Q&A: Rape
Rape
Question
Maimonides wrote in the laws of sexual relations 1:8: “From the moment they begin intercourse by force, it is no longer in the woman’s power not to want it, because a person’s impulse and nature compel desire.” A. Is this claim correct? B. If it is not correct, isn’t it shocking that a great sage of Israel thought this? C. Is it possible that all the laws of rape, from the halakhic category standpoint (which you distinguish from the moral one), are merely a matter of financial compensation for loss of value and nothing more?
Answer
First, the source of these words is the Talmud itself, not Maimonides. Second, regarding ordinary intercourse, there is some measure of truth to this, although it is not deterministic. As for rape, that is a matter of norms. In the ancient world, intercourse was in the man’s hands, and the woman did not have much to say, so it is possible that women then really related to it as ordinary intercourse. I don’t know. Certainly not all of them, but statements like these are always generalizations. One must be careful about anachronistically judging situations.
Third, even great halakhic sages can make mistakes. That is not shocking, because that is how people once thought in the world. As stated, perhaps there was also some measure of truth in it, but even if not—that was the mode of thinking then.
To some extent, the laws of rape really are compensation for loss of value. This is part of the same normative and evaluative change I spoke about. One has to understand that in the ancient world, loss of value really was the main harm caused by rape, and that is how women, men, and society as a whole perceived it as well. First of all, because a woman who is raped in a world where this is the norm is not harmed in the same way as a woman in our time. And so from her perspective, the loss of value is very significant, because her chances of finding a partner become very small. It destroys her life, and it is not right to belittle that (which is also why the obligation imposed on a rapist to marry the woman he raped was meant to solve that problem. Although there it applies only if she herself agrees and wants it). That was the reality, and present-day self-righteousness is nothing but ignoring the facts.
Discussion on Answer
The Talmud did not say that. Rava says that *if she says she enjoyed it*, it is still not considered consent (and therefore she remains permitted to her husband), because we say that “desire overcame her.” There is no sweeping statement here about all women. On the contrary, the Talmud proves that only some women begin under coercion and end willingly: “‘And she was not seized’—she is forbidden; implying that if she was seized, she is permitted. But there is another case in which, even though she was not seized, she is permitted. And which is that? A case where it began by force and ended willingly.”
Maimonides understood it that way. And on the simple reading he is right, because otherwise why would the Talmud state a sweeping rule? Even if she said so, maybe she enjoyed it despite the fact that there is no necessity about it?
But that is not important to the substance of the discussion.
In order to protect the body from injury due to the dry friction of the penis against the vulva during rape, the body secretes lubricating substances similar to those secreted by a woman during consensual intercourse. It may be that the Talmud understood this involuntary reaction as an expression of the woman’s pleasure (and it may even involve a certain degree of physical pleasure even without consent).