Against Repentance: Exploring Procedural Models of Rehabilitation in Rabbinic Law (Sarah Wolf)

It has become commonplace in some Jewish circles to use the language of teshuvah, often translated as “repentance,” in discussions of how perpetrator of sexual assault ought to be treated. The general logic of these discussions is as follows: a perpetrator may be reinstated to a former high-status position if and only if they can be demonstrated to have done teshuvah. This was, for example, the general sentiment of the statement issued by the Conservative Movement’s Rabbinical Assembly about the private meetings with demographer Steven M. Cohen in March of 2021.[1] The RA suggested that the meetings were problematic because Cohen had not yet sufficiently engaged in a process of teshuvah. Likewise, in October, the Jewish Forward published an article about a newly released list of rabbis who had been expelled or suspended from the RA. According to that article’s discussion of one rabbi who had been suspended for verbal sexual misconduct, the president of that rabbi’s congregation claimed that everyone in the congregation is looking forward to the rabbi’s reinstatement and said, without sharing details, that the rabbi had “engaged in a process of teshuvah.”[2] Finally, Danielle Berrin’s 2017 New York Times op-ed about her abuser, Ari Shavit, used this logic to argue that Shavit has not fully fulfilled the requirements of teshuvah, was therefore not yet deserving of forgiveness, and thus should not be invited to speak at public events.[3]

Teshuvah may indeed be important for an individual’s own growth as a person and even their relationship with God, and it may also be something that is desired by the victim or victims harmed by that perpetrator. However, I argue that it is often an unhelpful and possibly even harmful rubric for communities and institutions to use in determining how to respond to people who commit sexual assault. After devoting the first part of my remarks to explaining why the framework of teshuvah is a flawed one, I will then briefly offer several other alternative paradigms from rabbinic law that deal with questions of justice and restitution. I will close with a reflection on how all this fits into the broader project of determining how to engage with classical Jewish texts as ethical sources.

There are a number of problems, both ethical and textual, with the rubric of teshuvah as a test for whether or not to reinstate sexual abusers. First, how does an organization or a society know if a person has fully done teshuvah? One can ask that person, but a victim may not necessarily agree with their perpetrator’s self-assessment. Shavit, for example, believed he had apologized to Berrin and that he had also undergone a “deep process of self-reflection.” Berrin disagreed on the grounds that Shavit “[made] it clear he had no idea what he was apologizing for.” She also argued that true teshuvah should include some element of tzedakah, which she defined as “a commitment of time and money to a cause that uplifts and empowers those in need,” and which she did not believe Shavit had done.[4] Shavit thought he had done teshuvah; Berrin did not.

Alternately, one could ask the victim to determine whether a perpetrator had sufficiently done teshuvah. But this is also a fraught proposal for several reasons – one of which is that if we require that a victim offer more information about their relationship with their abuser, or even that the victim engage in conversation with their abuser in order to receive and accept (or not) an apology, that could easily work to perpetuate rather than ameliorate harm.[5]

Next, while it is unclear exactly what definition of teshuvah these organizations and individuals are using, according to Maimonides’ model of teshuvah, the perpetrator must be in a position to transgress again and refrain from doing so. In his discussion of this requirement in his Mishneh Torah, he specifically offers the example of a man who had a sinful sexual encounter with a woman once, but does not sin with her further when he finds himself once again secluded with her.[6] This may be a good rubric by which that man can know if he had truly completed teshuvah, but it is a terrible rubric from the perspective of the woman, who must put herself at risk in order to demonstrate that the man has truly changed, as Avigayil Halperin has pointed out in her feminist parsha newsletter.[7] If this is the framework that institutions such as the RA have in mind, how could we possibly use the question of what someone does once they are restored to their position of power as a rubric to determine whether or not they should be restored to their position of power?

Clearly, even if some emphasis on teshuva is warranted in discussing consequences for perpetrators of sexual harm, it is not sufficient. The investigation report on misconduct at HUC-JIR that was published in November closed with a recommendation that HUC as a whole “engage in the process of teshuvah,” but this was notably followed by another, separate recommendation that HUC “take proactive steps to prevent such behavior from occurring.”[8] Indeed, questions of harm prevention or determining what role a person may play in the community are simply not what teshuvah is for in many classical Jewish sources. According to rabbinic sources, teshuvah is one of several mechanisms by which a person achieves atonement; in a passage in the Mekhilta d’Rabbi Yishmael, it is listed alongside Yom Kippur, suffering, and death.[9] Each of these is a personal mechanism by which someone’s individual relationship with God may be repaired. But none of these mechanisms of atonement is a factor in determining judgment, penalties, or the process of making reparations—in fact, they are clearly viewed as separate, since according to Mishnah Sanhedrin, people who are sentenced to death are nonetheless offered the opportunity to atone before they are executed.[10]

I therefore want to briefly explore some alternative models for justice drawn from the Jewish textual tradition that could be useful analogues to cases of sexual assault, none of which is perfect but each of which offers a new set of considerations that avoid the problems above. Each of these models is drawn from sources in the rabbinic tradition that imagine the pursuit of justice in response to serious wrongdoing, focusing on three different areas of criminal law: the laws of manslaughter and cities of refuge, the penalties for inflicting shame, and the rite of the sotah, the suspected adulterous woman. Ultimately, though none of these frameworks offers an exact analogy and each has its serious problems, I think these areas of rabbinic law can encourage us to consider what is to be gained by focusing on procedural rather than interpersonal models of justice in cases of sexual assault.

First, we will consider the way in which rabbinic literature imposes penalties for shaming another person, a category which for the rabbis is also explicitly connected to certain types of criminal sexual behavior, since a special shame payment must be made as part of the penalty for rape.[11] The rabbis avoid perpetuating a cycle of shame by instituting a penalty that is purely financial—though quite severe—and also highlights the importance of avoiding victim-blaming when assessing punishment for perpetrators:

One who shouts into his fellow's ear must give him a selah (four zuz). R. Yehuda says in the name of R. Yosi ha-Glili: a maneh (one hundred zuz). If he slapped him, he must give him two hundred zuz. If he split his ear, pulled his hair, spit and the spit got onto him, took his cloak off him, or uncovered the head of a woman in the marketplace -- he gives four hundred zuz. All is according to the victim's honor. R. Akiva says: even the poor people of Israel, we regard them as though they were free people who had lost their property, for they are the descendants of Abraham, Isaac, and Jacob.[12]

According to this text, and particularly in R. Akiva’s view, any person who commits a physical act that shames any other person must pay a set fine of up to four hundred zuz, an amount of money that, as Rabbi Jason Rubenstein has pointed out to me, could be the equivalent of a family’s yearly income. The text goes on to include a story in which a man tries to weasel his way out of paying the fine for uncovering a woman’s hair in the marketplace on the grounds that the woman can be tricked into publicly uncovering her own hair. Nonetheless, R. Akiva is adamant that the full penalty must be paid:

It once happened that someone uncovered the head of a woman in the marketplace. She came before R. Akiva, and he declared the man liable to pay her four hundred zuz. He said to him, "Rabbi, give me time," and he gave him time. He spied her standing at the gate of her courtyard and he broke a vessel in front of her with an issar of oil in it. She uncovered her head and started wiping up the oil and putting it on her head. He had set up witnesses to watch her, and he came before R. Akiva. He said to him: "Rabbi, to such as this should I give four hundred zuz?" R. Akiva said to him, "You have said nothing. For one who injures himself, even though he is not permitted to do so, is exempt, but others who injure him are liable.”

Here, the Mishnah, or at least R. Akiva, explicitly de-emphasizes any personal or interpersonal considerations and determines a harsh universal penalty that also makes restitution to the victim. This is one possible rubric that communities and institutions could, I think, pretty easily incorporate as a Jewish model for how to respond to cases of sexual assault.

This model does not, however, address the issue of rehabilitation of the perpetrator, which has been the primary appeal of the teshuvah model. On that front, we can consider the rabbinic treatment of unintentional murder and cities of refuge, which Aryeh Cohen has also dealt with as a contemporary ethical model.[13] According to both biblical and rabbinic law, one who kills unintentionally flees to a city of refuge but does not stay there permanently, raising questions of what is at stake when removing someone from their regular place in society and later rehabilitating them. I again turn to the Mishnah, which addresses this question explicitly.

If a manslayer was exiled to the city of refuge and the people of that city wished to honor him, he should say to them, “I am a manslayer.” If they say to him, “Nonetheless…” he should accept it from them… And [when released from the city of refuge], he returns to the position of authority that he had, according to R. Meir; R. Yehudah says he does not return to the position of authority he had.[14]

First, the onus is on a person who committed a grievous harm to remind potential bestowers of honor that he has a blot on his past. If the community insists, only then may that person receive the honor. And second, the Mishnah raises the question as to whether, even after serving his time, so to speak, in the city of refuge, such a person should be permitted to hold power. While the Mishnah does not settle on a definitive ruling, it does frame the question not in terms of individual penance, but as a matter of general principle: either it is good to reinstate such a person, or it is not. Such a framing could provide communities with a way to formulate this question, even if it does not provide them with an answer.

Finally, the sotah ritual is the site at which the rabbis most explicitly set forth a penalty for what is perceived as destructive sexual conduct. This ritual, described in both biblical and rabbinic sources, is a public ordeal inflicted on women whose husbands feel jealousy towards them and suspect them of adultery. Without unpacking any of these texts in detail, I will just make two general comments. First, whether or not this ritual had any historical basis prior to the Mishnah’s redaction, it is only inflicted on women in the rabbinic imagination, as the Mishnah itself says explicitly at the end of the relevant perek.[15] As Ishay Rosen-Zvi describes, the Mishnah’s textual ritual is a “fantasy of control” in which men could work out their fears of an unraveling sexual order.[16] Secondly, as I argue in a forthcoming article, as much as the sotah ritual is about the woman’s suspected transgression, it is also about the man’s jealousy, which the texts acknowledge to be a powerful and potentially dangerous force.[17] The rabbinic sotah ordeal can thus prompt us to consider what a response to sexual transgression would look like that attended to emotion as a force that required a response. It also offers a model that uses text as opposed to legal force as an outlet for a communal reaction. This model might be more complicated for communities to figure out how to apply, but it is an intriguing one that I think bears further consideration.

We have now seen a few alternative rubrics drawn from Mishnaic law that communities might use either instead of or in addition to that of teshuvah. I would like to conclude this paper with a few reflections on the admittedly abridged attempt I’ve just made to bring rabbinic legal texts into conversation with contemporary ethical questions, an endeavor which is outside my usual area of scholarship. I want to try to identify my own methodology here and situate it within the context of recent scholarship by several of my colleagues.

In a 2015 review essay, Emily Filler distinguishes between a methodology in which ethicists engage with rabbinic literature by focusing on textual content, “what the text says,” versus an approach that focuses on formal features of texts, or how they say what they say.[18] Filler notes that the latter approach helps readers escape the pitfalls of mining the texts for their meaning, as though they had a concrete and stable one. Rebecca Epstein-Levi adds a third term to this set of options, which she calls a functionalist approach, in which the ethicist “look[s] beyond the simple plain sense of a given text’s subject matter and… focus[es] instead on how the text’s subject matter functions in its own context.”[19] Epstein-Levi argues that “Just because one cannot assume a one-to-one correspondence between the content of a rabbinic text and a contemporary ethical problem does not mean that the content is completely alien to contemporary concerns, or that it cannot do any useful work for a particular problem.” I suggest that the turn to teshuvah as a model reflects a more literal, content-focused approach, with perhaps some of its attendant problems, whereas my own approach in framing alternatives follows Epstein-Levi’s functionalist approach. Yet Epstein-Levi presents one of the benefits of her approach as enabling a kind of dialogue with rabbinic texts, allowing them to inform our ethical sense as much as our ethical sense informs our reading of the texts. While this is certainly a valuable and real advantage, I’m not sure it is present in my own functionalist approach here towards the paradigms I explored. Rather, I see the advantage of my functionalist approach as entirely a practical one, in that it enables Jewish leaders to engage with rabbinic texts, which already carry ethical weight, in order to achieve a range of outcomes that can be more beneficial to victims of sexual harm and to their communities as a whole. Though this is not the way I as a scholar would always choose to approach the rabbinic literary corpus, I believe it is the right approach for this problem. I would like to therefore close by proposing that Jewish ethicists might think of this range of approaches as a toolkit, and that the value of each approach can and should be calculated not just by how well it produces a reading of the source material, but by how responsibly and creatively it can serve the ethical problem at hand.