Ketubot 39b (לט:) — the Talmud in English

And it was taught in a beraita: Rabbi Shimon ben Yehuda said in the name of Rabbi Shimon

to disagree with our Mishna: Even

the rapist does not pay for the pain, because

she will ultimately experience pain with her husband.

The Sages said to him:

The Sages:

One who is raped

who experiences pain

is not comparable to one who engages in intercourse willingly

with her husband, who does not experience pain!

It is therefore evident that the pain—which, according to the Sages who disagree with Rabbi Shimon, he is obligated to pay—is the pain of being thrown onto the ground, for regarding this pain Rabbi Shimon would not say, “She will ultimately experience pain with her husband,” since the husband does not throw her onto the ground.

Rather, Rav Naḥman said that Rabba bar Avuha said:

The pain for which the rapist is obligated to pay according to the Sages is

the pain of spreading the legs.

And so

the verse

says,

indicating that there is pain in spreading the legs, for the prophet said disparagingly:

“And you spread your legs to every passerby”,

because, due to the abundance of her promiscuity, she was not concerned about the pain and would spread her legs to every passerby.

And the Gemara raises an objection:

If so,

that the pain is the pain of spreading the legs, then

the seducer too

should have to pay for this pain, since this pain is applicable to her as well. Why, then, did we learn in our Mishna that the seducer does not pay for pain?!

Rav Naḥman said that Rabba bar Avuha said: The analogy concerning the seduced woman

—who engages in intercourse willingly—

to what is this comparable?

To a person who said to his fellow: Tear my silk garment and you are exempt

from paying for the damage; so too, since she engaged in intercourse willingly, she waived her claim against him.

The Gemara is astonished at the analogy:

“My”?!

Is the case under discussion comparable to silk garments that belong to her?!

But the silk garments

belong to her father

[they are his]; that is to say, this pain for which he is obligated to pay belongs to her father, and this is comparable to one who says to his fellow: Tear my father’s silk garment and you are exempt?!

Rather, Rav Naḥman said that Rabba bar Avuha said:

The pain for which the rapist pays is not the pain of spreading the legs, but rather the pain of removing the hymen at the time of the first act of intercourse. The reason that the seducer does not pay the fine is that

the intelligent ones among them

[among women]

say: A seduced woman

—at the very time of intercourse—

does not experience pain

for which payment is due.

The Gemara is astonished:

But we see that she does experience pain,

for our eyes see that even a seduced woman experiences pain, even at the time of intercourse?!

Abaye said: My mother

[my nurse, as Abaye was an orphan] told me that a woman’s sensation during her first act of intercourse is

like warm water on the head of a bald man,

like warm water poured on a bald head. This is not pain for which payment is due, since it is worth less than a peruta; and the reason she does not experience pain is the pleasure of intercourse that she has at that time.

Rava said: My wife,

who was

the daughter of Rav Ḥisda,

told me that a woman’s sensation during her first act of intercourse is

like the prick of a bloodletting instrument,

like the sensation of a puncture made by the instrument of a professional bloodletter. This is not pain for which payment is due.

Rav Pappa said: My wife,

who was

the daughter of Abba Sura’a, said: It is like bread scraping the palate,

like hard bread scratching the palate.

We learned in the Mishna:

The rapist pays immediately

the fine,

while the seducer pays when he divorces her:

The Gemara is astonished by the wording of the Mishna, “the seducer

when he divorces her”:

Is

she already his wife,

such that she must leave him?

Abaye said: Say

that the Mishna should read as follows: The seducer pays the fine

when he does not marry her,

when she or her father refuses, or when the seducer himself refuses.

It was taught likewise

in accordance with Abaye’s interpretation:

For it was taught:

a.

Although they said: The seducer pays

the fine

when he does not marry her,

nevertheless,

the humiliation

and

the blemish

he

pays immediately,

whether he marries her or does not marry her.

b.

Both the rapist and the seducer, whether she or her father, can prevent

him from marrying her.

The Gemara raises a difficulty against the beraita:

Granted, in the case of a seduced woman

both she and her father can prevent the marriage—

because

it is written

in the passage concerning a seduced woman:

“If her father utterly refuses

to give her to him,” indicating that the father can prevent it.

And

I know only that her father

can prevent it;

she herself—

from where

do we know that she can prevent it?

The verse states: “If he utterly refuses,”

and the repetition of the word “refuses” is an amplification teaching that refusal applies

in any event,

meaning, any refusal relevant to the matter, including refusal by the daughter.

But in the case of rape,

where you likewise say that both she and her father can prevent the marriage, there is a difficulty:

Granted, she

[the daughter] can prevent it, because

it is written: “And he shall take her as his wife,”

which implies that she makes herself his wife

willingly

and not against her will.

But her father,

the father of the raped woman,

from where

do we know that he can prevent it?

Abaye said: So that the sinner

—the one who raped her—

will not benefit,

for before he raped her, he could not marry the daughter without her father’s consent.

Rava said:

The father’s power to prevent the marriage in the case of rape is derived from the case of seduction by means of a

kal va-chomer:

And if, in the case of a seducer,

the less severe sinner,

who

violated only the wishes of her father,

and not the wishes of the woman, since he had intercourse with her consent, nevertheless

both she and her father can prevent

him from marrying her,

then in the case of rape,

where he is the more severe sinner,

who

violated the wishes of her father and

also

her own wishes, all the more so

she and her father can prevent him from marrying her.

The Gemara explains:

Rava did not state his explanation in accordance with Abaye,

who explained the reason for the father’s power to prevent the marriage of the raped woman as being so that the sinner would not benefit, because Rava holds:

Since he pays

the sinner

a fine, he is not benefiting from his sin.

Abaye did not state his explanation in accordance with Rava,

who explained the reason for the father’s power to prevent the marriage of the raped woman by means of a kal va-chomer from the seduced woman, because according to Abaye one can refute the kal va-chomer:

In the case of a seducer, he himself

the offender

can prevent the marriage,

since he is not obligated to marry her; therefore

her father can also prevent the marriage.

But

in the case of rape, he himself

cannot prevent the marriage;

her father too

could be said to

be unable to prevent it,

and it is only because of the principle that “the sinner should not benefit” that he can prevent it.

It was taught in another beraita: Although they said that a rapist pays immediately

the fine, it would seemingly follow that the fine is not in place of the ketuba, since he pays the fine immediately to her father; and if the fine were in place of the ketuba, he should not pay the fine to her father, but rather to the woman, since the ketuba belongs to her.

and it is only because of the principle that the sinner should not profit that he can prevent the marriage.

This is not so: The fine is in place of the ketuba, and

when he divorces her

the woman he raped, she has no claim against him,

no claim whatsoever for a ketuba.

the woman he raped,

Before the Gemara concludes its quotation of the beraita, it raises a difficulty against it:

“When he divorces her”?!

Can he divorce her, when the Torah said: “He may not send her away all his days”?!

Say

that the beraita should be explained as follows:

When she leaves,

meaning, when she causes the departure by demanding a bill of divorce from him,

she has no claim against him,

and therefore the tanna used the expression “when he divorces her,” because the bill of divorce depends on his decision, and he gives it only willingly.

And likewise, if he

dies

after marrying her, the money of his fine has gone out in place of her ketuba,

meaning that she has already received her ketuba through the money of his fine.

the rapist after marrying her,

Rabbi Yosei, son of Rabbi Yehuda, says: She is entitled to a ketuba of one hundred dinars

like the ketuba of a woman who has engaged in intercourse.

With regard to what do they disagree what is the basis of the disagreement between the Sages and Rabbi Yosei as to whether she is entitled to a ketuba?

The Rabbis hold:

What is the reason that the Sages enacted a ketuba

for other women?

Rather, it was

so that she would not be of little importance in his eyes, such that he could easily divorce her.

is the reason the Sages enacted the marriage settlement

But

she

cannot be divorced,

even if he wishes to do so, since he is forbidden to send her away; therefore she has no ketuba.

after all,

he cannot divorce her

And Rabbi Yosei, son of Rabbi Yehuda, holds:

The reason for the enactment of a ketuba that applies to all women applies here as well. Although he is forbidden to divorce her without her consent, nevertheless this the rapist

too can cause her distress until she says, “I do not want you,”

and he divorces her.

[He can distress her until she says: “I do not want you,” and he divorces her.]

In order to prevent him from doing so, a ketuba should be enacted for her.

can

cause her distress until she says, “I do not want you”,

that is, he can distress her until she says, “I do not want you,” and he then divorces her. Therefore, a marriage settlement should be enacted for her so that he will not do so.

We learned in the Mishna:

“The rapist drinks from his own vessel,”

whereas in the case of the seducer, if he wishes to divorce her, he divorces her.

He said:

Rava of Parzeqayya

challenged Rav Ashi: Since they derive from one another,

the rapist and the seducer are learned one from the other with regard to the amount of the fine—that it should be fifty—and the nature of the fine—that it should be in shekels.