What sources which talk specifically about a married woman being raped and how the payments of embarrassment, damage (pegam), and pain (see Kesubos 3:4) is apportioned between her and her husband?


1 Answer 1


The mishna in Kesubos 36b lists the cases of young women who are not entitled to a fine when raped or seduced by the following men: In the case of one who engages in intercourse with his daughter, with his daughter’s daughter, with his son’s daughter, with his wife’s daughter, with her son’s daughter, or with her daughter’s daughter; they do not receive payment of a fine. That is due to the fact that he is liable to receive the death penalty, and that their death penalty is administered by the court, and anyone who is liable to receive the death penalty does not pay money, as it is stated: “And yet no harm follow, he shall be punished” (Exodus 21:22). This verse indicates that if a woman dies and the one who struck her is liable to receive the death penalty, he is exempt from payment. This is known as the principle of קים ליה בדרבה מיניה. Since one who rapes a married woman is liable to receive the death penalty, he does not pay any monetary restitution.

What about the case where he doesn't actually receive the death penalty, such as when the witnesses didn't warn him, or in today's times where the death penalty isn't administered? This is learned out by Tanna Devei Chizkiya (see Kesubos 35a), that if a capital crime was committed, even if the punishment wasn't administered, the person is exempt from monetary payment. Note that Tanna Devei Chizkiya's teaching isn't unanimous: Rav Dimi on daf 34b says that Rabbi Yochanan disagrees (whereas Reish Lakish agrees with it). Now, the gemarra later implies that Rav Dimi's statement is rejected, but Chullin 81b presents his statement in an unchallenged way. Tosafos holds that the gemarra holds of Tanna Devei Chizkiya, but Rashi assumes it's still a disagreement between Rabbi Yochanan and Reish Lakish, like Rav Dimi said.

Presumably then, Rashi would rule like Rabbi Yochanan (as we usually do in a disagreement with Reish Lakish) that only if the person received the punishment would they be exempt, otherwise they'd have to pay. Tosafos would say that a person never has to pay, and that is the halacha (CM 423:4).

  • Is this only where there he was warned by witnesses and actually recieves the death penalty or even the more common case where there are witnesses but no warning (and so the court does not administer the death penalty)?
    – Orion
    Jul 8, 2018 at 12:55
  • @Orion Any act which is a sin that would carry the death penalty if the offender is warned by witnesses cannot mandate monetary restitution, even no actual death penalty is given. Today, the Jewish courts do not administer the death penalty, yet this concept is still applicable when such acts are comitted. Jul 8, 2018 at 13:03
  • @robev The question was edited by the OP op to address about "the 5 damage payments of embarrassment, pain, damage etc". So do some say that there is no KLBM by this case?? Why not? Jul 8, 2018 at 14:03
  • @robev Thank you VM. So if the halacha is like TDvC my answer can still be correct? Jul 8, 2018 at 14:23
  • @ribbisrabbiandmore maybe edit in robevs piece?
    – Orion
    Jul 9, 2018 at 1:54

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