Wednesday 11 March 2015

Ketubot 38: Betrothed, divorced and young - who gets the fine if she is raped?

Before we begin a new Mishna, the rabbis conclude this iteration of their thoughts on punishing one crime with two punishments.  They note that killing a person accidentally using an upward motion is not punished severely (with exile) because it is considered to be difficult to achieve such a death. The resulting death must have been a true mistake.  

Secondly, the rabbis remind us that "an eye for an eye" in fact recommends payment rather than exacting revenge.  If someone tries to remove another person's eye in revenge, a life could be taken in error.  Thus we would be looking at "a life for an eye".  Instead, that verse teaches us to be moderate as we evaluate damages.

The new Mishna is fascinating.  We are taught that a young woman who is betrothed and divorced does not receive a fine if she is raped after the divorce.  Rabbi Akiva disagrees.  In fact, she receives the fine herself if she is no longer the property of her father nor her ex-husband.

The Gemara considers the different circumstances of young women who are betrothed, young women who are not betrothed and grown women.  The fine for raping a young woman who is not yet betrothed is paid to her father for he is the one who loses money when he finds a match for his daughter who is no longer a virgin.

Rabbi Akiva considers the fine for raping a young woman to be fifty silver coins as that is the fine for the crime of seduction.  He looks to Exodus 22:15, if a man seduces a virgin who is not betrothed as his prooftext.  Why would "who is not betrothed" be a verbal analogy for  a larger group of young women?  And why would "virgin" be used to exclude all young women who are not virgins?  The Gemara walks through some of the reasons for this prooftext.  One comment tells us that a woman's body changes after betrothal; there seems to be an understanding that women's bodies will change over time. Whether this is referring to the shape of women's bodies or the status of their hymens is not clear.

The Gemara questions Abaye: how could he be quoted saying two opposite things in two baraitot?  He says that a betrothed and divorced woman receives the fine for rape.  He also says that that same woman does not receive the fine.  The Gemara teaches a number of possible resolutions: the betrothal could be in the past or the present; the rapist could be stoned for the rape of a betrothed woman while also being subject to the fine, etc.

What if the young woman dies before she is given the fine?  Is the fine disregarded?  Is she considered a grown woman from the grave and the fine is given to her estate, ie. to her son, if she has one?  Is she still considered a young woman from the grave and thus the fine is awarded to her father?  The rabbis consider whether or not a young woman becomes a grown woman simply through living for those six months following puberty.  Does she continue to 'grow' into a grown woman in the grave?

Fascinating legal questions stemming from horrific, not simply logic-based, circumstances.   



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