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#MeToo and Sexual Harassment: A Familiar Mishnah through a New Lens
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JOFA Blog

#MeToo and Sexual Harassment: A Familiar Mishnah through a New Lens

Harassment: An Assault of Human Dignity

Following the headlines of the #MeToo movement, one might think that the horrors of sexual harassment had just been discovered. Remarkably, though, already in the second century ce, Rabbi Akiva taught some of the basic lessons of the movement. A close reading of a single mishnah can help us to sharpen our thinking about what is wrong with sexual harassment and even to understand secular law. Rabbi Akiva brings the right to human dignity into sharp focus.

Unwanted and inappropriate sexual conduct toward women is inherently demeaning, and shame looms large among the predator’s weapons. Not only does the harassment embarrass the victim, but the fear of further hurt often shames a woman into silence. Not coincidentally, the rabbinic justice system considers deliberate shame a primary category of prosecutable personal damage, on par with physical damage, medical expenses, lost labor, and pain and suffering.         

“One who damages another is obligated in five categories of remuneration: damage, pain, medical expenses, lost labor, and shame” (Mishnah Bava Kamma 8:1). After listing hefty fines for gender-neutral offenses, the Mishnah designates a massive fine for a gendered form of sexual harassment: 

One who shouts at another gives that person a sela [twenty zuz]. Rabbi Yehudah, in the name of Rabbi Yose the Galilean, says: “a maneh [one hundred zuz].” One who slaps another gives that person two hundred zuz; with the back of the hand, that person gives [the victim] four hundred zuz. If that person split someone’s ear, plucked their hair, spit [at them] and their spit touched the individual, stripped someone’s cloak from them, or uncovered the head of a woman in the street, [the perpetrator] gives [the victim] four hundred zuz (Mishnah Bava Kamma 8:6). 

The amount mandated for uncovering a woman’s hair, 400 zuz, is equivalent to two standard divorce settlements (ketubot), enough for most women to live for two years (Mishnah Peah 8:8 and Bartenura, ad loc.). The size of this award alone indicates the gravity with which sexual harassment is viewed in the Jewish tradition.

The Mishnah goes on to debate whether compensation for violations of personal dignity and shaming should vary based on social status or be egalitarian and universal. Although there is debate as to which opinion should prevail (Talmud Bava Kamma 86a and codes), Rabbi Akiva declares strongly that all should be treated alike because they are children of Abraham:

The general principle is that everything depends on the person’s honor.

Rabbi Akiva said: “Even the poor of Israel are evaluated as free people who have lost their property, because they are children of Abraham, Isaac and Jacob” (Mishnah Bava Kamma 8:6).

We don’t like to admit it, but the universal right to honor is still contested in contemporary culture. Sexuality aside, society does not treat all human beings the same way.

We don’t like to admit it, but the universal right to honor is still contested in contemporary culture. Sexuality aside, society does not treat all human beings the same way. Rabbi Akiva is ahead of his time when he clarifies that whether one is a building maintenance professional or a top government official, one’s human dignity is infinite and inalienable. Our present social status is not reflective of our inherent honor, and anyone who tries to diminish it should be punished harshly. 

 

No to Victim Blaming and Discounting

After Rabbi Akiva unequivocally states that human dignity is infinite and that violating it is a grave offense, the Mishnah continues with an incident in which he translates theory into practice:

[And] there was an incident in which a man uncovered the head of a woman in the street. She came before Rabbi Akiva, and [Rabbi Akiva] required [the perpetrator] to give her four hundred zuz. He said to [Rabbi Akiva], “Rabbi, give me time.” So he gave [the perpetrator] time. 

[The man] watched her stand at the entrance of her courtyard, broke a pitcher in front of her, and in it was an issar [a small amount] of oil [which he was deliberately wasting]. She uncovered her head and scooped [the oil] and rubbed her hands on her head [so as not to waste the oil]. He placed witnesses against her, and he came before Rabbi Akiva. He said to him, “Rabbi, to her I give four hundred zuz?!” He replied, “You haven’t said anything.” Those who injure themselves are exempt, even though it is not permitted. Others who wound them are liable (Mishnah Bava Kamma 8:6).

The defendant in our ancient case employs the ubiquitous tools of modern perpetrators: victim blaming and discounting her disclosures. Standard practice in monetary law in the Mishnah allows defendants the opportunity to request a delay in payment—either to bring additional evidence or to arrange for payment of such a significant fine (Mishnah Sanhedrin 3:8; Shulhan Aruch Hoshen Mishpat 16:1). Predictably, the perpetrator in this case leverages his time to engage in a defamation campaign of the victim. 

By entrapping her and gathering evidence that she is willing to expose her hair just to claim a nominal amount of oil, the perpetrator attempts to prove that she is a woman without dignity. As such, the perpetrator claims, he has not really damaged her by forcibly exposing her hair. Perhaps he intimates that she has even invited his behavior through her promiscuous behavior. As Judith Herman writes:

After every atrocity, one can expect to hear the same predictable apologies: it never happened, the victim lies, the victim exaggerates; the victim brought it upon herself; and in any case it is time to forget the past and move on. The more powerful the perpetrator, the greater is his prerogative to name and define reality, and the more completely his arguments prevail.

After every atrocity, one can expect to hear the same predictable apologies: it never happened, the victim lies, the victim exaggerates; the victim brought it upon herself; and in any case it is time to forget the past and move on. The more powerful the perpetrator, the greater is his prerogative to name and define reality, and the more completely his arguments prevail.

Given that she is a promiscuous woman, claims the perpetrator, she is not worthy of the redress of the court. “My actions are insignificant, in the context of her morality,” he claims implicitly. Of course, intuitively we recognize the specious nature of his argument—exposed hair or skin, even in public spaces, has entirely different significance depending on circumstances. 

 

The Absolute Right to Consent and Agency

Oscar Wilde stated famously, “Everything in the world is about sex except sex. Sex is about power.” Here, in our mishnah, power and agency are essential in defining the experience. The fact that the woman is forcibly exposed and victimized creates humiliation and inflicts pain. 

Rabbi Akiva rejects the defendant’s claims unequivocally: There is no comparison between what someone does to himself or consents to and what is forced by others. 

To cite analogies to modern situations, the fact that a woman wears provocative clothing, acts flirtatiously, or even works in an erotic dance bar does not reduce the gravity of sexual violence against her. Even if she is willing to sell sex today, if she does not agree tomorrow, forced sex is rape, no matter if he pays for it. 

Heroically, Rabbi Akiva reasserts the victim’s infinite dignity and stiffly punishes the offender. Even if most halakhic decisors do not rule in accordance with Rabbi Akiva, he teaches four eternal messages: the gravity of sexual assault, the infinite right of every human being to dignity, the rejection of victim blaming, and the absolute right of every individual to consent and agency. 

 

Comparing the Mishnah to Contemporary Law

In the United States, sexual harassment law is structured around the right to equality in the workplace. The United States’ Equal Employment Opportunity Commission (EEOC) defines workplace sexual harassment as: unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment. 

A woman’s vulnerability is particularly acute in the workplace, where men often exploit power imbalances and women’s need for employment. Exploitation deprives women of their right to equal treatment in the workplace. Equality is a value addressed explicitly by Rabbi Akiva in his insistence that everyone be treated as “nobles who have fallen from wealth.”

Interestingly, the Israeli law dealing with sexual harassment goes beyond American law to add another uniquely Jewish dimension. It states: “The purpose of this law is to prohibit sexual harassment in order to defend human dignity, freedom and privacy and in order to promote equality between the sexes.”

By placing human dignity at the center, sexual harassment ceases to be limited to workplace violations. As a corollary, sexual harassment is defined in terms of specific actions (touching, commenting, insulting, abuse of authority) rather than its impacts (interference with work) and is prohibited under any circumstances. Rabbi Akiva would be pleased.

 

Due Process and the Unlikelihood of Proof

Rabbi Akiva did not fall for the perpetrator’s victim-blaming campaign: “You went deep diving in mighty waters and emerged with nothing but shards,” he declares in another version of the story (Talmud Bavli Bava Kamma 91a). However, although the perpetrator may not have gained, the victim has certainly lost. After having been victimized once, in her attempt to claim redress she is subjected to a smear campaign, victim blaming, and further indignity. Her financial award is hard won.  

Additional circumstances distinguish this case. In his attempt to discredit the victim, the perpetrator deliberately stages witnesses. He does so because Jewish law requires eyewitness testimony as proof in every court case. Rarely is a perpetrator so brazen as to accost his victim publicly and in the presence of witnesses. As the recent spate of scandals has revealed, offenders tend to prey on vulnerable victims precisely in moments when it is difficult for them to escape and easy for the perpetrator to deny. A case in which his word is pitted against hers does not meet the burden of proof to convict in a Jewish court of law. This makes her award an unusual success.

A case in which his word is pitted against hers does not meet the burden of proof to convict in a Jewish court of law. This makes her award an unusual success.

There is no question that Jewish tradition looks upon sexual harassment as a severe and punishable offense. However, our tradition also places a premium on the value of considering a person “innocent until proven guilty” and demands a high standard of proof for offenses of all kinds. As Margret Atwood articulated clearly, even though this requirement puts women at a disadvantage in cases of harassment, we too must support due process and criminal rights.

 

Creating a Culture Where Harassment Is Not Tolerated

Much can be done to create a culture in which harassment is not tolerated. Our mishnah provides wisdom about the Jewish values: unequivocally rejecting harassment, demanding equal respect for every human being, and firmly rejecting attempts to blame or discredit the victim. It serves as a moral compass for us, enriching our understanding of contemporary law, but it does not provide us with the legal tools to punish violations when they inevitably occur. For this, our community and institutions have a lot more work ahead of us.

Rabbi Dr. Meesh Hammer-Kossoy teaches Talmud and directs the Social Justice Program at the Pardes Institute for Jewish Studies, a non-denominational beit midrash in Jerusalem.  She was ordained in the first cohort of Beit Midrash Har El by Rabbis Daniel Sperber and Herzl Hefter and received her Ph.D. in Talmud from New York University. 

This article was originally composed for ICJW Bea Zucker Online Social Justice Course. For additional units in the series, see http://icjw.org/online-learning/social-justice-course.

Posts are contributed by third parties. The opinions and facts in them are presented solely by the authors and JOFA assumes no responsibility for them.

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