Ki Teitzei 5773 – Gilayon #812
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Parshat Ki Tetseh
You shall not see your brother's ox or his sheep
And ignore them. You shall surely return them to your
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.
thus shall you do for his donkey and thus shall you do for his cloak and thus
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"[the Hebrew for donkey (hamor) shares the letters of the Hebrew for
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 (
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
(Ohr HaHayyim, Devarim 22:3)
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 3
"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
"You shall not stand over the blood of your fellow man". And Solomon
said (Proverbs 24:
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.
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
Your camp shall be holy
relates specifically to rape twice in our parasha:
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'.
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.
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.
cases are clearly incidents of rape.
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 2
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".
is prescribed for one who rapes an enemy captive in war. The soldier can chose
either to marry her or to set her free.
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".
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?
provide us with a key to understanding the differing attitudes towards rape.
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:
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
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
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
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"[lit. – "the yetzer hara – the evil inclination]. Not only is
battlefield rape not a punishable offense, it is actually permitted!
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.
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
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
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:
bed with. The Hebrews idiom is literally "come into", that is "entered".[…] Of the three
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
Can it be that
Rashi's commentary (Devarim 2
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:
… 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
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
was sentenced to 30 years incarceration.
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:
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
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
that time, they will call
the Throne of the Lord" (Jeremiah 3:
(Midrash Tanhuma Ki Tetse
"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
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
(Rabbi Shimshon R. Hirsch,
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:
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
(Rabbi S. R. Hirsch, Commentary on Devarim
24:5, translation into English by Isaac Levy)