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.”
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.
