Q&A: Sexual Harassment in Torah Law
Sexual Harassment in Torah Law
Question
Under Torah law, what claim could be brought against a person who sexually harassed a woman?
On what grounds would he be sued?
More specifically: is there anything precise in Jewish law regarding sexual harassment, or is there only a general principle of harming another person [in which case the general legal system is actually more sensitive than Torah law…]
Answer
Without looking into it too deeply, it seems to me that the only obligation that could be claimed halakhically (a tort claim) in such a situation is humiliation, though there is room to discuss humiliation that was not done in public. But there is no compensation for humiliation in a case of harassment, as Maimonides writes in Laws of the Virgin Maiden 2:10, that wherever there is no fine, there is no compensation for humiliation or depreciation.
And in general, it is problematic in Jewish law to sue for emotional damages, except where there is actual harm, in which case perhaps one could also claim psychological treatment as part of medical expenses. Of course there is room for enactments on this matter, but it seems to me that today there is no one who would do this.
Obviously, someone who does this is a wrongdoer, if only because of “Love your neighbor as yourself” — what is hateful to you… But that is a prohibition, not grounds for a tort claim. I have in fact always wondered why some later authorities derive from “Love your neighbor” a warning against monetary damages; in my view that is quite baffling for several reasons, but this is not the place to go into it.
As for the remark about the sensitivity of Jewish law: indeed, Jewish law is far less sensitive than any other legal system. Jewish law does not impose liability for indirect causation, and it does not impose punishment without prior warning and without two witnesses, etc. Several explanations can be suggested for this, though not all of them explain everything: for example, because it was set in ancient times, when everywhere in the world there was less sensitivity. Also because matters like these were left to rabbinic enactments and not to the core law. And also because the Holy One, blessed be He, will exact punishment from various people whom a religious court does not punish, something that does not exist in an ordinary legal system.
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Questioner:
Thank you. Very interesting. Especially the attempts to explain why the halakhic system is less sensitive.
That raises the question whether a legal system could indeed someday become a halakhic system. Whether that would be right, desirable, etc.
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Rabbi:
The halakhic system is built in two layers: pure Jewish law + additions and adaptations (= additions that entered Jewish law through corrective authorities, not as interpretation or homiletics), and outside Jewish law there is yet another layer of going beyond the letter of the law (= what remains outside the law but is still proper to do). It is important to distinguish between them, and in my remarks here (about the lack of sensitivity) I was speaking only about the first layer. That layer follows halakhic-legal truth, not human sensitivities and needs. Addressing those is the role of the sages or the king. Note that the question here is not what the Torah wants, since it is obvious that human sensitivity is demanded of us, but rather what the Torah sees as its own role and what it leaves to the sages. The second layer, of course, will be sensitive to distress and needs according to the sages who implement it and according to place and time. And in our day it is obvious that when there is authority, it ought to be sensitive to victims of sexual harassment. But in any case, this is not the sensitivity of Jewish law (= the Torah), but of the sages who establish it. I discussed this from a certain angle in my article in Akdamot, “Is Halakha Hebrew Law?” I would also note that originally the additions and adaptations were made by the king, and after the era of monarchy this passed to the religious court (and that is how the halakha developed that a religious court may flog and punish not according to the strict law). Therefore, in the Second Temple period, the presidents of the Sanhedrin (such as Rabbi Yehuda HaNasi and his dynasty, descended from Hillel the Elder) were of Davidic lineage.
Therefore, a situation in which the law of the state would be determined according to Jewish law will be possible only when there is halakhic authority capable of adding the required adaptations (enactments and interpretations), and of course also willing to make use of that authority. That is not the current situation, and therefore it is good that the law today is not conducted according to Jewish law. Beyond that, for these reasons (and others), at present I very strongly do not recommend going to a halakhic religious court in any case.