When Michael Cohen, , told the Daily Beast on Tuesday that “You cannot rape your spouse,” he should have first consulted his law books — and his Talmud.
Cohen was responding to a reporter’s question on the rape accusation Trump’s then-wife Ivana Trump leveled at her husband during divorce proceedings in the early 1990s (she has since taken back the accusation in a statement to CNN on Tuesday). . Cohen was likely referring to the “rape exemption,” a legal principle that meant that marital rape was not a crime which was premised on the understanding that marriage involved implicit and continual sexual access to the woman by the man. Such a notion precluded the possibility of withdrawal of consent, and thereby the possibility of rape. Historically, rape was also impossible because wives were seen as the same legal person as their husbands and therefore prohibited from making a legal claim against them.
The criminalization of marital rape in the United States started in the mid-1970s and by 1993 marital rape became a crime in all 50 states. However, even as rape in marriage has been recognized as a criminal act in modern liberal legal codes, different standards have been shown to apply to its determination compared to non-marital rape.
Despite the criminalization of rape within marriage, “wife rape” is still difficult to prosecute. As opposed to “stranger rape,” victims need to show a greater degree of force exacted upon them than if they were subject to rape by a stranger. As the relationship becomes more intimate, blaming the victim increases and the perceived harm and likelihood that the incident is called rape decreases.
Normative Jewish law has often been touted as progressive in this area and is marked as a legal model for later western developments in the criminalization of rape in marriage.One of the main rabbinic statements against rape in marriage is from the Babylonian Talmud, (Tractate Eruvin 100b):
“Rami Bar Hama said that Rav Asi said: It is forbidden for a man to force his wife in a holy deed, for it says, One who presses the legs is a sinner [Prov.19:2]. And Rabbi Yehoshua ben Levi said: One who forces his wife in a holy deed will have dishonest children.”
While there is no disagreement voiced about requiring the consent of women, the continuation of the passage has a disagreement about the status of women initiating sexual intercourse - with rationales and proofs on both sides.
Daniel Boyarin, a professor of religion at University of California, Berkeley, argues that this opinion is not an outlier in Jewish legal tradition. In his book “Carnal Knowledge,” Boyarin argues that the view that opposes rape in marriage is “the generally held and authoritative position both of the Talmud and of later Jewish law. Indeed, far from treating a wife as a piece of property, or mere object for the satisfaction of the husband’s sexual desire, Talmudic law may be the first moral or legal system to realize that when a husband forces his wife the act is rape, pure and simple, and as condemnable and contemptible as any other rape.”
However another Talmudic passage (Tractate Niddah 12a) raises serious questions at to whether the rabbis actually require married women to consent to sexual intercourse:
“The rabbis teach: Donkey drivers and workers and those who come from a mourning house and from a house of celebration - their women have a presumption of ritual purity. And they can come and be with them whether they are awake or asleep. What does this refer to? If he left them in a state of ritual purity, but if he left them in a state of ritual impurity then she is ritually impure until she says ‘I am ritually pure’.”
In this source we see that women’s ostensible personal consent is superseded by the category of her ritual purity and impurity. If he knows that she was ritually impure when he left then a husband assumes his wife is also in this state when he arrives home and that he can have sexual intercourse with her even while she is sleeping. She does not need to consent but she does need to have been ritually pure, at least when he left her. Later Talmudic commentators reconcile this source that seems to sanction sexual relations without consent with previous statements requiring of consent by developing the concept of “semi-sleeping” which still enables consent while not fully awake.
While it is noteworthy that majority opinions in rabbinic law acknowledge the necessity for consensual marital sex, the sources are not all as unequivocal about rape being forbidden in marriage. For example, the 19th century commentator known as the “Netziv” who basically says that the acquisition inherent in Jewish marriage means that a man can do what he wants sexually with a woman because she is his possession. But even for the vast majority of Jewish legal decisors who would not agree with this position, the non-reciprocal establishment and dissolution of the rabbinic marriage continue to cause women’s suffering as we speak even if they do not justify outright rape.
As an educated person in the public domain, Cohen’s ignorance of current laws about rape in marriage and his justification of rape in marriage, reflect a worrying state of public awareness. Rape is rape - inside marriage as well. What will it take for that to be understood more than 40 years after the process of criminalization of rape in marriage began in the United States?
Rabba Dr. Melanie Landau is currently living in Jerusalem, learning at Pardes Advanced Kollel and working as Facilitation Director at Encounter.