In the book of Devarim there is a topic which radically departs from accepted Torah law and tradition. That section describes laws dealing with the Eshet Yefat Toar, translated as the beautiful woman, referring to a beautiful Gentil woman who is captured in battle. (See Devarim 21:10-13).
Throughout the Torah, Jews were strictly forbidden to engage in sexual relations with non-Jews. For a man, having such relations in public could be a capital offense. (See Sanhedrin 74b). In a private setting, it allows a Kanai (one jealous about the honor of God) to kill the participants in such an act without trial. (Sanhedren 82a.) Nevertheless, in the circumstance of war, the Torah allows soldiers to essentially force themselves on gentile women they captured in battle. In addition, these woman are forced against their will to be taken to the home of the captor and are expected to forsake their culture and families and even under duress, convert to Judaism.
To understand the foundation of this law, we must deal with the following question raised by the Talmud:
A question is raised, what is the law of a Kohen (priest) with reference to a Yefat Toar? (Rashi adds the words “during battle”). Is it a radical new concept of law (Chiddush) and therefore erases the distinction between a Kohen and an Israelite, or perhaps Kohanim are different because the Torah made them liable to many more commandments (and thus the Kohanim would be forbidden from taking a Yefat Toar). Rav said they would be permitted and Shmuel said they would be forbidden. (Kiddushin 21b).
The Talmud then established the following guidelines:
"In the first of act of intercourse, no one argues that it is permitted (for everyone) for the Torah recognizes the evil inclination of men. (Rashi explains: The Torah permitted this concept in order to control man’s evil desire. If the Torah did not allow it, he (the soldier) would nevertheless violate the prohibition. The evil desire constantly arouses him, therefore, one takes this into account even in the case of Kohanim and thus they are permitted in the first act." (Ibid.)
The Talmud continues:
"When do they argue? In (regards to) subsequent acts of intercourse. (Rashi: When his desire has cooled down.) Rav said, that they (Kohanim) were permitted for once it was permitted, it remains permitted. Shmuel says it was prohibited for the second act could only occur after she converted and a Kohen cannot marry a convert." (See Kiddushin 21b.)
From this argument between Rav and Shmuel we can deduce several conclusions. 1. According to Rav the law of Yefat Toar is sui generis or a radical unique revelation of the Torah i.e. a Chiddush. 2. The concept of Chiddush applies not only to the first act, but to all subsequent sexual acts as well. 3. One must apply the argument of Chiddush for subsequent acts because the initial explanation in the Talmud about man’s evil inclination can no longer be valid because his desire has by now cooled down.
To Shmuel, the only valid interpretation is that of the presence of the evil inclination and that no longer applies after the first act. Thus after the first act, she is no longer permitted to a Kohen.
We see from the controversy above, that the Talmud recognized two separate stages for this law: 1. During battle when the Yefat Toar is fully a gentile; and 2. After the battle, when she is taken to the home of her captor and is required to convert before he may have relations with her.
A competing explanation in the Talmud is that the controversy between Rav and Shmuel about a Kohen only applies to the first act. After she has converted, everyone agrees that she is not permitted to a Kohen (for the second act.) During the first act, however, Rav maintains that the issue of the evil inclination still exists, whereas Shmuel connects the first and second act to the underlying question of whether the Kohen is able eventually to marry her. If he cannot, then he is not permitted in the first act as well. (See Kiddushin 21b).
The question of whether the laws of the Yefat Toar apply to two stages; in the heat of battle prior to marriage or only after marriage, is a major dispute between Rashi and the Tosafot (Rabbeinu Tam). Rashi maintains that no sexual act may occur during battle or immediately following it, but the soldier must wait until after she converts. The Tosafot maintain, if a man’s desire overwhelms his reason, how then can he control his desires and allow them to cool down if he is required to wait 30 days before expressing them? (Kiddushin 22a).
The most interesting analysis of the Yefat Toar is presented by the Rambam. He states:
"Soldiers of the army when they enter the territory of the gentiles and conquer them and capture captives are permitted to eat prohibited meat, including the flesh of swine and similar food if they hunger and do not find what to eat except these prohibited foods. Similarly, they may drink wine which is used for idolatry." (Mishneh Torah, Hilchot Melachim 8:1).
"Likewise, he may have intercourse with a non-Jewish woman if he is overwhelmed by his desire". (Ibid 8:2).
We see that the Rambam puts together three examples of the same general principle. Under the circumstances of war and battle, food, drink and sex which are prohibited under normal circumstances are now permissible. Unlike Rav in the Talmud who designates Yefat Toar as a radical and unique exception to the law, the Rambam designates it as a normal condition in abnormal circumstances. The Rambam goes out of his way to state the permissibility of prohibited food in this new circumstance. He states, “should he hunger.” This tells us that it is a situation which is in no way life threatening. Thus, the implication is that the soldier could find kosher food if he made an extra effort. To the Rambam, this extra effort is unnecessary. If this were truly a situation which would cause risk to life (pikuach nefesh) all things are permissible in order to save one’s life.
We see that war is an abnormal circumstance which at its root allows deviation from Jewish law in order to satiate the desires or lusts of combatants, even if these circumstances do not pose a risk to life. It is interesting to note that satisfying one’s sexual desires is listed third behind food and drink.
The Rambam continues:
". . . however, he may not have relations with her and go on his way. He must bring her to his home. But he is prohibited from having second intercourse with her until he marries her." (Ibid.)
We see from his presentation that the Rambam agrees with the Tosafot and the manner in which the Talmud discussed the argument between Rav and Shmuel that there were two stages in laws dealing with the Yefat Toar. One occurred at the time of battle, and the other after she entered his home and began a mourning period. This is explicitly stated,
"The Eshet Yefat Toar is not permitted except at the time of her capture." (Ibid 8:3)
The interpretation of the Rambam presents us with a logical difficulty. The whole purpose of the Torah’s insistence that the Yefat Toar be taken to the home of her captor and give her a month’s time of mourning is to make her repulsive in order that he drive her away and not marry her. Why then can he not of his own accord immediately drive her away without ever entangling himself with her?
This is a question raised by the Meiri who offers the following analysis:
"You already know that anyone who goes to war and sees a woman among the captives and desires her, if his desire overwhelms him, he is permitted to have intercourse with her even when she is still a gentile. This is based on the premise that he take her into his home, but he should not have the intention only to have sex with her and walk away. But, if his intent is to take her home, then he is permitted to have the first act while she is still a gentile." (Meiri, Commentary on Kiddushin 21a, Nashim 2, p.344).
The Meiri thus tells us that the first act is totally dependent upon the ultimate intent of marriage. The intent of the Meiri as well as the Rambam is to humanize the process and to treat this woman with a degree of respect. He cannot just use her as an object to satisfy his lusts and then discard her. The Meiri goes into great detail how one should proceed in this process.
To the Rambam, there is nothing unique about the Yefat Toar. It simply speaks about the variegated aspects of human life of which the Torah takes notice.
"It is proper that he speak to her to her heart about coming under the wings of God’s presence (i.e. conversion) if she refuses then he leads her gently to his home without harshness or confusion and places her in his home for 30 days to allow her to cry for her father and mother and relatives as well as the abandonment of her faith and customs and does not restrict her." (Ibid)
The Meiri nevertheless admits that the strictures of the Torah is to make her repulsive in the eyes of her captor and he should ultimately drive her away. It is logically difficult to reconcile these two positions. What is more difficult to reconcile is the following passage in the Meiri and a similar one in the Rambam:
A Kohen is permitted to have the first sexual encounter with the Yefat Toar but from this point forward he is not permitted to her because he is prohibited from (marrying) a convert. There is a similar statement in the Rambam. “The Kohen is permitted in a case of a Yefat Toar in the first sexual act, for the Torah allows this to deal with human nature.” (Melachim 8:4.)
If the Meiri (as well as the Rambam) is correct that the whole basis of permitting the first act is the ultimate intent of marriage, how can a Kohen be permitted even in the first act for he is not permitted to marry her? Both positions cannot be true.
Finally, the Rambam brings down the principle of the Talmud that the Torah only spoke against the evil inclination with reference to the Kohen. He does not use it in the context of non-Kohanim. In addition he does not quote this reason in its totality. He does not say the “evil inclination” but simply states “human nature.” (Melachim 8:4). He does not characterize that nature as evil. This supports the contention that there are certain circumstances where human nature must operate under different laws.
To the Rambam, there is nothing unique about the Yefat Toar. It simply speaks about the variegated aspects of human life of which the Torah takes notice. This should not be seen as a moral indictment, but rather the normal functioning of human nature. That is the ultimate understanding of the Yefat Toar.
There has been a good deal of noise in Israel from secular and left wing quarters fwho do not know the rabbinic analysis above, about the entire topic being in the Torah at all, but the issue is not relevant today anyway as Israel is not governed by Jewish law, but international law. The law of Eshet Yefat Toar does provide a realistic analysis of human life and behavior, but like many other laws, its enforcement can only be attained with the coming of the Moshiach.