Are there contemporary apologetics for the Mishnah (Niddah 44b) that a girl of the age of 3 can be married by sexual relations? (It seems difficult to accept that such a thing is even allowed in principle, even if not in practice.)


It certainly is difficult. Good question.

I think the Mishnah is demonstrating a technicality; that if this were done (with intent and witnesses), various laws of marriage would be binding (and then he would have to take care of her for life); not at all that this was a recommended practice!

A few points that can help a bit here:

  • The Torah said that marital relations alone, without a ring, can effect the first stage of marriage (kiddushin). Yet the Talmud states (Kiddushin 12b) that anyone doing such a crass thing (even two mature, discreet, stable, adults) should be flogged! So it's a technicality at best.
  • The Torah allowed for a father to marry off his young daughter, yet the Talmud states that as a matter of recommended practice, "it is prohibited to marry off a young daughter until she is old enough and she says 'I like him'."
  • It appears that thousands of years ago, it was such a dangerous world for a girl out on her own that marriage was a much better predicament for her.
  • The whole thing about age 3 is a technicality's technicality. With regards to certain laws, activity below the age of 3 does not affect her halachic status (for instance, a woman still has the halachic full status of "virginity" no matter what happened to her before age 3). [Lawyers' note: any sort of child abuse is halachically, legally, and morally wrong, and will be punished by G-d and state.] Sexual relations can only change her halachic status starting with age 3; hence, if a father agreed to marry off his young daughter by relations (violating two Talmudic taboos, above), the minimum age at which such an act would take effect would be 3.

I hope that helps somewhat.

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    Administrator's note: The "Lawyer's note" above is for lawyers, not by a lawyer, and like all other content on this site, does not constitute professional legal advice. Of course, anyone who needs professional legal advice to be sure that child abuse is all kinds of wrong needs help from other kinds of professionals as well. – Isaac Moses Dec 20 '10 at 15:03
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    corrolary: is a gioret from before 3yrs old (e.g. adopted) still considered a gioret (vs betulah) for purposes of ketubah? – Jeremy Dec 20 '10 at 16:52
  • @Jeremy, if I recall there's such an opinion in the Talmud, but I think we conclude that Chazal made a blanket category of "converts", irrespective of age. – Shalom Dec 20 '10 at 16:55
  • Jeremy, Rabi Shimon holds that she is permitted to a Cohen for this very reason, but the Rabanan argue, as Shalom said. – Yahu Dec 21 '10 at 5:21
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    Also, Tosafot in Sanhedrin 69A says that in those days, children matured much earlier: e-daf.com/index.asp?ID=3747&size=1 – Menachem Jun 22 '11 at 18:55

An expansion on Shalom's answer taken from a different angle.

There is no need for apologetics those where the facts on the ground in Ancient civilizations. There is a very basic problem with us Judging the Torah as the whole world had theses practices. Today it is Disgusting but the Torah is and was eternal and had to be relevant then too, it is a problem that anthropologist discuss called Ethnocentrism when people judge other cultures based on their own cultural Moral system. The action may be wrong universally now and should be that way, but you have to look at it through a wider historical and cultural lens. Also just because something is an Halacha does not mean it is practiced Ben Sorer uMorah for example.Just some food for thought sorry it sounds so much like a rant.

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    It's a tad more complicated; Ben Sorer UMoreh is in the Torah, yet a strong opinion in the Talmud is that it could never actually happen. Similarly, there are two cases below where the Torah allowed something but the Talmud frowned on it. – Shalom Dec 21 '10 at 13:54

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protected by Isaac Moses May 28 '13 at 4:57

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