“One who is Raped is not Comparable to One who is Seduced”: Women’s Legal and Sexual Agency in the Babylonian Talmud

• In Event: Gender and Questions of Agency

Abstract

What are we talking about when we talk about consent? In what areas of law is consent important, and what does consent imply about subjecthood and agency for those who wield the legal power to give or withhold consent? This paper will discuss how the rabbis conceived of consent as a sexual and also legal category. It will also address the question of what type of subjecthood is granted to women in cases where they are permitted to give consent, in addition to considering the areas where that subjecthood is denied or suppressed.
For example, B. Ketubot 39a-b discusses the difference between rape and consensual sex, and the cost (both literal and metaphorical) of a violation of consent. Because a rapist pays compensation, but a “seducer” does not, the rabbis try to pinpoint the nature of the damage for which the rapist is required to pay. Is it for the damage to her value on the marriage market? But that belongs to her father. Is it for the pain he caused? If it is for the pain, what kind of pain do women experience during intercourse, and when? The rabbis acknowledge that even consensual sex may produce pain—in one of the few cases in which women’s subjective experience of sex is explicitly discussed. Therefore, what is the material difference?
We can see that in the course of even a single text, the rabbis both affirm and deny women’s bodily autonomy and rights to own her own body. She is due compensation for her pain—but only if the pain is from rape, and her marital worth continues to belong to her father, not to the woman herself. These issues, of legal and sexual subjecthood and consent, continue to be intertwined in differing ways throughout the corpus. This paper will address this complicated relationship, and argue that not only can sexual consent and legal agency not be understood separately, each category is highly contingent, since legal agency and consent for women rely upon the relative weight of multiple and often competing legal concepts in different legal domains.

Author

• Rebecca Kamholz, Yale University