B”H

Solving the Problem of Aginut

In order to solve the problem of aginut we must first understand why this halakhic problem exists. Is it HaShem’s will that women who are abandoned by recalcitrant husbands or whose husbands have disappeared are to pine away in loneliness, despair, barrenness and often poverty as well? Why this singularly cruel edict, particularly for one whom, apparently, has committed no sin?

The central motif of Torah is the ongoing and continuous of liberation of Humankind from slavery and misery to freedom and joy. It is God’s will that eventually we will have so internalized holiness that we will be ultimately free, because the Torah will be our very being and our very being will be the Torah. We will have no need for punitive measures whatsoever as we will perform, indeed we will be, the Torah and this state will be one of indescribable joy. However, we are still in a very immature state of moral/spiritual development. It is human nature in general, and that of women most particularly, to become enslaved in all manners of ways.

Women are not intended to be subjugated to men, although the simplest meaning of the Text seems to read as though they are. Contrary to what may appear to be written in Torah, the subjugation of women to men is intended to catapult women to freedom. It is intended to be an uncomfortable state. If merely being uncomfortable does not spur women on to become everything they can be the discomfort grows until it can no longer be endured.

We Human beings do not move on to the next stage of our spiritual/moral evolution until our present state becomes absolutely unbearable. Until that point is reached we find excuses, and explanations, for our diminished, restricted and limiting states of existence. We tell ourselves that things are really not so bad. We let ourselves be guided by our fear of change more than by our love of freedom. We are caught in inertia. Tremendous force will be required to change our course.

The state of aginut is the state in which being a subjugated female becomes absolutely unbearable. Aginut is not meant to be tolerated. Aginut is not meant to be perpetuated. Aginut is not meant to exist at all really. It is meant to be a temporary measure that catapults Jewish women to greater freedom. To speak quite bluntly, it is meant to catapult the agunah, who, it transpires is sinning after all insofar as she is not being true to her own Soul, to freedom. Unfortunately, the state of aginut is very cruel because women are very, very cruel to themselves and one another in that we accept our own enslavement and perpetuate it, even going so far as sacrificing our own daughters to the gods of fear, inertia and resignation. When Jewish women will resolve to be free the ordeal of aginut will end.

The problem of the agunot is no more than a psychological one in our times. In my honest opinion, Jewish women who are married to Jewish men who won't give them a divorce should go ahead and have more children if they find a suitable partner. If the suitable partner is not a Jew, there is no issue of mamzerut. If the suitable partner is a Jew the children will be mamzerim, but so what? Mamzerim can marry mamzerot or gerot. Mamzerot can marry mamzerim and gerim. There are so many couples in the non-religious world who divorced without getting a get and then the women got remarried to Jewish men and whose children are, therefore, mamzerim, and there are so many gerim in today's generation, that the issue of mamzerut is a dead issue. Are you absolutely sure of your lineage back to the time of Avraham? Me either. No one is! In fact, there was a story a couple of years ago in the ultra-Orthodox press about a Chassidic Rabbi from Jerusalem who traveled to Poland to find his maternal grand-mother's grave. When he got there the records showed that she is interred in a Catholic cemetery. He thought there must be a mistake. There was no mistake. He, his mother and all of his sisters and brothers were not Jews. His paternal grandfather had taken up with a Catholic Polish woman, lived with her and everyone assumed she was Jewish. She never converted and after her death the Catholic church interred her in a Catholic cemetery. The shocked Rabbi had to be converted and all of the ketubot and gitim he signed as a witness to were null and void. If he signed a couple's get and the woman got married to a Jew and had children, she was committing polyandry and her children were mamzerim - and everyone thought they were 100% ultra-Orthodox glatt. There you have it - we can all be pretty sure we are either not Jewish somewhere along the line (and since so few of us act in accordance with compassion, modesty and benevolence this may very well be the case), or that we are mamzerim.
I realize that what I wrote above may come as a severe jar to your sensibilities. Forgive me. I also believe that women’s refusing to buckle under the cruelty of aginut is the only way to fight it. The only way to fight aginut is to carry love and life as usual.
With blessings for a Chag Kasher V'Same'ach,
Doreen Ellen Bell-Dotan
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B"H

I received this in response from a man who works with agunot:

Thanks for taking interest in the agunah issue- I think that this is truly
the solution to the problem, a shared sense of sympathy and responsibility
for agunot.

Respectfully, I must disagree with your conclusions for a number of
reasons:

1. One odd incident of a rabbi in Jerusalem does not prove that no one is
really Jewish nowadays. I don't think that there is any good reason to
assume that we're not Jewish. G-d promised the Jewish people that they
would last forever, and I would hope that His promise is worth something.
Also, the statistical, sociological and cultural likelihood of us not
being Jewish is virtually non existent. From a halachik perspective,
there is precedence to assume a chazaka that the masses are Jewish.
(Also, are you familiar with the "kohen gene" that has been found in the
Jewish descendents of Aaron?)

2. With regard to the possibility that we are all mamzerim - this is also
not likely. In the world of halacka regarding this issue, we assume
"innocent until proven guilty," and there is little compelling evidence to
assume that we are all mamzerim.

3. According to Jewish law it is prohibited for a Jewish person to marry
a non Jewish person. The fact that there is no issue of mamzerut in such
a situation is for a different reason.

4. According to Jewish law, it is prohibited for a Jewish married woman
to remarry! Even if you think that it would not be so bad for her children
to be mamzerim, this does not justify her violation of the biblically
mandated prohibition of remarriage when she has not yet obtained a get.

Please feel free to write back and let me know what you think about what I
have written above.

All the best,
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Ladies!

The concern of gentlemen like this has not helped you in the past, and will not help you in the future. It is you, and you alone, who must take charge of your destiny and your life.

You cannot get out of the trap of agunot if you abide by these rules.

The choice is yours - either walk out of the cage into the light of love and life, or do that which is expected of Jewish women and languish in dark despair and barrenness - deluding yourselves that you are doing mitzvoth by suffering.

I GUARANTEE YOU THAT IF THE WOMEN LEFT AGUNOT ARE FULLY PREPARED TO TAKE THE STEPS I OUTLINED ABOVE THE ORTHODOX ESTABLISHMENT WILL FIND WAYS OF RELEASING AGUNOT WITHOUT LEAVING THE AGUNOT NO RECOURSE BUT TO TAKE SUCH RADICAL MEASURES.

Proof positive that this is true already exists in the form of the precedent of the abolishing of the ordeal of the Sotah.
On the following link we read: http://tinyurl.com/2op95
“When the number of murderers grew large, they stopped performing the eglah arufah ritual; . . . when the number of adulterers grew large, the bitter waters stopped, and it was R. Yohanan b. Zaccai who stopped them, as it says, "I will not punish their daughters for fornicating, nor their daughters-in-law for committing adultery, for they [themselves turn aside with whores... [Hosea 4:14]. (M Sotah 9:9)
According to a midrash appearing in both Talmuds (BT Sotah 47b, PT Sotah 9:9; 24a), this mishnah is saying that once sexually immoral behavior becomes standard, the waters will no longer be able to test wives: The husbands of many of these women will be guilty of the same act themselves and therefore ineligible to invoke the test. The midrash derives the need for guiltless men from the concluding verse of the Sotah section (Numbers 5:31), which says that "the man shall be clear of guilt," implying that only men who are themselves clear of guilt may test their wives. In other words, this ritual was discontinued because of its inherent unfairness: It punished women but not men who committed the very same crime, and who were, themselves, the ones who initiated the test for the women. But the Tosefta (14:2) interprets the mishnah differently. It says that when adultery became common and hence public knowledge, they (the authorities) could no longer administer the bitter waters because the test works only in a case in which there is a doubt and in so many of these cases the transgression was certain.
These different approaches suggest that there are two interpretive stages: The older approach, represented by the Mishnah and the Tosefta, treats the abolition matter-of-factly. According to the mishnah, because there was a backlog of cases, a long line of angry husbands waiting to test their wives, the time-consuming ritual had to be abolished, just like the eglah arufah ritual. The mishnah's verse from Hosea, supporting the notion that adultery had become rampant, singles out women as adulterers and says that, despite their sin, God would not punish them--an apt proof text. Note that the verse describes men's sin as seeking out prostitutes, not adultery. The Tosefta's tradition, attributed to R. Yohanan b. Zaccai, a Tanna who lived at the end of the Temple period, gives a rationale that is an alternative to the mishnah's backlog of cases, but still offers no moral critique of the ordeal. However, the later rabbis and also the redactors of the Bavli and Yerushalmi felt the need to explain the Mishnah's abolition in a different way altogether, as a response to the hypocrisy of a ritual that permitted guilty but unpunished husbands to punish a guilty wife. As time passed, moral instincts seem to have prodded rabbis into explaining the abolition as a moral necessity. “
It is clear, then, that the abolition of the enslavement of the agunah will similarly be accomplished by the agunot having sexual relationships and children by men who are not their abandoning husbands or with men other than their husbands whose whereabouts are unknown because they have been put in the position of having to override the Biblical directive against adultery in order to perform the Biblical directive of be fruitful and multiply, which is HaShem’s first directive to all that lives and thus higher.

Is the behavior of agunot who are involved in loving relationships and bear children to the men they love adultery proper? Certainly not! Even in the case of true adultery it is clear that women do not ordinarily engage in relationships merely to satisfy their lusts, as do men, and Torah acknowledges this in the passages cited above, but rather do so because of their profound need to be loved and to bear the progeny only of men that they love. It is well nigh certain that her husband is not physically and/or emotionally satisfying a woman who is having an affair outside of her marriage. Is pining away for the rest of her life for love a mitzvah?! Can it possibly be that men, who have affairs driven by lust even when their wives fulfill them, will be the moral judges of the behavior of women?

As is written: Is not this the fast that I have chosen? to loose the fetters of wickedness, to undo the bands of the yoke, and to let the oppressed go free, and that ye break every yoke? (Yeshayahu 58:6).

There are many who will say: “Those who commit adultery will go to Gehinnom (Hell)!”

To this I answer: It is not adultery for a woman to rebuild her life after her husband has stopped functioning as a husband in every way, but living as a stranger from her delights in tormenting not only her, but his own children in every way. Moreover I ask: What is the meaning of the threat that she will go to Gehinnom? Where, exactly, is the agunah now?

Let us search deeply and honestly into what the Torah says. We shall see that the groundwork for releasing the agunah and her children from their torment has already been laid. We require no chidushim (new halakhic decisions or interpretations); we need merely to consider that which is already decided and explicitly written in the Torah with a loving heart and a new perspective.

What is the true state of the agunah and her children? When we examine the estate of the agunah and her children honestly we will see how incredible it is that a man would inflict such suffering not only on a woman he was once intimate with, but on his own children. That these men do so for a protracted amount of time, some indefinitely, is all the more shocking. What shall we say about the Rabbis and Dayanim (Rabbinical Judges) who aid and abet such criminals? We will see that the men who are responsible for keeping their former wives and their children prisoners in this manner are truly monsters according to Torah and that it is they, not the “adultress” who await the most extreme punishment that the Torah metes out. This is all the more true for the Rabbis and the Dayanim who give succor to such men and we will see that the Torah promises the worst possible end for them as well.

While the widow and the orphan find themselves in the humbled and vulnerable state they are in as a result of an act of God, the agunah and her children suffer as they do at the hands of a man, and the Rabbis and Dayanim who allow him to continue. Aginut and the state of the children of agunot, then, are the result of human beings playing God in order to enjoy feelings of revenge and power. Taking revenge is absolutely forbidden according to Torah Sh’bikhtav (the Written Torah, see Vayikra 19:18). Is there any greater sin than this?

There is a case in Torah in which HaShem refers directly to His not giving a get (a writ, particularly a writ of emancipation as a bill of divorce or a writ setting a slave free). Let us look at those passages in order to understand the utter distortion and perversion of the men who refuse to give their ex-wives gittin (the plural of get in Aramaic, bills of divorce) and who inflict prolonged suffering on their children. We read the following in the Book of the Prophet Yeshayahu, who was sent by HaShem to tell the Jewish People:
“And I will feed them that oppress thee with their own flesh; and they shall be drunken with their own blood, as with sweet wine; and all flesh shall know that I HaShem am thy Saviour, and thy Redeemer, the Mighty One of Jacob. Thus saith HaShem: Where is the bill of your mother's divorcement, wherewith I have put her away? Or which of My creditors is it to whom I have sold you? Behold, for your iniquities were ye sold, and for your transgressions was your mother put away.” (Yeshayahu 49:26 - 50:1, Translation - THE JEWISH BIBLE, Jewish Publication Society, Philadelphia 1917).
The Mother referred to in the passage above is the Sh’khinah (the Divine Presence, understood as the “feminine aspect” of HaShem). Obviously it is not HaShem’s desire to “send her away”, the passage means that the Divine Presence was removed from the midst of Israel because of our sins. We see from the passage preceding the mention of the bill of divorcement that although the People of Israel have sinned HaShem still regards them as his very own children and will fight their fight against any oppressor. From this we can see how inhuman it is for a man to cause suffering to his own children, particularly innocent children who have not so much as done wrong.
The estates of the agunah and her children are far worse than that of widows and orphans. The first consideration of the condition of the agunah and her children will be the economic one. The economic hardships of the agunot and their children are often worse than that of the widow and her children. The widow and her children may have inherited some money and property, the agunah and her children have not. Worse still, if the man who deserted his former wife and his children was in debt and/or if he continues to incur debts she is legally beholden to be responsible for the debts as well. We see eminently clearly that the economic state of the agunah and her children can be far worse than that of the widow and the orphans. [It is very interesting that there is no Hebrew word for the children of agunot and grushot (divorcees)]. Therefore, everything that Torah says about the widow and the orphan will be considered all the more true for the agunah and her children, kal vachomer (argumentum a minori ad majus" or "a majori ad minus"; corresponding to the scholastic proof a fortiori, one of the most common Talmudic hermeneutical principles).

The agunah and her children are subjected to the deepest level of public embarrassment. Presently we will review what the Torah says about embarrassing a person publicly.

A widow may remarry and orphans may hope that one day they will be restored to living in a happy home, loved by both their mother and an adopting father, protected by two loving parents as every child should rightfully be and having their needs provided for. The agunah and her children see no end to their misery. They are at the mercy of a person so deranged as to play God with the destinies of his former mate and his own children. (Was he deranged at the time they married unbeknownst to her? Was the marriage halakhically binding?) The agunah and her children are at the mercy of Rabbis and Dayanim who see in every case of aginut the opportunity to make, and enjoy, an exorbitant sum of money, this on the suffering of another Jew. They justify their crass and unfeeling behavior by telling themselves that certainly the woman who is now an agunah must have been a truly insufferable wife. To this I respond: Upon what do they base this assumption? Upon the slander of the woman’s ex-husband? Even if the woman did torment her husband when they lived together he has the right to divorce her. She may forfeit the money of her get in some circumstances if she behaves in certain manner proscribed by Torah, but she must be given the get (writ of Jewish divorce) nonetheless (Shulchan Arukh, Even Ha’Ezer 77:2). The men who leave their former wives agunot and their children in a nameless state of misery have robbed them of everything, even of hope.

Having described the state of the agunah and the children of agunot, and seeing that it is a worse state than that of widows and orphans in every way, let us review what the Torah has to say about widows, orphans, shaming a person publicly and about the punishments for various infractions in Torah.

“You shall not steal”, (Shmot 20:12). Now, we learn that this is a prohibition primarily against kidnapping. We are forbidden, in the main, to steal a nefesh (the conscious part of the Soul, the consciousness). How much the worse is stealing a neshamah (the highest element of the Soul. It is one with God), i.e., preventing a neshamah from being born?

The penalty of robbing the poor is death by Divine means. How much worse, then, is intentionally povertizing one’s former mate and one’s own children and stealing their right to be restored to a normal life with the opportunities and potentialities inherent therein?

“You shall not afflict any widow or orphan. If you afflict them at all, and they cry to Me…then your wives shall be widows, and your children orphans.” (ibid., 22:21). We are taught that one of the interpretations of this is that judges, who do not help the oppressed though it is within their ability to do so, bring death upon themselves by Divine judgment.

“You shall not aggrieve one another”, (Vayikra 25:17). In Tractate Bava Metzia 58b our Sages explain that this means that Ona’at Devarim (verbally tormenting, mental and emotional abuse, saying things that cause one suffering) is forbidden absolutely and categorically. As we have seen above, the Prophet Yeshayahu was sent by HaShem to teach: “And I will feed them that oppress thee with their own flesh; and they shall be drunken with their own blood, as with sweet wine; and all flesh shall know that I HaShem am thy Saviour, and thy Redeemer, the Mighty One of Jacob. (Yeshayahu 49:26). We learn from all this that Ona’at Devarim is a sin so serious that death at Divine hands is the punishment meted out. This is true because to be tormented mentally and emotionally is an attack on one’s very being. How much more serious is the distress caused by a man who refuses to give his wife a get, who drags her from one hearing to the next in Rabbinical courts, speaks evil of her at every opportunity, makes her believe that each hearing will be the last and that she will receive her get, and then fails to give it to her? In Tractate Bava Metzia (59a) we learn that a person who commits adultery with a married woman is subject to death by strangulation by the earthly court, however he retains his share in the World to Come; whereas, a person who embarrasses another person in public loses his share in the World to Come. Fools are likely to think that embarrassing a person publicly and mental and emotional torture are less severe infractions than adultery because there is no punishment for it that an earthly court can mete. In fact, they are sins so severe that no earthy court is able to mete out the full punishment for it. Let those who cause the agunah and her children ongoing shame be apprised of this Law!

We learn in Tractate Bava Batra (88b) that: “The punishment for sins committed with faulty measures is more severe than the punishment for sins of sexual perversion.” From this we can infer that a man who forces his ex-wife and his own children into the economic hardship that being an agunah and her children often brings, steals their peace of mind, steals their social standing, steals their very hope for a better future, will incur a punishment far greater than that of the agunah who may find a man to love and to bear children with. Again, please bear in mind that the punishment for adultery is strangulation, whereas the punishment meted out for afflicting a widow or an orphan, whose state we have successfully demonstrated is socially and economically superior to that of the agunah and her children, is death by Divine intervention.

We learn that the Flood occurred not because of the fact that every sexual perversion had taken place, which it had, but only after perversion of justice had become legion, as is written: “For the earth is filled with chamas (gross injustice) through them, and behold, I will destroy the earth” (Bereshit 6:13). Indeed, Torah Sh’bikhtav does not even mention sexual perversion explicitly as a reason for bringing about the destruction of all flesh; we have to infer from the language of Torah that sexual perversion of every kind was widespread over the earth. (See Rabbi Yohchanan’s comments in Tractate Sanhedrin 108a). Perversion of justice, certainly stealing peoples’ peace of mind, worst of all stealing the right of neshamot to be born and live and to arrive at a higher level of Godliness by doing mitzvoth are all crimes far more grave than adultery. Torah views perversion of justice in a more negative light than sexual improprieties. Those who imagine that the sins of the man who keeps his ex-wife and agunah and torments his children are less grave than that of the adulteress is sadly mistaken and in contravention of Torah. Understand this.

The teaching of Rabbi Levi in Tractate Bava Batra (88b) stating that the punishment for using faulty measures in business is more severe than for sexual perversion is cited by the Ramba”m (Laws of Theft) and by the Tur (Choshen Mishpat 231). Now consider that the Torah also teaches that Ona’at Devarim is a more serious infraction than using faulty measures. Shim’on bar Yochai, Rabbi Yochanan and Rabbi Elazar teach: “Verbal wronging is a greater sin than monetary wronging because the first affects the person’s very self, whereas the second only affects his money.” The reader is referred to Bava Metzia 58b-59a for a detailed discussion of the relationship among the laws concerning using faulty measures, embarrassing one publicly, honoring one’s wife and adultery. Anyone with a heart can understand, then, that a man who torments not only his former wife but his very own children psychologically, as well as economically, has forfeited his place in the World to Come. He is the living dead having brought death by Divine punishment upon himself. His former wife, therefore, may be considered to have undergone a tikkun (correction, in this case a spiritual correction) that brings about a higher level of rectification than that which a widow undergoes, and she is permitted as a wife to all but the High Priest. The children of the agunot may be considered to have undergone a higher level of tikkun than that of orphans. Have the agunah and her children not been murdered by the woman’s former husband? Is it not written: Four are accounted as dead: A poor man, a leper, a blind person, and one who is childless. A poor man, as it is written, for all the men are dead [which sought thy life]. A leper, as it is written, [And Aaron looked upon Miriam, and behold, she was leprous. And Aaron said unto Moses …] let her not he as one dead. The blind, as it is written, He hath set me in dark places, as they that be dead of old. And he who is childless, as it is written, Give me children, or else I am dead (Nedarim 64b). From these passages we can see clearly that having been put to death by being povertized the agunah and her children have undergone the ultimate cleansing of all sin and the ex-husband is not only a murderer, but in effectively killing his children with poverty has killed himself by making himself childless. The ex-husband according to the Torah has brought non-being upon himself. His wife, therefore, is entirely free.

We have successfully demonstrated above that the state of the agunah and her children is worse than that of the widow and the orphan. Therefore, kal vachomer, the punishments that will be meted out to those who have distressed the agunah and her children will be worse than those meted out to those who distress the widow and the orphan. Moreover, the man who refuses to give his wife a get and the Rabbis and Dayanim who do not compel him to do so by every means permissible, have committed the unspeakable, indeed unknowable, crime of preventing neshamot from being born.

Indeed, we learn that the Jewish People are all characterized by their compassion, modesty and benevolence (Yevamot 79a). Similarly Avot 5:19 comes to teach us that all of the disciples of Avraham are characterized by a good eye, a humble spirit and a meek soul. The very heritage of a man who can leave his wife an agunah and his very own children bereft may be questioned. Was she ever married to a Jew at all? If not, she is not an agunah and she is free. As to who is destined to go to Heaven and who to Hell, this section of Pirkei Avot makes that issue quite clear as well.

The above discussion amply proves that a plethora of perfectly and immediately applicable takdimim (precedents, legal precedents) exists in Torah that may be used as bases to free the agunah. We need only wish to do so.

Mo’adim L’Simcha,

Doreen Ellen Bell-Dotan, Tzfat