In 1997 Rabbi Emanuel Rackman and AGUNAH International Inc. published a treatise which outlined halakhic principles and procedures for freeing agunot from recalcitrant husbands who were wife or child abusers, criminals, adulterers, and sexual molesters. The Beit Din L’Inyanei Agunot (“Rackman Beit Din”) put these halakhic principles and procedures to work, and many long-suffering agunot were freed. As news of the Rackman Beit Din spread, agunot flocked to its doors. Within a short time, several Orthodox rabbis disseminated statements and articles questioning the halakhic validity of the Rackman Beit Din’s approach. The Rackman Beit Din responded, and an ongoing debate through speeches and articles has ensued.
In the eight years that have elapsed since the publication of its halakhic principles and procedures, much human suffering has been alleviated by the Rackman Beit Din. However, this beit din has not gained the support of the Orthodox rabbinical establishment. And though women continue to knock on its doors, many are deterred by the controversy that continues to surround the beit din. It is timely, therefore, to renew discussion of the beit din’s halakhic foundations in the hope of advancing understanding and acceptance of the Rackman Beit Din so that more agunot will have an opportunity to regain their freedom and their human rights to marry and bear children without fear of ostracism and stigmatization of their children.
“The vast majority of this beit din’s cases involve men who are wife and child abusers.”
Kiddushei Ta’ut
The halakhic concept of kiddushei ta’ut, a marriage based on a mistake, is a major tool which the Rackman Beit Din uses to free agunot. Kiddushin, the agreement to marry, must be based on the informed consent of both parties. If either party to a marriage was unaware of salient facts at the time of the wedding, his or her consent to marry can be deemed a mistake, effectively declaring that the marriage bonds never took hold. Since the marriage is void from its inception, a beit din can declare a woman free from such a marriage without a get being issued.
What are the salient facts which come to light after the wedding that might invalidate the marriages of agunot? The vast majority of this beit din’s cases involve men who are wife and child abusers. In case after case, the agunot report that their husbands, who had been considerate and attentive during the courtship, became abusive early in the marriage. The scores of cases are hauntingly similar. Verbal abuse escalates into dishes being thrown, physical threats, and sometimes actual physical blows. The husband’s compulsion to control his wife leads him to obsessive control of the family finances, cutting his wife off from her family and friends, and humiliating her in order to undermine her independence. Pregnancy and children often exacerbate the situation, because the husband displays resentment when the children “compete” for the wife’s attention. In many cases, the danger to the agunah and her children is compounded by the fact that the husband is an adulterer, sexual deviant or criminal with the potential to bring life-threatening diseases and violence into the home. The similarity between the patterns of abuse described by numerous agunot supports the idea that the Rackman Beit Din is dealing with a consistent set of behaviors that can be categorized as a personality disorder.
Clearly these husbands’ personality defects are of such a magnitude that the agunot who are chained to these men can claim that had they been aware of these defects they would never have married their abusive husbands. Thus, these women’s consent to marriage was based on a mistake and therefore not halakhically binding. Consequently the Rackman Beit Din frees them without need for a get.1
Refuting Three Objections to Kiddushei Ta’ut
Critics have raised several halakhic questions about the approach of the Rackman Beit Din. The first is whether or not the husband’s personality defect pre-existed the marriage, thus invalidating the bride’s consent at the time of the wedding. Critics take the position that the Rackman Beit Din does not have sufficient grounds to rule that wife and child abusers were psychologically defective prior to the marriage. But there is persuasive evidence and research showing that wife abusers’ personality defects do pre-exist their marriage. Almost without exception, the agunot relate that their husbands’ abusive behavior manifested itself early in the marriage, indicating a personality disorder that pre-existed the marriage. Expert studies indicate that domestic violence is a deeply embedded behavior pattern, often linked to having been exposed to violence earlier in life, prior to the marriage.2 Domestic violence counselors also point out that patriarchal systems such as Orthodox Jewish divorce law, which privilege men and grant them power over women, may sometimes exacerbate an abuser’s innate tendency to mistreat his wife. Additionally, there is evidence of a genetic component which causes men to develop into wife and child abusers.3 Finally, programs to rehabilitate wife abusers have high rates of recidivism, again indicating an ingrained personality disorder which is highly resistant to correction. It is also important to note that in rabbinical responsa dealing with kiddushei ta’ut because of the husband’s impotence or epilepsy, these physical defects are assumed to have existed before the marriage despite the absence of witnesses or evidence to prove the pre-existence.4 Similarly, certain psychological defects that manifest themselves after the marriage may be presumed to have predated the marriage.
The second objection that has been raised against the Rackman Beit Din is based on the Talmudic phrase, “tav l’metav tandu mel’metav armelu,” which roughly translates as, “a woman prefers to be married to anyone than to be alone.” This phrase has been interpreted by some as a categorical presumption that women have such an overriding desire to marry that they would even knowingly marry a seriously defective man. If this interpretation is taken as a categorical presumption about women as a “class,” it precludes almost any claim of kiddushei ta’ut because it is presumed that women will knowingly marry anybody, including an abuser, rather than remain single. This interpretation has been refuted at length elsewhere.5 It is sufficient to note here that countless halakhic scholars, including Rabbi Yosef Baer Soloveitchik author of Beit ha-Levi, Rabbi Yitchak Elchanan Spector and Rabbi Moshe Feinstein, have rejected this degrading view of women 6 so that tav’ l’metav does not constitute a barrier to a ruling of kiddushei ta’ut to release an agunah.
Sabra v’kiblah (she became cognizant and accepted) is the third halakhic objection critics have raised—that staying in the marriage after becoming aware of the husband’s abusiveness signals the wife’s acceptance of this situation, and she forfeits the right to say that she would never have married her abusive husband. The Rackman Beit Din takes the position that the delay in leaving the marriage should not be interpreted as the wife’s consent to remain married to the abuser. Rather, the wife stays because of the mistaken belief that her husband can be cured or reformed. Often the wife stays because a rabbi, in an effort to preserve the marriage, has recommended that the couple try counseling. Furthermore, pregnancy, children, concern for other family members, and fear of violence and retribution, may block the wife from exiting the marriage. In this, the Jewish pattern is similar to the general pattern of women in abusive marriages. When the wife has determined that her husband’s defect is incurable, and she has recovered sufficiently from the abuse, the wife leaves and rightly seeks a ruling of kiddushei ta’ut to free her from this tragically flawed and mistaken marriage.
The Rackman Beit Din’s rulings of kiddushei ta’ut are based on persuasive case-by-case evidence of an unknown, pre-existing personality disorder in the husband that nullifies the wife’s consent to the marriage.7 Furthermore, the similarities in so many of our cases—early onset of the husband’s abuse after the marriage, his obsessive need for control and attention, his repeated inability to curb his behavior—represent a corpus of data that lends support to the contention that the beit din is dealing with a recognizable personality disorder whose manifestation early in the marriage warrants a ruling of kiddushei ta’ut. Finally, the halakhic concepts of tav l’metav and sabra v’kiblah do not represent a barrier to rulings of kiddushei ta’ut. Beyond these specific halakhic arguments for kiddushei ta’ut, the Rackman Beit Din relies on the meta-halakhic biblical admonition “v’aseeta ha-yashar v’hatov,” (“You shall do what is correct and good.”) The Rackman Beit Din is confident that what it is doing is both halakhically correct and morally good.