“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.
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.
“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.
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.
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.