לְהָא מִילְּתָא נָמֵי לִיגְמְרוּ מֵהֲדָדֵי אָמַר קְרָא מָהֹר יִמְהָרֶנָּה לּוֹ לְאִשָּׁה לוֹ מִדַּעְתּוֹ for this matter too, marrying the woman against his will, let them be derived from each other. Rav Ashi replied that the verse says with regard to a seducer: “He shall pay a dowry for her to be a wife to him” (Exodus 22:15); “to him” means in accordance with his will.
כֵּיצַד שׁוֹתֶה בַּעֲצִיצוֹ כּוּ׳ אָמַר רַב כָּהֲנָא אַמְרִיתַהּ לִשְׁמַעְתָּא קַמֵּיהּ דְּרַב זְבִיד מִנְּהַרְדְּעָא נֵיתֵי עֲשֵׂה וְנִדְחֵה לֹא תַעֲשֶׂה § The mishna continues: How does the rapist drink from his vessel? The mishna proceeds to explain that he is obligated to marry her despite the physical flaws she might have. However, if the marriage is prohibited, either due to the fact that she committed adultery or due to her flawed lineage, he is not obligated to marry her, and therefore he may not marry her. Rav Kahana said: I stated this halakha before Rav Zevid of Neharde’a, and I asked him: Let the positive mitzva: “And to him she shall be as a wife” (Deuteronomy 22:29), come and override the prohibition of marriage to a woman who is forbidden to him, according to the principle that positive mitzvot override prohibitions.
אָמַר לִי הֵיכָא אָמְרִינַן נֵיתֵי עֲשֵׂה וְנִידְחֵי לֹא תַעֲשֶׂה כְּגוֹן מִילָה בְּצָרַעַת דְּלָא אֶפְשָׁר לְקַיּוֹמֵיהּ לַעֲשֵׂה אֲבָל הָכָא אִי אָמְרָה דְּלָא בָּעֵינָא מִי אִיתֵיהּ לַעֲשֵׂה כְּלָל He said to me: Where do we say the principle that a positive mitzva comes and overrides a prohibition? It is in a case where one performs circumcision of a foreskin afflicted with leprosy. Although there is a prohibition against removing leprous skin, the positive mitzva of circumcision overrides that prohibition, as it is not possible to fulfill the positive mitzva without violating the prohibition. However, here, in the case of the rapist, if she says: I do not want him as a husband, is there a positive mitzva at all? Since in that case the mitzva need not be performed, as it is negated when the woman refuses to marry him, it does not override the prohibition.
מַתְנִי׳ יְתוֹמָה שֶׁנִּתְאָרְסָה וְנִתְגָּרְשָׁה רַבִּי אֶלְעָזָר אוֹמֵר הָאוֹנֵס חַיָּיב וְהַמְפַתֶּה פָּטוּר MISHNA: With regard to an orphan who was betrothed and divorced, Rabbi Elazar says: One who rapes her is obligated to pay the fine, as she is a virgin young woman, and one who seduces her is exempt from payment. Because she is an orphan, or because she was betrothed and divorced, she is independent, and by consenting to the seduction she forgoes her right to the fine.
גְּמָ׳ אָמַר רַבָּה בַּר בַּר חָנָה אָמַר רַבִּי יוֹחָנָן רַבִּי אֶלְעָזָר בְּשִׁיטַת רַבִּי עֲקִיבָא רַבּוֹ אֲמָרָהּ דְּאָמַר יֵשׁ לָהּ קְנָס וּקְנָסָהּ לְעַצְמָהּ מִמַּאי מִדְּקָתָנֵי יְתוֹמָה רַבִּי אֶלְעָזָר אוֹמֵר הָאוֹנֵס חַיָּיב וְהַמְפַתֶּה פָּטוּר GEMARA: Rabba bar bar Ḥana said that Rabbi Yoḥanan said: Rabbi Elazar stated his opinion in accordance with the opinion of Rabbi Akiva, his teacher, as with regard to a young woman who was betrothed and divorced and then raped, Rabbi Akiva said in an earlier mishna: She is entitled to a fine for rape and her fine is paid to her. Rabbi Yosei HaGelili says: She is not entitled to a fine for rape. And from where do we know that Rabbi Elazar’s opinion corresponds to the opinion of his teacher? From the fact that the mishna teaches with regard to an orphan that Rabbi Elazar says: One who rapes her is obligated to pay the fine and one who seduces her is exempt from payment.
יְתוֹמָה פְּשִׁיטָא אֶלָּא הָא קָא מַשְׁמַע לַן דְּנַעֲרָה שֶׁנִּתְאָרְסָה וְנִתְגָּרְשָׁה כִּיתוֹמָה מָה יְתוֹמָה לְעַצְמָהּ אַף נַעֲרָה שֶׁנִּתְאָרְסָה וְנִתְגָּרְשָׁה לְעַצְמָהּ The Gemara asks: An orphan? That is obvious, as she has no father and is not subject to the authority of anyone else. Clearly the seducer is exempt from payment because she was complicit. Rather, this is what the mishna is teaching us: That the legal status of a young woman who was betrothed and divorced, even if her father is alive, is like that of an orphan: Just as with regard to an orphan, payment of the fine is to her, so too, with regard to a young woman who was betrothed and divorced, payment of the fine is to her.
אָמַר רַבִּי זֵירָא אָמַר רַבָּה בַּר שֵׁילָא אָמַר רַב הַמְנוּנָא סָבָא אָמַר רַב אַדָּא בַּר אַהֲבָה אָמַר רַב הֲלָכָה כְּרַבִּי אֶלְעָזָר קָרֵי רַב עֲלֵיהּ דְּרַבִּי אֶלְעָזָר טוּבְיָנָא דְחַכִּימֵי Rabbi Zeira said that Rabba bar Sheila said that Rav Hamnuna the Elder said that Rav Adda bar Ahava said that Rav said: The halakha is in accordance with the opinion of Rabbi Elazar. Rav would exclaim about Rabbi Elazar: He is the happiest of the Sages, as he held that the halakha was ruled in accordance with his opinion in many instances.
מַתְנִי׳ אֵיזֶהוּ בּוֹשֶׁת הַכֹּל לְפִי הַמְבַיֵּישׁ וְהַמִּתְבַּיֵּישׁ פְּגָם רוֹאִין אוֹתָהּ כְּאִילּוּ הִיא שִׁפְחָה נִמְכֶּרֶת בַּשּׁוּק כַּמָּה הָיְתָה יָפָה וְכַמָּה הִיא יָפָה קְנָס שָׁוֶה בְּכׇל אָדָם וְכֹל שֶׁיֵּשׁ לוֹ קִצְבָה מִן הַתּוֹרָה שָׁוֶה בְּכׇל אָדָם MISHNA: What is humiliation? How is the payment for humiliation during rape or seduction assessed? It is all based on the one who humiliated and the one who was humiliated. The price will vary depending on the lineage of the family of the rape victim and the nature of the attacker. How is her degradation assessed? One considers her as though she were a maidservant sold in the marketplace, and assesses how much she was worth beforehand and how much she is currently worth, after the rape or seduction. The sum of the fine is equal for all people, and the principle is: Any payment that has a fixed sum by Torah law is equal for all people, regardless of the lineage and the physical state of the attacker or the victim.
גְּמָ׳ וְאֵימָא חֲמִשִּׁים סְלָעִים אָמַר רַחֲמָנָא מִכֹּל מִילֵּי אָמַר רַבִּי זֵירָא יֹאמְרוּ בָּעַל בַּת מְלָכִים חֲמִשִּׁים בָּעַל בַּת הֶדְיוֹטוֹת חֲמִשִּׁים אֲמַר לֵיהּ אַבָּיֵי אִי הָכִי גַּבֵּי עֶבֶד נָמֵי יֹאמְרוּ עֶבֶד נוֹקֵב מַרְגָּלִיּוֹת שְׁלֹשִׁים עֶבֶד עוֹשֶׂה GEMARA: The Gemara asks: And say that the Merciful One said that the payment is fifty sela from all these matters, i.e., the fine, degradation, humiliation, and pain. Rabbi Zeira said: That cannot be, as they will say: If one who engaged in forced intercourse with a daughter of kings pays a sum of fifty sela, does one who engaged in forced intercourse with the daughter of commoners [hedyotot] also pay fifty sela? Abaye said to him: This is not a decisive argument, as if so, with regard to a Canaanite slave killed by an ox, the Torah says that the owner of the ox pays the master of the slave thirty sela. There too, they will say: For a slave who pierces precious pearls [margaliyyot], a valuable skill, the fine is thirty sela, and for a slave who performs