Ask The Rabbi: Does Jewish law permit jailing recalcitrant husbands?

The question of imprisonment was renewed in 1953 when the State of Israel granted rabbinical courts the authority over marriage and divorce, including the right to imprison recalcitrant husbands.

By SHLOMO BRODY
Divorce Illustration (photo credit: JEFF DURHAM/MCT DIRECT)
Divorce Illustration
(photo credit: JEFF DURHAM/MCT DIRECT)
In our previous column about publicly pressuring recalcitrant husbands to grant their wives a divorce, I noted that Jewish family law distinguishes between cases in which the law obligates spouses to grant a divorce and when it coerces them to do so.
In the former case, the court labels the recalcitrant spouse a “sinner” and permits moral denunciation that includes indirect social sanctions. The underlying assumption in such a case is that moderate social pressure still allows the spouse to freely choose to grant the divorce, which is a necessary condition in licit divorce processes to avoid a coerced divorce (get me’useh).
In other circumstances, however, the court is authorized to compel the spouse by using means that directly impact their body, including corporal punishment. As the Talmud states, “We coerce him until he states I want to divorce her.”
The commentators questioned how a person may genuinely agree to a divorce in such circumstances. A few contended that we essentially assert that the rabbis validate this divorce writ, under the principle that all marriages take place under rabbinic auspices and thus they have the power to nullify marriage (hafka’at kiddushin).
Many, however, followed the psychological interpretation of Maimonides, who argued that Jews understand that they must obey Jewish law. When tempted in this case by their evil inclination to disobey court orders, the force applied against them is intended to restore their good sense of judgment, upon which they would willfully agree to the divorce.
Medieval decisors debated what types of punishments fall into the category of coercive measures that may be imposed exclusively for licitly compelled divorces. May a court penalize a recalcitrant husband to pay additional financial support while he is estranged from his wife? Many decisors deemed this as giving the husband a legitimate choice: continue to provide financial support as if you were still cohabiting, or grant a divorce. Accordingly, this penalty could be applied even in cases when the husband was merely obligated to issue a get.
Others believed that such financial pressure could be applied only in cases when coercion was mandated. Due to this dispute, rabbinic courts have hesitated to employ such financial sanctions except in cases of enforced compulsion.
The aguna-preventing prenuptial documents endorsed by the Rabbinical Council of America and the Tzohar Rabbinic Organization avoid this dispute regarding financial penalties at the time of marital discord. Instead, they are built on a prior agreement that a spouse assumes monetary responsibilities that will remain, even after the couple has stopped living as husband and wife, until the union is formally dissolved.
A more extreme sanction, clearly allowed only in cases when divorce may be compelled, entails using lashes or other forms of beatings. Occasionally, one reads in newspapers about rabbis who get arrested for covertly using torture methods to extract divorce signatures from recalcitrant husbands. This violates the law in Western countries (including Israel) and is therefore not condoned by Halacha.
The tactic, however, was undeniably used in past centuries. In some cases, it was administered by Jewish authorities, while at other times it was done by gentiles under a mandate from Jewish courts. Unauthorized use of force, however, clearly violates Jewish law and would invalidate any divorce document.
An arguably more moderate form of coercion is imprisonment. While jail was not one of the classic models of punishment in Jewish criminal law, some form of incarceration was recognized by the sages and was noted in the 11th century by Rashi as a means of compelling a husband to a get.
Yet for the most part, Jews did not have their own prisons and therefore imprisonment would require the utilization of gentile jails in which the conditions and treatment could be quite harsh.
Accordingly, in medieval times, incarceration was seen as an exceptional punitive measure which could only be utilized when a compelled divorce was justified and no other means succeeded.
Yet medieval scholars did assert that one could refrain from redeeming a recalcitrant spouse from captivity if they had been imprisoned for some other reason, such as a debt.
This was deemed as a form of indirect communal sanction that is permitted even in cases when divorce could not be compelled. Accordingly, a community could assert, for example, that it would not pay off the person’s debt to get him released until he had issued a divorce.
As Yehiel Kaplan has documented, the question of imprisonment was renewed in 1953 when the modern State of Israel granted rabbinical courts the authority over marriage and divorce, including the right to imprison recalcitrant husbands.
Rabbi Meshulam Ratta argued that such powers for extended punishment was unprecedented in Jewish law and should not be employed.
Then Ashkenazi chief rabbi Isaac Herzog demurred, contending that such imprisonment does not apply excessive pressure and is appropriate in cases when divorces may be compelled.
This position was shared by rabbis Ovadia Yosef and Shaul Yisraeli, who further noted that contemporary jails are far more civilized than those operated by medieval gentile courts.
While this form of coercion has sometimes helped, it is far from a perfect solution.
For starters, it takes the rabbinic court system a long time to declare that a man should be compelled to issue the divorce and then to execute this sanction.
Moreover, some men do not find jail conditions too burdensome.
Israeli legislation in 1995 and 2000 expanded the court’s authority to withhold prison benefits like special leaves or canteen privileges. Even when applied, it is not clear that such measures are effective in compelling the most stubborn and vengeful men. Other solutions must be found.
The writer, a presidential scholar at Bar-Ilan University Law School, is the author of A Guide to the Complex: Contemporary Halakhic Debates and directs the Tikvah Overseas Students Institute. Facebook.com/RabbiShlomoBrody