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‘Agunacide’: To kill the phenomenon of agunot

Jewish law has the means to make chaining women in Jewish marriage a thing of the past

Agunacide aspires to galvanize redemption; of chained wives who are being held captive by husbands who refuse to give a Get, and of a chained legal system which is being held captive by a fear-inspired deification of status quo. The violent solution to this problem, proposed and practiced by former generations (they don’t call it “going medieval” for naught), is no longer an acceptable form of conflict resolution, and we are told there is nothing else that can be done. Monetary sanctions and incarceration are lame replacements for the psychological deterrent of anticipated physical pain, and besides, the halachic prenup does nothing for the women who were married before its inception, and besides, the halachic prenup attempts to remedy a symptom of our gangrened legal system but the decaying root remains untreated. Agunacide is not only descriptive, however, but prescriptive as well, offering a solution, and showing that Halacha is not as impotent as some of our shepherds might want us to believe. Jewish betrothal is a quasi-acquisition which is accompanied by the following declaration: הרי את מקודשת לי בטבעת זו כדת משה וישראל. “You are hereby betrothed to me, in accordance with the rules of the religion of Moses and Israel.” The explicit reason we say these words is to equip each marriage with an implicit condition, providing an eject button, to be pressed in times of emergency. This mechanism is called Afkinhu, which allows for the marriage to be retroactively annulled.Back in the 12th century, however, Maimonides’ paskined (ruled) that recalcitrant husbands were to be beaten into get-giving submission, a quintessentially Medieval solution which essentially rendered Afkinhu extraneous, resulting in the eventual reification of a de-facto mesora that Afkinhu is now off limits. Nowadays, anyone who dares mention Afkinhu as a practical solution for the Aguna crisis is frum-shamed, derided and accused of being an Apikores (heretic) who has come to sully some sacrosanct tradition of leg-crossed passivity. They will also say that I am being reckless with regards to the slippery-slope that Afkinhu will beget. Maybe the sanctity of marriage will be marred because a theoretical wife who gets impregnated while cheating on her husband will now be able to gather a court and craftily use Afkinhu to retroactively prevent her son from becoming a mamzer (bastard). Ya, maybe that will happen [eyeroll emoji]. But yo they can do that anyways, even if Orthodoxy continues worshipping a doctrine of shev v’al ta’aseh adif (literally: sitting and not acting is better). And yo why should countless actual women be forced to languish in limitless agony, in solitary confinement, forced to perform any other number of her husbands capricious druthers to elicit a favor from a man who has a vested interest in seeing her suffer and maybe still loves her and also can extort her for soooo much money by holding the get hostage—how much is your freedom worth to you?—due to some vague future fright? Agunacide is a shoutout to my yiddin around the globe: Hock up your Rabbis about Afkinhu and get the dialogue started. We can all play a vital role in the imminent revolution, which, by the way, are rarely initiated by those who are already established and entrenched and comfortable. Rabbi Shlomo Riskin and a handful of others are notable exceptions and I have taken note and been inspired. Agunacide is calling out the Rabbis, with a call to action: start paskining Afkinhu and show us that you care about the pain you are putting these women through. Failure to do so will continue the perpetration of the greatest “Chillul Hashem” of our generation. Because it sure seems like y’all don’t care enough, and, as I mention in my song, the legal definition of “a desecration of G-d’s name” is a din in (function of) public opinion. Agunacide is a Shofar blast; to wake up a slumbering bureaucracy and to herald the coming redemptions. The Aibishter should give us syata dishmya. גלוי וידוע לפניך שלא לכבודי עשיתי ולא לכבוד בית אבא אלא לכבודך עשיתי שלא ירבו מחלוקת בישראל

Posted by Shmuel Herenstein on Sunday, 12 August 2018

“Agunacide” aspires to galvanize redemption: of chained wives who are being held captive by husbands who refuse to give a get (a bill of Jewish divorce), and of a chained legal system that is being held captive by a fear-inspired deification of the status quo. The violent solution to this problem — namely, beating the husband until he gives his wife the bill of divorcement of his own volition — proposed and practiced by former generations (they don’t call it “going medieval” for naught), is thankfully no longer an acceptable form of conflict resolution, and we are told there is nothing else that can be done. The monetary sanctions and incarceration that have been employed by the halachic prenup are insufficient replacements for the psychological deterrent of anticipated physical pain. Moreover, it does nothing at all for the women who were married before its inception, and worse, the halachic prenup attempts to remedy a symptom of our limping legal system, but the root remains untreated. Agunacide is not only descriptive, however, but prescriptive as well, offering a  solution, and showing that Halacha is not as impotent as some of our shepherds might want us to believe.

Jewish betrothal is a quasi-acquisition which is accompanied by the following declaration: הרי את מקודשת לי בטבעת זו כדת משה וישראל — “With this ring, you are hereby betrothed to me, in accordance with the rules of the religion of Moses and Israel.” These words equip each marriage with an implicit condition — making it dependent on that ring. Moreover, the formulation also implicitly grants Jewish legal authorities — those who determine “the rules of the religion of Moses and Israel” — the means to undo a betrothal retroactively. This mechanism is called “Afkinhu,” which fundamentally annuls a marriage retroactively, by divesting the husband of his ownership of the ring used to carry out the transaction at the time of the marriage, for example.

Back in the 12th century, however, Maimonides ruled that recalcitrant husbands were to be beaten into get-giving submission, a quintessentially medieval solution that essentially rendered Afkinhu extraneous, and resulted in the eventual reification of a de facto mesorah (tradition) that Afkinhu is now off limits. Nowadays, anyone who dares mention Afkinhu as a practical solution for the agunah crisis is frum-shamed, derided, and accused of being an apikores (heretic) who has come to sully some sacrosanct tradition of leg-crossed passivity.

I will also be accused of being reckless with regards to the slippery-slope that Afkinhu will beget. Maybe the sanctity of marriage will be marred because a theoretical wife would become impregnated while cheating on her husband, and would be able to gather a court and craftily use Afkinhu to retroactively annul her marriage and prevent the child born of that (no longer adulterous) pregnancy from becoming a mamzer (bastard).

Yeah, maybe that will happen [eyeroll emoji]. But, in theory, a woman could abuse the current system too, even if Orthodoxy continues worshipping a doctrine of “shev ve’al ta’aseh adif” (literally: sitting and not acting is preferable). And why should countless actual women be forced to languish in limitless agony, in solitary confinement, forced to perform any number of their husbands’ capricious druthers to elicit favors from men who have a vested interest in seeing them suffer. Maybe such a man still loves his wife, and maybe he can also extort her for so much money by holding the get hostage — how much is your freedom worth to you? — due to some vague future fright.

I have spoken to some of these women and the indescribably hellish conditions they experience waiting for their de facto ex-husbands to return their lives is nothing short of traumatic. It does not help that they feel that nobody cares for their plight. Furthermore, the fact that divorce in the Jewish world can  be transmogrified into a nightmarishly misogynistic process is taken advantage of by some unscrupulous husbands. One woman, married off at 17 to some “Chaim Yankel” she never loved, told me that when she asked for divorce, the husband said: לא כדאי לך. אני אעשה לך המוות בגירושין — “it isn’t an advisable for you [to try to leave me]. I will make the divorce process a living hell for you.”

This story ended relatively well: he eventually acquiesced to giving the get in exchange for everything she owned, after a year that she said felt like six, during which she was hostage to his demands. Other women are held prisoner for longer and extorted for far more than “all they’ve got.”

A not uncommon response to my video: “Herenstein, c’mon, how many agunot are there, really?”

Hundreds. But I believe that question is fundamentally misguided because it does not take into account the countless women who feel trapped in their marriages, but are afraid to ask for a divorce because the process is so stacked against them. Did you hear the one about the 23-year-old Haredi women who was abused so thoroughly by her husband that she had to escape for her life, but the only way he agreed to let her go was by giving him full custody of their child, and relinquishing her visitation rights?

Well, if we employed Afkinhu, we would never hear of stories like these ever again.

If we used Afkinhu, even a few times, there would be no more stories like these ever again because by simply demonstrating our willingness to use Afkinhu, we undermine a husband’s ability to abuse a quagmired constitution to imprison his wife; Because every husband would know that if he mistreated his wife, she would be able to ask for a divorce and he would not have the power to withhold it. So I’d guess he would have to treat her better.

It seems that using Afkinhu would not affect the sanctity of marriage in any negative way, though I have been cautioned and reprimanded to that affect, but ipcha mistabra — to the contrary! Punkt vakert, just the opposite. By releasing a wife from her status of captivity, Afkinhu would greatly improve the mutual love and respect between spouses.

Agunacide is a shout-out to my yiddin around the globe: ask your rabbis why we do not use Afkinhu nowadays, and if that reason justifies the measureless pain caused in its (i.e. Afkinhu’s) absence. Essentially, get the dialogue started. We can all play a vital role in the imminent revolution, which, by the way, are rarely initiated by those who are already established and entrenched and comfortable.

Rabbi Shlomo Riskin and a handful of others are exceptions and I have taken note and been inspired. This is the most important moral issue of our generation. Anyone who thinks they would have stood up for the Jews in Weimar Germany, this is your time. Anyone who thinks they would have marched with Martin Luther King in Selma, Alabama, this is your time.

Agunacide is calling out the rabbis, with a call to action: start employing Afkinhu and show us that you care about the pain you are putting these women through. Failure to do so will continue to perpetrate the greatest “hillul Hashem” (desecration of the name of God) of our generation. Because it sure seems like y’all don’t care enough, and, as I mention in my song, the legal definition of “a desecration of G-d’s name” is a function of public opinion (Yoma 86a).

Agunacide is a shofar blast: to wake up a slumbering bureaucracy and to herald the coming redemptions. May God grant us His heavenly help and support.

גלוי וידוע לפניך שלא לכבודי עשיתי ולא לכבוד בית אבא אלא לכבודך עשיתי שלא ירבו מחלוקת בישראל (מגילה ג) י

About the Author
Shmuel Herenstein has been around the Jewish block. From Lawrence, NY, he finished high school after junior year and shteiged away senior year at the illustrious Shar Yashuv Yeshiva of Far Rockaway. He moved to Israel at age 18 and began to learn Gemara, imbibing Torah from Hakotel, Rav Ilson’s, Chispin and the Mir yeshivot. Then he moved to Tzfat for a month and produced a 4 track C.D. called Belief. Then he joined the army where he would eventually team up with Leket Israel and start a food rescue initiative called SHAI. He is currently a student at Shalem College and teaches Gemara at an American yeshiva in Israel.
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