You shall not see your brother's ox or his sheep

slipping away

And ignore them. You shall surely return them to your

brother …

And thus shall you do for his donkey and thus shall

you do for

Any lost thing of brother's that may be lost by him

that you find.

You shall not be able to ignore it.

(Devarim 22:1,

3)

And

shall you do for any lost thing – Three

times does the Torah say "thus shall you do", referring to the three

parts of man. One is the corporeal composition, the second is man's spiritual

component, the third is the Torah which is betrothed to every Jew. In reference

to the physical composition, it says "so shall you do to his donkey"

physical matter (homer)]. In reference to the spiritual component it

says "so shall you do to his cloak", for this component is alluded to

by the cloak, as is said in Tractate Shabbat (152b) "This may be compared to a mortal king who

distributed royal apparel to his servants." And in reference to man's

Torah component, it says "and thus shall you do for any lost thing";

Scripture calls Torah "a lost thing" as is hinted at by R.

Shimon b. Yohai (Kiddushin 2b) "This may be compared to one who has lost an

article, who searches after whom, etc." for that part which man has lost

is lost to the world, for no one else can obtain it, as is said by the

Kabbalists, but through repentance ["returning"] he is able to

recover it.

(Ohr HaHayyim, Devarim 22:3)

You

cannot ignore it – Here we are

cautioned against negligence in saving our fellow's property, be it movables,

be it real estate, as our teachers, of blessed memory said (Bava Metsia 31a)

"and thus shall you do for any lost

thing of your brother's" – This is to include the loss of real estate. For

instance, if flood waters are approaching, he is obligated to put up a wall

before them. Even though we were cautioned to make efforts to save our fellow

and to seek ways to help them in their time of trouble, and so it is written

(Vayikra 19:17)

"You shall not stand over the blood of your fellow man". And Solomon

said (Proverbs 24:10) "If you

showed yourself slack in time of trouble, wanting in power", meaning if

you have it in your power to save, either through advice or intercession, yet

you act as though you have neither ability nor power, then your power will

diminish. Measure for measure. And following this it says (Ibid. ibid. 12) "If you say, "We knew nothing of it,"

surely He who fathoms hearts will discern [the truth], He who watches over your

life will know it, and He will pay each man as he deserves". Refraining

from rescuing and giving helpful advice is considered by the Holy One, blessed

be His name, to be a sin of commission [rather than one of omission].

(Rabeinu Yona Girondi: Shaarei Teshuva, Hashaar Hashelishi, article

70).

Your camp shall be holy

Kadish Goldberg

The Torah

relates specifically to rape twice in our parasha:

1. Rape of a virgin young woman who is not betrothed

(Devarim 22:28-29).

2. Rape of a

betrothed virgin (Ibid., ibid., 23-27)

If severity of

punishment is indicative of the severity of the crime, it would seem that rape

is not considered an especially heinous crime. If the victim is a virgin young

woman who is not betrothed , "the man lying with her shall give to the

young woman's father fifty weights of silver, and she shall be his wife

inasmuch as he abused her; he shall not be able to send her away all his days".

One gets the

impression that the Torah categorizes rape as a monetary offense. The rapist

must compensate the girl's father for loss of dowry – she is now 'damaged goods'.¹ The victim, whose chances of matrimony

have diminished, is guaranteed a family life – should she so desire. (This

seems to be the equivalent of payment of "suffering, healing, and shame"

which are the punishments for physical hurt). One imagines that a rapist here

and today would be happy to get off with such a sentence.²

It is possible

that the Torah wrote into law an ancient arrangement, one with which we are

familiar from the Book of Bereishit. The agreement between Shechem and our

father Jacob included monetary compensation ("Name me however much

bride-price and clan-gift, I will give what you say to me") and the

marriage of Dinah.

The punishment

for one who rapes a betrothed (or married) virgin is death. Of course, rape is

rape, but the marital status of the victim shifts the offense from the category

of damages [torts] to that of forbidden sexual relations, for which punishment

is more severe.

The above

cases are clearly incidents of rape.

Parashat Ki

Tetseh begins with the law regarding "a woman of comely features". An

Israelite combatant desires a comely female captive and wishes to take her as

wife. He must bring her to his home, and after a month of "basic training",

he may marry her. Should he not like her, he must free her unconditionally.

There is no

specific reference to rape in this incident, but in the Talmud (Kiddushin 21b),

the Amoraim Rav and Shmuel concur that 'first intercourse' – rape in battle – is

permissible (not "forbidden but not liable" but "shari"

– permissible). In war, passions are inflamed, and the Torah is considerate

of human frailty. "The Torah spoke only in consideration ["k'neged"

– lit. "against"] of the evil inclination".

No punishment

is prescribed for one who rapes an enemy captive in war. The soldier can chose

either to marry her or to set her free.

Against the

background of our current attitude towards rape (even a president was sentenced

to prison for rape), we can only wonder. Why, in all the Torah, is there no

express prohibition against rape? Why is there no clear statement regarding the

immorality of the act? One imagines that were the Torah to be given today, it

would include, perhaps between "You shall not kill" and "You

shall not commit adultery" – the command "You shall not rape".

The Torah's

attitude toward rape leaves us with the uneasy feeling that rape was considered

a considerably less serious infraction than it is considered today (at least in

enlightened societies). Is it conceivable that the Creator of Man was not aware

of the physical damage and great psychological suffering wreaked by rape?

How, then, to

explain the seemingly lenient attitude of the Torah? And does not the rabbis' "The

Torah spoke in consideration of human frailty" produce a slippery slope of

excessive psychoanalytical rationalization and weakened deterrence?

Maimonides may

provide us with a key to understanding the differing attitudes towards rape.

Maimonides

teaches, in his "Guide of the Perplexed", that social change, even

when divinely decreed, is evolutionary. God meets Man "where he is",

and, understanding Man's soul and the existing social norms when the Torah was

given, He directs a long process of controlled change. Two examples:

Sacrifices.

It is the Creator's will that our worship of Him be spiritual and

intellectual. Why, then, the sacrificial ritual? Primitive man was accustomed

to sacrifice of living beings, including humans. With the Akeida incident, God

proclaims that no more are humans to be sacrificed. Later on, animal offerings

are tightly controlled in terms of time, place and process. In time, the

sacrifices are accompanied by song and prayer. Following the Temple's destruction, prayer replaces

sacrifice.

Servitude.

God desires that Man, created in His image, be free. Slavery, however, was so

deeply entrenched in ancient culture that a demand for total and immediate

abolition would have no chance of implementation. So God designed a path to

elimination, giving mitzvoth which make servitude more humane and less

worthwhile.

Perhaps the

above is applicable to the subject under discussion. The Torah sets out to

protect the woman and gradually raise her status. Though its laws and its

personalities, it paves the way (a very long way!) to equality.

Rape was a

universal fact of life, but the Torah initiated a change in direction. Even a "damaged"

woman and her family are deserving of consideration – her father receives

compensation, and she is provided with the possibility of raising a family.

Who is more

vulnerable than a gentile captive? Rape in times of war – whether out of

passion or policy – is, even today, considered almost normal.

The Torah does

not abandon the gentile captive.

·     

Should the captor choose to wed

her, he must bring her to his home where she will undergo physical and

psychological rehabilitation. She works through her grief. She beautifies

herself, building her self-esteem. She begins to learn and absorb Israelite

family values. In effect, she converts. She becomes a full-fledged Israelite

wife. This reading admittedly differs from the tendentious 'mainstream' reading

which sees the captive's treatment in the captor's home as intended "to

make her ugly" so that he send her away, thereby avoiding negative

influences, squabbles between wives, and rebellious sons. Our reading, however,

seems to me (and to some major commentators) to be more in keeping with the

plain-sense of the text.

·     

If, however – whether there was

battlefield rape or not, whether before her month of rehab in his home or after

– the Israelite does not want to marry her, he must free her immediately and

unconditionally. Sale,

servitude, and sexual exploitation are not options.

We are still

disturbed by the determination by Rav and Shmuel: "With regard to first

intercourse [wartime rape], all concur that it is permissible, for the Torah

spoke in consideration of [lit. k'negged – against] human frailty"

battlefield rape not a punishable offense, it is actually permitted!

Maimonides, in

his "Mishneh Torah", expands the six verses regarding the captive

woman to six articles containing reservations, limitations and inferences not

specifically mentioned in the Torah. Rabbi Moshe Speter, rabbi of Tirat Zvi,

suggests that these are intended to deter battlefield rape. For example:

"'Her' – but

not her companion" – the dispensation is for only one cohabitation.

"He may

not cohabit with her and leave her, but he brings her into his home" – The

combatant knows that the act of cohabitation is not a one-time event; he must

take care of  the woman and accept

responsibility for her fate. He "carries her on his back" until he

reaches home.

In light of

the above, Rabbi Speter suggests the following understanding: "The Torah

spoke against the evil inclination" – the multiplicity of

obligations towards the captive woman will foil the designs of the evil

inclination.

It would seem

that Maimonides, in his "Mishneh Torah", is an active factor in the

evolutionary process which he propounds in his "Guide of the Perplexed".

A footnote in

Robert Alter's "Five Books of Moses" (p.

39, note 4), suggests a new window on our subject. Alter notes:

Come to

bed with. The Hebrews idiom is literally "come into", that is "entered".

expressions used for sexual intercourse in Genesis – the other two are "to

know"            and "to lie

with" – this one is reserved for sexual intimacy with a woman with whom

the man has not previously had carnal relations [emphases mine. K.G.],

whether or not she is his legitimate wife.

In our parasha,

following the laws regarding the captive's month in her captor's home, it is

written: "And afterward you shall come into her and you

shall cohabit …" If Alter's distinction holds not only for the Book of

Genesis, then it becomes clear that first intercourse is permissible only

after a month in the captor's home! There is no hint of permission for

battlefield rape!

Can it be that

Rashi's commentary (Devarim 21:12)

supports such an understanding? "The Torah spoke in consideration of human

frailty, for if the Holy One does not permit her to him, he will marry her

unlawfully." The concession "in consideration of human frailty"

is not concession to rape in battle; it is concession to marry a gentile

captive."Your camp shall be holy; let Him not find anything unseemly among

you" (ibid. 23:15)

… not even in the heat of battle.

1. In the event that the girl is

no longer "a young women" ["naara"], i.e., she is

over 12 years old and is no longer

under her father's jurisdiction, the father does not receive the compensation.

The girl, however, does receive compensation.

2. Shortly before this article

was written, a rapist in Israel

was sentenced to 30 years incarceration.

Kadish

Goldberg lives in Kibbutz Tirat Zvi

The Sending Away from the Nest

and the Rationale for Mitzvoth

Now, he [RaMBaM] wrote in the Guide

of the Perplexed (3:48)

that the reason for the commandment to release the mother bird when taking its

nest and the prohibition against killing the dam with its young in one day is

in order to admonish us against killing the young within the mother's sight,

for animals feel great distress under such circumstances. There is no

difference between the distress of man and the distress of animals for their

young, since the love of the mother and her tenderness to the children of her

womb are not the result of reasoning or [the faculty of intelligent] speech,

but are produced by the faculty of mental images which exists among animals even

as it is present in man. But if so the main prohibition in killing the dam and

its young applies only when killing [first] the young and [then] the dam [but

not vice versa, whereas the Torah forbids it to be done either way]! But it is

all an extraordinary precaution, and it is more correct [to explain them as

prohibitions] to prevent us from acting cruelly.

And the Rabbi [RaMBaM] said

further: "do not contradict me by quoting the saying of the Sages (Berakhot 33b), 'He

who says in his prayer: Even to a bird's nest do Your mercies extend [etc.,

they silence him,' which would seem to imply that there is no reason other than

the Will of God for the commandment to release a dam when taking its nest], for

that is one of two opinions, namely, the opinion of the Sage who holds that the

commandments [of the Torah] have no other reason but the Will of the Creator.

We follow the second opinion that there is a reason for the commandments."

And the Rabbi [RaMBaM] raised a difficulty from a text in Bereishit Rabbah (44:1)

The text reads: "And what difference does it make to the Holy One, blessed

be He, whether an animal is slaughtered from the front of the neck or the back?

Surely you must say the commandments have been given only for the purpose of

refining [disciplining] men through them, as it is said, Every word of God

is refined (Proverbs

30:5)… The benefit from the commandments is not derived by the Holy

One Himself, exalted be He. Rather, the advantage is to man himself, to prevent

him from coming to physical harm or some evil belief, or unseemly trait of

character or to recall the miracles and wonders of the Creator, blessed be he,

in order to know the Eternal. It is this [which the Rabbis intended by saying]

that the commandments were given "for the purpose of refining men,"

that they may become like "refined silver," for he who refines silver

does not act without purpose, but to remove therefrom any impurity. So, also,

the commandments eliminate from our hearts all evil belief, and [are given] in

order to inform us of the truth and to recall it always.

(RaMBaN Devarim 22:6, based on Chavel

translation)

The Eradication of Amelek as a Constant Awareness to Remove the Evil

from our Midst "Remember what Amalek did to you" – remember

vocally; "Do not forget" – in your heart. And therefore it is

written, "The nations heard and trembled".

(Sifrei Ki Tetse, section 296)

Rabbi Yehoshua b. Levi said in the name of R. Alexandroni: One verse

says "Erase the memory of Amalek" and another says "For I will

surely erase". How can the two be reconciled? As long as he [Amalek] does

not reach out for the Throne, You will erase. When he reaches for the

Throne, I will erase. Is it possible for a human being to reach for the

Throne of the Holy One, blessed be He? But [this will be possible] by his

destruction of Jerusalem, as is written: And at

that time, they will call Jerusalem

the Throne of the Lord" (Jeremiah 3:17). Therefore "I will surely erase".

(Midrash Tanhuma Ki Tetse

Section 11)

"Do not forget": Do not forget this, should a day

come and you will wish to resemble Amalek, and – like him – you will not

recognize your duty and will not know the Lord, but you will seek opportunities,

in matters small or great, to exploit your superiority in order to harm people.

Do not forget this, should a day come, and you should desire to relinquish your

duty and your mission as Israel,

which you accepted upon yourself to fulfill in mankind. Do not covet the laurel

wreaths which a foolish world makes for those happy people who destroyed the

happiness of others. Remember the tear-soaked earth from which sprouted the

laurel for those wreaths. Don't forget this when the day comes and you yourself

will suffer from arrogance and the violence of Amalek. Guard your erect

stature! Guard humanity and the values of justice which you learned from your

God. The future is yours, and eventually humanity and justice will vanquish

arrogance and violence, and you, yourself, have been sent to announce and to

bring closer – through your destiny and your example – this victory and this

future. "Do not forget" –

and in order that you do not forget, "Remember" – From time to

time renew in your heart the memory of Amalek and what you have been told about

his future.

(Rabbi Shimshon R. Hirsch,

Devarim 25:19 – written

approximately in 1860!!)

The General Good Is Largely Dependent Upon the

Happiness of the Individual

The following are those who do not

go out to the armed forces at all, and who are never to be disturbed for any

reason whatever: He who has built a new house, and has dedicated it, and he who

has married his betrothed, and he who has taken his sister-in-law in levirate

marriage, and he who has made common use of his vineyard – do not go out to the

armed forces before the end of the first year, as is written: "Free and

clear let him remain in his house for one year, and let him give joy to his

wife whom he has taken" – we have it on tradition that he will be free

for a year for the house he has built, for the woman he has married, for the

vineyard whose fruits he has begun to eat.

(Rambam, Mishneh Torah, Laws

of Kings, 7:10)

The Torah stresses the husband's

responsibility for the happiness of the marriage; it is critically important

not only for the individual's happiness but also for national well-being.

Therefore, for a complete year following the marriage, the Torah exempts the

husband from all public responsibilities and duties and even forbids him to

undertake any of them. For a whole year, the husband lives only for his home,

so that he can devote himself entirely to his home life and to laying the

foundation for his wife's happiness… Clearly at the root of these laws lies

the point of view that a state, the concept of a state as a whole, has only

reality in the actual numbers of all its individual members, but apart from

them, or next to them, on cannot consider the existence of a state as a concept

in itself. So that the national welfare can only be sought in the well-being

and happiness of all the single individuals, hence every flourishing and happy

home is a contribution to the realization of the goal set for the nation, hence

has to be met by the nation with careful and encouraging and promoting

consideration.

(Rabbi S. R. Hirsch, Commentary on Devarim

24:5, translation into English by Isaac Levy)