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אלו נערות – for even though they are ineligible/invalid [as marriageable parners], they are assessed a fine. If a man perpetrated violence against one of them, he gives to her father fifty silver [coins].

Introduction Deuteronomy 22:28-29 states, “If a man comes upon a young girl, a virgin who is not engaged and he seizes her and lies with her, and they are discovered, the man who lay with her shall pay the girl’s father fifty shekels of silver and she shall be his wife. Because he has violated her, he can never have the right to divorce her.” The rabbis learn from these verses that if a man rapes a virgin he must pay her father a fine of 50 shekels, which is the equivalent of 200 dinars. Furthermore, he must marry her. Through a careful reading of the wording of these laws the rabbis concluded that this rule applies only to a virgin (betulah) who is also young (na’arah), which means any girl who has reached the age of 12 and has shown signs of pubery. A girl remains in this status for only six months. After that she is considered to have reached adulthood and one who rapes her does not pay the fine. Before we proceed, we should remember that the fine was only one payment made by the rapist to his victim. He also had to pay all of the damages that one pays for injuring another person. We should also remember that society’s attitude towards rape has changed drastically in the last century. Rape is a horrible crime and while we are discussing the technical aspects of who receives a fine and who doesn’t, we shouldn’t forget what we are talking about. Our mishnah teaches that a man must pay the fine to a woman even if he is not allowed to marry her.

הנתינה – from the Gibeonites and on account that Joshua made them choppers of wood and water carriers, they are called Netinim, and they forbidden to enter into the community [of Israel].

These are girls to whom the fine is due:
If one had intercourse with a mamzeret, a netinah, a Samaritan; The women in this section are forbidden in marriage to an Israelite. Our mishnah teaches that although they are forbidden in marriage, he still must pay them the fine. A mamzeret was defined in Yevamot 4:9. A netinah is a descendent of Temple slaves. The Samaritans were considered a splinter group by the rabbis and Jews were forbidden from marrying them.

על הכותית – This Tanna/teacher holds that Kutim are “lion-proselytes,” (i.e., proselytes from mere fear, with reference to II Kings 17:25) and are considered as heathens.

Or with a convert, a captive, or a slave-woman, who was redeemed, converted, or freed [when she was] under the age of three years and one day. It is assumed that a non-Jewish woman is not a virgin. Captives are assumed to have been raped and slave-women are also assumed to be non-virgins. Furthermore, as we have learned before, the rabbis thought that if a woman lost her virginity before the age of three years and one day, her physical signs would later return. Therefore if these women made the passage into being full, free Jews or were redeemed from captivity before the age of three, they are assumed to have returned to being virgins. Therefore, they receive the fine.

פחותות מבת שלש שנים – that is they have the legal presumption of being virgins, even though they had intercourse during captivity or while in a gentile status, their virginity returns.

If one had intercourse with his sister, with the sister of his father, with the sister of his mother, with the sister of his wife, with the wife of his brother, with the wife of the brother of his father, or with a woman during menstruation, he has to pay the fine, [for] although these are punishable through kareth, there is not, with regard to them, a death [penalty inflicted] by the court. The women listed in this section are forbidden to a man, and having relationship with them is punishable by kareth (a punishment inflicted by God and not by the court). Since the court does not execute the man for having had intercourse with these women, he is liable to pay the fine. Note that in order for him to be liable to pay the fine, these women cannot be married nor have been married. The only situation that he will be liable to pay the fine for having intercourse with one of these women is if they were betrothed to one of these men and then divorced or widowed before proper marriage. Had they been married when he raped them, he would be liable for the death penalty for having committed adultery. Had they been fully married and then divorced or widowed, they would not be considered virgins, and hence he would not be liable to pay the fine.

ועל אשת אחיו ועל אשת אחי אביו – that she was betrothed to one of them or divorced from betrothal, and she was still a virgin.

שאע"פ הן בהכרת אין בהן מיתת ב"ד – and extirpation does not exempt from payment/indemnity, and these words [apply] where there had been no warning but if they ad been warning, one is exempt from the fine, for hold that those who are liable for extirpation who had been warned are flogged, for no one is flogged and pays a fine.

יתריות על בנות שלש שנים – for since they are appropriate for coition with the legal presumption that they are ownerless, and they had intercourse in their gentile status, and the captive woman while she is in her captivity.

Introduction This mishnah teaches those cases opposite of those mentioned in yesterday’s mishnah.

הרי היא בקדושתה – and she is not in the legal status of one no longer a virgin even though she had been taken captive while she was an adult, but the Halakha is not according to Rabbi Yehuda.

And in the following cases there is no fine:
If a man had intercourse with a female convert, a female captive or a slave-woman, who was redeemed, converted or freed after the age of three years and a day. Rabbi Judah says: a female captive who was redeemed is considered to be in her state of holiness (a even if she is of majority age. In these cases the women are assumed to be non-virgins, and hence do not receive the fine. Rabbi Judah rules that any captive who is redeemed is assumed not to have been raped and is therefore a virgin.

ולא יהיה און ענוש יענש – surely if there will be an accident with one of these two people who are arguing that one of them was killed , the person who killed is not punished monetarily for he is liable death penalty by the Jewish court because they killed this one, there is no difference regarding the sin which makes one liable for death by the Jewish court whether inadvertently or willfully, is always exempt from payment/indemnity, but concerning a transgression where one is liable for extirpation through it, or stripes/flogging, he is not exempt from payment/indemnity until there will be witnesses and warning and he will be flogged and then does not pay.

A man who had intercourse with his daughter, his daughter's daughter, his son's daughter, his wife's daughter, her son's daughter or her daughter's daughter does not pay the fine, because he forfeits his life, for his death is in the hands of the court, and he who forfeits his life pays no monetary fine for it is said, “And yet no other damage ensues he shall be fined” (Exodus 21:2. Having intercourse with these women is a capital crime. Since the man is liable for the death penalty, he does not pay the fine, for there is a principle that one cannot be executed and pay a fine. This is learned exegetically from the words in Exodus 21:22. The case under discussion is when a man strikes a woman causing her to miscarry. The Torah states that if there is no other “damage”, then he must pay the fine. The interpretation is that if the woman herself doesn’t die, then the striker pays a fine for having caused her to miscarry. Had she died, the striker would have been a murderer and would not have paid the fine. Note that this is true even if the damages were caused accidentally. Although one cannot be executed for an accidental murder, the rule of the Mishnah is that anytime a person commits a crime which is punishable by death had it been committed with intention, he is exempt from the fine.

רבי יוסי הגלילי אומר אין לה קנס – as the Biblical verse states (Deuteronomy 22:28): “[If a man comes upon a virgin] who is not engaged [and seizes her and lies with her, and they are discovered],” but if she is engaged one time, furthermore, there is no indemnity.

Introduction In the chapter that describes rape in Deuteronomy the Torah refers to a “young girl, a virgin who has not been betrothed”. As we stated above, the rabbis understand that this verse means that the laws of paying the fine are limited to a “young girl” that is a girl between the ages of 12 and 12 ½ and a virgin. Our mishnah discusses the meaning of the phrase “who has not been betrothed”.

רבי עקיבא אומר יש לה קנס וקנסה לעצמה – since we expound upon “who is not engaged” (Deuteronomy 22:28) to her father, but she is engaged to herself, and the Halakha is according to Rabbi Akiva.

A girl who was betrothed and then divorced Rabbi Yose the Galilean says: she does not receive a fine. Rabbi Akiva says: she receives the fine and the fine belongs to her. In the case in this mishnah, a girl was betrothed and then either widowed or divorced, and then she was raped. The question is does she receive a fine?. Note that if she was betrothed but not divorced or widowed and someone raped her, he would be liable for the death penalty for having committed adultery (she would of course not be liable since she did not willingly commit any crime). In this case, since he is liable for the death penalty, he does not pay a fine. According to Rabbi Yose the Galilean since the Torah states, “who has not been betrothed” the rapist in this case does not pay the fine. Rabbi Akiva reads the phrase “who has not been betrothed” to be a stipulation for when the father receives the fine. If she has never been betrothed, then her father receives a fine. If she has been betrothed, but she is still a virgin, for instance she was divorced or widowed before full marriage, the rapist is liable to pay a fine and he pays it directly to her.

האונס נותן את הצער – someone who had intercourse by compulsion is not the same as someone who had intercourse willingly, and the seduced woman does not have pain, for regarding ‘’suffering,” in the Torah concerning compulsion, but “suffering” is not stated regarding a seduced woman.

Introduction The Torah discusses the “seducer” in Exodus 22:15-16: “If a man seduces a virgin who has not been betrothed and lies with her, he must make her his wife by payment of a bride-price. If her father refuses to give her to him, he must still weigh out silver in accordance with the bride-price for virgins.” The rabbis learned that the bride-price referred to in these verses is the same as the 50 shekels referred to in the verses which discuss the rapist in Deuteronomy 22. Therefore, both a seducer and a rapist must pay a fine of 50 shekels to the father, equivalent to the bride-price which the father would have received had he married her off in a typical fashion. Our mishnah discusses the other types of payments that the rapist and the seducer must pay and other differences between the two.

והאונס נותן מיד – to her father, even though he married her/consummated a marriage by conducting a woman to his house.

The seducer pays three forms [of compensation] and the rapist four. The seducer pays compensation for embarrassment and blemish and the fine; The rapist pays an additional [form of compensation] in that he pays for the pain. The seducer pays three types of payment: 1) for having shamed her; 2) for having caused her to be “blemished”; 3) the fine. The first two of these types of payments will be described in greater detail in mishnah seven. The rapist must make an additional payment for the pain he has caused her. Since the women willingly had relations with the seducer, he does not pay for the pain.

לכיוציא – meaning to say that if he will not marry her/consummate a marriage by conducting a woman to his house, for if he does not marry [her], he doesn’t pay the fine, as it is written (Exodus 22:15): “[If a man seduces a virgin for whom the bride-price has not been paid, and lies with her] he must make her his wife by payment of the bride-price,” and “if her father refuses [to give her to him], he must weigh out the silver [in accordance with the bride-price for virgins]” (Exodus 22:16); but concerning the rape, it is written (Deuteronomy 22:29): “[the man who lay with her] shall pay the girl’s father fifty [shekels of] silver and she shall be his wife.”

What [is the difference] between [the penalties of] a seducer and those of a rapist? The rapist pays compensation for the pain but the seducer does not pay compensation for the pain. The rapist pays immediately but the seducer [pays only] if he dismisses her. The rapist must “drink out of his pot” but the seducer may dismiss [the girl] if he wishes. The mishnah now relates three differences in the penalties of a seducer and those of a rapist. The first was already mentioned above. The second is that a rapist must pay immediately, whereas the seducer pays only if he decides not to marry her. This difference is derived from the fact that with regard to the seducer the verse states, “If her father refuses to give her to him, he must weigh out silver” (Ex. 22:16). By inference we can conclude that if the father does not refuse, then the seducer does not pay. In contrast, Deuteronomy 22:28 states, “The man who lay with her must pay the girl’s father fifty shekels of silver.” In this case the ruling is stated unconditionally. Hence he must pay whether or not the father allows the couple to remain married. The final difference is that a rapist is not allowed to initiate divorce against the woman. This is derived from the Deut. 22:28, “Because he has violated her, he can never have the right to divorce her.” In contrast, the seducer is allowed to divorce his wife. [I realize that the idea that the victim of a rape would somehow be rewarded by the rapist having to marry her and never being allowed to divorce her, sounds cruel to our modern sensibilities. However, if we understand that we are talking about a society where a woman may have been “ruined” and hence unable to get married after having been raped, we will realize that the intent of the law is to protect the woman. By forcing him to marry her, the Torah affords her the economic protection of a husband, economic protection that may have been quite necessary in ancient society.]

שותה בעציצו – in a despised utensil that he chose for It, meaning to say, he is forced to marry her.

מוכת שחין – a leprous woman.

Introduction The final clause of the previous mishnah stated, “The rapist must “drink out of his pot”, meaning that the rapist must marry the woman whom he raped. Our mishnah elaborates this law. As an aside, we should note that even though he must marry her, the woman is of course given the right of refusal, as is the father.

What is meant by “he must drink out of his pot”?
Even if she is lame, even if she is blind and even if she is afflicted with boils [he may not dismiss her]. The rapist must marry the woman whom he has raped, even if she has some physical handicap that makes him not want to marry her. He lost his right to decide whether or not he wanted to marry her when he raped her.

If she was found to have committed a licentious act or was unfit to marry an Israelite he may not continue to live with her, for it is said, “And she shall be for him a wife”(Deut. 22:29) a wife that is fit for him. However, he may not marry a woman who is halakhically forbidden to him. After all, if this were not so, a man could rape a woman and thereby allow himself to marry a woman who would have otherwise been forbidden to him. The mishnah lists two types of such women. The first is a woman who “has committed a licentious act”. This refers to a woman who committed adultery after he had married her. As is always the case, a husband may not continue to live with his wife if she had committed adultery. If in this case, the rapist married the woman and then she committed adultery, he may not remained married to her. The second example is a woman who is not allowed to marry an Israelite, such as a mamzeret or a natinah. If he raped such a woman, he may not marry her, and if he did marry her, he must divorce her. Similarly, if he was a kohen and he raped a divorcee, he is not allowed to marry her. This halakhah is derived from a midrashic reading of the words “And she shall be for him a wife”, which are read by the rabbis to mean that the woman must be halakhically “fit” to be his wife. If she is not, he is allowed to divorce her.

יתומה שנתארסה ונתגרשה האונס חייב והמפתה פטור – for since she is an orphan and her fine is hers, the logical support is towards him, for of her own free will she was seduced to him and he is exempt. But not only an orphan, but rather, any young woman who was betrothed and divorced, the rapist is liable and the seducer is exempt like the orphan-girl, for the fine is for herself, as is stated by Rabbi Akiva above (in Mishnah 3 of this chapter) and such is the Halakha.

Introduction This mishnah teaches that if the girl herself receives the fine, then she only receives it if she is raped. If she consents to having relations with the man, he does not pay the fine.

An orphan who was betrothed and then divorced Rabbi Elazar says that one who seduces her is exempt but one who rapes her is liable [to pay the fine]. In the case in this mishnah the fine surely would go to the girl, for her father is no longer alive. In fact, the Talmud explains that the despite the fact that the mishnah refers to an orphan, this mishnah actually refers to any girl who was betrothed and then divorced or widowed, and that the mishnah is according to the opinion of Rabbi Akiva in the previous mishnah. A girl who was betrothed and then divorced is called “an orphan while her father is still alive” because once she is betrothed, she is out of her father’s domain. In this case, if she was seduced then the man does not pay the fine because she consented. If raped he must pay the fine, as Rabbi Akiva stated in yesterday’s mishnah.

הכל לפי המבייש – an average person who shames, his shame is harder than a despised person and/or from an important person. This is what I found in the explanations of my teachers. But in the [eight chapter of Bava Kamma], the Chapter of החובל /One who causes injury, I found that a simple person who is shamed, his shame is greater, and this is the essence (see the statement in Tractate Bava Kamma, Chapter 8, Mishnah 6: זה הכלל: הכל לפי כבודו – This is the general principle: Everything is according to one’s station/status).

Introduction This mishnah deals with three types of payment that the seducer must pay: embarrassment, blemish and the fine. These were listed above in mishnah four.

והמתבייש – according to his importance is his shame.

How is [the compensation that is paid for] embarrassment [reckoned]? It all depends on the status of the offender and the offended. Embarrassment is relative to the social standing of the woman and the man. The higher the social standing of the woman, the higher this payment will be, and the lower the social standing of the man, the higher the payment will be. Others explain that a man of higher social standing will pay a greater payment because he embarrasses the woman more.

כאילו היא שפחה – we appraise how much a man wants to give whether for a virgin maidservant or for a maidservant who has had intercourse to marry her to his servant whose master has satisfaction from him. And in the Gemara (Tractate Ketubot 40b) raises a question: from where [in the Torah] do we learn that he pays for shame, and damage and pain? I would say that the All-Merciful said (Deuteronomy 22:29): “fifty [shekels of] silver,” to all the words and he answers, Scripture states (Deuteronomy 22:29): “The man who lay her shall pay the girl’s father fifty [shekels of] silver,[and she shall be his wife].” The pleasure of lying is separate, the fifty [shekels of] silver is outside of the shame and the damage and the pain.

How is [the compensation that is paid for] blemish [reckoned]? She is regarded as if she were a slave to be sold in the market place [and it is estimated] how much she was worth then and how much she is worth now. The blemish of a woman raped is calculated the same way that blemishes caused by other types of injury are calculated. An estimate is made how much she would have been worth as a slave sold on the market before she had relations (either by seduction or rape) and how much she was worth afterwards. This is the same way that an estimate would be made for a payment for blemish if, for instance, someone cut off someone else’s hand. What is somewhat puzzling is why a virgin slave would be worth more than a non-virgin slave. The Talmud supposes that a master may want to purchase a female virgin slave on behalf of his trustworthy male slave, one whom he might want to “reward”.

The fine is the same for all. And any sum that is fixed in the Torah remains the same for all. Any fine that is given a fixed sum in the Torah, is fixed and can never be raised or lowered. Such is the case with the bride-price. Therefore, a seducer will pay a fine of 50 shekels whether he has relations with a poor girl or with the daughter of a king. Other examples of fixed sums in the Torah are an ox that kills a slave (Exodus 21:32) and a husband who makes a false virginity claim against his wife (Deut. 22:19).

כל מקום שיש מכר – to the father regarding his daughter, that is, while she is in her youth, he has no fine in regard to her, for there is no fine for a minor. But the Halakha is not like this Mishnah, for this Mishnah is according to Rabbi Meir who states that a minor girl has no fine, but the Sages state that a minor girl has a fine. And a minor girl in this regard is someone from age three until age twelve years and one day who brings forth two [pubic] hairs.

Introduction According to Exodus 21:7 a father has the right to sell his daughter into slavery. In interpreting this verse, the rabbis limited this right to when she is a minor, meaning before she both achieves puberty and reaches the age of 12 years [that is to say, one who has reached puberty but is not yet 12 or is 12 but has not reached puberty is still considered a minor]. After this age she is considered a “young woman” (na’arah) and her father may no longer sell her. It is at this age that if she is raped or seduced her father receives a fine. The period in which a woman is considered a “na’arah” can be no longer than six months. After this period, she has reached what was considered to be majority age, and there is no fine incurred by one who rapes or seduces her.

וכל מקום שיש קנס – when she is a young woman and this is when she is from twelve years and one day old and she brought forth two [pubic] hairs – like this she has a fine.

Wherever there is the right of sale there is a fine and wherever there is a fine there is no right of sale. In the case of a minor there is the right of sale and there is no fine; In the case of a young woman there is a fine but no right of sale. In the case of a girl who has reached majority age there is no right of sale and there is no fine. When a girl is of an age where her father may sell her, according to our mishnah one who rapes or seduces her does not incur a fine. This is learned exegetically from the fact that Deut 22:28 which discusses the fine for rape uses the word “na’arah”. The mishnah concludes that only one who rapes or seduces a “na’arah” incurs the fine and not one who does so to a minor. We should note that according to the Talmud this mishnah is only Rabbi Akiva’s opinion. The other sages held that one who rapes or seduces a minor is also liable to pay the fine. When the girl reaches the age of being a “na’arah”, her father can no longer sell her, because Exodus 21:7 refers only to minors. However, at this age one who does rape or seduce incurs a fine. Finally, six months after becoming a “na’arah” a girl becomes a “bogeret”, one who has reached majority age. At this point her father loses most of his rights vis a vis her. He can no longer marry her off or sell her. She is legally independent. One who rapes or seduces her does not incur a fine.

אין מכר – for a man does not sell her daughter when she is a young woman.

הבוגרת – from twelve years of age and six months and one day, and she has brought forth two [pubic] hairs, she is what is called a mature woman and her father cannot sell her and she does not have a fine.

האומר פתיתי את בתו של פלוני – needless to say the person who states I raped [her], that he does not damage her so much for there is no such great evil talk of an outraged woman (i.e., who had been raped) for it is self-evident that he pays shame and damages by his own testimony [but rather] even a person who says, “I seduced [her], causes her greater damage for the evil talk of a seduced woman is greater, and you might think I would say that we don’t believe him to attach merit to the evil report, it comes to teach us that it is beneficial to her for herself to attach merit to the evil report in order to profit from the money

Introduction The concept taught in this mishnah is that one who admits of his own accord that he has committed a crime, without before having evidence brought against him, is exempt from paying the fine. He must, however, pay any penalties that are compensatory and not considered fines.

ואינו משלם קנס – for he admits that with regard to a fine, he is exempt, as Scripture states (Exodus 22:8): “He whom God declares guilty [shall pay double to the other],” except for one who accuses himself (see Talmud Bava Kamma 64b).

He who declares, “I seduced the daughter of so-and-so” must pay compensation for embarrassment and blemish on his own admission but need not pay the fine. If a person admits that he seduced someone’s daughter he does not pay the fine. He does, however, make the other payments.

המית שורי את פלוני – and behold I am liable for indemnity through his own [testimony], for he holds that the fine is an indemnification.

He who declares, “I have stolen” must make restitution for the principal on his own evidence but need not repay double, fourfold or fivefold. A thief is liable to pay back double the amount which he stole. If he slaughtered or sold the animal he must pay back four or five times its value. The double, fourfold and fivefold payments are fines, whereas the restitution for the principal is not a fine. Therefore, if a man admits to having stolen something, he only pays the principal.

עבדו של פלוני – and behold I am liable thirty Selah, he is exempt, for they are a fine and even if it is not worth a Selah, he gives thirty [Selaim].

[He who declares,] “My ox has killed so-and-so” or “the ox of so-and-so” must make restitution on his own evidence. [If he said] “My ox has killed the slave of so-and-so” he need not make restitution on his own evidence. If a person’s ox kills someone or someone else’s ox, the ox owner must make financial restitution (see Exodus 21:30). This is not considered a fine and therefore if a person admits that his ox killed another ox or a human being, he must make restitution. However, if an ox kills a slave there is an automatic penalty of 30 shekels (see Exodus 21:32). Since this is a fixed sum, a person who admits that his ox did so is not liable to pay the fine.

This is the general rule: whoever pays more than the actual cost of the damage he has done need not pay it on his own evidence. The mishnah now sums up what we learned above. If a person is liable to pay a fine that is more than the actual damage, or actually a sum that is set arbitrarily and is independent of the damage, he doesn’t pay upon his own admission. The reasoning behind this may be that fines are in order to prevent the person from committing another crime. Therefore, if he comes forward and admits to what he has done (and it was not otherwise known) the need for a penalty does not exist. On the other hand compensation is needed for the loss incurred by the victim and therefore compensatory penalties are paid in any case.