One small step for women TB Yevamot 19

Even though we understand that the world of the Torah and the world of the Talmud are patriarchal, studying massekhet TB Yevamot at times trouble us moderns. I had a repugnant feeling when the Gemara permitting a man having intercourse with very young girls. “And the baraita continues: Who is considered a minor? It is a girl from the age of eleven years and one day until the age of twelve years and one day. If she was younger than this or older than this, she may go ahead and engage in relations in her usual manner. This is the statement of Rabbi Meir. Since it is assumed that a minor who is less than eleven years old cannot become pregnant, she is considered to be in no danger. And the Rabbis say: Both this one and that one, i.e., in all these cases, she may go ahead and engage in relations in her usual manner, and Heaven will have mercy upon her and prevent any mishap, since it is stated: “The Lord preserves the simple” (Psalms 116:2).” (TB Yevamot 12b, TB Sefaria.org translation) I like to think that this was a theoretical discussion, but I doubt it.

We learn on daf TB Yevamot 19 that the Torah accords no rights for the women when it comes to levirate marriage. Only the deceased’s brother can choose to either do yibum or halitza and she has no say in the matter. Nevertheless, the halakha took one small step recognizing that widow needs to consent to be intimate with her dead husband’s brother.

The Gemara first sets up the case. “The Gemara proceeds to discuss the baraita itself. The Master said: The second was about to perform levirate betrothal with his yevama, but did not manage to perform levirate betrothal with his yevama before his brother was born, and then the second brother died. The first woman goes out and is free to remarry without ḥalitza or levirate marriage due to the fact that she was the wife of a brother with whom the third brother did not coexist, and the second woman performs ḥalitza or enters into levirate marriage. The Gemara asks: What is the meaning of the phrase: Was about to, and what is the meaning of: Did not manage to perform levirate betrothal? The important issue is not his intention but his actions. If he did it, he did it; and if he did not do it, he did not do it.”

Now we see the argument between Rabbi Yehuda HaNasi and the sages whether women need to consent to the levirate marriage.

“Rather, the correct interpretation is: Was about to means that he was about to perform levirate betrothal with her consent. Did not manage means that he did not manage to perform it with her consent, but instead did it against her will. Consequently, it is understood that this baraita is not in accordance with the opinion of Rabbi Yehuda HaNasi, as it is taught in a baraita: With regard to one who performs levirate betrothal with his yevama without her consent, Rabbi Yehuda HaNasi says: He acquired her and the betrothal is fully valid, like a consensual levirate betrothal with his yevama; and the Rabbis say: He did not acquire her.

“The Gemara explains: What is the reason for Rabbi Yehuda HaNasi’s opinion? He learned this from the case of a yavam engaging in intercourse with a yevama. Just as even non-consensual intercourse with the yevama renders her his wife, as the matter does not require her consent, so too, betrothal of a yevama can be non-consensual. But the Rabbis learned from the halakhot of betrothal in general; just as betrothal in general requires consent by the woman, so too, betrothal of a yevama for purposes of levirate marriage requires consent.

“The Gemara explains: With regard to what principle do Rabbi Yehuda HaNasi and the Rabbis disagree? One Sage, Rabbi Yehuda HaNasi, holds that halakhic matters concerning yevamot must be inferred from matters concerning yevamot and not from other areas of halakha. And one Sage, the Rabbis, holds that halakhic matters concerning levirate betrothal must be inferred from matters concerning betrothal.” (Sefaria.org translation)

Even though nobody practices yibum today, I’m happy to report that the halakha is according to the sages. The widow needs to consent to the levirate marriage. (Rambam, Mishneh Torah, Sefer Nashim, Hilkhot Yibum, Chapter 2, Halakha 1: Shulkhan Arukh, Aven Ha’ezer, 166:3)

This is the second time the rabbis took the woman’s feelings into consideration. We learned previously: “And similarly, Rav Sheshet said that Rabbi Elazar said in the name of Rabbi Elazar ben Azarya: From where is it derived with regard to a yevama who came before a yavam afflicted with boils that one may not muzzle her, i.e., she cannot be forced to enter into levirate marriage, and he is compelled to release her by ḥalitza? As it is stated: “You shall not muzzle an ox while it treads out the corn” (Deuteronomy 25:4), and, juxtaposed to it, is the verse: “If brothers dwell together” (Deuteronomy 25:5), which begins the passage that deals with the halakhot of levirate marriage. This teaches that just as it is prohibited to muzzle the ox, so too, one may not muzzle and ignore the complaints of a yevama who does not wish to marry a yavam afflicted with boils.” (TB Yevamot 4a, Sefaria.org translation)