Abaye said: If one had intercourse with a young woman, and she died (before he was sentenced) he is exempt from paying the fine, as it is stated: “And the man who lay with her shall give to the father of the young woman” (Deuteronomy 22:29) — and not to the father of a dead girl.
As we have been discussing, if a young woman is raped or seduced so that her bridal value is diminished, the man responsible owes payment to her father, who is still financially responsible for her. But, Abaye points out, if the young woman subsequently dies unexpectedly (not as a result of the sex, though the terseness of the text makes it almost sound as if that were the case), the man who had sex with her is off the hook. Now, instead of having a daughter whose value has been diminished, the father has no daughter at all, and so has lost nothing due to the intercourse.
Rava, Abaye’s frequent interlocutor, disagrees. He believes that even if the young woman dies shortly after losing her virginity, the man who had sex with her is on the hook for payment. In Rava’s view, the question is only who receives that payment (since, obviously, she can’t). He raises the following dilemma:
Is there achievement of grown-woman status in the grave, and it (the fine) is the property of her son? Or perhaps there is no achievement of grown-woman status in the grave, and the fine is the property of her father.
The window during which a person is considered a young woman is relatively short — just six months from ages 12 to 12.5 years. After that, she is considered a grown woman. Therefore, if a man robbed her of her virginity during that short window, and she subsequently died (also in that window), by the time he is brought to trial and a verdict reached, it may very well be that we have reached the date by which she would have been considered a grown woman. Were she alive, she would have been awarded the settlement, not her father.
Rava’s question is: Do we award the payment as we would if she were still alive and give it to her — or because she’s dead, to her heir? Or do we consider that a woman cannot achieve maturity in the grave and therefore the payment goes to her father? In other words: Can a woman come of age in the grave?
If you’re wondering how a young woman who had intercourse for the first time and then died while still a young woman can possibly even have a son to inherit her fine, you are not alone. The rabbis ask the same question. On the top of tomorrow’s daf, they determine that yes, a young woman between the ages of 12 and 12.5 can indeed conceive. They also consider redefining the window during which a person is considered a young woman. Maybe it actually begins when she is 11 and ends when she reaches maturity at 12? Or maybe the window opens when she first shows signs of puberty?
Or perhaps, the Gemara concludes, she can’t possibly have a son and that’s not really what Rava was suggesting. Rather, the question is solely about whether she can achieve adult status in the grave. If she can’t, then the fine goes to her father. If she can, the fine goes to her, but since she cannot collect, the man who took her virginity pays nothing.
To this last question — whether or not she can come of age in death — the rabbis have no answer. Teyku: It remains unresolved.
Read all of Ketubot 38 on Sefaria.