Lethal self-defense against a rapist and the challenge of proportionality: Jewish law perspective.

• Author: Porat, Benjamin
• Position: III. 'In Pursuit of a Maiden' - The Theoretical Law (Halakha

5. Proportionality and the Mishnaic Ruling

   In summary, it would appear that although the term "proportionality" does not appear in the sages' lexicon, the essential concept of proportionality plays a central role in their discussion of the limits of self-defense The tannaitic sources assume that the right to self-defense is conditioned upon full proportionality between the crime and the corresponding defensive action taken in response. Therefore, self-defense against rape does not automatically include the right to kill the rapist, aside from certain specific cases.

   Rabbi Judah extrapolates that deadly self-defense must be limited to cases involving a threat to the victim's life. Rape itself does not justify the use of deadly force in self-defense.

   The sages expanded the boundaries of legitimate self-defense somewhat further, ruling that in any case in which the penalty for the sexual assault would be death, the victim is permitted to defend herself even at the expense of the attacker's life. In keeping with this, the sages rule that in cases of rape accompanied by aggravating circumstances--rape combined with forbidden sexual relations--the victim may employ deadly self-defense against her rapist. However, in more common cases of rape, not punishable by death, the victim is not permitted to kill her rapist in self-defense.

   As mentioned, while the above discussion is generally considered by scholars to sum up the Jewish law position on this issue, (134) in the following part I will attempt to challenge this view and present a more complex picture.

   IV. "In Pursuit of a Maiden"--The Law in Practice (halakha le-ma'aseh)

1. Introduction

   I will argue that while the previous section accurately reflects the theoretical law (halakha) on this matter, it is not fully representative of the realm of the law in practice (halakha le-ma'aseh). On a practical level almost every case of killing a rapist in self-defense may be sanctioned de facto, (135) regardless of the victim's marital status (betrothed or single). (136) Furthermore, not only will the defender be acquitted post facto, but it would seem that in practice, employing such self-defense will be considered appropriate to begin with. (137)

   In light of the Mishnah's characterization of rape, (138) the following analysis will mainly address a third-party passerby defending the victim. Later on I will also discuss action that can be taken by the rape victim herself.

   This duality lends a fascinating complexity to the ruling of the Mishnah. On one level, discernible by the common reader, the Mishnah creates the impression (halakha) of a rigid standard of proportionality and exacting precision as to the use of deadly force in self-defense; killing a rapist in self-defense is only permissible in particularly severe cases. On another level, accessible only to the critical one, the Mishnah's ruling sets a practice (halakha le-ma 'aseh) of a somewhat more lenient standard of proportionality, effectively allowing almost all rape victims to defend themselves even at the expense of the rapist's life. This phenomenon is reminiscent of Meir Dan-Cohen's discussion of "acoustic separation." (139) However unlike in Dan-Cohen's work, which notes the distinction between "conduct rules" and "decision rules" (in other words, one set of rules addressed to the general public and another set of rules addressed to the judges), here the emphasis is on the distinction within the conduct rules themselves, whereby the law seems to voice one rule to the average citizen reading the law at first glance and a different rule to the citizen reading the law from a more cautious and complex perspective.

   Nevertheless, this case is not the classical example of the distinction between law (halakha) and the law in practice (halakha le-ma'aseh). In general, the difference between halakha and halakha le-ma 'aseh usually stems from the existence of numerous contradictory sources, with one source expressing the position of halakha, and another the position of halakha le-ma'aseh. (140) In contrast, the duality within the case at hand seems to stem from the difference between the theoretical and practical readings of the very same legal source. I will argue that while the theoretical examination of the sources discussed above would point to a distinction between different types of rape (based on the marital status of the victim), the practical application of these same sources almost always leads to the conclusion that the rapist may be killed irrespective of the victim's marital status. This duality of the law is inherently built into its design by the sages. (141)

   It would, of course, be most instructive to study "real cases," that is historical trials, demonstrating the practical application of Jewish law in cases of self-defense against a rapist. However, for a variety of reasons, Jewish law has had an extremely limited functional criminal judicial system, (142) with criminal law being preserved mainly through textual analyses as opposed to case law. Therefore, in regards to criminal law issues, the study of these textual analyses is almost the only way to understand the approach of Jewish law on this issue, both in terms of halakha and of halakha le-ma'aseh. (143)

2. Self-Defense Under Uncertainty

   1. The Difficulty of Being Certain of Marital Status

      As discussed above, the Mishnah's ruling is based on its distinction between victims, depending on their marital status. The defensive action that a third party is permitted to employ against a rapist should be dependent upon whether the victim is single or betrothed. I will argue that while this distinction may be interesting and thought-provoking from a theoretical standpoint, its application is altogether impractical. The question of self-defense against rape must be explored not only from an academic perspective, but also from a practical one, as would be taken, for instance, by an attorney representing a client charged with murdering a rapist, claiming to have done so as an act of self-defense.

      The Mishnah assumes that during the rape itself, a third party coming to the assistance of the victim is cognizant of her marital status and must act accordingly. However, it would seem that this would often be an entirely unrealistic assumption. In many cases, it is unreasonable to expect that a third party would know the victim's name let alone her marital status, and he must often act under conditions of uncertainty. Take, for instance, one common image of the rape scenario, of someone stumbling upon an attempted rape in a dark alley. Assuming that the only way to save the victim is by killing the rapist, the third party has only seconds to decide whether to come to the victim's assistance and do so, or stand aside and allow the attack to continue. In the dark of night and in the commotion of the situation, it is highly doubtful that a third party would be able to identify the victim and determine if she is married or single. It should be noted that even while in ancient times a woman's attire might have reflected her marital status (head covering, ring, etc.), these distinguishing demarcations would hardly be identifiable in the dark and violent circumstances of rape, throughout which garments may become torn or sullied in the struggle, hair may become uncovered, etc. This remains true even in a small community, with only several hundred women. In other words, a third-party passerby would commonly find himself in a situation of uncertainty, not knowing the victim's marital status. Therefore, an attorney defending such a third party under the rule of the Mishnah would certainly argue that his client did not know if the victim was single or married and consequently chose to take the risk of using deadly force against the rapist without such knowledge.

      It follows that an appropriate application of the Mishnah's ruling would require us to address the question of whether in cases of doubt as to the victim's marital status, this doubt should tip the scales in favor of the rapist (forbidding deadly force against the rapist), or in favor of the victim (permitting use of deadly force against the rapist).

      It must be emphasized that this state of doubt is not merely incidental or technical. This doubt is inherently built in to the Mishnah's ruling, as designed by the sages, who chose to condition deadly self-defense upon the legal status of the rape victim--a status that is not apparent or known to all. A meticulous assessment of the marital status of a rape victim is something that may be possible over the course of a slow and careful deliberation before a court of law, but it is entirely impractical for a third party incidentally stumbling upon a violent rape scene, making a split-second decision of whether to attack the rapist. The element of uncertainty is therefore inherently built in to such a situation.

   2. Categories of Uncertainty

      The question of self-defense in a case of uncertainty as to the marital status of the victim must be examined against the backdrop of the general question of self-defense under uncertainty.

      I believe that it would be useful, in this context, to distinguish among several categories of uncertainty that may accompany an act of self-defense. (144) As we shall see, while each category involves uncertainty (and for the sake of argument, we may assume the odds of uncertainty to be fifty-fifty), (145) the different characteristics of each category lead to different outcomes: (146)

   1. Uncertainty relating to the attacker's intent, i.e., whether or not the attacker does, in fact, intend (147) to unlawfully harm the victim. For example, if a third party notices a person running and another person pursuing him clutching a knife, it might be difficult for the third party to determine if he is witnessing an attempted assault or murder, a police officer chasing an escaped murderer, (148) or perhaps even a joke involving a toy knife. (149) Should...