A Confession
‘Payment For Humiliation And Depreciation’
(Ketubbot 41a)
The Mishnah states that someone who confesses that he seduced (or violated) a na’arah besulah (a maiden between the ages of 12 years and one day and 12-and-a-half years) is exempt from the statutory 50-shekel fine because there is a rule that modeh b’kenas patur – that one does not pay a fine based on a confession. The Mishnah notes, however, that this person is obligated to pay for bosheth (humiliation and indignity suffered) and pegam mamon (blemish or depreciation, namely, compensation for actual damages).
The Rank Of The Court
Another difference between fines and compensation concerns the type of court that can collect such payments. Whereas any court can adjudicate cases involving ordinary monetary payments, the Gemara (41b) says that courts in Babylonia were not authorized to levy fines. Rashi explains that this was because Babylonian judges were not dayanim mumchim (expert ordained judges) and only judges ordained in the Land of Israel had the authority to levy fines. Thus, in the absence of such ordained judges nowadays, courts are only authorized to collect damages. They may not levy the 50-shekel fine.
‘And She Shall Be His Wife’
Authorities debate whether someone who confesses that he seduced (or violated) a na’arah besulah must fulfill the commandment of “velo tih’yeh le’isha – and she shall be his wife” (Devarim 22:19) and whether this precept can be enforced today in the absence of ordained judges.
Tosafos (Ketubos 35b, s.v. “Lo kenas…”) state that a violator incurs a stricter fine than a seducer because in addition to the 50-shekel fine (which a seducer must also pay), a violator is forced to marry his victim whereas a seducer is not.
No Ordinary Precept
Harav Elchanan Wasserman (Kovetz Shiurim 35a, 127) infers from the statement of Tosafos that the obligation for a violator to marry the victim is not an ordinary precept, but is rather classified as a fine. Since it is considered a fine, it follows, accordingly, that a) a violator is not obligated to marry his victim based on a confession, and b) the commandment cannot be enforced nowadays since we do not have ordained judges.
A Precept Like Any Other
The Sefer HaChinuch states that despite the absence of ordained judges nowadays, the violator still has an obligation to marry his victim because this obligation is not a penalty or a fine, but rather an ordinary precept.
The Minchas Chinuch notes that according to the Sefer HaChinuch, it emerges that the violator must marry his victim even if he confessed to the crime. (See Radvaz 1:19, who is of the same opinion.)
Righting A Wrong
The Maharshal (Yam Shel Shlomo 8:6) indicates that a violator is forced to marry his victim, not as a punitive measure, but to remedy the injustice he did to her since she might not find anyone willing to marry her now that he violated her.
A Generous Dowry
The Semak (as cited in Kovetz Shiurim, end of 121) asserts that if the violator is a married man, and thus unable to marry his victim (due to Rabbenu Gershom’s ban on polygamy), he is obligated to provide her with a generous dowry, making her more attractive as a prospective mate and thereby helping her find a suitable husband.
A Commandment Fulfilled
The Tashbatz (II:273) notes that when the Mishnah (39a) states that a seducer is not forced to marry the girl he defiled, it does not mean to that this obligation does not apply to a seducer altogether. It just means that in contrast to a violator, a seducer is not forced to enter into such a marriage. However, if he decides to marry the seduced girl, he fulfills the precept of “and she shall be his wife.”
