Our dappim TB Ketubot 38 and 39 describes the similarity and differences between a case of rape and a case of seduction in Jewish law.
On daf TB Ketubot 38 we learned that the fine (קנס) for seducing or raping virgin is the same thanks to a gezerah shava. “If so, and the halakha can be logically inferred, why does the verse state: “Who was not betrothed”? This verse is free, as it is superfluous in its own context, and it is written to liken another case to it, and to derive from it a verbal analogy: It is stated here with regard to a woman who was raped: “Who was not betrothed,” and it is stated below: “And if a man seduce a virgin who was not betrothed” (Exodus 22:15). Just as here, with regard to rape, the Torah specifies that the payment is fifty silver pieces (Deuteronomy 22:29), so too below, with regard to seduction, the payment is fifty. And just as below, with regard to seduction, the payment is in shekels, as it is written: “He shall weigh [yishkol] money” (Exodus 22:16), so too here, the payment is in shekels.” (Sefaria.org translation)The fine for either rape or seduction is 50 shekels.
The Mishnah on TB Ketubot 39
continues to elaborate the difference between a seduction and a rape.
“The seducer gives the father of his victim
three things, and the rapist gives the father four. The mishna
specifies: The seducer gives the father payments for humiliation,
degradation, and the fine. A rapist adds an addition to his
payments, as he also gives payment for the pain. What are
the differences between the halakha of a rapist and that
of a seducer? The rapist gives payment for the pain, and the seducer
does not give payment for the pain. The rapist gives payment immediately,
and the seducer does not pay those payments immediately but only when he
releases her. The rapist drinks from his vessel [atzitzo],
i.e., marries the woman he raped, perforce, and the seducer, if he wishes to
release her, he releases her.
“The mishna
clarifies: How does the rapist drink from his vessel? Even if the
woman he raped is lame, even if she is blind, and even if she is afflicted
with boils, he is obligated to marry her and may not divorce her. However,
if a matter of licentiousness is found in her, e.g., if she committed
adultery, or if she is unfit to enter the Jewish people, e.g., if she is
a mamzeret, he is not permitted to sustain her as his wife, as
it is stated: “And to him she shall be as a wife” (Deuteronomy 22:29), from
which it is inferred that she must be a woman who is legally suitable
for him.”
(Sefaria.org translation)
Although initially the woman resists
the advances of the seducer, she ultimately acquiesces to having sex with him.
Even though there is some pain the first time a woman has sex, it is also
coupled with pleasure. Because the woman acquiesces, the pain she experiences doesn’t
reach the threshold that would require payment. Consequently, the seducer doesn’t
have make a payment for pain. Rape is not sex, but a brutal attack on a woman.
Obviously the pain she experiences surpasses the threshold and requires the
rapist to make a payment for pain.
Lest you think the woman who was
raped is forced to marry her rapist or seducer, the Gemara today teaches that
both her father (because she is an adolescent still living under his control) and
the victim have to agree to this marriage. “both the rapist and the seducer are obligated to
marry their victim, both she and her father are able to prevent the
marriage.” (Sefaria.org translation)
She does not have to marry this man who
violated her, but if she does, the rapist cannot divorce her. Similarly the
woman doesn’t have to acquiesce to marry her seducer. Unlike the rapist seducer
doesn’t have to marry her. However, if he doesn’t marry her he still has to pay
the fine of 50 shekels.
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