How can a rapist in the field be executed, if there were no witnesses?

Question

The pasuk in Devarim 22:25 says

But if a man finds the betrothed girl in the field, and the man overpowers her and lies with her, then only the man who lay with her shall die.

Now, the man can only be executed if there were witnesses and warning. But from 22:27

Because he found her in the field. The betrothed girl had cried out, but there was no one to save her.

it doesn't seem like there were witnesses, since there was no one to save her. So how can he be executed?

Even if we say there were witnesses, but they saw this from afar and we unable to help, still there was no warning. Unless we say that they were shouting the warning from afar as well. But that seems a stretch, since the intent of the pasuk seems to be that there were no people around in the field, and that it is that factor which makes the situation different from if it happened in the city.

Maybe there were witnesses but they couldn't prevent the rape? Maybe they were old or he was armed? — Monica Cellio, Sep 10 '19 at 20:09
https://judaism.stackexchange.com/questions/38763/why-does-halacha-not-follow-the-simple-reading-of-the-biblical-text — Loewian, Sep 10 '19 at 21:03
@AlBerko The question is in what case can he possibly be executed, if there are no witnesses. How do we know there are no witnesses? Because it's in the field and 22:27 says "there was no one to save her". [Which also seems to be how this situation is different from the city, where there are people around]. — user9806, Sep 10 '19 at 21:51
I have a strong hunch that the verse that compares this case to the situation of a murderer would solve this dilemma. B"N, I'll see what I can find, but, perhaps, you should look at explanations on that verse. — DanF, Sep 11 '19 at 01:59
The victim is a witness, she identifies the rapist. Second point, she is betroth meaning she will be required to give evidence of her virginity or risk shaming or death. Her fiancé will need only one testimony, hers. Her father would need only one testimony, hers, it will suffice to them. — Efrayim ben ha Yosef, Sep 11 '19 at 02:35
@Efrayim Ben ha Yosef that doesn’t mean that it will suffice for the court to execute him — Lo ani, Sep 11 '19 at 10:01
@Loani the OP does not explain where he gets this statement from “Now, the man can only be executed if there were witnesses and warning.” The text doesn’t require witnesses, the OP introduces the idea without sourcing it. Hence as it stands it would suffice in court. — Efrayim ben ha Yosef, Sep 11 '19 at 10:17
@EfrayimbenhaYosef Your logic in the last comment is illogical. Just because the Torah fails to mention something, doesn't mean it's unnecessary. — DanF, Sep 11 '19 at 14:04
Except that it’s an instruction to execute a procedure @DanF. "But if in the open country a man meets a young woman who is betrothed, and the man seizes her and lies with her, then only the man who lay with her shall die.” This is annulled by a non existent clause, thus overriding the written law? Highly doubt that is how written law works. Now that’s not to say it’s not possible to arrive at the assumed presumption but it has to be validated. Take Joshua 20 and the law for the accidental manslaughter; if the dead man’s relative finds the murderer & kills him no witnesses are required. — Efrayim ben ha Yosef, Sep 11 '19 at 14:57

score 3 · Answer 1 · answered Sep 11 '19 at 10:59

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There are people - at least according to some opinions - who do not need a warning.

As we learn in Makos 6b that Rabbi Yossi bar Yehuda says that a Chaver [a learned person] does not need a warning [by witnesses,] since the concept of warning was only introduced to be able to differentiate between accidental sins and those done on purpose. [And we assume that a learned person knows what is allowed.]

רבי יוסי בר יהודה אומר חבר אין צריך התראה לפי שלא ניתנה התראה אלא להבחין בין שוגג למזיד

So if the rapist was a Chaver, he wouldn't need to be warned.

answered Sep 11 '19 at 10:59

Danny Schoemann

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I'm also wondering what the law would be if the rapist were a non-Jew. IIRC he wouldn't need to be warned to be killed, but I can't source that right now. – Danny Schoemann Sep 11 '19 at 11:00
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Do we paskin this way? – Double AA Sep 11 '19 at 13:10
IMSMC, if he were not Jewish, than even "in the city", i.e. with witnesses and warning, i.e. she was willing in the act, she would not be killed. – Loewian Sep 11 '19 at 13:29
@DoubleAA - IDK, I was pointing out (or trying to) that man can only be executed if there were witnesses and warning is not a given, as the OP posits. – Danny Schoemann Sep 11 '19 at 15:32
But for some opinions, including potentially the ones we hold like, it might be a given. – Double AA Sep 11 '19 at 15:33
@DoubleAA - That would make a fascinating conundrum: We pasken in such a way to make a Pasuk inexplainable. I wonder how often we do that. (It wouldn't surprise me that we do that sometimes - an entirely new twist to לא בשמים היא.) – Danny Schoemann Sep 11 '19 at 15:37
Na, if we paskin some way then there's a way to explain the verse in accordance with our position. – Double AA Sep 11 '19 at 15:38
@DoubleAA - well, I'm waiting to see the alternate answer here... :-) – Danny Schoemann Sep 11 '19 at 15:39
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A chaver might not need a warning, but does he still at least need [two] witnesses? Even if a chaver doesn't need both warning nor witnesses, and we say the pasuk is only talking about a chaver, that still feels somewhat forced. If the pasuk was only meant to apply to a specific class of people it should have said that explicitly. Unless it's an oral tradition...but was that recorded anywhere? – user9806 Sep 11 '19 at 17:06
@user9806 - even a Chaver would need 2 kosher witnesses; nobody can be executed without that. – Danny Schoemann Sep 12 '19 at 08:19

score 2 · Answer 2 · answered Sep 11 '19 at 20:13

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The Gemara (Kesubos 51b) presents a machlokes between Avuha Dishmuel and Rava as to whether תחלתה באונס וסופה ברצון makes her assur to her (non-Kohen) husband. According to Avuha Dishmuel, it does; According to Rava (whom the halacha follows), no - as long as it was oness at the beginning, then what she says afterwards has no halachic consequence.

So the scenario here could be that the witnesses heard her screams from afar, thus establishing that it was oness for her. Afterwards they come closer (and maybe even close enough to kill him - but at that point, once he did haaraah, they're not allowed to (Rambam, Hil. Rotzeach 1:12)), and give him hasraah.

(In fact, Sforno on the posuk does mention that Gemara, although just to explain why the Torah has to stress אין לנערה חטא מות.)

answered Sep 11 '19 at 20:13

Meir

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I mentioned the possibility of witnesses from afar in the OP, and you can even say they scream the warnings from a far distance as well. But, again, the intent of the pasuk seems to be that there were no people around in the field at all (in contradistinction to the city). Your scenario should apply equally to the city as well - the witnesses heard cries from a distance, run up to a building, then warned him. But in the case of city, the girl is chayav. Why should that be (since she might have cried for help, but the witnesses were too far away)? – user9806 Sep 11 '19 at 20:56
@user9806 Because in the city, their not hearing screams indicates that it was ברצון (the houses are close enough for them to have heard), while in the field it's very possible that she screamed but no one was around to hear. Fact is that in both cases she needs hasraah in order to be chayav misah, but there are after all other consequences of it being באונס vs. ברצון, such as whether she's assur to her husband. – Meir Sep 12 '19 at 03:10
I guess what I'm trying to say is : 1. As you imply, the pesukim dealing with the field situation are saying that the girl is presumed innocent because she people are usually far enough to not hear her cries, so we assume she did cry but no one heard her 2. But then these very same pesukim - which we would assume are dealing with the very same situation (sincethere was no change of context) - say that the man should die 3. How could he die if in this situation there was no one around to hear the girl [and so certainly no witnesses either]. – user9806 Sep 12 '19 at 16:07
@user9806 Because they were around, and maybe even fairly close (no need for them to scream their warnings); they just weren't around at the beginning, which is the critical time for establishing whether it was oness or ratzon for her. Once that critical time has passed, there is never any way that they can convict her, even with hasraah (because even if she says אלמלא נזקק לה היתה שוכרתו, it makes no difference), whereas there can be a conviction for him, if they gave him hasraah. – Meir Sep 12 '19 at 16:20
Whereas in the city, if they didn't hear her screams at the beginning, there was no תחלתו באונס, so they can give hasraah to both of them, and if she accepts it (התיר עצמו למיתה), then she can be convicted. – Meir Sep 12 '19 at 16:20
"Once that critical time has passed, there is never any way that they can convict her, even with hasraah" - can you really deduce that from that Gemara in Kesubos 51b? There it's talking about determining b'rotzon or b'ones after the fact - and that even if she says "אלמלא נזקק לה היתה שוכרתו" we can still assume it was b'ones in the beginning, and the end was forced by yetzer hara that took hold. But in your scenario, the witnesses run up to her during the act, and actively give hasraah. If she still doesn't stop, can we still claim it's yetzer hara forcing her? – user9806 Sep 12 '19 at 22:08
@user9806 It has to be talking about during the act, otherwise what does it mean הניחו לו? If that was addressed to the beis din (i.e., "leave him alone and don't convict him"), then it would be meaningless - he'd be chayav misah whether she hired him or not. It has to be addressed to the witnesses (i.e., "leave him alone and don't try to drag him away from me"). – Meir Sep 13 '19 at 15:19

How can a rapist in the field be executed, if there were no witnesses?

2 Answers2