In our Western (Goyish) culture, rape constitutes a serious criminal offense (up to 15 years inside), that is probably based on a Pshat of Deu 22, 26:

וְלַנַּעֲרָה לֹא־תַעֲשֶׂה דָבָר אֵין לַנַּעֲרָה חֵטְא מָוֶת כִּי
כַּאֲשֶׁר יָקוּם אִישׁ עַל־רֵעֵהוּ וּרְצָחוֹ נֶפֶשׁ כֵּן הַדָּבָר הַזֶּה׃

for as when a man riseth against his neighbor, and slayeth him, even so, is this matter [a rape of an engaged girl]."

Rashi: "כִּי אֲנוּסָה הִיא וּבְחָזְקָה עָמַד עָלֶיהָ, כְּאָדָם הָעוֹמֵד עַל חֲבֵרוֹ לְהָרְגוֹ. "

How come that the Torah compares rape to a murder, but in the Halacha, there's no punishment for this crime?

  • Where do we ever see lashes given when there is already a fine? (There is indeed one specific exception, but that just proves the rule, as they say.) – Double AA Sep 10 '17 at 0:27
  • Correct, but where do we find getting away with a fine for a Lav? – Al Berko Sep 11 '17 at 19:00
  • 2
    Every time you damage someone. Suppose I cut off your arm. – Double AA Sep 11 '17 at 19:12
  • You seem to be conflating the crime of lo tihyeh kdesha, with the crime of rape. Which one do you think ought to warrant malkut? – mevaqesh Dec 11 '17 at 17:06
  • 1
    Again, if you want a user to see your comments, make sure to use a @. Ok. If you think that the malkut should be for the beilat zenut, then the rape element is a total non sequitur that just confuses the question. – mevaqesh Dec 12 '17 at 1:12

Usually, negative prohibitions carry a penalty of lashes. In this case, there is no punishment of lashes, because no prohibition has a penalty of both lashes and money (e.g. in Makot 4b; as DoubleAA noted, there is one exception, which is slandering a virgin). Rambam mentions this in passing in 1:11, in a case where there are lashes for a different prohibition (such as incest), and in such a case there is no fine (though he still must pay damages).

As to why he isn't lashed for this offense, I think that it's more usual to not be punished with lashes in commandments between people (rather than between people and God). Most cases (such as theft, damages, extortion) demand repayment rather than lashes. Only a few cases (murder, manslaughter) carry a heavier penalty (death and exile respectively). It does seem that the case of rape was associated more with the former case than with the latter.

(Note: I originally wrote that the reason was because the prohibition was attached to the positive commandment of marrying the woman. I changed it after some problems were pointed out with the answer.)

  • 1
    Does this also apply where the עשה it is connected to requires the consent of another person? In this case, he may only marry the woman if she agrees to marry him... – yydl Sep 10 '17 at 1:32
  • If the original wording was "One can not rape, but if he does he marries the victim" - that would be Nitak L'ese in my understanding. This phrasing is explicit about stealing - והשיב את הגזילה, or לשם ישלם. 1. Rambam's prohibition of having relations without Kiddushin has no Ese. 2. The obligation to marry is only in place when she's under 12, is she's Bogeret (or many other cases), there's no obligation to marry whatsoever. – Al Berko Sep 10 '17 at 5:55
  • 1
    I reread some of the sources, and it seems that the reason is more connected to the fine (and not to being ניתק לעשה). I'll try to see if I can find this dealt with explicitly. – b a Sep 10 '17 at 7:56
  • I also did some background checking, and it seems that a rape is no different than simply damaging one's fellow, which is עין תחת עין - get away with payments only. Rambam is clear that the rapist is paying all the damages, but sees no criminal part in it. This is also true for a husband raping or otherwise damaging his wife. – Al Berko Sep 11 '17 at 17:55
  • @AlBerko Rambam is clear that the rapist is paying all the damages, but sees no criminal part in it. This is also true for a husband raping or otherwise damaging his wife. That comes back to the general question (addressed in Rishonim) of whether or not there is a prohibition to damage someone. I don't see any evidence from the above discussion, what Rambam holds about it. – mevaqesh Dec 11 '17 at 2:07

Not the answer you're looking for? Browse other questions tagged .