Ketuvot 29 ~ The Terror of Rape

משנה מסכת כתובות פרק ג משנה א 

אלו נערות שיש להן קנס הבא על הממזרת ועל הנתינה ועל הכותית הבא על הגיורת ועל השבויה ועל השפחה שנפדו ושנתגיירו ושנשתחררו פחותות מבנות שלש שנים ויום אחד הבא על אחותו ועל אחות אביו ועל אחות אמו ועל אחות אשתו ועל אשת אחיו ועל אשת אחי אביו ועל הנדה יש להן קנס אף על פי שהן בהכרת אין בהן מיתת בית דין: 

These are the girls (aged between twelve and twelve and a half) for whom a fine is levied for raping them...

Today we begin to study the third chapter of Ketuvot, which focuses on the damages to be paid to a virgin who was raped, (or seduced,) by a man. These laws were later codified in the Shulkan Arukh, the code of Jewish Law, written by R. Yosef Karo (d. 1575) in sixteenth century Israel. Here they are. Read them carefully.

שולחן ערוך אבן העזר הלכות אונס ומפתה סימן קעז 

סעיף א

 המפתה בתולת ישראל (עד שלא תבגר, והיא מבת שלשה ואילך) (טור הרא"ש), משלם בושת ופגם וקנס. ואם אנסה, משלם עוד צער. ואם נשאה המפתה, אינו צריך ליתן קנס

One who seduces a virgin of Israel before she reaches majority age, which is from three years and onward (Tur, the Rosh) pays embarrassment, blemishing and a fine. And if he rapes her he also pays the pain. And if the seducer married her he need not pay the fine.

סעיף ב

אונס ומפתה, דנין אותה בשלשה דיינים, ובלבד שיהיו סמוכים, בא"י. והאידנא שאין סמוכים, מנדין אותו עד שפייס את חבירו; וכד יהיב ליה שיעור מאי דחזי למיהב, שדינן ליה. (והבת, כל זמן שהיא ברשות אביה, הכל לאביה (גם זה שם). ועיין בטור סימן זה שהאריך בדינים אלו, והרב המחבר קצר בהם, שאינם שכיחין

A rapist or a seducer is judged by three judges, as long as they were ordained in the land of Israel. And now when there are no such ordained judges, we excommunicate them until they appease their fellow. And when they give an amount of money to him that is appropriate, we release their excommunication. And as for a daughter, as long as she is in her father's domain, her father gets everything (ibid). See Tur in this paragraph who discussed this matter at length, and the Shulkhan Arukh abbreviated them, for this is not common. 

סעיף ג

האונס את הבתולה, חייב לישא אותה, ובלבד שהיא ואביה יהיו מרוצים, אפי' היא חגרת או סומא, ואינו רשאי להוציאה לעולם אלא לרצונה. לפיכך אין צריך לכתוב לה כתובה. ואם עבר והוציאה, כופין אותו להחזירה

One who rapes a virgin must marry her, as long as she and her father so desire. Even if she is lame or blind. And he may never divorce her except with her consent. Therefore, he need not write her a ketubah. But if he transgressed and divorced her, they force him to remarry her.

As an emergency physician, I cared for a number of women who have been raped.  I interviewed them, examined them, and collected forensic evidence. The horror of their having been assaulted was, I am sure, compounded by my legally necessary but emotionally gratuitous clinical exam. There is a danger that the talmudic discussion can likewise seem overly clinical. But behind the legal back and forth is a brutal reality. To help keep the victim front and center, let's talk about the crime of rape.

International Rape Statistics

Rape plagues society everywhere. It's really hard to get accurate statistics to compare countries, since reporting rates and definitions of what actually constitutes rape vary. With that caveat, here's what the UN found:

Penalties for Rape

United States. In 2008, there were about 203,000 victims of rape age 12 and older. The penalties for rape vary by state. In New York, rape in the first degree is a felony that carries a penalty of 5-25 years in prison. In New Jersey, first degree sexual assault carries a sentence of 10-20 years. In Massachusetts, rape that results "in serious injury" (doesn't all rape result in that?) is punishable by life in prison, and no less that 20 years if committed by force (isn't that all rape?). The rape of a child under 16 carries a similar penalty. In 1977 the Supreme Court ruled that under the Eighth Amendment, the rape of an adult woman could not carry the death penalty. There are almost 160,000 men in prison for rape in the US.

US. Department of Justice. Office of Justice Programs, Bureau of Justice Systems. Prisoners in 2013.

United Kingdom. Rape carries a penalty of 11-17 years in custody, with a minimum of 10 years in prison if the victim was a child between 13 and 16 years of age.  If the victim was under 13, the starting penalty is 13 years in prison. The average time served for rape in the UK is eight years.

Israel. Rape of an adult carries a penalty of 4-16 years in prison. In addition the victim may receive damages of up to 228,000 NIS. Rape of a child under 16, or carried out with a firearm, or with the assistance of another person, carries a minimum sentence of 20 years (see חוק העונשים התשל׳ז–1977, and later amendments). 

Causes of Intentional Injury by Gender and Population. From Gofin, R. et al. Intentional Injuries Among the Young; Presentation to Emergency Rooms, Hospitalization and Death in Israel.  Journal of Adolescent Health 2000:27:433-44.

In a study of children with intentional injuries treated in Israeli ERs, the rates for rape were 1.5 times higher in Jewish children than Arab children. 

“Although selected cases may reach the ER, it is estimated that between 1-4 in 10 or 20 cases of rape are reported. Stigmatization, fear, and feelings of shame or guilt may preclude rape disclosure by victims or their caretakers.”

— Rosa Gofin. Intentional Injuries Among the Young In Israel, 2000.

Jewish law. Rape (including rape of a child older than three) is punishable by a fine of 50 shekels paid to the father of the victim.  The rapist is required to marry his victim (unless she or her father refuses) and he cannot forcibly divorce her.  In addition, the rapist must pay damages for pain and suffering and monetary loss, the latter based on the lower value a woman who is not a virgin has in the market for marriage. If the rapist marries the victim, some of these fines are not levied. There are no fines for the rape of a child under three, or the rape of an unmarried  woman who is not a virgin. Rape of a married woman is punishable by death.

A President of Israel, A Convicted Rapist

In December 2010, then President of Israel Moshe Katsav was convicted of rape while he had been  serving as Israel's Minister of  Tourism in 1998. The verdict was upheld by the Israeli Supreme Court, and Katsav began his seven-year prison sentence in December 2011. The national shame at this crime was perhaps slightly mitigated by one of its lessons, articulated by Prime Minister Netanyahu, "that all are equal before the law, and that every woman has exclusive rights to her body."

In his commentary to R. Karo's  שולחן ערוך that we read above,  R. Moshe  Isserles (d.1572)  explained that the שולחן ערוך did not detail some of the the laws of rape, because it was such a rare crime - (הרב המחבר קצר בהם, שאינם שכיחין).  How wrong, how very sadly wrong, he was. 

Ketuvot 23b ~ The Cohen Gene

HEllo, I'm Your New Cohen

משנה כתובות דף כג עמוד ב 

וכן שני אנשים, זה אומר כהן אני וזה אומר כהן אני - אינן נאמנין, ובזמן שהן מעידין זה את זה - הרי אלו נאמנין; רבי יהודה אומר: אין מעלין לכהונה על פי עד אחד

Likewise in the case of two men; one says, "I am a Cohen", and the other says "I am a Cohen", they are not believed. If however they testify about one another they are believed. R. Yehuda said: we do not elevate [a person] to the status of Cohen based on the testimony of only one witness....

Being a Cohen comes with rights and duties. They get called to the Torah first, and are given preference to lead Birkat Hamazon.  During Temple times, they got lots and lots of food.  But how do you prove you are a Cohen, and entitled to these privileges?  According to the Mishnah in today's Daf Yomi, (and discussed in detail in the talmudic discussion that follows,) you need witnesses to attest to your status. But what if the Cohen was mistaken about his ancestors? What if the witnesses were being paid to dupe the locals into believing the Cohen was legitimate? Is there an alternative to the methods mentioned in this Mishnah? Perhaps.

The Saturday Night Live Cohen 

My friend Misha Galperin, (the former CEO of the Jewish Federation of Greater Washington and  CEO of International Development at The Jewish Agency) is a Cohen. Only he didn't know it when he arrived in America from the Soviet Union.  Here's what happened, as told to me in a recent email  that he kindly allowed me to share:

Five months after arriving in the US, I am sitting in the lounge of Yeshiva University's dorm watching SNL with my tutor who was teaching me Alef Bet is so I can start classes on Monday.
A skit starts with guest host Leonard Nimoy dressed as Mr. Spock - with ears - and at the end he raises his right palm in the symbolic gesture and says: "Live long and prosper!"
I turn to the tutor and ask him what this gesture means. Why?--he asks. "Because my father taught me this, and his father taught it to him before being murdered by Nazis in 1941. My father did not know what it meant, but he taught me..."

And so Misha learned that he was a Cohen from Saturday Night Live. But not all Cohanim are so lucky. (Fun fact: Leonard Nimoy ז’ל wrote about his decision to give Mr. Spock this priestly hand salute in his 1997 autobiography I Am Not Spock.)  With neither witnesses nor TV to help, is there another way to establish one's genealogy as a member of the priestly class? That's where the Cohen Gene comes in.  

The Cohen Gene

If all Cohanim are descended from Aaron, and the privilege is only transmitted from father to son, then perhaps being a Cohen can be genetically linked to a chromosome that is only passed from father to son. And there is such a chromosome. It's the Y chromosome, and all (fertile) men carry a copy that comes only from their biological father. (Quick recap: girls are XX and boys are XY. So all girls carry one X chromosome from mum and one X chromosome from dad. Boys, on the other hand, only get their X chromosome from mum, and their Y chromosome from dad. This can lead to other problems like hemophilia, which we've talked about elsewhere.) That's exactly what prompted  Karl Skorecki from the Technion, and colleagues from University College London, to analyze the Y chromosome in Cohanim and compare it to the rest of the Jewish population.  In 1997 they published a paper in Nature that looked at a special bit of the Y chromosome called YAP. Actually, they looked at 6 kinds of the YAP haplotype, (a haplotype being what geneticists call bunches of DNA sequences), and compared their frequency in Cohanim and non-Cohanim.    

Skorecki K, et al. Y Chromosomes of Jewish Priests. Nature 1997. 385:32.

As you can see highlighted, the YAP+ haplotype was found in only 1.5% of those who self-identified as Cohanim, but in over 18% of non-Cohanim.  The different frequency was found in both Ashkenazi and Sephardi Cohanim,  a result that the authors claimed was "consistent with an origin for the Jewish priesthood antedating the division of world Jewry into Ashkenazic and Sephardic communities."

“These Y-chromosome haplotype differences confirm a distinct paternal geneology for Jewish priests.”

— Skorecki et al. Nature 1997. 385: 32.

David Goldstein, who now directs a genetics lab at Columbia University, also published a study on the Y-chromosome of Cohanim, using a sample that included the DNA swabbed "from the mouths of sunbathers on the beaches of Tel Aviv." Here is what Goldstein concluded:

Despite the high levels of variation, we could see a clear difference between Cohen and Israelite chromosomes. The most common chromosomes observed in the Israelites (that is, non-Cohen and non-Levite Jews) were found in only 12% of the Israelite individuals sampled. By contrast, more that half of the Cohen Y chromosomes were identical at the sites considered - that is, the majority of the self-identified Cohanim had the same type of Y chromosome. Even more remarkable, this same type of Y was found at high frequencies in both Ashkenazi (45%) and Sephardi (56%) Cohanim. (Goldstein, p.31)

Goldstein named this chromosome type the Cohen Modal Haplotype, and claimed that it showed "definitively" that Cohen status was not adopted (i.e. made up by some, eager for the benefits) but inherited.  And now things started to get really interesting. 

Dating the Original Aaron

So all, (OK, not all, but certainly most) of the approximately 500,000 Cohanim alive today seem to have originated from a common ancestor - a primordial Cohen. And just when did he live? Well, by analyzing small differences in the Cohen Modal Haplotype, and assuming that a generation time is 25 years, Goldstein et al. stated (with a confidence interval of 95%) that the origin of the priestly Y chromosome was "sometime during or shortly before the Temple period in Jewish history."

Not So Fast...

OK, a couple of things need to be noted here, before anyone claims that "genetics proves the Bible." First- as Goldstein himself notes in his book, his numbers may be off, by quite a bit:

Permit me here, after what was for me the first - and still one of the few - real thrills of discovery that punctuate the tedium and detail of science, the necessary reality check. Our results appeared to be a striking confirmation of the oral tradition. It even led to repeated claims in the press that my colleagues and I "found Aaron's Y chromosome." But although three thousand years is our best guess [as to when Primordial Cohen may have lived] the range of possible dates was and is very broad. Given our uncertainty about the ways mutations happen and how fast, we may be off by several hundred years or more in either direction. (Goldstein p.38).

Second, some later work done by Skorecki (he of the Technion 1997 Nature paper) suggests that the class of Cohanim may have had more than one common ancestor.  This work posits that there was not one primordial Cohen, but a few clans of Cohanim, from whom all later Cohanim are descended. (Or more technically stated:"...lineages characterized by the 6 Y-STRs used to define the original Cohen Modal Haplotype are associated with two divergent sub-clades...and thus cannot be assumed to represent a single recently expanding paternal lineage.")

And finally, work from Brigham Young University (and boy, those guys are really into ancestry) reminds anyone looking to do a quick Cohen DNA test to be careful.

The Cohen Modal Haplotype is observed in high frequency within the Cohanim, but also presents with significant incidence in other non-Jewish populations. The occurrence of the CMH in deeply divergent SNP haplogroups also indicates a lack of specificity of the CMH to the ancient Hebrew population. As such, inference of relation to Jewish populations for individuals or groups should be performed with caution when using the original CMH definition, as a false-positive result is likely.

 "A false positive is likely" - in other words, the test may show you are a Cohen, but really...you aren't. 

Genetic Testing - It's Not Just for Cohanim

And now that a Cohen "Gene" may have been identified, what about the rest of us non-Cohanim? Some have used genetic testing to discover a forgotten heritage or find long-lost cousins.  One rather keen family member of Polonsky rabbinic lineage (claiming in passing to be descended from King David, the Kalonymos family, and Rashi) used the presence of a "relatively rare R-M124 haplotype" on the Y chromosome to confirm a common ancestor and find a new marker that represents "Polonsky rabbinic lineage." (I confess I am jealous. My grandfather drove a black London taxi, and last time I checked, Rashi was not one of my known ancestors.) 

It's Not About Your Ancestors, It's About You

רמב"ם הלכות שמיטה ויובל פרק יג הלכות יב –יג 

ולמה לא זכה לוי בנחלת ארץ ישראל ובביזתה עם אחיו? מפני שהובדל לעבוד את יי לשרתו ולהורות דרכיו הישרים ומשפטיו הצדיקים לרבים שנאמר יורו משפטיך ליעקב ותורתך לישראל, לפיכך הובדלו מדרכי העולם לא עורכין מלחמה כשאר ישראל ולא נוחלין ולא זוכין לעצמן בכח גופן, אלא הם חיל השם שנאמר ברך יי חילו, והוא ברוך הוא זוכה להם, שנאמר: אני חלקך ונחלתך

ולא שבט לוי בלבד אלא כל איש ואיש מכל באי העולם אשר נדבה רוחו אותו והבינו מדע להבדל לעמוד לפני יי לשרתו ולעובדו לדעה את יי והלך ישר כמו שעשהו האלהים ופרק מעל צוארו עול החשבונות הרבים אשר בקשו בני האדם הרי זה נתקדש קדש קדשים. ויהיה יי חלקו ונחלתו לעולם ולעולמי עולמים ויזכה לו בעה"ז דבר המספיק לו כמו שזכה לכהנים ללוים, הרי דוד עליו השלום אומר: יי מנת חלקי וכוסי אתה תומיך גורלי

Why did the Levi'im not receive a portion in the inheritance in Israel and in the spoils of war like their brethren? Because they were set aside to serve God, to minister to Him and to instruct the masses about His just paths and righteous judgments... Therefore they were set apart from the mundane matters of the world. They do not wage war like the remainder of the Jewish people, nor do they receive an inheritance, nor do they acquire for themselves through their physical power. Instead, they are God's legion...and He provides for them...

Not only the tribe of Levi, but any human whose spirit moves him and who understands with his wisdom to set himself aside and stand before God - to serve Him and minister to Him and to know Him, proceeding justly as God made him, removing from his neck the yoke of the many mundane things which people seek - that person is sanctified like the Holy of Holies [in the Temple]. God will be his portion and heritage forever and will provide what is sufficient for him in this world, just as He provides for the Cohanim and the Levi'im...

Maimonides, in his Mishnah Torah,  reminds us about what is really important. It's not bringing a witness into town and telling everyone who your ancestors are. And it's not getting a DNA test to prove your stock. It's about searching for religious meaning in a world of materialism.  And that search is open to anyone, woman or man, Jew or not, Cohen, Levi, or even a plain old Yisrael.  

Ketuvot 15a ~ Talmudic Probability Theory

תלמוד בבלי כתובות דף טו עמוד א 

  א"ר זירא: כל קבוע כמחצה על מחצה דמי ..מנא ליה לר' זירא הא? ...מתשע חנויות, כולן מוכרות בשר שחוטה ואחת בשר נבלה, ולקח מאחת מהן ואינו יודע מאיזה מהן לקח - ספיקו אסור, ובנמצא - הלך אחר הרוב, 

R. Zera said: Any doubt about something that is fixed in its place is considered be a fify-fifty chance... Where does he learn this from ? [From a Baraisa which teaches the following. Consider a town in which] there are nine shops, all of which sell kosher meat, and one store that sells meat that is not kosher. If a person bought meat from one of these [ten] stores but he cannot recall from which, his doubt means that the meat is forbidden. But if he found a piece of meat [in the street and he cannot tell from which store it came] he may follow the majority [and assume the meat is kosher]...

As Dov Gabbay and Moshe Koppel noted in their 2011 paper, there is something odd about talmudic probability. If we find some meat in an area where there are p kosher stores and q non-kosher stores, then all other things being equal, the meat is kosher if and only if p > q.This is clear from the parallel text in Hullin (11a) where the underlying principle is described as זיל בתר רובא – follow the majority. Or as Gabbay and Koppel explain it:

“Given a set of objects the majority of which have the property P and the rest of which have the property not-P, we may, under certain circumstances, regard the set itself and/or any object in the set as having property P.
”

— Gabbay and Koppel 2010

In other words, what happens is that if there are more kosher stores than there are treif, the meat is considered to have become kosher. It's not that the meat is most likely to be kosher and may therefore be eaten.  Rather it takes on the property of being kosher. 

We encountered another example of talmudic probability theory only a week ago, on Ketuvot 9a. There, a newly-wed husband claims that his wife was not a virgin on her wedding night. The Talmud argues that his claim needs to be set into a context of probabilities:

1. She was raped before her betrothal.

2. She was raped after her betrothal.

3. She had intercourse of her own free will before her betrothal.

4. She had intercourse of her own free will after her betrothal.

Since it is only the last of these that renders her forbidden to her husband (stay focussed and don't raise the question of a husband who is a Cohen), the husband's claim is not supported, based on the probabilities. Here is how Gabbay and Koppel explain the case - using formal logic:

Oh, and the reference to Bertrand's paradox? That is the paradox in which some questions about probability - even ones that seem to be entirely mathematical, have more than one correct solution; it all depends on how you think about the answer. One if its formulations goes like this: Given a circle, find the probability that a chord chosen at random will be longer than the side of an inscribed equilateral triangle. Turns out there are three correct solutions. Gabbay and Koppel claim that just like that paradox, the solution to many talmudic questions of probability will have more than one correct answer, depending on how you think about that answer.

Rabbi Nahum Eliezer Rabinovitch (1928-2020) was the Rosh Yeshiva of the hesder Yeshivah Birkat Moshe in Ma'ale Adumim.  (He also had a PhD in the Philosophy of Science from the University of Toronto, published in 1973 as Probability and Statistical Inference in Ancient and Medieval Jewish Literature.)  Rabbi Rabinovitch seemed to have been the first to point out the relationship between Bertrand's paradox and talmudic probability theory in his 1970 Biometrika paper Combinations and Probability in Rabbinic Literature. There, the Rosh Yeshiva wrote that "the rabbis had some awareness of the different conceptions of probability as a measure of relative frequencies or a state of general ignorance."

James Franklin, in his book on the history of probability theory, notes that codes like the Talmud (and the Roman Digest that was developed under Justinian around 533) "provide examples of how to evaluate evidence in cases of doubt and conflict.  By and large, they do so reasonably. But they are almost entirely devoid of discussion on the principles on which they are operating." But it is unfair to expect the Talmud to have developed a notion of probability theory as we have it today. That wasn't its interest or focus. Others have picked up this task, and have explained the statistics that is the foundation of  talmudic probability. For this, we have many to thank, including the late Rosh Yeshiva, Rabbi Rabinovitch.

“(The [Roman] Digest and) the Talmud are huge storehouses of concepts, and to be required to have an even sketchy idea of them is a powerful stimulus to learning abstractions.”

— James Franklin. The Science of Conjecture: Evidence and Probability Before Pascal, 349.

Ketuvot 11a ~ Conversion

תלמוד בבלי כתובות דף יא עמוד א

אמר רב הונא גר קטן מטבילין אותו על דעת בית דין. מאי קמ"ל? דזכות הוא לו

Rav Huna said: "A young child [whose father had died and] who is converting may be immersed in the mikveh by order of the Bet Din." Why did he teach this? Because [becoming Jewish] is a benefit...

Joining...and Leaving

How many Jews-by-choice do you know? (Perhaps you are one, or you are dating or married to one.) How many converts to Judaism do you know socially? How many do you pray with during the week and on Shabbat? I’ll bet the number is somewhere in the region of “quite a few, actually.” I know that’s the number I came up with - and that’s not counting all those Jews who I may know but of whose origins I am simply unaware. We are fortunate to live in an era when nearly all of us are blessed to have converts as part of our communities.

It wasn’t always like this. In fact a hundred years ago or so, the question would be different: How many Jewish converts to Christianity do you know? If you lived in Europe in the nineteenth century, or in America in the early twentieth, chances are you’d know – or be related – to several Jews who converted out. 

According to data compiled by Christian missionaries, about 200,000 Jews converted to Christianity during the nineteenth century (but beware, they probably had reason to inflate these numbers). Some 15,000 Polish Jews converted, the majority to Catholicism (here, p 245). Hayyim Zelig Slonimski (d.1904) is a personal hero of mine. He founded the Hebrew-language journal of science, Hazefirah (The Herald), in Warsaw in 1862. His life exemplified how a traditionally observant Jew could combine his interest in scientific matters with his faith. But his son Leonid wasn’t convinced, and converted. Slonimski was by no means the only prominent educator or rabbinic leader whose children left Judaism for Christianity.

“Especially well known in Jewish circles in the modern era are the tragedies that affected such prominent figures as Mendele Mokher Sforim (Yaakov Shalom Abramowitz) whose beloved son converted to Christianity; Shimon Dubnow, Ahad ha-Am and Mordeckai Ben-Hillel HaKohen, whose daughters married into Russian Orthodox families; and Rabbi Eliyahu Klatskin of Lublin, whose son Yaakov, a renowned philosopher and ardent Zionist, abandoned Judaism and married the daughter of a Protestant minister,” (ibid., 31–32.)

Oh, and don’t forget Moshe, son of the founder of the Lubavitch Hasidic dynasty, Rabbi Shneyur Zalman of Lyady. He converted to Christianity in 1820.

The Pew Study

In 2013 the Pew Research Center delivered its Portrait of Jewish Americans. It found that 2% of its 3,475 respondents had undergone some "formal conversion", (though be careful of drawing any big conclusions from this – the margin of error is +/- 3%. I could find no data on this in the 2020 survey). We are proud of that. But it also reported that 22% were Jews of no religion.  That’s a sizeable net loss. In the 2022 survey, that number has increased to 27%.

In today’s daf, we are reminded how to view our heritage – a heritage we may carry either by a deliberate choice or by an accident of birth. Rav Huna tells us that being Jewish is a זכות– a benefit, a privilege, and an honor. If only more of us felt that way.