Protect the vulnerable and guard against abuse

Ki Tetzei
9 Elul 5780 August 28, 2020

Parashat Ki Tetzei challenges us in two ways. Contemporary readers might find many mitzvot offensive. For example, the laws of the captive woman, the unloved wife, the rape of married and unmarried women, the rebellious son, cross-dressing, and physical mutilations challenge many modern assumptions and sensibilities about violence, abuse, freedom of expression, human dignity and violent crime. Furthermore, the literary structure of the parasha puzzles the reader. What do all of these mitzvot have to do with each other? The more examples one brings, the less coherent the parasha seems. Some examples include laws requiring one to shoo away a bird from the fledglings, to not return runaway slaves to their masters, to enclose a flat roof, to return lost objects, to validate the virginity of a bride, to not charge interest of fellow-Jews, to set parameters for collateral for a loan, to bury the corpse of an executed criminal, to pay employees on time, to not collect food from a neighbor’s fields in a basket, to require levirite marriages, to have equal weights and measures, and to prohibit marriage between Israelite women and Moabite and Amonite men. And yet, without working through the details here of all of these mitzvot, all of them actually cohere around one central value that emerges as sacred in the heart of Jewish spirituality. Every one of these mitzvot, in obvious ways for some and oblique ways for others, protect the weak, the poor, the vulnerable, the dependent, the outsider, and the pariah, from a potential abuse of power at the hands of the majority, the dominant, the male, the empowered, or the privileged.
Here is a clear example:

When you harvest your field and forget a sheaf, do not turn back to get it. That sheaf of grain you left in the field shall now go to the immigrant, the orphan, and the widow, so that the LORD your God may bless you in all your undertakings. When you harvest your olive trees, do not go over them again. The fruit remaining in the trees shall go to the immigrant, the orphan, and the widow. When you gather the grapes of your vineyard, do not pick them a second time. Whatever remains on the vines shall go to the immigrant, the orphan, and the widow. Always remember that you were a slave in the land of Egypt; therefore do I enjoin you to observe this commandment. (24:19-22)

Rabbi Avraham Ibn Ezra offers the following explanation of this mitzvah. On the phrase, in order that the Lord, your God, may bless you, he wrote: “…for you gave of what you only imagine to be yours; but God will give to you of that which is actually God’s.” We live comfortably in this world, nestled and coddled in the assumption that all that we have is coming to us, that we deserve all we possess, that we have ownership of the world. What this entire parasha instructs, and what Ibn Ezra emphasizes, is that once we realize that we own nothing, that life and the world and our health, and our food, and the relationships we build together are all blessings and gifts, we will naturally feel compelled to reach out to others and give freely. That is our mandate, in the belief that we humans are all innately religious, spiritual beings: to give to others. This includes food, clothing, money, time, expertise, love, friendship, companionship, shelter, skills, knowledge, protection, and anything else one person has and another requires.

I am proposing that all of the mitzvot in this parasha protect against abuses. Taken collectively, the Torah generates a typology of circumstances which contain vulnerabilities and potential abuse. Women are taken captive in war; the captor must dignify her humanity by enabling her to mourn the loss of her family and to insure her freedom should the relationship end. People build houses; homeowners are responsible to protect guests on their flat roofs. Employees are at the whim of their employers, so bosses must pay salaries on time. The poor remain at the mercy of their creditors, so life-saving equipment like mill-stones or blankets cannot be taken as collateral for loans. The hungry depend upon farmers, so farmers cannot go back and re-harvest forgotten produce a second time. Even the humanity of an executed criminal depends upon the will of society to dignify and not denigrate their remains. The Torah forbids leaving the body of the executed on a pike overnight; society must bury it. Commentators understand the prohibition against cross-dressing in their parasha as contextualized in situations in which men are trying to infiltrate a cohort of women with sexually abusive intentions.

Two of the most challenging mitzvot here include the rules governing the rape of an unmarried woman, and the reactions to the “wayward” child, the ben sorer umoreh. The case of the unmarried rape victim is particularly challenging. The law here is that the rapist has an obligation to marry his victim and is never allowed to divorce her. We could not imagine a more horrific rule. However, the rabbis of the Torah sheb’al peh explicate the details of these laws in ways that reveal important assumptions. One assumption here is that the woman in ancient society is better off protected by security and money in a home, than single and alone, even if she would be emotionally unhappy. The assumption is also that she would no longer suffer continued physical and emotional abuse at the hands of the now-husband rapist.
The rabbis in the Torah sheb’al Peh provide more details of these laws of rape. Rape of a single woman carries a heavy monetary fine plus the rapist has to pay reparations for damages, as well as for her suffering, embarrassment and emotional anguish. The rapist also incurs the corporeal punishment of lashes. This is all intended as both a deterrent and a punishment. (Rambam hilchot Rotzai’ach 2:4-5). In addition, the rabbis explain that the woman is not forced to marry her rapist; the rapist must, by law, agree to marry and care for her should she decide to exercise that option, as unimaginable as that is to us. (Talmud Bavli, Kettubot 39a-b.) These halachot attest to the Torah’s ultimate concern for the victim’s physical, emotional, psychological and economic well-being and security. Those are the only concerns at play, contextualized in the cultural setting of our ancient ancestors.

I assume that many women today would describe what is needed to insure their healing, safety and security very differently. But as different as it certainly would be, the revolutionary commitment of the Torah to the well-being, security, healing and safety of the victim remains. I am suggesting that the Torah’s commitment to the victim’s well-being is strikingly much more foundational than that of contemporary societies. Were modern societies to apply the same sensibilities at the heart of this teaching, we would make every unconditional effort to identify the deep, nuanced nature of the victim’s suffering and bring all legal force to bear on her healing as well as consequences against the rapist. Perhaps the most powerful principle here is that the Torah legislates legal responsibility to society for insuring that a rape victim is compensated in ways that can enable her to be safe and secure, and with reparations that might compensate for the unfathomable damage done through the assault to her body and personhood. (For a contemporary analysis, see, Jewish Orthodox Feminist Alliance: How do the rabbis address rape?)

The laws governing the “wayward” son are just as challenging. How could we ever imagine a situation in which parents bring a complaint against their child, resulting in his public execution? The majority of rabbinic voices in the Babylonian Talmud also could not, and claimed that such a case never existed, and never will. (Bavli Sanhedrin 71a. Rabbi Yochanan claims he saw such a case.) Shira Koller-Hecht makes a compelling case for understanding the law of ben sorer umoreh as protecting society from potentially abusive patriarchal power. The father is not in charge. Both parents must bring the complaint against the son, and the society at large, not the parents, execute the sentence. This law establishes a paradigm for establishing boundaries protecting elderly parents from their abusive child, as well as limiting the otherwise unlimited power of the pater familias in the clan or family. (See, Shira Koller-Hect, Torat Emet: The Jurisprudential Truth of Torah)
Abuse knows no bounds, unless boundaries are imposed.

This statement characterizes a way of understanding current realities in America. When peaceful demonstrations erupt and explode into uncontrolled rage, too few leaders demand that society take the rage, the anger, the hurt, the impotence, the vulnerability seriously. Anger and unbridled violence terrify, but they are the result of deeper, more painful feelings. We seem to be surrounded by fear, and as a result, by uncontrolled behaviors. During a pandemic, we see rage at the demand to wear masks, and rage at the refusal to do so. We see rage in response to the incessant shooting of black men, and rage in response to the rage of looting and the destruction of businesses and neighborhoods. We see rage in response to demands for more gun control, and rage in response to the absence of control. We are surrounded by rage because we are surrounded by fear, and fear comes from the deep, deep feeling of vulnerability, of not being safe and protected. When an entire society feels the desperation of its own vulnerability–those of privilege fearing the loss of their well-being, and those castigated by society fearing the lack of any future and everyone in-between–no truth can rescue that society. Truth in America today has been transformed into competing narratives, false facts, fake news, and lies.

This condition of society, a society ensnared in the unbridled rage of fear with no concern for justice, righteousness, dignity, decency, civility, or truth, is precisely what Moshe legislates to prevent. He legislates for a society that demands of everyone the absolute commitment to protect all vulnerabilities, to curb the abuse of power in all circumstances, from the simple, private requirement of building a fence around your roof (because that is your job) to insuring that a rape victim is cared for for the rest of her life–in whatever terms society understands as authentic and responsive. This commitment requires the diminishing of ego, a spiritual discipline related to rejecting idolatrous self-worship.

Rashi himself wondered about the big picture of parashat Ki Tetzei. He asked himself, “What is the underlying principle of organization throughout the parasha? How should we understand the juxtaposition of these seemingly random mitzvot?” He wonders about this from the outset. The very first set of rules govern the reality that as spoils of war, a victor will take a woman as booty. One should not denigrate a person by doing so, but the Torah recognizes that this is what will happen. Rashi wrote: “You are allowed to take her, that beautiful woman from the enemy camp, as a wife (not as a servant or slave).” [Nevertheless], the Torah is speaking about our base nature, our yetzer, the evil inclination…. For if he marries her, he will ultimately come to despise her, so the Torah writes after this: “If a man has [two wives-one beloved and the other despised].” [Furthermore, this union will be filled with acrimony, such that] he will ultimately father through her a wayward and rebellious son. For this reason, these passages are juxtaposed. (Devarim 21:11) Rashi is describing societal entropy. One moment leads to the next, until society spins out of control. What is needed is an ethical recalibration. The only antidote is a society committed to a sense of responsibility for each other, motivated by humility, by a recognition that we all share the same Creator, that to abuse a person, or animals, or the environment, diminishes holiness in the world, and that our task is to insure that our world not become a godless place.
Shabbat Shalom
Rabbi Dov