Trigger warning: this d'var Torah talks about rape and its consequences, both biblically and in the current political climate.
At the end of August I wrote a d'var Torah for the Torah portion Ki Tetse. I haven't posted it here yet, but it continues to be relevant as discussion of women's bodies and abortion continue to be part of the various election races in our country, so I decided to post it now.
Torah reading: Deuteronomy 22:23-29: "In the case of a virgin who is engaged to a man--if the man comes upon her in town and lies with her, you shall take the two of them out to the gate of that town and stone them to death: the girl because she did not cry for help in the town, and the man because he violated another man's wife. Thus you will sweep away evil from your midst. But i the man comes upon the engaged girl in the open country, and the man lies with her by force, only the man who lay with her shall die, but you shall do nothing to the girl. The girl did not incur the death penalty, for this case is like that of one party attacking and murdering another. He came upon her in the open; though the engaged girl cried for help, there was no one to save her.
"If a man comes upon a virgin who is not engaged and he seizes her and lies with her, and they are discovered, the party who lay with her shall pay the girl's father fifty [shekels of] silver, and she shall be his wife. Because he has violated her, he can never have the right to divorce her." (Translation from The Torah: A Modern Commentary, Revised Edition, URJ Press 2005)
In this week’s Torah portion, Moses gets down to business. According to Maimonides, 72 of the 613 mitzvot are in Ki Tetse, our Torah portion for this week. Many of them are commandments about ethical behavior in community, and there is an overarching theme of behaving in ways that will support the unity, cohesiveness, and peace of the community. The laws include returning lost items you may find to their owners, helping someone whose donkey or ox has fallen on the road to raise it up again, putting a railing around the roof of your house so no one can fall off it, using honest weights and measures in business, paying workers on the day they do the work, not muzzling an ox while it’s threshing, and many more.
The brief section that I read this evening concerns rape of an engaged woman or a virgin, and consensual sex between a engaged woman and a man not her fiancé. This is a difficult passage for me, for two reasons. One is that upon first reading, the section about the betrothed woman sounds a little like Missouri Senate candidate Congressman Todd Akin. If the man takes her in the city and she doesn’t cry out, it isn’t rape? That sounds kind of like the text is saying it is only a “legitimate” rape if the woman calls for help. Then there is the next bit, about the virgin who is raped, and who then must marry her rapist. This seems rather akin to being forced to carry and give birth to a child fathered by her rapist, and then to have to give him visitation with the child or even custody—in our country, 31 states have no law to prevent rapists from claiming parental rights. Todd Akin is not my representative, for which I am thankful, but this is my Torah. What am I to do with this section?
Part of our theology is that we are partners with God in creation. Before we eat bread we say the motzi, praising the Creator who “brings forth bread from the earth.” But of course bread doesn’t grow from the earth—wheat does. God provides the wheat, and we make it into bread. We are partners in creation.
We are also partners with God when it comes to the Torah. It is crucial that we do not simply disregard a text in the Torah that disturbs us. It is no accident that we are taught that the centuries of discussion and interpretation of Torah is also called Torah. We are partners with God in the ongoing creation of the Torah, just as we are partners with God in the creation of the world.
Every time we read the Torah, we bring our own life experience to it, as well as the ideas and social mores of the culture in which we live. This is appropriate. Interpretations of biblical text should change, and God’s law exists at the intersection between the Torah and the human experience in any time period. This is not hypocritical or disingenuous. Rather, it is what allows the Torah to be a living document that continues to be relevant and have something to teach us.
One concern this raises is that we might get it wrong. How do we know, when we’re interpreting Torah, that we aren’t just making it say what we want it to say right now? After all, some members of the clergy in this country famously used the Bible to justify slavery, for example. There are four ways to do the best we can not to get it wrong. First, take it seriously. Read the text carefully, in the original Hebrew if possible, and if that’s not possible, with the consciousness that translation is itself interpretation, and look at multiple translations. Second, stand on the shoulders of those who came before—study the commentary of the rabbis of our tradition through the centuries, look at the midrash, and examine how they understood the text for their time. Third, argue. Discuss the text with someone else who is also examining it seriously. Learn from your friend, and help your friend to learn from you, as you wrestle with the text together. Fourth, use your best sense of justice, learned from our tradition as well as from our society, to interact with the words of Torah.
One of my teachers, Rabbi David Greenstein, suggested an approach to Torah that assumes that the text must be just—how could the Torah not be? If it seems that it is not just, we must be reading it wrong, and we have to figure out a different way to understand it. That doesn’t necessarily work with every passage in the Bible, but it is a good place to begin embracing difficult texts even more tightly than easy ones, to wrestle with them, determined not to let go until we find a blessing in them.
This brings me back to our text for this evening. A betrothed woman who is taken sexually by a man. In the town, if she does not cry out, both are put to death. In the field, where no one could hear her cries and help her, only the man is put to death. If a man rapes an unmarried virgin, he must marry her. Judith Antonelli points out that it is important to recognize the culture in which these women lived, and that they were considered in most ways the property of men—first their fathers, then their husbands.[1] A woman who was not under the protection of either a father or a husband had a very difficult life. An unmarried woman who was not a virgin had a very hard time finding a husband, even if the reason she was not a virgin was that she was raped. That is the context in which the Torah was written.
This does not, however, mean that the text is saying that if a woman doesn’t cry out, she was not raped. Our great sage Nachmanides recognized that there are many cases in which a woman cannot cry out for help as she is being raped. Perhaps the rapist has a knife to her throat, or perhaps she is paralyzed by fear. Today we might add that perhaps he slipped a roofie into her drink, or perhaps she is drunk. Nachmanides therefore concluded that the words “cry out” are intended to be understood as the “common case,” but not a literal criterion determining whether or not a rape occurred.[2]
Today we also recognize that women are sexual beings, as are men. Women have consensual sex, and some women do cheat on their partners. So there are two cases being discussed in our passage: a case where the betrothed woman is raped, either in the city or in the field, and a case where she actually does have consensual sex with a man not her fiancé. In this reading, then, our text is not implying that there are legitimate rapes and non-legitimate ones depending on the behavior of the woman. It is saying that there are rapes, when a woman usually would cry out, though not always, and there is consensual sex.
We now move on to the next section of our passage, the virgin who is raped. Nachmanides, reading the text very carefully, notes that the rapist must marry her, but says that she or her father may refuse. He writes, “Either the girl or her father can withhold consent, for it is not proper that he should marry her against her will, and do two evils to her…. The proper law is that the decision of marriage be left up to her and not up to him…so that violent men should not take liberties with the daughters of Israel.”[3] He is applying what he knows to be just, using it in his interpretation of the text so that the text is just, without changing the text. The fact is that given the situation of women in the time of the Torah, a woman might actually choose to marry the rapist, and in fact rape was a common way for men to claim women as their wives in that ancient time. Remember the story of the rape of Dinah in the book of Genesis—Shechem assumed that he was entitled to marry her because he had raped her, as appalling as that is to us today.
I believe that in our day, how to handle a pregnancy resulting from rape is analogous to the idea of marrying the rapist. Using Nachmanides’s interpretation, I would suggest that the decision of what a woman impregnated by a rapist should do about that pregnancy should be entirely in her hands, so as not to, in Nachmanides’s words, “do two evils to her,” by taking control of her body away from her when it has already been taken away from her once by her rapist. I would go so far as to say that while the rapist should be allowed no parental rights, if the woman chooses to give birth to the baby and keep it, she should be able to force the rapist to pay child support, if she chooses. That’s my homiletical interpretation of the Torah’s statement that the rapist must marry the woman he attacked, and may not ever divorce her.
We’ve come a long way since the time of the Torah. Women are recognized as autonomous human beings, not owned by anyone. Women run businesses, are leaders in government, are rabbis and cantors. One thing, though, hasn’t changed. When we read our Torah portion this week, we see that the Torah assumes that rape is something that happens. It’s not a good thing, and in the case of the betrothed woman, the Torah compares it to one man murdering another. But there is no sense in our Torah portion that it would do any good to say, “Don’t rape women.” It is assumed that this is something some men will do.
In all the talk over the last couple of weeks about how likely women are to get pregnant from rape, and what should happen when they do, there has been a lot of outrage. But that outrage has not been aimed at the fact that women are getting raped at all. One in six women is the victim of a rape or attempted rape in her lifetime, according to the Rape, Abuse and Incest National Network. One in six! Women live their lives in a constant, low level of fear that we’re so used to that we mostly don’t notice it. But it’s always there. That’s where our outrage should be. We should not have to talk about what happens when a woman gets pregnant from a rape, because a woman should Never. Get. Raped. And yet. One in six American women. Is it really just the human condition that this happens? As we search our souls this high holiday season, perhaps we could spend a little time on what we could do to change whatever it is in our culture that makes rape a given part of it.
I want to go back to our Torah portion, Ki Tetse, one more time. The portion begins with, “When you go out to war….” It doesn’t say, “if.” As I’ve already said, it talks about women getting raped as a fact of its society. It faces this fact. We must face it, too, in our day. We should be outraged, but as long as it’s happening, we must deal with the consequences. We shouldn’t have to talk about what happens when a woman gets pregnant from a rape, but we do have to. And when we do, we must consider how we can return to women their dignity and autonomy after an attacker has taken it.
May we always wrestle respectfully and honestly with our Torah, allowing its difficult passages to make us face the hard facts of our culture and ourselves, and may we combine our best efforts with God’s words to find the way to a better, safer, more peaceful world. Amen and Shabbat Shalom.
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