Ketubot 39: Pain in Intercourse: Rape, Seduction, and Marital Sex

A katana, a young woman, is said to be between the ages of eleven and twelve years and one day.  This is disputed, though, because it might be only six months from the development of two pubic hairs until that young person is considered to be a na'ara, a young woman.  Some rabbis argue that a katana is one of the three groups of women who are allowed (or even encouraged) to use a resorbant cloth as birth control.  This is because young women who are able to become pregnant often do not survive childbirth, and thus their lives are saved through using this birth control.*

The rabbis ask these questions regarding the status of these young women because they want to determine who might receive a fine if that young woman is raped.  The rabbis continue to argue about whether the father of a na'ara receives the fine or whether the woman herself receives the fine.  What if she is married by the time the fine is paid?  Does it go to her father, to her husband, or to her?  Abaye notes that a grown woman receives the fine herself, and that having a child renders one a grown woman even if she is young.   What if she dies by the time the fine is paid?  Does the fine go unpaid?  Is it given to her father or to her new - and newly widowed - husband?

A new Mishna teaches the differences between punishments for rape and for seduction.
Seducers must pay a fine, pay for humiliation and degradation, pay when he releases her but not immediately, and he must release her only if he wants to release her. Rapists must pay a fine, pay for humiliation and degradation. But he also must pay for pain.  He must pay immediately, and he must marry her with the consent of the woman and her father.  However, he cannot marry her if she is not fit to marry him (ex. a mamzeret, etc.).  The rabbis say that a rapist "drinks water from his vessel" -- he has chosen to rape her and how he must sustain her, however unpleasant for him that might be.

The rabbis wonder what is referenced by "pain".  Is it the pain of slamming her onto the floor?  Is it the pain of spreading her legs? Is it the pain of first intercourse, tearing the hymen?  Commentaries note that the pain of first intercourse might not be considered, for it would have happened with her husband eventually.  And what if a woman argued that she never would have married, as women are not obligated to marry?  In that case she would not be eligible to receive the fine at all.  So women are stuck. 

Is there pain when a woman is seduced?  Or only when she is raped?  What causes the pain in rape?  Is the pain of intercourse different if a woman is consenting?  Does the pleasure derived from consenting intercourse override the experience of pain?  

In a fascinating passage, the rabbis share the words of women in their lives.  Abaye says that his mother taught him that the pain of first intercourse is like hot water poured on a man's bald head.  Rava says that his wife, Rav Chisda's daughter, told him that the pain was similar to the stab of a bloodletting knife.  Rav Pappa said that his wife, Rav Sura's daughter, told him that the pain was like the feeling of hard bread on one's gums.  The rabbis use women's descriptions of pain to determine that pain from intercourse is not serious if a woman is a willing participant, and thus there is no fine for a seducer for causing pain. 

The rabbis want to ensure that these "sinners do not profit" from their sins.  Both the father and the women who were violated are given the right to refuse marriage offered by rapists or seducers.  The rabbis wonder whether or not these women receive ketubot at all; perhaps the fine is itself the marriage contract.  And because the rapist is not permuted to divorce his wife, could he not make her miserable until she requests the divorce, at which point he is permitted to grant her the divorce?  The rabbis ensure that there is a significant monetary penalty should he construct a reason for their divorce.  

Today's daf is the most protective daf I have read regarding the rights of women.  And though it includes the halachot regarding the rape of children, it actually considers the physical experience of women as a painful ordeal; something that should be punished appropriately. 

* The other two categories of women who can use birth control are pregnant women, who could somehow become pregnant again which would crush the first fetus, and nursing women, who could become pregnant and lose their milk supply, putting the older child at risk.