Our Gemara on Amud Beis quoted a Mishna on 96b that discusses the following scenario,  If two brothers who are nine years old (old enough to be anatomically capable of intercourse, but still considered halakhic minors in terms of their ability to enact legal transaction such as marriage) have an older brother who dies childless, they both are under the obligation of Yibum.  Of course, they should wait until adulthood, but the Mishna discusses an unusual incident whereby both brothers attempted to perform Yibum through intercourse.  The problem is that, on the one hand, they are minors and incapable of full intent, but on the other hand, Yibum has a lower threshold of intent due to its status of continuing and carrying on a prior brother’s marriage.  Further complicating matters is that ordinarily, a second act of Yibum by a second brother is meaningless, since once a valid Yibum is performed, there is no further legal validity to the another brother’s claim. However, over here, since the first brother’s actions are of questionable effectiveness, perhaps the second brother’s action also has an effect.  Rabbi Shimon says that she is considered to be permitted to the first brother who can eventually consummate when he is of legal age, and the actions of the second brother have no validity. Rabbi Shimon reasons, “If this act of a minor has legal import, then the first brother’s action completely blocks the second brother’s action.  And, if we are to say that the Yibum Of the first brother is in ineffective, than so too the Yibum of the second brother, so one way or the other, the woman remains permitted to brother number one.

Tosafos on our daf asks, why are we not considering the woman to be forbidden to the first “husband” on the concern that if this act with brother one effectuated a valid marriage, then she willfully was adulterous with brother number two?  One of the answers Tosafos offers is that we are discussing a situation where the woman also was a minor.  And there is a famous principle, פיתוי קטנה אונס the seduction of a minor is legally considered as an act of rape.  Therefore, despite this woman having “willfully” engaged in sexual relations with brother number two, it is considered lacking in will, and legally an involuntary act.

Though the age of halakhic maturity is not our modern day age of maturity, the principle still stands as an important ethical signpost for sexual abuse victims.  The Torah considers actions by a minor, especially sexual ones, that ostensibly appear to be with consent, as actually a form of rape.  Here is an example of Torah civilization being ahead of secular sensitivities by a good thousand years.  The Torah recognizes a form of statutory rape way before many other cultures.  Marital rape is also something recognized by the Torah as forbidden, likely a thousand years before other cultures and legal systems (Niddah 20b). It’s a significant idea, that verbal or tacit consent is meaningless if the individual is not considered mature enough to fully understand the implications or manage the physical impulses.

According to the Torah, for many legal concerns, bar and bat mitzvah age is considered an adult, as far as heavenly punishments are concerned, one needs to be age 20 (Shabbos 89b). Presumably, though there is some liability, it is met with clemency as there is an understanding that maturity and judgment develops in stages. In fact even in other legal halakhic matters, certain real estate transactions are not as binding if performed by someone under age 20, since the complexity and ability to understand long term implications are still under developed in teenagers. See Bava Basra 156a, “A child’s inclination is to be attracted to money. And if you say that his sale is a valid sale, there may be times that there are potential buyers who rattle the dinars before him in order to tempt him to sell, and he will go and sell all of his father’s property.” On the other hand, the opportunity for subtle and subjective moral liability even exists for a child under Bar Mitzvah, as the Rama states (OH 343:1): “If a child struck his father or transgressed otherwise in his youth, even though he does not need to repent when he matures, it is still good for him to take upon himself some element of repentance and atonement, even though his sin was at age when he was not eligible for punishment (Piskei Mahara"i Chapter 2).”

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

Do you like what you see? Please subscribe and also forward any articles you enjoy to your friends, (enemies too, why not?)