Eshet Yefat To’ar: A New Look

Imagine the following story: After victory in battle, a group of soldiers passes some locals, and one woman catches a certain sergeant’s eye. He separates from his fellow troops to gaze at her outstanding beauty, and decides to approach her. Before she is able to react, he forces her into an alleyway and fulfills his war-driven sexual cravings. Subsequently, he travels back to his native country with her at his side, and proceeds to shave off her hair, grow her fingernails beyond their normal length, strip away her beautiful clothing, and dress her in sackcloth. He lives out his daily life, returning to his family and friends whom he left for war, while his normal surroundings embrace an additional character: his captive. After thirty days, he forcibly converts her to his religion and marries her. The end.

I presume that your reaction to this story would match the common response of disgust in the face of such horror, followed by a demand that justice be done. The soldier should have never acted in this manner, for the permission to fight is limited to the battlefield, and in no way is the soldier empowered to brutally rape the opponent’s wives and daughters! As if the rape was not awful enough, this woman was kidnapped, terrorized, and then taken as a wife by the enemy, actions which, individually, one would assume to be way beyond the entitlement of soldiers at war. The poor woman’s life has been ruined, and, beyond the abuse and assault, she has now been transformed into a new person, implanted into new faith, family, and surroundings.

The most shocking part of this exercise may be that this slightly-embellished story is not far off from that which is allowed in the case of eshet yefat to’ar, a biblical institution most commonly understood as permission for a soldier at war to sleep with a captive woman.[i]^,[ii] In fact, according to a number of the famous compilers of the mitsvot, this soldier has actually fulfilled a mitsvah.[iii]^,[iv] The Bible approves a series of actions that seem to run contrary to the broader meta-philosophy of the Torah! How can such abuse be permitted? Since when is a man allowed to act freely on his desires, ignoring the repercussions of his actions? To where has the merciful and caring Jewish conscience disappeared?

The most common explanation for eshet yefat to’ar originates in the Amoraic discussion about whether the allowance applies to kohanim as well. The application of this allowance to a kohen seems problematic from the outset, given the prohibition for a kohen to marry a convert.[v] To explain why a kohen would nonetheless also be included in the permission of eshet yefat to’ar, Hazal interpret this passage in the Torah as a divinely sanctioned loophole to provide soldiers with an outlet for their sexual drives. Thus the Torah allows the kohen to make use of this outlet as well, even if he cannot ultimately marry the woman. In other words, the Talmud is claiming that this entire section of the Torah is meant to speak toward one’s yetser ha-ra, for it is better for a Jew to “eat animals that had been on the verge of death when slaughtered, rather than eat animals that died without slaughter.”[vi]

Commentators offer various explanations for the specific details involving the eshet yefat to’ar, each shedding new light on the situation for the soldier and the captive woman. Several rishonim permit the first sexual act before converting the woman,[vii] while others maintain that it must be delayed until the completion of the thirty-day process described in the verses, which includes conversion[viii] In regard to the woman’s transformation from non-Jew to Jew, Rashi claims that the conversion is coerced.[ix] In contrast, Rambam argues that if the woman does not want to convert, the minimal time period before they can marry is extended to twelve months, in order to allow her more time to decide whether or not she wants to convert.[x] If she ultimately decides that she does not want to convert, she simply goes free and is considered a ger toshav.[xi] Given these varying nuances in the halakhot, the strength of the original question posed about eshet yefat to’ar differs depending on the opinion.

Though the Torah does seem to allow the soldier to engage in sexual activity with the captive woman, the Rabbis alter our view of this permission. After quoting the Talmud’s statement that the Torah was speaking to the yetser ha-ra, Rashi further qualifies the Torah’s approval of this act with the approach of the Midrash Tanhuma[xii] to Deuteronomy 21.[xiii] Hazal there point out that, based on the context of the eshet yefat to’ar (i.e. the next two sections of chapter 21: the “hated wife” and ben sorer u-moreh – “the wayward and rebellious son”), the Torah not only has a negative outlook on this permission, but seems to indicate the disastrous repercussions of following it directly in the text. The Torah purposely organizes the topics in this way as a warning that indulging in the eshet yefat to’ar allowance will lead to calamitous consequences, namely the troubles described in the next two portions of the text.[xiv] So although the Torah provides a method to realistically deal with one’s yetser ha-ra, the dissuasive passion of the Torah is evident through the text.

The commentators affirm the Talmud’s notion that the Torah maintains a negative view of the eshet yefat to’ar allowance, and develop this perspective further. The Keli Yakar explains that the requirement for the woman to “cry over her father and her mother”[xv] is intended to create a feeling of mourning within the soldier’s household. This purports to remind the soldier of his day of death, and with that in mind, he is expected to successfully combat his evil inclination.[xvi] In addition, R. David Silverberg, a writer for Yeshivat Har Etzion’s Virtual Beit Medrash, argues that the requirement to bring the eshet yefat to’ar “into one’s home”[xvii] exists in order to help the soldier realize how far his mind had gone while he was out at war, enabling him to regain his old state of mind and avoid sin.[xviii] The verses later require the soldier to shave off all of the captive’s hair,[xix] and Rashi[xx] explains that the purpose of this is to make her appearance disgusting, to negate the beautiful impression given off at their first encounter and thereby prevent the soldier from sinning again.

The aforementioned sources offer an enhanced understanding of the discouragement for the soldier’s involvement in this activity; however, we still have little insight into the victim’s perspective of this whole affair. Ramban explains that Halakhah requires the woman to cry, shave her head, and change into sackcloth in order to provide her with the necessary atmosphere and time to mourn her losses.[xxi] Ramban also explains that she is forcibly converted by a beit din, as was done to young slaves. One explanation for this troubling phenomenon is offered by R. Joseph B. Soloveitchik.[xxii] The Rav discusses the problematic nature of forced conversions, which arises from the fact that the convert does not accept the Torah and mitsvot, and this acceptance is a significant part of the conversion process.[xxiii] He explains that a “conquered” person is one who is completely under the responsibility of another. Since the caretaker is completely responsible for the “conquered” person, he or she is entitled to convert this person. Thus, for example, a beit din is allowed to convert the young slave, because it has complete responsibility for the child. This logic works for the case of eshet yefat to’ar, as well; if the man decides to have sexual relations with a captive, he takes complete responsibility for her, which includes a responsibility to marry her, and so he is entitled to convert her.

Another explanation is provided in Rambam’s Hilkhot Melakhim u-Milhamoteihem.[xxiv] In the first halakhah in chapter 8, Rambam lists various actions that are normally prohibited but are permitted to those fighting in a war, including the consumption of non-kosher meat and wine. In the second halakhah, which seems to be topically distinct from the first, Rambam discusses the concept of eshet yefat to’ar, and rules that a soldier may have sexual relations with a non-Jewish captive woman if his desires overtake him. Rambam mentions that the man may not just have relations with her and then go on his merry way; rather (“aval”) he must bring her into his home. The halakhah ends by noting that a second act of intercourse is prohibited until after the soldier and captive are married.

The term “rather” that appears in the law is interesting in that Rambam does not similarly qualify the rest of the permitted wartime activities. Perhaps this qualifier shows that the permission for his sexual relations with her depends on his intent to convert and marry her in the future. It seems from this qualification that the Rambam is looking beyond the permission of sexual activity, and is interested as well in the repercussions following the act. Me’iri expresses this idea more clearly, and rules that the soldier may not have a first sexual encounter without the da’at (intent) that he will be converting and marrying her in the future.[xxv] However, both Rambam and Me’iri also rule that a kohen may have intercourse with her once, but he may take no further action, since he cannot marry a convert. Although the soldier’s intent seems to be crucial, at the end of the day, the Torah allows a man overwhelmed by his desires to act in accordance with those desires, and therefore even when the soldier could not possibly marry the woman, the initial sexual act is allowed.

If the Torah is truly speaking to the Evil Inclination, then why do Rambam and Me’iri include the requirement of intent for marriage? I would like to propose that the requirement to marry the captive woman after the sexual act is to provide her with a level of protection, allowing her future to contain some degree of security. The intent is necessary for the soldier’s perspective; it demands that he recognize the greater implications of his actions and accept a level of responsibility for this woman. Though the kohen is an exception, this requirement does work and is encouraged, if not demanded, in all other cases, according to Rambam and Me’iri.

“In most times and places throughout the ages, rape has been the arrogated privilege of the soldiers of the victorious army to indulge in to their satisfaction upon the women of the conquered territory or fallen city.”[xxvi] I think the Torah attempts to prevent such a situation, with the realization that in certain circumstances it will not be successful. The Torah strives to balance the inevitability of man’s desires and actions during wartime with the requirement for holiness. Accepting that the situation will occur in certain instances, the Torah makes demands, requiring that the soldier take care of his victim. If the Torah cannot prevent the soldier from overcoming his desires, then it must, and does, think about the woman involved.

Jacob Bernstein is a sophomore at YC majoring in Jewish Studies, and is a staff writer for Kol Hamevaser.