'Yefat Toar' and Morality

Accusing the Torah of supporting rape is like accusing a doctor of supporting illness.

Rabbi Eliezer Melamed,

מצווה. הרב מלמד
מצווה. הרב מלמד
פלאש 90

Slander of the Torah and Israel

In recent months we have witnessed a libelous defamation of our holy Torah and the people of Israel who teach its' values ​​to the world, propagated by the secular media, together with women MK's from the leftist Meretz party, concerning the issue of 'eshet yefat toar' (a non-Jewish woman captured in battle) and the appointment of Rabbi Krim as the next Chief Rabbi of the I.D.F.

Although the majority of blame lies with the slanderers who failed to comprehend the Torah's profundity, we also are responsible to explain the Torah's words and values ​​completely and precisely, while emphasizing its Divine vision and logic, so that any decent person is able to understand just how true and compassionate the Torah is, and to what extent tikkun olam (repairing the world) is dependent on its study and fulfillment.

The Status of Those Defeated in War in the Past

In ancient times, the victors of wars would do whatever they pleased with those they vanquished. Any type of abuse was considered acceptable, both legally, and morally. Those who fell in captivity were considered the property of the victors. Many of them were killed and publicly abused (for that reason, King Saul asked to be killed with his own the sword, rather than be captured by the Philistines). Some were slaughtered as sacrifices on the altars of their gods, while others were taken for murderous games and used as gladiators in wars against wild beasts or between one another, until death.

In most cases, a large percentage of the men were killed, and the rest were sold as slaves. The beautiful and young women were "fortunate": they weren't killed, but rather, first the soldiers would rape them as they pleased, and when finished with them, the women were thrown into cages of prostitutes, or sold as slaves and concubines. This was the norm; therefore, it was common practice among the nations that when defeat was imminent, the women would adorn themselves in order to appeal to the victorious soldiers, and thus, save their lives.

Many of them harbored the hope that perhaps one of the enemy soldiers would covet and protect her, wishing to use her as a concubine. And perhaps afterwards, she would even be able to improve her standing and be legitimately considered his second wife, or maybe even his first wife. And if not, then at the very least she might have been sold as a concubine to an old, sick and crippled man who would not abuse her as much, and if lucky enough to bear him a child -  he might even support her, and save her from dying of starvation. Parents would even help their own daughters to adorn themselves as it was the only chance to save them and possibly have their seed continue existing in the world because, in most cases, the were useless were killed so as to reduce the number of people who needed to be fed, for often wars were fought over means of sustenance, and consequently, one of the objectives was to kill the vanquished, and inherit their fields.

Some women even came to the throne in this manner, such as the captive Martha Skavronskaya. Initially, a soldier had taken her captive and she became his mistress. Following this, his commander coveted her, and took her as his mistress. Afterwards, the commander in chief took her for himself, and when the notable Minister Menshikov set eyes on her, he then took her for himself. When Tsar Peter the Great – the symbol of Russian enlightenment, saw her – he craved her, and took her for himself. Not only that, but so his first wife wouldn't cause any problems, he put her in a convent until the end of her life, married the captive legally, and renamed her Catherine the First. When he died, she became the leader of the Russian empire for two years until her death (1727).

The Custom in Europe after the Eradication of Slavery

For the last hundreds of years, along with the eradication of slavery in Europe, the legal status of individuals in developed countries gradually improved. Captives from countries defeated in war were no longer sold as slaves, however, they could indeed be made to serve hard labor for the kingdom, or the conquering country. This helped the victorious countries steady their economies, like the Soviet Union did with hundreds of thousands of German prisoners after World War II.

As far as looting and rape was concerned, until the end of World War II it was customary that for three days following the occupation of a city, law and order was overlooked so that soldiers were able to plunder and rape women freely, on the condition their brutality was not over-exaggerated. When the first three days ended, the laws of war prohibiting looting, rape and murder began to be enforced. Only in 1949 the Fourth Geneva Convention established protection for civilian populations in times of war.

The Law of 'Eshet Yefat Toar'

After all this, we can now address the law of 'eshet yefat toar' from the Torah, and understand to what extent the Torah uplifted the Jewish nation and mankind as a whole, by determining restrictions for the complicated and difficult situation of the cruelty of war.

Ideally, in times of war a soldier is required to guard himself against any thoughts of sexual immorality, and think only about saving Israel and victory in war (Rambam, Laws of Kings and Wars 7:16). This is included in the general mitzvah of guarding the sanctity of the camp, as it says: "When you go out as together against your enemies, you must avoid everything evil… because God your Lord makes His presence known in your camp, so as to deliver you and grant you victory over your enemy. Your camp must therefore be holy. Let Him not see anything lascivious among you, and turn away from you"(Deuteronomy 23:10-15).

After victory, while taking women captive, a soldier must ideally guard himself from illicit thoughts. If, nevertheless, he desired one of the women captives, the Torah permitted him to have relations with her once, provided he does so with the commitment to marry her afterwards if she so pleased. Some of our Sages (Rabbi Yochanan and Shmuel) were of the opinion that in any event, only after she converted was the soldier permitted to have relations with her, and apparently, this was the l'chatchila (ideal) directive; but in a bediavad (after the fact) situation, the halakha was determined that a soldier was permitted to have relations with the captive woman one time, under the aforementioned conditions (Rambam, ibid., 8:1; Kesef Mishneh).

The details of the law are as follows: the heter (permission) to have relations with the woman is only in the heat of battle, while taking the woman from her dwelling to captivity; but once in captivity, it is forbidden for any soldier to touch any captive woman.

The heter is on the condition that the soldier commits to marry her afterwards, as it says: "If you see a beautiful woman among the prisoners and desire her, you may take her as a wife" (Deuteronomy 21:11). Therefore, a soldier is allowed to take only one woman, and no more. Similarly, it is forbidden for him to take a woman for his brother or someone else; rather, only a soldier who coveted a particular woman is allowed to take her for himself.

After having relations with her once, he is forbidden to have relations with her again until their marriage is arranged. In other words, if the woman captive agrees to enter under the wings of the Divine Presence and convert and marry him – she is immediately converted.

If she still did not consent to convert and marry him, he leaves her to weep in his house for thirty days over her mother and father, and over her former religion which she must forsake. And the Rambam added that she is even allowed to publicly worship the idolatry she was accustomed to worship, without talking to her about matters of Jewish faith during the entire month (Moreh Nevuchim III: 41).

After the month had ended, if the man decided he did not want to marry her, she must agree to accept the seven Noahide laws, is released, and it is forbidden for him to keep her as a servant or sell her to others, as it says: "If you do not desire her, however, you must send her away freed. Since you have had your way with her, you may not sell her for cash or keep her as a servant" (Deuteronomy 21:14). In other words, if in the end he did not want her, in retrospect, the first time he had relations with her he had violated her, and in order to compensate, he must set her free.

If after this month he still desired her and she agrees to convert and marry him, she is converted, and marries. If she did not want to convert and marry, she remains with him for twelve months, because perhaps in the end she will change her mind. If after twelve months she has not consented, she must agree to accept the seven Noahide laws and is released.

A Bediavad Heter

From verses of the Torah, we have learned that the heter is a forced and bediavad type of approval, as our Sages said: "The Torah only provided for human passions: it is better for Israel to eat flesh of animals about to die yet ritually slaughtered (a doubtful prohibition), than flesh of dying animals which have perished (a definite prohibition)" (Kiddushin 21b). And although it is permitted bediavad, the Torah attempted to distance us from it as best as possible, thus hinting that such marriages will not be blessed, will often cause family conflicts and disputes over inheritances, and result in situations where a son born out of such a marriage is liable to be wayward and rebellious.

Our Sages termed this as "aveira goreret aveira" (one sin leads to another sin) (Tanchuma, Ki Taytzeh 1), and similarly, Rashi comments: "Scripture in permitting this marriage is speaking only against the evil inclination which drives him to desire her. For if the Holy One, blessed is He, would not permit her to him, he would take her illicitly. The Torah teaches us, however, that if he marries her, he will ultimately come to despise her…and he will ultimately father through her a wayward and rebellious son. For this reason, these passages are juxtaposed." Likewise, we find a similar incident occurred with King David and his son Amnon who raped Tamar, and Avshalom who rebelled against his father and sought to kill him (Sanhedrin 21a, Tanchuma, ibid.).

Today the Heter is Null and Void

Indeed, in Arab countries and ones similar to them, it is still common practice for soldiers to rape women and kill people; even in Western armies many soldiers break the law and rape women from occupied or controlled populations. In any event, since the heter of eshet yefat toar is against the evil inclination so as to regulate the behavior of a soldier under cruel and evil conditions and thus save him from transgressing more serious prohibitions, today, thanks to the positive influence of the Torah's morality, the laws of war among Western nations have improved, both from the aspect of the defeated populations lives' not being handed over as property to the occupiers, and also, as military laws are enforced more effectively on soldiers – the heter of eshet yefat toar is null and void. The law has returned to its original objective, forbidding a man and a woman to maintain sexual relations outside the framework of marriage in accordance with halakha.

The Slander and its Correction

Therefore, those who slandered the Torah, implying it supports rape, are similar to people who vilify doctors, accusing them of causing people to get sick by lending legitimacy to their illness.

All this considered, a great principle from the law of eshet yefat toar has emerged: finding fault with something is easy; knowing how to correct it by means of planting positive foundations within a harsh, cruel, and complicated reality is called for, and this can be achieved specifically through the Jewish nation.

This article appears in the 'Besheva' newspaper, and was translated from Hebrew. Other interesting, informative, and thought-provoking articles by Rabbi Melamed can be found at: http://en.yhb.org.il/



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