Talmud - Makkot 15a מכות ט״ו א׳

They said to Rabbi Yoḥanan: Did you say this halakha? Rabbi Yoḥanan said to them: No. Rabba bar bar Ḥana said in the form of an oath: By God, he said it, and this halakha is written in the Torah and we learn it in the mishna. It is written: “And they shall send from the camp any man who is leprous, and any zav…and they shall not render their camp impure” (Numbers 5:2–4). There is a prohibition against rendering the camp impure, and there is a positive mitzva to send them out of the camp. Since the positive mitzva precedes and is independent of the prohibition, one is flogged for the violation of that prohibition, as we learn in the mishna among those liable to receive lashes: One who entered the Temple while ritually impure.

The Gemara asks: Rather, what is the reason he retracted his statement and claimed he did not say it? The Gemara answers: It is due to the fact that the halakha concerning one who rapes a virgin young woman, who is required by Torah law to marry her and for whom it is prohibited to divorce her as long as he lives, is difficult for him, as it is taught in a baraita: In the case of a rapist who divorced the woman he raped, if he is a non-priest, he remarries her, and he is not flogged for violating the prohibition: “He may not send her away all his days” (Deuteronomy 22:29). If he is a priest, he is flogged for violating the prohibition, and he does not remarry her because it is prohibited for him to marry a divorcée.

The Gemara elaborates: If he is a non-priest, he remarries her, and he is not flogged. Why? It is a prohibition that has a positive mitzva which preceded it, as the positive mitzva: “And she shall be his wife” (Deuteronomy 22:29), precedes the prohibition “He may not send her away.” But let him be flogged, since he violated the prohibition by divorcing her. Apparently, one is not flogged even if the positive mitzva precedes the prohibition.

Ulla says in response: The positive mitzva in the case of a rapist is not a mitzva that precedes the prohibition. Rather, it follows the prohibition and rectifies it, as it is referring to a case of one who married his victim and then divorced her. Let the verse not state: “And she shall be his wife,” in the case of a rapist, and let us derive it by means of an a fortiori inference from the case of one who defames his bride, claiming that she was not a virgin when he consummated the marriage: If in the case of a defamer, who did not perform an action but sinned through speech, the Merciful One states: “And she shall be his wife” (Deuteronomy 22:19), then in the case of a rapist, who performed an action, is it not all the more so that he is obligated to take her as a wife?

Ulla continues: Why, then, is the mitzva stated in the case of the rapist? If it is not relevant to the matter of before the rapist marries the victim, apply it to the matter of after the rapist marries the victim, teaching that if he divorced her he must remarry her. Although in the verse it appears prior to the prohibition “He may not send her away,” it actually serves to rectify that prohibition.

The Gemara asks: But still, this affords no proof, as one cannot derive the case of a rapist from the case of a defamer, as the a fortiori inference can be refuted: What is notable about the case of a defamer, which is more stringent than the case of a rapist? It is notable in that he is flogged and is liable to pay retribution, which is contrary to the principle that in general, two punishments are not administered for one transgression.

The Gemara suggests: Rather, let the verse not state: “And she shall be his wife,” in the case of the defamer, and let us derive it by means of an a fortiori inference from the case of a rapist: And if in the case of a rapist, who is not both flogged and liable to pay restitution, but is liable to receive only one punishment, the Merciful One states: “And she shall be his wife,” in the case of a defamer, who is flogged and liable to pay retribution, is it not all the more so that he is obligated to take her as a wife? And why, then, is it stated in the case of the defamer? Rather, if the mitzva is not relevant to the matter of the defamer, apply it to the matter of the rapist, and if the mitzva is not relevant to the matter of before the rapist marries the victim, apply it to the matter of after the rapist marries the victim, teaching that if he divorced her he must remarry her. Although in the verse it appears prior to the prohibition “He may not send her away,” it actually serves to rectify that prohibition.

The Gemara asks: But this affords no proof, as one cannot derive the case of a defamer from the case of a rapist either, as the a fortiori inference can be refuted: What is notable about the case of a rapist? It is notable in that he performed an action, while the defamer performed no action.

The Gemara suggests: Rather, let the verse not state: “And she shall be his wife,” in the case of the defamer because the expression is redundant, as she is already his wife. It would have been sufficient for the verse to state that it is prohibited for him to send her away. Why, then, is it stated in the case of the defamer? Rather, if the mitzva is not relevant to the matter of the defamer, apply it to the matter of the rapist, and if the mitzva is not relevant to the matter of before the rapist marries the victim, apply it to the matter of after the rapist marries the victim, teaching that if he divorced her he must remarry her. Although the positive mitzva appears in the verse prior to the prohibition “He may not send her away,” it actually serves to rectify that prohibition.

The Gemara questions that derivation: And say instead: And if the mitzva is not relevant to the matter of the defamer before he marries his bride, as they are married, apply it to the matter of the defamer himself after they are married, teaching that if he divorced her and violated the prohibition against divorcing her, he is obligated to remarry her, and it teaches that he is not flogged, as the positive mitzva rectifies the prohibition. But in the case of a rapist, the mitzva is to marry her after the rape but there is no mitzva to marry her after he divorces her, and nevertheless, he is not flogged.

The Gemara answers: Yes, it is indeed so; the halakha is derived with regard to the defamer himself, teaching that if he divorces his bride he is obligated to remarry her. And the case of the rapist comes and is derived from the case of the defamer, and the same halakha applies there as well. The Gemara asks: With what derivation is the case of a rapist derived from the case of a defamer? If it is by means of an a fortiori inference or if it is by means of the inductive hermeneutical principle: What do we find, those derivations can be refuted, as we refuted the derivations earlier in the Gemara: What is notable about the case of a defamer? It is notable in that he did not perform an action.

Rather, Rava says: From where is it derived that a rapist must remarry his victim if he divorced her because the positive mitzva rectifies the prohibition “He may not send her away”? It is derived from the superfluous phrase: “All his days” (Deuteronomy 22:29), indicating that all his days, even after he marries and divorces her, he is obligated to arise and remarry her and is consequently not liable to receive lashes. The Gemara adds: And likewise, when Ravin came from Eretz Yisrael to Babylonia, he said that Rabbi Yoḥanan says: All his days he is obligated to arise and remarry her.

Rav Pappa said to Rava that a question arises with regard to Rabbi Yoḥanan’s statement that one is flogged for violating a prohibition preceded by a positive mitzva: But isn’t its prohibition dissimilar to the prohibition of muzzling an ox while it is threshing grain (see Deuteronomy 25:4), which is the paradigm for all prohibitions for whose violation one is flogged, as no positive mitzva is stated in conjunction with the prohibition of muzzling? Rava said to him: Is it reasonable to say that due to the fact that the Merciful One wrote in its regard an additional positive mitzva, the stringency of the prohibition lessens, so that no lashes are administered?

Rav Pappa objected to this claim: If so, with regard to a prohibition that entails fulfillment of a positive mitzva as well, let us say: Is it reasonable to say that due to the fact that the Merciful One wrote in its regard an additional positive mitzva, the stringency of the prohibition lessens, so that no lashes are administered? Rava said to him: In that case, the transgressor is not flogged because the mitzva comes to sever the prohibition from the punishment of lashes.

The Gemara returns to the statement of Rava, who said with regard to the rapist: All his days he is obligated to arise and remarry her, and that is why he is not flogged for violating the prohibition “He may not send her away,” and asks: This works out well according to the one who says that the criterion for determining whether one is flogged for violating a prohibition that entails fulfillment of a positive mitzva is whether he nullified the mitzva or did not nullify the mitzva. According to this opinion, one is flogged only if fulfillment of the mitzva is no longer possible, e.g., a priest who divorced the woman whom he raped. By contrast, a non-priest would not be flogged, because the option of remarriage remains viable.

But according to the one who says that the criterion for determining whether one is flogged in that case is whether he fulfilled the mitzva or did not fulfill the mitzva, and if he did not immediately fulfill the mitzva he is flogged, what can be said? Even in the case of a non-priest who divorced the rape victim, once he fails to remarry her immediately, he is liable to receive lashes.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Makot 15a explores whether a prohibition preceded by a positive commandment still warrants lashes, focusing on the case of a rapist barred from divorcing his victim.