Tuesday, November 22, 2016

What a recent controversy about Israel’s chief military rabbi nomination can tell us about the relationship of Jewish law and ethics

As the Supreme Court delays the appointment of R. Eyal Qarim until he clarifies his opinion on the yefat toar (English article - behind paywall), the time seems right to post a conversation I had on the whole affair with Dr. Dana Hollander, a professor at McMaster University who specializes in modern Jewish philosophy.

The conversation below is a conscious, intellectual exploration. But at the height of the yefat toar controversy, I also received a number of emotionally urgent requests to clarify the position of halakhah on the subject of sexual assault, or failing that, to explain how I could continue to be devoted to halakhah. One sees an echo of this even in the response of Justice Salim Joubran when he asks, "עד כמה שאני מכיר את התורה נאמרים רק דברים טובים, איפה זה נאמר בתורה?" ("As far as I know the Torah, only good things are said [in it] -- where is this said in the Torah?"). In other words, I felt the weight of a moral and religious obligation to excavate and clarify halakhah.

I am deeply grateful to Dr. Hollander for her expertise, lucidity of thought on the issues at stake, and for the time she took to collaborate with me.


What a recent controversy about Israel’s chief military rabbi nomination can tell us about the relationship of Jewish law and ethics. A Conversation

Background:

The nomination of Rabbi Eyal Qarim to the office of chief rabbi of the Israel Defense Forces in July 2016 occasioned much outrage, and for good reason. Memories were still fresh of an earlier controversy occasioned by a responsum he had authored on a religious website. (Qarim has until now been serving as the head of the Rabbinate Department in the Military Rabbinate.) In a blog post as well as in the online +972 Magazine, the blogger and activist Yossi Gurvitz had in 2012 called attention to this responsum (dating from December 2002),1 which “seemed to imply that soldiers were permitted to commit acts of rape during wartime.” In response to the 2012 controversy, Qarim posted a clarification stating “that his original answer had been taken out of context and that he did not in fact condone rape at any time.”2 Despite the questionable responsum and several other views of Qarim that appeared to make him unsuitable for the position of chief rabbi (for instance, he had at one point opposed the service of women in the IDF), his nomination has been upheld by the IDF chief of staff.

As a scholar of modern Jewish philosophy (D.H.) and a rabbi and scholar of Jewish law (Y.L.Y.), we wanted together to shed some light on what this controversy, along with discussions of it on blogs and news sites, means for current understandings of Jewish law and ethics. (In this connection: let us emphasize from the outset that this conversation is not about the question of who should serve in the IDF’s rabbinate, or any question related to Israeli politics.) Reflecting our different backgrounds in relation to rabbinic/halakhic tradition and philosophical inquiry, we have pursued/staged our inquiry as a conversation.  

                                                                                                   

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DH: The controversy about the recent appointment of Rabbi Eyal Qarim to the position of Chief Rabbi of the IDF has many dimensions. On one level, such outrage would arise any time a political appointee has gone on record with statements that undermine the ethical-political values generally upheld by the state or the community—in this case, condoning the rape of captives.

But what propels me to pursue this experiment of a written public conversation with you as an expert in and scholar of Jewish law was something you said in our initial exchange about the discourse surrounding the offending text by R. Qarim: that that discourse typifies a larger tendency to, instead of engage with or investigate halakhic questions and sources, treat halakhah as belonging a realm that is separate from contemporary ethical or political reflection. Such a stance is reflected, for example, in the official reply issued by the IDF Spokesperson’s Office to calls from Knesset members and women’s rights organizations that the decision be revoked, which opens with the sentence: "Col. Qarim asks to clarify that his statement was issued as the answer to a theoretical question and not in any way whatsoever a question of practical Jewish law."3 Significantly, it seems that a tendency to view the two spheres as separate can accompany positions that reject or criticize halakhah just as easily as it can those that accept halakhah.

The purpose of this conversation, then, is

(1) to present, in their relevant contexts, R. Qarim’s offending claims, including those in which he appears to “correct” the supposed misperception of his original text;

(2) to indicate where those claims misrepresent the traditions they discuss and implicate; and

(3) to analyze both R. Qarim’s own argumentation and some of the public discussions of it4 as powerful illustrations of a tendency to separate halakhah from questions of ethical-political responsibility. As Paul Franks wrote in a blog comment on this topic, it’s not hard to imagine how this “story” could serve as an occasion for misunderstanding and defaming Jewish law or Judaism in general.

Let’s start with the original December 2002 responsum in which R. Qarim made his statement about rape during wartime. This was in a regular “Ask the Rabbi” column authored by R. Qarim on the religious website Kipa.5 (In fact, many of his responses in that column have come under scrutiny in relation to his current and prospective official role in the IDF6.) What was the actual question being posed to him on that occasion?

YLY: The questioner was troubled by an apparent contradiction in Jewish ethics. On the one hand, we easily recognize the wartime rape of Jewish women as an atrocity. On the other hand, it seems that Jewish law permits the rape of non-Jewish women in the context of the yefat to’ar — the “beautiful woman” in Deuteronomy 21:10–14 (parashat Ki Tetzei). The questioner wondered "how could it be?" and asked if this meant that it is "permitted in our times for the soldiers of the IDF, for example, to rape women during wartime?"

It is important to note that the detail of the question is entirely drawn from real-world scenarios: in the case of the rape of Jewish women, the First World War, and in the case of the rape of non-Jewish women, the IDF. We see vividly the questioner’s anticipation that theory will impact practice, and that practice can in turn teach us about theory.

DH: We’ll see in the course of our discussion how very much this stance contrasts with some of the justifications of R. Qarim’s answer offered by him as well as by others on his behalf. The questioner opens by referring to that notion of the yefat to’ar appearing in the Bible (“I read on this website about the shevuia yefat to’ar [captive ‘beautiful woman’]…”), which is also the name of a debated halakhic problem, and the questioner alludes to that debate when s/he explains the reason behind the question, which is that some poseqim (=deciders of halakhah) say that the “beautiful woman is permitted, even before the entire process described [in Deut. 21:12–14]”—i.e., the sequence according to which this woman is to be brought to the soldier’s house, “discard her captive’s garb,” be given a month’s time to “lament her father and mother,” after which “you may come and possess her, and she shall be your wife.” Is there a halakhic dispute, referred to by the questioner, about whether she “is permitted even before the entire process described”?

YLY: Yes. Rashi appears to believe that the yefat to’ar is only permitted after mourning, conversion, and marriage. But if so you might wonder what is the novelty here at all, since post-conversion the woman would be like any other giyoret, able to marry whom she pleases, except a kohen. Rashi's explanation for this is that since the yefat to’ar's conversion happened as the result of the solicitation and encouragement of others, even if she originally expresses disinterest (Rambam in Hilkhot Melakhim uMilhamot [= Maimonides, Mishneh Torah: Laws of Kings and Wars] 8:7), it is slightly suspect, as opposed to a conversion done with “a full heart” (Rashi, “Who would permit her to him, except...? Learn from this,” on bSanhedrin 32a). Ramban [Nahmanides] also cites this as the reason for the law (Ramban on Deut. 21:12, “And the reason for this section...”).

Tosafot, on the other hand, say that the yefat to’ar and the soldier are permitted one sexual encounter prior to any process, although they are expected to later marry properly, post-mourning and post-conversion (Tosafot, “Not to pressure her during war,” on bQidushin 22a). Maharsha [Samuel Edels, 1555–1631] follows this opinion. Tosafot do describe her conversion under such circumstances as forced (מגיירה בע"כ), which is unsurprising in the context of conversion in halakhic literature, which regards love, dreams, the desire to better one's social circumstances, and the desire to escape violent fates as inappropriate pressures on the convert which invalidate their conversion (bYevamot 24b). On the other hand, such motivations would not be considered unusual or undesirable in entering into marriage, let alone invalidating.

Rambam [Maimonides] takes something of a middle path. Their first sexual encounter may take place prior to mourning and conversion, but not until the soldier extracts her from the war zone and settles her in his house (Hilkhot Melakhim uMilhamot 8:5).

A disagreement between medieval authorities is considered a serious matter which must be navigated with caution.

DH: That, then, was evidently the halakhic debate that the questioner was referring to in posing this current, practical question to the rabbi, and which is reflected in the title that was given to that particular column: “Yefat to’ar in the Torah.” In particular, since the yefat to’ar scenario is one in which a Jewish soldier would capture a member of an enemy nation, the questioner is focusing on possible and actual battlefield encounters between Jews and non-Jews in modern times. S/he recalls “various wars among the nations, such as World War I for example” in which, although those nations were not “especially good toward the Jews or bad toward the Jews in particular,” one could envision that

if they conquered a village and there were Jews there and if they raped Jewish girls, this would be considered, rightly, to be a disaster and a tragedy for the young woman and her family. If so, then rape in wartime is considered to be a horrifying thing.

The question then is how this squares with the view of some poseqim that the sexual encounter with the yefat to’ar is permitted prior to her “naturalization”/conversion.

As a rabbi and scholar of halakhah, how might you yourself respond to this question if it were being put to you?

YLY: At the heart of the question was a sense of shock that the Torah could permit something morally horrifying. That shock requires urgent resolution. To reassure the questioner that the rape of a yefat to’ar is only theoretical does nothing to touch the problem of experiencing sacred text as permitting, perhaps encouraging, violation. Indeed, to say, as R. Qarim did in the “clarification” that he was prompted to write in response to the 2012 controversy, that "the world has progressed to a higher level of morality," only affirms that the original perception was correct: Torah is still, at best, less moral than we are.

This is one thing when talking, in a Rav Kook-ish way, about our evolution from the barbarism of war and animal sacrifice. But it is another when talking about true degradation. This distinction between something barbaric and something truly degrading is one that halakhah itself nurtures, as we see from the fact that the arayot (sexual transgressions) and idolatry are included alongside killing in the list of actions one must not commit to save one's life (bSanhedrin 72a). In fact, the sages went much farther than this when it came to sexual exploitation. When considering the case of a man who had fixated on a certain uninterested woman, even though the rabbis accepted that he would die unless she would speak to him, they responded, "Let him die, but she will not speak to him from behind a barrier" (bSanhedrin 75a, with parallel text in yAvodah Zarah 2:2).

So I would begin by taking the questioner through the basic sources about the yefat to’ar: the beginning of parashat Ki Tetzei, the two main sugyot7 in the Talmud (bQidushin 31b-32a, bSanhedrin 82a), Rashi, Tosafot, Rambam, a handful of other hidushim. The first thing I hope the questioner would notice would be the absence of rape in all of these discussions of the yefat to’ar. Nowhere in the Talmud, its circle of commentaries, or medieval codemakers, does it say that one may rape a yefat to’ar. (It is astonishing that this vital information has so far been wholly absent from the discussion.) What is being imagined instead is an exceptional circumstance in which a Gentile woman is permitted to a Jewish man. This explains why, in the halakhic literature, the yefat to'ar is taken up in the context of things that are usually forbidden, but become permitted in wartime. By contrast, the actions that are mandated toward those things remain mandated even in wartime. We can see this distinction at work in the Gemara:

יפת תואר לא דברה תורה אלא כנגד יצר הרע מוטב שיאכלו ישראל בשר תמותות שחוטות ואל יאכלו בשר תמותות נבילות (קידושין כ"א ע"ב - כ"ב ע"א)

The yefat to’ar was only mentioned in order to oppose the evil inclination. It is better that Jews should eat impure, properly-slaughtered meat instead of eating impure carrion. (bQidushin 21b–22a)

This is to say: we can imagine circumstances in which we might need to eat a prohibited animal, but we cannot imagine circumstances which allow us to relax our responsibility to that animal to deal with it justly (in this case, to give it the quick, painless, and mindful death of shehitah, rather than to kill it with uncontrolled cruelty). The passage acknowledges the “wicked” impulse of soldiers to treat foreign women in predatory ways, and opposes it: one must deal with them with all the ethical care with which one treats a female citizen. Hence the requirement to marry the yefat to’ar (obligating him to support her) and bring her into full citizenship in his community (via giyur), or else to give up all attempts to interfere with her life (Rambam, Hilkhot Melakhim uMilhamot, Chapter 8, Halakhot 3, 8–9).

(As a side note, I see nothing inappropriate about the Talmud’s choice here to compare the occupying soldier’s desire for women to the act of consumption. It is highly cynical, but the subject under discussion is war between patriarchal societies, millennia prior to reliable birth control. There is something inescapably consumptive about the relationship between men and women in such circumstances.)

There are further indications that the law of the yefat to’ar and its primary interpreters assume the continued impermissibility of rape.  Haza"l (=the sages of the Talmud) read the directive to bring the yefat to’ar to the man's home as the avoidance of an exploitative circumstance, explaining, "He shall not put pressure on her during the war" (bQidushin 22a). Rashi says this refers to sex, reading the text to prohibit not only explicitly nonconsensual sex, but also the solicitation of sex in an environment of danger and vulnerability. Tosafot, on the other hand, say that the “pressure” is being exerted on her to begin a complex routine of mourning. However, both sides of this disagreement take seriously the Talmud’s worry about “pressuring” (or “stressing,” לחצ) the yefat to’ar, something which would be a puzzling absurdity in the context of raping her.

Finally, we know that the rabbis were not simply too embarrassed to openly consider the possibility of rape in the context of the yefat to’ar, because they do discuss the legal implications of rape on relationships in other contexts. Perhaps the most notable example is yibum, where the sages consider the role of consent with regard to both the man and the woman in effecting a levirate marriage (bYevamot 43b–44a).

DH: Something of this “consumptive” logic, and the recognition of a possible “wicked impulse” among soldiers is present in R. Qarim’s answer from 2002, so in fact you’ve begun to fill in some of the missing pieces between the question as it was posed, and how he chose to answer it. As we’ve noted, the questioner first briefly alludes to a robust halakhic debate about the issue of the yefat to’ar — whether this captor could have sex with the captive without and prior to her being “naturalized,” as it were, i.e., no longer being a captive and under duress. Then, against the background of that debate, the questioner asks their pressing practical question about whether that halakhic possibility has a bearing on the conduct of present-day soldiers. How does R. Qarim answer this question in 2002?

YLY: The first two sentences of his response address the question of hypocrisy – whether tradition is against rape, or only against raping Jews. R. Qarim seems to affirm the latter. He says:

מלחמות ישראל – הן מלחמות מצוה והן מלחמות הרשות - הינן מלחמות מצוה. בז[ה] שונות הן משאר המלחמות המתנהלות באומות העולם, בינם לבין עצמם‪.‬

The wars of Israel — whether mandatory or optional — are wars of mitzvah. So they are different from other wars waged among the nations of the world among themselves.

and then goes on to discuss the yefat to’ar as a provision of the “wars of Israel”/“wars of mitzvah.” Here his language closely mirrors that which the questioner used to describe WWI ( במלחמות שונות בין העמים, כמו מלחמת העולם הראשונה, למשל, נלחמו עמים שונים ביניהם. "In various wars among the nations, for example WWI, nations fought among themselves”). R. Qarim is explaining that WWI and conflicts like it were different because no Jewish nation was participating.

R. Qarim goes on to describe other differences between prohibitions during peace and during a war of mitzvah, such as the ability of soldiers to drink wine which has become defiled through contact with idolatrous persons or rituals. Among these prohibitions which are lifted during such a war, R. Qarim lists sexual transgressions, גילוי עריות, meaning “intercourse with a non-Jewish woman” התחברות אל גויה. With this language, we can understand him to be referring to rape (even though the Hebrew term for ‘rape’, אונס, does not appear), i.e., to be addressing the matter of the question that he is answering. R. Qarim says that the reason these prohibitions are lifted is “to maintain the fitness of the army” (שמירה על כושר הלחימה של הצבא). This is an acceptable justification according to him: “Because war is by its nature not an individual matter but a nation fighting as a collective, there are situations in which the personhood of a private individual is ‘erased’ for the sake of the whole.”

The idea that raping people improves an army's “fitness” is a startling one, even if one were to grant the claim that this is an ethical goal worthy of erasing “personhood.” Sexual violence is in fact associated with increased unit cohesion, but largely through gang rape, and in armed groups who gain combatants through abduction.8 Needless to say, this is a radically different situation from that of the IDF, which indeed has been noted for its lack of sexual violence9, and also different from the classical model of the Jewish army, where as R. Qarim himself notes in his 2002 response, citing Deut. 20:8, anyone “afraid” or “soft-hearted” was released from service. I feel this is worthy of comment here because it is another indicator that R. Qarim's response was given based on unreflected intuition, without investigation either of rabbinic literature or real-world facts.

DH: In other words, when he makes these observations in his responsum — about the “value” of “preserving the combat fitness of the army” and about the combatants’ “good feeling” that must be preserved — Rabbi Qarim is drawing on a moral psycho-physiology of his own devising, on an “unreflected intuition,” as you say.

The questioner had asked about whether the yefat to’ar rulings amount to permitting rape during wartime. You have shown that one of the key Talmudic passages for understanding this law (bQidushin 21b–22a) sets a clear limit to predatory behavior toward foreign women in war, in parallel with setting limits on eating prohibited flesh. And, again, if I understand you correctly, R. Qarim at the same time also departs from this halakhic terrain when he justifies the exceptions that can be made by appealing to “values” such as “combat fitness” and “good feeling,” as well as to the idea that in war, the needs of the collective trump the needs of the private person.

In 2012, R. Qarim’s answer to the yefat to’ar question surfaced and was criticized in the media. In response, the website Kipa appended a statement to the bottom of the posted answer, announcing that a “clarification” of this earlier responsum had now been posted on the same website, directed to “those who are not proficient in the world of halakhah.”

(I wonder about what this 2012 statement implies about the supposed audience of the long-standing “Ask the Rabbi” column. Is an “Ask the Rabbi” column not per se directed at the non-expert? Or was it conceived as a conversation among experts? Presumably, experts have other fora in which to discuss points of halakhah. One would have to read this announcement of the “clarification,” then, as standing in for an earlier failure to, as you say, address the question of a layperson (albeit an educated layperson, since the question proceeds from a reference to the yefat to’ar debate) about actual moral demands in the battlefield.)

This was accompanied by two news stories on Kipa: The first bore the headline “Left-wing provocation attempts to claim that rape in wartime is halakhically permitted,” and was linked to the second, which was titled “Rabbi Qarim Clarifies: Certainly Rape is Prohibited in Every Situation — Halakhically and Ethically” and contained the text of his “clarification,” prefaced by similar words to those that were appended to the 2002 answer:

In response to a request for clarification of the matter [here a link to the first news article indicates that this request is occasioned by the “left-wing provocation”], for those who are not proficient in the world of halakhah:

It is only in this “clarification,” i.e., in response to the public outcry, that R. Qarim seems to “hear” the original question that was asked. His first sentence is: “Obviously the Torah never permitted the rape of a woman.” How does he now go about aligning his answer from 2002 with the question, which he treats as a new one, as one having come up only belatedly, of whether raping in wartime is permitted?

YLY: First, the “Ask a rabbi” section on Kipa is not at all scholarly. It is intended for ordinary people; the responses rarely if ever expound on rabbinic literature, and it has more the flavour of a halakhic agony aunt column — lots of personal questions and semi-casual answers which rarely cite sources. This couldn't be more different from a formal teshuvah (responsum) — compare what you read on the site with the intense review of sources found in the teshuvot of Rav Moshe Feinstein or Rav Ovadia Yosef. I find the suggestion that the 2002 answer was intended for an expert audience incredible.

Now for R. Qarim's 2012 update. It is confounding. He asserts that the Torah does not permit rape, but goes on to describe how it allows but discourages it, the discouragement happening through the routine of mourning undergone by the yefat to'ar. And as we previously mentioned, he goes on to say that we are now morally elevated beyond the “barbarian” circumstances that the law of the yefat to'ar was addressing.

At the same time, he repeats his previous answer in saying that personhood and its considerations may be “erased” for the sake of the “fitness” of the army. By the end of his response, is the reader more informed either in the relevant halakhah, or by ethical analysis? It is a re-tread of 2002 with a disclaimer that nowadays we are more moral. What about our society is more moral is not explained, nor does he spell out what if anything is different about our halakhic reality.

DH: Part of what makes the “clarification” confusing is that it reproduces in its entirety — but without quotation marks or some other marker — the original answer from 2002, but with a new preface, which, as you say, contains an ambiguous disclaimer about whether the Torah permits rape in wartime. This preface ends with a sentence that re-states what was supposedly the original question from 2002, in order to lead in to the pasted-in old answer:

Nevertheless . . . the question remains as to how the Torah permitted marriage to a non-Jewish woman in the context of war, and what follows is the response [i.e., R. Qarim’s original response –D.H.] that relates to that question:

But, as you’ve made clear, while the original question referred to the problem of the yefat to’ar, it did so in order to express incredulity: Surely it cannot be that these rulings mean that rape is ever permitted!? So in the “clarification,” R. Qarim at one moment — by way of humoring those who are “not proficient in the world of halakhah” — appears to hear the original question, and at the very next moment appears to forget that question, rewriting it as a question about the technical halakhic problem that is devoid of practical implications.

At this point of our analysis, I come away with a dizzying sense of just how many times in these two texts there is a tacit switching between the moral-practical register and the “merely” historic-rabbinic-technical-halakhic register, interspersed with disavowals that these switches are actually taking place at all. Furthermore, in the wake of the announcement of R. Qarim’s new appointment, some commentators have echoed the rationale behind the “clarification” published on Kipa: that those versed in halakhah will understand that his original answer never sought to address, nor needed to address, whether rape is ever permitted in wartime. The proper job of a responsum, they say — echoing the IDF Spokesperson’s statement quoted above — is merely “theoretical”; and its proper readership is restricted to those with the (presumably yeshiva) training that allows them to understand that it is merely theoretical.10 The implication is, first, that to be well-versed in halakhic discourse is equivalent to understanding that one does not mix practical-ethical questioning with halakhic inquiry; and, conversely, that for someone to raise a practical-ethical concern in relation to Judaism simply puts them outside accepted conversation about halakhah. Observing this discussion on his blog, Zachary Braiterman wonders about a “disjoint between halakhah and ethics.” The legal scholar Noah Feldman, in his BloombergView column on the topic, finds that “the deeper lesson is that today’s religious authorities need to apply current standards of morality if they want to make traditional religious sources relevant.” (Feldman also points out, as you do, that “Qarim should have at minimum told the questioner that” some authoritative interpretations of the yefat to’ar “outlaw battlefield rape,” and also that Qarim’s talk about “difficulties” faced by soldiers that would justify rape is foreign to the relevant rabbinic sources.) Similarly, the statement issued by the organization T’ruah: The Rabbinic Call for Human Rights against Qarim’s offending positions argues that interpretations on a legal matter of this sort must contend with its practical implications (or at least state explicitly that the interpretations are meant to be merely “theoretical”). In this conversation, you’ve shown a way to inquire into the halakhic sources regarding the yefat to’ar from the point of view of the actual ethical question being posed in the 2002 “Ask the Rabbi” column.

Perhaps you can comment further on what is at stake in this perception of a disjoint between halakhah and ethics.

YLY: It is confounding, because halakhah is itself a language of ethics. Just behaviour is not an outside concern to which halakhah occasionally yields, but its driving concern. This is best expressed by Rambam in his Epistle to Yemen:

...the essence of the Torah lies in the deeper meaning of its positive and negative precepts, every one of which will aid man in his striving after perfection and remove every impediment to the attainment of excellence. They will enable the masses and the elite to acquire moral and intellectual qualities, each according to his ability. Thus, the godly community becomes preeminent, reaching a twofold perfection. By the first I mean man's leading his life in this world under the most agreeable and congenial conditions. The second will constitute the gain of the intelligibles [wisdom - YLY], each in accordance with his native powers.

He contrasts this unfavorably with religious codes that take up the language of command and prohibition without a sense of human purpose, stating that “The pretentious religions contain matters that have no inner meaning” — even if they have a sense of divine “rewards and punishment.”11 We do not have mitzvot to please the inscrutable whims of God. Rather, God gave us mitzvot to live just lives; so we know our interpretation of Torah is correct when it leads to justice.

I must be careful to stress that I am not speaking of justice as some ultimate goal of halakhah; rather, halakhic language is ethical language. When halakhah considers marriage, for example, it considers the consent of those marrying, whether they understand the concrete realities of their incoming obligations to one another, and just as importantly, who is observing them (i.e. witnesses, a minyan, etc). It does not spill ink considering any sort of spiritual elevation or union with regards to the couple. It could not even entertain the idea that promises exchanged by lovers alone and in secret might constitute a wedding. (By contrast, Christianity did just that well into the sixteenth century, since it was concerned with a posited spiritual reality.12) The ethical obligations of human beings is the constant preoccupation of halakhah; instead of weddings I might have chosen anything, from laws of Shabbat to mourning to animal slaughter. I wish to praise R. Qarim's questioner for grasping this so well and assuming that one's moral impulse and Torah have something to say to each other. Not only this, but we see in the question a desire to resolve the dilemma in halakhic language, even if the questioner does not seem to possess the resources to articulate such a resolution themselves. All of this is very good. Neither questioners nor poseqim should shy away from such challenges, but should trust that they are answerable. Moral intuitions seem instant, almost instinctive, but they are made possible by a lifetime of absorbing not only one's observations but the teachings of one's tradition. For Jews that includes Torah and the voices throughout our lives of those who study its teachings. So that moral impulse, which can seem subjectively as though it is alien to the matter at hand, is returning to the site of its first hatching. We must trust that such an encounter will be fruitful.



1 ‪“‬לאנוס בשם צה"ל"(“To Rape in the Name of the IDF”) (March 28, 2012) and “IDF colonel-rabbi implies: Rape is permitted in war,” +972 Magazine (March 28, 2012) (both accessed July 2016).



2 The quoted descriptions are from Gili Cohen, “Army Names Controversial Figure as New Chief Rabbi,” Ha’aretz (July 12, 2016)



3 Quoted in “IDF's chief rabbi-to-be permits raping women in wartime,” Ynetnews (July 12, 2016). Emphasis added.



4 Caveat: Our knowledge of the public discussions that have taken place about Qarim and his appointment is necessarily limited, and we make no claims to completeness.



5 28 Kislev 5763 (=December 3, 2002) "יפת תואר שבתורה" ‪(“Yefat to’ar in the Torah”). http://www.kipa.co.il/ask/show/17251



6 As reported in “IDF's chief rabbi-to-be permits raping women in wartime,” op. cit.



7 sugya (pl. sugyot): pericope, unit of discussion in the Talmud



8 Dara Kay Cohen, “Explaining Rape during Civil War: Cross-National Evidence (1980–2009),” American Political Science Review, vol. 107, no. 3 (August 2013). Accessed 22 July 2016 at https://wcfia.harvard.edu/files/wcfia/files/cohen_apsr_2013.pdf



9 Lauren Wolfe, “Why soldiers rape — and when they don’t — in diagrams,” Women Under Siege Project. 25 July, 2014. Accessed 22 July, 2016 at http://www.womenundersiegeproject.org/blog/entry/why-soldiers-rapeand-when-they-dontin-diagrams



10 See for example Berel Dov Lerner’s series of comments on Zachary Braiterman’s blog post on this topic (July 12–13, 2016). However, it should be noted that by the end of the exchange, Lerner does acknowledge the ethical dimension and failure of Qarim’s 2002 response. https://jewishphilosophyplace.wordpress.com/2016/07/12/ethics-halakhah-israel-isis/ (accessed July 24, 2016).



11 Maimonides, "Epistle to Yemen," in Epistles of Maimonides. Crisis and Leadership, ed. David Hartman and A. Halkin (Philadelphia: Jewish Publication Society of America, 1985), 99–100.



12 Norman Tanner, New Short History of the Catholic Church (New York: Burns & Oates, 2011), 92.

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