Outing the Torah

While it’s been quite a week worldwide, in the much smaller confines of Orthodox Judaism, it seems like two awful trends show no signs of letting up.

First of all, there is the perverse case of Malka Leifer, wanted for 74 counts of child abuse stemming from her time as principal of a Jewish school in Melbourne. She has been hiding from justice in Israel, a depressingly widespread phenomenon. Her case would be horrific enough, but then prominent Rabbi Yitzchak Dovid Grossman came forward to ask the court to release her into his care, as imprisonment would be a “humiliation” and injurious to her mental health. What exactly do you think child rape is, Rabbi? The judge, I wish I could say shockingly, sided with the [alleged] rabbi and the [alleged] rapist. And even if Leifer is tried and convicted, will she still receive rabbinic support, like Moti Elon and Eliezer Berland? And it’s not just Israel–the Chief Rabbi of the Netherlands has been implicated in covering up child abuse in his Jewish school as well!

In parallel, yet another senior rabbi publicly attacked the LGBT community. Rabbi Yehoshua Shapira of the Ramat Gan Yeshiva. Yes, according to him, Israel is becoming LGBTstan, and it is time for those who follow “an opinion that has been the basis of all humanity and the entire Torah” to “wage war” against the gay tsunami. If this sounds familiar, you might be thinking of Yigal Levinstein or Eli Dahan or… well, the list goes on and on.

What do these two troubling phenomenona have to do with each other? Perhaps it’s time we listen to what these rabbis are saying, distasteful as it is: they’re just following the Torah. In the Torah, two men who have consensual sex are condemned to death; as for a man raping a boy, not a word is uttered.

Now, I’m sure the apologeticists will be hopping up and down to tell me that a death penalty isn’t REALLY that important, it was rarely applied, it required so many prerequisites as to be nigh-unimaginable. Yet, it is there, black on white (Leviticus 18:22, 20:13). And, they would declaim, there are many very important elements of Judaism that are not explicitly in the Pentateuch, certainly pedophilia is considered an abomination in the eyes of God! Yet, it is not there in the Torah.

OK, that’s the Written Torah, but certainly the Oral Torah sets things right, no?

Our Rabbi taught: When one has sex with a male, a youth is not like an adult, but when one has sex with an animal, a youth is like an adult. What does “a youth is not like an adult” mean? Rav says: Sex with a child under nine is not like sex with a child above nine; Samuel says: Sex with a child under three is not like sex with a child above three.

(Babylonian Talmud, Sanhedrin 54b)

In case we had any questions, Maimonides lays it out:

Once a male has penetrated another male, if both are adults, they are stoned…

If one was a minor but at least nine years and a day old, the active or passive adult is stoned while the minor is exempt.

If the minor was exactly nine years old or less, they are both exempt. Still, it is fitting for the court to give lashes of insubordination to the adult for sleeping with a male, even though that male was less than nine.

(Laws of Forbidden Relations 1:14)

So, in a Jewish court, the defense might save a child rapist from the biblical death penalty by noting that the victim was marking his ninth birthday. But at least Maimonides thinks the rapist should be lashed; Sefer Ha-chinuch (The Book of Jewish Education) picks up the whip for the victim.

Now, if one was a minor who was between the ages of nine years and a day and thirteen years and a day, the adult is stoned whether he is the active or passive partner, while the minor is exempt biblically but rabbinically subject to lashes.

(Mitzvah 209)

But if you think it’s bad for Jews, just wait. The foremost commentary on Sefer Ha-chinuch, the Minchat Chinuch, notes ad loc.

If a male Jew had sex with a non-Jewish boy who is conscious of the action, the one who was the passive partner is also executed…  And if a Jew who has passed nine years of age has sex with an adult non-Jew, the non-Jew is liable for being the passive partner as well, as well as for being a stumbling-block, just like an animal (raped by a human). Even if this non-Jew is not conscious of the action, his law is still like that of an animal.

If child rape was not bad enough, we now have rape of the developmentally disabled,

Let us conclude this awful parade by returning to Maimonides (ibid. 12:10), who brings girls into the equation.

If a Jew has sex with a non-Jewess, whether a minor of the age of three years and a day or an adult, whether single or married, even if the Jew is only nine years and a day, once he intentionally has sex with a non-Jewess, she must be executed, because she has been a stumbling-block for a Jew, just like an animal. This matter is explicitly stated in the Torah, as it says (Numbers 31:16-17), “They were the ones who followed Balaam’s advice… And kill every woman who has slept with a man.”

I’m sure I’ll be called heretic, self-hating Jew and worse for citing these sources. But I stand firm in the belief that if we are to change our communities, if we are to make them welcoming for LGBT people and survivors of sexual abuse, if we are to cease providing refuge for rapists, abusers and victimizers, we must confront the ugliest parts of our tradition–and dedicate ourselves to the neverending work of tending the Tree of Life which the Torah must be.

About the Author
Yoseif Bloch is a rabbi who has taught at Yeshivat HaKotel, Yeshivat Har Etzion and Yeshivat Shvilei Hatorah and served as a congregational rabbi in Canada. He currently works as an editor, translator and publisher. As a blogger and podcaster, he is known as Rabbi Joe in Jerusalem.
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