WATER FROM THE WELL: Of war and woman

Battlefield rape was never sanctioned, not by the Torah nor by the interpretations that followed.

By NECHAMA GOLDMAN BARASH
‘The Abduction of Daniel Boone’s Daughter by the Indians,’ Karl Ferdinand Wimar, 1853. (photo credit: Wikimedia Commons)
‘The Abduction of Daniel Boone’s Daughter by the Indians,’ Karl Ferdinand Wimar, 1853.
(photo credit: Wikimedia Commons)
This week’s Torah portion, Ki Tetze, opens up with five verses that describe the possibility of taking a captive woman into the Israelite home. This narrative has often been used to suggest that the Torah permits battlefield rape to assuage the unbridled lust of soldiers at war. Only two years ago, the current military head of the IDF Rabbinate, Rabbi Eyal Karim, became caught up in controversy when he was quoted as having taught in a Torah class that raping a non-Jewish woman during war, while not desirable, was permitted because of this parasha.
If we look carefully, however, we discover that Rabbi Karim and others are heavily influenced by rabbinic and halachic interpretation of the text in clear contradiction of the Torah text. Furthermore, battlefield rape was never sanctioned, not by the Torah nor by the interpretations that followed.
The parasha begins with the desire a soldier feels for a beautiful woman he sees among the captives. Instead of joining the plight of the rest of the captives, destined most likely for slavery, her beauty has distinguished her. However, the Torah immediately juxtaposes his desire with the mandate to take her as wife. In other words, his desire must be tempered with the actions that the Torah describes.
The verses set out a series of rituals involving the woman’s hair, nails and clothing followed by the command to allow her a month of days to cry over her mother and father. Only at this stage does the Torah allow him to have relations with her. In this way, after this process, she becomes his wife. If he realizes he no longer desires her, she is set free. He may not resell her or use her in any other way.
Modern biblical scholars interpret the parasha as a humane text that is intended to obligate the Israelite to behave with forbearance and to take into consideration the feelings of the woman. The Torah thus mandated the desired conduct in a situation where there seems to be concern for immoral and uncontrolled behavior. Captive women have always been vulnerable by-products of war from ancient times until today. The text seems to mitigate the possibility of physical or sexual violence by directing the lust-filled soldier away from the battlefield and into the home. The rituals she performs on herself reflect possible mourning customs in the Ancient Near East or might serve to transition the woman into a new religion and community. She is given a month to cry. The process ultimately transforms her from the status of captive to one of married woman within the community she has been forced to join.
Rabbinic interpretation drastically changes the way we read this parasha.
Written down well after the Second Temple has been destroyed, Midrash Halacha from the Tannaitic period (ending in 200 CE) encounters a reality in which Jews are no longer waging offensive wars which could result in captive women. The subsequent interpretation no longer needs to consider the practical consequence of bringing them home along with the possible impact such women will have on the Jewish community. It relates to the text in a multi-layered way, mining it for readings that will bring relevant ideas to the Jewish population it addresses.
One midrashic reading, heavily influenced by Rabbi Akiva’s school of interpretation, sees the woman as Satan who will lead the Israelite man astray. This midrash predicts that the man will come to hate her and that she will give birth to a wayward and defiant son (found in this parasha almost immediately after the captive woman text) who if left to his own devices will commit a capital crime. Rabbi Akiva continuously sees the woman as a corrupting presence. While his colleague Rabbi Eliezer understands the Torah’s obligation to give her a month to cry for her parents as being literally for the loss of hearth and home, Rabbi Akiva dismissively interjects that she is crying only for her idols. In one dramatic passage, he criticizes the woman for having adorned herself and gone out to the battlefield with her friends to seduce the children of Israel. He compares her to a pumpkin who will sit in the entrance to the home and force the man to confront her in all of her literal and metaphorical ugliness. Through the prism of interpretation, which deviates greatly from the more straightforward reading of the Torah, we can understand that Rabbi Akiva is taking a strong stand against foreign influences. These virtual captive women come from outside and embed themselves inside the community despite the continuous warnings in the Torah itself that intermarriage with idol worshipers will turn the hearts of the children of Israel astray. And yet, in this case the Torah allows it! In another midrashic reading of this parasha, Rashi brings an interpretation from the school of Rabbi Yishmael, explaining the whole parasha as a concession to the evil inclination. According to this approach, the rituals serve as an attempt to neutralize the soldier’s desire – either by removing her hair or nails or dress – in order to force the soldier to recognize what his desire has caused. In both schools of midrash, sexual relations only take place after the rituals and mourning period. It is this act which finally turns her into his wife, in keeping with the verses in the Torah.
So where did the idea of battlefield rape come from? In an unprecedented manner, the Babylonian Talmud presents the permissibility of an initial act of sexual relations as a concession to the evil inclination, before beginning the process that will turn her into wife. This becomes the dominant reading of the parasha even though it is not reflected in the straightforward reading of the verses. Furthermore, it does not allow the sexual act to take place during the war! This is clarified briefly within the Talmud and codified by Maimonides who clarifies it further in his laws of war by writing that such an act obligates him to bring her into his house and not leave her degraded by the wayside.
This parasha illustrates the tension that exists between biblical text and rabbinic interpretation. Moreover, when one looks more deeply at the Torah’s words, in contending with the reality of warfare, the Torah presents a moral and compassionate approach to a difficult reality in which it finds itself. 
The writer teaches contemporary Halacha at the Matan Advanced Talmud Institute.
She also teaches Talmud at Pardes along with courses on Sexuality and Sanctity in the Jewish tradition.