Bar-Ilan University's Parashat Hashavua Study Center

Parashat Ki Tetze 5763/ Sept. 6, 2003

Lectures on the weekly Torah reading by the faculty of Bar-Ilan University in Ramat Gan, Israel. A project of the Faculty of Jewish Studies, Paul and Helene Shulman Basic Jewish Studies Center, and the Office of the Campus Rabbi. Published on the Internet under the sponsorship of Bar-Ilan University's International Center for Jewish Identity.
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Parashat Ki Tetze 5763/ Sept. 6, 2003

The Law of the Beautiful Captive
Dr. Yisrael Zvi Gilat

The commandment of Yefat To'ar detailed in our section (Deut. 21:12) differs from the commandment of the stubborn and rebellious son, "that never was and never will be, and was only written to reward those who expound it" (Tosefta Sanhedrin 13, 6) and from the commandment of the rebellious city, 'ir hannidahat, which also "never was and never will be" (ibid.). The law of the beautiful captive was certainly in force, according to the talmudic rabbis, at the time of the Kingdom of Israel, and it is also apparently a law that is in force until the end of days (hilkheta li-meshiha).
Moreover, according to talmudic tradition, King David's family troubles began with the commandment of Yefat To'ar. Tamar (according to one rabbinical opinion) was David's daughter from Ma'aca the daughter of Talmi, king of Geshur, whom he captured in battle. She told her half-brother Amnon (the son of David from a different mother), to "speak to the king; he will not refuse me to you" (II Sam. 13,13). The reason she was not concerned about incest was because she was the daughter of a Yefat To'ar born to David from her mother during her captivity, therefore, in spite of Tamar's later conversion, she was not considered halakhically a daughter of David.

Leaving aside contemporary discussions regarding the appropriate treatment of prisoners of war, we find the dilemma of many halakhic scholars, from the Talmudic period to recent authorities at the beginning of the last century, in regard to the question: Is the right to have sexual relations with the captive woman "the way of the world" or might it be unworthy and even most contemptible? Midrash Tanhuma (Buber) Ki Tetze (A) learned from the rule of adjacent sections (semikhut parshiot) that:
Whoever takes a beautiful captive, will have a rebellious son. Since we found, in the case of David, that because he desired Ma'aca the daughter of Talmi, king of Geshur, when he went into battle, he produced Avshalom, who rose up to kill him, and slept with his wives in the presence of all Israel and broad daylight, and was responsible for the killing of some tens of thousands Israelites.
In other words, even if the Torah allows Yefat To'ar, it certainly frowns upon the practice. On the other hand, we find in Hullin (109b):
Yalta (R. Nahman's wife) once said to R. Nahman, 'Observe. For everything that the Divine Law has forbidden us, it has permitted us an equivalent: it has forbidden us blood but it has permitted us liver, it has forbidden us intercourse during menstruation but it has permitted us the blood of purification; it has forbidden the fat of cattle but it has permitted us the fat of wild beasts; it has forbidden us swine's meat but it has permitted us the brain of the shibbuta (a kind of fish the brain of which has the same taste as swine's flesh); it has forbidden us the girutha (a forbidden bird) but it has permitted us the tongue of fish; it has forbidden us the married woman but it has permitted us the divorcee during the lifetime of her former husband; it has forbidden us the brother's wife but it has permitted us the levirate marriage; it has forbidden us the non-Jewess but it has permitted us the beautiful captive.

From Yalta's words it transpires that the commandment of Yefat To'ar is the Torah's bidding from the outset. And just as a man has never needed to avoid eating the shibutta, or from relations when permitted, from eating liver or marrying a divorcee during her husband's lifetime, so one need not fear or avoid this commandment.

Most sources take a middle of the road position, whereby cohabitation with a Yefat To'ar in war is unworthy, even unfit. But its inclusion in the list of commandments is meant to prevent even worse behavior. This view is clearly enunciated in Bavli Kiddushin (22a) and in parallel texts: "Our Rabbis taught: 'And thou seest among the captives' when taking her captive; a woman - even married; of beautiful countenance - ...it is better for Israel to eat flesh of animals about to die, yet ritually slaughtered, than flesh of dying animals which have perished." From this we learn that the many restrictions on cohabitation with a Yefat To'ar in the Torah verses, expounded upon by the drashot of Tannaim and Amoraim, are intended to reduce to zero (nullify) the objectionable parts of this action or at least to minimize them.

I'd like now to linger on the metaphor of "animals about to die yet ritually slaughtered" which is supposedly analogous to the law of the beautiful captive. If the commandment of Yefat To'ar is like the commandment of shehita, an act which permits that which is otherwise forbidden, who or what are the "dying animals"? The proper analogy should be to the slaughter of healthy animals.
Now the known drasha "In the mitzvah of Yefat To'ar - The Torah spoke only against the evil impulse" (Midrash Tannaim, Hoffman, 2,9) might be interpreted as suggesting that the entire behavior is unethical and bediavad—after the fact, and in this sense the beautiful captive is considered 'an animal about to die', which would then be prohibited, unless ritually slaughtered in a hurry; but further investigation reveals that the intention of the darshan was in fact to expand the permission to cohabit not only with a beautiful captive, the literal Yefat To'ar, but an "ugly one" as well. He did not mean to criticize the law or to circumscribe it.
It appears, therefore, that the scholars did not view the commandment of Yefat To'ar as innately unfit behavior. We want to suggest that the analogy to an animal about to die means the permit granted by the Torah to take the captive has the power to "make kosher" a number of prohibitions, some of them Torah law ("mi-deoraita"), some rabbinic ("mi-derabanan"). Therefore the slightest deviation from the restrictions imposed by the scholars in their drashot about cohabitation with a Yefat To'ar could change her from shehuta into nevelah, from a ritually slaughtered animal to one which died on its own and became a prohibited corpse. The meaning of the metaphor is that improper fulfillment of this commandment could easily turn a mitzvah into a serious transgression.

What then are the "animals about to die (temutot)", i.e. the possible prohibitions, that the commandment of Yefat To'ar is meant to allow?

  1. A. In Bavli Kiddushin (21b) the question is asked: "May a priest take a woman who is a captive? The question derives from the prohibition on kohanim to marry converts, because the convert is included in the halakhic prohibition of zona (in a different sense from the modern one). The captive, being a foreigner, will then be forbidden to all kohanim even if she converts willingly. According to Rav, who says that a kohen is allowed a Yefat To'ar, this commandment is an "innovation" because from the halakhic point of view the kohen is forbidden to take any woman who has converted according to the law.
  2. However the talmudic passages on the opinions of Rav and his disputant Shmuel - who forbids the kohen to cohabit with the Yefat To'ar because of his holiness - are found in two opposing versions. According to one reading we learn that according to all, whether Rav or Shmuel, the kohen may perform this commandment of "first cohabitation" in time of war, because "the Torah spoke only against the evil impulse", and the dispute is only in regard to "a second cohabitation"; in other words, whether he is permitted to subsequently marry her.

  3. B. The war under discussion in our parasha is a "war by choice" as suggested by Sifre Deuteronomy, not a milhemet mitzvah to capture the Land. Nevertheless, the Yefat To'ar could belong to the seven nations, she can be a Canaanite, because it is the verse in our parasha, "and you take some of them captive" (Deut. 21:10), which teaches that the prohibition "you shall not let a soul remain alive" (20:16) is not ethnic but territorial; there is no obligation to destroy the members of the seven nations found in conquered territory outside of Eretz Yisrael. From this it also appears, according to many Rishonim, that the permit of the Yefat To'ar also includes the daughter of a Canaanite who is outside the borders of Israel.

  4. However, Maimonides (Melakhim, 8), Nahmanides, and Sefer ha-Hinnukh (Mitzvah 532) are interpreted by the Ahronim as saying that the mitzvah of Yefat To'ar also nullifies the commandment that "you shall not let a soul remain alive" and therefore the law of Yefat To'ar applies even to Canaanite women in the course of a war for the conquest of the Land of Israel. Here we have a prohibition of the Torah which is allowed by the rule of Yefat To'ar.

  5. C. From this it is understood that the prohibition "You shall not intermarry with them" (Deut. 7:3) that is valid for the seven peoples even after the conversion of any of them does not apply in the case of the Yefat To'ar in the permitted instances. A man can marry her lawfully "by a second cohabitation" as he may marry any convert from other nations. Obviously the prohibition that follows: "do not give your daughters to their sons or take their daughters for your sons" (which, according to Rashba, Nahmanides, and Ritba, applies to every foreign woman) - does not apply in the case of Yefat To'ar.

  6. D. Any form of intimate relations with a foreigner, even outside the frame of marriage, is forbidden. Bavli Aboda Zara (36b) connects the rule that "an Israelite having intercourse with a heathen woman [the prohibition] is a law of Moses from Sinai" to the halakha that "zealots may attack him", when the act of cohabitation is carried out in public. However, since "it seems to Rabbenu Tam that a first cohabitation is permitted in war" (Tosefot Kiddushin, 22a), i.e. in public, and only the second cohabitation "is forbidden until she shall be a convert in his home", then the permission for Yefat To'ar cancels the halakha that "zealots may attack him" for having relations with a heathen. But even if we say, as do Maimonides and Ha-Meiri, that even at the time of the first cohabitation "he shall take her to a private place and cohabit with her" (Melakhim 8, 3), in other words that the act should be performed discreetly, the commandment of Yefat To'ar still has the power to release from an ancient decree of the Court of the Hasmoneans, that forbade the act of cohabitation with a gentile woman "even discreetly".

  7. E. According to the Biblical text, the ritual of "all the acts" ("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" Deut. 21:12-13), had only one intention, that she should "become repulsive to him". But further relations with her are not dependent on her will to be a wife to her captor and certainly are not related to her desire to convert. The talmudic literature makes this abundantly clear.

  8. Therefore there are some Rishonim, for instance the Tosefot Rid, Kiddushin 21b, s.v. beviah, who are of the opinion that the permit for the Yefat To'ar is two-fold: "once at the time of the first cohabitation, with no restrictions, and secondly from the time of the second cohabitation onward after she has done all that is commanded in the parasha; even though she has not taken upon herself to be converted she is totally his wife". We thus learn that Yefat To'ar is an "innovation" in that it makes her a full daughter of Israel. We may point out that this permit, which is viewed by the Rid as a "decree emanating from the text", is rejected totally by Maimonides, who explains the waiting period of one month as time that "he puts up with her in the hope that she might accept Judaism" and if she has not converted willingly he is not permitted to marry her, "since it is forbidden to marry a heathen woman who has not converted". (Melakhim 8:5, 7).

  9. In the sake of brevity, we omit several further prohibitions that are nullified by the law of the Yefat To'ar. We conclude with this final example: From the Bavli (Yebamot 47b) it appears that "all the acts" which have to be performed were not intended for the Yefat To'ar who has accepted conversion, since then "her ablution may be arranged, and he is permitted to marry her forthwith". But R. Shimeon ben Elazar says that one may sidestep the entire parasha of 'a beautiful captive' and its rules and waiting period, in the following way: "He has her immerse herself to become his servant-woman, then he immerses her a second time to release her from this state, and then he may marry her (as a released slave) immediately". If this is true, why then did the Torah bother giving us the commandment of the beautiful captive? The Bavli gives no answer to this question but in my humble opinion, in Masekhet Semahot (Chapter 7, Nemoy, ed., p. 55; Higger, 143) the question is asked and immediately answered: "And why is all this necessary? So that holy seed should not become intermixed with the heathen nations. For it is better that the children of Israel eat the flesh of a dying animal that has been ritually slaughtered rather than downright carrion" (heathen women). Here then is another explanation for the analogy.