Rape, the Agunah problem, and Bernard Jackson
by Jeremy Rosen
The treatment of women around the world today remains a blot on humanity. That an Indian judge can counsel a rape victim to marry her abuser beggars belief. The Bible compared rape to murder. The narratives of the rapes of Dinah in Genesis and then Tamar in Samuel 2, whatever else they show, clearly condemn rape. Now it is true the Bible also allows for the rapist to marry the victim; but, ladies and gentlemen, that was three thousand years ago. Consent became embedded in Jewish law before the Common Era. Sadly, half the world and its religions haven’t progressed since then!
Women didn’t get the vote in the UK until 1918, and in the USA in 1919. Switzerland didn’t give the vote to women until 1971–even then, one state held out until 1990. Women were not allowed to take Oxford degrees until 1920. In some prehistoric groups, arguments continue about the size of the female brain and the limitations of female intellect. Nowadays it is clear that women are even more able to gain academic degrees than men. In the USA, four women graduate for every three men. They achieve the highest of offices, run countries, control major companies. And if their numbers at the top are proportionately low, let us not forget that in addition to holding down jobs, most of them actually carry, bear, and rear children.
I was brought up in patriarchal society and a patriarchal home. I have to admit that the Jewish community (as well as the secular) reinforced this absurd and damaging mindset. Modern values have indeed brought us progress (as well as negative side effects). Yet I am ashamed to say that in the very center of my religion women are still treated as secondclass citizens. I concede that the innovations the rabbis introduced two thousand years ago to protect women and preserve their dignity were way in advance of the rest of the world. But in recent generations we have fallen a long way behind. Very few things make me more ashamed of my own religion than the fact that women are still subject to men on matters of divorce. The ensuing blackmail they are too often subjected to is a gross stain on our tradition. The stain of the Agunah was once upon a time simply a matter of men disappearing through force majeur. Now it is overwhelmingly the result of male vindictiveness.
Biblical law also insists that men only inherit their parents estate (unless there are no males). And that technically remains the law. But for a very long time Jewish law has offered plenty of ways round it, such as allocating assets before one’s death or a device for dividing up the estate equitably known as “The Wishes of a Dying Man.” But the issue of the Agunah remains intractable.
Of course I know most religious women are happy with their lot, and most religious husbands are considerate, caring, and supportive. And I recognize that women, too, can use laws for their own benefit and often exercise as malevolent a power as the men. But a religion, any moral system, must be judged by how it treats the weakest, the most disadvantaged of its members, and on this score we are failing.
The Jewish Law Association has just published the proceedings of the Fordham Conference of 2012. There the noble, brave, and persistent Professor Bernard Jackson, one of the unsung moral heroes of our halachic age, presented the summation of years of serious academic by the Agunah Research Unit of the University of Manchester. With little fanfare, he and his team explored every aspect and possible halachic solutions to the problem and offered answers. You can see the work at this link. In my opinion, it is a scandal and a desecration of God’s Name that two years later nothing has changed.
There is also a fascinating piece by Rachel Levmore on “the Agreement of Mutual Respect”, a specifically Israeli attempt to solve the problem. Nevertheless, the refusal of halachic authorities to tackle the issue directly and forcefully instead of relying on secular systems to clear up the mess remains a moral and halachic failure.
It is equally depressing that the late Rav Eliyashiv sought long and to the end of his life to resolve the issue yet sadly all his work ended with his passing.
Without a Get, freely given by her husband, a woman cannot remarry. As secularism destroyed the power and authority of autonomous Jewish courts (not necessarily always a bad thing) many husbands simply refused to give religious divorces because they disdained the religious world and wanted to escape it or ignore its demands on them. Then, as commercialism infected everyone, even the most outwardly pious of husbands suddenly realized they could gain financial advantage by refusing to give a religious divorce. As the secular world made divorce easier, more Jewish women gained their freedom judicially from abusive, oppressive, or incompatible husbands. But they then often found themselves tied by their inability to remarry because their husbands blackmailed them over a religious divorce.
You might have thought the combined genius of religious brainpower could resolve the problem. But no such thing happened. In my opinion this is because any pressure seen to be coming from a liberal secular world is perceived as automatically suspect and antireligious. So the Orthodox rabbinic leadership–even its supposedly most open, articulate, and “modern” voices–have just clammed up. If ever there was proof of the moral failure of religious leadership, this issue must be it.
One solution was to use secular courts to enforce Jewish law–an abdication of our responsibility to clean up our own messes. Modern Orthodoxy has tried valiantly to deal with the issue through prenuptials. But the Haredi world has refused to make any concessions.
I am a great believer in equality before the law, and in 99% of Jewish civil law this is so. Just not in matters of evidence and divorce. Regardless of the historical and social reasons, the fact is that nowadays this is simply morally unacceptable and makes us appear ethically deficient rather than “a light to the nations.”
The real battle, that affects lives, not options, is over the Agunah. Until that issue is addressed, I have to say that I love my religion but I am ashamed of its religious leadership for failing to tackle the issue head-on. And I am deeply depressed that Professor Jackson and his team have received neither the kudos nor the reaction they deserve.