“When a man takes a woman and has relations with her
and hates her…” (Devarim 22:13)
One of the themes discussed in our parasha is the
sanctity of marriage and intimacy.
According to the Torah, marriage is not a casual relationship. It is not to be entered into
carelessly. The Torah does allow for
divorce. But only under the most
extreme circumstances should a marriage be dissolved. The Torah’s emphasis on the sanctity of marriage and intimacy is
expressed through a number of mitzvot discussed in the parasha.
This pasuk introduces the mitzvah of kiddushin. This mitzvah requires that marriage be
preceded by a betrothal – kiddushin.
The betrothal is accomplished through a formal kinyan – agreement –
between the man and woman. This kinyan can
take various forms. One form is kesef. This consists of transmittal of money or an
object of value. The man gives the
woman the object. He explains to the
woman that through this transmittal he intends to betroth her. The woman’s acceptance of the money or
object signifies her agreement to the kiddushin. Once the betrothal is completed, the woman is considered the wife
of the man. Any subsequent affair is
considered an act of adultery.
In modern times, we employ the kinyan of kesef described
above. According to halacha, any object
of value may be used for this kinyan.
However, the universal custom is for the man to give the wife a ring or
marriage band. What is the reason for
this custom?
Sefer HaChinuch explains that the ring is an
especially appropriate object for this kinyan.
Kiddushin is more than an agreement.
The kinyan affects a change in the legal status of the woman. With the completion of kiddushin, the woman
is no longer single and unattached. She
is now the wife of the man. This change
of status has important implications in halacha. She is prohibited to enter into sexual relations with any other
man. These relations are
adulterous. The ring effectively
represents this concept. The ring is
placed upon the woman’s finger. A
visible change is affected. This
creates a physical, visual change in the woman. This physical change represents and is consistent with the legal
change in effected by the kiddushin.[1]
In other words, the application of kinyan to marriage is designed to reinforce
the seriousness of the relationship.
The use of a ring further emphasizes the message that marriage
represents a fundamental change in the status of the wife and the creation of
the permanent relationship between husband and wife.
“And they punish him with a fine of one hundred
silver pieces and he gives it to the father of the young woman. This is because he has slandered a virgin of
Israel. And she should be his
wife. He is not permitted to send her
away all his days.” (Devarim 22:19)
This pasuk discusses the consequence for motzi shem
rah – slandering one’s wife. Let us
begin by reviewing the basic outline of the circumstances of this case. A man betroths a woman. He then claims that the woman was
unfaithful. Subsequently, it is
discovered that the husbands claim is false.
The pasuk tells us that the husband is required to pay a fine and he is
forbidden from ever divorcing the woman.
The reasoning underlying the consequences for
slander is not immediately evident.
Obviously, this husband is despicable.
He has recklessly and viscously attacked the reputation of the woman who
has agreed to be his life-partner. This
man has demonstrated that he is reprehensible.
Why does the Torah enjoin him from ever divorcing his wife? This commandment would seem to preserve a
less-than-ideal union!
Sefer HaChinuch begins with a simple
observation. The consequences applied
to the slanderer are the exact opposite of the outcome he intends. The husband slanders his wife because he
wants to dissolve his marriage. He has
had a change of heart. But he does not
want to acknowledge any responsibility to his wife. He does not want to pay his wife the sum he agreed to in the
marriage contract – the ketubah. So, he
falsely accuses his wife of infidelity.
He hopes to be believed and to be relieved of the obligation to pay the
sum agreed to in the ketubah.
He explains that the objective of the Torah is not to preserve the marriage. Instead, the Torah’s intention is to provide a deterrent against slander. The deterrent is simple. The Torah identifies the motives of the slanderer and warns him that if discovered, he will suffer consequences that are the exact opposite of his intentions. He will lose the right to divorce his wife. Furthermore, rather than saving money, he will be fined.[2]
“And the man that sleeps with her should give to the
father of the young woman fifty silver pieces.
And she should be his wife.
Since he afflicted her, he is not permitted to send her away of his
days.” (Devarim 22:29)
This passage discusses the consequences that are
applied to a man that rapes a woman. He
too the man is fined. He is required to
marry the woman and is prohibited from divorcing her. Of course, the victim has the right to refuse to marry her
assailant. Nonetheless, it seems odd
that the Torah would demand that a rapist marry his victim.
However, Sefer HaChinuch applies the approach
discussed above to explain this law.
Here too, he observes that the consequences applied to the rapist are
the exact opposite of the outcome he desires.
The rapist wishes to enter into an intimate relationship with his victim
without providing her the benefits and guarantees of marriage. He recognizes that this is not an offer that
the woman will find attractive. So, he
forces himself upon her. Sefer
HaChinuch asserts that the Torah wishes to deter this behavior. It forewarns the would-be rapist that if he
is caught, the consequences of his action will be the exact opposite of those
that he seeks. He will be fined. He will be required to marry the woman and
will not be permitted to ever marry her.[3]
In short, the consequences that the Torah applies to
a slanderer and a rapist are not primarily designed as compensatory or
corrective measures. They are primarily
intended to compensate the victim for the harm she has endured or to correct
this harm. These consequences are
designed as a deterrent. These measures
are intended to discourage rapist or slanderer from carrying out his despicable
plans by threatening them with consequences that are the exact opposite of
their designs.
Sefer HaChinuch’s observation that the consequences
applied to the rapist and slanderer are the exact opposite of their designs is
subtly reflected in the wording of the passages and in halacha.
Meshech Chachmah notes that there is a slight
difference in the wording to the passages concerning the slanderer and the
rapist. Unfortunately, this subtle
difference cannot be captured in the translation. In both cases, the Torah states that the perpetrator of the
injustice is not permitted to send away the victim – to divorce her. However, in the case of the slanderer the pasuk
uses the infinitive – l’shalchah. The
passage regarding the rapist does not use the infinitive. Meshech Chachmah explains that this is a
significant distinction. The use of the
infinitive implies that the very act of divorce is prohibited. In discussing the rapist the alternative
form of the verb – shalchah – is used.
This term implies that the act of divorce is not prohibited. Instead, the Torah prohibits the
outcome. The rapist cannot render the
woman shalchah – sent away. Meshech
Chachmah explains that this is distinction has meaningful implications in halacha.
Consider a case in which a man gives a woman a
divorce but stipulates that the divorce will only be valid with his death. There are halachic considerations that would
motivate such a divorce. But the
purposes of this discussion we do not need to elaborate of these
considerations. Meshech Chachmah
explains that this divorce would violate the prohibition against the slanderer
divorcing his wife. However, it would
not violate the prohibition against the rapist divorcing his wife.
This follows from the wording in the respective
passages. The infinitive used in the
instance of the slanderer implies that the very act of divorce is
prohibited. A divorce designed to take
effect upon death is an act of divorce.
Therefore, the slanderer is prohibited from giving such a divorce. However because the divorce is only
effective with the death of the husband, this divorce never imparts upon the
woman the status of being “sent away.”
Therefore, a divorce designed to be effective with the death of the
husband would not violate the prohibition against the rapist “sending away” his
wife.[4]
This halachic distinction reflected in the wording
of the passages is consistent with Sefer HaChinuch’s thesis. The slanderer wished to dissolve his
marriage. As a deterrent, he is told that
if discovered he will experience the exact opposite of his designs. He will be prohibited from engaging in the
act of dissolution through the vehicle of divorce. Even the act of divorce will be prohibited. In contrast, the rapist wished to avoid
marriage. Therefore, he is told that if
he is discovered, he will be required to marry the woman and remain married to
her his entire life. In his case, the
act of divorce is not prohibited. The
prohibition is against the dissolution of the marriage – rendering the woman
“sent away.” If the divorce is
simultaneous with the death of the husband, this prohibition is not violated.