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Ki Tetze 5783           September 10, 2022

Rabbi Randall J. Konigsburg

Shabbat Shalom,

     We are quickly nearing the end of the book of Devarim, Deuteronomy, and this week our Parsha is indeed kind of a miscellaneous collections of laws that are only loosely connected. There are some 74 mitzvot in this one parsha alone making this the largest collection of mitzvot than any other parsha. Last week there were many rules regarding leadership. Here we have many mitzvot associated with sexual relations that are either legitimate or illegitimate.

     Living as we do in a world where the question of the hour is what the proper role for government is when it comes to legislate what a woman can and can’t do with her body, I am sure that the next election will partly be a referendum on how our secular government should deal with the issues raised by the Dobbs decision last June by the United States Supreme Court.

     The Torah as well tries to legislate the rules for sexual relations, and I can only say that our parsha only does a mediocre job of laying out what is or is not appropriate. I encourage everyone, at least those over the age of 18, to read Chapter 22 and see how you feel about the Torah’s take on sexual activity. Our parsha is not a list of who can be married or not, that was way back in Leviticus. Today we are dealing with what activity is lawful and what constitutes sexual assault.

     First of all, the Torah maintains that adultery is a capital crime. It is not just between the adults, but a violation of marriage vows is a crime against God. This is why we get the following rules that make many people, including rabbis of almost every generation, very unhappy. We read in 22:23: In the case of a virgin who is engaged to someone if another man comes upon her in town and lies with her, you shall take the two of them out to the gate of that town and stone them to death: the girl because she did not cry for help in the town, and the man because he violated his neighbor’s wife. Thus, you will sweep away evil from your midst.

     But if the man comes upon the engaged girl in the open country, and the man lies with her by force, only the party who lay with her shall die, but you shall do nothing to the girl. The girl did not incur the death penalty, for this case is like that of one party attacking and murdering another. He came upon her in the open; though the engaged girl cried for help, there was no one to save her.

     The rules here are very problematic. Rape in the country assumes that the woman is innocent, that she cried out for help, but no one was there to help her. Rape in the city assumes that if she had called for help, she would have been saved, so the assumption here is that it was not rape at all but just another case of adultery and both the man and the woman are liable for the death penalty.

     There are a host of reasons why these are not good assumptions at all. There are many reasons a woman could not cry out for help in a city. She could be threatened with death, gagged, or in a place where she could not be heard; a rape can happen where nobody could hear a cry for help. A source as early as the Sifre Devarim, one of the oldest commentaries on the book of Devarim spells it out clearly, Is it possible that she is culpable in the city and exempt in the field? The verse teaches: The betrothed maiden cried out and there was none to save her… If there is none to save her, whether in the city or the field she is innocent.” This clarifies the case even if it changes the very plain meaning of the text. If, for any reason, there is no one to rescue the woman, she is innocent of consent. Only the rapist is guilty and to be punished.

     Rabbi Aviva Richman of Yeshivat Hadar in New York takes this presumption of a woman’s innocence a step further. She writes in her D’var Torah for Ki Tetze; “The city versus field distinction isn’t about whether there happened to be some bystanders who could swoop in valiantly to rescue a victim. It is not about individuals but depends on the larger culture. When a leader sets a tone of “not caring” about sexual assault, it can’t help but pervade the entire ethos of the culture. It will happen all the time, shrouded in a silence of despair and fear. This will have far-reaching impact as an assault on the dignity of many people and their bodies, while root causes remain unaddressed, like the unsolved murder.”

     At the end of last week’s Parsha, in the case on an unsolved murder, the leaders of the nearest town sacrifice a calf over a stream of running water and proclaim that they are not guilty of this person’s death. The leaders thus affirm that they have provided the proper safety systems and law enforcement that should have protected the victim. This murder was not their fault. Here, Rabbi Richman is making basically the same claim. The victim of rape is innocent in a city that has a culture of not responding to sexual assaults. In a place where rape has few or no consequences (the Midrash points to the government of King Achashverosh in Persia as an example) the woman cannot be accused of consent. Even if they screamed, nobody was listening and perhaps why should they bother to scream for help when they know that there will be no help coming?

     Now, all of this is fine when we are talking about the world of the Bible. But Rabbi Richman points her finger at these modern times and the accusation strikes way too close to home. She writes: “In our own time, seeing story after story break about leaders sexually mistreating others is not only a gross window into the less than ideal private lives of individuals. It is totally destabilizing. Are we in a city or a field? Are we in a context where we can expect that individuals’ bodies and dignity are taken seriously, that people will hear, and people will care? Or are we in the middle of nowhere?”

    We have long lived in a country where the sexual escapades of politicians have made front page news. Far too many political leaders feel that their position excludes them from sexual misconduct. Sexual harassment of women on their staff, unwanted sexual advances, rape, these are all rather commonplace in our news cycles. And like the Bible, all too often we do not blame the leader, but we blame the victim. Often, we don’t wait to see exactly what happened, but we jump to conclusions. More often than not, the leaders accused of sexual impropriety have a trail of multiple offenses that they have managed to “hush up” or pay off under “non-disclosure contracts” that prevent the leader from being called out for their actions.

     Far too often the women who are assaulted are too embarrassed or ashamed to come forward. Or, as the Bible would say, “there was no one to hear her cry.” Surveys tell us that today, over twenty percent of women, one in five, have been victims of sexual assault. We need to hear their cries.

     There is a world of difference between consensual sexual activity between two adults who share power on an equal level. We can argue over what should happen if either one is married to someone else at the time. Adultery is adultery and it is no longer a capital crime. But it remains grounds for divorce, and it could still have significant civil and social consequences. In the case where a more powerful person imposes their desires on someone who is no position either to defend or call out the activity without fear of personal or financial consequences, this is sexual harassment, and sexual assault between two adults who are unequal in power. Here, where the victim can not call out, our society is required to hear their cry and come to their aid.

     We give political leaders a great deal of legal protection so they may perform their leadership duties. We give all manner of famous artists, performers, and athletes a certain social space to express their talent. But I think it is important that we not let our society become a place where we no longer protect the vulnerable either in the city or the country. Maybe it was true 60 years ago that it was not considered news if a leader had an affair outside his marriage. An affair could be adultery. But in our modern times, sexual harassment is not something we should be giving “a wink and a nod” about. We can quibble about what is and what is not harassment, but we still need to be shocked when someone touches another without their overt consent. It matters and the Torah calls us to answer this important cry for help.

     Let us not let our society devolve into a place where there is no one to hear a cry for help. We need to be supportive of those assaulted and bring to appropriate justice those who assault. Our Torah reading may be out of date when it comes to punishment, but these sexual crimes are still being committed and we need to hear and defend these victims.

     May God help us hear the cry for help in our cities and in the country and may we answer their call for justice as we say … Amen and Shabbat Shalom


Sun, October 1 2023 16 Tishrei 5784