August 20, 2022

Ketubot 42

Having just started the fourth chapter of Massechet Ketubot titled נערה שנתפתתה meaning ‘a girl who was seduced’, and given the contrast in the Torah between the punishment of the seducer (see Shemot 22:15-16) and that of the rapist (see Devarim 22:28-29), and given the statement in today’s daf (Ketubot 42a) that the girl who was seduced nevertheless had consensual sexual relations (מדעתה עבד), I would like to address the halachic question of consent in the case of seduction.
In terms of the specific Torah law where the girl was verbally persuaded/groomed (see Rashi on Shemot 22:15) or deceived (see Ramban ibid.) to have sexual relations, and notwithstanding the claim that this was done ‘consensually’, it is crucial to state that this is nevertheless a Torah crime due to the age of the girl and the manipulative intent of the man. Moreover, as we now have an age of consent such that marriages are forbidden below that age, what the Torah describes as seduction is regarded today as rape as we reject the claim that any young person today could have consensual sexual relations – especially with someone older than them who has persuaded, groomed or deceived them to do so.
Having now explained this distinction, I would now like to discuss a case which is different to the one found in our Gemara – namely seduction of adult women. In such a case where a woman has consented to sexual relations, we may presume that no crime has occurred. At the same time, notwithstanding the fact that the victim here is an adult, the seducer has nevertheless employed persuasion, grooming or deceptive tactics. In such a case, how do we view this event?
Unfortunately, this question needed to be addressed due to recent events where so-called ‘mystics’ have persuaded, groomed and deceived their adult victims to consent to sexual relations. Significantly, the first to address this question in the modern period was Rabbi Yaakov Ettlinger (see his Responsa Binyan Zion No. 154-155), and more recently, Dayan Shlomo Deichovsky penned what I consider to be a ground-breaking responsum concerning the victims of Ezra Scheinberg (see Techumin Vol. 36 – nb. this responsum is significantly enriched by two essays by Dr. Baruch Kahana and Professor Meni Koslovsky who discuss the limits of free will and the dangers of mind control which informed Dayan Deichovsky’s ruling).
Yet while a full appreciation of these rulings deserves a close study of both responsa (nb. to download a handout with these texts see, the overall message that we can draw from these responsa is that notwithstanding apparent consent, the circumstances of consent and the evil intent of the seducer means that not only did crimes occur in these instances, but also whatever consent was given was not true consent.
Given all this, I urge all readers of our daf to think carefully when they encounter phrases like מדעתה עבד – literally ‘he acted with her consent’ – because a shallow reading of such words presumes that consent is just about words. However, as I hope I have explained, it is even moreso about the intent of the other person and the circumstances where consent, even when seemingly given, have occurred.
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