Tuesday, 24 March 2015

Ketubot 51: More on Sustaining Women; Consent and Rape

In ancient Jewish communities, only men and boys inherited from their fathers.  Women could inherit in very limited circumstances.  Movable property, non-guaranteed inheritance, is given to girls while land, guaranteed inheritance, is generally given to boys.  But what should be done if parents died, leaving two orphan siblings, a boy and a girl, and an inheritance of land?  Should only the boy be sustained by the inheritance?  The rabbis obligate brothers to sustain their sisters in these cases; boys are given more than their ordinary share of inheritance to ensure that they care for their sisters.  This is the case with adult women as well.  If the only inheritors are adult women, they are given the movable property.

If a marriage contract stipulates sustenance above and beyond that in the standard ketubah  women can claim the right to inheritance based on that ketuba.  But they can only claim property and not movable property.

A new Mishna teaches us that men cannot cheat women out of their rights by drawing up substandard ketubot.  Regardless of whether or not the ketuba states otherwise or says nothing:

  • she should be redeemed if held captive;
  • she should be redeemed and returned to her home if held captive as a kohenet
  • she should be given 200 dinars even if promised only 100 dinars
  • her medical expenses should be paid and she should be cared for until she is not bedridden if she falls ill
The Gemara states a number of reasons that these guidelines are reasonable.  Intercourse without having stipulated the appropriate amount in the ketuba is considered to be licentious intercourse.  The rabbis tackle the question of whether or not promissory notes are valid different circumstances.  They look at more detailed halachot regarding the transfer of property, liens, and contracts.

We are told that an Israelite's wife who is raped is allowed to return to her husband according to Rava. Rava is disagreeing with Shmuel's father, who teaches the opposite: if a wife is held captive, she cannot return to her husband because of the risk that she consented to intercourse.  However, our halacha follows Rava: even if a woman consents eventually, if she refuses at the start of the act, it is rape, and thus she is allowed to return to her husband. 

The remainder of our daf considers the more specific circumstances of each rape.  Might she have in fact been interested in intercourse?  Might she have believed that the rapist would marry her?  Perhaps the victim of rape was actually interested in intercourse with the rapist because of his status?  Rav Yehuda (and the Ramban) both convince their colleagues that women would not wish to be raped and acquiesces out of fear.   While the rabbis have many misgivings about listening to the experiences of women who are taken captive, the halacha reflects the more powerful position. Ultimately women's dignity is upheld to some degree.

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