Sanhedrin 73bסנהדרין ע״ג ב
The William Davidson Talmudתלמוד מהדורת ויליאם דוידסון
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73bע״ג ב

משום דהאי לאו אורחיה הוא והא קא פגים לה אבל שאר עריות דאורחייהו ולא נפיש פיגמייהו אימא לא כתב רחמנא חטא

one might say that these two alone are saved at the cost of their respective attackers’ lives, because for this one it is not his natural way, and that one he degrades. But one who rapes one of the other women with whom relations are forbidden, whose natural way is to engage in intercourse with a man, and their degradation is not great, one might say that their attackers may not be killed. Therefore, the Merciful One wrote “sin” to include in this halakha the other women with whom relations are forbidden.

ואי כתב רחמנא חטא הוה אמינא אפילו חייבי לאוין כתב רחמנא מות

And had the Merciful One wrote only “sin,” I would say that this applies even to women who are forbidden only by a mere prohibition, that they too are to be saved even at the cost of their attackers’ lives. Therefore, the Merciful One wrote “death,” to teach us that this halakha applies only to transgressions that are punishable by the death penalty.

ואי כתב רחמנא מות הוה אמינא חייבי מיתות בית דין אין חייבי כריתות לא כתב רחמנא חטא

And had the Merciful One wrote only “death,” I would say that those women who are forbidden to him by a prohibition the violation of which renders him liable to a court-imposed death penalty are indeed to be saved even at the cost of their attackers’ lives, as these are very serious sins, for which they are punished by the court. But those women who are forbidden to him by the type of prohibition the violation of which renders him liable to receive karet, a punishment from God, are not to be saved at the cost of their attackers’ lives. Therefore, the Merciful One wrote “sin,” to teach that this halakha applies even to prohibitions that are punishable by karet.

ולכתוב רחמנא חטא מות ולא בעי נער ונערה אין ה"נ ואלא נער נערה חד למעוטי עובד עבודת כוכבים וחד למעוטי בהמה ושבת

The Gemara challenges: But let the Merciful One write only “sin worthy of death” and it would no longer be necessary to specify na’ar and na’ara.” The Gemara explains: Yes, this is indeed so; the words “sin worthy of death” suffice to include all those who are included in this halakha. But na’ar and na’ara are mentioned here not to include a case, but rather to exclude a case. One serves to exclude someone who seeks to worship idols, and one serves to exclude someone who seeks to sodomize an animal or desecrate Shabbat, teaching that these transgressors are not killed in order to prevent them from transgressing.

ולר"ש בן יוחי דאמר עובד עבודת כוכבים ניתן להצילו בנפשו למה לי חד למעוטי בהמה וחד למעוטי שבת

The Gemara asks: And according to the opinion of Rabbi Shimon ben Yoḥai, who says that an idol worshipper must be saved from transgressing even at the cost of his life, why do I need the two terms na’ar and “na’ara”? The Gemara answers: One serves to exclude someone who seeks to sodomize an animal, and one serves to exclude someone who seeks to desecrate Shabbat.

סד"א תיתי שבת מחילול חילול מעבודת כוכבים

The Gemara explains why both are needed: It might enter your mind to say that the halakha with regard to one who desecrates Shabbat can be derived from the halakha with regard to idol worship by way of a verbal analogy between the word “desecration” mentioned in connection with Shabbat and the word “desecration” mentioned in connection with idol worship. Consequently, you might think that one who seeks to desecrate Shabbat must also be saved from transgressing even at the cost of his life. Therefore, a special derivation was necessary to teach that a potential Shabbat desecrator is not to be saved at the cost of his life.

ולרבי אלעזר ברבי שמעון דאמר מחלל את השבת ניתן להצילו בנפשו דאתיא שבת מחילול חילול מעבודת כוכבים מאי איכא למימר חד מיעוט למעוטי בהמה ואידך איידי דכתב רחמנא נער כתב נמי נערה:

The Gemara asks: And according to the opinion of Rabbi Elazar, son of Rabbi Shimon, who says that one who comes to desecrate Shabbat must be saved from transgressing even at the cost of his life, because the halakha with regard to one who desecrates Shabbat can be derived from the halakha with regard to idol worship by way of a verbal analogy between the word “desecration” mentioned in connection with Shabbat and the word “desecration” mentioned in connection with idol worship, what is there to say? The Gemara answers: One exclusion serves to exclude someone who seeks to sodomize an animal; and as for the other, since the Merciful One wrote na’ar, He also wrote “na’ara.” That is to say, the form in which the word is written in this verse and the form in which it is read do not teach two separate halakhot.

רבי יהודה אומר אף האומרת הניחו לו שלא יהרגנה: במאי קמיפלגי

§ The baraita cited previously teaches: Rabbi Yehuda disagrees with the Rabbis and says: Also, if the betrothed young woman says to those who come to rescue her: Let the rapist be, she is saying this so that he should not kill her, and therefore the rapist is not killed. The Gemara asks: With regard to what do they disagree?

אמר רבא במקפדת על פיגמה ומניחתו שלא יהרגנה רבנן סברי אפיגמה קפיד רחמנא והרי מקפדת על פיגמה ורבי יהודה האי דקאמר רחמנא קטליה משום דמסרה נפשה לקטלא הא לא מסרה נפשה לקטלא

Rava says: They disagree about the case where the young woman is particular about the degradation that she is to suffer as a result of the rape, but nevertheless she allows him to rape her so that he should not kill her. The Rabbis maintain that the Torah is particular about her degradation, which is why the rapist may be killed, and she too is particular about her degradation. And Rabbi Yehuda maintains that the Merciful One says that a rapist must be killed because his victim is prepared to sacrifice her life rather than yield to rape. The woman in this case, however, who asks that the rapist not be harmed, is not prepared to sacrifice her life, and therefore her rapist may not be killed.

אמר ליה רב פפא לאביי אלמנה לכהן גדול נמי קא פגים לה אמר ליה אפיגמה רבה קפיד רחמנא אפיגמה זוטא לא קפיד רחמנא:

Rav Pappa said to Abaye: If the reason that the rapist may be killed is the woman’s degradation, as claimed by the Rabbis, a High Priest also degrades a widow when he engages in intercourse with her, as he makes her a ḥalala, a woman who is disqualified from marrying a priest. Why then is she not saved even at the cost of her attacker’s life? Abaye said to Rav Pappa: For a great level of degradation, involving karet and potentially a child that is a mamzer, the Merciful One is particular; but for a small level of degradation, as in the case of a ḥalala, the Merciful One is not particular.

חטא אלו חייבי כריתות: ורמינהו ואלו נערות שיש להן קנס הבא על אחותו

§ The baraita taught that the word “sin” is referring to women who are forbidden to a man by a prohibition the violation of which renders him liable to receive karet. From here it is derived that a man who attempts to rape a woman who is forbidden to him under penalty of karet may be killed. The Gemara raises a contradiction between this and what is taught in a mishna (Ketubot 29a): These are the cases of young women for whom there is a fine paid to their fathers by one who rapes them, and the list includes: One who engages in intercourse with his sister. One who engages in intercourse with his sister is punished with karet, and accordingly, a woman being raped by her brother may be saved even at the cost of her brother’s life. Whenever one is liable to be killed at the hands of people, even if the transgressor is not killed, the transgressor is exempt from paying any fine or payment. Therefore, since one attempting to rape his sister may be killed, he should be exempt from the fine ordinarily imposed upon a rapist.

אמרוה רבנן קמיה דרב חסדא משעת העראה דפגמה איפטר לה מקטלא ממונא לא משלם עד גמר ביאה

The Sages stated this solution before Rav Ḥisda: From the time of the initial stage of intercourse, when he has already degraded her, as she is considered to have engaged in intercourse from that time, he is already exempt from being killed, as it was taught in a baraita that once the sin has been committed, and the woman has been degraded, the rapist may no longer be killed. But he does not become obligated to pay any money until the conclusion of the act of intercourse, when the signs of her virginity are completely taken away. Since the two types of liability are not incurred simultaneously, there is no exemption from paying the fine.

הניחא למאן דאמר העראה זו נשיקה אלא למ"ד העראה זו הכנסת עטרה מאי איכא למימר

Rav Ḥisda said to those Sages: This works out well according to the one who says that the definition of the initial stage of intercourse is a kiss, i.e., external contact of the sexual organs, as it is inevitable that there will be some slight penetration. But according to the one who said that the definition of the initial stage of intercourse is the insertion of the corona, what is there to say? This stage takes away the woman’s virginity. From the time of the initial stage of intercourse she is no longer a virgin, and he becomes liable to pay the fine at the very moment that he may be killed in order to save him from his transgression.

אלא אמר רב חסדא כגון שבא עליה שלא כדרכה וחזר ובא עליה כדרכה

Rather, Rav Ḥisda says: The mishna should be understood as referring to a case where the brother first engaged in intercourse with his sister in an atypical manner, i.e., anal intercourse. With this intercourse he degraded her, but she is still considered a virgin. Afterward, he again engaged in intercourse with her in a typical manner. Only at that point did he become liable to pay the fine paid by one who engaged in intercourse with a virgin and took away her virginity. But he could not then be killed, as she had already been degraded, so there is no exemption from the fine.

רבא אמר במניחתו שלא יהרגנה ור' יהודה היא

Rava says: The mishna is referring to a case where the sister allows her brother to rape her and asks that he not be harmed so that he should not kill her, and it is taught in accordance with the opinion of Rabbi Yehuda, who says that in such a case she is not to be saved at the cost of her brother’s life.