The chained woman revisited

In 1998 I published a book entitled Silence is Deadly: Judaism Confronts Wifebeating. It is in the process of being translated with some major revisions and will beli neder be available by August 2023—a birthday present to myself for my 80th birthday and the 25th anniversary of the book. I am writing today because I just finished reading the article “Woman freed after being ‘chained’ in her marriage for 22 years” in the TOI, written by Judah Ari Gross. In making decisions about which chapters to keep, edit, update and eliminate I had more or less decided not to include chapter 11 which is called “Feminist Halakhic Solutions”. But after reading Gross’s article I’m not sure.

In chapter 11 of my book, I review the lack of symmetry in the status of husbands and wives, particularly as regards divorce and point to this inherent inequality as a major factor in the ambivalence of halakha to wifebeating. I present a model for change found in an egalitarian Mishnah (Mishnah Sotah 9:9), which is based on an analogy between the increase in the number of murderers and the increase in the number of adulterers. This Mishnah states that, when the number of murders increased, the ritual of the heifer whose neck is broken [egla arufa] when an unclaimed, unidentified body is found, was canceled (Deut. 21:1-9). Similarly, when there were too many adulterers, the ritual of the bitter waters (Numbers 5:11-31) was canceled. Clearly this Mishnah reports that changes occurred when circumstances made it necessary to adapt the halakha.

An implication of this Mishnah is that, when the assumptions about human behavior underlying a given ritual have changed, and this change is “proven” by the behavior of large numbers of people, then the given ritual is virtually “canceled” by the new facts; that is, the legal implementation of the old assumptions is no longer tenable. I suggested then that we might use the same mechanism and language that the Mishnah uses vis-à-vis today’s problems of the status of women in initiating divorce; namely, when the number of men who refuse to grant divorce increases, when the number of blackmailers increases, then the implementation of the law on which divorce ritual rests— the dependency on the husband’s good will—is canceled.

The men who refuse to issue their wives a divorce create a halakhic problem that needs to be creatively solved, even if the solution involves change in the halakha. When there are literally myriads of such men, the need for change is dramatic. Is it possible to put pressure on the rabbinate from within? The Orthodox feminist Blu Greenberg said in the 80’s “where there is a rabbinic will, there is a rabbinic way.” Rabbis can solve problems using halakhic methods when they wish to do so. But they do not always wish to do so and one rabbi’s solution can be considered anathema by another rabbi—thus creating new problems in the process.

Traditionally, halakha is very dependent on the context in which decisions are made. As in the “Rabbi, is the chicken kosher?” paradigm, the answer very often depends on the economic circumstances of the person who asks this question. Morality and compassion enter into the decision. Can the person afford to buy a new chicken for Shabbat if this one is deemed treif [unkosher]? If the answer is no, the very same chicken that would be considered treif for a rich person will be considered kosher for a poor person. This is an early form of “affirmative action” to help the poor survive in a cruel world, by putting their needs above strict rules. Yet we have seen that the rabbis are not always willing to bend the rules when women are concerned.

I discuss in my book alternative approaches to marriage and divorce that have halakhic underpinnings and restore some leverage to the wife. Most of the following solutions have been used in the past and continue to be used by rabbis in individual cases, or when the pressure by the public is so great that the rabbis are forced to find solutions.

  • Pre-nuptial agreements: the first is to require of all couples about to be married that they sign pre-nuptial agreements which would prevent a husband from refusing to issue his wife a divorce in the future and would impose substantial monetary fines on him for each day that he holds up the divorce.
  • Another possibility is gerushim al t’nai [a conditional divorce] to be deposited with the rabbinic courts in every case of marriage. This suggestion has antecedents in Geonic times. If the husband does not behave properly, or if he wants to uproot his wife from her home, she can go to the beit din and be released from the marriage—possibly losing the money from her ketubah, but still free to remarry. The condition is not that the women will leave the marriage on her own, but that he will have to divorce her.
  • Another suggestion has been kiddushin al t’nai [marriage on condition]. In this proposal, the marriage itself is conditional on the granting of divorce, and if one side obstinately refuses the divorce, the marriage is automatically annulled.
  • Hiyuv get [obligatory divorce]: when the court “obliges” the husband to issue his wife a divorce, it is not considered force, and he cannot go to jail. However, they can order the husband to pay large payments of child support and payment of the ketubah, even if his wife works, in an attempt to force him to issue the divorce. He can be excommunicated (put into herem), and if he refuses to listen to the court, he can be put into jail for not paying his support payments, etc.
  • Kfiyat get [Court forced compulsory divorce]: The court forces a recalcitrant husband to issue his wife a divorce when he habitually mistreats her or when he is incurably addicted to drugs, gambling, or alcohol (this follows Rambam’s dictum of meis alai [he is abhorrent to me]), or when the husband has AIDS, doesn’t support her, or is violent. The problem is that with this solution, the wife might lose her rights to the ketubah.
  • Hafka-at Kiddushin: The sixth is the process of rabbinic annulment of the marriage. Since the rabbis are one of the deot [consenting parties, vested with authority] in the contraction of the marriage, if they remove their consent the whole contract is annulled. This can be applied when the husband beats his wife. This was done in the past and there is no reason why it cannot be reintroduced.
  • Civil Sanctions: Giving the rabbinical courts the authority to revoke the husband’s driving license, passport, use of credit cards, access to bank accounts. Since many husbands leave the country without issuing a divorce and leave their wives behind, civil law should have the power to extradite those husbands who are in another country.
  • Vigilante punishment of abusive husbands: Maimonides’s suggestion for beating up the husband is alive and well today. If the wife declared that her husband disgusted her and that she could not stand living with him [meis alai], Maimonides permitted beating the recalcitrant husband until he “freely” declared he wanted to release her.
  • Civil Disobedience by women: Since a woman must go to the mikveh after her menstruation ceases, it is in the husband’s interest that she do so, so that the couple can resume sexual relations. In 1992, Blu Greenberg, reported on the Feminist Revolution in Orthodox Judaism about Canadian women who decided to take collective action against a man who refused to issue his wife a divorce. They all refused to go to the mikveh until the husband came forth with the divorce. This group action quickly got their husbands’ support, and pressure was put on the husband to issue his wife a divorce, so that the community could go back to its normal relationships.

In 1993, the late Rivkah Haut, an Orthodox activist on behalf of agunah rights, pointed out that the rabbis are the problem, “for they have the power to address the issue and they are not acting…[they] have not been willing to exercise their halakhic imaginations on behalf of Jewish women….The time has come for the rabbis to make some sort of binding decree—a takkanah—to correct this imbalance in Jewish law.”

In concluding my book I argued that there really is no other moral solution, besides the takkanah that takes into account the needs of our time. The Torah may have tolerated inequity because it had no choice in the past. However, today the reverse is true: to tolerate inequity is to hamper the message of Torah and to promote injustice. A takkanah could alleviate the plight of the abused woman. She would not have to bear the double burden of being abused by her husband and being betrayed by Jewish religious law. It is ironic that Jewish religious law includes ingrained inequity in marriage which allows only the husband to grant the decree of divorce to his wife. This inequity has evolved because the structure of rabbinic decisions today are not socially contingent or functionally related to the needs and experiences of women. The mindset of rabbis still functions with social and cultural assumptions that exclude women from the decision-making process and accept her dependence on male family members for status and support. It is this inequity that I propose be halakhically amended. I am challenging our rabbis not to abdicate their responsibility.

I believe my proposal is a halakhic way to keep faith with our traditional texts. I hope that rabbis in one of the religious movements may be inspired by the gauntlet I throw into the arena of halakhic discourse to come up with a halakhic takkanah and that the constituency of this rabbi will be willing to follow this ruling. Too often our rabbis are timid and afraid that bold decisions will turn out to be transgressions. They should keep in mind that Harav Kook, once wrote “that sometimes the Divine will regarding the future course of Halakha is conveyed specifically via its transgressors!” The takkanah, however, is not a transgression. It is an affirmation of halakha’s ability to be recreated.

And this is how I ended my book with the following proposed takkanah:

Jewish women of the world have been crying out to their rabbis to help release them from abhorrent marriages. They beg the rabbis to consider recurrent wifebeating as immediate grounds for divorce. The answer has been, “wait.” How long can they wait? Their biological clocks are ticking, their reproductive organs are atrophying at an alarming rate—yet they want to bring more children in the world, who will be halakhically recognized. They want to get on with their lives and build new commitments and forget their abusive pasts. Their respect of tradition is being challenged. A hilul hashem [disgrace of God’s name] is being committed daily as they are forced to stay in marriages which may be dangerous to their health and lives and the health and lives of their children.

We therefore propose that, in keeping with the needs of modern society, and to avoid the continuation of this terrible hilul hashem and crime being committed against women, that the husband no longer have the sole power to end the marriage. The concept of “rotzeh ani,” the necessity of the husband issuing the divorce of his own free will, which has been used by the husband to manipulate his wife to give in to his demands, is hereby abrogated. In its stead will come a mutual agreement in which an authorized beit din, will sit down with the couple and arbitrate terms which will be mutually agreed upon. If this proves impossible, the beit din will grant the divorce decree to the couple, making the woman equal in all matters of personal status.

We hope that this suggestion will lead to others, with the intention that the inequity of Jewish divorce not perpetuate the hilul hashem—using God’s name for an unjust cause. To paraphrase, “A person who saves a single woman’s life, not only saves her entire world, but that of her children and children’s children.”

I have not made up my mind yet whether to include this takkanah and chapter 11 in my translated book. Any feedback by my readers will be considered to convince me one way or another. Unfortunately, as Judah Ari Gross has pointed out, this chapter is all too relevant to our times.

About the Author
Naomi Graetz taught English at Ben Gurion University of the Negev for 35 years. She is the author of Unlocking the Garden: A Feminist Jewish Look at the Bible, Midrash and God; The Rabbi’s Wife Plays at Murder ; S/He Created Them: Feminist Retellings of Biblical Stories (Professional Press, 1993; second edition Gorgias Press, 2003), Silence is Deadly: Judaism Confronts Wifebeating and Forty Years of Being a Feminist Jew. Since Covid began, she has been teaching Bible from a feminist perspective on zoom.
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