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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.
Reb Dovid, thank you again for your very interesting questions.<<
---
Sam asks:
Rebbe,
The story of pilegesh b'giva certainly involved rape and in fact seemed to
be gang rape without yichud. That probably would have been a good time for
such a gezeyra and even a gezeyra of a group being misyached with a woman.
Instead there was a massacre of shevet Binyamin.
Thoughts?
----------------------------------------------
The Kollel replies:
Sam! Shalom Aleichem!
1) It would have been problematic to make a Gezeirah on a group being
Misyached with a woman, because the Mishnah in Kidushin 80b states that one
woman may be alone with twi men.
2) Even though Rav Yehudah there says that the Mishnah applies only to
Kesherim, and if the men are suspected of immorality then one woman may not
be alone even with ten of them, nevertheless it would seem that this law
should only be told to the modest women, because this type of man would not
listen anyway to the Halachah.
3) In reality, the Gezeirah that followed the incident of Amnon and Tamar
referred to Yichud with a single woman, while the Pilegesh was a married
woman, so it would seem that there was already a Torah prohibiton against
Yichud with her before the time of David ha'Melech and his Beis Din.
Kol Tuv,
Dovid Bloom
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