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Lethal self-defense against a rapist and the challenge of proportionality: Jewish law perspective.

Abstract

Is a victim of sexual assault permitted, similar to a victim of a life-threatening attack, to defend herself by using deadly force against the attacker? While the practical significance of this question is quite self-evident, of no lesser importance are its theoretical foundations, mainly with regard to the conceptual question of proportionality. This Article will analyze the issue from a Jewish law perspective, alongside an intensive comparative legal discussion. Jewish law appears to present an approach far more complex than what may be gleaned at first blush, weaving together two parallel and complementary realms: on the level of theoretical law, Jewish law maintains complete proportionality between the severity of the assault and the measure of self-defense employed to repel it, and as a result limits the permissibility of killing a rapist in self-defense. However, the unique design of the law gives rise to an additional level of law in practice, in which deadly force against a potential rapist is broadly sanctioned in nearly all cases, and prohibition of such self-defense is rare to non-existent. In practice, the principle of proportionality is interpreted leniently, in favor of the victim. This duality is of great significance, allowing the law to mold a complex approach capable of embodying numerous contradictory considerations. Such duality may lend a new perspective to the current discourse in legal literature on this issue, fostering conceptual diversity in the study of self-defense.

INTRODUCTION

Criminal law widely recognizes and justifies the use of force by a victim against an attacker, at times even in lethal measure, when such action is taken in self-defense. (1) When the life of a potential victim can be spared only by employment of deadly force against the assailant, it is permissible (2) for the victim or, alternatively, a third-party passerby coming to her assistance, (3) to protect the victim's life even at the expense of the attacker's. This right to self-defense has been recognized since antiquity, (4) and has been accepted in Jewish law from time immemorial? In Jewish sources going back as far as the mishnaic period, (6) the sages related: "The following must be saved even at the expense of their lives: he who pursues after his neighbor to slay him...." (7) The following Article will examine whether a potential rape victim, or alternatively a third-party passerby attempting to rescue her, may employ deadly force against the would-be rapist, should his death be the only effective means of preventing the rape. (8) Is a potential victim of sexual assault permitted, similar to a victim of a potentially life threatening attack, to use deadly force against her attacker, or rather is the former limited exclusively to non-life threatening forms of self-defense? (9)

While the practical significance of this question is quite self-evident, of no lesser importance are its theoretical foundations: as I will elaborate upon further, the use of lethal force against a potential rapist presents an instructive test case, shedding light on broader conceptual questions relating to the doctrine of self-defense in general, and concerning the requirement of proportionate force in particular.

The following Article will focus on the Jewish law approach to this issue, alongside a comparative legal perspective. (10) I will argue that the Jewish law approach differs sharply from the currently accepted approaches in most major modern legal systems. Furthermore, Jewish law presents an approach far more complex than what may be gleaned at first blush, weaving together two parallel and complementary realms: theoretical law (halakha) and law in practice (halakha le-ma'aseh). (11) On the level of theoretical law, Jewish law distinguishes between different categories of potential rape victims by their marital status, allowing the use of deadly force in self-defense by some but not others. This position stems from a general policy of maintaining complete proportionality between the severity of the assault and the measure of self-defense employed to repel it. However, the unique design of the law gives rise to an additional level of law in practice, in which deadly force against a potential rapist is broadly sanctioned in nearly all cases, and prohibition of such self-defense is rare to non-existent. In practice, the principle of proportionality is interpreted leniently, in favor of the victim. This duality is of great significance, allowing the law to mold a complex approach capable of embodying numerous contradictory considerations. Such duality may lend a new perspective to the current discourse being held in legal literature on this issue, fostering conceptual diversity in the study of self-defense.

Furthermore, the very distinction within Jewish law between theoretical law (halakha) and law in practice (halakha le-ma'aseh), as exemplified in this case, can itself enrich and inform the current legal discourse, particularly in the context of American legal realism, pertaining to the distinction between written law and the law in practice. (12)

The argument presented in the following Article is comprised of several stages. Following the introduction, Part I will be dedicated to a discussion of the unique characteristics of rape crimes in the context of the requirement of proportionality. Part II will review the subject of deadly force against a potential rapist in several major modern legal systems. Part III will present the apparent approach of Jewish law, as perceived at first blush, within the realm of halakha. In contrast, Part IV will discuss three factors underlying the differing position of Jewish law as applied in practice (halakha le-ma'aseh). The Article concludes with discussion of various aspects and meanings of this duality.

I. The Proportionality Requirement: Rape as a Test Case

There are several accepted conditions for the legitimate use of self-defense. (13) One of these conditions, at the focus of this Article, is the requirement of proportionality. In the following pages I will discuss several theoretical aspects of this requirement.

A. The Degree of Proportionality

Is a victim acting in self-defense necessarily required to maintain proportionality between his own interests (jeopardized by the assault), and the interests of the attacker (jeopardized by the act of self-defense)? This is no simple question, particularly in complex "gray" cases to be discussed further on, and much literature has indeed been written on the subject. (14) It stands to reason, for instance, that killing an attacker would be a reasonable act of self-defense in the context of attempted murder, whereas it would seem wholly disproportionate and unreasonable in the context of petty theft. (15) However, what would be the appropriate norm in more complicated cases? For instance, do kidnapping or unlawful imprisonment (under non-life-threatening circumstances) justify killing the attacker in self-defense? May public humiliation, such as public lashing, be prevented through any effective measure of self-defense, including the use of lethal force? (16)

These questions allow for a spectrum of answers. One possibility is to fully adopt the principle of proportionality, thus conditioning any act of self-defense upon the maintenance of precise proportion between the attack and the measure of force used to offset it. (17) For instance, if the attacker is attempting to injure the victim, (18) the victim may fend off the attack only by use of self-defense in a measure not exceeding that employed by the attacker. (19)

Alternatively, self-defense may be conditioned on a firm, albeit not necessarily absolute, standard of proportionality, whereby the victim would be permitted to act in self-defense even in a measure slightly more severe than that of attack itself, nonetheless upholding a high level of proportionality. Should the attacker attempt to cause severe bodily harm to the victim, the victim may prevent such an attack even by killing the attacker. However, should the attacker attempt to cause mild bodily harm to the victim, killing the attacker would be disproportionate and therefore unacceptable.

Going further on the spectrum, yet another approach may suffice in a flexible standard of proportionality, within which even certain severe crimes against property may be prevented by killing the perpetrator.

Diverging from all of the above approaches, one may even go so far as to suggest rejection of the proportionality requirement in self-defense altogether, whereby the prevention of any attack whatsoever would sufficiently justify all effective measures of self-defense, including taking the life of the attacker, (20)

Deciding between the different approaches to proportionality is intertwined with the question of the rationale underlying the right of self-defense. (21) For example, basing self-defense on the principle of personal autonomy would suggest a relatively lenient standard of proportionality. (22) According to this line of thinking, the right of self-defense is a function of man's inalienable rights to life, bodily integrity, and property, (23) being a necessary condition for the effective actualization of such fundamental rights. (24) Therefore, recognition of man's rights to life, bodily integrity, and private property necessarily imply recognition of his right to defend his personal space--both physical and possessory--from attack. This proposition, based upon the aforementioned unconditional rights, would lead to the conclusion that the right of self-defense includes any and all measures necessary to protect oneself, and maybe even one's property, from external threat.

In contrast, an alternate rationale, which would seem to lead to a more stringent standard of proportionality, is one based on the attacker's responsibility. (25) According to this rationale, the victim may cause harm to the attacker, because when the law must choose between the two, the fact that the attacker is a criminal and the victim is an innocent person tips the scales in favor of the victim. While the attacker's criminal status does not deprive him of his right to life and bodily integrity, (26) it does reasonably reduce these rights, a reduction brought to bear in a situation of self-defense. This rationale, it would seem, leads to a somewhat firmer demand for proportionality: since the criminal status of the attacker is the element justifying the harm caused to him, there must be a high level of congruence (27) between the type of crime being committed and the measure of self-defense employed by the victim.

Should we go on to add to the rationales justifying self-defense, the principle of maintaining public order, (28) this would imply acceptance of the requirement of proportionality, not necessarily in its most precise form, but rather in a more flexible view. According to this rationale, self-defense is justifiable, among other reasons, because in the victim's defensive action against the attacker he is essentially acting as the "long arm" of the law, reestablishing the public order that was disturbed by the attacker. If the victim is indeed perceived as effectively "filling the shoes" that should have ideally been filled by the police, the victim clearly must be subject to the standards of proportionate response, as applied to law enforcement agencies when using force against criminals. (29) While law enforcement personnel are permitted to use force against suspects, even in measure exceeding the force being employed by the suspects themselves, they may not do so in a measure drastically disproportionate to the crime at hand.

Finally, a rationalization of self-defense based on choosing the lesser evil would seem to lead to the conditioning of self-defense upon maintenance of precise proportion between the severity of the attack and the defensive force applied by the victim. (30) According to this rationale, the damage inflicted upon the attacker is in its essence negative, (31) and thus may only be permitted if the expected harm to the victim is even worse. Therefore, self-defense is permissible only if the harm to the assailant is of a lesser severity than the expected harm to the victim, and even when they are of equal severity the use of such force against the attacker would be considered the lesser evil; if one of them--the assailant or the victim-must lose his life, it would be the lesser evil for the former to do so rather than the latter. (32) However, if the damage caused to the attacker is of a greater severity than the expected damage to the victim as a result of the crime, such as in the case of an attacker attempting to amputate a victim's leg, (33) should the victim respond by killing the attacker--such an act of self-defense may not be the lesser evil. (34) In other words, according to this rationale, the act of self-defense may be considered the lesser evil when the measures employed by the victim do not worsen the outcome the attacker originally intended to cause.

There are several relevant test cases that may help sharpen the discourse surrounding the proportionality requirement. For example, what are the outer limits of permissible self-defense against property crimes (e.g. killing a carjacker or an arsonist, assuming that there is no direct threat to the human life)? (35) Such cases were discussed intensively in Jewish law sources, as well as in modern legal literature. In a nutshell, Jewish law demonstrates a strong commitment to proportionality between the crime and the defensive force used to prevent it, allowing the application of lethal force only in cases where human life is at stake. (36) Modern legal systems are far less decisive on this point. (37)

From this perspective, however, the complexity of applying lethal force against a rapist makes it a much more challenging test case for the demand of proportionality.

B. Application to Cases of Rape

Killing a rapist in self-defense invites a delicate distinction between full proportionality and incomplete proportionality. (38) As will be clarified further, the characteristics of the crime of rape, distinguishing it from other forms of assault, (39) necessitate an examination of the unique and complex aspects of the principle of proportionality in self-defense.

The underlying assumption of our discussion (40) is that rape, heinous as it may be, is of lesser severity than murder. (41) This is reflected in the scale of criminal penalties, (42) which generally assigns punishments of greater severity to homicide than to crimes of sexual assault. (43) This was sharply expressed in a 1977 case, in which a federal court overturned a death penalty imposed by a Georgia state court on a convicted rapist in aggravating circumstances, ruling that: "a sentence of death is grossly disproportionate and excessive punishment for the crime of rape, and is therefore forbidden by the Eighth Amendment as cruel and unusual punishment." (44) This assumption is further backed by polls taken regarding the public assessment of the severity of different crimes. (45)

If so, can a potential rape victim be permitted to prevent her rape, even at the expense of the attacker's life, or rather should the victim be limited to actions that do not exceed the severity of the rape itself, such as causing bodily harm to the rapist? (46) Needless to say, the victim has the right to use violence in self-defense, even causing severe bodily harm to the rapist--a response proportionate to the crime itself. The real question in this case has to do with killing the rapist, which would seem, at first blush, to be more severe than the harm intended by the rapist. An approach requiring absolute proportionality would tend to prohibit the use of deadly force against a rapist. On the other hand, an approach willing to moderate, even minimally, the standard of proportionality, may argue that while application of deadly force against a thief should be forbidden, use of such force should nonetheless be permitted against an aggressor attempting to cause severe bodily harm, rape included.

C. Possible Approaches: For and Against

Both possible approaches, either permitting or prohibiting the killing of a rapist in self-defense, have relative advantages, while at the same time raising considerable difficulties.

An approach conditioning self-defense on precise proportion between the assault and the defensive action aptly reflects its rationale with great clarity, providing an accurate measuring stick for its practical application. According to this approach, the life of the attacker is protected by the law just as anybody else's. (47) Taking the life of the attacker is permissible only if the alternative (in this case, the death of the victim) is even worse. However any other alternative not causing loss of life is a lesser evil in comparison to any loss of life (including the attacker's), and therefore the only justification for use of deadly force in self-defense would be to prevent the loss of another life--not including the prevention of rape. This standard is simple to operate, as it provides a clear criterion defining when killing the attacker would be permissible, limiting it to life-saving circumstances alone.

On the other hand, this approach may lead to problematic, not to say intolerable, outcomes. According to this line of thinking, if the only way for a victim to escape her rape would be to kill the rapist, she will be legally expected to passively submit to the agony of rape, for the sake of sparing the rapist's life.

An approach allowing for a somewhat tempered standard of proportionality also encounters significant difficulties. While such an approach does give reasonable protection to the potential rape victim, encouraging her to use all available measures of self-defense, including deadly force, adopting such a position creates several difficulties, both theoretical and practical.

Theoretically, permitting the victim to kill her rapist in self-defense would seem to significantly weaken the standard of proportionality, in ways not entirely compatible with several of the rationales underlying the right of self-defense, (48) Indeed, the conceptual acrobatics performed by theoreticians in their attempts to justify the killing of a rapist within the constraints of proportionality reflect the core complexity of the problem: Some argue that the cumulative damage anticipated by the rape victim (49)--including pain and physical harm, infectious STDs, (50) unwanted pregnancy,51 and emotional trauma (52)--join together a critical mass of damages sufficient to justify killing the rapist. (53) However, others argue that these injuries, severe as they may be, are not equivalent to loss of life, and therefore cannot justify killing the rapist. (54) Instead, they prefer to base the justification for killing the rapist upon another characteristic of rape, beyond the aforementioned physical and emotional damages, and of even greater severity: the dehumanization of the rape victim (55) and the obliteration of her personality, by her reduction to a mere sexual object. (56) Yet even this line of argument does not fully maintain proportionality between the assault and the act of self-defense; rape in all its incomparable horror is still not equivalent to the severity of loss of life. Finally, there are some who attempt to allow for killing of a rapist in self-defense, based on the potential threat to the victim's life accompanying the rape itself. (57) While this argument maintains congruence between the danger to the victim's life and the act of self-defense employed to prevent it, others counter that such an argument actually implies that prevention of rape itself (independent of any accompanying danger to the victim's life) does not justify killing the rapist. (58)

The forgone conclusion, therefore, is that it is difficult to claim that rape, in all its severity, is equal to murder, (59) and hence allowing a victim to kill her rapist in self-defense necessitates a significantly reduced standard of proportionality, with all of the accompanying theoretical ramifications. (60)

On the practical level, this approach may encounter even more serious difficulties, due to the problem of placing the boundary line. Permitting the killing of rapists in self-defense blurs the boundaries between permissible and impermissible behavior, creating a troubling lack of clarity. (61) For example, may a potential victim of sodomy kill the offender in order to prevent the attack, similar to a rape victim? (62) Does the same go for a victim of sexual molestation? It is safe to assume a consensus that sexual harassment, for instance, does not justify the use of deadly force against the harasser. If so, where do we lay down the boundary between rape and sexual harassment? Once the standard of proportionality has been reduced, it is hard to rationally and explicitly determine where to draw the line. (63) Indeed, as will be shown further, it appears that the American legal system has struggled with this question quite a bit. (64) Of course, this problem can be resolved technically by way of an arbitrary determination, e.g., deadly self-defense may be used against rape but not sodomy, or against rape and sodomy but not against molestation and sexual harassment. However, arbitrary rules would reasonably raise questions as to their justification. Fletcher articulates this discomfort fittingly:
   Everyone seems to agree that a defender should be able to inflict
   more harm than he or she avoids by acting in self-defense, e.g., a
   woman threatened with rape should be able to kill to protect her
   sexual and bodily autonomy. The scales may be tipped in favor of
   the innocent victim and against the wrongful aggressor.... Yet no
   one knows how much more harm the defender may inflict on the
   aggressor, how much the scales may be tipped in favor of the person
   attacked, before reaching the point of perceived injustice. All we
   know is that at a certain point, we sense that the scales are so
   far out of kilter that criteria of justice displace our commitment
   to the right and the sanctity of individual autonomy. (65)


II. Lethal Self-Defense Against Rapists in Contemporary Legal Systems

There seems to be a consensus among contemporary criminal law jurists that while the crime of rape does not justify the death penalty, (66) a rape victim may nonetheless protect herself even at the expense of her attacker's life, and that such self-defense does not exceed the limits of proportionality. (67) Furthermore, killing a rapist in self-defense is perceived as legal justification, and not merely as an excuse. (68)

As for legal systems rejecting the requirement of proportionality in self-defense altogether, such as Soviet law and German law (at certain periods in history), (69) the permissibility of deadly self-defense against a rapist is obvious and goes without saying. If a victim may stop an attacker by any and all means--even in property crimes that are less severe--all the more so in cases of rape. (70) The real challenge, therefore, arises when attempting to rationalize such a position within legal systems upholding the requirement of proportionality in self-defense.

Common law systems generally accept the requirement of proportionality, (71) allowing only minor flexibility with regard to the degree of power applied against the attacker. (72) According to these systems, a victim is usually not permitted to use deadly self-defense in cases of property crimes, (73) and may do so only if the attacker is attempting to cause serious bodily harm in the process.

Against this backdrop, there is an ongoing debate within American legal literature on the subject of killing a rapist in self-defense. (74) Some states have enacted specific legislation allowing for the use of deadly self-defense against rapists, (75) with some court rulings expanding this license even further, (76) despite the fact that it is not clear that courts recognize rape as equivalent to serious bodily harm (a necessary condition for use of deadly self-defense in numerous criminal codes). (77) This doctrine is deeply rooted in the history of the common law. (78)

As for the gender of the rape victim, while many court rulings have recognized the right to use deadly force in self-defense by both female and male victims, (79) there are those who debate whether or not a male rape victim may in fact use deadly force in self-defense. (80)

American court rulings are not entirely clear on the question of the punctum archimedis justifying the killing of a rapist in self-defense. (81) Is this because of the threat to the life of the rapist, or does the rape itself provide justification enough? (82) Either way, it must be emphasized that American law does permit use of deadly self-defense against a rapist--despite the seeming disproportion between the attack and the defensive action employed by the victim. This is part of a general policy of interpreting the requirement of proportionality somewhat leniently, so much so that killing an attacker may even be permitted in cases of severe property crimes, and all the more so in cases of severe sexual assault. (83)

This policy within American law, as expressed in court rulings, sharpens the aforementioned problem of setting down a clear boundary. There are two major dilemmas that arise from the variety of court rulings on this issue:

First, is the use of deadly self-defense permitted in cases of sexual assault of lesser severity than rape? (84) May a potential sodomy victim kill his attacker? (85) May a molester be killed in self-defense? (86)

Second, at what chronological point during the unfolding of the rape does- it become permissible to kill the rapist? (87) Is such self-defense permissible only during the actual rape itself, or rather in the earlier stages of the crime as well, for instance in response to sexual assault that may reasonably escalate to rape? (88)

In one case, the court accepted an argument by a mother who shot a man that hugged and caressed her minor daughter, with his hands under her clothing, claiming she feared that he intended to rape her daughter. (89) On the other hand, the court rejected a claim of self-defense made by a man who claimed that he was attacked by another man who grabbed his genitalia, and killed the attacker out of fear of being raped. (90) Allowing the use of lethal self-defense in earlier stages of the crime (both from a chronological perspective and in terms of the level of severity), or even in the very preliminary stages of sexual harassment, may create an unwanted increase in the use of deadly force against sexual harassers. On the other hand, delaying the possibility of such self-defense to the final stages of the rape may be too late and too cruel to the rape victim. (91)

I believe that these dilemmas aptly exemplify the inherent problems stemming from permissibility of deadly self-defense against a rapist. These dilemmas express the practical and theoretical difficulties encountered when loosening the standard of proportionality. On the one hand, it is difficult to accept the proposition that a rape victim should not be allowed to defend herself from rape in any way possible, even at the expense of the rapist's life. On the other hand, it is difficult to rationally and explicitly explain the boundaries beyond which a victim should not be permitted to take the life of the attacker in contexts of sex crimes. In my opinion, these difficulties may help to clarify the Jewish law position on this matter. As I will discuss throughout the remainder of this Article, the duality of the Jewish law position on the issue of killing a rapist in self-defense--through both the dimensions of halakha and halakha le-ma 'aseh--allows for a rethinking of the complexities described above, which modern legal systems continue to grapple with, each in their own way.

III. "In Pursuit of a Maiden"--The Theoretical Law (Halakha)

A. The Mishnaic Ruling

Killing a rapist in self-defense was discussed in Jewish law by the sages, dating back as far as the Mishnah: "The following must be saved even at the cost of their lives: He who pursues after his neighbour to slay him, [or] after a male [for pederasty, or] after a betrothed maiden [to dishonour her]." (92) Before discussing the legal conceptions reflected in this Mishnah, it is important to clarify some of the characteristics of the rape situation it discusses, in light of the differences between rape as described in ancient times and current understandings of the phenomenon. It seems that when the Mishnah mentions rape, it envisions a scenario of a man forcing himself violently on a victim, usually a woman (it nonetheless also addresses a same-sex rape scenario). The Mishnah also generally assumes that the passerby coming to the victim's aid is a man as well. Thus, we see here a clear division in which operators of physical power--assailant and rescuer--are men, whereas women are perceived as being passive, non-users of force. (93) Therefore, the Mishnah does not discuss a female rape victim defending herself, and hence the importance of addressing a (male) passerby who comes to her rescue. (94) Furthermore, when the sages discuss rape, they envision forcible intercourse through violent means. (95) In contrast, in light of current understandings of rape, we are much more aware that rape often takes place through non-violent means, (96) and that most rape cases occur between acquaintances (friends, partners, relatives), often in the familiar space of the raped victim (home, workplace). This differs from the sages' assumption of rape occurring somewhere other than the familiar environment of the victim. (97) However, in order to properly understand and examine the legal conception of the sages from within their own outlook and assumptions, I will make use of their characterizations of rape, even when they are not always congruent with contemporary ones.

Let us go on to analyze the legal conception presented by the Mishnah.

The Mishnah permits the killing of a rapist in self-defense, however limiting the warrant to do so, only to cases in which the rape victim is either a betrothed maiden or a man (being raped by another man). Are these indeed the only two cases in which killing a rapist in self-defense is permissible? According to the Tosefta, these two cases merely serve as examples representing a broader group: (98)
   Both betrothed maiden [who is pursued by a rapist] and each of the
   other cases of incest (99) should be saved by killing the pursuer,
   but a High Priest in pursuit of a widow, and an ordinary priest in
   pursuit of a divorcee or a haluzah, 100 may not be saved at the
   cost of their lives. (101)


Similarly, the Babylonian Talmud relates:
   Our Rabbis taught: He who pursues after his neighbour to slay him,
   he who pursues a male [for pederasty], or a betrothed maiden, a
   woman forbidden to him on pain of death at the hands of court, or
   one forbidden on pain of extinction--these are saved at the cost of
   their lives. But a High Priest in pursuit of a widow, and an
   ordinary priest in pursuit of a divorcee or a haluzah, may not be
   saved at the cost of their lives. (102)


These sources differentiate between two types of rape. Rape involving an additional element of forbidden sexual relations punishable by death--either by court or by heavenly decree ("extinction") (103)--justifies preventing the rape even at the expense of the rapist's life. On the other hand, rape not involving an additional element of such severely forbidden relations, even if such relations are proscribed by a prohibition of lesser severity ("Lav"--a transgression punishable by lashes), one may not prevent the rape at the expense of the rapist's life. (104) According to this structure, when a rape victim is an unmarried woman, a divorcee or a widow, deadly self-defense may not be used. Indeed, the consensus among scholars is that the sages limited this sanction to the few cases of rape involving unique aggravating characteristics (severely forbidden sexual relations), whereas in all other cases of rape it would be impermissible to kill a rapist in self-defense. (105)

This is not to say, of course, that the unmarried rape victim may not forcefully defend herself against her attacker. On the contrary, the context of the discussion in the Mishnah indicates that in the case of rape of an unmarried woman, she may be saved by injuring the rapist, short of causing his death.

B. The Justification

What is the conceptual justification for killing a rapist in the case of a betrothed maiden, and why does it not hold equally true regarding a single woman? (106)

Some will argue intuitively that the sages are motivated here by an underlying patriarchal perception of woman as property of man. As such, the sages differentiate between rape of a betrothed maiden, who already "belongs" to a man, versus the rape of a single woman who "belongs" to no one, and thus only the former case would be severe enough to justify killing the rapist. According to this line of thinking, the rapist may be killed in self-defense only when the rape "hurts" the man to whom the victim belongs (as in the case of the betrothed maiden). (107) Therefore, rape of a male victim would also be sufficiently severe as to justify killing the attacker, as it involves causing damage to a man.

However, this explanation appears to be inadequate, as the sages consistently apply the permission to kill a rapist in self-defense, to all cases of rape involving an element of severely forbidden sexual relations. Thus, for instance, it is permissible to kill a rapist in the case of a brother attempting to rape his sister, or a son attempting to rape his mother (even if the sister or mother are unattached to any man). In such cases, an explanation having to do with the woman "belonging" to a man (108) is wholly irrelevant and therefore cannot be accepted as the overarching rationale behind the sages' ruling.

Furthermore, it would seem that the very perception of woman "belonging" to man in the legal sense of ownership is incongruent with the sages' outlook in general, (109) rendering it irrelevant here. (110)

What, then, is the rationale behind the ruling of the Mishnah? A clue may be found in the following Tosefta, and the ensuing talmudic discussion. The Tosefta states: "R Judah said: If she said [to her rescuers] 'Let him be,' they should not try to kill him, since [the justification for killing the rapist is based on the concern that] without saving her he might slay her." (111)

Rabbi Judah's ruling seems to indicate that in his opinion, the legal justification behind killing a rapist is based upon the adjunct fear for the victim's life, not necessarily related to the rape itself. This was noted by the sages of the Babylonian Talmud in the following discussion: (112)
   In which case do they [R Judah and sages] differ? (113) Raba said:
   when she objects to being dishonored, yet permits him, so that he
   should not slay her. The sages maintain, the Divine law was
   insistent for her honour, and since she too is particular about it
   [her pursuer may be slain]. But R Judah maintains that the reason
   that the Divine Law decreed that he should be slain is because she
   is prepared to give her own life [rather than be violated]; but
   this one is not prepared to do so.


In other words: According to this talmudic discussion, the disagreement between the sages and Rabbi Judah relates to the case of a woman being forcibly raped, who nonetheless chooses not to protect herself (neither on her own nor through the help of a third party), in order to spare her life. (114) Such a case is characterized by the talmudic discussion as a test case exemplifying a rape not posing danger to the victim's life. Rabbi Judah argues that because the theoretical right to kill a rapist is based upon the fear for the victim's life, (115) if such a fear is neutralized, it is no longer permissible to kill the rapist in self-defense. (116) On the other hand, the sages permit killing a rapist in response to the rape itself ("the Divine Law was insistent for her honour"), regardless of danger to the victim's life, and therefore even in the above test case not involving threat to the victim's life, she may employ deadly self-defense against her attacker.

It would appear, therefore, that in Rabbi Judah's opinion, even rape involving severely forbidden sexual relations would not justify killing the rapist, as fear for the victim's life is the only possible justification for use of deadly self-defense. Rabbi Judah's position thus conditions self-defense upon absolute proportionality, and any attack of lesser severity than a direct threat to the victim's life does not justify use of deadly force in self-defense. (117) The sages, on the other hand, view certain types of rape--rape involving severely forbidden sexual relations--as justifying killing the rapist, in their own right. In other words, the sages express a somewhat more flexible standard of proportionality. (118)

C. The Apparent Rationale Behind the Emphasis of the Victim's Marital Status

If the sages perceive rape as justification enough for the use of deadly self-defense, what then distinguishes rape of a single woman from rape of a betrothed woman? If the sages are indeed of the position that "the Divine Law was insistent for her honour," meaning that the law permits killing the rapist to avoid the rape itself, would it not seem that they should apply this rule in all cases of rape, regardless of the personal status of the victim? I will argue that the rationale behind this mishnaic ruling is not based on a distinction between the outcomes of the different types of rape, but rather on another factor altogether, to be identified further on. (119)

Thus, for instance, the rationale behind the distinction between different categories of rape has nothing to do with the loss of the victim's virginity, as such an outcome does not uniquely characterize the rape of a betrothed maiden, and could equally apply to a victim who is a single woman. (120)

Similarly, the rationale may not be chalked up to the danger that the betrothed maiden may become pregnant and give birth to a bastard ("mamzer" a halakhically illegitimate child). (121) This would be, of course, an unfortunate and tragic outcome, not relating to cases of an unmarried woman, (122) but it is insufficient as an explanation, being inapplicable to rape of a man, as well as to several categories of married women. (123)

It is no more likely that the explanation stems from the anticipated harm to the victim's future married life. Halakhically, the victim--single or married--is not forbidden from marriage, (124) so formally there is no difference between a rape victim who is single or betrothed. In reality, and considering the social atmosphere of ancient times, a betrothed rape victim may have suffered to a greater degree, possibly being rejected by her groom, no longer interested in marrying her. (125) However, one can argue that a single woman would have suffered equally, perhaps unable to find a suitable mate, as well.

Indeed, the Talmud itself emphasizes that the "dishonour" attached to the rape victim does not sufficiently explain the ruling relating to killing the rapist, for rape of a man is not considered to similarly "dishonour" the victim, (126) and yet does nonetheless justify killing a rapist in self-defense. On the other hand, rape of a single woman--certainly "dishonouring" her at least to some degree--does not carry such permission. (126)

D. The Severity of the Transgression

It would appear, then, that the reasoning behind the Mishnah's distinction between rape of a betrothed maiden and the rape of an unmarried woman, has nothing to do with the outcome of the rape, but rather stems from the differing levels of severity of the transgression. (128) Thus, killing a rapist is justified when defending against a rape that would itself be punishable by death. On the other hand, rape carrying a lesser penalty than death does not justify killing the rapist. Therefore, rape characterized by severely forbidden sexual relations punishable by death justifies killing the rapist in self-defense, whereas rape not characterized by forbidden relations punishable by death does not warrant killing the rapist in self-defense. As stated in the Babylonian Talmud: "Now, had the Divine Law written 'sin' [only], I would have thought it applies even to those who are forbidden merely by a negative precept; (129) therefore the Divine Law added 'death.'" (130)

What then is the correlation between the death penalty placed upon the rapist (should he complete his crime and be apprehended) and the permissibility of deadly self-defense against him? It would seem that the sages, in their own way, also recognize the need for proportionality between the attacker's action and the defensive response employed to counter it; however, they measured such proportionality by the severity of the attacker's crime, as reflected in the severity of the corresponding penalty. (131) Therefore, the permission to kill a rapist in self-defense is limited to those cases of rape punishable by death, or in the words of Jewish law, cases involving a combination of rape and severely forbidden sexual relations.

It must be emphasized that according to the ruling of the Mishnah, both elements--rape and forbidden sexual relations--must be present, while each element alone does not justify use of deadly self-defense. Therefore, just as a rapist may not be killed in the case of an unmarried woman, it is similarly impermissible to kill a person engaging in consensual forbidden sexual relations. In such a case, even if the sexual relations are punishable by death, (132) the judgment may only be handed down by a court of law, and not by a partisan initiative taken by a passerby. (133)
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Title Annotation:Introduction through III. "In Pursuit of a Maiden" - The Theoretical Law (Halakha) D. The Severity of the Transgression, p. 123-153
Author:Porat, Benjamin
Publication:Columbia Journal of Gender and Law
Date:Sep 22, 2013
Words:6824
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