High Time to Stop Managing Iggun and End It, and Free All Agunot

The Times of Israel this week reported a supposedly precedent-setting ruling by Israel’s Chief Rabbinate which states that a gett-refusing husband in the Diaspora may face refusal by Rabbinate authorities to bury Diaspora family members in Israel.

As the article itself makes clear, however, even this step is not guaranteed. In any such instance, the Rabbinate will seek a supportive ruling by some other rabbinic authority— all this, while a corpse—not that of the gett refuser, but someone else– awaits burial. And what if the second authority does not support the action? Will the case go to another authority? A tribunal?

How far removed is all this from the woman—a living, breathing woman—in marital captivity? And if things have reached the stage depicted above, as is the case with the woman on whose behalf Yad La’isha brought suit to the Supreme Court of Israel to force the Rabbinate to rule as the latter eventually did—how many years, decades, of that woman’s life will necessarily have been lost to proceedings because of her inability– to just end her own marriage? In the case reported, the woman has been an agunah for decades. Most of her life. And remains one, despite this “momentous” ruling.

What have we come to, when (possible) refusal to bury a gett refuser’s kin is heralded as a triumph for women? When all this has become about men—gett refusers and the rabbis and system which enables them; and about other rabbis, offended when gett refusers defy their rulings—and let us be clear, that, not holding a woman captive, is the offense here; when it all turns into male power and turf struggles and women are a mere side show to a male spitting contest?

Ironically, this shabbat the Torah reading includes verses whose rabbinic interpretation is the origin of iggun. Deuteronomy 24:1-4 relates a case, about serial marriage of a woman. The text, overwhelmingly, is descriptive. Its one prescriptive statement comes at the end, stating that a husband who has divorced a woman who subsequently married another man and was divorced by him, cannot remarry her. This sparse text, some 60 words, becomes the basis for much of rabbinic marriage law and all of rabbinic divorce law. All which is descriptive in the Biblical text, the rabbis make prescriptive: the man “takes” the woman sexual in intercourse which constitutes marriage. He divorces her. Marriage being enacted, unilaterally, by the baal—“master,” “owner”– so is divorce. And here we have the origin of iggun.

Iggun is not caused by bad husbands or bad rabbis, though both abound, but by this system of marriage. Abusive men are the result of this system, which makes of women commodified sex objects, exclusive access to whose sexuality and reproductivity the baal enacts via kinyan—“acquisition,” and kiddushin—“sanctification” of that access. These acts are not reciprocal; the woman has no such claims of exclusivity on her baal. It is all there, in the second of the blessings recited at a halakhic marriage, birkat erusin, in which the language is about who is forbidden and permitted to “us”—the “us,” being men—via kinyan and kiddushin, and in the pronouncement, “harei at mekudeshet li.” There could be no more explicit statement of a woman’s sexual objectification and commodification than this.

On this ground alone— degrading the dignity and humanity of Jewish women in the act of marriage– this manner of enacting marriage should be abolished. But this is also the origin and cause of iggun, and the only way to begin to end Jewish marital captivity is to stop using this method and employ others, such as adapting rabbinic partnership law, which the rabbis developed with the assumption that both parties are men and therefore, to be protected equally; or the use of neder, halakhic vows for marriage, and hatarat nedarim, their annulment at the volition of either party, to terminate the union.

There has been much attention lately to prenuptial agreements, but these accept the ongoing reality of iggun and are no cure for it. Signing a prenup and then marrying via kinyan and kiddushin is like taking poison and hoping the antidote works. Better not to take poison in the first place. Even the best prenups– and there are some terrible ones, worse than none—are contracts. Like any contract, they can be and are violated. As with any contract, attempts to enforce them means costly and traumatic litigation, the threat of which itself can be used in gett extortion, no differently than in primary gett extortion. The financial penalties prenups state for gett refusal are equally meaningless to men with, and without, means. Even if the parties to a prenup honor it, there will always be rabbinic authorities and communities who do not recognize its validity. It will come down to the parties deciding that they are free–  behavior that needs wider application, as I argue, about agunot.

All this is a diversion and what I call managing, rather than ending, iggun. Managing iggun not only assumes that it is an intractable, insolvable, problem which can, at best, be limited; as one agunah advocate puts it, the goal is the least number of agunot, as if all this were a game of musical chairs: hope you have one when the music stops! This, when every woman married halakhically can become an agunah in an instant and some guaranteed number will. Managing iggun itself perpetuates iggun. It requires the maintenance of a system of rabbinic courts, which charge fees for every hearing, every expert opinion; for mandatory counseling to which women seeking to be free of their marriages are subjected even when they have endured physical and emotional violence in them. It requires lawyers, rabbinic “pleaders.” Iggun is an industry.

As for freeing all agunot, multiple, learned tomes exist which lay out means to do this. The problem is not lack of halakhic methods but the overwhelming refusal of rabbis and rabbinic courts to employ them. The default is prolonged or perpetual iggun. The extreme rarity is the freeing of an agunah. The record about this is clear; see Aranoff and Haut, The Wed-Locked Agunot, about rabbinic courts in the US; and Weiss and Gross-Horowitz, Marriage and Divorce in the Jewish State, for what goes on in Israeli rabbinic courts, about which, do also tune into the podcasts of Nitzan Caspi-Shiloni and Rivka Lubitch of the Center for Women’s Justice. To continue to engage this system when its failure to deliver results—and its interest in perpetuating the problem—is abundantly clear, is to participate in enabling the abuse.

I have recently completed a book about all this, about its history, going back to the 7^th century CE, across the map of the Jewish world—Ashkenaz; Sepharad; Provence; the Middle East; North Africa; the Mediterranean—up to the present; and about the current, sorry state of Jewish marital captivity in the US and in Israel. This problem, like any pathology, physical or social, can only end when there is accurate diagnosis. That is the necessary start, though not sufficient in itself.

I have found overwhelming evidence that Jewish women in all the communities of the Jewish world before the advent of modernity, were creative, assertive, aggressive, and transgressive in pursuing means to prevent their entrapment in iggun and ways to extricate themselves from it, and from yibbum (levirate marriage), and from halitsa (release from the requirement of a childless widow to marry her deceased husband’s brother), and from halitsa extortion—which yes, like gett extortion, is nothing new. Rabbis were met with actions that they accommodated and validated because failure to do so would mean their loss of control and the coherence of their communities. Good Jewish women, living entirely traditional lives in traditional communities—there was nothing else—were anything but passive, obedient, pleaders. Any remediating actions that came, came from this, from them.

It is unconscionably misleading to propose that prenups, much less postnups, will prevent iggun or extricate agunot from iggun.  Change to end iggun will come, first, from women insisting on methods of Jewish marriage that reflect their dignity and full Jewish personhood, and establish a marital partnership of complete equality. Second, it will come from agunot, not on their own but with emotional, financial, and legal support of their families, friends, communities, and the larger Jewish society, ending their captivity when they do not receive a swift, unequivocal end to their marriages, without a whiff of demand that they pay for this in money, assets, child custody, or child support, never mind, with sexual favors the Times of Israel article (and other sources) mention.

Iggun will end when women understand and act on the knowledge that threats to stigmatize them as adulteresses and their children, as mamzerot/im, are mafia-like tactics meant to keep them chained. No woman went to her huppa agreeing to become an agunah. On the contrary; becoming an agunah is a fundamental betrayal of the understanding with which any woman agreed to her marriage. Iggun, and mimzur, the act of labeling people with this stigma, are not laws of physics, necessary and inevitable. Treating them as if they were, and as if there is no choice but to accept victimization, is the surest guarantee that iggun will continue.

These abuses end when we both know our own history, have a clear grasp of the nature and pervasive extent of the morass which is iggun management, and apply the lessons from that knowing.

This can end rather than mutate into yet more depravities, like nivul ha-met, the abuse of corpses (also prohibited in this week’s parsha), in a tiny subset of possible cases, while living agunot are made a side issue to their own lives, waiting in perpetuity for others, someone, to act.

The end of all this is up to us.  In our minds first, to grasp. And then, in our actions, to do.