After a discussion about walking on grass on Shabbat, the Talmud switches to another topic entirely. Spousal rape:
עירובין ק, ב
ואמר רמי בר חמא אמר רב אסי אסור לאדם שיכוף אשתו לדבר מצוה שנאמר ואץ ברגלים חוטא
Rami bar Chamah said in the name of Rav Asi: It is prohibited for a man to force his wife in the conjugal mitzvah, [i.e., sexual relations,] as it is stated: “And he who hastens with his feet sins” (Proverbs 19:2). [The term “his feet” is understood here as a euphemism for intercourse.]
This statement of Rav Asi is codified in all of the major codes of Jewish law. And as we will see, it is cited in a decision of the Israeli Supreme Court which ruled spousal rape to be, well, rape. First, Maimonides, in his Mishnah Torah:
משנה תורה, הלכות דעות ה׳:ד׳
וְלֹא יֶאֱנֹס אוֹתָהּ וְהִיא אֵינָהּ רוֹצָה אֶלָּא בִּרְצוֹן שְׁנֵיהֶם וּבְשִׂמְחָתָם
A husband may not force himself sexually on his wife, if she does not consent. Rather [intercourse] should be with the consent and happiness of both husband and wife…
The Shulchan Aruch (Code of Jewish Law) addresses this in two separate rulings:
שולחן ערוך אבן אורח חיים ר״מ:י׳
אם הי' לו כעס עמה אסור לשמש עד שיפייסנה ויכול לספר עמה קודם תשמיש כדי לרצות
A man is forbidden to have intercourse with his wife if he is angry with her…
שולחן ערוך אבן העזר כ״ה:ב׳
ולא יבעול אלא מרצונה ואם אינה מרוצה יפייסנה עד שתתרצה
He may not have intercourse without her consent, and if she is not interested he should appease her until she is interested.
A History of Spousal Rape Law
So spousal rape (also called marital rape) has been forbidden in Judaism since talmudic times. But other legal traditions did not consider it a crime until recently. Take for example, criminal law in England, as outlined in The History of the Pleas of the Crown (vol. 1, ch. 58, p. 629), written by Lord Hale and published in 1736.
But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.
Hale had died 60 years earlier, but as Chief Justice his words reflected common law of the time. It remained the law of the land until it was formally overturned by a ruling in Britain’s House of Lords in 1992, which found that there were no grounds against “declaring that in modern times the supposed marital exemption in rape forms no part of the law of England.”
“The remaining and no less difficult question is whether, despite that view, this is an area where the court should step aside to leave the matter to the Parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.”
Spousal Rape In ameRican law
In 1962 the American penal code still exempted spousal rape as a crime. Back then a man could only be guilty of rape if the victim was “not his wife”:
§ 213.1. Rape and Related Offenses. (1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if…
This changed over the next thirty years, and today spousal rape is recognized as a crime in all fifty states, although the circumstances and reporting requirements vary, and they are sometimes different to those in which the victim is not the spouse.
In New York for example, the exemption of spousal rape was ruled unconstitutional in 1984, in a ruling from the New York Court of Appeals. A man had forced sexual intercourse with his wife while they were separated (and after the wife had obtained a protection order from the court that required him to move out and remain away from the family home). The husband raised the spousal exception as a defense for rape. Here is part of the that ruling:
We find that there is no rational basis for distinguishing between marital rape and non-marital rape. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny. We therefore declare the marital exemption for rape in the New York statute to be unconstitutional.
Spousal Rape in Israeli Law
In 1980 Israel’s Supreme Court ruled that spousal rape was a crime as heinous as any other kind of rape. One of the three justices, David Bechor (1910-2000) cited a number of Jewish sources, including Maimonides’ Mishnah Torah and the Shulchan Aruch. He also cited Ravi Asi on this page of Talmud, as well as a number of contemporary rabbis. Here is an excerpt of the opinion of Justice Bechor, and you can read the entire decision here.
...סקירת התלמוד מלמדדת אותנו, שקיון יחסי אישות באונס אינו מותר והנו בגדר עבירה...המסקנה אליה הגעתי, עולה בקנה אחד גם עם עקרונות היסוד של כבוד האישה כאדם חופשי ולא כשפחה, הנתונה לחסדי בעלה בעניין כה רגיש ועדין, עקרונות אשר, לדאבון הלב, לא מומשו בחקיקה ובפסיקה של מדינות נאורות ומתקדמת בעולם
A review of the Talmud teaches us that forced sexual relations are not permitted and are unlawful…the conclusion at which I arrive is also in keeping with the fundamental principles that a woman is to be respected as a human being and not as a servant, who depends on her husband’s kindnesses in this sensitive area. Sadly, these principles have not been enshrined in the laws of many enlightened and advanced nations…
There are, regrettably, areas in which Jewish marital law has not caught up with modern notions of justice and equality. But on the subject of spousal rape Jewish law set a precedent which was adopted only hundreds of years later by modern western legal systems. Rav Asi’s ruling, cited by the Israeli Supreme Court, is succinct. No means no.
