Siman 177

One who seduces or rapes an Israelite virgin pays fifty sela’im of Tyrian silver, as is explicit in the Torah regarding one who rapes in Parashat Ki Tetze and one who seduces in Mishpatim, whether she was the daughter of the greatest in Israel or the daughter of the least in Israel (Arachin 14b), for every matter of a knas is equal for all. There is a difference between one who rapes and one who seduces: for one who seduces does not pay the knas unless he does not marry her, as it is written: "If her father utterly refuses to give her to him, he shall weigh out silver according to the dowry of virgins." The intent is according to the dowry explicit regarding one who rapes, as it is written there: "Then the man who lay with her shall give to the girl's father fifty pieces of silver." However, when he marries her, he is exempt from the knas, but he writes her a ketubah like other virgins; likewise, they do not compel him to marry her. But regarding one who rapes, he pays in every case, and also if she and her father agree to be married to him, he marries her against his will, even if she is lame or blind and the like, for behold it is written: "And she shall be his wife," which implies against his will, as is explicit there in the verse: "He may not send her away all his days" without her consent. Therefore, she has no ketubah, for the ketubah was instituted so that she should not be light in his eyes to divorce her, and this one he cannot divorce without her consent (and see what I wrote in siman 66, that in this time when it is forbidden to divorce against her will, there is a line of reasoning to say likewise regarding the matter of the ketubah, see there).

The Rambam wrote in the first chapter of Ne'arah: Who is a seducer and who is a rapist? A seducer is one who acts with her consent; a rapist is one who comes upon her against her will. Anyone who is intimate in the field is presumed to have been raped, and we judge her with the law of a rape victim until witnesses testify that she was intimate with consent. And anyone who is intimate in the city is presumed to have been seduced because she did not cry out, until witnesses testify that she was raped, such as if he drew a sword against her and said to her: "If you cry out, I will kill you." Thus far his words. And the Ra'avad wrote that he does not know what the practical difference is in this presumption; in any case, if there are witnesses, let them come and testify how it was, whether by rape or by consent, and if there are no witnesses, there is no fine here. And if it is regarding the matter of shame and blemish, this is a great principle in the law: the burden of proof is upon the claimant. Thus far his words. And he is always believed to say that it was with consent until she brings proof that it was by rape.

And the intention of the Rambam is this: that it deals with a case where there are witnesses who stood from afar and saw the act, but they could not determine if it was by compulsion or by will. Therefore, in a city the presumption is that it was by will, and in a field the presumption is that it was by compulsion (Maggid Mishneh and Kesef Mishneh). And the principle of "the burden of proof is on the claimant" is not relevant here because this is considered by us as a clear matter. And the Rambam learned this from the verse regarding a betrothed maiden, as it is written that when it was in the city both are executed, and in the field he alone shall die; behold, this is explicitly stated. But the Ra'avad holds that perforce the verse teaches the common way of the world, and the intention is not specifically thus, for behold, there we require a warning, and perforce the witnesses must know clearly how the act occurred. Rather, certainly there is no difference between a city and a field, and so we have learned in the Sifrei on the verse "for he found her in the field," and this is its wording: One might think in the city she is liable and in the field she is exempt; the verse teaches "she cried out etc." and if she has no savior, whether in the city or in the field she is exempt, and if she has a savior, whether in the city or in the field she is liable. Thus far its words. And the Rambam would explain that certainly it is not specific since there is a warning; but in any case, since the Torah employed this as the common way of the world, if so, regarding the matter of the fine—which does not require a warning but only the general observation of witnesses—if the witnesses saw from afar and did not know as I have written, we establish it upon the common way of the world that the Torah wrote, and neither of them is believed to say the opposite until he brings proof. And also the Semag (Positive Commandment 54) wrote like the Rambam; see there.

From when does a girl have a fine? From after three years and one day until she reaches maturity. If she had intercourse within three years, her intercourse is not considered intercourse. If one had intercourse with her after she reached maturity, she has no fine, as it is said: "A girl who is a virgin," and not a mature woman. This is the opinion of the Rambam there (following the sages, Ketubot 40b). Rabbeinu Chananel and the Ra'avad ruled that it is specifically a girl and not a minor (following Rabbi Meir ibid.). The Rosh and the Tur agreed with the words of the Rambam, and the Semag wrote similarly there.

And behold, according to the opinion of the Rambam and the Tur, it appears that regarding a minor girl, one does not find the case of "willingly" at all, for the seduction of a minor girl is considered rape. However, the Rambam does not hold this reasoning, as his words are explained in chapter 2 of Sotah and in chapter 3 of Issurei Biah, and we have already explained his reasoning in siman 68; therefore, he did not mention this. But regarding the Tur, it is difficult why he did not mention this.

The fifty sela’im are a fine for the evil act he committed, but aside from this, he must pay for boshet, pegam, and tza’ar in the case of a woman who was raped; and in the case of a woman who was seduced, boshet and pegam, as there is no tza’ar for a woman who was seduced. These are not equal for every person; rather, everything is according to what it is, just as boshet is entirely according to the one who shames and the one who is shamed, for one who shames a distinguished young woman from a lineage of high standing is not similar to one who shames a contemptible woman from a lowly family, and a woman shamed by a distinguished person is not similar to a woman shamed by a contemptible and base person. According to this, the beit din views his status and value and her status and value, and they assess how much her father and her family would have given so that this thing would not happen to her from such a person, and such he shall pay.

Regarding defect, we see how much she is worth now less than what she was worth initially; that is, we appraise her as a maidservant sold in the market according to her beauty and according to her family. Even though she is not standing to be sold, and it is a disgrace for her to be sold, nevertheless it is necessary to appraise in this manner, for her disgrace has already been appraised in the payment for shame. And even though for a maidservant sold for labor there is no difference between one who is defective and one who is not defective, nevertheless there is a difference, for sometimes a person has a slave who is dear to him and he wishes to marry him to a woman as beautiful and of such lineage as this, and we appraise how much more he would add to give for her when she is a virgin than when she is a non-virgin, and thus he shall give to her (Ketubot 40b). And pain we appraise according to his smallness and her smallness and according to her health, how much she suffered, and such he shall give in the case of a woman who was raped (and see Tosafot ibid. 39a, beginning with "Pain").

It is written: "and she shall be his wife, he may not send her away all his days." Therefore, when he transgressed and divorced her against her will, he does not receive malkot for this negative commandment, for it is a negative commandment linked to a positive commandment. And even though the positive commandment preceded the negative commandment, and it is only called "linked to a positive commandment" when the positive commandment follows the negative commandment, nevertheless, since it is written "all his days" and it is superfluous, this is what it means: all his days he stands under the obligation to arise and take her back (Makkot 14b). Therefore, we consider it linked to a positive commandment and we compel him to take her back, and he does not receive malkot unless he was a kohen who is forbidden to a divorcee, for then he receives malkot; or even in the case of a Yisrael when she was betrothed to another or died before he took her back, for he receives malkot because he transgressed the negative commandment and cannot fulfill the positive commandment within it. Thus ruled the Rambam and the Tur (and they rule like the one who says in Makkot ibid. "fulfilled it or did not fulfill it," and so he wrote in the Laws of Sanhedrin chapter 16, and we have written of this in Choshen Mishpat siman 97; but according to the one who says "nullified it or did not nullify it," he does not receive malkot unless he forbade her by a vow with the knowledge of the public, as is stated there in Makkot 16a. And it requires further study regarding a kohen why it is not called "nullifying it by a direct action," see there and delve into it).

When the victim of rape or seduction is a forbidden relation to him, and even if she is not a forbidden relation but is forbidden to him by a negative commandment or a positive commandment, or even a secondary degree of forbidden relation from the rabbis, it is forbidden for him to marry her, as it is said: "And she shall be to him for a wife"—a wife whom he is fit to maintain. And we do not say let the positive commandment come and override the negative commandment and let us not expound "a wife whom he is fit to maintain," for it is not superfluous. And this is the explanation: "And she shall be to him for a wife" with her consent, when she desires him, and not when she is forced to marry him (see Tosafot Ketubot 40a, s.v. "neiti"), for we do not judge here the law of a positive commandment overriding a negative commandment, as it is a light positive commandment, for if she says "I do not want him," the positive commandment is removed entirely (Gemara ibid. and according to the explanation of the Ran, see there). Therefore, it is an obligation to teach her that she should say "I do not desire him" (Rashi). Furthermore, there is also a prohibition upon her, and how can she transgress in a matter that depends on her will? And for this reason, even a secondary degree is forbidden, for since it is in her power to say "I do not want him," this positive commandment does not override even a rabbinic prohibition (Sefer Mitzvot Gadol, positive commandment 54; and so wrote the Yam Shel Shlomo, Perek Arba Mitot, siman 14; and I wonder at the Beit Yosef and the Beit Shmuel, subsection 3, and the Mishneh LaMelekh, chapter 1 of Hilkhot Na'arah, who were pressed regarding the reason for a secondary degree, see there).

And all this is regarding the matter that he shall marry her, but he is obligated to pay the kenas even when she is not fit to be married. We do not say that since we do not apply to her "and she shall be to him a wife," he shall also not pay the kenas, for they are in one verse; for the Torah explicitly included those liable for negative commandments and those liable for karet regarding the matter of kenas, as it is written: "he shall weigh out silver according to the dowry of the virgins [habetulot]." It could have written "according to the dowry of a virgin [betulah]" like the beginning of the verse where it is written "and if a man entices a virgin [betulah]," yet it is written "betulot," and also the letter Heh at the beginning of the word—one to include those liable for negative commandments and one to include those liable for karet (ibid. 29b). And so the sages taught in the Mishnah there: These are the young women who have a kenas: one who has relations with a mamzeret, etc., one who has relations with his sister, etc., even though they are subject to karet, they are not subject to death by a beit din. For when there is death by a beit din, such as one who has relations with his daughter, he is exempt from kenas, for he is subject to the greater punishment, and a person does not die and pay. And even if it was unintentional, or intentional and they did not warn him, we hold that those liable for unintentional deaths are exempt from payments (ibid. 35a), and certainly if it was intentional and they did not warn him. And so too regarding those liable for negative commandments, the obligation is only when it is unintentional, or intentional and they did not warn him, for if they had warned him, he would be lashed, and we hold that one does not receive lashes and pay. But regarding the matter of unintentional and intentional without a warning, it is not similar to those liable for deaths. And this is the opinion of the Rambam in the first chapter of Na'arah, see there (for he ruled like Rabbi Yochanan there and not like Resh Lakish, and the Yam Shel Shlomo there, siman 4, disagrees with him because Rava holds like Resh Lakish, but the Tur also wrote like the Rambam).

In several places in the Gemara it is explained that the obligation of a kenas applies even if he had relations with her in an unnatural manner, for in Yevamot (59a) we say: "And she shall be to him as a wife"—with a woman who is fit for him, excluding a widow to a Kohen Gadol; and it establishes this in a case of relations in an unnatural manner, see there. Behold, she was excluded only because of the prohibition of the priesthood, but regarding the kenas he is obligated. And similarly in Ketubot (40b) we say: If two men had relations with her, one in a natural manner and one in an unnatural manner, will they say the one who had relations with a complete woman pays fifty, and the one who had relations with a damaged woman pays fifty? See there. Behold, he is obligated in a kenas even in an unnatural manner. And similarly in Kiddushin (9b) we say: When ten men had relations with her and she is still a betulah, they all pay a kenas. And so ruled the Tosafot, the Rosh, the Tur, and all the Rishonim. And so it is stated in the Yerushalmi Ketubot chapter 3 (halacha 6): that when ten men had relations with her in an unnatural manner, they all pay a kenas, and she has the ability to choose who shall marry her; and when she has chosen one of them, the rest are exempt from the matter of "and she shall be to him as a wife," but before she has married this one whom she chose, she has the ability to choose another, see there.

According to this, the words of the Rambam in chapter 1 of Na'arah, law 8, are very astonishing. This is his wording: The one who rapes or seduces is not liable for the knas until he has relations with her in the natural manner and with witnesses, and there is no need for a warning. Thus far his words. And he wrote similarly there in chapter 2, law 8. This is his wording: If two men had relations with her, one in the natural manner and one in an unnatural manner, the one who had relations with her in an unnatural manner, if he is the first, is liable for boshet and pegam, and if he is the last, he is liable for boshet alone, as she was already damaged; and the one who had relations with her in the natural manner, whether first or last, is liable for the knas and for the other matters, but the boshet and pegam of a girl who has never had relations at all is not like the boshet and pegam of this one who had relations in an unnatural manner. Thus far his words. And the Ra'avad, the Rosh, the Ran, and several of the Rishonim have already wondered at him and rejected his words, as the Tur wrote; see there.

However, he is not alone in this matter, for the Semag also ruled accordingly there, and such is the opinion of Rashi (Sanhedrin 73b) who wrote that the kenas is not obligated except upon the completion of the act, etc., for the verse is particular regarding the virginity, as it is written "a virgin girl," etc. Thus far his words. And the Meiri and one of the teachers of Rashi, of blessed memory, ruled accordingly (Shitah Mekubetzet, Ketubot ibid.). However, in the Gemara of Ketubot they would explain that it does not refer to two virgins, but rather to one whom previously one person had relations with her unnaturally, and afterwards the second person had relations with her naturally; the second is liable even though she was already damaged by the first, and her damage is not similar to one who has relations for the first time naturally. Also the language of the Shas implies this, for if not so, it should have said "if they had relations with two virgins," etc. (and the Yam Shel Shlomo indeed raised this difficulty). And so it is proven from the commentary of Rashi there and in Arachin (15a); see there carefully. And from Yevamot there is no proof, for since it expounds from the verse "and she shall be his wife" as "a wife who is fit for him," it is not according to the halacha of the Mishnah of "Elu Na'arot," for we do not expound "a wife who is fit for him," and it follows the Tannaic view of the Baraita at the beginning of "Elu Na'arot" who expounded thus, not like our Mishnah, and we rule according to our Mishnah. And according to this, it can be said also in Kiddushin there that it follows according to those Tannaim and not according to the halacha, and the plain meaning of the sugya in Sanhedrin there implies this; see there (so it appears to me). And another reason will be explained in section 22.

And that which the Rambam wrote in chapter 1, law 5: If this raped woman was forbidden to him, even by a positive commandment or even a second-degree forbidden relation, he shall not marry her; and similarly, if some matter of immorality was found in her after he married her, he shall divorce her, as it is said, "and she shall be a wife to him"—a wife who is fit for him. Thus far his words. It is not that he expounds the verse in this way, for it is explicitly proven in the Gemara that according to our Mishnah we do not expound thus, but rather he did not wish to elaborate on the reasoning of the Gemara which says that there is no rule here of a positive commandment overriding a negative commandment, as I have written. And such is his way in several places, to cite the simple exposition even though it is not according to the halacha, and this is also the way of the Shas, as the Tosafot wrote in several places (see Tosafot Shabbat 132a, starting with "Hahi").

A Kohen Gadol who raped a virgin or seduced her, he shall not marry her because he is commanded to take a virgin, and at the time he marries this one, she is not a virgin. And if he married her, he must release her with a get, for this act of cohabitation that he performed with her is not considered marriage, as he cohabited with her for the purpose of zenut. And even though regarding the matter of the ketubah we consider this cohabitation as marriage—for he gives her the ketubah of a virgin in the case of a seduced woman, as has been written—this is regarding monetary matters so that a sinner should not profit, and not regarding the matter of prohibition.

If one had relations with a virgin and she and her father did not manage to bring him to beit din before she died, he is exempt, as it is said: "And he shall give to the father of the girl" (38b), and not to the father of a deceased girl. For this word "the girl" is superfluous, as it should have written "and he shall give to her father"; rather, it comes for an exposition. And we do not expound "the girl" as referring to one who was already a girl, as we expound elsewhere, for if so, it should not have written it at all, and by logic we would know that he pays, since his obligation presumably begins at the time of the relations; rather, it certainly comes for the opposite, to exempt when she died before being brought to beit din (Tosafot).

But the father is not an absolute requirement, for even though it is written "and he shall give to the father of the girl," nevertheless, if she is an orphan, he gives her the knas in the case of one who was raped; for in the case of one who was seduced, it is not relevant to give it to her, as she has surely waived it. And similarly, a na'arah who was betrothed and divorced, the sages taught that her knas belongs to herself even when she has a father, for it is written "who was not betrothed," and we expound: but if she was betrothed and divorced, it belongs to herself (38a). For if she was not divorced, the knas would not be relevant as he would be liable for death; rather, it deals with one who was divorced, and automatically the same applies to an orphan. And see what I wrote in Choshen Mishpat, siman 38, section 26 regarding the opinion of the Rambam on this.

The Rambam wrote there: And these are those who have no knas: the bogeret, the me'manet, the ailonit, the shoteh, the chereshet, and one who gained an ill repute in her childhood and two witnesses came and testified that she solicited them to commit zenut with her, and one divorced from marriage while she is still a naarah virgin; but one divorced from betrothal, if she was raped, she has a knas and her knas belongs to herself, but if she was seduced, she has no knas. Thus far his words. And behold, bogeret is explicit in the verse: "naarah" and not a bogeret. And likewise a me'manet, since she was under a husband, she is not a virgin. But regarding what he ruled for an ailonit, a shoteh, and a chereshet, that they have no knas, all the Rishonim wondered at him and rejected his words, for in the Gemara (36a) it is explained that this depends on a ketanah; for whoever requires a knas for a ketanah requires it for an ailonit, because an ailonit has no days of naarut, and from her childhood she passes to adulthood, for until twenty years she is a ketanah, and from then on, when she brings signs of an ailonit, she is an adult, as written in siman 155 and siman 172. And whoever exempts a ketanah also exempts an ailonit, and likewise a shoteh and a chereshet are like a ketanah. And if so, since we hold that there is a knas for a ketanah, as the Rambam himself wrote, how did he rule that there is no knas for these? Therefore, they ruled that these have a knas, and so wrote the Tur; see there.

However, in truth it appears to me that the Rambam, of blessed memory, had another approach regarding the conclusion of the Gemara there, and he holds that there is a distinction between a minor and an aylonit, a fool, and a deaf-mute. His reasoning is as follows: for the one who requires a fine for a minor, it is stated in the Gemara (40b) that the reason is because it is written "na'arah" lacking the letter "heh," which implies even a minor, see there. However, in any event, "na'arah" is certainly implied, and how can we require a fine for an aylonit who will never be included in the category of "na'arah"? Similarly, a deaf-mute and a fool. It is understandable regarding a minor of sound senses—now she is a minor, but she will become a "na'arah." But these will never come to the status of "na'arot." And this is what the Gemara says there (36a): This Tanna holds like him in one matter and disagrees with him in another matter; meaning, regarding a minor he holds like the Rabbanan that he is liable, and regarding an aylonit like Rabbi Meir (for the Rabbanan require it, as is explicit in the Baraita that follows: the deaf-mute, the fool, and the aylonit have a fine; and he does not explain according to the explanation of Rashi, and it is clear, and so wrote the Beit Yosef in the name of the Maharik, see there and examine carefully).

The female convert, the captive, and the liberated maidservant—if she converted, was ransomed, or was liberated when she was three years old or less, as she is not fit for intercourse, she is in the legal presumption of being a virgin and they receive a kenas. But if they are three years and one day old, and all the more so if more, they do not receive a kenas, for they are in the legal presumption of having had intercourse, as has been written in siman 66 regarding the claim of virginity; see there.

The wording of the Tur: The Rambam wrote, every girl who is entitled to a kenas is entitled to boshet and pegam, and if she was raped, she is entitled to tza’ar; and every girl who is not entitled to a kenas is not entitled to boshet or pegam if she was seduced, and likewise if she was raped, except for a bogeret, a me'anenet, a shoteh, and a chereshet. How so? One who rapes a bogeret or a me'anenet, even though they are not entitled to a kenas, they are entitled to boshet, pegam, and tza’ar; and one who rapes a shoteh or a chereshet pays the tza’ar alone; but one who seduces any of them is exempt from everything. Thus far his words. And I do not understand his words, for how are tza’ar, boshet, and pegam dependent upon kenas? For even though they are not entitled to a kenas, why should they not be entitled to the other things? Thus far the words of the Tur (the Beit Yosef also remained in difficulty). And in truth, these are puzzling matters against the Gemara and against logic, and it is a wonder that the Ra'avad remained silent regarding him.

Therefore, it appears to me that another intention is hidden in his words, and he too admits that the matter of a fine does not apply to boshet, pegam, and tza'ar, and a scribal error fell into his books, and in place of "me'manet" it should say "ailonit." And this is what he holds: that boshet, pegam, and tza'ar only apply to a virgin, as is proven from the Shas which says that the assessment of pegam is the difference between a virgin maidservant and a non-virgin (40b). And it is likewise proven in Sanhedrin (73a) that pegam is the removal of virginity, see there. And for this reason, the Rambam only obligates for intercourse in the natural way, in which there is the removal of virginity, but for a non-virgin there is no pegam. And likewise there is no tza'ar for a non-virgin, as is proven in the Gemara (39b). And as for boshet, even though it is not explicitly explained, nevertheless it is certainly similar to pegam, for we do not find in the Gemara regarding this matter that there should be boshet without pegam. And the logic is also thus: that the shame is toward the husband she will marry and he will not find her to have virginity. And the Rambam counted ten girls who do not have a kenas: a bogeret, a me'manet, a divorcee from marriage, an ailonit, a shoteh, a deaf-mute, a convert, a captive, and a freedwoman older than three years, and one who has a bad reputation. And behold, these six—me'manet, divorcee, convert, captive, freedwoman, and one with a bad reputation—are all presumed to be non-virgins. And this is what he wrote: that all those who do not have a kenas do not have the other things, whether by force or by will, because they are non-virgins, except for a bogeret, an ailonit, a deaf-mute, and a shoteh; except that regarding a shoteh and a deaf-mute, only tza'ar is relevant and not boshet and pegam, as is understood. (And I am able to say that there is no scribal error here, and he holds regarding a me'manet like the opinion of the Tosafot 35b s.v. "Ha-me'manet," and an ailonit is not included in the category of a virgin according to him since she is not fit to be married; however, all this seems forced, and therefore it appears clear to me as I wrote.) (See Rashi Me'ilah 19a s.v. "Akshiyeh").

The three things of a seducer and the four of a rapist all belong to the father, for all the profit of youth belongs to her father; and furthermore, since it is in his power to hand her over for kiddushin to a person who is repulsive or afflicted with boils, and she would have shame, blemish, and pain. Therefore, even though it is only explicit in the Torah that the fine belongs to the father, nevertheless, the other matters also belong to the father. And if she has no father, it belongs to herself. And in any place where it would belong to herself, it does not apply to a seduced woman, for she has waived it. However, when she is a ketannah, it could be said that the waiver of a ketannah is nothing, and the Tosafot wrote so (42a). But from the Rambam it does not appear so, as is evident from what he wrote in chapter 1, law 9, regarding a woman divorced from erusin, that the fine belongs to herself, for a seduced woman has no fine, and he did not distinguish between a ketannah and a naarah; see there, and it requires further study (see Mishneh LaMelekh chapter 2, law 13). Furthermore, regarding a ketannah, seduction is not applicable, for the seduction of a ketannah is considered rape. However, the Rambam, of blessed memory, follows his own reasoning, as he does not hold this way, as I wrote in section 5.

The Rambam wrote in chapter 2, law 16: A daughter who was betrothed and divorced, the knas alone belongs to herself; if she was raped or seduced and afterwards became betrothed to another, her knas and the other matters belong to her father, for betrothal does not remove her from the father's domain. Thus far his words. And his reasoning regarding one who was raped or seduced after she was betrothed and divorced, that only the knas alone belongs to herself but the boshet, pegam, and tza'ar belong to the father, is because according to the essential law even the knas should have belonged to the father, for she did not leave his domain, except that the Torah decreed it belongs to herself as I wrote in section 17; therefore, the knas alone, which is explicit in the Torah, is sufficient. Furthermore, it is still within his power to cause her pegam and boshet by delivering her for kiddushin to a person who is repulsive or afflicted with boils. However, the Rosh disagrees with him and holds that everything belongs to her; see there and in the Tur.

The sages taught in the Mishnah (beginning of chapter 4): A na’arah who was seduced—her boshet, her pegam, and her knas belong to her father, and the tza’ar in a case of seizure. If she stood in judgment before the father died, they belong to the father (even if he has not yet collected); if the father died, they belong to the brothers (who inherit him). If she did not manage to stand in judgment before the father died, they belong to herself (for the father does not acquire them before she stands in judgment). And such is the law if she became a bogeret before standing in judgment or married before standing in judgment—they belong to herself (39a), because becoming a bogeret and marriage remove her from the father's authority, and therefore when she did not stand in judgment before she left his authority, he does not acquire the knas and all the matters.

And there is a question regarding this: it is well and good to say regarding the knas that the Torah did not grant it to the father prior to the standing in judgment, but regarding boshet and pegam, which are absolute monetary obligations, why should he not merit them beforehand and bequeath them to his sons? And the answer is that regarding this matter, boshet and pegam are juxtaposed to the knas, as it is written, "because he has humbled her," implying that there are boshet and pegam, for to whomever this is given, that is given (Tosafot 38b, s.v. yesh bager). And this is the opinion of the Rambam in chapter 2, halacha 15; see there. However, there are some of our teachers who hold that in truth this only refers to the knas alone (Ran ibid.), and this is the opinion of the Ra'avad there, and they wondered at the Ra'avad in vain (see Kesef Mishneh and so wrote the Mishneh LaMelech). Nevertheless, according to the Rambam, it is impossible to say that he holds that knas is juxtaposed to boshet and pegam, for behold, in a case where she was betrothed and divorced, he distinguishes between one and the other, as I wrote in section 24. Therefore, it appears to me that he holds that as long as he has not merited the knas, he has also not merited the boshet and pegam; for since they come on account of the act of intercourse, and the payment explicitly stated in the Torah is the knas, he does not merit them either prior to the standing in judgment. And so it is implied in the Yerushalmi, that the boshet and pegam of intercourse are not similar to the boshet and pegam of injuries; see there at the beginning of chapter 4.

There is a further question regarding this: since she acquired [the right to the payment] when the father died or she reached majority prior to the standing in judgment, how can she collect in the case of a seduced woman, for behold, she waived it? For we learned in a Mishnah regarding a na'arah that she is able to waive. And some say, in truth, that that which we learned in the Mishnah, "if she did not manage to stand in judgment before the father died, behold they belong to herself," does not refer except to a raped woman, but in the case of a seduced woman, she has waived (Ramban, see Shittah Mekubetzet). And some say that it refers to a seduced woman as well, for since at the time of the act she was not able to waive, as it then belonged to the father, she therefore acquired it afterwards even in the case of a seduced woman, for waiver is not relevant afterwards; waiver is regarding the time of the act, and at that time she did not have the authority to waive (Ran and Ritva). (Some say that the intention of the Ra'avad in his gloss is this: that a seduced woman would not be liable, for behold, she waived; so wrote the Yam Shel Shlomo and the Tosafot Yom Tov):

The Rambam wrote (ibid.): A person never pays a kenas anywhere based on his own admission, but rather only based on the testimony of witnesses. Therefore, one who says, "I raped" or "I seduced the daughter of so-and-so," does not pay a kenas, but he pays boshet and pegam based on his own admission. And so too, a daughter who sued a man in a beit din and said to him, "You raped me" or "You seduced me," and he says, "These things never occurred," he must take a shevuat hesset, for had he admitted, he would have paid her boshet, pegam, and tza'ar based on his own word. Thus far his words. And behold, regarding "you raped," it is well-settled, but regarding "you seduced," she has surely waived her rights. The commentators wrote that indeed the Ra'avad disagreed with him on this (see Kesef Mishneh and Mishneh LaMelekh). And it appears that the intention of the Rambam is that the meaning is as follows: she has a father and she sues that he should pay the father, and she is called his litigant even though the payments are not hers, since the payments came about because of her.

He further wrote: If she said to him, "You raped me," and he says, "No, rather I seduced you," he must swear a Torah oath regarding the pain and pay for the shame and the blemish, for he has confessed to a part of the claim. Thus far his words. And regarding this as well, it must be said as I have written, for if not so, there is no confession to a part of the claim according to his words (see Kessef Mishneh). And know that all this applies to a ketanah and a naarah, but regarding a bogeret who sues, there is no oath of confession to a part of the claim, since they belong to her, and therefore when he says, "I seduced you," she is entitled to nothing. And even a shevuat hesset should not be administered in this time when the licentious have increased, for if we obligate an oath to every female claimant in such matters, there would be no end to the matter; and we have already explained this in Choshen Mishpat siman 87, section 27, see there. And that which our teacher, the Rema, wrote in this siman: A zonah who sued someone who vowed her something as her hire and he denies it, he must swear as in other claims; thus far his words. This is when he admits that he had relations with her but denies the hire, and not when he denies her entirely. However, if they see clearly that the act is true, it is proper to see that he compensates her according to the view of the beit din. And even if he promised to marry her, this is nothing, for she is a zonah and she also acted for the sake of the desire of zenut (Maharik, shoresh 129). And although there are some among the later authorities who hesitate regarding this (see Be'er Mayim and Pitchei Teshuvah, subsection 1), nevertheless, this is the primary ruling, and we do not compel him to marry her. And if she claims that she gave birth from him and that he should provide sustenance for the child, if he admits that the child is from him, it is obvious that he is liable for its sustenance; and if he does not admit it, we do not administer an oath to him regarding this (Beit Shmuel, siman 4, subsection 26). And we have already explained this in siman 22, section 4, see there.

The cases of an ones and a mefatteh are adjudicated by three ordained judges in Eretz Yisrael, and nowadays we do not adjudicate this, as is written in Choshen Mishpat siman 1. It was explained there that the Geonim wrote that nevertheless, we pressure him to appease her with a sum of money, and when the beit din sees that he gives her close to the amount of the obligation, it is sufficient. Similarly, if he appeases with words and they are appeased, we do not care. And know that it is called ones when the beginning of the act was by compulsion, even if she subsequently consented, for her passion overcame her (Ketubot 51b).

One who is suspected regarding an unmarried woman, where it is said that he had relations with her and he wishes to marry her, some say he should not marry her due to the "slander of the lips," as through this the rumor will be strengthened. And some say, on the contrary, that it is a mitzvah to marry her, as we find in the Torah regarding a young woman in cases of rape and seduction. The first opinion is primary, since we do not know with certainty that he had relations with her. Nevertheless, if there is a concern that she will go out to an evil culture, it is permitted to marry her, and it is a mitzvah to involve oneself in this. But if he certainly had relations with her, it is obvious that it is a mitzvah to marry her, but we do not compel him to do so, for even with a young woman in the case of a seducer we do not compel him, as has been explained, and certainly so with an adult woman. And if she is suspected regarding two men, where the first is nothing more than a mere rumor and the second added to her defect, it is a mitzvah for the second to marry her. And if she is suspected regarding both of them equally, and one is married and the other is not married, it is a mitzvah for the one who is not married to marry her. Thus ruled our teacher, the Rema, in this siman.

He further wrote that that which the Torah obligated the rapist and the seducer to pay money applies if the act has already occurred by chance, but it is forbidden for a father to give his daughter over to zenut, and regarding this it is stated, "Do not profane your daughter to make her a harlot." Anyone who prepares herself for zenut, whether of her own will or the will of her father, she is a kedeshah, and there is no difference in this between a virgin and a non-virgin. The beit din is permitted to penalize in order to create a fence. Thus far his words. His source is from the Rambam at the end of the second chapter of Laws of a Maiden. And all the more so regarding an adult woman, for there is the prohibition of niddah and they are liable for karet, and the source of the impurity is zenut, as is explicit in the Torah.

A motzi shem ra mentioned in the Torah is when one betrothed a virgin maiden and after a period of time married her and had relations with her, and he came to beit din and says that he did not find her to be a virgin and that she committed adultery after the betrothal. If the matter is true, she is liable to stoning; and if the matter is found to be false, they fine him one hundred silver sela'im and lash him, and he is never permitted to divorce her. All of this is explicit in the Torah in Parshat Ki Tetze. The fine belongs to her father, and if she is an orphan, it belongs to her (Ketubot 44b). And even though throughout the entire Torah we hold that a person is not lashed and also pays, motzi shem ra is different because it is a fine; for that which one is not lashed and also pays we derive from "according to his wickedness," meaning for one wickedness you may obligate him, but not for two wickednesses, and this applies to a monetary obligation but not to a monetary fine (Makkot 4b; and see there in Tosafot). The obligation of the husband is only regarding a maiden (na'arah), as is written in the verse, and also not regarding a minor (ketannah). And even though regarding the fine of an oness and a mefatteh we obligate even for a minor as has been written, nevertheless, since throughout the entire Torah "na'arah" is written lacking the letter "heh" and in motzi shem ra it is written with a full "heh," from this we infer that the verse spoke of a full maiden and not a minor (ibid.).

In the Gemara (46a) there is a dispute of Tannaim whether the liability of one who brings a bad name is specifically when he had the first intercourse and said, "I did not find her tokens of virginity," and according to this, that which is written, "And they shall spread the garment," is according to its plain meaning to show that he brought a bad name, for her tokens of virginity were found; or whether the liability is even without having yet had intercourse, but rather he brings witnesses that she committed adultery while under him, and according to this, "And they shall spread the garment" will be interpreted as a clarification of the matters. Thus it is stated in the Gemara ibid. And the Rambam and the Ra'avad and the Tur ruled like the one who said specifically when he had intercourse (like Rabbi Eliezer ben Yaakov, whose teaching is a kav and clean). And this is the conclusion of the sugya, that he is not liable until he has intercourse in the natural way and also brings a bad name regarding her having had intercourse in the natural way while under him. And according to this, one must wonder about the Rambam at the end of chapter 3 who wrote that this which is said in the Torah, "And they shall spread the garment," is an expression of honor, that they negotiate the hidden aspects of the matter, and likewise what is said, "And these are the tokens of my daughter's virginity," the intention is regarding the witnesses who refute the witnesses of the husband. Thus far his words. And since he ruled that it is not until he has intercourse, it should be interpreted according to its plain meaning.

And it appears to me that his words are very correct in this, and perforce it is impossible to interpret it according to its plain meaning, for the spreading of the garment neither adds nor detracts; for however you look at it, if the husband did not bring witnesses regarding her zenut, it is nothing, and if he brought witnesses, she is stoned, for "by the mouth of two witnesses shall a matter be established." And if the father brought witnesses and they conspired against the witnesses of the husband—which is the essence of this passage, as will be explained—even if he does not spread the garment, what of it? Therefore, he explains in truth that this is only a way of honor. And that which they said in the Gemara, that according to the one who says "when he had intercourse," this is what is written, "And they shall spread the garment etc." and "these are the tokens of my daughter's virginity," it means to say: since the Torah made a metaphor for the inquiry and investigation in this matter using the term "spreading a garment," the verse does not depart from its plain meaning, that there is a garment and he had intercourse upon it. But according to the one who says "even when he did not have intercourse," this language is not applicable at all. And several of the Rishonim were troubled by this, but according to the Rambam it is simple and settled (and see Tosafot ibid. s.v. bishlama and in the Shita Mekubetzet ibid. who were very pressed in this, and according to our words it is settled with the help of Heaven, and examine it closely):

And so it appears to me, that this which our sages, of blessed memory, said, that he is not liable until he cohabits in the natural manner and produces a "bad name" through the natural manner, as I wrote in section 34—and ostensibly it is puzzling, for regarding all forbidden relations there is no distinction between the natural manner and the unnatural manner, and from where do we know that regarding the production of a "bad name" we require everything to be in the natural manner? Rather, it is certainly because the Torah expressed this with the language of "spreading the garment" to indicate that the essence of the claim is regarding the virginity, and consequently, this is only in the natural manner.

It is a positive commandment from the Torah that the wife of one who defames her shall remain under him forever, and he may not divorce her against her will, as it is said: "And she shall be a wife to him," even if she is blind or afflicted with boils. And if he divorced her against her will, he has transgressed a negative commandment, as it is written: "He may not send her away all his days," and they compel him to take her back. He does not receive lashes, as has been written regarding the rapist. If another man preceded him and betrothed her, or if she died, or if he was a kohen who is forbidden to a divorcee, he receives lashes according to the one who holds "he fulfilled it and did not fulfill it," and according to the one who holds "he nullified it and did not nullify it," he does not receive lashes unless he prohibited her by a vow according to the will of the many, as has been written regarding the rapist.

If there was found in her a matter of immorality, or if she was forbidden to him even from the prohibitions of negative commandments or a positive commandment, and even a second-degree relative, he must divorce her with a get, as it is said: "and she shall be to him for a wife"—a wife who is fit for him. And why does a positive commandment not come and override a negative commandment? Because it depends on her will, for if she says "I do not want him," there is no positive commandment here; therefore, it is possible that she will say so, and both the positive commandment and the negative commandment will be fulfilled. And we have explained the reason for the matter regarding a rapist, that for this reason even a rabbinic prohibition is not overridden, see there, and the same applies here.

The Rambam wrote: How is the "bringing of an evil name" [hotza'at shem ra]? He comes to beit din and says, "I had relations with this young woman and did not find her to have virginity, and when I investigated the matter, it became known to me that she committed adultery while under me after I betrothed her, and these are my witnesses that she committed adultery in their presence." The beit din hears the words of the witnesses and investigates their testimony; if the matter is found to be true, she is stoned. If the father brought witnesses and the husband's witnesses were proven to be zomemim, and it was found that they testified falsely, they are stoned, and he is lashed and gives one hundred sela'im. Regarding this it is said, "And these are the tokens of my daughter's virginity"—these are the witnesses who prove the husband's witnesses to be zomemim. If the husband then returned and brought other witnesses who proved the father's witnesses to be zomemim, behold the young woman and her father's witnesses are stoned. Regarding this it is said, "But if this thing be true"—from the oral tradition they learned that this passage contains witnesses, zomemim, and zomemim of zomemim. Thus far his words. That is to say, that which is written in the passage "I did not find your daughter to have virginity" refers to through witnesses, for without witnesses it is nothing. And that which it says afterward, "And these are the tokens of my daughter's virginity," this is through witnesses of hazamah. And that which it says, "And if it be true," this is through zomemim of zomemim. And specifically in hazamah, but in hachachashah we do not perform an action, for in hazamah it is a decree of the Torah to believe the latter ones, which is not the case in hachachashah, where it is two against two, and we punish neither her nor him. And if he wished to divorce her, he divorces her without a ketubah, for we establish two against two and the money remains in the possession of its master. The difference between hachachashah and hazamah we have explained in Choshen Mishpat siman 38; see there.

He further wrote: If one brought forth an evil name against her and she is a bogeret, even though he brought witnesses that she committed adultery while under him when she was a na'arah, he is exempt from the lashes and from the fine. And if the matter is found to be true, she is stoned even though she is a bogeret, since at the time she committed adultery she was a na'arah. Thus far his words. The explanation of his words is that we hold that a betrothed na'arah who committed adultery is punished with stoning, and a betrothed bogeret who committed adultery is punished with strangulation. And regarding one who brings forth an evil name, it is written "na'arah" and not "bogeret," and therefore when he brought forth an evil name at the time she is a bogeret, the law of the portion does not apply here. Nevertheless, she is judged with stoning because we hold regarding all those liable for death penalties that they are judged with the death penalty they were liable for at the time of the commission of the transgression, even if the witnesses testified when their law and their body had changed in a manner that if they were to commit the transgression now they would be judged with a different death penalty. Nevertheless, we do not say "since the law changed, the execution changed," and similarly we do not say "since the body changed, the execution changed" (Gemara ibid.). But his liability is for the time of bringing forth the evil name, and then she is a bogeret, and therefore he is exempt. And in the Sifrei they expounded: "And he shall give to the father of the na'arah"—and not to the father of a bogeret.

And know that regarding the bringing forth of a shem ra, she is not liable for sekilah unless they testified that she committed adultery during the time she was an arusah; but if they testified that she committed adultery after her entry into the huppah before the husband had intercourse, she is not judged with sekilah but rather with hennek like all nesuot. However, there are some of our teachers who hold that the matter of bringing forth a shem ra, since it is a novelty that the Torah innovated regarding the fine and the lashes, therefore even when they testified that she committed adultery after the huppah, she is subject to sekilah (Rashbam in Tosafot ibid.), for thus the verses imply: "And if the matter was true etc." implies that in any case "and they shall stone her" (ibid. in Tosafot 45a, s.v. Amar). And this is the opinion of the Rambam as well, as he wrote in chapter 3 of Issurei Biah, law 8, and the Ra'avad disagreed with him, see there.

Any young woman who does not have a fine if she was raped or seduced, so too one who brings a shem ra against her is exempt from lashes and from payments. And more than these, one who brings a shem ra, for even a gentile woman or a maidservant who entered the religion of Israel younger than three years, who have a fine as has been written, nevertheless they do not have the laws of one who brings a shem ra. And not only this, but even if she was born in Israel, if her conception was not in sanctity, these laws do not apply to her, as it is said, "because he brought an evil name upon a virgin of Israel," until her conception and her birth are in Israel.

The Rambam wrote: If one betrothed a young woman and divorced her, and then betrothed her again and brought forth a shem ra against her, and brought witnesses that she committed adultery while under him during the first kiddushin, and they were found to be zomemim, he is exempt. Similarly, if she was his yevama whom he married and he brought forth a shem ra against her, and brought witnesses that she committed adultery while under the kiddushin of his brother, and they were found to be zomemim, he is exempt from the lashes and from the payment; and in any case of exemption, if he wishes to divorce, he may divorce. Thus far his words. The explanation of his words is that in the Gemara (46a) they expounded: "I gave my daughter to this man" (Deuteronomy 22:16)—and not to a yavam; meaning, that if he brought forth a shem ra regarding the marriage of his brother, he is exempt. And regarding the first marriage, there was a query there that was not resolved, and therefore he ruled leniently. According to this, his words are difficult regarding what he wrote, "if he wishes to divorce, he may divorce," for regarding a yavam it is understandable, but regarding the first marriage, granted that due to the doubt he does not receive lashes and we do not extract money from him, nevertheless, regarding the prohibition of "he may not send her away," it is a doubt involving a Torah law and should be ruled stringently (Mishneh LaMelech). It is forced to say that the end of his words refers only to a yavam. Furthermore, it is difficult, for from his words it is clear that even if he divorced her from erusin the first time, he is exempt, yet in the Gemara there they said in the query "first marriage," which implies explicitly that he married her the first time, and Rashi explained likewise, see there. And perhaps he holds that in such a case it is obvious that it is nothing, because he did not bring forth the shem ra during the first marriage, and he reads "in the first kiddushin." And it appears to me that he holds that since bringing forth a shem ra is a novelty—that he is lashed and pays and she is stoned even though she committed adultery after the chuppah, as has been written—you have nothing in it but its novelty. And proof for this is that in the Yerushalmi it also excludes if it was kiddushin of yi'ud from a Hebrew maidservant, and similarly if he had relations with her during erusin and brought forth a shem ra, it excludes her, see there; if so, automatically the first kiddushin are also excluded (and the Gemara that said there, "at least one is simple etc., to this one and not to a yavam," this is what it means: since it was taught that the kiddushin of a yavam were excluded, automatically the first kiddushin were also excluded).

He further wrote: He is not liable until he has intercourse with her in the natural way and issues a defamation regarding the intercourse in the natural way. If he had intercourse with her in an unnatural way and said, "I did not find her a virgin," he is exempt, and they strike him with lashes of rebellion. And so too, if he says, "I did not find her a virgin," but did not say that she committed adultery while under him, or if he said, "She committed adultery while under me," but did not bring witnesses, rather they came on their own, behold he is exempt, even though the witnesses are executed if they are proven to be conspiring witnesses. Thus far his words. And it is all for the reason we stated, that you have nothing in it but its novel law. And it is simple that if witnesses came that she committed adultery before the betrothal, she is not liable for anything, but rather his purchase is a mistaken purchase. And one must look into this which he wrote, that if he had intercourse with her in an unnatural way and said, "I did not find virginity," for from where does he know this? Behold, he did not have intercourse with her in the place of virginity. And it appears that because of this they strike him with lashes of rebellion, meaning that even according to his own words, he is speaking a lie.

That which is stated in the Torah regarding one who brings out an evil name, that if the matter is true they shall stone her at the entrance of her father's house, this is not indispensable. The proof is that regarding a betrothed young woman who committed adultery, it is written in that same passage that the stoning is at the gate of the city; why then should the entrance of her father's house be indispensable in the case of one who brings out an evil name? Rather, it is certainly merely for a mitzvah. And so the sages taught in the Mishnah (44a): It was only stated "the entrance of the father's house" as a mitzvah and not as indispensable. And the reason for the mitzvah is in order to shame them, to say: See the offspring that you raised (45a). Therefore, her mother is also written in that same passage, in order to shame them, and so it is proven in the Sifrei, see there. And why specifically regarding one who brings out an evil name and not regarding an ordinary betrothed young woman who committed adultery? Since she was married and her father and mother did not know of the evil deed she had done, they presumably did not supervise her (it appears to me). And the Rambam, of blessed memory, has puzzling words on this matter in chapter 3 of Issurei Biah, see there.

The law of a motzi shem ra is only adjudicated during the time that the Beit HaMikdash existed and in a beit din of twenty-three, because it involves capital laws, for if the matter is true, she is stoned, and we do not adjudicate capital laws in this time. However, the cases of ones and mefateh were adjudicated even in this time when there was a semikhah beit din even after the destruction, and now even this we do not adjudicate, as I wrote in Choshen Mishpat siman 1. And know that regarding a motzi shem ra, even though initially we do not adjudicate with fewer than twenty-three judges, nevertheless, if the matter is found to be false such that it is necessary to adjudicate the fine, we adjudicate with three according to the opinion of the Rambam, and we explained this in Choshen Mishpat siman 3, section 19 with the help of Heaven. And the laws of hazamah regarding a motzi shem ra we explained there with the help of Heaven in siman 38, section 26; see there. The laws of ones and mefateh are completed with the help of Heaven.