No Lav For Rape?
Posted 03 September 2012 - 12:40 AM
Posted 04 September 2012 - 04:09 PM
I have an idea of why the punishment seems to be too little, but I don't want to write it without backup. However, I do know that the main issue for women used to ruining suitability towards marriage, that somehow the horrible effects rape was less or what id don't know. He took away her ability to find a husband, she can remove his ability to find a wife. And a nation that considers mercy and taharah in these areas paramount would not let such a person wander unashamedly in our midst.
Posted 04 September 2012 - 09:45 PM
He took away her ability to find a husband, she can remove his ability to find a wife.
taon: He may already be married before he attacked her. (Or he may marry a second wife after he marries her.)
And a nation that considers mercy and taharah in these areas paramount would not let such a person wander unashamedly in our midst.
How would they stop him from wandering in our midst?
Posted 05 September 2012 - 06:46 PM
And as a side point I really don't want to get sidetracked on, she isn't removing his ability to find a wife either. He can just marry a second wife. And whether we would or would not let such a person wander unshamedly in our midst is irrelevant.
Posted 11 September 2012 - 10:01 AM
Important rule: The severity of a sin according to the Torah cannot be determined by whether the Torah singles out the crime with a Laav. Especially with regard to Bain Adam Lechaveiro, it doesn't work that way. For Bain Adam Lechaveiro, the severity of the crime is determined by the amount of pain you inflicted on your victim, and the appropriate punishment will be meted out by Hashem as He sees fit.
For example: Tell me what Laav you violate by blowing up someone's house?
According to Rabeinu Yonah, destroying someone's property is a violation of לא תגזול but many disagree, and there are opinions that you are in violation of no לאו at all, but rather an עשה of השבת אבידה. (Included in the Torah's command to restore a lost item is the implied requirement not to cause someone lose an item.)
What Laav do I violate if I purposely give someone a terrible disease? Or how about if I purposely run my car over someone's legs,crippling him for life? There are no prohibitions specifying any of these crimes. The fact that there is no specific Laav for rape is not difficult to understand if you take it in that context. All the heinous acts I mentioned have no specific Laavim. They are all prohibited under the general commandments requiring proper Bain Adam Lechaveiro behavior. Besides that, in general, all "financial" assaults on someone are prohibited under לא תגזול or השבת אבידה, and all "physical" assaults are prohibited under בל תוסיף (which for the record would include rape as well. This Laav prohibits physically striking someone. You violate this Laav if you even slap someone in the face. Rape certainly would qualify as well), but the severity of the sin is determined by the amount of suffering you inflict on your victim. There is no threshold of suffering that you can inflict above which you get an extra "Laav."
Rav Chaim Vital asks why the Torah did not specifically prohibit having bad Midos. His answer is that specific prohibitions are for individual violations of the Ratzon Hashem. But Midos are the foundation of the fulfillment of the entire Torah.
I want to add something to this. We know that part of the "טעם" of the Laav - as well as all punishments - is that they serve as deterrents. To the point where Rabbeinu Yonah writes that the reason a זקן ממרא gets the death penalty for not listening to the Rabbonim, whereas when someone violates a דאורייתא he usually will not incur a death penalty, is because the extremely strict punishment is needed as a deterrent to violating the words of the sages, since people tend to treat them lightly.
That being the case, it is easy to understand why (to the extent we can say "why") the Torah did not mandate punishments as deterrents for violations of Bain Adam Lechaveiro the way it did for Bain Adam LaMakom. Because if what deters us from hurting others is the severity of the prohibition to hurt them, then we have not fulfilled what the Torah wants.
The Torah wants us to care about others, to love them, and to feel for them and with them. Bain Adam Lechaveiro is different than Bain Adam LeMakom in that way. For example, the Mishna says that we should not say, about the Mitzvah fo Shiluach Hakein, יגיעו רחמיך - that Hashem had mercy on the bird. Instead, we are to look at the MItzvah as the "decree of the King."
Question: Why did the Mishna need to talk about birds? What about poor people? What about sick people? We have Mitzvos to take care of them too. Why doesn't the Mishna say: "If someone says יגיעו רחמיך on poor people we tell him to stop?" -- like it says in regard to birds?
The answer is, while even Bain Adam Lechaveiro Mitzvos are decrees of the King, the King's decree is that we should sincerely feel mercy on the human! A bird is what we call a חפצא דמצוה - a Mitzvah object, like an Esrog, or a Menorah.
But a human being is more than that. He is not supposed to be treated like merely an object. We are supposed to look at people in need as people, who we care about and feel for. Hashem wants us to develop real Midos, not merely to mechanically do things for others.
And so, about a bird, we cannot say יגיעו רחמיך but on a person we can! Of course, this does not mean that is the sole intent of the Mitzvah, but the objectification of a person by looking at him as no more than a Mitzvah-object runs counter to the MItzvah itself, which is to care about others as human beings.
Therefore, in short, if a person refrains from raping someone because there is a Laav as opposed to an Aseh or because there's Kares as opposed to Malkos - that is not what the Torah wants from us. Yes, we need the Torah to inform us what it wants - morals are subjective after all - but that we should be motivated not to rape people because of painful deterrents? No, that's not the goal. In fact, that would be totally counterproductive to the Torah's goals.
(For more on this subject, listen to this Shiur.)
(PS - Even with regard to Bain Adam LaMakom, we do not always judge the severity of a sin by its punishment. This is one of the reasons for the rule אין עונשין מן הדין - we do not derive punishments for worse sins via kal vachomer from a lesser sin. Because maybe the punishment is too little for the worse sin, and so Bais Din does not give him any punishment in this world and we let Hashem give him the appropriate punishment in His own way. (But see also Rambam Pirush Hamishnayos Avos 2:1 ואכמ"ל.))