arah Besulah 1:2) writes that if the Bi'ah took
place in a field, it can be assumed that it was rape unless two witnesses
testify that she consented. The Kesef Mishnah cites the Migdal Oz who
writes that the situation is where two witnesses saw from a distance that
Bi'ah took place. However, the witnesses do not know whether she consented
or not. In such a case, we say that if it happened in town we assume that
it was not rape, because otherwise she should have screamed out. If it
happened in the field, we assume that it was rape, as Devarim 22:27 states
that she may have screamed out there but nobody was nearby to save her.
2) I will now attempt to relate to Tamar's behavior.
a. The worst part of Amnon's attitude after the act had happened was that
he did not do what the Torah (Devarim 22:29) says the rapist must do once
such a thing has taken place. The Torah states, "She shall be his wife;
because he has afflicted her he may not send her away for the rest of his
life." Amnon was doing exactly the opposite of what the Torah says he was
obligated to do, and the fact that he so blatantly violated the Torah
constituted no less of a Chilul Hashem than the bad reputation given to
David and his family.
b. Tamar was certainly entitled to stand up for her rights. The Aruch
la'Ner here (21a, DH v'Asa'oso) explains that all that Tamar wanted was to
stay with Amnon and that he should fulfill the Mitzvah of the Torah to keep
her as his wife. However, the problem was that since he was a prince he did
not want to take a wife who was the daughter of a Yefas To'ar. He was
interested in a wife of better pedigree. This was why he did not want to
listen to her before the deed happened when she begged him to speak to the
king, who would not prevent the marriage.
c. In addition, Tamar was also protecting the rights of all women. This is
hinted at by the Gemara here (end of 21a) which states: "Tamar erected a
great fence at that time. They said, 'If such a thing can happen to royal
girls, then daughters of average citizens certainly should protect
themselves. If such a thing can happen to a modest girl, then the immodest
ones should certainly be careful." The Gemara seems to be telling us that
Tamar did a good thing when she wept and screamed out. Rashi explains that
her behavior made an impression on other women and made them realize that
they certainly should be careful.
Tamar's positive behavior led to the Gezeirah of Chazal on Yichud with
single women, and she merited the Zechus of causing this Din.
3) I am now going to deal with the question of witnesses and warning for
rape.
a. First, I should clarify what I wrote above, in 1-d.
The Rambam (Hilchos Na'arah Besulah 1:8) writes that the rapist is not
liable for the fine of the Torah unless there are witnesses. The source for
this is the Mishnah in Kesuvos 41a that states that one does not pay the
fine of 50 Shekalim upon one's own admission, but only upon the testimony
of witnesses.
b. However, we mentioned above that the Kesef Mishneh writes that it is
sufficient that the witnesses saw what happened from a distance. (This is
also stated by the Ramban, end of Devarim 22, referring to an incident of
consent involving a Na'arah Me'urasah.)
c. However, the Rambam continues and writes that Hasra'ah is not necessary
for rape. This is cited by the Tur (Even ha'Ezer 177:5). The Beis Yosef
there and Perishah (#14) write that the reason is that warning is necessary
only when corporal punishment is administered. Since this is not the case
with "Ones," Hasra'ah is not required.
I personally do not understand this very well. Since the rapist is never
allowed to divorce his victim, we would think that if he was not informed
and warned about this Din in advance, he will later argue that he would not
have done it had he known about it. To live with the wrong woman for one's
whole life could be just as bad a punishment as lashes (or worse), and thus
one could argue that just as Hasra'ah is generally necessary before a
physical punishment is administered, it is necessary before a wife is
forced upon a husband. I would also suggest that there might be a different
reason for why the Rambam writes that the rapist does not require warning.
This is because the Gemara in Makos 6b states that Hasra'ah is necessary to
ensure that the crime was done deliberately and not b'Shogeg. Since
everyone knows that rape is forbidden, and the act can only be done
deliberately, it is not necessary to give Hasra'ah for it.)
In summary, witnesses are required, but warning is not.
4) Now, finally, to the question of the earliest known rape: I found a very
interesting comment by one of the Rishonim, the Chizkuni on Shemos 2:12,
where Moshe Rabeinu killed the Mitzri. The Chizkuni writes that the reason
why the Mitzri was Chayav Misah is that he raped married women. He writes
that Hasra'ah was not necessary, as we learn from what Hashem said to
Avimelech (Bereshis 20:3) when he captured Sarah, "You will die because of
the woman that you have taken." We see that he deserved to die even without
Hasra'ah.
In summary, the first attempted rape may have involved Avimelech, while the
Mitzri killed by Moshe Rabeinu was actually guilty of perpetrating the act.
<<
David Goldman asked:
>>Thank you very much. Just to clarify: Amnon decided that he was not
actually chayav to marry her after she injured him, simply because there
were no witnesses and she did not cry out??
Tamar agreed to marry him, and then inadvertently injured him, so he
decided he could not be required to marry her since he could not now have
children anyway, and she hadn't cried out, and there were no witnesses..
Yet she then still asked him not to send her away despite the injury and
hatred.
It's seems somewhat confusing....
Isn't it possible he originally had a ruchniusdike kavvana that would
amount to having his neshoma tied to her forever by technically agreeing to
marry him, and as the bechor he could father mashiach, even if the
circumstances of a chassena were peculiar?
Wasn't there a degree of consensual activity by Tamar because she actually
verbalized her willingness to marry him and of course did not cry out? As
some hold, because she was a technical giores he couldn't imagine asking
his father for permission to marry her, otherwise he surely would have done
so. Thus perhaps he thought he could do a mitzvah ba be'aveyra....
I thought the gezeyras of yichud were simply because of the yetser hora.
But I read that the Anshei Knesses Hagedola prayed to be mevatel the yetser
hora that existed even for kroyvim. If so, then that means that there was a
time when there was no issur yichud even with the chashash of the yetser
hora. That itself is a shtikel chiddush, I.e. that in the early times
despite the yetser there was no issur with a besula, so the question is why
not.
Especially if it could indeed lead to a case of rape or intimacy without
kiddushin which isn't worse than intimacy with an eshes ish without eydim
etc.<<
The Kollel replied:
>>1) Tamar wanted to marry Amnon but under no circumstances did she agree
to extra-marital relations.
I will relate first to the fact that she did not cry out. I think we will
understand this better if we look at the Ramban at the end of chapter 22 of
Devarim. The Ramban writes that although the Torah writes that if she did
not cry out in the city we assume that she consented, while if it happened
in the field the fact that she did not cry out does not prove that she
consented, nevertheless it does not necessarily depend on the crying. He
writes that the Torah is merely describing the standard case, but what it
really depends on is whether there were people present who could have saved
her. If such people were present, she would be considered to have consented
whether it happened in the city or in the field, but if there was nobody
there to save her, then we consider it as rape both in town and outside
town.
The Ramban continues and writes that if we see a girl who fights against
the assaulter with all her strength and weeps and grabs his clothes and his
hair in an attempt to save herself from him but she does not know how to
scream out, why should she be punished for what happened? He concludes that
one must say that even if crying out might have helped, when the Torah
mentioned screaming it was merely describing a standard case ("Diber
ha'Kasuv b'Hoveh"), but if a woman did all she could to save herself but
for some reason did not scream, we do not conclude that she consented.
It seems to me that the description of the Ramban is very suitable to what
happened to Tamar. Beforehand she pleaded with Amnon not to do it. Then the
verse says that Amnon was stronger than she and he afflicted her. This
suggests that there was a physical fight and Amnon was simply stronger.
There might have been some practical reason why she did not cry out
(possibly Amnon covered her mouth), but the Ramban stresses that simply the
fact that she did not cry out does not prove her consent, if other evidence
shows that she resisted.
2) It does not seem that the fact that there were no witnesses who actually
saw the Ma'aseh should make a difference. Everyone knew that it happened
and, as far as I know, there is no evidence to suggest that Amnon tried to
deny it. In addition, as we saw in a different reply, the Rambam (Hilchos
De'os 6:6) describes both Avshalom and Amnon as Resha'im, while the Gemara
in Sanhedrin 21a (last line of page) calls Tamar a "modest woman." It seems
that Tamar was in the right and Amnon was in the wrong.
3) Tamar deliberately injured him. A woman has a right to defend herself
against an assaulter (see Sefer Chasidim #702).
There is still more to write, but I will close here for the moment.<<
---
The Kollel adds:
1) I will come back now to Tamar's intentions. Let us look again at the
Aruch la'Ner who explains this largely according to the simple meaning of
the passage.
The Aruch la'Ner points out that we see from the verses that Tamar really
initially wanted to marry Amnon. Tamar was in a rather unusual position,
because while she was the daughter of the king, on the other hand she was
disqualified from marrying into the Kahal since her mother was a Yefas
To'ar. The fact that Amnon had fallen in love with her seemed to open up a
possible answer to her predicament. What Tamar really wanted was to marry a
well-related Jew and Amnon would be a perfect candidate. It is not so clear
what Tamar was thinking when she said to Amnon that he should speak to the
king and that the king would not prevent the marriage. The Abarbanel writes
that she was playing for time, but she knew that David would not actually
allow the marriage because she was the daughter of a Yefas To'ar. I would
like to suggest a differrent possible expanation, that Tamar was hoping
(even though she might not have been so well-informed) that since Amnon so
much wanted her that it might be possible to find some Heter to marry her.
At any rate, Tamar was very eager to marry Amnon, but, as the Gemara
states, she was a modest woman and therefore did not want at all any casual
relationship. This is why she pleaded with Amnon against this, but just
because she was eager to marry him does not in any way suggest that she
consented to what actually happened.
I think the simple explanation of why she made Amnon a Krus Shafchah was
merely self-defense. However, the Aruch la'Ner says a Chidush and suggests
that the fact that she made him a Krus Shafchah was also part of her plan
to marry him. She knew that Amnon would not want to marry her due to what
he considered as her inferior status, so she thought that if she he would
make him into a Krus Shafchah, thereby giving him, too, an inferior status,
he would have to marry her, since the Torah (Devarim 23:2) states that a
Krus Shafchah may not marry a kosher Jewess.
After Amnon sent her away, she was still hoping that he might calm down and
come back to his senses and agree to observe the law of the Torah not to
send away his victim for the rest of his life.
She still had no objection to staying with him and insisted on receiving
the right that she was entitled to according to the Torah, of staying with
the man who had afflicted her. Tamar knew that if Amnon sent her way, her
life was ruined. She had been defiled and no man of a good spiritual
quality would now agree to marry her.
2) Now to the question of what prohibitions of Yichud existed before the
episode of Tamar and Amnon: If we look at the Tur (Even ha'Ezer 22:1), we
find that there is Torah prohibition against Yichud with an Ervah, while
Chazal enacted a prohibition against Yichud even with a single woman
(Penuyah). The Perishah there (#1) adds that there is a Torah prohibition
against Yichud not only with an Ervah but also with any woman who is
forbidden mid'Oraisa. We see from this that Yichud with a Penuyah is not
forbidden mid'Oraisa. (However, a Penuyah is presumably also a Nidah, and
thus Yichud with her is forbidden mid'Oraisa for that reason.)
According to this, we can understand why -- before the Ma'aseh of Amnon and
Tamar -- there was no prohbition on Yichud with a single woman; it would
have been a Gezeirah on a Gezeirah, which Chazal do not make.
In my next reply I hope to deal, b'Siyata d'Shmaya, with the issue of
Yichud with close relatives before the Anshei Keneses ha'Gedolah
successfully eliminated the Yetzer ha'Ra for this.
Kol Tuv,
Dovid Bloom
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