Sanhedrin 004

20:
"Charges of rape and seduction are heard before three":

The Torah, in Deuteronomy 22, distinguishes between two kinds of sexual relationship between and man and a woman outside the marriage bond: rape and seduction. Verses 28-29 of that chapter deal with the rape of an unmarried woman. (The rabbinic expansion [Yevamot 59a] would exclude from the above definition widows and divorcees, because verse 29 stipulates that the fine imposed must be paid to the victim's father, and not to the victim herself.) The law provides that if a man forces himself sexually on an unmarried woman he must indemnify the woman's father with a stipulated monetary payment; furthermore, his relationship to the woman is recognized as marriage and it is indissoluble by divorce.

21:
Obviously, this statement of the Torah reflects certain presumptions about the status of such a woman in her society. First of all it assumes that the woman is "spoiled goods" on the marriage market; and that the main sufferer in the event of her being raped is her father (!), since her "value" to a prospective husband has been viciously curtailed. The second presumption is that a woman in such a predicament would want to be married to her assailant (!) so that she would not be left a solitary spinster for the rest of her life. This latter presumption is reflected in the observation of the Amora from Eretz-Israel, Rabbi Shim'on ben-Lakish [Yevamot 118b] that a woman would prefer to live with "a heap of woe" [an inappropriate husband] than to remain in perpetual spinsterhood ["Tav lemeitav tandu milemeitav armelu"]. Given the economic and social verities of those times, one can understand why a woman would feel that her economic security was more important than her personal happiness. According to our mishnah, cases which involve a charge of rape are to be heard by a court of three because of the monetary fine to be paid over by the assailant to the woman's father.

22:
It is not within the framework of our present study to go into the later development of this legislation in great detail, but later rabbinic interpretation obviously changed it a great deal. I shall make do with a direct quotation from Mishnah Ketubot 3:4.

Thus the rapist is required to indemnify his victim by paying out a sum of money to be assessed by the court of three on each of the counts. (Shame refers to the the sense of outrage and indignity suffered. The Mishnah [Bava Kamma 8:1] makes it clear that this is very subjective: "it is all relative to the shamer and the shamed".) Perhaps it is interesting to note the method of assessing "pain suffered" that is described in that same mishnah (which deals with all cases in which one party is being sued by another for damages to his or her person). The mishnah says that the judges must assess how much money a "normal" person could be expected to be paid for voluntarily undergoing the suffering in question.

23:
The other sexual relationship between and man and a woman outside marriage upon which the Torah legislates [Deuteronomy 22:23-27] is seduction. Seduction is presumed when a man who is not her husband has sexual relations with a married woman. The Torah distinguishes between such an act taking place in a populated area and in the countryside. If the sexual act took place in a populated area, the woman must be presumed a willing partner (and thus an adulteress); if the incident takes place in an area where her cries for help and her protests would not be heard she must be presumed an innocent victim: i.e. she must be presumed to be what we would call today a victim of rape.

24:
Here, too, changing social and economic realities brought in their wake new rabbinic interpretations. In his commentary on Exodus 22:15, Ramban [Nachmanides, Spain, 12th century CE] summarizes as follows:-

To be continued.

I have received a considerable correspondence on the issue of "a moot point"! I am very grateful to all those who sent me the fruits of their knowledge. However, I am sure that you will all agree that we should not be spending too much time and space on this issue. So here are a few of your comments – judiciously edited!

Richard Friedman:

In American English, I think the meaning of the phrase is the same as it is in British English – a point for discussion. I think the more common usage in American English is that it's a point that is valuable only for discussion, since there's no longer a live case that hinges on it. I have heard the quote as saying that the US and the UK are "two nations divided by a common language." Might it be Churchill?

Jeffrey Smith:

Everyone is right. In legalese, a "moot point" means something that is no longer relevant, or has been decided by the facts (for instance, if I sue for future wages in a discrimination case, and then die, the future wages are a moot point), and which the court will therefore not decide upon. But "moot courts" are a common law school phenomenon, in which the students argue on either side of a (hypothetical) case; such a case usually mirrors a case currently in process (say, before the US Supreme Court), or is constructed to ensure that the students must discuss the "cutting edge" of areas of the law. So a moot in this sense is something that is very much awaiting decision. These moot courts are descended from the practice of the Inns of Court in England.

Similarly, Mark Ament:

In your discussion of "moot" you refer to the "British" English use of the term as a point not agreed upon by all. To further confuse the issue for US trained lawyers, almost all of us underwent "Moot Court" in law school. This is a mock appellate court argument which is used as a training tool by almost all US law schools. In this context "Moot Court" surely adopts the British meaning of the term and probably trace back to the Moot Hall of the Middle Ages.

Arnie Kuzmack:

Actually, I think you're both right. The term "a moot point" means a point that is debatable, as you have been correctly using it. David's usage refers to an issue or question that is "moot", i.e., no longer relevant.

Discussion on this topic is now closed. I have also received several other very interesting comments and questions on the texts which we are presently studying: I shall bring them as part of our next shiur.

Shabbat shalom to everybody.