Tuesday, September 16, 2008

Defense of Others

A guest post by JS:

Last week's parsha, Ki Tetzei, has the following interesting law:
יא כִּי-יִנָּצוּ אֲנָשִׁים יַחְדָּו, אִישׁ וְאָחִיו, וְקָרְבָה אֵשֶׁת הָאֶחָד, לְהַצִּיל אֶת-אִישָׁהּ מִיַּד מַכֵּהוּ; וְשָׁלְחָה יָדָהּ, וְהֶחֱזִיקָה בִּמְבֻשָׁיו.
יב וְקַצֹּתָה, אֶת-כַּפָּהּ: לֹא תָחוֹס, עֵינֶךָ.

11. If two men are struggling with each other, a man and one of his brethren, and the wife of one of the men approaches in order to save her husband from the one striking him, if she reaches out her hand and grabs the man's private parts
12. Then you shall cut off her hand - she shall not find pity in your eye.

Chazal make the following comments:

1) The reason for the law is that we are concerned for the attacker's dignity. We learn this from the Hebrew words for "private parts" which are literally "his embarrassments." Thus, this law seems to come into affect even if the man suffers no physical injury.
2) We do not literally cut off her hand. Rather, the damages due are equal to the value of her hand - similar to "an eye for an eye."
3) The law only comes into affect if the woman had other options to defend her husband, but instead chose this route.

Yet, a number of questions pop out:
1) Do we really value the dignity of an attacker over a woman's right to defend her husband?
2) If the Torah wanted us to take the "value of her hand", why use the specific language of "cut off her hand?" Why even leave it open for a question that we mean money here? And why say "she shall not find pity in your eyes?"
3) And shouldn't the penalty be related to the injury? If I am blinded by another, the compensation is the value of my eye, not my attacker's hand (if he poked my eye out)
4) This penalty "cut off her hand" is not found anywhere else in the Torah to the best of my knowledge. Why here?
5) Aren't women taught in self-defense classes to specifically attack a man in this manner?

Lastly, how does this law stack up against our modern sensibilities?

In the US, there exists a right of "defense of others" as an affirmative defense to liability for damages in a tort. In other words, even if all the elements of battery could be proven, the defendant is not liable.

One is allowed to use force to defend a third party in the same manner as that third party could use force in self-defense. In self-defense, reasonable force may be used in defense against a threatened battery. Reasonable force is the amount of force that a reasonable person would believe necessary for protection against the threatened battery - for example, a weaker person may use more force in defending against a stronger person than vice versa. However, there is no special privilege to use extra force in defending a family member. Courts are also split on liability if one attacks the wrong party in a fight (the innocent party and not the aggressor).

From the "fact pattern" in the Torah it seems that the woman is defending the correct party (she is saving her husband from his attacker). Most likely a court would find that the woman used "reasonable force" in defending against a stronger man. Also, the fact that women's self-defense courses teach such an approach would be favorable to her as well.

So in Torah law: "cut off her hand" - make her pay. In US law: probably no liability.

Are we now a more fair and just society? Or are our values somehow misplaced?

Buy DB's book. (please)

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