Gavin Simpson asked:

Rebbi derives the law of maamar from the precedent of a yavam's cohabitation with his yevaman, i.e. the act of yibum. Just as the cohabitation of the yevamah with her yavam effects yibum even when it is performed against her will, so to with the case of maamar, as well. Even when maamar is performed against her will it is valid...

Nw my question is this.... This guy who rapes this woman will still have done a mitzvah, i.e. yibum! How could something so evil be regarded as a mitzvah?

Gavin Simpson, South Africa

The Kollel replies:

(a) This question brings to mind the story of the "Fashtunkener fish." Once upon a time a very mean man thought that he had better fulfill the Mitzvah of Hachnasas Orchim once in his lifetime. He had a very old piece of fish in his fridge, so he invited a visitor to dine with him. Shortly afterwards the visitor took ill with food poisoning and the man went to visit him. Unfortunately, the visitor deteriorated and died. The man made arrangements for his Levayah, and accompanied the Niftar to his burial. Thereafter he was Menachem the Aveilim of the Niftar and attended the Hespedim. Eventually he returned home to his wife and exclaimed "Look how may Mitzvos we have kept with one old piece of Fashtunkener fish!"

All human actions, laws and morals have rules and parameters. If properly applied and utilized one can achieve the highest spiritual levels. On the other hand they can be sorely abused in which case the opposite will be the case. Thus in the Mishnah (Sotah 20a) we are told of the Chasid Shoteh, Rasha Arum, Ishah Perushah, and Makos Perushim who destroy the world. The Gemara (ibid. 21b and 22) elaborates on the detailed meaning of these concepts but basically they are Fafrumta hypocrites who apply the strict letter of the law for their own ends.

(b) Returning nearer to the specific question, there is e.g. a Mitzvah of Peru u'Revu. The technical requirements are the sexual act and the production of children. Rape would achieve this but no one in their right mind would condone this. Just read the Rambam Hilchos Ishus as to how a husband must have respect for a wife, treat her better than himself and consider her to be a queen.

Similarly, though Yibum does not require mid'Oraisa the consensual agreement that is normally required in Kidushin, there is no question that if one abuses the Mitzvah by raping the Yevamah, he is not performing the will of Hash-m. (Even in Kidushin where a father has the right, mid'Oraisa, to accept Kidushin on behalf of his minor daughter without her consent, the Gemara (in Kidushin 41a) objects to this on the grounds that a person should not marry off his daughter while she is young until she matures and says "This is the one I want" because of v'Ahavta l'Rei'acha Kamocha. There are exceptions to this too, as per Tosfos there DH Asur because it all depends on what is right in the particular circumstance.)

Yibum is considered to enable the continuation of the life of the deceased brother who died childless. See the Ramban on the episode of Yehudah and Tamar (Bereishis 38), and the Mefarshim on Megilas Ruth. This is why the Torah dispenses with any need for consensuality. From the position of abstract spirituality, the widow of the deceased brother should have no reluctance or hesitation in performing this noble Mitzvah.

The Torah itself, however, recognizes that not everyone can achieve this level and provides an "escape route" through Chalitzah. In situations where it is clear that the Yevamah is not an appropriate match for the Yavam, the Beis Din would do their best to encourage the Yavam to forego Yibum and perform Chalitzah (Yevamos 106b). Chazal also realized that Yibum is asking too much of the average human and provided Ma'amar as a parallel to Kidushin. Indeed, Ashkenazi custom, following the opinion of Abba Shaul (Yevamos 39b), does not permit Yibum nowadays in normal situations.

However, the technical features and parameters of the Mitzvah d'Oraisa remain, namely, the act of intercourse (again, as defined by Chazal as to what does and what does not comply with the Halachic definition). If it is abused, then while the technical Mitzvah will have taken place, the rapist will end up in Geihinom as per the Chasid Shoteh and Rasha Arum and the Fashtunkener fisherman referred to above.

(c) Perhaps a parallel is to be found in Hilchos Tzedakah. The classic act of the Mitzvah is to give charity to the needy. However, the Rambam in Hilchos Matnos Aniyim 10:4, based on Bava Basra 9b writes, "Anyone who gives Tzedakah with a miserable face and in a disagreeable manner, even if he gave a veritable fortune, loses all his merits, etc." He has done the technical Mitzvah but has forfeited entitlement to any reward. Worse yet, he will be punished instead.

Thus it can be seen that technical performance of a Mitzvah is itself valueless unless accompanied by the requisite Kavanah Retzuyah (appropriate intention). The biggest Mitzvah can be ruined by tangential misbehavior.

One of my hobby horses is the abhorrence of selfish and inconsiderate conduct in Shul. The story of the pupil of Reb Yisrael Salanter ZT"L is revealing. The pupil put huge concentration into his Amidah on Yom Kipur. Afterwards he reported how he felt that he had reached sublime heights in the level of his prayer. Reb Yisrael's response was "Du bist a Ganav!" "What??" the pupil responded, "How can that be?? I have never stolen a thing in my life." "Wrong!" came the response. "Du host geganvut der luft fun der zibbur." He had stationed himself in the doorway, blocking out the only air conduits to the Shul (in the times before air-conditioning and window ventilation) and that lack of consideration is a form of theft, so what could his prayer have been worth.

So too, one day a man who was late for Minchah double parked his car outside the Shul blocking the access and egress. I accosted him and reprimanded him, but he just ignored me saying he was late for Minchah and did not wish to miss Tefilah b'Tzibur. Afterwards I tried to explain to him that his Tefilah was worse than valueless if it is achieved by the discomfiture of others.

Kal v'Chomer, Ben Beno Shel Kal v'Chomer, is your Yibum case. The Torah would not for one split second countenance the behavior (or abject lack of it) to which you allude. Always do only what is right.

Best wishes,

J. Pearlman