Parshat Ki Teitzei #1: Eshet Yefat To`ar As Progressive Feminist Legislation

Parshat Ki Teitzei opens with the law of the Yefat To`ar, the beautiful female captive of battle who can be taken as a wife.

Devarim 21:10-14 states:

כִּי-תֵצֵא לַמִּלְחָמָה, עַל-אֹיְבֶיךָ; וּנְתָנוֹ יְהוָה אֱלֹהֶיךָ, בְּיָדֶךָ--וְשָׁבִיתָ שִׁבְיוֹ.
וְרָאִיתָ, בַּשִּׁבְיָה, אֵשֶׁת, יְפַת-תֹּאַר; וְחָשַׁקְתָּ בָהּ, וְלָקַחְתָּ לְךָ לְאִשָּׁה.
וַהֲבֵאתָהּ, אֶל-תּוֹךְ בֵּיתֶךָ; וְגִלְּחָה, אֶת-רֹאשָׁהּ, וְעָשְׂתָה, אֶת-צִפָּרְנֶיהָ.
וְהֵסִירָה אֶת-שִׂמְלַת שִׁבְיָהּ מֵעָלֶיהָ, וְיָשְׁבָה בְּבֵיתֶךָ, וּבָכְתָה אֶת-אָבִיהָ וְאֶת-אִמָּהּ, יֶרַח יָמִים; וְאַחַר כֵּן תָּבוֹא אֵלֶיהָ, וּבְעַלְתָּהּ, וְהָיְתָה לְךָ, לְאִשָּׁה.
וְהָיָה אִם-לֹא חָפַצְתָּ בָּהּ, וְשִׁלַּחְתָּהּ לְנַפְשָׁהּ, וּמָכֹר לֹא-תִמְכְּרֶנָּה, בַּכָּסֶף; לֹא-תִתְעַמֵּר בָּהּ, תַּחַת אֲשֶׁר עִנִּיתָהּ

"When thou goest forth to battle against thine enemies, and the LORD thy God delivereth them into thy hands, and thou carriest them away captive,

and seest among the captives a woman of goodly form, and thou hast a desire unto her, and wouldest take her to thee to wife;

then thou shalt bring her home to thy house; and she shall shave her head, and pare her nails;

and she shall put the raiment of her captivity from off her, and shall remain in thy house, and bewail her father and her mother a full month; and after that thou mayest go in unto her, and be her husband, and she shall be thy wife.

And it shall be, if thou have no delight in her, then thou shalt let her go whither she will; but thou shalt not sell her at all for money, thou shalt not deal with her as a slave, because thou hast humbled her."

This halacha makes many uncomfortable in terms of our modern views of the rights and role of woman, and it made Chazal uncomfortable in terms of the way it allows a man to follow base instincts, which emotionally it strikes one that the Torah should forbid.

I will not cover the various approaches of Chazal to this mitzvah in this dvar Torah, but rather wish to focus on a single novel pshat interpretation of the mitzvah, and that is that the mitzvah is really a pro-woman piece of legislation that lays out the rights of the female captive.

If the Torah had not spoken at all, the natural assumption of the people would be that you could do with a captive whatever you desired. To the victor goes the spoils, and this included cattle, vessels, gold, and captives. Captives would become slaves, and if there were a beautiful captive woman, then one could take her as a wife, concubine, or perhaps slave/prostitute. I am assuming that was the status quo at the time the Torah was given in the contemporary legal/moral-ethical climate, and the Torah is coming to disabuse them of that notion and to grant the female captives certain rights.

(The assumption that female captives could be taken might be seen in Bemidbar 31:9, when the Israelites took captives from the women of Midyan:

וַיִּשְׁבּוּ בְנֵי-יִשְׂרָאֵל אֶת-נְשֵׁי מִדְיָן, וְאֶת-טַפָּם; וְאֵת כָּל-בְּהֶמְתָּם וְאֶת-כָּל-מִקְנֵהֶם וְאֶת-כָּל-חֵילָם, בָּזָזוּ.

"And the children of Israel took captive the women of Midian and their little ones; and all their cattle, and all their flocks, and all their goods, they took for a prey."

for which they are criticized by Moshe, in 31:15-16:

וַיֹּאמֶר אֲלֵיהֶם, מֹשֶׁה: הַחִיִּיתֶם, כָּל-נְקֵבָה.
הֵן הֵנָּה הָיוּ לִבְנֵי יִשְׂרָאֵל, בִּדְבַר בִּלְעָם, לִמְסָר-מַעַל בַּה, עַל-דְּבַר-פְּעוֹר; וַתְּהִי הַמַּגֵּפָה, בַּעֲדַת ה.
"And Moses said unto them: 'Have ye saved all the women alive? Behold, these caused the children of Israel, through the counsel of Balaam, to revolt so as to break faith with the LORD in the matter of Peor, and so the plague was among the congregation of the LORD."

It seems they wanted them for the same purpose as what caused the plague. This though is not a good proof that this was the natural assumption, for perhaps this event took place after the parsha of Yefat To`ar was given.)

The first step of dealing with the Yefat To`ar is:

וַהֲבֵאתָהּ, אֶל-תּוֹךְ בֵּיתֶךָ; וְגִלְּחָה, אֶת-רֹאשָׁהּ, וְעָשְׂתָה, אֶת-צִפָּרְנֶיהָ
"then thou shalt bring her home to thy house; and she shall shave her head, and pare her nails;"

You take her to your home and treat her like a human being and a citizen. She does not live with the other captives in poor housing, and is no longer in chains.

I would not translate וְגִלְּחָה, אֶת-רֹאשָׁהּ as shaving her head, for in contexts we are treating her nicely, and furthermore, in context, the next pasuk states ְהֵסִירָה אֶת-שִׂמְלַת שִׁבְיָהּ מֵעָלֶיהָ, that she takes the rainment of captivity from off her.

There is a clear parallel to Yosef, when he was taken out of prison to be brought to Pharaoh and from there to greatness.

Bereishit 41:14:
וַיִּשְׁלַח פַּרְעֹה וַיִּקְרָא אֶת-יוֹסֵף, וַיְרִיצֻהוּ מִן-הַבּוֹר; וַיְגַלַּח וַיְחַלֵּף שִׂמְלֹתָיו, וַיָּבֹא אֶל-פַּרְעֹה.

"Then Pharaoh sent and called Joseph, and they brought him hastily out of the dungeon. And he shaved himself, and changed his raiment, and came in unto Pharaoh. "

First, they removed him from the pit, equivalent to taking the woman out of the captives quarters and into the man's house. Then, he shaved. I would say not shaved exactly, but sheared. He cut his hair and became hygenic. Similarly, the beautiful captive gets to cut her hair which surely became unkempt during captivity. Finally, he changed from his prison clother. Similarly, the female captive gets to change into fresh garments, which, being a captive she probably did not get much opportunity to do.

In addition, the female captive cuts her nails (there is a machloket whether וְעָשְׂתָה, אֶת-צִפָּרְנֶיהָ means to cut her nails or grow them long, and for my purposes, I am assuming it means to cut them.)

More than being hygenic, fresh clothes, kempt hair, a manicure, being in a normal quiet house, all give the female captive some presence of mind. She can become settled.

Next, וְיָשְׁבָה בְּבֵיתֶךָ, וּבָכְתָה אֶת-אָבִיהָ וְאֶת-אִמָּהּ, יֶרַח יָמִים;
"and shall remain in thy house, and bewail her father and her mother a full month;"

War, the shock of her parents' demise, and the sudden placement into captivity can be unsettling and traumatic. Here, we give her a chance to recover somewhat from the shock and horror, to mourn her parents, and to become somewhat emotionally grounded.

Then, וְאַחַר כֵּן תָּבוֹא אֵלֶיהָ, וּבְעַלְתָּהּ, וְהָיְתָה לְךָ, לְאִשָּׁה

Only after all this, וְאַחַר כֵּן , is she emotionally prepared for marriage, and you consummate the marriage, and she is to you a full wife, וְהָיְתָה לְךָ, לְאִשָּׁה, not a servant, and has all the rights and status of a wife.

As a result, if you later decide that you do not want to remain married to her, you divorce her like you would divorce a wife, and she goes from the marriage as a free citizen who can marry whomever she pleases:

וְהָיָה אִם-לֹא חָפַצְתָּ בָּהּ, וְשִׁלַּחְתָּהּ לְנַפְשָׁהּ, וּמָכֹר לֹא-תִמְכְּרֶנָּה, בַּכָּסֶף; לֹא-תִתְעַמֵּר בָּהּ, תַּחַת אֲשֶׁר עִנִּיתָהּ

"And it shall be, if thou have no delight in her, then thou shalt let her go whither she will; but thou shalt not sell her at all for money, thou shalt not deal with her as a slave, because thou hast humbled her."

She goes free. She cannot be sold as a servant. Beforehand, while she was a captive, she could have been sold, and have been dealt with as a slave. I am not sure if "humbled" is the right word. The root ayin nun heh means several different things in different places, which I will not go into here. But, see by an amah ivriya, Shmot 21:10 where the word seems to occur, and earlier in that same perek, Shmot 21:8, where the root BGD seems to correspond. But perhaps it is. (more on this later...)

This by the way is against what I'm pretty certain is the standard way of reading the last pasuk, that if he decides after her shaving her hair/growing her nails/taking off her attractive captive clothing/mourning a month that he no longer finds her attractive (for that was the point - to stifle his desire) and then decides not to go through with the marriage, then she goes free.

I am claiming here that this is after the marriage to say that she is a full wife - not a concubine or slave-wife.

For comparison, let us examine the rules of amah ivriya, the Hebrew maidservant.

In parshat Mishpatim, Shmot 21:7-11:

וְכִי-יִמְכֹּר אִישׁ אֶת-בִּתּוֹ, לְאָמָה--לֹא תֵצֵא, כְּצֵאת הָעֲבָדִים.
אִם-רָעָה בְּעֵינֵי אֲדֹנֶיהָ, אֲשֶׁר-לא (לוֹ) יְעָדָהּ--וְהֶפְדָּהּ: לְעַם נָכְרִי לֹא-יִמְשֹׁל לְמָכְרָהּ, בְּבִגְדוֹ-בָהּ.
וְאִם-לִבְנוֹ, יִיעָדֶנָּה--כְּמִשְׁפַּט הַבָּנוֹת, יַעֲשֶׂה-לָּהּ.
אִם-אַחֶרֶת, יִקַּח-לוֹ--שְׁאֵרָהּ כְּסוּתָהּ וְעֹנָתָהּ, לֹא יִגְרָע.
וְאִם-שְׁלָשׁ-אֵלֶּה--לֹא יַעֲשֶׂה, לָהּ: וְיָצְאָה חִנָּם, אֵין כָּסֶף

"And if a man sell his daughter to be a maid-servant, she shall not go out as the men-servants do.

If she please not her master, who hath espoused her to himself, then shall he let her be redeemed; to sell her unto a foreign people he shall have no power, seeing he hath dealt deceitfully with her.

And if he espouse her unto his son, he shall deal with her after the manner of daughters.

If he take him another wife, her food, her raiment, and her conjugal rights, shall he not diminish.

And if he do not these three unto her, then shall she go out for nothing, without money."

Here, the traditional explanation is that this is a girl under the age of 12 who is sold by her poor father to be a helper/servant in a rich man's house. The rich man is expected to either marry her himself or marry her to her son. In marriage, she has all the full rights of a wife, and these rights do not diminish even if he takes another wife. If he does not do three things - marriage to himself, or to his son, or allow her to be redeemed (in other words, relatives do not redeem her), after a specific period of time, or when she becomes an adult, she goes free without money.

However, on a level of pshat not rising to the level of practice, we can understand an amah not to be a maidservant, but as a slave-wife, with not all of the protections (but with some) granted to the beautiful captive.

וְכִי-יִמְכֹּר אִישׁ אֶת-בִּתּוֹ, לְאָמָה--לֹא תֵצֵא, כְּצֵאת הָעֲבָדִים.

"And if a man sell his daughter to be a maid-servant, she shall not go out as the men-servants do."

A man sells his daughter as a slave-wife, an amah ivriya, then since she is married, she does not serve for a six year period like that of the man-servant mentioned earlier in the perek. The marriage is forever, except by divorce.

אִם-רָעָה בְּעֵינֵי אֲדֹנֶיהָ, אֲשֶׁר-לא (לוֹ) יְעָדָהּ--וְהֶפְדָּהּ: לְעַם נָכְרִי לֹא-יִמְשֹׁל לְמָכְרָהּ, בְּבִגְדוֹ-בָהּ.

"If she please not her master, who hath espoused her to himself, then shall he let her be redeemed; to sell her unto a foreign people he shall have no power, seeing he hath dealt deceitfully with her."

The first case is where the man himself marries her. He bought her for the purpose of marriage, not servitude. If he does not want to remain married to her, וְהֶפְדָּהּ, he can let her relatives redeem her. He cannot sell her to a foreign nation, לְעַם נָכְרִי לֹא-יִמְשֹׁל לְמָכְרָהּ, that is, to some stranger other than her own family. He cannot treat her as a slave, לֹא-יִמְשֹׁל , in that he can sell her, once he has married her and now spurns her, בְּבִגְדוֹ-בָהּ. This would correspond to the female captive:

וְהָיָה אִם-לֹא חָפַצְתָּ בָּהּ, וְשִׁלַּחְתָּהּ לְנַפְשָׁהּ, וּמָכֹר לֹא-תִמְכְּרֶנָּה, בַּכָּסֶף; לֹא-תִתְעַמֵּר בָּהּ, תַּחַת אֲשֶׁר עִנִּיתָהּ
"And it shall be, if thou have no delight in her, then thou shalt let her go whither she will; but thou shalt not sell her at all for money, thou shalt not deal with her as a slave, because thou hast humbled her."

In both cases, I claim it is after marriage, and now that he spurns her and rejects her, he cannot sell her. In the case of the female captive, she simply goes free. In the case of the amah ivriya, her family redeems her.

אִם-רָעָה בְּעֵינֵי אֲדֹנֶיהָ, אֲשֶׁר-לא (לוֹ) יְעָדָהּ--וְהֶפְדָּהּ: לְעַם נָכְרִי לֹא-יִמְשֹׁל לְמָכְרָהּ, בְּבִגְדוֹ-בָהּ.
Alternatively, he can purchase her as a slave-wife for his son. She is then entitled to be treated "kimishpat habanot," that is that he has certain obligations towards a daughter-in-law and has to treat her in a certain way.

One might say those obligations are:
אִם-אַחֶרֶת, יִקַּח-לוֹ--שְׁאֵרָהּ כְּסוּתָהּ וְעֹנָתָהּ, לֹא יִגְרָע.
Onata is not necessarily conjugal rights. There is a major dispute whether this actually refers to an allotment of a type of food. If so, even if he purchases another daughter for his son, the father needs to still give her mishpat habanot.

Otherwise, this refers to a man's own obligation to his amah-ivriyah wife, even if he takes for himself another wife.

וְאִם-שְׁלָשׁ-אֵלֶּה--לֹא יַעֲשֶׂה, לָהּ: וְיָצְאָה חִנָּם, אֵין כָּסֶף.
"And if he do not these three unto her, then shall she go out for nothing, without money."

If he fails to provide these three things due a wife, she is no longer bound in slave-marriage. She need not be redeemed by her family for money, but goes free without any payment, and can marry whomever she chooses.

Here, you can no longer say the three are marriage to himself, marriage to his son, redemption, since the (unsupported) assumption is that he originally purchases the amah ivriya for marriage and thus after purchase she is married, not a maid-servant waiting to be married or redeemed.

Returning to the subject of the female captive, we now can say that just as the amah ivriyah is dealt treacherously with when her husband want to get rid of her, and then cannot be sold, so too a female captive after marriage, not that her husband wishes to get rid of her and deal treacherously with her, cannot be sold.

(Alternatively, you can say that just as the amah ivriya cannot be sold, and we are assuming this is before marriage while still a maidservant in the owner's house, similarly the female captive cannot be sold, also while waiting for marriage in the captor's house, having shaved her hair/grown her nails etc..)