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Rape, the Agunah problem, and Bernard Jackson


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 Emanuel Rackman fought 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.”

Equality does not mean sameness. Men and women are not, as a rule, the same. In religions, as in other areas such as sport, there are different competitions and systems. I think it has been a disservice to try to merge male and female forms of prayer. At the same time I think it a wonderful development that in the realms of Torah study the opportunities for women are fast closing the gap. I find the circus of Women of the Wall silly and counterproductive because they are descending to the very politicized and corrupt way of dealing with spiritual issues that now mars Israeli society and makes us a laughingstock. I believe most strongly that women must be able to choose to pray as they wish. What is going on at the Wall is nothing more than a political circus on both sides. I am a pluralist in the sense of allowing for freedom of expression and practice. But this fuss over rituals is a side game.

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.

6 thoughts on “Rape, the Agunah problem, and Bernard Jackson

  1. Jeremy,
    Kol Hakavod, A male Rabbi writing such an enlightened piece. My cup runneth over. (although i do have a few disagreements). Wouldst that all Jewish men were as enlightened as you (not to even speak of the Rabbis).. If only you could be cloned at the same time that the ultra Charedim in Israel commit mass suicide per their rabbis exhortations, rather than accept the draft.
    A few random thoughts, reactions, mostly unrelated one to the other.
    Re: rape in the Torah, was not Yaakov overwhelmed with charada, when Shimon and Levi avenged Dinah's rape? There is a wonderful secular picturesque alternate description to charada, but in deference to some people's sensibilities, I will, exercising great restraint, resist from its usage. let's leave it at charada.

    Next, yes it is abhorrent and vile that our modern rabbis, who can find convoluted reasoning to arrive at any heter, makel that they wish, relating to modern day changes, technology et al, (what about that damn glass electronic eye door on so many manhattan apt buildings, how does one go home motsei shabbat)? and then there is tht wonderful inventiono of the eruv, how convenient., but to solve the agunah problem, they have no motivation, because they do not have the oves, only the LD, and I am not referring to the LDS church., Why should they? Virtually any other "problem" in today's world finds a solution , a heter, but wth cares about women. women were and are chattel ad etsem hayom hazeh. , The husband can divorce as he pleases but the wife is chained. I always wonder why the agunot, just don't go OTD, but of course the blackmail often involves taking their children from them. And the entire orthodox establishment allows this sinful system to be perpetuated, even MO, but then again, with the move to the right there really no longer is an MO community. The Agunah problem is a blight on the Jewish religion. And morally abhorrent, since every other problem gets "solved". Witness the prohibition of disinheriting one's children in one's will, but making a "deathbed' bequest/change is kosher.. just not in the physical written will.,

    And, for the moment, a tribute to the five daughters of Zelapchad, who boldly approached Moshe Rabbeinu, led by Noa, and demanded to inherit their father's land , as there were no sons. Moshe rose to the occasion with some al tnai that they marry within the tribe. The first feminist story in the Torah?????
    One of my daughters is named NOA. (and she lives up to the hype).

    As far as I know the only means for a wife to obtain a GET without the husband's consent is if he witholds conjugal rights, and then the Beit Din, must and will confer a get for the wife. Is that correct? Are there any other situations where a woman can get a get without the consent of the husband?????

    Just some random musings, reactions, to your inspiring feminist piece. Can we clone you? <>

  2. As long as the orthodox insist on a mechitza in the synagogue and gender segregation at services, I cannot accept that orthodox Judaism is capable of moving with the times. Start tackling the inequality on your own doorstep, Rabbi and the "problem" of the agunah will be easier to sort out.

  3. I think it's interesting that you consider traditional davening to be inherently masculine, but you don't seem to consider traditional learning to be. (Of course, others disagree–the perception that learning gemara is a masculine activity is often given as a reason why women should not engage in it.)

  4. Thank you for this post and for pointing out that Judaism should lead the way. I just read the part of the Mishneh Torah where Rambam says a man should rather die than have any claim on a woman. Amazingly enlightened and this is the middle ages.

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