RAPE

RAPE (Heb. אֹנֶס, ones), sexual intercourse with a woman against her will. Unless the contrary be proved by the testimony of witnesses, intercourse with a woman in a place where no one could have come to her aid even if she had cried out ("in the open country," Deut. 22:25, 27) will be presumed to have occurred against her will. If, however, it happened in a place where she could have summoned help ("in the town," Deut. 23), but there are no witnesses to testify that she did so, she will be presumed to have been seduced, i.e., to have consented to intercourse (ibid. and Sif. Deut. 242:5 and commentaries; Yad, Na'arah Betulah 1:2 and Hassagot Rabad thereto). If intercourse took place while she was asleep and thus unaware, she is considered to have been raped because of the absence of her free will. Intercourse with a female minor is always regarded as rape since she has no will of her own (Yev. 33b, 61b; Sh. Ar., EH 178:3 and Beit Shemu'el n.3, thereto). If intercourse began as a forcible violation but terminated with the woman's consent, she will nevertheless be regarded as having been raped since in such circumstances her passions and nature have compelled her to acquiesce (Ket. 51b; Yad, Issurei Bi'ah 1:9). -Legal Consequences IN CIVIL MATTERS A person who violates a virgin na'arah (between the ages of 12 years and one day and 12 years and six months) must pay a fine at the fixed amount of 50 shekels of silver (Deut. 22:28–29), as well as compensation for pain and suffering, shame, and blemish, which is to be assessed according to the circumstances in each case (Yad, Na'arah Betulah 2:1–6; see damages ). If the na'arah is seduced, the seducer is liable to pay the same fine and compensation, but in view of her consent is not liable for compensation for pain and suffering (za'ar; ibid.). Since when laying down the liability for the fine the pentateuchal law speaks of a na'arah only, there is no liability for a fine upon the rape or seduction of a bogeret i.e., a girl above the age of 12 years and six months (Yad, ibid. 1:8), but compensation for pain and suffering, shame, and blemish is due if she was raped (Tur, EH 177, contrary to Yad, ibid. 2:10, 11). The seducer of a bogeret is exempt from all financial liability toward her since, having consented to the intercourse, she is presumed to have waived all such claims (Ket. 42a; Yad, ibid.; Beit Yosef, EH 177). IN PERSONAL LAW MATTERS In addition to the financial liabilities mentioned above, the violator of a na'arah is compelled to marry her, "She shall be his wife… he cannot put her away all his days" (Deut. 22:29), unless marriage between them is prohibited by the pentateuchal or rabbinic law (see marriage , Prohibited). However, for the reasons set out above concerning the fine, this obligation does not apply if the victim is a bogeret (Ket. 39a; Yad, ibid. 1:3; 5:7; Resp. Radbaz, no. 63; Glosses (haggahot) of Akiva Eger to Sh. Ar., EH 177:2). The na'arah or her father may refuse her marriage to the violator, in which event the transgressor will be exempt from the obligation to marry her and be liable only for the fine and the other payments (Yad, ibid. 1:3; Sh. Ar., EH 177:3). A person who seduces a na'arah has no obligation to marry her (Yad, ibid.). A married woman who has been raped does not become prohibited to her husband unless he is a priest, in which case he must divorce her (Yev. 56b; Yad, Ishut 24:19, 21; Sh. Ar., EH 6:10, 11; see also marriage , Prohibited). The outraged wife's pecuniary rights toward her husband, in particular her ketubbah , remain unaffected in both cases since there is no blameworthiness on her part (Yad, ibid. 24:22; Sh. Ar., EH 115:6). In suits concerning matters of rape and seduction the court must be composed of three competent ordained judges (mumḥim semukhim), and, therefore, in strict law the fine (see above) is no longer recoverable since today there are no semukhim (see bet din ); in various takkanot, however, the scholars have nevertheless regulated for recovery of the fine, "lest the sinner be rewarded" (Tur, EH 177; Sh. Ar., EH 117:2; Resp. Radbaz, no. 63; see also fine ). -In the State of Israel Of practical significance is the halakhah concerning the effect of rape on the marital relationship between the victim and her husband, since this is a matter of personal law which for Jews is governed by Jewish law. The purely civil-law aspects, such as the question of compensation, are governed before the civil courts by the general law of the state, i.e., the Civil Wrongs Ordinance, 1946 (NV 1968). The provision that a person must marry the na'arah he has violated is rendered unenforceable by the provisions of the Marriage Age Law, 1950, as amended in 1960. -BIBLIOGRAPHY: ET, 1 (19513), 166–72; 2 (1949), 60–63, 295f.; B. Schereschewsky, Dinei Mishpaḥah (19672), 49–51, 316. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:72, 287, 290, 790ff.; 2:842, 1070; idem, Jewish Law (1994), 1:80, 339ff., 344ff.; 2:969ff.; 3:1030, 1291; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest), (1986), 3–5; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 4–5. (Ben-Zion (Benno) Schereschewsky)