Does the fact that the gezeyra against yichud with an unmarried woman was made after the mayse with Amnon, and since there is no law from the Torah as a lav for rape, mean that this was the FIRST case of rape? (With regard to rape, there was the mayse of the Pilegesh Bagiva which was a different situation.) And since rape by necessity takes place in yichud, WHY wouldn't the gezeyra have existed before because of the yetser harah, unless technically raping a pnuya wasn't considered any kind of aveyra?
If there are no two eydim or hasroa in a case of rape, how could the man be made chayav to marry her or pay a fine? Indeed, by definition rape is coercion and passion on the spur of the moment, so it is unlikely there could be eydus and hasroa.
In terms of Tamar, why did she tell Amnon not to send her away AFTER she permanently injured him with a hair and hated her? And if she was concerned for her own shame WHY did she want to then publicize the whole inyan instead of hide it from the public instead of leading to a chilul hashem affecting the reputation of Dovid and his family?!
David Goldman, USA
1) I will first address your questions about rape.
a. There is a law in the Torah against rape. The verse in Devarim 22:28 states that if a man raped a single girl, he must pay 50 silver Shekalim, he must marry the girl, and he may never divorce her. It is reasonable to assume that the episode of Amnon and Tamar was not the first rape ever.
b. We see in Devarim 22:25 that rape takes place in a field. Even though a field is not necessarily a situation of Yichud, nevertheless rape can happen there.
c. Even though rape is forbidden by the Torah as we have seen, it does not follow automatically that a Gezeirah would be made against Yichud so that one should not come to rape. A lot of the Gezeiros of the Rabanan were made only in later generations. I suggest that since rape was an unusual circumstance in the early days, Chazal did not see that it was necessary to make a Gezeirah of Yichud to prevent it from happening (see Beitzah 2b, "Milsa d'Lo Shechichah Lo Gazru Bah Rabanan"). However, the incident of Amnon and Tamar was extremely famous (or, more accurately, infamous), so Chazal decided that since this terrible thing had happened it was necessary to strengthen the Halachah and be more stringent and prohibit Yichud also with a single girl.
d. The Rambam (Hilchos Na'arah Besulah 1:2) writes that if the Bi'ah took place in a field, it can be assumed that it was rape unless two witnesses testify that she consented. The Kesef Mishnah cites the Migdal Oz who writes that the situation is where two witnesses saw from a distance that Bi'ah took place. However, the witnesses do not know whether she consented or not. In such a case, we say that if it happened in town we assume that it was not rape, because otherwise she should have screamed out. If it happened in the field, we assume that it was rape, as Devarim 22:27 states that she may have screamed out there but nobody was nearby to save her.
2) I will now attempt to relate to Tamar's behavior.
a. The worst part of Amnon's attitude after the act had happened was that he did not do what the Torah (Devarim 22:29) says the rapist must do once such a thing has taken place. The Torah states, "She shall be his wife; because he has afflicted her he may not send her away for the rest of his life." Amnon was doing exactly the opposite of what the Torah says he was obligated to do, and the fact that he so blatantly violated the Torah constituted no less of a Chilul Hash-m than the bad reputation given to David and his family.
b. Tamar was certainly entitled to stand up for her rights. The Aruch la'Ner here (21a, DH v'Asa'oso) explains that all that Tamar wanted was to stay with Amnon and that he should fulfill the Mitzvah of the Torah to keep her as his wife. However, the problem was that since he was a prince he did not want to take a wife who was the daughter of a Yefas To'ar. He was interested in a wife of better pedigree. This was why he did not want to listen to her before the deed happened when she begged him to speak to the king, who would not prevent the marriage.
c. In addition, Tamar was also protecting the rights of all women. This is hinted at by the Gemara here (end of 21a) which states: "Tamar erected a great fence at that time. They said, 'If such a thing can happen to royal girls, then daughters of average citizens certainly should protect themselves. If such a thing can happen to a modest girl, then the immodest ones should certainly be careful." The Gemara seems to be telling us that Tamar did a good thing when she wept and screamed out. Rashi explains that her behavior made an impression on other women and made them realize that they certainly should be careful.
Tamar's positive behavior led to the Gezeirah of Chazal on Yichud with single women, and she merited the Zechus of causing this Din.
3) I am now going to deal with the question of witnesses and warning for rape.
a. First, I should clarify what I wrote above, in 1-d.
The Rambam (Hilchos Na'arah Besulah 1:8) writes that the rapist is not liable for the fine of the Torah unless there are witnesses. The source for this is the Mishnah in Kesuvos 41a that states that one does not pay the fine of 50 Shekalim upon one's own admission, but only upon the testimony of witnesses.
b. However, we mentioned above that the Kesef Mishneh writes that it is sufficient that the witnesses saw what happened from a distance. (This is also stated by the Ramban, end of Devarim 22, referring to an incident of consent involving a Na'arah Me'urasah.)
c. However, the Rambam continues and writes that Hasra'ah is not necessary for rape. This is cited by the Tur (Even ha'Ezer 177:5). The Beis Yosef there and Perishah (#14) write that the reason is that warning is necessary only when corporal punishment is administered. Since this is not the case with "Ones," Hasra'ah is not required.
(I personally do not understand this very well. Since the rapist is never allowed to divorce his victim, we would think that if he was not informed and warned about this Din in advance, he will later argue that he would not have done it had he known about it. To live with the wrong woman for one's whole life could be just as bad a punishment as lashes (or worse), and thus one could argue that just as Hasra'ah is generally necessary before a physical punishment is administered, it is necessary before a wife is forced upon a husband. I would also suggest that there might be a different reason for why the Rambam writes that the rapist does not require warning. This is because the Gemara in Makos 6b states that Hasra'ah is necessary to ensure that the crime was done deliberately and not b'Shogeg. Since everyone knows that rape is forbidden, and the act can only be done deliberately, it is not necessary to give Hasra'ah for it.)
In summary, witnesses are required, but warning is not.
4) Now, finally, to the question of the earliest known rape: I found a very interesting comment by one of the Rishonim, the Chizkuni on Shemos 2:12, where Moshe Rabeinu killed the Mitzri. The Chizkuni writes that the reason why the Mitzri was Chayav Misah is that he raped married women. He writes that Hasra'ah was not necessary, as we learn from what Hash-m said to Avimelech (Bereshis 20:3) when he captured Sarah, "You will die because of the woman that you have taken." We see that he deserved to die even without Hasra'ah.
In summary, the first attempted rape may have involved Avimelech, while the Mitzri killed by Moshe Rabeinu was actually guilty of perpetrating the act.
Reb Dovid, thank you again for your very interesting questions.
Kol Tuv,
Dovid Bloom
Rebbe,
The story of pilegesh b'giva certainly involved rape and in fact seemed to be gang rape without yichud. That probably would have been a good time for such a gezeyra and even a gezeyra of a group being misyached with a woman. Instead there was a massacre of shevet Binyamin.
Thoughts?
Sam Kosofsky
Sam! Shalom Aleichem!
1) It would have been problematic to make a Gezeirah on a group being Misyached with a woman, because the Mishnah in Kidushin 80b states that one woman may be alone with twi men.
2) Even though Rav Yehudah there says that the Mishnah applies only to Kesherim, and if the men are suspected of immorality then one woman may not be alone even with ten of them, nevertheless it would seem that this law should only be told to the modest women, because this type of man would not listen anyway to the Halachah.
3) In reality, the Gezeirah that followed the incident of Amnon and Tamar referred to Yichud with a single woman, while the Pilegesh was a married woman, so it would seem that there was already a Torah prohibiton against Yichud with her before the time of David ha'Melech and his Beis Din.
Kol Tuv,
Dovid Bloom
Thank you very much. Just to clarify: Amnon decided that he was not actually chayav to marry her after she injured him, simply because there were no witnesses and she did not cry out??
Tamar agreed to marry him, and then inadvertently injured him, so he decided he could not be required to marry her since he could not now have children anyway, and she hadn't cried out, and there were no witnesses..
Yet she then still asked him not to send her away despite the injury and hatred.
It's seems somewhat confusing....
Isn't it possible he originally had a ruchniusdike kavvana that would amount to having his neshoma tied to her forever by technically agreeing to marry him, and as the bechor he could father mashiach, even if the circumstances of a chassena were peculiar?
Wasn't there a degree of consensual activity by Tamar because she actually verbalized her willingness to marry him and of course did not cry out? As some hold, because she was a technical giores he couldn't imagine asking his father for permission to marry her, otherwise he surely would have done so. Thus perhaps he thought he could do a mitzvah ba be'aveyra....
I thought the gezeyras of yichud were simply because of the yetser hora. But I read that the Anshei Knesses Hagedola prayed to be mevatel the yetser hora that existed even for kroyvim. If so, then that means that there was a time when there was no issur yichud even with the chashash of the yetser hora. That itself is a shtikel chiddush, I.e. that in the early times despite the yetser there was no issur with a besula, so the question is why not.
Especially if it could indeed lead to a case of rape or intimacy without kiddushin which isn't worse than intimacy with an eshes ish without eydim etc.
1) Tamar wanted to marry Amnon but under no circumstances did she agree to extra-marital relations.
I will relate first to the fact that she did not cry out. I think we will understand this better if we look at the Ramban at the end of chapter 22 of Devarim. The Ramban writes that although the Torah writes that if she did not cry out in the city we assume that she consented, while if it happened in the field the fact that she did not cry out does not prove that she consented, nevertheless it does not necessarily depend on the crying. He writes that the Torah is merely describing the standard case, but what it really depends on is whether there were people present who could have saved her. If such people were present, she would be considered to have consented whether it happened in the city or in the field, but if there was nobody there to save her, then we consider it as rape both in town and outside town.
The Ramban continues and writes that if we see a girl who fights against the assaulter with all her strength and weeps and grabs his clothes and his hair in an attempt to save herself from him but she does not know how to scream out, why should she be punished for what happened? He concludes that one must say that even if crying out might have helped, when the Torah mentioned screaming it was merely describing a standard case ("Diber ha'Kasuv b'Hoveh"), but if a woman did all she could to save herself but for some reason did not scream, we do not conclude that she consented.
It seems to me that the description of the Ramban is very suitable to what happened to Tamar. Beforehand she pleaded with Amnon not to do it. Then the verse says that Amnon was stronger than she and he afflicted her. This suggests that there was a physical fight and Amnon was simply stronger. There might have been some practical reason why she did not cry out (possibly Amnon covered her mouth), but the Ramban stresses that simply the fact that she did not cry out does not prove her consent, if other evidence shows that she resisted.
2) It does not seem that the fact that there were no witnesses who actually saw the Ma'aseh should make a difference. Everyone knew that it happened and, as far as I know, there is no evidence to suggest that Amnon tried to deny it. In addition, as we saw in a different reply, the Rambam (Hilchos De'os 6:6) describes both Avshalom and Amnon as Resha'im, while the Gemara in Sanhedrin 21a (last line of page) calls Tamar a "modest woman." It seems that Tamar was in the right and Amnon was in the wrong.
3) Tamar deliberately injured him. A woman has a right to defend herself against an assaulter (see Sefer Chasidim #702).
There is still more to write, but I will close here for the moment.
Kol Tuv,
Dovid Bloom
1) I will come back now to Tamar's intentions. Let us look again at the Aruch la'Ner who explains this largely according to the simple meaning of the passage.
The Aruch la'Ner points out that we see from the verses that Tamar really initially wanted to marry Amnon. Tamar was in a rather unusual position, because while she was the daughter of the king, on the other hand she was disqualified from marrying into the Kahal since her mother was a Yefas To'ar. The fact that Amnon had fallen in love with her seemed to open up a possible answer to her predicament. What Tamar really wanted was to marry a well-related Jew and Amnon would be a perfect candidate. It is not so clear what Tamar was thinking when she said to Amnon that he should speak to the king and that the king would not prevent the marriage. The Abarbanel writes that she was playing for time, but she knew that David would not actually allow the marriage because she was the daughter of a Yefas To'ar. I would like to suggest a differrent possible expanation, that Tamar was hoping (even though she might not have been so well-informed) that since Amnon so much wanted her that it might be possible to find some Heter to marry her. At any rate, Tamar was very eager to marry Amnon, but, as the Gemara states, she was a modest woman and therefore did not want at all any casual relationship. This is why she pleaded with Amnon against this, but just because she was eager to marry him does not in any way suggest that she consented to what actually happened.
I think the simple explanation of why she made Amnon a Krus Shafchah was merely self-defense. However, the Aruch la'Ner says a Chidush and suggests that the fact that she made him a Krus Shafchah was also part of her plan to marry him. She knew that Amnon would not want to marry her due to what he considered as her inferior status, so she thought that if she he would make him into a Krus Shafchah, thereby giving him, too, an inferior status, he would have to marry her, since the Torah (Devarim 23:2) states that a Krus Shafchah may not marry a kosher Jewess.
After Amnon sent her away, she was still hoping that he might calm down and come back to his senses and agree to observe the law of the Torah not to send away his victim for the rest of his life.
She still had no objection to staying with him and insisted on receiving the right that she was entitled to according to the Torah, of staying with the man who had afflicted her. Tamar knew that if Amnon sent her way, her life was ruined. She had been defiled and no man of a good spiritual quality would now agree to marry her.
2) Now to the question of what prohibitions of Yichud existed before the episode of Tamar and Amnon: If we look at the Tur (Even ha'Ezer 22:1), we find that there is Torah prohibition against Yichud with an Ervah, while Chazal enacted a prohibition against Yichud even with a single woman (Penuyah). The Perishah there (#1) adds that there is a Torah prohibition against Yichud not only with an Ervah but also with any woman who is forbidden mid'Oraisa. We see from this that Yichud with a Penuyah is not forbidden mid'Oraisa. (However, a Penuyah is presumably also a Nidah, and thus Yichud with her is forbidden mid'Oraisa for that reason.)
According to this, we can understand why -- before the Ma'aseh of Amnon and Tamar -- there was no prohbition on Yichud with a single woman; it would have been a Gezeirah on a Gezeirah, which Chazal do not make.
In my next reply I hope to deal, b'Siyata d'Shmaya, with the issue of Yichud with close relatives before the Anshei Keneses ha'Gedolah successfully eliminated the Yetzer ha'Ra for this.
Kol Tuv,
Dovid Bloom
I am now going to deal with the question of what prohibitions of Yichud existed before the incident of Amnon and Tamar.
1) The Gemara in Kidushin (80b) tells us that there is a hint in the Torah to the prohibition of Yichud. The Gemara states that Yichud with one's mother is permitted, but Yichud is forbidden with all of the other Arayos in the Torah. This is the Halachah as recorded by the Shulchan Aruch (Even ha'Ezer 22:1): Yichud is forbidden with all Arayos with the exception of a mother with her son, and a father with his daughter.
We learn from here that Yichud with Arayos was forbidden by the Torah even before the time of Amnon and Tamar. However, since a single woman (Penuyah) is not considered an Ervah (if she is not Nidah) there was no prohibition on Yichud with her before Amnon and Tamar.
The above represents the Halachah nowadays. What, though, was the Halachah about Yichud with one's mother, daughter, or sister before the Anshei Keneses ha'Gedolah eliminated the Yetzer ha'Ra for close relatives?
In Kidushin 81b, Rav Yehudah said in the name of Rav Asi that Yichud with one's sister is permitted, and one may live in the same home alone with one's mother and daughter. Rashi writes that one may have occasional Yichud with one's sister but not live permanently with her. Rashi writes that the reason one may live with one's mother or daughter is that the Anshei Keneses ha'Gedolah helped to blind this Yetzer ha'Ra. The Ezer mi'Kodesh (printed with the Shulchan Aruch, beginning of Even ha'Ezer 22) writes that according to this, one must say that before the time of the second Beis ha'Mikdash one was not allowed to have Yichud with his daughter, and only
with one's mother was Yichud permitted, as Kidushin 80b derives from the verse in Devarim 13:7.
2) Concerning whether Bi'ah with an Eshes Ish is worse than with a Penuyah, one must say that if the Penuyah is not a Nidah, then Eshes Ish is certainly worse because this is an Ervah and is punishable with Misas Beis Din, while Penuyah is not a Lav according to the Perishah (Even ha'Ezer 22:1) that we mentioned in the previous reply.
Kol Tuv,
Dovid Bloom