"Techilato Be-oness Ve-sofo Be-ratzon"

  • Rav Yair Kahn
Translated by David Silverberg
  1. Avuha Di-Shmuel
"Avuha Di-Shmuel said: A Jewish woman who was raped is forbidden to her husband; we are concerned that perhaps she began under coercion ['techilata be-oness'] but ultimately [committed the act] willingly ['ve-sof be-ratzon']… He argues with Rava, for Rava said: Whoever begins under coercion and ends up willingly, even if she says, 'Let him be,' that if he had not approached her she would have hired him, she is permitted [to remain with her husband].  Why?  The inclination has overcome her."
The Gemara thus brings two extreme views concerning "techilato be-oness ve-sofo be-ratzon."  According to Avuha Di-Shmuel, although strictly speaking a raped woman is permitted to stay with her husband, we nevertheless forbid her from doing so out of concern that she eventually consented to the rapist.  On the opposite end, Rava claims that even if this in fact occurred, and the woman actually did commit the act willingly, she is still permitted to her husband, since this consent resulted from an oness (forceful coercion).  This consent therefore cannot forbid her to her husband.  It is worth noting that the Gemara does not mention the middle, most intuitive possibility, that generally a rape victim is permitted to her husband, but if she explicitly expresses her consent, then she is forbidden.  (See Shita Mekubetzet s.v. u-fliga; according to the second interpretation there, this is indeed the position of Rav.)
     Addressing the view of Avuha Di-Shmuel, which is not accepted as halakha, the Gemara challenges this position based on an explicit verse (Devarim 22:26) permitting a rape victim to her husband: "According to Avuha Di-Shmuel, the case of rape where the Torah permitted [the victim to her husband] – where do we find such a case?"  The Gemara replies, "Such as when the witnesses say that she cried from beginning to end."  This entire discussion seems very difficult to understand.  Avuha Di-Shmuel's halakha involves a concern of Chazal, mi-de'rabbanan, that perhaps the woman had willingly betrayed her husband; he certainly agrees, therefore, that according to Torah law a rape victim remains permitted to her husband.  What, then, was the Gemara's initial objection to Avuha Di-Shmuel's position?  The Ritva explains that the Gemara simply wanted to know in which case we may, practically, implement the halakha permitting a rape victim.  Tosefot, however, understood differently, concluding, based on this question, that Avuha Di-Shmuel establishes not a chumra de-rabbanan (stringency enacted by Chazal), but rather a concern of the Torah itself.  Tosefot write: "Even though Avuha Di-Shmuel said, 'chaishinan' ['we are concerned,' which generally refers to a rabbinic enactment], the assumption is that he refers to Torah law."  Although the simple reading of the sugya indeed supports Tosefot's claim, their interpretation is very difficult to accept.  From where did Avuha D-Shmuel derive such a concern of the Torah itself for such a mere possibility, that the victim consented over the course of the rape?
     Avuha Di-Shmuel's view raises difficulties from other angles, as well.  For one thing, it is hard to understand this stringency from the perspective of the woman, a victim of violence whose husband must now divorce her.  From a purely halakhic viewpoint, as well, the question arises as to why we do not follow the woman's chazaka (presumed status), by which she is permitted to her husband?  How can we override this chazaka based on nothing more than an improbable suspicion?  Tosefot, in the first perek (9a), ask why a new husband's claim of "petach patu'ach" (that he encountered an unobstructed opening when consummating the marriage) is relied upon to render his wife forbidden to him.  Why, they ask, do we not follow her chazaka that she is permitted to him?  They answer:
"An incident of rape is publicized… Given that there is no news [publicized of a rape having occurred in this case], the likelihood of [the woman's having given her] consent constitutes the majority, oness – the minority.  And [in a situation of] a statistical majority against a chazaka – we give preference to the majority."
In our sugya, however, there is a "kol" (widespread news) of rape, and we have no statistical majority that she was not raped; to the contrary, we have but a far-fetched concern.
     Tosefot, after proving their position that Avuha Di-Shmuel stated his halakha as Torah law, add, "If it were rabbinic in origin, we would not remove her from her husband on this account."  Tosefot are thus aware of the halakhic difficulty involved in forbidding a woman to her husband due to merely this suspicion of consent.  It remains unclear, however, how we justify this concern if it originates from the Torah, rather than rabbinic enactment.
     To explain this sugya, let us begin by examining the reason why an unfaithful wife is forbidden to her husband.  Does the defilement of the act of sexual relations with another man itself render the woman forbidden, as perhaps implied by the source of this prohibition – "after she has been defiled" (Devarim 24:4), or does the betrayal of her husband, as described in the verse, "If any man's wife has gone astray and broken faith with him" (Bemidbar 5:12), rather than the defilement of the sexual act, give rise to the prohibition?  According to the second possibility, we understand very clearly why a rape victim, who never broke faith with her husband, remains permitted to him.  According to the first approach, however, that the contamination resulting from extramarital relations itself yields the prohibition, it should, logically, include cases of rape, as well.  Indeed, a kohen's wife becomes forbidden to him if she is raped; necessarily, then, this prohibition depends not on any guilt incurred by the woman, but rather on the very fact that she was defiled, which disqualifies her from marriage to a kohen.  But rape victims married to non-kohanim may remain with their husbands.  Apparently, this halakha reflects the exemption the Torah makes in cases of oness, as in the verse, "You shall do nothing to the girl" (Devarim 22:26 – the source for the halakha of oness, exempting from punishment violators who transgress due to circumstances beyond their control).  Her having been defiled notwithstanding, she may remain married to her husband because the defilement occurred due to circumstances beyond her control.
     It would appear that it is around this very issue that the debate between the Ritva and Tosefot, as to how to understand Avuha Di-Shmuel's position, revolves.  According to the Ritva, once we know that a rape has occurred, we have no reason to assume that this woman has betrayed her husband, and we thus have no basis from the Torah to forbid her to her husband.  And even if we do entertain the possibility that the woman ultimately proceeded willingly, this suspicion cannot override her chazaka of permissibility to her husband.  Avuha Di-Shmuel thus agrees that, strictly speaking, the woman may continue living with her husband.  According to Tosefot, by contrast, once witnesses testify to this woman's involvement in extramarital relations, she becomes forbidden to her husband.  She can then become permitted only if she can prove that these relations were forced upon her; the burden of proof falls on her shoulders.  Regarding this burden of proof Avuha D-Shmuel claims that she cannot prove her intentions over the course of the incident, and we therefore cannot be convinced of forced sexual relations unless she cried out from beginning to end.
     According to this understanding, the aforementioned sugya of "petach patu'ach," where we would be prepared to follow the wife's chazaka, poses no contradiction to our sugya, where we seemingly ignore her chazaka.  For in that case, the husband simply makes the claim of "petach patu'ach"; we have no witnesses testifying to her involvement in relations, and thus she has no need to prove that she engaged in relations by coercion.  Our sugya, however, deals with a case where witnesses testify to the occurrence of extramarital relations, and specifically for this reason Avuha Di-Shmuel demands proof of forceful coercion.
     Later in the sugya, Rav rejects Avuha Di-Shmuel's view based on the halakha of "shevuya," a captured woman, whom we assumed to have been raped and is permitted to her husband unless he is a kohen.  According to Avuha Di-Shmuel, we should suspect that perhaps she consented to the relations and thus forbid her to her husband (even if he is a non-kohen).  Avuha Di-Shmuel had no response to this challenge, but Rav himself noted that this halakha does not disprove Avuha D-Shmuel's ruling: "He remained silent.  Rav cited in reference to him [the verse], 'Nobles held back their words; they clapped their hands to their mouths.'  What should he have said?  They [Chazal] were lenient with regard to the captive."  We may perhaps explain that in principle, we should – according to Avuha Di-Shmuel – forbid the shevuya, as well, but Chazal enacted a unique leniency in such a case.  According to our approach, however, the halakha of shevuya poses no difficulty whatsoever.  In such a case, we have no witnesses to a sexual act, and hence the woman bears no burden to prove her permissibility to her husband.  Rashi indeed explains, "They were lenient with regard to the captive – for we did not see her have relations; he [Avuha Di-Shmuel] said [his halakha specifically] in a case where she [undoubtedly] had relations."
     As mentioned, Avuha Di-Shmuel's view is not accepted as halakha.  One might interpret this rejection of his view as a rejection of the entire theory upon which it is based.  Meaning, according to accepted halakha, the wife's betrayal of her husband, rather than the defilement itself, results in her becoming forbidden.  Alternatively, however, we might accept this theory, that the defilement causes the prohibition unless we can implement the oness exemption by establishing the absence of guilt.  Yet, we do not accept Avuha Di-Shmuel's view for a different reason, because of Rava's claim: "Whoever begins under coercion and ends up willingly, even if she says, 'Let him be,' that if he had not approached her she would have hired him, she is permitted [to remain with her husband].  Why?  The inclination has overcome her."  Thus, even if our suspicions are confirmed, and the woman did, in fact, consent, she may nevertheless remain with her husband because we know with certainty that the incident began coercively.  Accordingly, we understand full well why our sugya presents only the two extremes, omitting the intuitive, middle position that we do not suspect consent, but if the woman expresses her consent she becomes forbidden.  According to our approach, we may claim that if witnesses saw the incident, the burden of proof of coercion falls upon the woman, as we explained.  Therefore, despite the fact that the encounter began forcefully, we must eliminate any doubts we might have that perhaps later the woman did not act under coercion.  We therefore require the concept introduced by Rava, that a case of "techilato be-oness ve-sofo be-ratzon" is considered oness, and the woman remains permitted to her husband.
     As mentioned, Rava holds that if the incident began as a forceful encounter, then even if the woman ultimately consents, we consider this a case of oness because "yetzer albesha" – the inclination, or her sexual desires, overcame her.  Tosefot in Masekhet Yevamot (56b) write that Rava arrived at this principle based on sevara (intuitive reasoning), and the verse cited must be seen as but an asmakhta (a Biblical allusion, rather than an outright source).  The obvious question, however, arises, do we apply the oness exemption to any transgression committed because the sinner's evil inclination overcame him?  The absurdity of sucha a position is obvious.  The Shita Mekubetzet explains in the name of Talmidei Rabbenu Yona that although undoubtedly we do not consider a violation an "oness" if it resulted from an overpowering "yetzer," nevertheless, here the emergence of the "yetzer" was initially caused through an oness.  We therefore do not consider the woman as having acted willfully.  Rav Yehoshua Kutna, in his "Yeshu'ot Molkho" (107), writes that Rava's halakha applies only where the woman bears no guilt for her having entered this situation.  If she does bear some responsibility for the situation which resulted in rape, and over the course of the incident she expresses her consent, we do not apply the principle of "techilato be-oness ve-sofo be-ratzon."  Since, as we saw, the exemption for the desire expressed at the end is due to its having resulted from circumstances beyond her control, it cannot apply when she bears responsibility for the initial circumstances.  (If, however, she did not ultimately consent, then she is undoubtedly exempt, even if she is guilty for having willfully entered this situation.)
     Rashi, however, writes that Rava's halakha applies only when the relations began under coercion, implying that if she was forcefully captured, but expressed her consent before the sexual act, Rava's leniency does not apply.  This appears explicitly in the Shita Mekubetzet (s.v. u-fliga).  One might explain that the coercion at the beginning of the act defines the nature of the entire act as one of coercion, such that a change of heart in the middle is of no consequence.  Accordingly, one might argue with Rav Yehoshua Kutna and claim that even if the woman bears some guilt for her having entered the situation, so long as the relations began under coercion, we may apply Rava's halakha since we define the entire act based on how it begins.
     According to this approach, however, it would seem that we have no need for the factor of "yetzer albesha" as a basis for Rava's halakha.  Rav Kook zt"l in  Mishpat Kohen (144:11) writes that only Rava attributes the woman's permissibility in this case to the consideration of "yetzer albesha."  However, according to the beraita cited as proof for Rava's position, the woman remains permitted to her husband simply because the act began under force, even though she ultimately gave her consent.  Furthermore, the Meiri writes that we need the factor of "yetzer albesha" only to avoid the elimination of the "oness" status from this incident as a result of the woman's change of heart.  This implies that we define the act as a whole based on how it initially unfolded, so long as the "oness" status is sustained.
     We might add that the concept of defining the act based on how it began applies only to the definition of the sexual act itself, and thus this definition is relevant only if we assume that the defilement of extramarital relations itself renders the woman forbidden.  The defilement renders her forbidden only if the sexual act can be defined as a willful act; if, however, it is determined to have been a compulsory act, she does not become forbidden to her husband.  But if we view the prohibition as based on the wife's betrayal and disloyalty to her husband, we would forbid her even if we can formally define the act as one of "oness" based on the way it was initiated.  After all, the woman vocally declares, "Let him be," and there can be no greater betrayal than this.  Accordingly, we may explain that Rava maintains that a woman can become forbidden to her husband because of either reason suggested – the defilement resulting from the relations themselves, and the betrayal.  Hence, in order to allow her to remain with her husband, we must overcome both issues, meaning, we must define the act as a coerced sexual act, and, secondly, we must eliminate the element of betrayal.  In a case of "techilato be-oness ve-sofo be-ratzon," we consider the act one of "oness" because we define it based on the manner in which it initially unfolded, and Rava employs the notion of "yetzer albesha" to eliminate the factor of betrayal.  Since the woman's ultimate consent resulted from force, we do not consider it as an expression of disloyalty to her husband.
(For further study: See the Rambam's rulings on this sugya – Hilkhot Ishut 24:19; Hilkhot Isurei Bi'a 1:9; Hilkhot Sanhedrin 20:3.  Perhaps according to the Rambam, too, we have two halakhot at work in a case of "techilato be-oness ve-sofo be-ratzon."  What are they?)
Sources and questions for the next shiur:
1.    Mishna 51a, gemara 51b u-vikohenet ... batar sof."
2.    Rashi 51b s.v. almana, 52a s.v. mamzeret, Rava. Rambam Hil. Ishut 14:18.
3.    51b "shevuyei malkhut ... melekh hu."
4.    Even Ha-ezer 78:6, chelkat mechokek 8, Beit Shmuel 7.
1.    What is the argument between Abayei and Rava?  Explain Rava's position.
2.    According to Rava, what is the debate between R. Eliezer and R. Yehoshua? Explain the position of R. Eliezer.
3.    In the event of the husband's death, are the inheritors obligated to ransom the wife?
4.    According to Abayei, is the difference between a kohen and yisrael regarding the obligation to ransom a wife, fundamental or technical?