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 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 (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" [lit. - "the yetzer hara - the evil inclination]. Not only is 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". [...] \hHOf 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 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) [which contradicts his theory that there is a reason for every commandment]. 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)