In 1977, the New York State Legislature passed the “Son of Sam law”. Named for serial killer David Berkowitz’s adopted name, the law forbade criminals from profiting from their actions; for example, by selling book rights to their stories for millions of dollars. In 1991, in a unanimous decision, the Supreme Court of the United States struck down the law, arguing that it violated the Constitution’s First Amendment guarantee of free speech. Less onerous laws have since been passed in many states that attempt to strike the proper balance between allowing freedom of speech while not rewarding criminals. In any event, victims and their families can sue for monetary damages in a civil court. This was successfully done by the family of Ron Goldman, who were awarded the money from O.J. Simpson’s book rights to satisfy the civil suit award they were granted for Goldman’s murder[1].
The idea of choteh niskar, that sinners could profit from their sins, greatly troubled our Sages, and they went to great lengths to ensure that such could not happen.
It is for this reason that those who intentionally violate the Shabbat may not derive benefit from their actions—ever[2] (Shulchan Aruch, Orach Chayim, 318:1) .
In the worldview of the Torah and our Talmudic sages, it was taken as the norm that when a couple would marry, they would be virgins. And there is little doubt that one who was not—especially a woman—would find it more difficult to find someone to marry. Hence, the Torah obligated one who seduced a virgin to marry her. If either the man or the woman involved did not want to marry, the man would pay a fixed fine of 50 shekalim, as well as damages for her loss of status and for the embarrassment caused to her[3].
If a man raped a woman, then the Torah obligates him to marry her without the option of paying monetary damages instead. Had the law stopped here, I think it would be fair to say that this law would not only defy modern sensibilities, but would actually be repugnant. What could be more disgusting than forcing a woman to marry her rapist? However, such obligation applies only to the man. The woman can—and, I would imagine, almost always would—refuse to marry her rapist. Nonetheless, it is quite possible—tragic as it may be—that she might feel that no one else would ever marry her, and she would be better off marrying the rapist than remaining single.
While I imagine many might cringe at the comparison, is it so terribly different from a woman deciding not to divorce her husband who has had an affair? The hurt to the woman might be no less. Life is complex, and it might actually be possible for a man who rapes a woman to develop a loving relationship with her. I imagine most women who are victims of marital rape—a phenomenon which is more widespread than commonly assumed (see here for some frightening statistics regarding marital rape)—remain married, and one act need not define a lifetime. Of course, the choice is hers and in any event, the woman is entitled to the same financial compensation as the woman who is seduced plus extra compensation for her suffering.
In addition to the victim, the father, too, can veto the marriage. Abaye simply says that to rule otherwise would result in the sinner benefitting from his sin[4]. A na’arah, a young girl between the ages of twelve and twelve-and-a-half, cannot marry without her father’s consent (nor can the father marry off a daughter without her consent), so to deny such in a case of rape would mean the rapist has more “rights” than any other man. And it is unacceptable for a sinner to have more rights than others.
Our sages were concerned even with very small amounts of gain. “Rabbi Shimon says: By right, the meal offering of a sinner should require oil and frankincense [like other meal offerings], so that the sinner will not profit” (Menachot 6a). There are three sins for which one who is unable to afford an animal may bring a flour offering (see Vayikra 5:1-4). Yet unlike other korbanot mincha, no oil or frankincense was to be added to this mincha. This troubled Rabbi Shimon. Why should a sinner have to spend less money on a korban than absolutely necessary? Rabbi Shimon answers his own question. “And for what reason is it not required? So that his offering will not be beautified”. The cost of oil and frankincense is mere pennies. Yet absent them, the korban—being made of grain only—would have very little taste. Better to let the sinner save a few cents and have an unappealing korban than allow him to have a nice, tasty korban. Costs and benefits are not to be measured in financial terms only.
There does appear to be another, more substantial exception to this rule, one worthy of discussion during the month of Elul. Mifnei takanat hashavim, to allow penitents to return, we allow one who used stolen material in constructing a home to pay the value of the stolen item rather than take apart the home to return the actual stolen beam, as required by a strict application of Torah law. Realizing that no one would go to such great lengths, the rabbis allowed one to pay the value of object instead (Gittin 55b).
Finding the right balance between punishing sinners yet affording them the opportunity to repent is a most difficult and crucial task, one that has taken on great importance in an era where most Jews do not accept the dictates of the Torah yet do not see their actions as sinful.
[1] The idea that one can be found innocent of criminal charges but civilly responsible for monetary damages for the crime one presumably did not commit seems almost irrational. Yet it is most rational indeed. It stems from the differing levels of proof needed to convict in civil and criminal cases. It is more fundamentally rooted in the notion that only in heaven can there be ultimate truth.
This idea, known in the Talmud as palginam dibura, splitting the words—accepting some, but not others—finds its most extreme application in the case of “Ploni (John Doe) sodomized me with my agreement”. In this case, one’s testimony is accepted regarding Ploni, and he is put to death for his crime, yet the testimony vis-à-vis the willingness of his partner is rejected. At play here is another rule of testimony, that “a person may not make himself wicked”; and in taking American law one step further, Jewish law rules that one has the obligation (not just the right) to reject self-incriminating evidence in criminal law, though not in monetary cases (see Sanhedrin 9b and Rashi, s.v. Rava Amar)
[2] Another Jew may derive benefit from the forbidden action immediately after Shabbat, whereas if one wants to benefit from (a permissible) act done by a non-Jew on Shabbat, one must wait until the amount of time it took to do the work has elapsed. We fear that otherwise, a Jew will be tempted to instruct a non-Jew to do work on Shabbat. Such fear is absent when dealing with a Jew, because an observant Jew would never ask another Jew to violate Shabbat on his behalf. Hence, one may derive benefit from his work immediately after Shabbat.
[3] For reasons I do not quite understand, the Torah limits this law to a na’arah, a young girl between the ages of twelve and twelve-and-a-half. Clearly, there is more to this law than what I write above.
[4] As we discussed in our last post (see here), logical arguments—even if they’re not absolutely foolproof—require no biblical support to attain a status similar to biblical law. Fascinatingly, while our last post focused on Rava’s use of a logical argument with the Talmud nonetheless offering a biblical prooftext, in our case, Rava disagrees with Abaye’s reasoning and hence, brings support from a biblical verse.
