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In his Mishneh Torah -Issurei Biah 1:13, Rambam states that if a male copulates with a girl under the age of three,also the male,even if he was an adult, is exempt from liability, for the act is not considered as sexual relations (this is because the girl's hymen will grow back).

In Mishneh Torah-Naarah Betulah 1:8, Rambam says that if a male (also adult) rapes a girl under three years of age, there is no payment of the 50 sela'im of pure silver, as the relations are not significant ; Rambam also states that, when this fine is provided, the raped girl is also entitled to compensation for embarrassment, damages and pain, while if no such fine is provided, the raped girl has no right to compensation for embarrassment and damages ( Naarah Betulah 2:10).

In the event that a Jewish adult male rapes a Jewish girl under three years of age, according to Halakhah, is the male sanctioned or not? He cannot receive lashes de'oraita, and he is not required to pay the fine of 50 sela'im of pure silver. According to Rambam (see above), he is not required to pay compensation for embarrassment and damages: is he obliged to pay compensation for the pain caused to the little girl? This is not clear to me from the above passages of the Mishneh Torah.

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  • Issure Biah 1:13 concerns his liability solely for the aspect of the crime of relations with one of the arayoth. It does not concern liability for rape. Naarah Bethulah 1:8 and 2:10, still allows for economic recovery from the perpetrator under a theory of pain (rather than a fine and damages). May 12 at 0:31

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In any legal system with carefully defined rules, there are edge cases where the particulars of a case allow instances to fall through the cracks. A reading of Rambam may lead to a conclusion that this is the case here, in a rape of a girl less than three. There may be other rabbis or sources (regardless lewdness, e.g.) that I am missing which might introduce a sanction.

There is, however, the concept of extra-judicial power wielded by the king or bet din. For instance, if a murderer would be excused for technical reasons under the halachic system, they may still execute him under this extra-judicial authority. See here for an elaboration.

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  • @josh waxman Yes, I know this rule, which is also codified in the Mishneh Torah (Sanhedrin 24: 4-10). I was interested in understanding the treatment of the case from the halachic legislative sources. The aforementioned rule, however, although undoubtedly useful in practice, presents elements of danger, since it risks concretely compromising the principle of legality, attributing to the judges a power above the law itself. I find the system of derabbanan prohibitions much more relevant, because it is based on decrees issued by the halachic authorities before the commission of the act
    – Amos74
    May 12 at 7:12

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