Legal-Religious Status of the Virgin
The basic ketubbah of a virgin (two hundred maneh [one maneh=fifty shekels]) was double that of a non-virgin (one hundred maneh) (Mishnah Ketubbot 1:2). Those who were divorced or widowed while betrothed but before marriage retain their status of virgin. This difference was doubled in the case of the daughter of a priest who was a virgin, whose basic ketubbah was four hundred maneh (Mishnah Ketubbot 1:5). This distinction emphasizes the value of virginity and the significance of sexual exclusivity on the part of the woman to her husband and, in the case of the priest, the value of caste status. A number of situations were described biblically which deal with the seduction or the rape of a virgin who is either unattached or betrothed. Consensual sexual intercourse of the betrothed or married woman with someone other than her husband would put both the woman and her paramour in the category of adulterers. Seduction is considered to be consensual but the cases discussed in the Bible according to rabbinic interpretation were dealing with minor girls who did not have the legal right of consent. Rambam covers this material in Hilkhot Na’arah Betulah.
The biblical and rabbinic categories of rape seem to apply to virgins or to captive women (married or single) but not to wives in marriage or levirate marriage. Although men were exhorted to woo their wives to sexual interest, forcible intercourse within marriage appears not to be a punishable legal offense although the nature of the resulting children may be adversely affected (Rambam, De’ot 5:4–5). (This should not be surprising, since rape within marriage was recognized as a crime only within about the last fifty years in North America. Prior to that time, it was understood that marriage constituted the ongoing consent of the woman to have sexual relations.)
Both the rapist and seducer of a virgin either as a minor over the age of three years until the end of her twelfth year (ketannah) or as a maiden (na’arah [for the first six months after her twelfth birthday]) are subject to a fine (kenas) of fifty silver sela (tetradrachma) to be paid to the father of the girl as compensation for the loss of her virginity thereby causing her devaluation in subsequent marriage arrangements. It should be noted that the age limitations on eligibility for the fine probably had an impact on the age of marriage, making it more likely that girls were married off prior to puberty. The Bible gives tentative definitions of rape and seduction (Deuteronomy 22:23–27) based on the location, inferring that in the field no one was available to aid the girl even though she cried for help, while in the city, her silence is understood as her consent. Sifrei Devarim Piska 243:25–27 discusses other possible scenarios and concludes that unless there were witnesses to consensual sexual relations in the field, that situation is considered rape, whereas in the city, unless there are witnesses to threat of violence, that is considered seduction because she did not cry out (Rambam, Hilkhot Na’arah Betulah 1:2). Although this is an improvement on the black and white of the Bible, there still may be situations in which witnesses were unavailable to testify to the threat of violence.
The seducer is not forced to marry the girl he seduced because any of the three parties (the father, the girl and the seducer) may reject the marriage. It is sufficient that he pay the fine. If he does marry her, he does not pay the fine but simply writes the ketubbah suitable for a virgin. In the case of a rapist, the father and the girl may object to the marriage and he must pay the fine for the loss of her virginity. If the girl and her father agree to the marriage, the rapist has no choice in the matter even if she has certain disabilities such as a limp or is blind or leprous, and the rapist is forbidden to divorce her (ibid.1:3). However, she is not given a ketubbah because the ketubbah was instituted in order to prevent easy divorce which is impossible in this case (ibid. 1:4). This may, however, disadvantage her as a widow or in one of the cases below in which he cannot remarry her. If the rapist transgressed and divorced the rape victim, he is forced to remarry her, but if in the meantime she died, accepted kiddushin from another or the rapist was a priest who cannot marry a divorcée, he is flogged (ibid. 1:7). If the rape victim was forbidden to the rapist even by a rabbinic prohibition, he is not obligated to marry her and if he does he must divorce her (ibid.1:5). In order for the sexual act to be considered rape or seduction, it must include vaginal penetration (bi’ah ke-darkah), presumably because the concern is about the state of her hymen and not the trauma connected with sexual assault. Moreover, if the girl were less than three years and a day, even vaginal penetration is not considered rape or seduction because her sexual intercourse does not have legal status and there is no fine (ibid. 1:10). The girl who is beyond the period of her maidenhood (na’arut), i.e., the bogeret over the age of twelve years and six months or six months beyond sprouting two pubic hairs after the age of twelve, is not eligible to receive a fine (ibid.1:8). The girl who was married by a guardian and repudiated the marriage (by me’un), a mentally impaired girl, a deaf girl, a promiscuous girl and the girl divorced after marriage but prior to intercourse, in addition to the girl less than three years of age and the bogeret, are not eligible for the fine for rape or seduction. In his list of those ineligible for the fine, Rambam (ibid. 2:9) also includes the ailonit, a girl who has not brought forth two pubic hairs by the age of twenty, because she goes directly from minority (katnut) to majority (bagrut) at the age of twenty. He also includes the girl about whom it is rumored that she is not a virgin. A betrothed girl divorced prior to her marriage is eligible to receive the fine for rape and it belongs to her, but if she is seduced there is no fine (ibid.1:9). The convert, the captive and the freed slave are eligible to receive the fine for rape or seduction if they converted prior to the age of three years and a day, i.e. prior to the time that their intercourse is considered legal, because all females in these categories are considered to have had sexual relations. After the age of three years and a day they are no longer eligible for the fine (ibid.1:10). In the event that the rape victim or the seduced girl was forbidden to the rapist or the seducer (e.g. his sister, his aunt, etc.) with the prohibition carrying the penalty of karet (Divine punishment) or even by a non-karet prohibition, if two valid witnesses warned him of the prohibition and its repercussions and he nevertheless persisted, he is flogged but does not have to pay the fine because the double punishment of fine and flogging cannot be enforced. This significantly reduces the compensation for the victim. Without the warning, he is obligated to pay the fine as is the case if the prohibition was only rabbinic with or without the warning (ibid.1:11–12). If the woman was forbidden to him by a prohibition carrying the death penalty (e.g. his daughter, his daughter-in-law, granddaughter, stepdaughter and her offspring), there is no fine because of the issue of the double penalty (ibid.1:13). If the girl dies as a result of the rape, no fine is paid to the father (ibid.1:14).
It should be noted that only in very rare cases does the fine reach the girl’s hand, as her father generally collects it. The fifty silver sela fine is only for the rapist’s or the seducer’s enjoyment of her virginity. The seducer must also pay for any shame (boshet) and resulting defect (pegam) and the rapist must pay these and also make payment for her pain (za’ar), which is not considered to exist in the seduction situation (ibid. 2:1). The fine for defect is calculated on the basis of how much a virgin bondwoman or a favorite slave would be worth and how much less such a bondwoman who was not a virgin would be worth. The difference is the value of the defect. The fine for shame and pain is evaluated in each individual case. Shame is based on social status: the higher the social status of the victim and the lower the social status of the rapist or seducer, the greater the fine for the shame. Alternatively, a rapist or seducer of a high social status causes much less shame to a poor, disabled, neglected girl, according to the sages (Ketubbot 3:7). These distinctions relate to class and do not take into account the victim’s personal feelings of shame or trauma. Rambam explains this as the difference in the money that a man would have been willing to offer in marriage for the virgin daughter, compared with that for the daughter after she had been violated. Pain is evaluated according to the relative size of the victim to the rapist and their respective ages. According to Rambam, the evaluation depends on how much the father would be willing to pay in order that his daughter may not have suffered, making the value of her pain dependent on her father’s desire that she avoid the pain (Rambam, ibid.2:5). The payment for shame and defect must be paid immediately by the seducer but he pays the fine for the seduction only if he does not marry her. The rapist, however, must pay shame, defect, pain and the fine immediately because if the woman is subsequently divorced or widowed, she has no ketubbah (ibid. 2:7). In a gang rape, part of which is vaginal intercourse and part of which is other sexual acts, including the possibility of oral or anal penetration or other sexual contact, the person who penetrates her vaginally must pay the fine (fifty sela), shame, defect and pain. The other sexual assailant pays for shame in all cases, but defect only if he assaulted her first. A distinction is made between the shame and the defect for the girl who was vaginally penetrated (which yields a greater fine) and the one who was sexually assaulted but not vaginally penetrated (ibid. 2:8)—a distinction which emphasizes the value attributed to virginity as compared with compensation for the trauma.
Any girl who is eligible to receive the fifty sela fine is eligible to receive monetary compensation for shame and defect when seduced and for those three plus pain when raped. If she is not eligible to receive the fine of fifty sela, she is also not entitled to compensation for shame and defect or for rape—except the bogeret, the one who repudiates her marriage, one who was mentally incompetent and one who is deaf (ibid. 2:10). The bogeret or the one who repudiates her marriage who is raped does not receive the fifty sela fine but does receive compensation for shame, defect and pain. The mentally incompetent girl or the deaf girl who is raped receives compensation only for pain (ibid.2:11). The seducer of any girl in one of the four categories mentioned above is exempt from all fines.
The man is obligated to pay the fifty sela fine if and only if there are witnesses. His personal admission of guilt does obligate him to pay shame and defect. If the girl takes him to the bet din and accuses him of rape or seduction, if he confesses he must compensate her for shame, defect and, in the case of rape, pain. If he does not admit that he had raped or seduced her, he swears shevu’at heset (an oath of inducement) and is exempt (ibid.2:12). If she claims that he raped her and he claims that he seduced her, he swears shevuat ha-Torah on the fine for pain and pays her shame and defect (ibid. 2:13). All the fines go to the father because he is entitled to shevah ne’ureha (gain of her youth) but if she has no father or even if he is alive and she was divorced, she is entitled to the fines (ibid. 2:14). If she were raped or seduced but did not make the claim in court until after she became a bogeret or after her father’s death, the fines belong to her. If, however, legal proceedings began while she was still a maiden but were not settled until after she became a bogeret or after her father’s death, the money goes to his heirs because from the moment the case came to court it was as if the father had taken possession of the fines (ibid. 2:15), giving higher value to the family’s honor than to the girl and the injury she sustained. The betrothed maiden who was divorced and then raped or seduced keeps the fifty sela fine for herself but the other fines go to her father even though she is no longer considered in his legal power. This is justified by the fact that he could choose to marry her off to a vile man or a leper and since he is not doing so he is entitled to those fines. If she were raped or seduced and afterwards betrothed, all the fines go to her father (ibid. 2:16).
In an odd extension of logic, Rambam limits the power of the father to receiving the fines for his victimized daughter but does not allow him to victimize her by hiring her out for fornication or as a favor (ibid. 2:17). If the father or the daughter herself prepared her for promiscuity, she falls into the category of prostitute (kedeshah) and both she and the man who fornicated with her are subject to flogging. A child is labeled a prostitute if two valid witnesses testified that she approached them for fornication. She is then denied compensation for rape or seduction.
If a man falsely accuses his maiden wife (na’ara) of not being a virgin and his accusation is proven to be false, he is flogged for the slander and must pay her father, or her if she is an orphan, one hundred sela (ibid. 3:1). The girl must be in her six-month period of maidenhood (na’arut). This judgment must take place in front of the court of twenty-three because if his claim is proven to be true, the girl is liable to a death sentence. Issues of rape and seduction need only a court of three because it is a monetary issue (ibid. 3:3). The maiden wife falsely accused of not being a virgin cannot be divorced even if she is blind or a leper. If he transgressed and divorced her, the court forces him to remarry her but does not flog him. If, after he had divorced her, she accepted kiddushin from a different man or she died or the man who falsely accused her was a priest who could not take back his divorced wife, he is flogged (ibid. 3:4). This case and the parallel case for the rapist hold only if there is no prohibition, even a rabbinic prohibition, for them to be married. The obligation to marry is offset by the prohibition to be married and therefore he may divorce her. Rambam uses this opportunity to divorce because the woman may actually not want to be married to her false accuser (ibid. 3:5). The procedure for a claim of non-virginity is as follows: initially, the man accuses his maiden wife, at the court, of not being a virgin, his claim being based on the fact that he did not find her hymen intact and that upon investigation it was found that she had sexual relations with another man, and he has witnesses to testify to that. The bet din investigates their testimony and if it is found to be correct, the girl is stoned. If the father brings witnesses who demonstrate that the witnesses of the husband are lying, the false witnesses are stoned and the husband is flogged and must give one hundred sela to the father. If the husband subsequently brings witnesses that demonstrate that the father’s witnesses were lying, those witnesses and the girl are stoned (ibid. 3:6). If she is a bogeret at the time of his accusation, even though he provides witnesses that she had sexual relations while she was a na’ara, he is exempt from both the flogging and the fine. If, however, his claim was found to be true, even though she is now a bogeret, she is stoned because she committed adultery while she was a na’ara (ibid. 3:7). The false accuser of any maiden who is ineligible for the fine of the seducer or the rapist is also exempt from the fine for false accusation of virginity. If a converted Samaritan girl or a slave were freed at less than the age of three years, even if the mother gave birth as a Jew, the false accuser of virginity is exempt from the fine and from the flogging because both the conception and the birth must be with the mother as a Jew, based on the verse in Deuteronomy 22:19, “a virgin of Israel” (ibid. 3:8).
If a man betrothed a maiden, divorced her and remarried her and then accused her of not being a virgin and brought witnesses that she had sexual relations during the first betrothal and it was found that the witnesses were false, the man is not flogged. Similarly, if he performed Levirate marriage with the yevamah, who was then accused of infidelity while married to the man’s brother and brought witnesses who were found to be false, he is still exempt from the flogging and from the fine and anyone who is exempt from the fine or from the flogging may divorce the woman (ibid. 3:9).
It should be noted that the claim of not finding the woman to be a virgin is not simple from a physiological point of view. Some women do not have a hymen and sometimes the blood supply to the hymen is minimal, which results in very little blood available to be shown as evidence of virginity. The two signs given in the Shulhan Arukh (E.H. 68:3) for the virgin: blood flowing after the first act of intercourse and the pressure needed for penetration, are not necessarily universal and are quite subjective. The fact that adult men were marrying pubescent girls or girls just prior to puberty makes it more likely that the so-called proof of virginity was actually evidence of a vaginal tear because sufficient hormonal stimulation to the vaginal mucosa was not yet available to allow vaginal expansion during arousal to accommodate penetration without injury. It is also very likely that there were cultural aspects to virginity that added to the proof of virginity (e.g. cries of pain). Moreover, there is also a long history of deception in regard to virginity, including using the blood of an animal on the bedding. The high premium placed on virginity, the expectation of sexual exclusivity, and a tendency toward segregation between the sexes highlighted this topic. In order to make a claim that the girl was not a virgin, vaginal intercourse was obligatory and the man who had non-coital relations with his spouse and nevertheless brought a claim of non-virginity was exempt from the payment of the fine but was flogged (ibid. 3:10). False testimony of witnesses in regard to the betrothed girl’s sexual relations makes them liable to capital punishment, as she would have been had the claim been true (ibid. 3:11). The laws summarized above make it amply clear that the woman is disadvantaged in claims against her of non-virginity, that not all virgins are eligible for the legal category of virginity for which they can be compensated or are liable to capital punishment, and that false testimony could exempt the man from payment of false claims of non-virginity. If a woman was married on the presumption that she was a virgin but was found not to be, she forfeits her ketubbah. If an adult man had intercourse with a girl under the age of three years and a day, the girl retains her legal status as a virgin. If an adult woman had intercourse with a boy under the age of nine years and a day, she is also considered a virgin. An injury to the hymen made by a piece of wood (a picket fence injury) causes loss of the status of virginity, according to the Sages (Ketubbot 1:3).
In the modern era, the Ultra-Orthodox position in regard to a claim of non-virginity is that such a claim is not accepted because now that minor girls and girls close to puberty are no longer marrying due to the age restrictions of civil legislation, it is assumed that normal physical activity and advanced age will degrade the hymen naturally and could cause false claims of non-virginity. Many couples continue to prefer the fourth day of the week as a wedding day because it was the traditional day for virgins to be married, since the rabbinic court met on the fifth day of the week to accommodate claims of non-virginity (Ketubbot 1:1).
In mishnaic times if the groom-to-be stayed at his father-in-law’s house and was permitted to be secluded with his betrothed, he had no claim of non-virginity (Ketubot 4:1; Shulhan Arukh E.H. 68:1). Apparently this was allowed in order to prevent the Roman governor from practicing nocte primus. This model is the only rabbinic model which encourages gradual sexual intimacy rather than proceeding from a situation in which all contact is forbidden prior to marriage to one in which full intercourse is immediately permitted. This may have been the source of the different practices in the Land of Israel and in Babylonia concerning first intercourse, mentioned in the Geonic period, i.e. the custom in Babylonia was that the man separated from his wife after first intercourse due to confusion between hymeneal blood and possible menstrual blood, whereas in the Land of Israel it was assumed that the hymen had been removed manually, possibly as a result of growing intimacy over a period of time. For some, this allowed several acts of intercourse on the first night (Niddah 10:1).
A woman’s claim that she had been raped after her betrothal as a virgin is sufficient to maintain her right to her full ketubbah as a virgin because her claim is certain while her husband’s claim is uncertain (Ketubbot 1:7). If an unmarried woman was seen “speaking” to a man in the marketplace, her claim that he was a kosher Jew rather than someone who would disqualify her from marrying a priest is accepted and she is not disqualified from marrying a priest (Ketubbot 1:8). A pregnant unmarried woman is believed regarding her eligibility to marry a priest based on the paternity of her child, and her daughter from that pregnancy is also eligible to marry a priest (Ketubbot 1:9). In each of these three cases R. Eliezer ben Hyrcanus and the sages hold the lenient position, while R. Joshua ben Hananiah is very stringent and disbelieves the woman in each case. Even in cases of rape by an unknown rapist, if the majority of men in the area are not in categories which would disqualify the woman from marrying a priest by their act of intercourse, her status follows the majority (Ketubbot 1:10).
Conflicting claims about the status of the woman when she married (virgin, divorcée or widow) can be decided on the basis of her dress at the wedding (i.e. if she had her hair uncovered as was the norm of virgins) or if parched grain had been distributed, as at the wedding of a virgin, in areas where a written ketubbah was not the norm (Ketubbot 2:1).
Frymer-Kensky, Tikva. “Virginity in the Bible.” In Gender and Law in the Hebrew Bible and the Ancient Near East, edited by Victor Matthews, Bernard Levinson and Tikva Frymer-Kensky, 79–96. Sheffield, England: 1998; Hauptman, Judith. “Rape and Seduction.” In Rereading the Rabbis: The Woman’s Voice. Boulder, Colorado: 1998; Langer, Ruth. “The “Birkat Betulim”: A Study of the Jewish Celebration of Bridal Virginity.” PAAJR 61 (1995): 54–94; Maimonides, Hilkhot Na’arah Betulah; Niessen, Richard. “The Virginity of the “Almah” in Isaiah 7:14.” Bibliotheca Sacra 137  (1980): 133–150; Paul, Shalom M. “Virgin, Virginity.” Encyclopedia Judaica, vol. 16. Jerusalem: 1972, 160–161; Poorthuis, Marcel J. H. M. “Rebekah as a Virgin on Her Way to Marriage: A Study in Midrash.” JSJ 29/4 (1998): 438–462; Rabinowitz, Louis Isaac. “Virgin, Virginity.” Encyclopedia Judaica, vol. 16, Jerusalem: 1972, 161–162.