July 7, 2020

Thinking Outside the Chains to Free Agunot and End Iggun

By Shulamit S. Magnus

“The problem with power is that there is no speaking truth to it when it holds all the cards”.—Dahlia Lithwick

Editor’s note: This is Part I of an article that outlines the history and proposed solutions to the aguna problem. Part II, on January 14, will show how the proposed solutions to date exacerbate the problem of unilateral, exclusive male power in this domain. Take a look at the Boston Agunah Taskforce for more information on Get refusal. 

Agunot are Jewish women chained in marriages against their will; iggun is the state of being so chained; both terms come from the Hebrew word for “anchor.” Women can be put in this situation, unable to obtain a rabbinic divorce, a gett, because a husband disappears; becomes incapacitated and unable to grant a gett; or refuses to give one. According to rabbinic law, a wife may request a gett but only a man can give one, of his own free will. 

All this is based on a sparse Biblical text, Deuternonomy 24:1-4, which states: 

A man takes a wife and possesses her. She fails to please him because he finds something obnoxious about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house; she leaves his household and becomes the wife of another man; then this latter man rejects her, writes her a bill of divorcement, hands it to her, and sends her away from his house; or the man who married her last dies. Then the first husband who divorced her shall not take her to wife again…” – Deuteronomy 24:1-4 (translation as in The New JPS Translation, 1985). 

This text is a perfect example of descriptive and prescriptive statements in the Hebrew Bible. It depicts a case, and everything is descriptive—until the very end, when we get the text’s one prescription and the point of the case described: prohibition of remarriage of a couple if the woman had been divorced and become the wife of another man. 

Yet the rabbis halakhized every detail in this text—that is, turned them into rabbinic law, ordaining a basic element of marriage: that a man “takes”—and the woman is taken– he acts, she is acted upon; as well as the procedures and requirements of divorce. All that is descriptive in the Biblical text is made prescriptive in rabbinic ones: there must be a written document of divorce, which the husband writes (or deputizes another man to write and possibly, deliver, on his behalf), and must hand to her. The rabbis fixed the exact wording of the divorce text, its layout on the handwritten page, even the manner of the wife’s holding her hands to receive it.

Patriarchy and Progeny

Underlying all this punctilious, even obsessive detail is extreme patriarchal anxiety about “legitimate” progeny. A woman must be properly, unambiguously divorced in order for any children she has with someone else to be considered legitimate and not “mamzerim”: stigmatized offspring of an adulterous union, who may not marry other Jews, except mamzerim or converts. “Adultery” in rabbinic law is determined by the marital status of the woman, not the man. If she is married and has sex with someone other than her husband, she is an adulterer and subject to severe penalties. If a married man has sex with someone other than his wife, he is only an adulterer if his partner was another man’s wife: the crime is violation of a husband’s exclusive rights to his wife’s sexuality and reproductivity.

All these repercussions flow from the manner in which rabbinic marriage is enacted, via kinyan, “acquisition” of the woman’s sexuality by the husband; and kiddushin (or erusin), his sanctification of her: setting her apart as his exclusive sexual preserve. We can readily see the connection between the manner in which marriage is enacted and the implications for divorce. Authority over the woman’s sexuality and reproductivity is passed from the woman’s father or other male guardian to her husband via kinyan. She assents passively to the transaction by being present for it and accepting something of minimal value from the baal (“master,” also the word for “husband”; by long-established custom, this is a simple ring), but she otherwise plays no legal role. The act of marriage is unilateral, enacted by the husband. This being the case, so is divorce. There is no statute of limitations to a woman’s iggun under halakha, no automatic presumption of death after the passage of a certain amount of time from a husband’s disappearance, and no other out. 

Loopholes for Men, None for Women

Men have outs. An expedient in medieval Ashkenaz (Franco-Germany) allows the man in cases where the wife is incapable of receiving or refuses to receive a gett, to marry a second wife without divorcing the first, if one hundred rabbis agree to lift the ban against polygamy (heter m’eah rabbanim), instituted in the tenth century. For men who follow Sefardi halakhic custom, matters are even simpler, since a decree banning polygamy was never issued in Sefardi halakha. If a rabbinic court authorizes a second marriage for a man, he can proceed without divorcing his first wife. In Israel, the State will even waive the ban in criminal law against polygamy for him.

It has become common for husbands to demand extortionist payment from wives in money, property, child support and custody arrangements, in order to grant a gett (although, in fact, gett extortion is nothing new). In a recent, much publicized case that spanned from California to Israel, a recalcitrant husband has refused for fourteen years to give his wife a gett unless she agrees to pay him a half million dollars and give him custody of their minor child. He claims that he is not “withholding” a gett, that he is offering one, which she refuses to accept. The husband in this case availed himself of heter me’ah rabbanim and remarried. His wife remains an aguna.

The androcentric nature of rabbinic marriage is clear in the second of the blessings recited under the huppa, the marriage canopy: birkat erusin, the blessing enacting halakhic betrothal; a text whose significance too few grasp: 

Blessed are You, Lord, our God, sovereign of the universe, who has sanctified us with Your commandments and commanded us concerning forbidden relations (arayot; literally, “nakedness,” here,  meaning nakedness in the context of illicit relations); who has forbidden to us those betrothed to us, permitting us those who are wedded to us through huppa (here, meaning, rabbinic marriage), and kiddushin. Blessed are you, Lord, who sanctifies his people Israel through huppa and kiddushin  (my translation).

The setting for this blessing is the start of the marriage ceremony. The bride is standing right there, under the huppa, next to her groom. Yet the wording is all about men, not the one she is about to marry but men, plural—it speaks of “us”: who is forbidden and permitted “us;” how and when. Her status as sexual object is being altered, so that she/ it is made her husband’s exclusive possession. He is “us”; she is Other.

Iggun is no “tragedy” (though it is certainly that), caused by abusive husbands, or even by uncaring, corrupt, and/or incompetent rabbis—that is, by a failure of the system. Iggun is built into the system of rabbinic marriage and divorce from the patriarchal foundations of these institutions and is an inevitable outcome of it. Iggun is not a failure of the system but a fulfillment of it. Not the only fulfillment, of course, but certainly one; not an aberration but an inherent possibility that occurs inevitably.

Liberal Jews who do not adhere to halakha but use the traditional groom’s pronouncement, as most do: “harei at mekudeshet li”—“you are hereby sanctified unto me with this ring”; and whose officiant pronounces the blessing cited above, have participated in kinyan and kiddushin and made the wife vulnerable to iggun. While any number of other things the couple might say or do under the huppa (exchange rings, for instance; or have invalid witnesses), could invalidate the marriage as halakhically valid, thereby obviating iggun, that outcome is not automatic but subject to the ruling of rabbis who follow halakha. This situation becomes relevant in Israel, where Jewish marriage and divorce are, by law, controlled by the (ultra-Orthodox) Chief Rabbinate, but it could become relevant in the Diaspora as well, for the divorced partners in the marriage or their descendants, should any of these seek marriage to someone halakhically observant. Even if no untoward consequences ensue, kinyan and kiddushin are inherently degrading to women, in treating them as sex objects and trading in women’s sexuality.

Lack of Accurate Statistics

A variety of organizations on several continents are dedicated to helping agunot obtain gittin. All rely on halakhic methods. A full, accurate count of the number of agunot in the past or currently is unobtainable, for several reasons. There is no and has never been a central authority which keeps such records; each rabbinic court or court system is independent. In their book, The Wedlocked Agunot, veteran aguna activists, Susan Aranoff and Rivka Haut, cite a figure of 2,000 agunot whom they attempted to help over the course of 30 years, most from the US but also from Latin America, Israel, and Europe. The Organization for Resolution of Agunot (ORA), based in New York, reported in 2014, that it received 150 calls a year from agunot seeking assistance. A survey of Jewish social service organizations in the US and Canada reported that in 2011 alone, these organizations had been contacted by 462 agunot. A survey conducted in 2013 in Israel cited evidence of gett extortion in thousands of cases. 

Another major difficulty in attaining accurate statistics is the way rabbinic authorities dispense and withhold the term “aguna” as a means to minimize and deny the problem. Rabbinic courts label a woman who refuses an extortionist gett deal not as an aguna but as a recalcitrant, responsible for her own predicament, and her husband, the victim of “gett refusal.” Until a case is fully adjudicated, which can take years—and extending the length and cost of proceedings is a major tactic of gett extortion (and also a means of financial gain for the court, given court fees for hearings), the woman is not classified as an aguna. Thus, the Editors of the Jewish Week reported in 2011, “In Israel, estimates of 10,000 agunot have been reported by the Wall Street Journal and the Jerusalem Post, in contrast to claims by Agudath Israel [an ultra-Orthodox organization], that there are 180 in the Jewish state, and remarkably, an equal number of men who are being refused divorces by their recalcitrant wives.” The Israeli organization Mavoy Satum (“Blocked Passage”), which advocates for agunot in rabbinic courts, reports a similar manipulation of terminology to underreport the number of women who seek and are unable to end their marriages. In one egregious case Mavoi Satum handled, the Jerusalem Rabbinical Court refused to require a husband who had physically beaten his wife on three occasions to grant her a divorce [meaning, she was not labeled an “aguna”]. In that case, the rabbinical judges said that since he had beaten her simply because she asked for a divorce [my emphasis], and that it believed he would not repeat his behavior, her request could not be accepted. Apologists, such as the author of the column “Ask the Rabbi: The Plight of the Agunah,” published on the Ohr Sameah website, allege that the number of agunot is overstated by “Jewish feminists.”

 

Shulamit Magnus is Professor Emerita of Jewish Studies and History at Oberlin College. Her work on the memoirs of Pauline Wengeroff won a National Jewish Book Award and a Hadassah-Brandeis Institute Translation Award. She is a social and cultural historian of Jewish modernity in Europe, specializing in questions of identity, Jewish women’s history, and the workings of gender in Jewish societies. She lives in Jerusalem.

This essay is based on her chapter in a forthcoming book to be edited by Rachel Adler and Rachel Sabath Beit Halachmi.

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