Several years ago, a military rabbi, Colonel Eyal Qarim, was asked about rape during war. The answer he gave at best avoided the question he was asked and at worst endorsed rape as a weapon of war.
Qarim was not on staff at the time he wrote the response. However, he has held important roles in the Israeli rabbinate both before and after the period when he wrote this. Prior to this question he was the religious adviser to a commando unit. Currently he is a senior officer in the IDF rabbinate.
This very old question and answer made waves last week when Israeli blogger Yossi Gurvitz wrote about it in a 972 blog post. He took the position that Qarim was endorsing wartime rape and even suggesting it was necessary to win the battle. He raised two issues (a) this answer was blatantly unethical by current moral standards (b) this rabbi is on the IDF payroll.
Is the Beautiful Woman Law a Justification for Wartime Rape?
The questioner wanted to know if the biblical laws on “the beautiful women” (Deut 21:10-14) provided a justification for wartime rape.
In a nutshell, if a man at war falls in love with a woman on the battlefield and thinks he wants to marry her, he must wait. She is given a grieving time and he is given time to cool his heels. Only after the waiting period may he take her as his wife. If he decides not to marry her, he is forbidden from keeping her as a slave:
When thou goest forth to battle against thine enemies, and the LORD thy God delivereth them into thy hands, and thou carriest them away captive, and seest among the captives a woman of goodly form, and thou hast a desire unto her, and wouldest take her to thee to wife; then thou shalt bring her home to thy house; and she shall shave her head, and pare her nails; nd she shall put the raiment of her captivity from off her, and shall remain in thy house, and bewail her father and her mother a full month; and after that thou mayest go in unto her, and be her husband, and she shall be thy wife. And it shall be, if thou have no delight in her, then thou shalt let her go whither she will; but thou shalt not sell her at all for money, thou shalt not deal with her as a slave, because thou hast humbled her. (Deut 21;10-14)
A glaring problem is that the passage is told only from the man’s point of view. There is no mention at all about her own willingness for such a union.
Rabbinic literature takes an extremely dim view of any sort of forced intercourse even in marriage. Sukkah 29a tells us that the suffering and moral wrong caused by a rapist seizing someone and no one coming to help was considered so great that it could cause a solar eclipse. Eruvin 100b tells us that all intercourse requires consent. Nedarim 20b enumerates categories of coercion, including psychological coercion (fear, anger, hatred). None of these are permissible.
To harmonize that belief with the written words of the text they were forced to reinterpret any implication that the passage was about rape rather than consensual marriage. This approach is common with other passages having to do with unusual hook-ups. For example if a man tries to have sex with a woman without going through the usual betrothal process, the biblical text in Deuteronomy 21:27 says he must marry her and cannot divorce. The rabbis were quick to note that the text refers to his obligation not hers. Later rabbinic literature took that to mean that she had the right to marry him if she wished, but did not have to. If she chose to marry him, she had no responsibilities in the relationship and could demand the normal financial support of a wife from him as long as he was alive even if she never saw him again. This was really a mechanism to ensure her economic security. If she did not wish to marry him, she got the equivalent of a full ketuba payment.
There is a further problem with this passage: can someone in a situation of captivity act from any motive other than fear or possibly hatred? According to the modern understanding of sexual choice, the answer is no. The power imbalance between captor and captive would make it virtually impossible for there to be a truly consensual love relationship. From a modern point of view, the law of the beautiful woman falls in the same category as the rebellious son: it applies to a situation that can for all practical purposes never exist: a captive person that freely consents to marriage and sex.
Rabbi Colonel Eyal Qarim’s Answer
None of this is spelled out in the biblical text.
Hence the questioner needed to know: what does the rabbinic tradition and later halacha say about rape. Does it use this passage to justify it or find way to read it that prevents its use to justify wartime rape?
However, Rabbi Qarim didn’t talk about any of this in his answer nine years ago. He doesn’t say “no, this is not a justification for rape”.
Instead he talked about how rules in wartime aren’t like rules in peace time and rules in mitzvah wars commanded by God aren’t like rules in regular wars. He avoided the question of rape entirely and instead talked about the broad category of sexual relations. From the response he appears to be talking about visiting prostitutes
The wars of Israel are justified mitzvah wars (מלחמות הרשות ). … In the same way that war breaks through [normal] fences around one person endangering their own life on account of others, war also breaks through fences around modesty ( צניעות ) and kashrut. For example, non-Jewish wine is prohibited in peacetime but allowed in wartime in order to preserve the morale of the fighters…. Thus also in wartime, certain standards of sexual relations (צדדים מסוימים של גילוי עריות ) are also pushed aside, including even strong prohibitions against unions with non-Jews….
If you didn’t know the original question, you’d think he’d just been asked “we know that normally Jews must marry Jews, so why can Jews marry non-Jews in wartime?”
If you do know the original question, you’d likely assume that he is explaining why it is OK to rape during war when it isn’t right at other times, i.e. normal rules don’t apply and God is on our side since it is a justified mitzvah war. This is how Yossi Gurvitz read Qarim’s answer.
The post created a small fire store. The 972 article was critiqued by the Huffington Post monitor which also monitors HaAretz and 972 as well as the Huffington Post. Gurvitz updated his own post to respond to the claims of the Huffington Post Monitor.
The next day, Kipa, which had posted the original Q&A, published a clarification. Qarim denied that he ever intended to say that rape was permissible, either during wartime or not. He merely meant to explain why it would be allowed to marry a non-Jew (consensually) when normally marriage between Jews and non-Jews is prohibited. The clarification suggested that it should have been obvious to the reader that rape was not acceptable.
Pleading that it should be obvious that rape isn’t acceptable doesn’t explain the poor original answer. The questioner was asking about whether rape was or wasn’t acceptable. The answer obviously was not obvious to the person asking.
Why We Need to be Careful about Vague Statements about Rape and Sexual Relations
Rape may be an uncomfortable topic to discuss, but we need to be very careful about the kind of vague statements that were used when originally responding to the question of wartime rape.
First, research on social attitudes that interfere with effective prosecution of rape cases has found over and over that people often see rape as “bad sex” or ‘forced sex” rather than a separate category. We readily understand the difference between a hug by a lover and a strangulation hold by a robber. We would never say that the involvement of the shoulders means that a potentially lethal strangulation hold is just a forced or non-consensual hug. One is love and the other is assault. But as a society we are not so clear about sex. If one uses vague terms like “certain standards of sexual relations” צדדים מסוימים של גילוי עריות ), some people are going to think that one of those standards that goes by the wayside during wartime is sexual consent.
Even in the bible גילוי עריות (to reveal nakedness) is an ambiguous term that can include both consensual and non-consensual interactions. In Genesis 9:20-27 , Ham, a son of Noah “saw” the nakedness of his father while Noah was drunk, meaning he took sexual advantage of him. To restore their father’s honor, the other two sons walked backwards and covered their father so that his naked body could no longer be seen. It isn’t enough to vaguely say “certain standards” are suspended. Suspending any standard is dangerous. One must be very specific about which ones are cast aside and which ones remain in place.
Further, even if someone has studied in yeshiva all day long all their life, it is still no guarantee that he will understand that rape is off the table. These days even the most basic rules about the way we treat our fellow human beings (mitzvot ben adam l’chavero) are being challenged by Jews who think anything goes when God’s perceived honor is being defended.
Judaism has always placed a high value on not shaming people. Still, just a few months ago in Israel a man was interviewed on national TV saying with great confidence that both the Torah and his rabbi approved of him spitting on little girls and calling them prostitutes because he had healthy male sexual feelings and because women are supposed to be cover up their bodies like the Taliban woman who walked by his car during the taping.