Halakha and Morality: “A Kohen’s Wife” – Film and Halakha (Column 542)

As I wrote at the beginning of the previous column, some time ago I watched the film “A Kohen’s Wife” on the Ma’aleh Film School website. The film was produced by Nava Hefetz Nossen, who proposed, prepared, and shot it together with the students of the school. It is only 24 minutes long, and in my view it is recommended (you can watch it for 10 NIS). The film depicts a situation in which the wife of a kohen is raped, and a discussion ensues as to whether she can be permitted to her kohen husband. The case of a kohen’s wife who was raped is a good example of the tension between halakha and morality, and therefore I devoted the previous column to sketching a general picture of these relations as I understand them. In this column I wish to address the film and the situation through the prism of the previous column and to point out several implications.

The Plot of the Film

We are dealing with a Haredi couple from the Old Yishuv quarter of Jerusalem. The husband learns in a kollel and the wife is apparently a homemaker. One day a man knocks at the door asking for charity; when the wife opens the door he enters and rapes her. The husband is a kohen, and according to law the wife of a kohen who was raped must leave her husband. The question arises whether they can be permitted to continue living together, and the rabbinical court (beit din) deliberates but does not find a solution. The relationship between the couple deteriorates, and they stop living together immediately after the incident until a halakhic decision is reached. The film does not make clear why they separate, but I assume it is because the law forbids them to live together (unless a different decision is reached by the beit din).

The beit din does not find a way to permit them, but the husband receives unofficial advice not to believe her. Since the woman constitutes a single witness (in matters of prohibitions, a single witness—even a woman—is believed), halakhically such testimony is not formal “testimony.” A person must be convinced of the factual state of affairs, and therefore one witness or some other good indication may suffice. The husband of course is not obligated to believe her, and if he does not believe her he is not obligated to divorce her even if there is a single witness. From the film it is clear that, factually, there was rape, and there is no doubt that this is entirely clear to the husband himself. In the end he declares that he does not believe her, and thus they are able to continue living together—although the trauma and their shaken relationship already cast a bit of a shadow over their renewed marriage.

The Film’s Importance

The film does not add much that is new on this topic, but it succeeds in placing the viewer inside the situation. When you watch the film, the understanding that this is a tragedy and a moral injustice leaves the intellect, becomes vivid, and penetrates our gut. I imagine the dayanim who had to make such a decision, to convey it to the couple, and to obligate them to comply—and I would very much not want to be in their shoes. In this sense the film is very significant.

It reminds me of the debates I had around the stories of Yisrael Shachak, who, among other things, recounted such a case in which the dayanim required the couple to separate (see also the previous column on this). My secular interlocutors were appalled by the moral insensitivity of the dayanim and wondered whether they have a heart. Why subject her to an additional trauma on top of the first? Who loses if the couple continues their life together? Why make them and their children miserable when they wish to live together and of course love one another and their children? Indeed a terrible situation, and an intellectual understanding of it is very far from the direct and powerful experience of facing the situation firsthand.

I tried to explain to them that the dayanim presumably have at least as much heart as they do; however, they are bound by halakha, and in this case the halakhic value overrides the moral value. Secular criticism ignores the fact that the religious arsenal of values is broader than the moral arsenal (see the previous column), and therefore it is unwilling to understand and acknowledge that, from the perspective of the dayanim and of anyone faithful to halakha, there is a conflict here—a clash of values. I am certain that the dayanim, who experience the situation and upon whom the terrible duty to rule and instruct this ruling has fallen, undergo moral and human stomachaches far more than any of their critics reclining on white sofas in their living rooms.

On Emotion and Intellect

One may wonder whether watching the film—i.e., emotional involvement in the situation—is an advantage or a disadvantage in rendering halakhic decisions of this sort. I have written many times (see, for example, columns 31, 313, and others) that in the secular world emotion is given a vastly exaggerated weight and reason is disgracefully disparaged (a phenomenon that has penetrated deeply into the religious community as well, at least the modern one), whereas in halakha the situation is the reverse. In my view, the cool rationalism of halakha is one of the least understood points about it among secular people. For them the heart is the sole arbiter in such situations. I once mentioned that I watched a music reality show with some of my children (I no longer remember which), and one of the judges was the singer Shlomi Shabat. When he heard one of the contestants he said to him: “My head tells me no, but my heart won’t let me.” He stopped there, and I immediately asked: So, what did he decide? My children burst out laughing, because it was clear to them (and to me) that there was no question: for him it is self-evident that the heart decides, and therefore merely stating what the heart says suffices for us to know the final decision. That is the norm in our world: if the heart says something, it must surely trump the intellect.

Watching the film again aroused in me that same dilemma (see my article here, and a bit in columns 67, 333, and 467): does participation in the situation and experience help or hinder decision-making in such a case? Is it preferable that the ruling be rendered by a posek or dayan who is distant from the situation and can make balanced, cool decisions, or specifically by a dayan who is involved in it and directly experiences the woman’s terrible suffering? Contrary to the prevalent view, to my judgment it is clear that in principle a distant decisor is preferable, especially in a case like this. A decisor who is close to the situation and encounters it directly may skew judgment due to feelings of compassion for the couple, and that is not proper. The religious value is no less binding and no less important than the moral and human value. The concern for moral error should not be the only concern here. There is also a concern for halakhic error.

Still, there are two advantages to a dayan who does experience the situation himself. The first is that his motivation to turn over every stone and examine every possibility to permit them to continue living together will be much stronger than that of a dayan who is not involved, and that is of course an advantage. He will not miss any halakhic path of leniency that exists for this situation. A further advantage is that sometimes direct encounter brings a better understanding of the situation itself. To understand another’s suffering, empathy is very important; certainly intellectual knowledge that someone is suffering does not suffice. At least for a halakhic leniency that is based on distress and exigency (sha’at ha-deḥak), one needs an understanding from within of the situation and of the suffering entailed. But all this is relevant only if there truly is ground to be lenient due to exigency and only if the distress is indeed a factor in the leniency. Generally, exigency in and of itself is not an argument for leniency. Column 478 is dedicated entirely to this point, where I explained why the fact that morality says to do X is not, in itself, sufficient to rule X, and why the fact that there is exigency is likewise not, by itself, a sufficient basis for a halakhic ruling. I showed there that this is one of the salient differences between the Reform approach and the Modern Orthodox approach.

Naturally, the dayanim meet the couple and experience through them this horrific situation; therefore they are charged with the very difficult task of threading the needle: on the one hand, examining in depth every possibility to permit them to continue to live together—which is relatively easy for one who encounters the situation and the suffering directly. But at the same time they must also take care not to deviate from halakha, and that task is harder. In the end, the leniency must hold water. They must be very careful not to have tomorrow’s newspaper say that they were “courageous,” for there is no greater reproach than that (unfortunately I have not infrequently received such “compliments.” Whenever I get such a “compliment,” the worry arises in me that perhaps I did not act correctly). I do not know since when “courageous” became an epithet attached to those who do what pleases the public and what is more convenient. To me, the truly courageous person is one who acts correctly even if it goes against public sentiment and even if it is less convenient. Acting with reason against emotion is usually the direction of courage; acting by emotion, in most cases, is populism rather than courage.

The Husband’s Lack of Trust

I mentioned that the husband ultimately received advice to declare that he does not believe his wife. That was the only way out to allow them to continue living together. Conscience and morality cry out that this is what must be done, for no one loses thereby and everything is restored. But to my judgment this is not a legitimate halakhic step. There is indeed someone who is harmed by it: truth and the religious value.

As I explained in the previous column, in this conflictual situation the religious value of safeguarding the sanctity of the priesthood stands opposite the moral value of not harming the woman and her family. If factually there was rape, then they are forbidden to live together, with all the pain this entails. The religious value overrides the moral value. True, if the husband does not believe her, then even if in our opinion the factual truth is that there was rape, we do not compel him to divorce her. But when the husband declares that he does not believe her even though in his heart he does, he is simply lying. In such a case they are forbidden to live together, and I do not see how a lip-service declaration changes anything. The law depends on the belief itself, not on statements about belief or disbelief. I can also declare that a piece of pork is beef slaughtered properly and then eat it; would anyone imagine that such a declaration has any value? The fact that here we thereby reach the morally desired result does not change the halakhic consideration. If it does not hold halakhically, it is an illegitimate consideration. The Torah itself, which commands such a couple to separate, presumably took into account the harm to the woman and to the couple and nonetheless instructed us that the religious value prevails here.

To adopt such a ploy—a form of ha’arama (legal stratagem)—essentially means implicitly adopting a secular stance according to which only moral values exist and obligate, and therefore there is no real conflict here. Proponents of this view assume that halakha is only a kind of constraint with which one must somehow cope, even if in a crooked way. This feeling leads to the conclusion that in the end it is proper to circumvent that halakhic constraint “courageously” by every possible means in order to attain the morally desired result—even if that route does not hold water. But again: if that is the “courageous” step, then it is probably not the correct step.

On second thought one might suggest that the husband compels himself to re-examine the situation and to entertain the possibility that perhaps it really never happened. After all, he does not have certainty that this is what happened, even if he tends to think so. So why can’t he rely on the doubt that always exists? It seems to me that this claim too is incorrect. There are always doubts in life, and still we make decisions under uncertainty and on the basis of partial information. The bottom line is our decision, made in light of the data and the circumstances. If the husband, after all, believes his wife—even if not with certainty—he cannot claim that he does not believe her. In the end this is a binary question (belief or disbelief), otherwise we have emptied of content the concept of belief or disbelief, as well as the halakha that distinguishes between a husband who believes his wife and one who does not. If halakha makes such a distinction, then apparently there are situations in which the husband does believe and other situations in which he does not. According to the approach that encourages stratagems, such a law is relevant only to a husband who wishes to divorce her anyway, since such a husband will not resort to a stratagem and declare that he does not believe her. Note that for such a husband the claim that he “believes her” only in order to get rid of her is likewise improper. If the truth is that he does not believe her, then he is forbidden to lie and say that he does. I will return to this point at the end of the column.

An Example: The Paradox of Capital Cases

This reminds me of the paradox regarding a beit din judging capital cases (I believe I mentioned it here in the past). As is known, according to halakha a death sentence cannot be reached unanimously: if all the judges rule for death, the defendant goes free. This law is based on the assumption that such consensus raises suspicion that there was a flaw in the process (because it is unlikely to arise independently). Now imagine a beit din of 23 dayanim judging a murderer. A situation arises in which 22 of the dayanim have concluded that he is liable, and the last dayan has to formulate his position. Internally he is convinced that the defendant is indeed liable, but if he votes for what he truly thinks, the defendant will go free; whereas if he votes against what he really thinks, the outcome in practice will be what he does think should happen. The same holds if the last dayan thinks the defendant is innocent: there too a paradox arises, for his vote will lead to the opposite of what he thinks. What should he do in such cases? It would seem proper to resort to trickery and lie in order to bring the truth to light. Such a “courageous” dayan would surely be praised for acting morally and bringing about the appropriate punishment (to acquit the innocent and convict the guilty).

Well, if this is the “courageous” way, you already understand that it is the wrong way. I have no doubt that it is forbidden to lie and to resort to stratagem in such a case. That dayan must vote exactly as he thinks, and whatever results—results. The reason is simple: halakha established that if the entire panel convicts, the defendant must be acquitted. The situation is that indeed everyone was persuaded, and therefore apparently there was a flaw in the process and the truth is that he should be acquitted. If this dayan lies to bring about what he believes is the correct result, he will in fact bring about a result that is problematic halakhically, even if in his opinion that is what is morally right (to convict or to acquit).

A Look at Ha’arama (Legal Stratagem) in General

It is no secret that halakha contains quite a few stratagems, some already appearing in the Talmud. Many lavish praise on ha’arama as expressing the moral sensitivity of the decisors: when they see that a moral problem arises, they circumvent the law by stratagem. We saw above such a stratagem (that the kohen-husband declares that he does not believe his wife), and I argued that it should not be done. I explained that such a stratagem assumes the secular conception that there are no religious values, only moral ones.

Still, there are quite a few stratagems in halakha. The stratagem of the sale of land in the sabbatical year (heter mekhirah) arouses great controversy in our day, but even the sale of ḥametz and the heter iska—two older stratagems—are not free of problems and criticism. The impression is that halakha relates with equanimity to such “winks,” at least so long as the goal is proper. But as I explained in the previous section, a proper goal does not suffice to ground a halakhic leniency. The goal is at most a motivation to search for such a leniency; the leniency itself must be a mechanism that “holds water” on the halakhic plane.

But if it truly holds water, why call it a “stratagem” at all? It would seem to be a legitimate halakhic opening, and if so one could use it in any situation—even when there is no particular distress or worthy moral purpose. Conversely, in cases where the mechanism does not hold water, it is simply a lie, and then it must not be used even when the goal is worthy. Of course there are particular cases in which halakha itself defines exigency as a reason—such as accepting a single witness to permit an agunah, a sick person with or without danger, or rabbinic prohibitions permitted in cases of great need, loss, or exigency, and the like. But in all of these, the Sages have already incorporated these mechanisms into halakha through rabbinic enactment; therefore it is incorrect to relate to them as violations of halakha in exigency. This is the halakha itself.

The Rema, in the introduction to his work Torat Ḥatat, writes the following (his source is a responsum of Mahari Mintz):

“Behold, I will excuse myself in one matter so that the reader not suspect me: at times I wrote to be lenient in cases of significant financial loss, or for a poor person in an important matter, or for the honor of Shabbat. This is because in those cases it appeared to me that there was a full leniency in accordance with the halakha, only that the later authorities were stringent in the matter. Therefore I wrote that where it is not possible, the matter should be established according to its proper law. And so we find that earlier and later authorities acted thus. And Mahari Mintz wrote in his responsum §15 that a poor person on weekdays and a rich person on the eves of Shabbat are equal; nevertheless the custom is to tell them—this one ‘because of his poverty,’ and that one ‘because of the honor of Shabbat’—so that they not wonder why sometimes one forbids and sometimes one permits.”

One cannot be lenient in exigency or in cases of great loss if the step is halakhically impossible. When we are lenient in exigency, it is only where the matter is permitted in principle, but in ordinary circumstances it is nonetheless proper to be stringent. See at length in my article “On Stringency and Leniency.”

Take as an example the stratagem brought in Berakhot 35b:

“Rabbah bar bar Ḥana said in the name of Rabbi Yoḥanan, in the name of Rabbi Yehuda the son of Rabbi Ilai: Come and see that the later generations are not like the earlier generations. The earlier generations would bring their fruits in through the traksimon (side entrance) so as to obligate them in tithes; the later generations bring their fruits in via the roofs, courtyards, and enclosures (karpefot) so as to exempt them from tithes. As Rabbi Yannai said: produce does not become obligated in tithing until it sees the interior of the house, as it is said: ‘I have removed the sacred from the house.’”

By law, if the fruits do not “see” the interior of the house, they are exempt from tithes; therefore in later generations people resorted to the stratagem of bringing their fruits through the roofs so as not to become obligated in tithes. Note that fruits brought into the house in this way are exempt from tithes by law. The stratagem is merely to use this halakhic route to avoid obligation; there is no prohibited act here and certainly no lie. The fruits are truly permitted, not merely presented as if they were permitted.

Regarding prozbul, Tosafot on “Mi ika,” Gittin 36b, wrote that this is a mechanism that exists in halakha by Torah law (the rule of one who “transfers his debts to beit din”), and the stratagem is only to use it to circumvent the remission of debts in the sabbatical year. The sale of land in the sabbatical year, the sale of ḥametz, and the heter iska are likewise entirely valid mechanisms; the stratagem is merely to use them to circumvent the laws of shevi’it, ḥametz, and ribit.[1]

Survey of an Article

There is an article by a jurist named Yaakov Shapira about the above film and about the prohibition regarding a kohen’s wife who was raped. In the article he surveys paths of leniency taken by the decisors. The starting point of everyone dealing with the topic is, of course, the need and desire to keep the couple together and to prevent the tragedy into which halakha places them. The author assumes that everything the decisors did in this area was driven by that aim. The aim is understandable and worthy, but as I wrote above, it does not suffice to ground a leniency. A leniency must hold water on the halakhic plane. The distress is only a trigger not to give up on examining every halakhic possibility that might help permit them. Therefore, even without entering the motives of the decisors, the leniencies themselves must be examined halakhically if we are to use them. I now wish to briefly go over the arguments for leniency brought there, mainly to sharpen what I have said so far.

The background is in the Mishnah, Nedarim 11:12 (and in the sugyah on Nedarim 90), which records that the Sages did not believe a wife who claimed she had become forbidden (defiled) to her husband, out of concern that she had set her eyes upon another. This is itself a very novel and puzzling claim, for it is unclear how the Sages can cancel a Torah law directly and permit a woman who is Biblically forbidden to her husband to continue living with him. True, as in the case of accepting a single witness to permit an agunah, here too it concerns rules of evidence rather than the substantive law. If the truth is that the woman was not raped, then she is permitted, and the Sages are ostensibly only determining that, factually, she is not believed to say that she was raped. But if that were the nature of the enactment, then this would be Torah law and not rabbinic law. In general, it is difficult to say that, factually, in all these cases we know that the woman was not raped. At most there is doubt, if that. Therefore it is clear to all the commentators that this is a rabbinic enactment, and the difficulties with this are obvious. The situation regarding a single witness to permit an agunah is different: there we are indeed persuaded that, factually, the husband is dead; the only obstacle is the rule that a matter of sexual status requires two witnesses. This is only a rule of evidence; but if the truth is that the husband died, then the woman is in fact permitted even if we lack proof. In the case of a kohen’s wife who was raped, however, it is not a matter of accepting a good piece of evidence that is halakhically invalid; rather the reverse: rejecting good halakhic evidence in order to circumvent the law. That is a very problematic directive.

There is room to discuss what a beit din should do if it is persuaded that, factually, the woman truly was raped. Must it force itself not to believe her and to suspect that she merely wants to leave her husband? That is very implausible. The Rashba there speaks of uprooting a Torah law (apparently proactively—be’kum ve’aseh) “for the sake of the matter” (lemigdar milta), i.e., he views it as an action against the law and claims that the Sages have authority to do so. He apparently understood that this is indeed what the beit din should do, irrespective of its understanding of the facts.

In Responsa Oneg Yom Tov §169 this law is discussed at length, and he says that the Sages uprooted the Torah law; therefore even if the husband does believe her, he is not obligated (and, after Rabbeinu Gershom’s ban, cannot) divorce her. He extends the law stated regarding the beit din also to the husband (that he too should not believe her). As an aside he also raises the possibility (see there more sources on this) of suspecting a husband who says he believes her of doing so because he wants to divorce her. This already goes very far, for here they compel the husband to transgress a prohibition merely because of an unsubstantiated suspicion held by the beit din about the husband himself. One must understand that these suspicions are only remote possibilities, not certainties nor even highly probable. Therefore it is more reasonable to say that the beit din will not force the husband to divorce her if he does not wish to, but it is very implausible that they would prevent him from performing his halakhic duty to divorce her if he himself believes her. That is not the simple sense of the Mishnah.

Indeed, Tosafot there, the Rambam, the Tur, and the Shulḥan Arukh ruled that if the husband believes her, he must send her away—if not because of the law itself, then at least by the principle of “shavyei anafshei ḥatikhah de-isura” (one who declares something forbidden to himself thereby renders it forbidden to himself), i.e., if he declares her forbidden, she becomes forbidden to him even if in our view the factual truth is otherwise. Several authorities (the Maharshal, the Noda BiYehuda, and others) further wrote that even after Rabbeinu Gershom’s ban, which forbids a husband to divorce his wife against her will, there is no possibility to prevent him from divorcing if he believes her. The opposing arguments strike me as so far-fetched that it raises in me the suspicion that they arose only as a stratagem intended to allow the couple to live together. But, as noted, that is very implausible halakhically. If the truth is that there was rape and that is what the husband thinks, he cannot act in self-deception; and even if he does so, he is an offender like any kohen who continues to live with his raped wife.

The article cites a proposal of several later authorities that the husband send a get via an agent and then invalidate it not in the agent’s presence. In such a case the Sages retroactively annul the marriage, and consequently the woman who was raped was a single woman at the time and did not become forbidden to her kohen husband, and he can then marry her again. However, R. Shlomo Zalman Auerbach rejected this possibility for several reasons (perhaps one must also discuss the problem of re’aḥ get—a “whiff of a get”; this is not the place to elaborate). Some proposed that the Sages annul the marriage directly without resorting to the stratagem of invalidating the agent not in his presence, but according to most decisors there is no possibility to annul marriages in our time other than for the grounds established in the Talmud. Note that these proposals are not stratagem but the use of rabbinic authority. This is a different option from the previous one: if indeed such authority exists, then a moral motivation is certainly a basis that justifies its use. But plainly in my view such authority does not exist in our time.

In the article it is implied that all these proposals were intended to allow the woman to continue living with her husband—that is, to advance morality at the expense of law. However, in part it is quite clear that this is not the intent; rather, the point is real law. For example, if the husband truly does not believe the woman, he may live with her because that is the law—not because we are circumventing the law so that they live together. Only when the husband’s lack of belief is itself a stratagem (i.e., factually he does believe her) can that be considered ha’arama; but as I explained, such a stratagem has no halakhic basis. The desire to ease the couple’s plight and prevent their tragedy does not suffice to permit. The beit din is supposed to operate according to rules of evidence; if it has suspicion, it must not act to separate a woman from her husband. But the husband must act according to his own understanding of the facts (whether there was or was not rape).

The Difference Between Beit Din and the Individual

Another important remark that arose also regarding the annulments of marriage in which I participated: if a beit din annuls a marriage by claiming that there was an invalid witness, or that the ring lacked the value of a perutah, or a claim of mistaken transaction (mekach ta’ut)—all of these are not actions of a beit din but halakhic instruction, i.e., the action of a posek rather than of a court. If I know that the woman is not married (because there was an invalid witness, for example), then I must draw her attention to the fact that she is not married. That is all the beit din is doing in such situations, and in fact the woman or husband should have acted thus on their own had they understood the situation. The beit din is merely drawing their attention to the situation and the law; it is not acting as a coercive court rendering a judicial verdict.

Likewise in our case: ultimately the duty to divorce his wife is the husband’s halakhic duty (and of course the very prohibition on living together also applies to the wife), not a judicial decision that requires a beit din. If the kohen-husband knows that his wife was raped, he is obligated to send her away, and there is no question for beit din here. He is supposed to do this himself and to act according to his understanding of the facts. Only if the husband does not do so is intervention by a beit din required to compel him (by the rule of compelling observance of commandments), and compulsion requires a court. Alternatively, if there is a dispute between husband and wife, then a beit din is needed to decide, like any dispute between individuals. Here too, that is the action of a court, not of a halakhic decisor. But the very question whether to divorce or not is an ordinary halakhic question entrusted to a posek, not to a beit din. Therefore the Mishnah that says a beit din should suspect that she “set her eyes on another” is not relevant to the husband. If the matter reaches a beit din and they must formulate a decision, they may be bound by rules of evidence. But the husband does not operate by rules of evidence; if he is persuaded that this is the reality, he must act accordingly. Rabbinic enactments to suspect her and not to believe her plainly do not address the husband.

A Note on Forced Interpretations for Moral Reasons

Following the previous column I received a question from Y.D.:

“And if halakha does not command murdering Amalekite children or raping the captive woman (according to the Re’em)?” I do not oppose your approach; on the contrary, I very much agree with it—but there is no need to multiply disputes.

There are halakhic determinations—such as limitations on wiping out Amalek (his example that children should not be killed)—that are themselves the product of moral considerations. Sometimes the decisors interpret the verses in a certain way so as not to contradict moral principles. Is this a halakhic or a moral consideration? Is it legitimate to employ such a consideration within halakha? It would seem that here morality does enter the halakhic determination itself. Whereas according to my approach in the previous column (where I sharply distinguished between halakha and morality and posited their independence), there would seemingly be no place for this.

I will remind that in the previous column I already noted that even according to my view, if there are several interpretive possibilities, one may certainly choose the one that optimally reduces the dissonance between halakha and morality. In many cases that is what commentators do when they interpret halakha in that way, and as I explained that does not contradict the foregoing dichotomy. By the way, in the case of killing Amalekite children, I wrote to another questioner there that in my opinion this is not necessarily because of the moral consideration, for halakha too opposes punishing one who did not sin (e.g., an oness or a minor), and moreover halakha also forbids murder when it is unjustified (for example, by virtue of the rules of criminal liability). Therefore these interpretations can be relevant on the halakhic plane even if a priori we do not see several equally balanced possibilities for the halakhic interpretation of the case. It is not that morality intervened here but a halakhic consideration.

One may of course wonder whether we ought to act similarly regarding the law of a kohen’s wife who was raped; that is, perhaps we can interpret it in a way that reduces the moral dissonance—or because of the halakhic principle (not only the moral one) that we do not harm the innocent, as we saw in the previous paragraph. But specifically here it is difficult to say so, for in every case of a kohen’s wife who was raped a tragedy results. It is therefore clear that the Torah holds that morality does not override the law here, and I do not see a plausible interpretation that would narrow this law and its tension with morality. By contrast, regarding killing Amalek, one can perhaps say that the Torah’s intent was to kill Amalekites who are adults and not children. Even after the narrowing interpretation, the law of killing Amalek with respect to adults remains. But for a kohen’s wife who was raped, if we narrow it for moral reasons, the law is entirely nullified. Therefore here it is clear that the Torah did not intend that.

One last remark: there may nevertheless be a possibility to change the law, because it is not explicit in the Torah. It is a derashah of the Sages (see Ketubot 51b). If so, it may be that this derashah, which was made in a different period in which other values were prevalent and perhaps there was less sensitivity to the suffering of a woman who was raped, should be changed in our time (see the series of columns on Modern Orthodoxy, especially column 476 in that series, which deals with responding to value change). But that would likely require a Sanhedrin that could change the law and interpret the verses anew.

[1] There are borderline stratagems which I will not enter into here, such as the stratagem regarding the firstborn in Temurah 24b, the stratagem of a firstborn that fell into a pit in Beitzah 26a, the stratagem of “it and its young” that fell into a pit in Beitzah 37a, and more.