Yevamot 8

Horrifying disjunction.

There are a number of stories of remarkable women in Jewish history who participated in the creation and study of Talmud – Beruriah, Rashi’s daughters in medieval France, Rabbanit Miriam Shapira-Luria in 14th century Germany and Asenath Barazani, the head of a yeshiva in 16th–17th century Kurdistan. 

Today’s daf is a reminder that for most of the Talmud’s history, however, the Talmud was a project by and for men. Sometimes the men who wrote it showed enormous thoughtfulness and empathy for others. But today it is difficult to see them that way.

Deuteronomy 25:5 states that when one brother dies childless leaving a widow behind, the remaining brother “will have intercourse with her and take her to him to be his wife and consummate the levirate marriage with her.”

The rabbis note that the verse in Deuteronomy is redundant. For the rabbis, intentional intercourse can effect a marriage, so all three clauses — (1) have intercourse, (2) take her to be his wife, (3) consummate levirate marriage — are basically saying the same thing. Or are they? 

Of course not! The rabbis believed that the God did not use language extraneously, so they interpret each clause as pointing to a different halakhah relating to yibbum. The second clause, “take her to be his wife,” is the crux of the mitzvah of yibbum as we understand it. So what are the other two clauses doing? The rabbis attribute the following interpretation to Rabbi Yehudah HaNasi: 

What is the meaning of “have intercourse with her”? Anywhere that there are two possibilities of having intercourse, that if he wants he may marry this one, and if he wants he may marry that one — each one is permitted. And if he does not, they are both prohibited. “And consummate the levirate marriage with her.” — it is in a place where levirate marriage is applicable that a co-wife is prohibited, in a place where levirate marriage is not, a co-wife is permitted.

Each clause comes to teach something new: the first, that when the man has a choice between his (childless) brother’s (multiple) widows, he can marry any of them, and when levirate marriage is not permitted with one of the wives (because she’s his existing wife’s sister or mother, for example), one cannot marry a co-wife. So a man having a degree of choice allows him to affect levirate marriage; without that choice, it is impossible. The third clause comes to teach a different issue — that it is only when the mitzvah of yibbum is operative that a relative disqualifies a co-wife. If some random man who is no relation to you was married to two women, one of whom you can’t marry (let’s say, because she’s your sister), and then dies, you can marry the widow who isn’t your sister. 

The Talmud then offers another interpretation of the biblical redundancy. 

Rabbi Yosei bar Hanina said: “And have intercourse with her” — this teaches that he divorces her with a bill of divorce and he remarries her. “And consummate the levirate marriage with her” — against her will.

Rabbi Yosei bar Hanina states that having intercourse with one’s yevama effects a legal marriage which would then require a divorce to dissolve. He also teaches that the marriage can be consummated against the woman’s will. 

Let’s stop and think about that — a man can effect yibbum (which is a mitzvah!) by sexually assaulting his brother’s widow. To be clear, this is not a fringe opinion, this ends up being the halakhah. A woman who has gone through the loss of her husband can be forced to experience further emotional and now physical trauma to fulfill the biblical directive. And the Gemara moves on in the discussion about yibbum without recognizing literally any of that. No one in the room of men doing this work — in the discussion on the page, and in the medieval commentaries who then work to make sense of the daf — stops and says: absolutely not.

I try to end these articles with an idea that we can take into our lives and apply in some way. But today, I’ve got nothing. Was the sexual assault of most women and other people common and largely tolerated by free men in the ancient world? Yes. Does that make this any less chilling to us? I don’t think so. So instead of an uplifting takeaway, I want to encourage us all to sit with this horrifying disjunction, to think about whose experiences get overlooked, ignored or actively legislated against. And to think seriously about the implications — psychological and physical — of leaving people out of the discussion.

Read all of Yevamot 8 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on March 14th, 2022. If you are interested in receiving the newsletter, sign up here.

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