Congregation Netivot Shalom

Parashah Ki Tetze
Deuteronomy 21.10-25.19
Delivered on September 9, 2000 / Elul 9, 5760
Jenny Ring

I chose to speak on Ki Tetze because I thought it would probably force me to think about some of the central issues that trouble me as a feminist, and a scholar of feminist theory, who is also trying to be an observant Jew. It did. Rachel Adler, in her fine book, Engendering Judaism, encapsulates the dilemma of trying to find a space as a Jewish woman that neither accepts oppression and patriarchy, nor rejects what is central to Judaism. She writes:

To maintain that the very concept of religious law...is incapable of addressing Jewish women requires, in effect, a rejection of covenant, a repudiation of what is central to Jewish tradition, and a denial of common ground with Jewish men. At the same time, because halakhah has been the major means by which Jewish women have been oppressed and marginalized, even the most traditional of feminist Jews approach it with a hermeneutics of suspicion ....The question is whether these traditions are incapable of gender justice. (45,49)

Or more vividly, she expresses the Jewish feminist dilemma when she says, As a Jew, I ask, what is it that should impel me to turn away from the Seder table saying, 'That has nothing to do with me,' and say instead to Mary Wollstonecraft and Doris Lessing, 'You are my people and my heritage'? (50)

Turning to this morning's parsha, the Jewish Publication Society Commentary refers to Ki Tetze as Miscellaneous Laws, Mostly About Civil and Domestic Life. And indeed, the miscellaneous aspect, the minutiae addressed in this section, provides a sense of how central Jewish law was and still can be, to Jewish life. Issues addressed by the laws in this section include: Marriage With a Woman Captured in War, The Right of the Firstborn (son) in a Polygamous Family whose mother is not the favored wife, Punishment of an Insubordinate Son, Building a Parapet on the Roof of your house, Treatment of Mother Birds when Capturing her Young, Not Wearing Clothing of the Opposite Sex, Paying Wages on Time, Prohibition on Lending At Interest to Jews, the Right to Eat from a Neighbors Unharvested Crops, Not Muzzling an Ox When it is Threshing, and the Wearing of tsitsit.

A number of these issues are pretty obviously archaic. For example, 23:25, 26, When you enter another man's vineyard, you may eat as many grapes as you want, until you are full, but you must not put any in your vessel, probably has little applicability today, especially in an urban setting. (Although doggy bag...) The rather horrifying 21:18-21 If a man has a wayward and defiant son, who does not heed his father or mother and does not obey them even after they discipline him, his father and mother shall take hold of him and bring him out to the elders of his town at the public place of his community. They shall say to the elders of his town, >This son of ours is disloyal and defiant; he does not heed us. He is a glutton and a drunkard.' Thereupon the men of his town shall stone him to death, was apparently not often implemented even during ancient times, and regarded more as a deterrent than anything else.

There's a corresponding law for wayward daughters, although the worst crime imaginable for a young woman was not gluttony and alcoholism, but to have sex before she was married. It was a capital offense. 22:20,21, But if the charge proves true, the girl was found not to have been a virgin, then the girl shall be brought out to the entrance of her father's house, and the men of her town shall stone her to death...

Some of the archaic laws are still useful metaphorically, or instructive when context is added, even though no longer taken literally. But I would like to raise a question this morning about whether the laws pertaining to marriage, gender and sexuality are treated differently than the various other laws with which they are interspersed. While they probably strike a contemporary, progressive-minded reader as archaic, patriarchal, and also as inapplicable to contemporary life as such, is there a tenacity about gender laws that make them more difficult to confront than, for example, the law about not going into the house of someone who owes you money when you go to reclaim a debt (24:10)? It is clear from some of the laws in this section, that there was concern for the humane, generous, and nurturing treatment of animals, neighbors, slaves, aliens, and the poor. Was equal generosity extended to Jewish women? And if we can 'bend' the laws about eating grapes and loaning money and still be observant Jews, can we also reinterpret the laws regarding sexuality and gender roles?

One hint of the particular difficulty of reinterpreting the sexual laws is reflected in the commentary, which introduces the laws pertaining to women in these terms: Several laws in this section reflect Deuteronomy's concern for the welfare of women. Our own translation notes approvingly of 22:22, There is to be no double standard of conjugal morality in Israel. This refers to the law the calls for the death of both a man and a woman married to another man if they are found to be having sexual relations with each other. The commentary does not notice that the marital status of the man is irrelevant, while the marital status of the woman means everything.

Nonetheless these laws are regarded as protective of women: they comprise a sort of Biblical bill of women's rights. What sorts of rights were being protected, and what sort of welfare was being looked after?

The order in which this section was put together appears haphazard to me, but I am sure that better-versed biblical scholars than I have made sense of it. I wonder if the jumble of laws didn't serve as a camouflage for a recurring and disturbing theme: sexual issues that might have been as troubling in ancient times as they are today.

Consider 22:5, which prohibits Wearing the Clothing of the Opposite Sex. Directly after the injunction to help a man raise an ox that has fallen on a road (22:4), it is written A woman must not put on man's apparel, nor shall a man wear woman's clothing; for whoever does these things is abhorrent to the Lord your God. (22:5). Possible reasons suggested by commentary are that disguising oneself as a member of the opposite sex might facilitate mingling with them and hence facilitate fornication. Others think that transvestism is inherently abhorrent, either because it blurs the sexual differences that God created or because it is a perverse means of sexual stimulation or homosexual role playing...

One Jewish feminist scholar notes that it's difficult these days to know what apparel is men's and what is women's, since traditionally male clothing, such as trousers, jeans, shirts, vests, jackets, suits, hats, boots, and so forth, are explicitly made for women, by women's clothing manufacturers, often at extravagant prices. In the current issue of Lilith, an American Jewish woman in Israel is challenged by a man for wearing a kippah. He tells her, disapprovingly, that it's a male article of clothing, and she points out to him that it is knitted of pink and white wool, with flowers as decor. When my daughters were toddlers, I remember being amused by the fact that all sorts of traditionally 'boy' clothes, such as denim overalls and blue jeans, and sneakers and little boots with lug soles, obviously intended to free modern girls for rough and active play, were either color coded in 'girls' colors, or had a ruffle or a bow added somewhere B on the overall straps, or around the tops of the tough little pink and lavender boots or athletic shoes. So are they girls' apparel, or boys'? And why are we so determined to make the distinction? Especially when we now have fashionable gender-neutral names such as Tyler, Taylor, Carson, Jordan, Morgan, Casey, Stacy, and so forth?

Or perhaps, as Rabbi Howard Eilberg-Schwartz suggests, the need to ensure by law that men and women cannot be confused with one another has more to do with gender insecurity among the men who wrote the laws. In his book God's Phallus, Eilberg- Schwartz discusses the conflicts created especially for Jewish men by a God conceptualized as both male and without a body. Rabbi Eilberg -Schwartz sees in the Jewish male dilemma with God's incorporeal maleness a major source of the need to exclude women from closeness to God. He writes:

Once God was imagined as male, he assumed male qualities, including sexual qualities. In ancient Judaic culture...this implied heterosexual desire, which seemed to deny men a place as God's intimates. Women's otherness from God is precisely what made them his expected partners. They had to be excluded from the cult because they challenged the male connection with God. (142 E-S)

Some of you may recognize this as a reversal of the more 'traditional' feminist theological position that assuming that God is male deifies the male body as pure and godlike, while abhorring the female body as different from God, too corporeal, not spiritual enough to be godlike.

The exaggerated need to ensure that men and women not be confused with each other may be either the cause, or the result of the different conception of female 'personhood'. Parshat KiTetze addresses issues that are inevitably gendered, and which have been the subject of much feminist commentary. Let me focus on three laws. The first one, which the commentary describes as concerned for the welfare of women deals with women captured in war. When you take the field against your enemies, and the Lord your God delivers them into your power and you take some of them captive, and you see among the captives a beautiful woman and you desire her and would take her to wife, you shall bring her into your house, and she shall trim her hair, pare her nails, and discard her captive's garb. She shall spend a month's time in your house lamenting her father and mother; after that you may come to her and possess her, and she shall be your wife. (21: 10-13) The commentary tells us that a significant aspect of this law is its respect for the personhood of the captive women and the moral obligations created by initiating a sexual relationship with her. The personhood of this girl is respected in that she is given a month to mourn the loss of her parents before she can be legally raped and married. Ibn Ezra believes the period of mourning is to honor her parents who are assumed to have died in war; Rambam assumes she is in mourning because she will never see her family again. In any event, we are told, the law recognizes her grief and requires respect for it: It is not decent for you to take your pleasure in her while she is weeping.' (Bekhor Shor; Hazzekuni). Thirty days are a normal period of mourning.

Now, let us assume that this law is as archaic as the one about being able to eat as many grapes from a neighbor's vineyard as you can, without carrying them off. Let us take into account the reality of the times, which placed women, young and old, in danger of being the spoils of war. My quarrel is less with the law itself that does not question the barbarity of a man kidnaping and raping a woman whom he finds beautiful so long as she does not belong to another man. That's unpleasant, but probably best understood in historic context. My quarrel has to do with the more modern commentary that explains that giving her a thirty-day mourning period to dwell on the catastrophe that has befallen her is sufficiently respectful of the personhood of the captive woman and the moral obligations created by initiating a sexual relationship with her. It may reflect a humanitarian impulse, on a par with not muzzling your ox while it is working, or ensuring that animals are slaughtered for food in as merciful a way as possible. But what could make the rabbinical scholars believe that justifying robbing a woman of all self-determination, all ability to direct the course of her life, is 'respecting [her] personhood' ? Indeed, what is the rabbinical concept of a woman's personhood? Why does the commentary insist that the murder of wayward sons was so objectionable as to never have been taken seriously, while the sexual (mis-) treatment of women is regarded as 'protective' of women's 'personhood'. Killing sons was abhorrent, even in Biblical times, but waiting 30 days before raping a captured war-bride is forward- thinking?

Two other laws that I would draw attention to are at 22:13, and 22:23, marital troubles, and once again rape, this time not in war. If a man marries a woman and then takes an aversion to her and in an effort to get out of the marriage, claims that she was not a virgin at marriage, the girl's parents shall produce the evidence of the girl's virginity before the elders of the town at the gate. If the elders find that the evidence vindicates the girl (or actually, her parents), then the elders of that town shall then take the man and flog him, and they shall fine him a hundred shekels of silver and give it to the girl's father; for the man has defamed a virgin in Israel. Moreover, she shall remain his wife; he shall never have the right to divorce her. Great!! If the guy lies because he no longer desires his bride, he is flogged and has to pay a fine to his father-in-law. But the girl, who is found innocent of his charges, is sentenced to a lifetime with a lying husband who has demonstrated publicly that he despises her.

If, however, the elders find that the girl was not a virgin when she married the man, what is her punishment? Death by stoning. Thus you will sweep away evil from your midst.

Likewise, sections 22:23-25, consider what to do if a man rapes a girl engaged to another man. If a betrothed girl is raped in town, she is presumed to be guilty, and both she and her rapist will be stoned to death. She is presumed guilty of consensual premarital sex because if she had cried out for help in town, surely someone would have heard and come to her assistance. Her silence is taken to be complicity and she has brought shame upon her father's house. The man's crime is not against the young woman herself. Rather, he is to be put to death because he violated another man's wife. Thus you will sweep away evil from your midst. So any girl raped in town is to be put to death, along with her rapist.

However, if a girl who is engaged to be married to another man is lucky enough to be raped in the countryside, she is presumed to be innocent, because no one could have heard her cries for help. However, we can only speculate about whether she can eventually marry or whether she is considered impure. It doesn't sound like there was any rape crisis counseling provided by the rabbinate.

This entire distressing discussion is not to suggest that ancient Jewish law on the treatment of girls and women was any worse, any more patriarchal than any other culture. Indeed, the open legal treatment of sexual crimes was probably more civilized, in the sense that it attempted to protect girls and women, at least insofar as they were the valuable property of their fathers and husbands. It is also clear that marital difficulties and the possibility of divorce were openly acknowledged. So perhaps, concern for the welfare of women and respect for the personhood of women are apt descriptions of the intent of these laws.

But even granting the forward-looking intent of the law, an enormous problem is posed for contemporary Jews. Few people today (I hope) would regard as acceptable this treatment of women as little more than chattel. In today's terms, it is not respectful of the personhood of women, nor does it demonstrate sufficient concern with the welfare of women by contemporary standards.

To return to Rachel Adler's question: can a feminist woman be an observant Jew, if the very structure of the laws denies the personhood of women, at least, denies anything contemporary people would acknowledge as personhood? I would like to be able to suggest that if as observant Jews we have restructured the laws on eating produce in another's fields and digging latrines in military encampments, we can restructure the laws on rape, sexuality and divorce. But if Eilberg-Schwartz is at all correct (and he, of course is not the only Jewish feminist, female or male to deal with these issues), then gender and sexuality are both more central and more conflicted and problematic than the other miscellaneous laws. Indeed, perhaps Ki Tetze is such a melange precisely to disguise the painful centrality to Judaism of gender and sexual issues.