Ki Tetze – A Women’s Protection Program

Parshat Ki Tetze – A Women’s Protection Program 

Parshat Ki Tetze establishes a hierarchy of values that we are to follow, which distinguishes between social standards and Jewish ethics. We must apply ourselves in order to preserve the dignity and the rights of women.

Pnina Omer is the Director of OTS’s Yad La’isha: The Monica Dennis Goldberg Leal Aid Center and Hotline  

In light of the laws in practice in the ancient Near East, and even in comparison with the laws described in the Book of Exodus, the discourse on the status of women takes a different course in the Book of Deuteronomy.  This week’s parsha presents a humane approach that calls on us to uphold a woman’s dignity and status, and most importantly, to preserve her rights.

When addressing the issue of women being slandered because they are despised, the Torah defends these women’s reputations and punishes any man who would falsely accuse his wife of impropriety, ensuring that in the future, he would “not be able to send her off [divorce her] all of his days.”

The parsha then discusses protection of the rights of a newly married woman, exempting her husband from military service in unexpected circumstances, so that her husband can be available “to make his wife happy”.

Even when it comes to the harsh reality of captives taken during war – “a beautiful woman…” – the Torah requires us to allow the woman to mourn her family, whom she had lost. “She shall spend a month’s time in your house lamenting her father and mother.”

Other examples appear later in the parsha. We then see a number of laws that protect a women’s rights during a marriage, including the requirement to prepare a get, or a bill of divorcement, for a woman whose husband had lost interest in her – “and he writes her a bill of divorcement, hands it to her, and sends her away from his house”. This law is designed to allow women to continue living their lives and to marry someone else.

The commandments of yibum and chalitzah are also designed to defend women’s status. Yibum, or the levirate marriage, is a well-known practice in the civilizations of the ancient Near East, while chalitzah reflects a progressive and innovative law. The brother of a married man who had passed away is required to marry his widowed sister-in-law, if she remained childless. Though the main rationale for this commandment is to continue the brother’s family line – “… the first son that she bears shall be accounted to the dead brother” – and to ensure that the family’s assets remain in their possession, the concept of levirate marriage also protects the widow’s rights and her legal status. Otherwise, the widow, now bereft of any family or legal status, may find herself destitute and humiliated.

What happens if the yabam, the brother of the deceased, does not want to marry his brother’s widow? “But if the man does not want to marry his brother’s widow, his brother’s widow shall appear before the elders in the gate…”. The community is responsible. The woman has the right to appeal to the elders and ask them to act on her behalf by requesting that the ceremony of “chalitzah” be performed. It is notable that the woman is not allowed to marry anyone until chalitzah had been performed. Chalitzah, like the get, depends on another person’s good will. No one can be compelled to perform it, and a forced chalitzah is considered a chalitzah me’usa, or coerced, and thus is invalid. Dozens of chalitzah ceremonies are performed in Israel nowadays.

Parshat Ki Tetze establishes a hierarchy of values that we are to follow, which distinguishes between social standards and Jewish ethics. In the spirit of Jewish morality, the Torah states that we must make a real effort to preserve the rights and the dignity of women, even if their status is inferior. In the case of the commandments of yibum and chalitzah, the Torah requires us to address how social realities affect women’s private lives. It provides women with a “protection program” in the form of yibum, and even introduces a Plan B, in case Plan A doesn’t work. All of this is done to ensure the woman’s freedom.

What happens if chalitzah cannot be performed? This could happen if the deceased’s brother is a minor, in which case the widow would need to wait until he becomes an adult and can release her through chalitzah. What if the yabam had converted to a different religion, is mentally handicapped, does not wish to perform chalitzah, or is someone whose whereabouts are unknown? That’s a problem. In the spirit of what the text has taught us, Jewish law needs to “wrack its brains” to find a solution to these cases as well.

The Rama (Rabbi Moshe Isserles) had already argued that a tnai kaful (in which one states the terms of both compliance and non-compliance) can be set during the betrothal ceremony, in order to extricate the woman from certain situations that may arise. The Rama states:  “If a person who betroths a woman has a brother who had converted, he may perform the betrothal ceremony while making a tnai kaful stipulating that if his wife is required to appear before the converted brother for yibum, she shall no longer be considered betrothed”. In other words, her betrothal with her first husband will be cancelled retroactively, as if it had never happened. Rabbi Uziel, who was known as a wise individual who enacted many edicts meant to preempt certain social problems and prevent thorny situations from occurring, suggested that a term be set during the betrothal ceremony to cover situations such as a brother who refuses to perform chalitzah, or a converted brother.

Various other attempts were made to use the precept of “prenuptial terms” to solve other pressing issues. These types of terms can truly provide salvation in cases of recalcitrant husbands and aginut (“bound women” who may not remarry). Some support this proposal, though many of the poskim have sadly rejected it. Let us hope that, in the spirit of the Jewish morality we’ve studied here, a solution will be found and brought to fruition.

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