A test of the true measure of the Talmudic Jewish society Ketubot 36

Today’s daf TB Ketubot 36 cites two contradictory baraitot. The first baraita states: “An ailonit has neither a fine for rape nor a fine for seduction.” The second baraita states: “A deaf-mute, an imbecile, and an ailonit have a fine for rape and they have a claim concerning virginity.” (Sefaria.org translations) An ailonit is a woman who never matures physically. She remains a minor until the age of 20 when the rabbis assigned her the status of a bogeret (בּוֹגֶרֶת), an adult. This contradiction is easily dispensed with by assigning a different Tanna to each baraita. Rabbi Meir is the author of the first baraita because he holds that a minor doesn’t receive the fine while the Sages are the author of the second baraita because they disagree with Rabbi Meir and hold that a minor does receive a fine.

The more significant discussion concerns whether a deaf-mute and a mentally incompetent woman (I prefer this language to the Sefaria translation of imbecile) can make a counterclaim concerning their virginity. The day after the wedding night, the husband makes a claim that his bride was not a virgin. A bride makes a counterclaim saying that she was raped after she was betrothed.

“The Gemara answers (the question about the minor has already been so simply resolved that there’s no need to even cite this contradiction-gg): He cited this baraita due to the fact that he has another baraita from which to raise as a contradiction to it: A deaf-mute, and an imbecile, and a grown woman, and a woman whose hymen was torn not in the course of sexual relations, do not have a claim concerning virginity, as they do not have the presumptive status of a virgin. However, a blind woman and an ailonit have a claim concerning virginity. Sumakhos says in the name of Rabbi Meir: A blind woman does not have a claim concerning virginity. The baraitot contradict each other with regard to the claim concerning virginity of a deaf-mute and an imbecile.

"Rav Sheshet said: This is not difficult, as this baraita is in accordance with the opinion of Rabban Gamliel, who holds that a woman who, in response to a claim concerning her virginity, is believed if she says that she was raped after her betrothal and therefore does not lose her marriage contract. And that baraita is in accordance with the opinion of Rabbi Yehoshua, who says that a woman is not believed if she makes that claim, and therefore she loses her marriage contract. The Gemara asks: Say that you heard that Rabban Gamliel accepts her contention in a case where she claims that she was raped after the betrothal; however, in a case where she did not claim that that was the case, did you hear that he accepts her contention? The Gemara answers: Yes, since Rabban Gamliel said she is believed when she states that she was raped after betrothal, the deaf-mute and the imbecile are also believed even though they are unable to make the claim, as in a cases like that, it is a case of: “Open your mouth for the mute” (Proverbs 31:8). When a person lacks the capacity to proffer the claim on his own, the court makes the claim on her behalf.” (Sefaria.org translation)

Between Rabbi Yehoshua and Rabban Gamliel, I believe that Rabban Gamliel’s position is the more compassionate one and in my eyes the more correct one. Mahatma Gandhi taught “The true measure of any society can be found in how it treats its most vulnerable members.” Concerning the cases of a deaf-mute, mentally incompetent woman, and a blind woman classical Jewish law fails them and I claim the Jewish society which I am so proud of doesn’t measure up to the standard I hold it to. See Shulkhan Arukh, Even Haezer, 66:1, 67:5, 7-8