Ketuvot 10a ~ Virginity

תלמוד בבלי כתובות דף י עמוד א

ההוא דאתא לקמיה דרבן גמליאל אמר ליה פתח פתוח מצאתי אמר ליה שמא הטיתה אמשול לך משל למה הדבר דומה לאדם שהיה מהלך באישון לילה ואפילה היטה מצאו פתוח לא היטה מצאו נעול

A man came before Rabban Gamaliel and said to him, I have found an ‘open opening’ [i.e. he claimed his wife was not a virgin]. He [Rabban Gamaliel] answered him: Perhaps you moved aside. I will give you an illustration: To what may this be compared? To a man who was walking in the deep darkness of the night [and came to his house and found the door locked]; if he moves the bolt aside he finds the door open, if he does  not move the bolt aside, he finds it locked. 

Many, many years ago I celebrated by Bar Mitzvah by laying my parsha, (כי תצא). My instruction focussed on getting the trop right; understanding the content - not so much.  Which perhaps was just as well, because here's part of what I read:

דברים פרק כב, יג-כא 

כי יקח איש אשה ובא אליה ושנאה: ושם לה עלילת דברים והוצא עליה שם רע ואמר את האשה הזאת לקחתי ואקרב אליה ולא מצאתי לה בתולים: ולקח אבי הנער ואמה והוציאו את בתולי הנער אל זקני העיר השערה:  ואמר אבי הנער אל הזקנים את בתי נתתי לאיש הזה לאשה וישנאה:  והנה הוא שם עלילת דברים לאמר לא מצאתי לבתך בתולים ואלה בתולי בתי ופרשו השמלה לפני זקני העיר:  ולקחו זקני העיר ההוא את האיש ויסרו אתו: וענשו אתו מאה כסף ונתנו לאבי הנערה כי הוציא שם רע על בתולת ישראל ולו תהיה לאשה לא יוכל לשלחה כל ימיו: ואם אמת היה הדבר הזה לא נמצאו בתולים לנער:  והוציאו את הנער אל פתח בית אביה וסקלוה .נשי עירה באבנים ומתה כי עשתה נבלה בישראל לזנות בית אביה ובערת הרע מקרבך

If any man takes a wife and goes in to her and then hates her, and charges her with shameful deeds and publicly defames her, and says, "I took this woman, but when I came to her, I did not find her a virgin."  Then the girl’s father and her mother shall take and bring out the evidence of the girl’s virginity to the elders of the city at the gate. And the girl’s father shall say to the elders, "I gave my daughter to this man for a wife, but he hated her. And look, he has accused her saying, I did not find your daughter a virgin.' But this is the evidence of my daughter’s virginity." And they shall spread the cloth before the elders of the city. And the elders of that city shall take that man and chastise him. And they shall fine him a hundred shekels of silver and give them to the girl’s father, because he publicly defamed a virgin of Israel. And she shall remain his wife; he cannot ever divorce her.

But if this charge is true, that the girl was not found a virgin, then they shall bring out the girl to the doorway of her father’s house, and the men of her city shall stone her to death because she has perpetrated wantonness in Israel by playing the harlot in her father’s house. And you will purge the evil from among you. (Deut 22: 13-21.)

The first several pages of Ketuvot discuss issues around this passage from the Torah; they are  difficult reading for anyone with modern sensitivities. The Talmud takes most seriously the requirement that a woman be a virgin when she marries for the first time. (There is no similar Torah requirement for a man- though sex before marriage was generally frowned upon). In this page of Daf Yomi a man claimed his new wife was not a virgin, because he found "an open entrance". In reply, Rabban Gamliel suggested that perhaps she was indeed a virgin, but that he had "angled the entry" and in so doing had not felt the expected resistance.  Elsewhere (6b) we have read of the claim that some men were knowledgeable about intercourse with a virgin "at an angle" - and that these men are certainly allowed to consummate their marriage on a Friday night, since they will not cause the bride to bleed. So far, in the first ten pages of Ketuvot, we've read a lot about virginity and about bleeding on a bride's wedding night. So let's talk about that. (If this makes you uncomfortable, I suggest you stop reading this and return to Daf Yomi at Bava Kama.)  

The Hymen

Hymen was the Roman-Greek god of marriage.  Anatomically, the hymen is a fleshy membrane that is part of the female external genitalia. The evolutionary explanation for the hymen is not certain, and several theories have been proposed - none of them very satisfying.  In the Talmud the assumption is that this membrane is intact until torn during a woman's first intercourse.  This causes bleeding, and hence the reference in the Torah of a father "spreading the bedsheets" to show proof that his daughter had been a virgin when she wed.

“איבעיא להו: מהו לבעול בתחלה בשבת, דם מיפקד פקיד או חבורי מיחבר ”

— תלמוד בבלי כתובות דף ה עמוד ב

The Doctor Can't always Tell (and Neither Can the Husband)

In a 1978 paper, two gynecologists described a small study of women who were virgins, and concluded that the hymen is intact in only a proportion of cases. In a more recent study, 52% of women who had past intercourse were found on examination to have an intact hymen.  The doctor just can't tell. And neither can the husband. 

DON'T BLAME THE VICTIM

The Talmud elsewhere describes a family in Jerusalem whose women were allowed to carry chains around their legs on Shabbat. Why were they given this permission? Rabbi Yochanan picks up the story:

There was one family in Jerusalem who took large strides when they walked and consequently the hymenal membranes of the young girls in this family would fall out. (ArtScroll note: "This was unfortunate, since an intact hymenal membrane serves as proof of a bride's virginity".) The elders made garters for them and put a chain between the garters, so that their strides would not be large, and as a result their hymens did not fall out. (ArtScroll note: "According to one interpretation cited by Meiri, the chain makes a sound when the steps are too rapid and forceful; thus, the sound itself reminded the girls to take delicate steps.") 

This is, to say the least, a difficult story to understand. But modern medicine is fairly clear on the subject.  All girls born with a vagina have a hymen.  "If hymenal tissue cannot be identified" wrote three experts from the Department of Pediatrics and the Sexual Assault Center at the University of Washington, "traumatic disruption should be considered as a possible cause." And an Israeli study  from the Bellinson Medical Center in Tel Aviv of over 25,000 newborn girls came to the same conclusions.  I know other cultures have their own taboos around virginity, but their taboos are not my concern right now.  The taboos of my culture are.  And for every girl and woman who was a victim of them, I am sorry. So very sorry.

Rav MOSHE Feinstein on what's really important

In 1973 Rav Moshe Feinstein (d. 1986), was asked by a newly observant woman if she needed to reveal her sexual history to a man she was dating.  Rav Moshe's remarkable sensitivity to this question can be felt through the words of his legal response. Yes, here and there are some remarkably sexist words, but put them aside and look at the big picture. Look where Rav Moshe went with this.  

שו"ת אגרות משה אורח חיים חלק ד סימן קיח 

ובדבר אם צריכה את להגיד להבחור שירצה לישא אותך לאשה, ודאי את צריכה לגלות לו, אבל אינך צריכה להגיד לו בראיה והכרה דפעם ראשונה שעדיין לא ידוע אם ירצה בכלל השידוך וממילא אסור אז להגיד לו, ורק אחרי שתדעי שרוצה לישא אותך בברור שכבר אמר לך ודבר בדבר הנישואין, צריכה את לומר רק בזה שנזדמן איזה פעם בשעה שלא היה לך כובד ראש כל כך לעמוד נגד המפתה בדברי רצוי ופתוי הרבה ותיכף נתחרטת ומצטערת על זה שאירע דבר כזה עד שיכיר מדבריך שאין לו לחוש שיארע גם כשתהא נשואה לו, ואז מאחר שהוא רוצה בך מפני שהכיר המעלות שלך לא יחזור בו בשביל זה שאירע איזה פעם מאחר שיכיר אותך לנערה שומרת תורה ומצותיה שיש להאמין שלא חשודה את שוב בזה ותהי' אשה מסורה לבעלה כדין התורה. 

Regarding whether you must tell the man who may want to marry you [about your sexual past, and not being a virgin] you must indeed tell him, but you don't have to do so the first time that you meet- because at that  stage it is not clear that he wants you. In fact at that stage it would be forbidden to tell him. Only after you are certain that he wants to marry you - when he has already told you and spoken about the marriage arrangements - then you must tell him. [Explain it to him this way:] It once happened when you were not thinking clearly and you were not able to withstand the man seducing you, and you immediately regretted your actions and were sorry that you had done this. [When he sees your sincerity] he will understand from your words that he does not have to worry that this would happen again if you were married to him.  For he will see your qualities and and will not regret his decision [to marry] because of what happened in your past. He will recognize that you are a woman who observes the Torah and its mitzvot, and he will believe that you will not countenance repeating this behavior, and you will be a  woman who is in the service of her husband as the Torah mandates. 

But what about the Ketuvah - the marriage contract that is read aloud at (orthodox) Jewish weddings? The text is clear "that so-and-so is marrying this virgin"! How, asked this woman of Rav Moshe, how can we put this in the document when it is not true? 

בדבר כתיבת הכתובה אין צורך להגיד למסדר הקידושין, כי מאחר שהחתן יחתום על הכתובה הרי הסכים לכתובת בתולה ושוב ליכא קפידא ומחוייב בכתובת בתולה אף אם באמת אינה בתולה אם לא הטעתה אותו...והנני בברכה שהשי"ת יקבל תשובתך ולא תכשלי עוד בשום חטא ותתנהגי בדרך התורה ומנהגי ישראל קדושים ותבנה בית כשר ונכון בישראל, משה פיינשטיין

Regarding the writing of the Ketuvah, you need not tell the rabbi who is officiating.  Since the groom is signing the Ketuvah he is agreeing to the use of the term "virgin" - and there is nothing else to be worried about. He will  be bound to the legal terms as if you were a virgin, even if in truth you are not, so long as you did not mislead him....And I bless you that God will accept your repentance and that you will  not stumble again with any transgression; that you will follow the path of the Torah and build a fit and proper house in Israel. [signed] Moshe Feintsein

This letter from Rav Moshe reminds us what it is that is of real importance in a marriage: Honesty, fidelity, compassion and forgiveness.  It's a wonderful lesson to carry with us as we study the rest of Ketuvot.  

Ketuvot 8b ~ When Some Plagues End, and Others Begin

This post is for the page of Talmud to be studied tomorrow, Thursday July 14th.

 כתובות דף ח עמוד ב 

 רבון העולמים, פדה והצל, מלט, הושע עמך ישראל מן הדבר ומן החרב ומן הביזה, ומן השדפון ומן הירקון, ומכל מיני פורעניות המתרגשות ובאות לעולם, טרם נקרא ואתה תענה, ברוך אתה עוצר המגפה

Master of the worlds, redeem and save, deliver and help your nation Israel from pestilence, and from the sword, and from plundering, from the plagues of wind blast and mildew [that destroy the crops], and from all types of misfortunes that may break out and come into the world. Before we call, you answer. Blessed are You, who ends the plague.

In tomorrow’s page of Daf Yomi, the secretary of Resh Lakish, a man by called Yehuda bar Nachmani, offers four blessings that may be said as part of the meal eaten at a house of mourning. Although the fourth blessing, "Who ends the plague" (עוצר המגפה) is not said usually today, we do have a tradition of giving thanks when a plague comes to an end.

The Prayer of Thanks After the Cholera Epidemic in London, 1850 

In the nineteenth century, London was ravaged by a series of brief but intense cholera epidemics that killed hundreds at a time in a matter of days. The infectious agent, we know today, was Vibrio Cholerae. If it finds its way into your intestine, its toxin will cause the cells of your gut to excrete water at a remarkable rate. The result is overwhelming dehydration, and death may follow in a matter of hours. (Water-borne cholera epidemics are still common. After the 2012 Haitian earthquake over 4,000 people died from it. That's 4,000 people who survived the earthquake itself, only to die from drinking water that was infected with cholera.)

Like all epidemics, cholera flares up and then disappears, even when no effective medical interventions are available.  It was when one of these devastating outbreaks of cholera had ended, that the Jews of London came together to do what Resh Lakish described. On Nov 1, 1850, they offered a prayer of thanks at the cessation of the plague of cholera.

 ידך היתה בבני ארצנו בחלי–רע לאין מרפא רבים חללים הפיל עד שאיש נבוב חת לקול אמות דפק על פתחו וחיל אחז אמין לב בגבורים. אך חנון ירחום אתה, לא לעולם תזנח ולא לנצח תטור אם הבאבת תחבוש, ואם תמחץ ידיך תרפינה. שלחת רוחך ותחלימנו צוית והמגפה נעצרה  

“Your hand lay heavily on the inhabitants of this land. Cholera struck many down. The strongest heart trembled at the voice of death sounding at the threshold, and the boldest among the mighty were seized with terror and anguish. But gracious and and merciful are You; Your wrath does not last long, nor does Your anger last for ever. You strike some and heal. You wound but it is Your hand which prepares the calm. In the depths of our terror and affliction You sent Your spirit and there was a pause. You commanded, and the Plague ceased... ”

— Service of Thanksgiving on the Cessation of the Cholera, London, Nov 1850.

Why did the cholera epidemic end so quickly? There is, of course a scientific explanation:

[I]t's possible that the V. Cholerae's dramatic reproductive success...had been the agent of its own demise...it quickly burned through its primary fuel supply. There weren't enough small intestines to colonize....It's also possible that the Vibrio cholerae had not been able to survive more than a few days in the well water... With no sunlight penetrating the well, the water would have been free of plankton, and so the bacteria that didn't escape might have slowly starved to death in the the dark, twenty feet below street level...But the most likely scenario is that the bacterium was itself in a life-or-death struggle with another organism: a viral phage that exploits V. cholerae for its own reproductive ends the way V. cholerae exploits the human small intestine. One phage injected into a bacterial cell yields about a hundred new viral particles, and kills the bacterium in the process. After several days of that replication, the population of V. cholerae might have been replaced by phages that were harmless to humans. (Steven Johnson, The Ghost Map, 152).

But this explanation lessens not one bit the religious impulse to give thanks.  

THE END OF ONE PLAGUE, THE BEGINNING OF ANOTHER

In 2015 in West Africa, a terrible Ebola epidemic slowly came to an end. Although there was neither an effective vaccine to prevent Ebola, nor an effective anti-viral to treat it, public health interventions there paid off, and life is slowly returned to normal.

Back in the US, at around the same time. another plague began. That one, while far less lethal that Ebola, was all the more tragic; all the more tragic because it is entirely preventable.  There were more than 100 cases of measles in January 2015 alone (compared to about 600 for all of 2014), most of them linked to exposure in December at Disneyland in California.  I had the measles as a kid. If you were born before the 1970s, it's likely you've had it too. My aunt caught it when she was carrying my cousin, who was born deaf, the result of congenital measles infection.  Back then, there was no vaccine.  There is now.  And don't start with the autism-vaccination thing.  There is no link between autism and vaccination. None.  Yet in significant numbers, Jewish parents - and some of them educated, are refusing to vaccinate their children.  Vaccine denial is not limited to some haredi communities, (though in many cases their vaccination rates are remarkably  low).  It was seen in affluent neighborhoods with highly educated parents, where the vaccine denial movement has become a cult in which any and all scientific evidence is ignored.

In this daf, the secretary of Resh Lakish offered a Prayer of Thanks when a plague ended. But precisely when did he say these words?  At a funeral. The funeral of a young child (ינוקא). The secretary of Resh Lakish offered these words of thanks at a child's funeral, and directed them towards "all Israel" (כנגד כל ישראל), that is, towards the survivors.  How ironic it is, that it is the children who were at most at risk in this measles epidemic. And how tragic that they faced the complications of this illness (including pneumonia, diarrhea, encephalitis, subacute sclerosing pan-encephalitis, and death,) because of the reckless behavior of their parents.

Risk factors of underutilization of childhood immunizations in ultra-orthodox populations. From Muhsen K. el at. Risk factors of underutilization of childhood immunizations in ultraorthodox Jewish communities in Israel despite high access to health care services. Vaccine 2012. 30; 2109–2115

Characteristics of parents who reported vaccine doubts. From Gust D. et al. Parents With Doubts About Vaccines: Which Vaccines and Reasons Why. Gust D. et al. Pediatrics 2008;122: 718–725

Want to read more on vaccine denial and Jewish leadership? Click here for our 2019 article in The Lehrhaus.

Ketuvot 5b ~ Earlobes and Spandrels

:כתובות ה

תנא דבי רבי ישמעאל מפני מה אוזן כולה קשה והאליה רכה? שאם ישמע אדם דבר שאינו הגון יכוף אליה לתוכה

A Baraisa was taught in the academy of Rabbi Yishmael: Why is the [upper part of the] ear hard, but the earlobe is soft? So that if a person overhears something inappropriate, he will be able to bend the lobe in the ear canal [and block out the sound]. 

In 1979 Stephen J. Gould (d. 2002) and Richard Lewontin published a paper that would rock the world of evolutionary biology.  They suggested that evolution by natural selection could not explain every feature of an organism. Sometimes, a feature is a non-functional byproduct of evolution, rather than a direct result of it. Gould and Lewontin give an example from the world of architecture, from the spandrels in the church of San Marco in Venice. A spandrel is a by-product, formed when a dome sits upon a rounded arch, shown in the pictures below.

"San Marco Spandrel" by Maria Schnitzmeier - Detail of Image.

These spaces - these spandrels- are accidental spaces, and yet are intricately decorated, as if they were deliberately designed to have been there in the first place.  The design of these spaces "is so elaborate, harmonious, and purposeful," wrote Gould and Lewontin, that

 we are tempted to view it as the starting point of any analysis, as the cause in some sense of the surrounding architecture. But this would invert the proper path of analysis. The system begins with an architectural constraint: the necessary four spandrels and their tapering triangular form.   

Just as spandrels are accidental, some features of an organism are not the result of natural selection, but instead are "spandrel-like"in their origin. This was not to suggest that natural selection was incorrect; only that it was not a complete explanation of an organism's form and behavior. 

So what are earlobes for?  Indeed, are they for anything? Perhaps they are just spandrels, and can now happily be pierced and used to hold rings, studs, and other decorative ornaments. The Academy of Rabbi Yishmael disagree with this premise. Earlobes are not a spandrel-like by-product of evolution, but a designed part of our anatomy. And they are designed to act as an ear-plug when it would be best not to hear what is being said.  The Chofetz Chaim, Rabbi Yisrael Meir Kagan (d.1933) wrote a famous work on the laws of gossip, called ספר שמירת הלשון. In it, he cited today's passage, and wrote that the earlobe is better at blocking the sound than is a finger. Try it. Is he right? (I did. He isn't.) 

A: Ear of a treeshrew (Tupia) B: Ear of a new world monkey (Cebus) C: Primate (& Human) ear and its constituent parts.  From Friderun Ankel-Simons, Primate Anatomy: An Introduction. Academic Press 2010.

We humans share much with our primate cousins.  We share an opposable thumb; we share much of our DNA, and we share our ear anatomy.  Rabbi Yishmael teaches us to put that ear anatomy to good use. 

Ketuvot 3b ~ The Law of the First Night

Jules Arsene Gardie,  Le Droit Du Seigneur 1872

Mazal Tov; When's The Wedding?

Today, when a bride and groom wish to secure a wedding day, it will depend on their budget and the availability of the caterer. My, how things have changed. In the times of the Mishnah, the wedding day was decided by the availability of the local rabbinic court, the Bet Din. Then, a wedding (of a virgin) could only take place on the night before the Bet Din convened.  This would ensure that if, after their magical first night, the groom suspected that his bride had not been a virgin, he could take his claim to court the very next day.  

“ מפני מה אמרו בתולה נשאת ליום הרביעי שאם היה לו טענת בתולים היה משכים לב”ד
Why did they teach that a virgin must only marry on a Wednesday? So that if the groom questioned her virginity, he could hurry to the Bet Din...”

— Ketuvot 3a

Today's page of  Talmud explains that this happy custom changed during a period of persecution. Rabbah, a fourth century Babylonian sage, explained what this is all about: 

כתובות ג,ב

אָמַר רַבָּה, דְּאָמְרִי: בְּתוּלָה הַנִּשֵּׂאת בְּיוֹם הָרְבִיעִי תִּיבָּעֵל לַהֶגְמוֹן תְּחִלָּה

"[The authorities] said, "a virgin who gets married on Wednesday will first have intercourse with the governor" (הגמון). In order to avoid this awful legal rape, the wedding was moved a day early, to fly, so to speak, under the radar of the local governor. The Talmud also explains that this edict only applied for those who married on a Wednesday, rather than any other day of the week, which is an odd detail that is difficult to explain.

A longer version of the legend is found in the Jerusalem Talmud (Ketuvot1:5). Here it is.

בָּרִלאשׁוֹנָה גָֽזְרוּ שְׁמָד בִּיהוּדָה. שֶׁכֵּן מְסוֹרֶת לָהֶם מֵאֲבוֹתָם שֶׁיְּהוּדָה הָרַג אֶת עֵשָׂיו. דִּכְתִיב יָֽדְךָ בְּעוֹרֶף אוֹיְבֶיךָ. וְהָיוּ הוֹלְכִין וּמְשַׁעְבְּדִין בָּהֶן וְאוֹנְסִין אֶת בְּנוֹתֵיהֶן וְגָֽזְרוּ שֶׁיְּהֵא אִיסְטְרָטֵיוֹס בּוֹעֵל תְּחִילָּה. הִתְקִינוּ שֶׁיְּהֵא בַּעֲלָהּ בָּא עָלֶיהָ עוֹדָהּ בְּבֵית אָבִיהָ. שֶׁמִּתּוֹךְ שֶׁהִיא יוֹדַעַת שֶׁאֵימַת בַּעֲלָהּ עָלֶיהָ עוֹד הִיא נִגְרֶרֶת

In earlier times they [the Romans] decided on a persecution in Judea because they had a tradition from their forefathers that Jehudah had killed Esav, as it is written Gen. 49:8: “Your hand is on your enemies’ neck.” They went and enslaved the Jews and raped their daughters; and they decided that a soldier would cohabit with a bride first. The Sages decreed therefore that her husband should cohabit with her while she was still in her father’s house, for when she knows that her husband’s fear is on her she is drawn after him…

This episode likely describes the period after the Bar Kochba rebellion, and as the Guggenheimer translation notes, the Bavli is a “toned down” version of the this story. In this version, any soldier could take the bride, and not just the hegemon, and he could claim the bride on any day, not just on a Wednesday.

Jus Primae Noctis in the Talmud & Midrash

The law that Rabbah referenced is known variously as Jus Primae Noctis, the Law of the First Night and, much more graphically, as The Right to the Thigh - Droit du Cuissage. Its origins are further explained in the Talmud Yerushalmi, which dates it to the time of the Bar Kochba revolution:

 תלמוד ירושלמי כתובות פרק א הלכה ה  

בראשונה גזרו שמד ביהודה שכן מסורת להם מאבותם שיהודה הרג את עשו...  והיו הולכין ומשעבדין בהן ואונסין את בנותיהן וגזרו שיהא איסטרטיוס בועל תחילה התקינו שיהא בעלה בא עליה עודה בבית אביה 

In the beginning, they [the Romans] decreed destruction in Judea (for they had a tradition that Yehuda killed Esau) ... and they enslaved them and raped their daughters, and decreed that a soldier would have intercourse [with a bride] first. It was then enacted that her husband would cohabit with her while she was still in her father's house. 

A reference to Primae Noctis also appears in the Midrash Rabbah, a collection of rabbinic homilies edited sometime in the forth or fifth century. As told in Genesis 6, “the sons of God saw that the daughters of man were beautiful (tovot), and they took wives from whoever they chose.” The Midrash focuses on that word beautiful, and explains:

בראשית רבה (וילנא) פרשת בראשית פרשה כו 

אמר רבי יודן טבת כתיב, משהיו מטיבין אשה לבעלה היה גדול נכנס ובועלה תחלה, הדא הוא דכתיב כי טבת הנה, אלו הבתולות ויקחו להם נשים מכל אשר בחרו, אלו נשי אנשים, 

“Rabbi Judan said the word tovot (טבת) – beautiful – is written in the singular, [but read as a plural]. Meaning that the bride was made beautiful for her husband, but the lord of the nobles had intercourse with her first...”

This midrash is cited by Rashi (d. 1105), the great French exegete, in his commentary to the Torah. And this isn't the only time Rashi uses Primae Noctis to explain a historical event.  According to Rashi, it was this law that precipitated the rebellion of the Maccabees against their Greek oppressors, an uprising that culminated in the miracle of Chanukah:

תלמוד בבלי שבת דף כג עמוד א 

דאמר רבי יהושע בן לוי: נשים חייבות בנר חנוכה, שאף הן היו באותו הנס

 רש"י שם:  שגזרו יוונים על כל בתולות הנשואות להיבעל לטפסר תחלה  

Rabbi Yehoshua ben Levi said: Women are obligated to take part in the lighting, for they were included in that miracle...

Rashi: For the Greeks made an edict that all virgins who were about to marry must first have intercourse with the Prefect...

JUS PRIMAE NOCTIS...IN THE Movies

There are numerous references to Primae Noctis in ancient and modern literature, from the Epic of Gilgamesh to The Marriage of Figaro. One more recent example can be seen in the 1995 movie Braveheart, when the evil King Edward gallops into a village, to interrupt a wedding celebration. “I’ve come to claim the right of Primae Noctis. As lord of these lands, I will bless this marriage by taking the bride into my bed on the first night of her union.”  And as the groom is restrained by Edward's henchmen, Edward reminds the peasants “it is my noble right.”  

Jus Primae Noctis. Is there a more fearsome example of feudal barbarism? Of what one scholar called “a male power display…coercive sexual dominance…and male desire for sexual variety”?  But the legend, despite its appearance in many guises, is, fortunately, likely to be nothing more than just that: a legend.  

Jus Primae Noctis...is a Legend

Perhaps the most comprehensive investigation of the legend of Primae Noctis is The Lord's First Night: the Myth of the Droit de Cuissage, by the French social scientist Alain Boureau. (I bought my copy for less than $10, and no, you can't borrow it.) His careful analysis is particularly important since, as we have seen, Rashi, our favorite French commentator, cites this legend twice. After a meticulous two-hundred page review of every alleged appearance of the legend, Boureau is clear:

““[T]he droit de cuissage never existed in medieval France. Not one of the arguments, none of the events insinuated, alleged or brandished, holds up under analysis.””

— Alain Boureau, The Lord's First Night,

Others scholars agree with Boureau. In 1881, the German historian Karl Schmidt concluded that the right never existed.  In 1973, the historian J.Q.C. Mackrell noted that there is "no reliable evidence" that it existed. And Prof. Tal Ilan, of the Free University of Berlin, addressed the myth of Primae Noctis in a magnificently titled 1993 paper: Premarital Cohabitation in Ancient Judea. Prof. Ilan noted that that “all medieval literature that evokes the custom of Jus Primae Noctis has been proven to be folkloristic and has no historical basis.” But what about the evidence from the Talmuds, and the Midrashim? Don’t they provide evidence that Primae Noctis was indeed practiced in the time of the Talmud? Not so, claims the professor:

“If a motif of this sort could have appeared in a sixteenth-century document and upset the entire history of medieval Europe for the next two centuries, the same motif likewise could have cropped up in the fourth -or fifth-century Palestinian Talmud, falsely describing events of the second century.”

Instead, Prof Ilan suggests that the Talmud used the myth of Primae Noctis to excuse the behavior of some prospective couples, who would engage in sexual relations before they married.  “the jus primae noctis was conveniently drawn in order to explain and justify a custom that seemed to the rabbis to undermine their view of proper conduct in Jewish society.”

“Some events do take place but are not true; others are—although they never occurred.’
”

— Elie Wiesel, Legends of Our Time

There is some further support to the claim that primae noctis never existed, and it is not one I have seen suggested before.  It is a claim from silence.  I've checked over 100,000 responsa, and there is not one on this topic. Not a single one.  If primae noctis really was a law of the Greek and Roman empires, and a feudal right across medieval Europe, then why were its implications for the Jewish community never discussed in the responsa literature?  This silence supports the conclusions of work done by Boureau, Ilan and others: it never existed. In fact Boureau wonders what muddled thinking would lead anyone to believe it existed in the first place: 

It has been clear from the start that no matter what social restrictions were put on conduct and the management of wealth, and no matter how violent mores became, the principle of free choice of an unfettered matrimonial life was the most sacred area of individual liberty in medieval Europe. The Church, European society's principal normative center, very early removed all restrictions on the marriage of dependents, and it imposed consent as a sacramental value.  No juridicial form, no custom, could attack that principal...sanctified in the twelfth century by the establishment of the sacrament of matrimony.  

History and Heritage

The historian David Lowenthal has explained the differences between history and heritage. While history "seeks to convince by truth," heritage "passes on exclusive myths of origin and endurance, endowing us alone with prestige and purpose." Heritage, continues Lowenthal, commonly alters the past: sometimes it selectively forgets past evils, and sometimes it updates the past to fit in with our modern sensibilities. Sometimes it upgrades the past, making it better than it was, and sometimes it downgrades the past, to attract sympathy.  And so, how we read the Talmud will depend on whether we see it as a work of history or as a book of our heritage.  

“There you have it...some of it fact, and some of it fiction, but all of it true, in the true meaning of the word”

— Miles Orvel, The Real Thing: Imitiation and Authenticity in America

There are stories both wonderful and terrible from our Jewish past. Some are factual, and some are not, and a measured approach to how we might approach these stories has been suggested by Judith Baumel and Jacob J. Schacter. They explored the claim (published in The New York Times) that in 1942, ninety-three Beis Yaakov schoolgirls in Cracow committed suicide rather than face rape by their German captors. They concluded that the evidence to support the truth of the story is not conclusive one way or the other. 

Whether or not it actually happened as described is difficult to determine, but there is certainly no question that it could have happened...in response to those claiming that the incident was "unlikely" to have occurred, let us remind the reader that the period in question was one during which the most unlikely events did occur, when entire communities were wiped out without leaving a single survivor...Maybe it did happen. But maybe again it didn't. Could it have happened? Of course.

The horrors of the Holocaust left in their wake a hope that, having touched the lowest levels of depravity, humanity would say Never Again, and a new era of responsibility for all of would follow. But our recent history shows that this lesson was not learned, that the world can be a truly terrible place. The legend of Primae Noctis is not likely to have been true. But some stories are true, even though they never happened. Ask yourself, from what you know about Jewish history, could it have been true? Yes. And that's what makes it all the more terrifying.