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Letters from Jewish Australia - No.48

HARNESSING THE FORCE OF LAW

By Geraldine Jones
join@tmx.mhs.oz.au

A Summary of the Symposium
Coercion in Jewish Marital Relations
Mandelbaum House, Sydney, Australia - May 7th, 1997

Speaker: Professor Rabbi Nahum Rakover
Deputy Attorney General of Israel

Respondent: Ms. Melinda Jones
Senior Lecturer, Faculty of Law, Uni. of NSW.

28th May 1997

When Professor Rabbi Nahum Rakover, the Deputy Attorney General of Israel and Ms Melinda Jones, Senior Lecturer, Faculty of Law, University of New South Wales, shared a platform to discuss coercion in Jewish marital relations we learned how the force of the law, both Jewish and Australian, has been and might be harnessed to redress injustice.

It is only a few years since recognition of "rape" within marriage became part of Israeli law. Its inclusion as a punishable offence came about in consideration of women's rights in "Halacha" (Jewish law).

Similarly, "rape" within marriage is an offence under Australian law. There is, however, a need for additions to our Civil law to help reduce the threat to those who live with respect for Halacha of having their civil liberty forcefully curtailed. Dissolution of a Jewish marriage requires the goodwill of both parties, without this one can chain the other, forcing the unwanted continuance of the marriage.

Redressing this particular injustice will require a concerted effort by the lay and religious leadership to develop new, stronger submissions which can be directed to official government inquiries and members of Parliament.

* * *

In Israel, a decade ago, Professor Rabbi Nahum Rakover was approached to give an halachic opinion to the issue of rape in marriage. In the first case of an Israeli wife charging her husband with rape the litigants were religious Jews. The husband, a Cohen, claimed that he was allowed by Jewish religious law to force his wife to have sexual relations against her will. The issue turned on whether or not the sexual intercourse was "unlawful" or whether the marriage made non-consentual relations lawful.

Aware that, in England, where previously the woman was just her husband's chattel, the law had already been changed to make rape in marriage an offense, the Professor was surprised to find no mention of "rape" in Halachic sources. Nothing was clear in the "Talmud" (Rabbinic discussion of the Bible) or "paskim" (discourses) of "Rambam" (Rabbi Moses Maimonedes). While "coercion" is mentioned and abjured as being immoral and unethical, the legality of forced sexual intercourse is not discussed. In the 1980's Professor Rakover was, however, dealing with a legal problem.

In Jewish marriage a Jewish wife is not owned by her husband. It is written that if dissatisfied she has recourse to the law and can apply to the court for a Gett (divorce), while the husband of a "rebellious wife" could withhold maintenance as agreed upon in the "ketubah" (pre- nuptial contract). Professor Rakover also cited the legal injunction for a Jewish working wife to contribute her earnings to the familial purse which showed that this was a point of marital argument which had been placed before the courts.

"Why then?", he asked "was there no example of punishment for rape. After all, Rambam says that a man should respect his wife more than himself.

He found the answer in a statement by 13th Century Rabbi Meir of Rottenburg who said that one who hits is wife should be blackballed by the community and a "cherem" (legal injunction) be placed upon him so that he could not participate in a "minyan" (one of ten men needed to conduct a community prayer meeting), disallowed from conducting business with the community and be punished severely - because Jewish marriage was meant to be a reason for happiness, not pain.

From this Professor Rakover assumed that it was inconceivable to the Rabbis that a man would so demean himself as to rape his wife and therefore the subject was not raised.

Professor Rakover's opinion was accepted and the husband sentenced to imprisonment. Subsequently there was an appeal to the Israel Supreme Court and yet again the Professor's opinion was upheld and precedent established for criminal sanctions against rape in marriage.

Ms Melinda Jones looked more broadly at coercion in marital relations and discussed coercion into, during and after marriage.

In Australia, the definition of marriage at common law is "the voluntary union of a man and woman for life" and with "no fault divorce" annullment of marriages into which someone has been coerced would not be problematic in Australian law.

Coercion within marriage could relate to economic or financial transactions, to issues such as bringing up children or to those clasically thought of as "marital relations".

The most obvious example of coercion during the marriage is rape in marriage. As in England, for a long time in Australia women were considered to be their husband's property. It was assumed too that by consenting to marry a man a woman consented to have sexual intercourse with him. Men were therefore rarely prosecuted for raping their wives and convictions were extremely rare. Over the past ten years the situation has changed and coercion to have sexual relations in the context of marriage is considered to be equally as offensive as coercion into sexual relations outside the marriage. As a matter of Australian law, rape is rape.

A greater problem than rape, one which affects a very large number of women in Australia - and Jewish women in this regard are no different from non-Jewish women in the community - is the problem of domestic violence. The idea that 'a man's house was his castle' protected him from legal interference in the exercise of this domain - such that women had virtually no ability to use the law to deal with domestic violence. The law has, at least, recognised that a woman who eventually responds to the violence by killing her husband is entitled to use violence as a defence to a charge of murder.

Divorce is quite a common occurrence and statistics relating to Jewish marriages parallel those of the broader Australian community. The Australian law of divorce has, since 1975, been based on the principle of no fault. In order for a marriage to be dissolved it is not necessary to prove adultery or abuse. It is sufficient to show that there has been "an irreconcilable breakdown of the marriage" and that the parties have lived "separately and apart" for twelve months. Divorce - and the right to remarry - requires little more than filling in a few forms.

Things are not, however, so simple for people of the Jewish faith. A Jewish divorce requires that a man "voluntarily" gives and a woman accepts a "Gett" (divorce document). Without a religious as well as a civil divorce she remains "AGUNA" or chained to the man from whom she wishes to separate.

An aguna cannot remarry within the Jewish faith. Further, any relationship, including another civil relationship, will be considered adultery. The children of an aguna are treated by Jewish law as "mamzerim" (bastards) - a concept now foreign to Australian law, but which has the effect of denying the "mamzer" the right to marry any other Jew except another mamzer.

If the man does not grant the Gett, on obtaining a civil divorce he can remarry and have children with no consequences. This creates the temptation and opportunity for a divorcing party to deny giving/receiving a Gett. In particular many husbands are causing great grief by refusing to give, or using blackmail before agreeing to give, a Gett and Ms Jones gave the following, recent examples which illustrate the scope of this problem and some halachic strategies used by Rabbis to try and get recalcitrant husbands to "voluntarily" give a Gett.

She also stressed that Australia is lagging behind other jurisdictions (eg Canada, South Africa, Israel, U.K., New York) where Rabbis, who are still struggling to solve this problem in an Halachic way, have been willing to endorse and even promote the use of civil law solutions to right a clear injustice.

However, only last year our Rabbis stated that:

"the Halachic issues are not as simple as often portrayed in the press and Australia cannot act in a vacuum; therefore many factors have to be taken into consideration".

Australian Jewish News April 24, 1996

Ms Jones suggested that the community lobby to;

In the ensuing discussion we learned that some Australian couples are making prenuptial agreements covering the issue of the Gett and the existence of women's shelters in Israel is evidence that serious problems can exist in Jewish marriages. Professor Alan Crown supported Rabbi Apple's idea of an academic conference on the Gett and related issues by suggesting that Mandelbaum House host a conference/workshop to which overseas Halachic experts could be invited.

Ms Jones concluded that:

"Coercion to remain chained to a marriage should be considered as inappropriate in this day and age as accepting rape and other violence within marital relations. It is time that the community takes this issue seriously and takes every opportunity to lobby for both civil and religious law reform."
Geraldine Jones

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