1) MAY A KOHEN GADOL REMAIN MARRIED TO A "BE'ULAS ATZMO"
QUESTION: Rav and Rebbi Yochanan rule that a Kohen Gadol may not marry a "Bogeres" or "Mukas Etz," but if he does marry her, b'Di'eved he does not have to divorce her. He may remain married to her because even if he would have married her before she became a Bogeres or Mukas Etz, the physical change in her body would have occurred in any case after he married her ("Sofah Liheyos Bogeres Tachtav..."). Therefore, when he married her after the physical change occurred, b'Di'eved he may remain married to her.
The logic for why the Torah does not prohibit him from living with a woman who is a Bogeres or Mukas Etz whether she became such before the Kohen married her or after seems to be as follows. If the Torah would prohibit him from marrying a Bogeres and Mukas Etz, the Kohen Gadol would never be able to remain married -- since every woman becomes a Bogeres and Mukas Etz after marriage. It must be that the Torah prohibits only the act of marrying such a woman in the first place; the Torah does not prohibit him from remaining married once he is already married to her. Even if the marriage was initially done in a prohibited manner, the Kohen Gadol transgresses no Isur by staying married.
The Gemara suggests that the same Halachah should apply to a woman who is a "Be'ulas Atzmo," with whom the Kohen himself committed an act of Bi'ah before marriage. He is not permitted to marry her, but if he transgresses that Isur and marries her anyway, b'Di'eved he should be permitted to stay married to her just as he is permitted to stay married to a Bogeres and Mukas Etz. Why does Rav Huna in the name of Rav (end of 59b) rule that a Kohen Gadol may not remain married to a woman who is a Be'ulas Atzmo?
RASHI (DH Sofah Liheyos) explains that the logic of "Sofah Liheyos..." applies to a woman with whom the Kohen Gadol himself performed an act of Bi'ah, because he eventually will do Bi'ah with her anyway. That is, the Gemara applies the logic of "Sofah Liheyos" to a woman with whom he did Bi'ah, but not to a woman with whom another man did Bi'ah. This indeed is implicit from the wording of the Beraisa (59b) which says that only a woman who is an "Anusas Atzmo" may remain married to the Kohen Gadol, implying that if she did Bi'ah with any other man, she may not remain married to the Kohen Gadol.
If the logic of "Sofah Liheyos" applies to a woman with whom the Kohen Gadol himself did Bi'ah before marriage and permits him to remain married to her, then what difference does it make whether she had Bi'ah with the Kohen Gadol himself or with another man? In either case she eventually will become a Be'ulah after marriage, and thus the logic of "Sofah Liheyos" should permit the Kohen Gadol to remain married to her.
Moreover, the Rishonim (RIF, RAMBAM, RASHBA) state that the Halachah follows the view of Rav Huna in the name of Rav, that a Kohen Gadol must divorce a woman who was a Be'ulas Atzmo, even though they also rule that a Kohen Gadol may remain married to a Bogeres and Mukas Etz! The reason for this (as the Rashba points out) is that the Gemara does not conclude with a "Teyuvta" on Rav's ruling but only with a "Kashya." This implies that there indeed is a way to resolve the Gemara's question even though the Gemara itself leaves it unanswered. What is the reason for why a Kohen Gadol may remain married to a Bogeres or Mukas Etz but not to a Be'ulas Atzmo?
(a) A woman who loses her Besulim as a result of reaching Bagrus before marriage loses it in the same way she would lose it if she reaches Bagrus after marriage. The Torah, therefore, cannot prohibit a Kohen Gadol from marrying a Bogeres who loses her Besulim before marriage if it does not prohibit him from remaining married to her when she loses her Besulim after marriage. The same logic applies to a Mukas Etz. A woman who became a Mukas Etz and lost her Besulim before marriage is no different from a woman who became a Mukas Etz after marriage; it is not possible for her to be more prohibited to the Kohen than a woman who loses her Besulim after marriage, as there is nothing different or unique about becoming a Mukas Etz before marriage that should not apply after marriage (when the husband removes the Besulim through Bi'ah).
However, the Isur of marrying a Be'ulah is not related to the actual removal of the Besulim. Rather, the very fact that she has the status of a Be'ulah -- that there was an act of Bi'ah performed with her -- prohibits her to the Kohen Gadol. The Gemara here proposes that there is a difference between a Be'ulas Atzmo (a woman with whom her husband did Bi'ah prior to the marriage) and a Be'ulah who did Bi'ah with another man. The Torah prohibits a Kohen Gadol from marrying a Be'ulah who did Bi'ah with another man because the logic of "Sofah Liheyos Be'ulah Tachtav" cannot apply; the Bi'ah which she eventually will do with her husband will not be the same -- it will be less disgraceful, since it will be his and not another man's, and thus what will happen after the marriage is not identical to what happened before the marriage. Accordingly, the Bi'ah she did with another man before marriage renders her unfit to remain married to a Kohen Gadol.
This logic also explains the view of Rav Huna in the name of Rav that a Kohen must divorce a Be'ulas Atzmo and may not remain married to her. Why does the logic of "Sofah Liheyos" not apply in such a case? Rav maintains that the Bi'ah that occurs after marriage is a Bi'ah of "Ishus," marriage. Such a Bi'ah is not detestable and is thus unlike a Bi'ah without Ishus (even with the same man who eventually marries her). Therefore, the case of a Be'ulas Atzmo cannot be compared to the cases of Bogeres and Mukas Etz.
2) A KOHEN GADOL WHO MARRIES A WOMAN WHOM HE WAS "MEFATEH"
OPINIONS: The Gemara says that according to Rav Huna, a Kohen Gadol who marries an "Anusas Atzmo," a woman whom he raped, may not remain married to her. However, even though he is required to terminate the marriage, the marriage is considered valid with regard to his exemption from paying a fine to a woman whom he was Mefateh. The Torah gives a man the option of marrying the woman he was Mefateh or paying a fine (Shemos 22:16). By marrying the woman he was Mefateh, the Kohen Gadol exempts himself from the fine even though he is not permitted to marry her or to remain married to her.
The wording of the Beraisa implies that this Halachah applies only to the prohibition against marrying a Be'ulah. If the Kohen Gadol marries a woman who is forbidden to him because of a different Isur (for example, he was Mefateh a woman who was widowed during Erusin (an Almanah) and is not a Be'ulah), he must divorce her and pay the fine even though he married her.
What is unique about the Isur of Be'ulah that, by transgressing the Isur and marrying a Be'ulah whom he was Mefateh, the Kohen Gadol is exempt from paying the fine of a Mefateh?
(a) RABEINU TAM (cited by the TOSFOS YESHANIM to 55b; see also the note of REBBI SHLOMO EIGER in Chidushei Rebbi Akiva Eiger to Kesuvos 30a) writes that a woman who is "Be'ulas Atzmo" is not prohibited to a Kohen Gadol mid'Oraisa but only mid'Rabanan.
According to Rabeinu Tam, the reason why the Chachamim were lenient in a case in which the Kohen Gadol married his Mefutah who is Be'ulas Atzmo and exempted him from the fine is clear -- she is prohibited to him only mid'Rabanan. (Although he is not exempt from the fine when he marries a woman prohibited because of any other Isur d'Rabanan (such as Sheniyos l'Arayos), the Isur against marrying a Be'ulas Atzmo is a weaker Isur in that the Isur d'Oraisa against marrying a Be'ulah is only an Isur Aseh, and thus the Chachamim were more lenient in the case of a Be'ulas Atzmo.)
(b) TOSFOS (59a, DH Ileima) disagrees with Rabeinu Tam and says that the Isur against marrying a "Be'ulas Atzmo" is mid'Oraisa. However, Tosfos (60a, DH she'Eino Meshalem) suggests that the Isur against remaining married to his Be'ulas Atzmo may be mid'Rabanan, even according to Rav Huna in the name of Rav who says that the Kohen must divorce her.
According to the view of Tosfos, the reason why the Chachamim were more lenient in the case of a Kohen Gadol who marries his Be'ulas Atzmo is clear. The Chachamim exempted the Kohen from the fine since the Isur against remaining married to a Be'ulas Atzmo is only mid'Rabanan. In contrast, the Chachamim did not exempt him from the fine when he marries a woman to whom he is prohibited to remain married mid'Oraisa (such as an Almanah).
(c) However, TOSFOS later (60a) expresses doubt about whether the Isur to remain married is only mid'Rabanan. Tosfos writes that it is possible that both the Isur to marry her and the Isur to remain married to her are mid'Oraisa. Why, then, should the Kohen be exempt from a fine when he marries a Be'ulas Atzmo whom he was Mefateh?
It must be that mid'Oraisa he is actually exempt from the fine when he marries any woman to whom he is prohibited, even though he is required to divorce her. In the case of Be'ulas Atzmo, the Chachamim were lenient and did not require him to pay the fine since the Isur against marrying such a woman is only an Isur Aseh which is "Eino Shaveh ba'Kol" (it applies only to a Kohen Gadol). Even though he is also exempt mid'Oraisa from the fine when he marries an Almanah, the Chachamim nevertheless required him to pay it.
Moreover, perhaps the Chachamim were lenient in the case of Be'ulas Atzmo because people are not aware of the Isur against marrying a Be'ulas Atzmo. Since the Kohen Gadol probably did not know that he was prohibited from marrying her, the Chachamim did not require him to pay the fine.