The definition of rape
is a big issue in feminism. Nicholas Krisfof recently pondered the
issue, when he raised the question of whether or not a forced vaginal
ultrasound counts as rape - after all, there is pentration. While
different states have differet definitions of rape (because clearly
something as petty as sexual assault does not merit federal
regulation), all definitions hinge on one factor: Lack of consent.
Unfortunately, this lack of consent is often difficult to prove, for
different, yet complementary, reasons: 1. Rape most often happens
between people who are alredy acquainted, meaning that it turns into a
"He said, she said" squabble, with the man claiming that the sex was
consensual. It is often impossible to prove to a jury that the victims'
version of events is correct. 2. Often, the lack of consent is not
expressed through physically fighting back against the rapist, which
the victim may feel is dangerous or futile. This makes the rape harder
to prosecute: New York State, for example, defines rape in the first
degree as "when a male engages in sexual intercourse with a female by
forcible compulsion". Leaving aside the way this law ignores male rape
victims, there is also the issue of "forcible compulsion" - defined as
"use of force" or "a threat, express or implied, which places a person
in fear of immediate death or physical injury to himself or herself [or
another person] or in fear that he or she [or another person] will
immediately be kidnapped.".It is hard to prove threat or implied threat,
without some sort of physical altercation. 3. Not only does this make
the rape difficult to prosecute, but it makes it difficult to convinct
as well. In New York State for example, just in case the jury thought
that lack of consent is enough to warrant a conviction, the jury is
given instructions explaining that the People must prove, beyond a
reasonable doubt, that the defendant had sex with the alleged victim
"without consent by the use of forcible compulsion.", thus adding to the
People's burden of proof, and, with the last five words, implying that
there is a difference between "without consent" and "without consent
by use of forcible compulsion". 4. Then, there is the fact that rape
with passive resistance goes against the pop culture image of rape: A
physical struggle between man and woman that usually occurs on a dark
street corner, the kinds of scenes we're used to seeing all the time in
Law and Order: SVU.
Recently, much feminist discourse, in its search for a wider definition of rape, has started exploring the relationship between sex and power, arguing that even if consent is given by the woman, any relationship with a gossly uneven imbalance of power, constitutes a sort of rape. Under these relationships they include: slave-master relationships, prostitute-costumer relationships, and sometimes even husband-wife relationships in socieites in which marriage was a woman's only option for avoding starvation. Then there is the counter-argument, that defining such relationships as rape deprives women of agency, turning them into passive objects. As Purim approached, I started wondering; Where does Esther's relationship fit into this paradigm?
Leaving aside the question of whether or not she was taken to the palace by force - a question raised by the rabbinic sources - it certainly seems that once she got there, saying no was not an option: The second chapter of Esther, after going into great depth about the beeautifying rituals of virgins in the harem, waiting to be tested, then goes on, in verse 14, to describe the test itself: "In the evening she went, and on the morrow she returned into the second house of the women, to the custody of Shaashgaz, the king's chamberlain, who kept the concubines; she came in unto the king no more, except the king delighted in her, and she were called by name." Unfortunately, the Biblical author decided to gloss over the juiciest details, but presumably, they didn't spend the night discussing poetry. Not only were the power dynamics of this relationship extremely uneven, to say the least, but considering that one was in a guarded palace with a king who showed no compunctions about chopping off the head of women who didn't give him a proper striptease (assuming the midrash that Vashti was executed for not appearing naked at her husband's party is correct), the threat of force was extremely imminent. Now, arguably, if Esther chose to go to the palace knowing she'd have to sleep with Mr. Crown, there was consent - but how valid is that consent when you have an orphan girl from a minority group facing the king of an empire? Given the Esther was under Mordechai's authority and follows his instructions virtually throughout the story, we must face the fact that even if Mordechai chose to send her to the palace, her choice in the matter may have been limited.
The Talmud grapples with some of these issues: It wonders how Esther, possibly married to Mordechai, could have slept with Achashveirosh, in what was certainly not a halachikly sancitoned union. It's reply is very simple: 'Esther lay still as the ground (while Achashveirosh slept with her)." With these words, the Talmud succinctly and graphically shows that Esther was raped, and therefore not responsible for the interourse, so she can not be held responsible for its lack of halachik propriety. By using the example of Esther lying stiffly however, the Talmud is also showing that it considers sex with passive resistance by the victim, to constitute rape. Esther did not fight back. She merely lay stil - yet that was enough to demonstrate her lack of consent, absolving her of all responsibility for the sex act. Since the Megillah goes on to say the Achashveirosh, after spending the night with Esther, loved her more than all the other women and decided to marry her, it kind of makes you wonder if Axhashveirosh had a necro fetish - or whether the Talmud did not mean its words to be taken literally, but was merely using an image of force to illustrate that no matter what really went on in the royal bedroom, the royal power imbalance means that effectively, the sex was forced.
This allowance for different types of definitions of rape can also be seen in the Pentateuch*, if one looks at Exodus 22:15-16 and Deutoronomy 22:28-29. In the first case, a man seduces a virgin, and must either pay 50 shekels, or marry her. The purpose of both penalties is the same: To provide for the woman's financial upkeep, since now that she is no longer a virgin, she will not be able to find a good marriage, the primary way for a woman to ensure her financial security in ancient society. In Deutoronomy 22, we are told that a man who "catches a woman and lies with her", must pay her father 50 shekels, and marry her, without the possibility of divorce. Here, we have a combination of the punishment options from Exodus. The marriage without divroce means that the rapist will be obligated to provide for the woman financially for the rest of her life, since he deprived her of the opportunity to find a good, financially secure marriage, when he chose to rape her. The lifelong financial obligation also provides a major deterrent for would-be rapists. It is unclear exactly what it means to catch a woman and lie with her - presumably, some sort of physical force is implied, making this definition of rape more similar to that of New York State. The similarities in punishments between Deutoronomy and Exodus however, implies a sort of equivalency between the two cases; The difference is one of degree (the rape involving physical threat in Exodus combines both punsihments) and not of kind. This mimics current New York law, which also has different degrees of sexual assuault. By placing the difference as merely one of degree however, the Bible is implying that the "seduction" in Exodus, whatever that might entail, is a type of assault - especially in a society with a gross imbalance of power between men and women.
A third definition of rape is introduced in the case of the "betrothed virgin" in Deutoronomy 22:25-26. In that case, if the woman was somewhere where people could hear her, and screamed, she is off the hook. If she did not scream, she is held responsible. No physical resistance - other than crying for help - is required. If the betrothed virgin is in a secluded feild, where there was no one to hear her cries, then she is considered to have been raped. In other words: If a woman has sex with a man in an isolated place, where no one would hear her cry for help, and says the sex was not consensual, she is assumed to have been raped. There is no obligation for physical resistance - or even to prove that one did scream - in order to go forward with the rape charge. Thus, according to this Biblical logic, if a woman today is in a house alone with a man, with no land-line, her cellphone is out of batteries, and a man has sex with her against her will, it was rape - whether or not there was "use of force" or "a threat, express or implied, which places a person in fear of immediate death or physical injury to himself or herself [or another person] or in fear that he or she [or another person] will immediately be kidnapped.", as the New York law mandates.
Of course, in reality, the case of rape in Jewish law is much more complicated - I am merely trying to show, that the Biblical texts have varied and complex definitions of rape, some of which might radar a "moderately progressive" on the feminist rating scale. Given the different ancient definitions of rape, I wonder how Esther would have defined her relationship with the king. Something tells me she would not have used the word "rape". And even I, the renouned cynic, can not deny the possibility of romance developing in the royal chambers - to do so would be to deprive both Esther and Achashveirosh of agency. Then I begin to wonder: Is the Talmudic dictum that Esther lay still as the ground no more than an attempt to deprive Esther of agency, to reduce a woman to passive object in an attempt to defend her honor and preserve her purity, as so much of make society has done throughout the centuries? After all, the megillah is one of the few stories where a female protagonist takes on a major role and saves the day - though of course, it is God, the megillah's invisible character, who is the real star, as the rabbis constantly remind us.
Then I go back to pondering whether or not Achashveirosh had a necro fetish, and get a hunkering for humentashen.
Recently, much feminist discourse, in its search for a wider definition of rape, has started exploring the relationship between sex and power, arguing that even if consent is given by the woman, any relationship with a gossly uneven imbalance of power, constitutes a sort of rape. Under these relationships they include: slave-master relationships, prostitute-costumer relationships, and sometimes even husband-wife relationships in socieites in which marriage was a woman's only option for avoding starvation. Then there is the counter-argument, that defining such relationships as rape deprives women of agency, turning them into passive objects. As Purim approached, I started wondering; Where does Esther's relationship fit into this paradigm?
Leaving aside the question of whether or not she was taken to the palace by force - a question raised by the rabbinic sources - it certainly seems that once she got there, saying no was not an option: The second chapter of Esther, after going into great depth about the beeautifying rituals of virgins in the harem, waiting to be tested, then goes on, in verse 14, to describe the test itself: "In the evening she went, and on the morrow she returned into the second house of the women, to the custody of Shaashgaz, the king's chamberlain, who kept the concubines; she came in unto the king no more, except the king delighted in her, and she were called by name." Unfortunately, the Biblical author decided to gloss over the juiciest details, but presumably, they didn't spend the night discussing poetry. Not only were the power dynamics of this relationship extremely uneven, to say the least, but considering that one was in a guarded palace with a king who showed no compunctions about chopping off the head of women who didn't give him a proper striptease (assuming the midrash that Vashti was executed for not appearing naked at her husband's party is correct), the threat of force was extremely imminent. Now, arguably, if Esther chose to go to the palace knowing she'd have to sleep with Mr. Crown, there was consent - but how valid is that consent when you have an orphan girl from a minority group facing the king of an empire? Given the Esther was under Mordechai's authority and follows his instructions virtually throughout the story, we must face the fact that even if Mordechai chose to send her to the palace, her choice in the matter may have been limited.
The Talmud grapples with some of these issues: It wonders how Esther, possibly married to Mordechai, could have slept with Achashveirosh, in what was certainly not a halachikly sancitoned union. It's reply is very simple: 'Esther lay still as the ground (while Achashveirosh slept with her)." With these words, the Talmud succinctly and graphically shows that Esther was raped, and therefore not responsible for the interourse, so she can not be held responsible for its lack of halachik propriety. By using the example of Esther lying stiffly however, the Talmud is also showing that it considers sex with passive resistance by the victim, to constitute rape. Esther did not fight back. She merely lay stil - yet that was enough to demonstrate her lack of consent, absolving her of all responsibility for the sex act. Since the Megillah goes on to say the Achashveirosh, after spending the night with Esther, loved her more than all the other women and decided to marry her, it kind of makes you wonder if Axhashveirosh had a necro fetish - or whether the Talmud did not mean its words to be taken literally, but was merely using an image of force to illustrate that no matter what really went on in the royal bedroom, the royal power imbalance means that effectively, the sex was forced.
This allowance for different types of definitions of rape can also be seen in the Pentateuch*, if one looks at Exodus 22:15-16 and Deutoronomy 22:28-29. In the first case, a man seduces a virgin, and must either pay 50 shekels, or marry her. The purpose of both penalties is the same: To provide for the woman's financial upkeep, since now that she is no longer a virgin, she will not be able to find a good marriage, the primary way for a woman to ensure her financial security in ancient society. In Deutoronomy 22, we are told that a man who "catches a woman and lies with her", must pay her father 50 shekels, and marry her, without the possibility of divorce. Here, we have a combination of the punishment options from Exodus. The marriage without divroce means that the rapist will be obligated to provide for the woman financially for the rest of her life, since he deprived her of the opportunity to find a good, financially secure marriage, when he chose to rape her. The lifelong financial obligation also provides a major deterrent for would-be rapists. It is unclear exactly what it means to catch a woman and lie with her - presumably, some sort of physical force is implied, making this definition of rape more similar to that of New York State. The similarities in punishments between Deutoronomy and Exodus however, implies a sort of equivalency between the two cases; The difference is one of degree (the rape involving physical threat in Exodus combines both punsihments) and not of kind. This mimics current New York law, which also has different degrees of sexual assuault. By placing the difference as merely one of degree however, the Bible is implying that the "seduction" in Exodus, whatever that might entail, is a type of assault - especially in a society with a gross imbalance of power between men and women.
A third definition of rape is introduced in the case of the "betrothed virgin" in Deutoronomy 22:25-26. In that case, if the woman was somewhere where people could hear her, and screamed, she is off the hook. If she did not scream, she is held responsible. No physical resistance - other than crying for help - is required. If the betrothed virgin is in a secluded feild, where there was no one to hear her cries, then she is considered to have been raped. In other words: If a woman has sex with a man in an isolated place, where no one would hear her cry for help, and says the sex was not consensual, she is assumed to have been raped. There is no obligation for physical resistance - or even to prove that one did scream - in order to go forward with the rape charge. Thus, according to this Biblical logic, if a woman today is in a house alone with a man, with no land-line, her cellphone is out of batteries, and a man has sex with her against her will, it was rape - whether or not there was "use of force" or "a threat, express or implied, which places a person in fear of immediate death or physical injury to himself or herself [or another person] or in fear that he or she [or another person] will immediately be kidnapped.", as the New York law mandates.
Of course, in reality, the case of rape in Jewish law is much more complicated - I am merely trying to show, that the Biblical texts have varied and complex definitions of rape, some of which might radar a "moderately progressive" on the feminist rating scale. Given the different ancient definitions of rape, I wonder how Esther would have defined her relationship with the king. Something tells me she would not have used the word "rape". And even I, the renouned cynic, can not deny the possibility of romance developing in the royal chambers - to do so would be to deprive both Esther and Achashveirosh of agency. Then I begin to wonder: Is the Talmudic dictum that Esther lay still as the ground no more than an attempt to deprive Esther of agency, to reduce a woman to passive object in an attempt to defend her honor and preserve her purity, as so much of make society has done throughout the centuries? After all, the megillah is one of the few stories where a female protagonist takes on a major role and saves the day - though of course, it is God, the megillah's invisible character, who is the real star, as the rabbis constantly remind us.
Then I go back to pondering whether or not Achashveirosh had a necro fetish, and get a hunkering for humentashen.
