1) WHEN THE PRINCIPLE OF "ASEH DOCHEH LO TA'ASEH" DOES NOT APPLY
QUESTION: The Mishnah (39a) states that although the Torah requires a man who rapes a woman to marry her, he is not permitted to marry her if she is forbidden to marry an ordinary Jew. The Mishnah derives this exemption from the verse, "v'Lo Siheyeh l'Ishah" -- "And she will be to him for a wife" (Devarim 22:29), which teaches that he is obligated to marry only a woman who can "be to him," i.e. permitted to him.
The Gemara (40a) relates that Rav Kahana asked Rav Zevid why the Mitzvas Aseh of "v'Lo Siheyeh l'Ishah" should override the Lo Ta'aseh against marrying a woman who is forbidden to him (such as a Mamzeres; see Rashi DH v'Nidcheh). Rav Zevid answered that an Aseh overrides a Lo Ta'aseh only when the Aseh cannot be fulfilled without performing the Lo Ta'aseh. (For example, the principle of "Aseh Docheh Lo Ta'aseh" permits Milah to be performed even when there is a mark of Tzara'as on the place of the Milah, even though cutting off a mark of Tzara'as is prohibited by a Lo Ta'aseh (Devarim 24:8). Since there is no way to fulfill the Mitzvah of Milah without cutting off the Tzara'as, the Lo Ta'aseh is pushed aside for the fulfillment of the Aseh. In contrast, there is an option to the Mitzvah to marry a woman whom one raped. The woman may refuse to marry him, in which case the Mitzvah does not apply (39b). Therefore, when a man rapes a woman whom he is forbidden to marry, the Mitzvas Aseh which requires that he marry her does not override the prohibition which prohibits her to him.
However, this answer applies only when the woman does not want to marry the man. What is the law when she wants to marry him? Apparently, the Mitzvas Aseh should take effect and override the Lo Ta'aseh against marrying her!
(a) RASHI (DH Mi) writes that Beis Din instructs the woman to say that she does not want to marry him. Therefore, he will not be able to marry her.
The RITVA questions Rashi's explanation. There is no mention in the Gemara that Beis Din instructs her to refuse to marry him.
Moreover, even if Beis Din instructs her to refuse, what assurance does Beis Din have that she will comply? Perhaps she will remain steadfast in her desire to marry him! The Ritva explains this question by saying that since the man is prohibited from marrying her, it is assumed that she does not really want to marry him, just as she does not want to do any other Aveirah. Beis Din therefore forces her to say that she does not want to marry him. The Ritva compares this law to the ruling of the Gemara in Kidushin (50a) that when a man is obligated to give his wife a Get, Beis Din may use physical force upon him until he says he wants to give the Get. The RAMBAM (Hilchos Gerushin 2:20) explains that although a Get must be given willingly, it is assumed that the man indeed wants to give the Get but that his Yetzer ha'Ra attempts to prevent him from giving it. Beis Din's use of physical force weakens his Yetzer ha'Ra so that his true will becomes apparent, as the inner desire of every Jew is to perform the Mitzvos.
(b) The Ritva gives another explanation for the Gemara. The fact that the Mitzvas Aseh which requires the man to marry the woman whom he raped can be uprooted so easily (simply by her refusal to marry him) proves that this Mitzvah is a very light Mitzvah. Such a light Mitzvah does not have the strength to override a Lo Ta'aseh. Consequently, even if she says that she wants to marry him, the Aseh is unable to override the Lo Ta'aseh. Accordingly, when the Gemara says that if she does not want to marry him there is no Aseh, it means that the ease with which the Aseh is uprooted is an indication that it is not the type of Aseh which is capable of overriding a Lo Ta'aseh.
(c) The KOVETZ HE'OROS in Yevamos (14:3) elaborates on the explanation of the RAMBAM (Hilchos Na'arah Besulah 3:5). The Rambam states that the reason why the Aseh does not override the Lo Ta'aseh is that it is possible that she will not want to stay with him, in which case both the Aseh and the Lo Ta'aseh can be fulfilled.
The Kovetz He'oros explains that the Rambam's intention is that if both Mitzvos can be fulfilled, the principle of "Aseh Docheh Lo Ta'aseh" does not apply (see Yevamos 20b). How, though, is the Mitzvah considered fulfilled? The Kovetz He'oros explains that this Aseh is actually in the category of "Mitzvos Bein Adam la'Chaveiro" -- "between man and his fellow man." The rapist's obligation to marry his victim, and thereby provide her a home and support, is comparable to a person who owes money to his friend; just as the friend is allowed to pardon the debt, the woman may forgo her right to have the rapist marry her. If she forgoes that right, the Aseh is considered not to have been transgressed, but to have been upheld. Accordingly, the Gemara means that because she may forgo the obligation, there is no reason for the Aseh to override the Lo Ta'aseh. (D. BLOOM)
2) A FINE FOR RAPE WITH "BI'AH SHE'LO K'DARKAH"
QUESTION: The Mishnah (40a) describes the method for estimating the sum of money which a rapist and seducer (Ones and Mefateh) must pay for the obligation of Boshes (causing embarrassment). The Gemara asks why the Torah's command to pay fifty Shekalim (Devarim 22:29) does not cover all of his obligations, including Boshes. Rebbi Zeira explains (in his second answer on 40b) that it does not make sense to say that if one man has relations k'Darkah, and another has relations she'Lo k'Darkah, that both men should pay the same fine.
RASHI (DH Ela) explains Rebbi Zeira's answer as follows. If one man has relations with a Besulah, and another man has relations with a Besulah who had previously had relations she'Lo k'Darkah, it is not logical that the payment of Boshes is the same for both acts. Obviously, the girl who was already blemished because of Bi'ah she'Lo k'Darkah suffers less Boshes. Accordingly, it is not logical to say that the payment of Boshes is included in the fixed fine which the Torah levies on a rapist. Rather, the Boshes must be calculated separately, in accordance with the status of the girl (in the same manner in which Boshes is normally assessed).
The TOSFOS HA'ROSH infers from Rashi that one does not pay a fine for rape with Bi'ah she'Lo k'Darkah. He writes that Rashi could have explained Rebbi Zeira's answer in a different manner. Rashi could have explained that Rebbi Zeira refers to one man who has relations twice with the same girl. The first act is she'Lo k'Darkah, for which he becomes obligated to pay the standard fine for rape. Afterwards, he has relations k'Darkah and thus becomes obligated again to pay the standard fine, despite the fact that she was already blemished as a result of the earlier Bi'ah she'Lo k'Darkah. If the standard fine includes payment for Boshes, it is not logical that the fine should be the same for both acts since the girl was already blemished when the second act occurred. The fact that Rashi does not explain the Gemara in this manner indicates that he maintains that a man does not pay a fine at all for rape with Bi'ah she'Lo k'Darkah.
A similar opinion is expressed by the RAMBAM (Hilchos Na'arah Besulah 1:8). The Rambam writes that an Ones or Mefateh is not obligated to pay the fine unless he rapes or seduces the girl with Bi'ah k'Darkah.
However, this opinion seems to conflict with the Gemara in Kidushin and Yevamos which implies that one must pay a fine even for Bi'ah she'Lo k'Darkah. The Gemara in Kidushin (9b) quotes a Beraisa in which the Tana Kama rules that when ten men have relations with a Na'arah ha'Me'urasah and she remains a Besulah, each man is Chayav Sekilah. The only way in which she could remain a Besulah after ten acts of relations is that they all had relations she'Lo k'Darkah. The Gemara there (10a) states that even Rebbi -- who disagrees with the Tana Kama and maintains that only the first man is Chayav Sekilah -- agrees that in such a case every man must pay a fine. This clearly proves that one must pay a fine for Bi'ah she'Lo k'Darkah.
The Gemara in Yevamos (59a) derives from the verse, "v'Lo Siheyeh l'Ishah" -- "And she will be to him for a wife (Devarim 22:29), that a Kohen Gadol who rapes an Arusah who was widowed may not marry her because she is forbidden to him (she cannot "be to him for a wife"). The Gemara explains that the act of rape in that case could not have been done k'Darkah, because if it would have been done k'Darkah she would no longer be a Besulah and no verse would have been necessary to exclude a widow (from Erusin), as the Torah obligates a Kohen Gadol to marry only a Besulah. Therefore, the verse which excludes a widow must refer to an act of rape she'Lo k'Darkah, and it teaches that in this specific case the rapist (the Kohen Gadol) may not marry his victim (because she is a widow). This clearly indicates that the other laws of rape, including the fine, apply in a case of Bi'ah she'Lo k'Darkah.
How do Rashi and the Rambam reconcile the Gemara in Kidushin and Yevamos with their view that one is exempt from a fine for rape with Bi'ah she'Lo k'Darkah? (TOSFOS (40a, DH Yomru) cites support from the Gemara in those places for his position that one is obligated to pay a fine for Bi'ah she'Lo k'Darkah.)
(a) The SHITAH MEKUBETZES answers that Rashi and the Rambam understand that the Gemara in Kidushin (9b) does not refer to Bi'ah she'Lo k'Darkah. When it says "if ten men have Bi'ah with a Na'arah ha'Me'urasah and she remains a Besulah," it means that the Bi'ah was done k'Darkah but did not cause the loss of her Besulim (only "He'arah" was done). Indeed, this is how the Yerushalmi (Kesuvos 3:6) understands the case. The Shitah Mekubetzes avoids the question from the Gemara in Yevamos (59a) by stating that the Gemara understands that the Bi'ah in the case of the Kohen Gadol and the widow indeed was Bi'ah k'Darkah. The Gemara merely presents the possibility that the verse refers to Bi'ah she'Lo k'Darkah in order to ask a question on Rebbi Elazar and Rebbi Shimon (see Gemara there at length).
(b) The CHIDUSHEI CHASAM SOFER (40a) answers that whether or not a fine applies to rape with Bi'ah she'Lo k'Darkah depends on the interpretation of the verse, "Kesef Yishkol k'Mohar ha'Besulos" -- "he must pay money like the presents of the Besulos" (Shemos 22:16). The SHITAH MEKUBETZES (39b; see Insights there) explains that the verse teaches that the fine which a girl receives when she is raped takes the place of her Kesuvah of 200 Zuz. This is the reason why the Rabanan rule that a girl who was raped does not need a Kesuvah; the fine she receives is in place of the Kesuvah. It follows that according to the Rabanan, there should be no fine for Bi'ah she'Lo k'Darkah, since the fine is in place of the lost Besulim for which she would have received a Kesuvah of 200 Zuz. If she is still able to collect the 200 Zuz (because she is still a Besulah), there is no reason for the rapist to pay her the fine.
However, Rebbi Yosi ha'Glili (38b) maintains that the verse merely states how much the fine is for one who rapes a Besulah. It does not mean that the fine replaces the payment of the Kesuvah. The Chasam Sofer therefore states that the Gemara in Kidushin and Yevamos follows the opinion of Rebbi Yosi ha'Glili, who maintains that one is obligated to pay a fine for rape with Bi'ah she'Lo k'Darkah. (D. BLOOM, Y. MONTROSE)