Ketuvot 29 ~ The Terror of Rape

משנה מסכת כתובות פרק ג משנה א 

אלו נערות שיש להן קנס הבא על הממזרת ועל הנתינה ועל הכותית הבא על הגיורת ועל השבויה ועל השפחה שנפדו ושנתגיירו ושנשתחררו פחותות מבנות שלש שנים ויום אחד הבא על אחותו ועל אחות אביו ועל אחות אמו ועל אחות אשתו ועל אשת אחיו ועל אשת אחי אביו ועל הנדה יש להן קנס אף על פי שהן בהכרת אין בהן מיתת בית דין: 

These are the girls (aged between twelve and twelve and a half) for whom a fine is levied for raping them...

Today we begin to study the third chapter of Ketuvot, which focuses on the damages to be paid to a virgin who was raped, (or seduced,) by a man. These laws were later codified in the Shulkan Arukh, the code of Jewish Law, written by R. Yosef Karo (d. 1575) in sixteenth century Israel. Here they are. Read them carefully.

שולחן ערוך אבן העזר הלכות אונס ומפתה סימן קעז 

סעיף א

 המפתה בתולת ישראל (עד שלא תבגר, והיא מבת שלשה ואילך) (טור הרא"ש), משלם בושת ופגם וקנס. ואם אנסה, משלם עוד צער. ואם נשאה המפתה, אינו צריך ליתן קנס

One who seduces a virgin of Israel before she reaches majority age, which is from three years and onward (Tur, the Rosh) pays embarrassment, blemishing and a fine. And if he rapes her he also pays the pain. And if the seducer married her he need not pay the fine.

סעיף ב

אונס ומפתה, דנין אותה בשלשה דיינים, ובלבד שיהיו סמוכים, בא"י. והאידנא שאין סמוכים, מנדין אותו עד שפייס את חבירו; וכד יהיב ליה שיעור מאי דחזי למיהב, שדינן ליה. (והבת, כל זמן שהיא ברשות אביה, הכל לאביה (גם זה שם). ועיין בטור סימן זה שהאריך בדינים אלו, והרב המחבר קצר בהם, שאינם שכיחין

A rapist or a seducer is judged by three judges, as long as they were ordained in the land of Israel. And now when there are no such ordained judges, we excommunicate them until they appease their fellow. And when they give an amount of money to him that is appropriate, we release their excommunication. And as for a daughter, as long as she is in her father's domain, her father gets everything (ibid). See Tur in this paragraph who discussed this matter at length, and the Shulkhan Arukh abbreviated them, for this is not common. 

סעיף ג

האונס את הבתולה, חייב לישא אותה, ובלבד שהיא ואביה יהיו מרוצים, אפי' היא חגרת או סומא, ואינו רשאי להוציאה לעולם אלא לרצונה. לפיכך אין צריך לכתוב לה כתובה. ואם עבר והוציאה, כופין אותו להחזירה

One who rapes a virgin must marry her, as long as she and her father so desire. Even if she is lame or blind. And he may never divorce her except with her consent. Therefore, he need not write her a ketubah. But if he transgressed and divorced her, they force him to remarry her.

As an emergency physician, I cared for a number of women who have been raped.  I interviewed them, examined them, and collected forensic evidence. The horror of their having been assaulted was, I am sure, compounded by my legally necessary but emotionally gratuitous clinical exam. There is a danger that the talmudic discussion can likewise seem overly clinical. But behind the legal back and forth is a brutal reality. To help keep the victim front and center, let's talk about the crime of rape.

International Rape Statistics

Rape plagues society everywhere. It's really hard to get accurate statistics to compare countries, since reporting rates and definitions of what actually constitutes rape vary. With that caveat, here's what the UN found:

Penalties for Rape

United States. In 2008, there were about 203,000 victims of rape age 12 and older. The penalties for rape vary by state. In New York, rape in the first degree is a felony that carries a penalty of 5-25 years in prison. In New Jersey, first degree sexual assault carries a sentence of 10-20 years. In Massachusetts, rape that results "in serious injury" (doesn't all rape result in that?) is punishable by life in prison, and no less that 20 years if committed by force (isn't that all rape?). The rape of a child under 16 carries a similar penalty. In 1977 the Supreme Court ruled that under the Eighth Amendment, the rape of an adult woman could not carry the death penalty. There are almost 160,000 men in prison for rape in the US.

US. Department of Justice. Office of Justice Programs, Bureau of Justice Systems. Prisoners in 2013.

United Kingdom. Rape carries a penalty of 11-17 years in custody, with a minimum of 10 years in prison if the victim was a child between 13 and 16 years of age.  If the victim was under 13, the starting penalty is 13 years in prison. The average time served for rape in the UK is eight years.

Israel. Rape of an adult carries a penalty of 4-16 years in prison. In addition the victim may receive damages of up to 228,000 NIS. Rape of a child under 16, or carried out with a firearm, or with the assistance of another person, carries a minimum sentence of 20 years (see חוק העונשים התשל׳ז–1977, and later amendments). 

Causes of Intentional Injury by Gender and Population. From Gofin, R. et al. Intentional Injuries Among the Young; Presentation to Emergency Rooms, Hospitalization and Death in Israel.  Journal of Adolescent Health 2000:27:433-44.

In a study of children with intentional injuries treated in Israeli ERs, the rates for rape were 1.5 times higher in Jewish children than Arab children. 

“Although selected cases may reach the ER, it is estimated that between 1-4 in 10 or 20 cases of rape are reported. Stigmatization, fear, and feelings of shame or guilt may preclude rape disclosure by victims or their caretakers.”

— Rosa Gofin. Intentional Injuries Among the Young In Israel, 2000.

Jewish law. Rape (including rape of a child older than three) is punishable by a fine of 50 shekels paid to the father of the victim.  The rapist is required to marry his victim (unless she or her father refuses) and he cannot forcibly divorce her.  In addition, the rapist must pay damages for pain and suffering and monetary loss, the latter based on the lower value a woman who is not a virgin has in the market for marriage. If the rapist marries the victim, some of these fines are not levied. There are no fines for the rape of a child under three, or the rape of an unmarried  woman who is not a virgin. Rape of a married woman is punishable by death.

A President of Israel, A Convicted Rapist

In December 2010, then President of Israel Moshe Katsav was convicted of rape while he had been  serving as Israel's Minister of  Tourism in 1998. The verdict was upheld by the Israeli Supreme Court, and Katsav began his seven-year prison sentence in December 2011. The national shame at this crime was perhaps slightly mitigated by one of its lessons, articulated by Prime Minister Netanyahu, "that all are equal before the law, and that every woman has exclusive rights to her body."

In his commentary to R. Karo's  שולחן ערוך that we read above,  R. Moshe  Isserles (d.1572)  explained that the שולחן ערוך did not detail some of the the laws of rape, because it was such a rare crime - (הרב המחבר קצר בהם, שאינם שכיחין).  How wrong, how very sadly wrong, he was. 

Niddah 45a ~ The Youngest Mother in the World

Tomorrow we will read a bizarre and disquieting passage. In it, Yusteni, the grandchild of the Roman Emperor Antoninus, asked the great editor of the Mishnah, Rabbi Yehudah HaNasi at what age a girl is fit for intercourse as a means of betrothal, and at what age she may conceive a child. Let’s not attempt to identity this “Antonius,” (it is complicated) and focus on the reply. Rabbi Yehudah HaNasi thought that a girl may be betrothed by intercourse from the age of three years (and one day). However, he continued, she is incapable of conceiving until she is at least twelve years (and one day) old. To which Yusteni replied:

נדה מה, א

אני נשאתי בשש וילדתי בשבע אוי לשלש שנים שאבדתי בבית אבא

I married when I was six, and when I was seven I gave birth. Woe for those three years, between the age of three, when I was fit for intercourse, and the age of six, when I married, as I wasted those years in my father’s house by not engaging in intercourse.

Yusteni was not the only extremely young mother mentioned in the Talmud. In fact the Talmud in Sanhedrin (69b) entertains the possibility that a girl as young as six years of age could give birth to a child. And who could be the holder of such a record? It was Batsheva, the wife of King David.

“Batsheva gave birth when aged six
ובת שבע אולידא בשית”

— T. Sanhedrin 69b

Don't try this at home

Today we are going to do something that goes against a fundamental belief I have about Aggadah - (rabbinic stories and legends): that they should never be taken literally.   Instead, we are going to take these two passages of Aggadah literally. They suggest that a girl as young as six (Batsheva) or seven (Yustenai) can give birth. Is this suggestion in any way scientifically possible? You might be surprised.

The Youngest Mother in the World

 In May 1939 the French medical journal La Presse Medicale published a report from Lima about a little girl who had given birth to a baby at the age of only five years and seven months. Let me say that again. She had given birth to a baby when she was five years and seven months old.  Putting aside the monstrous child abuse that is at the heart of this story (if that is even possible to do), let's focus on the pregnancy itself.

Report from La Presse Medicale, May 31, 1939. The complete original is here.

The little girl in the picture is Lina Medina, then five months pregnant. She lived in Peru, and her parents had brought her to a hospital fearing she had a tumor in her abdomen.  Instead she was found to be pregnant, and six weeks later she gave birth by cesarian section to a healthy baby boy. She named her son Gerardo, after the chief physician Dr. Gerardo Lozada at the hospital where she was diagnosed. Her father was briefly arrested for child abuse but was later released. No charges were ever brought against her abuser, who Lina did not identify.  Lina later married and had a second son in 1972.

The New York Times, November 15, 1939.p9.

How do we know the story is true?

On November 15, 1939, The New York Times reported that the story had been authenticated by Dr S.L. Christian, the assistant surgeon general of the US Public Health Service. Christian had travelled to Peru, and while there he examined Lina.  There is also a case report from Dr Edmundo Escomel on the pathology of one of Lina's ovaries that had been removed at the time of her cesarian section. (For those of you who are French speaking pathologists, you can read it here.) The report notes that Lina had the ovaries of a fully mature woman, and that she likely had a pituitary disorder that caused her precocious fertility.   The story of Lina Medina has been authenticated by the fact-checking website Snopes, and there is a Wiki page about her (though having a Wiki page is not really proof of anything.)

Finally, there is a paper from a team at Hadassah Medical School in Jerusalem, published in Fertility and Sterility in 2009. The paper (titled At what age can human oocytes be obtained?) addresses the methods to remove and preserve eggs and sperm from young patients undergoing chemotherapy. "Increasing numbers of young cancer survivors" they wrote, "are experiencing infertility related to their past cancer treatment. Having children thus becomes an important issue for young cancer patients." One option to preserve fertility is to retrieve and preserve oocytes, which are the precursors to the ovum, the mature egg. The authors (who cite the pathology report on Lina Medina's ovary) report the successful removal of oocytes in girls ages 5, 8 and 10.  This report from Hadassah is of the youngest age for ovarian oocyte retrieval, and demonstrates that even in girls who show no signs of menarche (the onset of menstruation), it is possible to find oocytes that can mature into eggs.

From Revel A. et al. At what age can human oocytes be obtained? Fertility and Sterility 2009; 92 (2):458-463.

Was Yustenai different, or lying?

Avraham ben Mordechai HaLevi (1650-1712) lived in Egypt and served as the senior rabbi in Cairo. In his work Gan Hamelech (The Garden of the King), he commented on the passage about Yustenai. He noted that the Talmud has two responses to her claim. The first suggests that the ability to have a child at the tender age of seven was limited to Gentiles. The Talmud cites a prooftext from Ezekiel (23:20)”for their flesh is the flesh of donkeys,” although it is unclear how that might prove anything. The second suggestion is that Yustenai was simply not telling the truth. This implies that it is simply not possible to conceive and carry a child at such a young age. The sage from Cairo rejected the second possibility, and found the claim of Yustenai to be plausible, but one was not biologically possible for a Jewish woman.

His conclusion was rejected by another Jewish scholar, Chayyim Yosef Dovid Azulai (1724-1806) known as the Chida. In his commentary on the Talmud called Petach Einayim the Chida thought that Yustenai’s story was simply implausible. He therefore supported the second possibility brought by the Talmud, which cited as a prooftext a verse from Psalms (144:8) “Whose mouth speaks falsehood, and their right hand is a right hand of lying.”

Neither sage was completely correct. We now know that there is absolutely no biological difference between Jews and Gentiles, so that means Avraham HaLevi’s conclusion is mistaken. And we also know that it is indeed possible for a girl of six or seven to conceive and carry a child. Just ask Lina Medina, who was younger than six when she gave birth. So Yustenai need not have been lying.

Back to Yustenai and Batsheva

It would appear that it is indeed possible for Yustenai, a first grader, and Batsheva, barely be out of kindergarten, to have given birth at age six or seven.  Today, their abusers would be arrested and locked up for a very long time. How fortunate are we not to have to take these talmudic stories literally, even if they are regrettably, entirely plausible.

“The first group…accept the teachings of the sages in their simple literal sense and do not think that these teachings contain any hidden meaning at all. They believe that all sorts of impossible things must be... They understand the teachings of the sages only in their literal sense, in spite of the fact that some of their teachings when taken literally, seem so fantastic and irrational that if one were to repeat them literally, even to the uneducated, let alone sophisticated scholars, their amazement would prompt them to ask how anyone in the world could believe such things true, much less edifying. The members of this group are poor in knowledge. One can only regret their folly. Their very effort to honor and to exalt the sages in accordance with their own meager understanding actually humiliates them. As God lives, this group destroys the glory of the Torah of God and say the opposite of what it intended.
”

— Maimonides, Introduction to Perek Chelek, Chapter Ten of Mishnah Sanhedrin.

[Mostly a repost from here.]

Sanhedrin 69b ~ The Youngest Mother in the World

In the daily cycle of Talmud study, we are currently learning Sanhedrin, a tractate that discusses all things judicial including capital punishment. In three days from now - Shabbat Shuvah (the Shabbat of Repentance) - we will read a bizarre and disquieting passage. In it, the Talmud discusses a tangential issue (as it so often does) and considers the earliest age at which a boy or a girl could conceive a child. After establishing that a boy as young as eight could father a child, the Talmud entertains the possibility that a girl as young as six years of age could give birth to a child.

סנהדרין סט, ב

Batsheva gave birth when aged six - ובת שבע אולידא בשית

Don't try this at home

Today we are going to do something that goes against a fundamental belief I have about Aggadah - (rabbinic stories and legends): that they should never be taken literally.   Instead, we are going to take this Aggadah literally. It suggests that perhaps (and it is only raised as a possibility) Batsheva, the woman who married King David and was the mother of King Solomon, was only six years old when she gave birth to her first child. Is this suggestion in any way scientifically possible? You might be surprised.

The Youngest Mother in the World

 In May 1939 the French medical journal La Presse Medicale published a report from Lima about a little girl who had given birth to a baby at the age of only five years and seven months. Let me say that again. She had given birth to a baby when she was five years and seven months old.  Putting aside the monstrous child abuse that is at the heart of this story (if that is even possible to do), let's focus on the pregnancy itself.

Report from La Presse Medicale, May 31, 1939. The complete original is here.

The little girl in the picture is Lina Medina, then five months pregnant. She lived in Peru, and her parents had brought her to a hospital fearing she had a tumor in her abdomen.  Instead she was found to be pregnant, and six weeks later she gave birth by cesarian section to a healthy baby boy. She named her son Gerardo, after the chief physician Dr. Gerardo Lozada at the hospital where she was diagnosed. Her father was briefly arrested for child abuse but was later released. No charges were ever brought against her abuser, who Lina did not identify.  Lina later married and had a second son in 1972.

The New York Times, November 15, 1939.p9.

How do we know the story is true?

On November 15, 1939, The New York Times reported that the story had been authenticated by Dr S.L. Christian, the assistant surgeon general of the US Public Health Service. Christian had travelled to Peru, and while there he examined Lina.  There is also a case report from Dr Edmundo Escomel on the pathology of one of Lina's ovaries that had been removed at the time of her cesarian section. (For those of you who are French speaking pathologists, you can read it here.) The report notes that Lina had the ovaries of a fully mature woman, and that she likely had a pituitary disorder that caused her precocious fertility.   The story of Lina Medina has been authenticated by the fact-checking website Snopes, and there is a Wiki page about her (though having a Wiki page is not really proof of anything.)

Finally, there is a paper from a team at Hadassah Medical School in Jerusalem, published in Fertility and Sterility in 2009. The paper (titled At what age can human oocytes be obtained?) addresses the methods to remove and preserve eggs and sperm from young patients undergoing chemotherapy. "Increasing numbers of young cancer survivors" they wrote, "are experiencing infertility related to their past cancer treatment. Having children thus becomes an important issue for young cancer patients." One option to preserve fertility is to retrieve and preserve oocytes, which are the precursors to the ovum, the mature egg. The authors (who cite the pathology report on Lina Medina's ovary) report the successful removal of oocytes in girls ages 5, 8 and 10.  This report from Hadassah is of the youngest age for ovarian oocyte retrieval, and demonstrates that even in girls who show no signs of menarche (the onset of menstruation), it is possible to find oocytes that can mature into eggs.

From Revel A. et al. At what age can human oocytes be obtained? Fertility and Sterility 2009; 92 (2):458-463.

Back to Batsheva

It would appear that it is indeed possible for Batsheva, barely be out of kindergarten, to have given birth to her first child when she was only six years old.  Today, her abuser would be arrested and locked up for a very long time. How fortunate are we not to have to take this talmudic story literally, even if it is, regrettably, entirely plausible.

“The first group…accept the teachings of the sages in their simple literal sense and do not think that these teachings contain any hidden meaning at all. They believe that all sorts of impossible things must be... They understand the teachings of the sages only in their literal sense, in spite of the fact that some of their teachings when taken literally, seem so fantastic and irrational that if one were to repeat them literally, even to the uneducated, let alone sophisticated scholars, their amazement would prompt them to ask how anyone in the world could believe such things true, much less edifying. The members of this group are poor in knowledge. One can only regret their folly. Their very effort to honor and to exalt the sages in accordance with their own meager understanding actually humiliates them. As God lives, this group destroys the glory of the Torah of God and say the opposite of what it intended.
”

— Maimonides, Introduction to Perek Chelek, Chapter Ten of Mishnah Sanhedrin.

next time on Talmudology: Where does a snake keep its venom?

Ketuvot 29 ~ The Terror of Rape

משנה מסכת כתובות פרק ג משנה א 

אלו נערות שיש להן קנס הבא על הממזרת ועל הנתינה ועל הכותית הבא על הגיורת ועל השבויה ועל השפחה שנפדו ושנתגיירו ושנשתחררו פחותות מבנות שלש שנים ויום אחד הבא על אחותו ועל אחות אביו ועל אחות אמו ועל אחות אשתו ועל אשת אחיו ועל אשת אחי אביו ועל הנדה יש להן קנס אף על פי שהן בהכרת אין בהן מיתת בית דין: 

These are the girls (aged between twelve and twelve and a half) for who a fine is levied for raping them...

Today we begin to study the third chapter of Ketuvot, which focuses on the damages to be paid to a virgin who was raped, (or seduced,) by a man. These laws were later codified in the Shulhan Arukh, the code of Jewish Law, written by R. Yosef Karo (d. 1575) in sixteenth century Israel.

שולחן ערוך אבן העזר הלכות אונס ומפתה סימן קעז 

סעיף א

 המפתה בתולת ישראל (עד שלא תבגר, והיא מבת שלשה ואילך) (טור הרא"ש), משלם בושת ופגם וקנס. ואם אנסה, משלם עוד צער. ואם נשאה המפתה, אינו צריך ליתן קנס

סעיף ב

אונס ומפתה, דנין אותה בשלשה דיינים, ובלבד שיהיו סמוכים, בא"י. והאידנא שאין סמוכים, מנדין אותו עד שפייס את חבירו; וכד יהיב ליה שיעור מאי דחזי למיהב, שדינן ליה. (והבת, כל זמן שהיא ברשות אביה, הכל לאביה (גם זה שם). ועיין בטור סימן זה שהאריך בדינים אלו, והרב המחבר קצר בהם, שאינם שכיחין 

סעיף ג

האונס את הבתולה, חייב לישא אותה, ובלבד שהיא ואביה יהיו מרוצים, אפי' היא חגרת או סומא, ואינו רשאי להוציאה לעולם אלא לרצונה. לפיכך אין צריך לכתוב לה כתובה. ואם עבר והוציאה, כופין אותו להחזירה

As an emergency physician, I have cared for a number of women who have been raped.  I have interviewed them, examined them, and collected forensic evidence. The horrors of their having been assaulted was, I am sure, compounded by my legally necessary but emotionally gratuitous clinical exam. There is a danger that the talmudic discussion can, likewise seem overly clinical. But behind the legal back and forth is a brutal reality. To help keep the victim front and center, let's talk about the crime of rape.

International Rape Statistics

Rape plagues society everywhere. It's really hard to get accurate statistics to compare countries, since reporting rates and definitions of what actually constitutes rape vary. With that caveat, here's what the UN found:

Penalties for Rape

United States. In 2008, there were about 203,000 victims of rape age 12 and older. The penalties for rape vary by state. In New York, rape in the first degree is a felony that carries a penalty of 5-25 years in prison. In New Jersey, first degree sexual assault carries a sentence of 10-20 years. In Massachusetts, rape that results "in serious injury" (doesn't all rape result in that?) is punishable by life in prison, and no less that 20 years if committed by force (isn't that all rape?). The rape of a child under 16 carries a similar penalty. In 1977 the Supreme Court ruled that under the Eighth Amendment, the rape of an adult woman could not carry the death penalty. There are almost 160,000 men in prison for rape in the US.

US. Department of Justice. Office of Justice Programs, Bureau of Justice Systems. Prisoners in 2013.

United Kingdom. Rape carries a penalty of 11-17 years in custody, with a minimum of 10 years in prison if the victim was a child between 13 and 16 years of age.  If the victim was under 13, the starting penalty is 13 years in prison. The average time served for rape in the UK is eight years.

Israel. Rape of an adult carries a penalty of 4-16 years in prison. In addition the victim may receive damages of up to 228,000 NIS. Rape of a child under 16, or carried out with a firearm, or with the assistance of another person, carries a minimum sentence of 20 years (see חוק העונשים התשל׳ז–1977, and later amendments). 

Causes of Intentional Injury by Gender and Population. From Gofin, R. et al. Intentional Injuries Among the Young; Presentation to Emergency Rooms, Hospitalization and Death in Israel.  Journal of Adolescent Health 2000:27:433-44.

In a study of children with intentional injuries treated in Israeli ERs, the rates for rape were 1.5 times higher in the Jewish children compared with Arab children. 

“Although selected cases may reach the ER, it is estimated that between 1-4 in 10 or 20 cases of rape are reported. Stigmatization, fear, and feelings of shame or guilt may preclude rape disclosure by victims or their caretakers.”

— Rosa Gofin. Intentional Injuries Among the Young In Israel, 2000.

Jewish law. Rape (including rape of a child older than three) is punishable by a fine of 50 shekels paid to the father of the victim.  The rapist is required to marry his victim (unless she or her father refuse) and he cannot forcibly divorce her.  In addition, the rapist must pay damages for pain and suffering, and monetary loss, the latter based on the lower value a woman who is not a virgin has in the market for marriage. If the rapist marries the victim, some of these fines are not levied. There are no fines for the rape of a child under three, or the rape of an unmarried  woman who is not a virgin. Rape of a married woman is punishable by death.

A President of Israel, A Convicted Rapist

In December 2010, then President of Israel Moshe Katsav was convicted of rape while he had been  serving as Israel's Minister of  Tourism in 1998. The verdict was upheld by the Israeli Supreme Court, and Katsav began his seven-year prison sentence in December 2011. The national shame at this crime was perhaps slightly mitigated by one of its lessons, articulated by Prime Minister Netanyahu, "that all are equal before the law, and that every woman has exclusive rights to her body."

In his commentary to R. Karo's  שולחן ערוך,  R. Moshe  Isserles (d.1572)  explained that the שולחן ערוך did not detail the laws of rape, because it was such a rare crime - (הרב המחבר קצר בהם, שאינם שכיחין).  How wrong, how very sadly wrong, he was.