ABSTRACT - Sexual (Mis)Conduct: Halacha and American Jurisprudence

ABSTRACT

The aim of this paper is to give the reader a basic understanding of Judaic laws and policies as they relate to acts of sexual conduct or more specifically what Judaic law deems to be sexual misconduct (Masturbation, Homosexuality, Incest, Bestiality, Pedophilia, Rape, Pre-Marital Sex, Marital Sex, Adultery). The paper will discuss the various elements which Judaic law uses to define various sexual acts, legal and illegal ways to engage in such sexual conduct, punishment for violation of the laws, and the policy reasons behind the laws. The paper will also briefly compare select elements, punishments, and policies of Judaic law to those in American jurisprudence.

One of the areas of conduct which Judaic law is concerned with is a person’s sexual conduct. The overwhelming policy drive behind Judaic sexual conduct laws relate to modest behavior, marriage, and procreation. For instance, masturbation enjoys widespread acceptance in American society as a healthy activity. In stark contradiction, Judaic law considers masturbation to be a crime akin to mass murder. Homosexual sodomy has been permitted in the United States since Lawrence v. Texas as a matter of First Amendment privacy issue. Judaic law considers homosexual sodomy to be an abomination and a crime even in the privacy of the bedroom. It is with this focus that this paper will explore the various forms of sexual conduct which are prohibited by Judaic law and the policy behind the laws.

The Halacha of Rape

I am currently writing a paper on the topic of Rape. The focus of the paper is on the halachot which apply to a case of rape. For instance, when a man sexually assaults a woman, how would a Beit Din or San Hedrin adjudicate the case? What are the elements of rape; in other words, what is the halachic definition of rape, if there is one at all. Is there a different term used in the Torah for what a modern court considers rape?

I am having a difficult time finding source material for this paper because it is such an obscure topic. I really thought that it would have been a prominent topic in modern Judaic scholarship because of the prevelance of violence and sexual assault in a modern society. So far, all the rabbis have given me very unsatisfactory reasons why there are no authorities to cite. Apparently, rape was not an issue at the time the Torah was transmitted. Halacha is not meant to punish people but is meant to guide people on the proper path. Therefore, it is not a mitzva to not "rape" someone but prohibited on grounds that one who commits a "rape" might violate other mitzvot and be subject to damages.

Based on this understanding I will probably write the bulk of my paper on the various "mitzvot ase" (positive) and "mitzvot lo taseh" (negative) which apply to the "rapist" and the various sexual and physical contacts that occur between the rapist and the raped. The definition of rape, rapist, and raped will be the American definitions. Halacha of damages and other relevant sources will then be applied.