Comment by bradrn | Hacker News Reader

Comment by bradrn | Hacker News Reader

Parent Full thread

> The Talmud concludes that the rape isn't the punishable offense, it's only whether the man injured the woman when he fell on her from the roof. Anyone who uses this excuse will obviously not have "fallen on her", and therefore if she has any injuries it's almost certainly due to the violent rape occurring. The Talmud rules this out as being intentional, and gives an excuse for would have rapists.

Let me be clear here: this is a hypothetical case. It did not actually happen, nor has it ever happened. In fact, it is so obviously implausible that no-one would dare use this situation as an excuse, and if they did, the only possible conclusion is that they were lying. The Talmud does not condone this as an excuse.

So then, why do the scholars include this hypothetical if it’s useless for actual rape cases? It is to illustrate a particular legal point: namely, that in Jewish law, intention matters, but monetary compensation is just as important. They do this by considering this highly contrived case, which would never happen in practice but makes the point as clear as possible. Of course, it is nearly impossible to rape someone accidentally (though see below). But the principle sets a general precedent for other cases, in which a lesser crime might have been committed unintentionally.

(Curiously enough, a few years ago there was a high-profile case of ‘accidental rape’ in Australia. The man claimed he thought the woman had given him consent; the woman claimed she had never given consent. I can’t seem to find a link, but if I recall correctly, the judgement was eventually in favour of the man. Modern laws have edge cases too! And applying Rabba’s dictum here would actually have given a fairer result: the man would still have had to compensate the woman for any injuries.)

> You don't have to renounce your faith to admit the text is flawed, human. That's all I ask that people learn.

Of course! Texts are human, and the Talmud especially so: it’s literally a record of a bunch of people debating with each other and criticising each others’ legal interpretations. But this particular part of it is not problematic.

> In fact, it is so obviously implausible that no-one would dare use this situation as an excuse, and if they did, the only possible conclusion is that they were lying. The Talmud does not condone this as an excuse.

Unless you have a source for this I missed, you don't know this is true either.

> But this particular part of it is not problematic.

It absolutely is problematic. This is a description of rape, there is no point in discussing the hypothetical including whether the man "acquires" the woman (as if she were property), otherwise.

The authors are entertaining this hypothetical because men have used absurd excuses for rape for a very long time.

The Talmud is quite clear here that in this case, the rape is not the worst part of the events.

> This is a description of rape, there is no point in discussing the hypothetical including whether the man "acquires" the woman (as if she were property), otherwise.

Huh? No-one said anything about ‘acquiring’ people. In Jewish law women are not property, nor should they be (as if it needs to be said).

And as I said, it is wrong to assert that ‘there is no point in discussing the hypothetical’. The scholars quoted in the Talmud regularly discussed hypothetical, bizarre and impossible situations in order to set general guidelines and clarify edge cases in the law. This is but one of very very many examples of the practice, and I don’t see the need to give a special justification for why this one should be considered.

One additional point which I should probably make clearer: here, we are considering a hypothetical case where the described scenario literally happened, as a matter of fact rather than imagination. (As in, say, the whole thing was witnessed by several other people who agree that the man did literally fall off a roof.) We are not considering it as an excuse, because that would be governed by a whole different set of laws.

> and if she is his yevama he has not acquired her in this manner.

This is whether or not the rape makes the woman his, yes? And the word is unfamiliar to me, but I believe "his yevama" here means that if the woman is his widowed, childless sister-in-law, that this act of rape "doesn't count" for consummating the marriage which was a custom.

But, if the woman is not his yevema, he "acquires" her? It's not clear to me, but since the scholars and the blog post strive to avoid discussing what is actually described here, it's hard for me to say.

I didn't decide on "acquires" for the translation, but it seems you'll talk about anything except what this passage literally describes.

Sorry, you’re quite right; they did indeed use that word. My apologies for the misreading.

(Still, it’s a bit of a misleading translation on their part… women aren’t property in Jewish law, as I already said.)

> And the word is unfamiliar to me, but I believe "his yevama" here means that if the woman is his widowed, childless sister-in-law, that this act of rape "doesn't count" for consummating the marriage which was a custom.

Yes, I believe this is correct.

> But, if the woman is not his yevema, he "acquires" her? It's not clear to me

I think the idea would be that ‘acquisition’ in this context is relevant for yevamot, but it is irrelevant if she is not his yevama.

> the scholars and the blog post strive to avoid discussing what is actually described here, it's hard for me to say … it seems you'll talk about anything except what this passage literally describes.

We are talking about what the passage literally describes: Rabba’s discussion of the consequences according to Jewish law when ‘one who fell from a roof … was inserted into a woman due to the force of his fall’. But what it literally describes is absurd, so the blog post talks about the next most reasonable interpretation — that this is a hypothetical case, exactly like many others in the Talmud. As far as I can see, it is you who is trying to claim that this text is some sort of special attempt to let men have an excuse for rape in general, which it isn’t.

I feel the odd specificity of "his yevama" adds credence to AaronFriel's claim that this has its roots in a real case.

On the other hand, the story is so unbelievable that I am unable to imagine a circumstance in which this specific fabrication, and not some other, had any chance of being believed.

One possible resolution, perhaps, is that this has its roots in a real rape case where the "accident" was more plausible, but involved the accused already intentionally doing something he should not, so it was changed to falling off a roof in order to remove this side-issue.

> I feel the odd specificity of "his yevama" adds credence to AaronFriel's claim that this has its roots in a real case.

The Talmud brought two different hypothetical cases. One where she was his yevama, and one where she was not. That's because there are two different laws whereby it makes a difference if sexual intercourse is considered to have occurred or not. In fact, the main topic of the tractate is the yevama case, and the non-yevama case is brought by-the-by.

Summary of the laws of yevamot: If a man dies childless, his brother has an obligation to marry the widow, if they both consent. If they do not, a procedure called halitzah is performed instead. Until one or the other happens, the widow can't marry anyone else. If they do decide to marry, unlike regular marriage, there is no marriage ceremony - sexual intercourse is all that is needed to make them man and wife with all that entails. That's why it talks about "acquiring", but it's not in the sense of property rights (there are none!) - rather in the sense of being married (think about the English phrase "my wife").

Hope that clears it up. Now that Shabbat is over, the main bulk of those who learn the Talmud can join the conversation :)

Thanks for the clarification, which makes it seem less like a specific case than I had supposed.

If you actually fall off a roof and land in a woman it's not rape in my book.

That’s the point of the text. It doesn’t care if it’s rape or not. You still have to compensate for damages

Reply on news.ycombinator.com