[Avodah] yefas toar

[Chana Luntz]

RSBA writes:

> From: "Marty Bluke" <>
> R ' Akiva Miller wrote:
> According to this logic, rape is not inherently immoral, 
> because if it was, then we would not find a case (yefas toar) 
> where it is mutar.
> ---
> By yefas toar Chazal say explicitly that lo dibra torah ela 
> k'neged yetzer hara which implies that it is not a moral action.
> >>
> 
> I am not so sure about this being a true 'hetter' of 'rape'.
> 
> See Kiddushin 22a, Rashi dh: Shelo Yilchotzeno Bamilchomo: 
> "Lavoy oleho." Which may mean no rape, or to wait until he 
> takes her home. (Admittedly Tosfos has a lot kashes on this.)
> 
> Also see Rambam Hilchos Mishpotim 8:2-7 all the halachos 
> concerning  a 'yefas toar'. Definitely not the usual rape situation.
> 

And to add to what RSBA is saying -  whether he is even permitted to
have relations with her even once before the conversion and all the
procedures have been gone through is, according to the Kesef Mishna
there on the Rambam, the subject of a maklokus between Rav and Shmuel in
the Yerushalmi (the Kessef Mishna also quotes the Tosphos in Kiddushin)
with the Rambam poskening like Rav (because in such matters we posken
like Rav over Shmuel).  However, the Kesef Mishna also brings the Smag
who quotes the Yerushalmi in Shabbas as having the maklokus between Rav
and Rav Yochanan (and as between Rav and Rav Yochanan, the halacha is
like Rav Yochanan) and therefore he poskens like Rav Yochanan. {although
you should note that the Kesef Mishna goes on to give reasons why, based
on the Bavli, he believes it is logical to posken like the Rambam).  But
that does mean that the Smag at least holds that in fact nothing that
could even vaguely be considered rape is permitted to occur at all.  And
further you should see the Ramban on the pasuk (Devarim 21:11-13) who
states after a long discussion that the plain meaning of the text is
that no relations at all are permitted until after all the mourning
period and the conversion occurs (the Ramban also quotes the Yerushalmi
dispute between Rav and Rav Yochanan, (although he suggests it is in
Sanhedrin - Makos)) - ie his version appears to again be, like the Smag,
with Rav Yochanan, meaning again that l'halacha no relations on or near
the battlefield is permitted to occur according to the Ramban.

So according to these other meforshim, there is in fact no relations at
all on or anywhere near the battlefield, but the special allowance the
Torah makes in this circumstance where he sees her in a war situation
would seem to be to allow the man to marry her altogether if he can
pursuade her to convert (whereas in other circumstances he would not be
able to) - rather than any sanction of any form of rape, or even the
Rambam's private allowance of a once  off battlefield liason.

> SBA

Regards

Chana