February 26, 2020

Israeli Supreme Court Grants Protection from FGM

By Tally Kritzman-Amir

On February 9, 2020 The Israeli Supreme Court published a ground breaking decision in the field of legal feminism and the rights of asylum seekers in Israel. For the first time, the Court recognized applicants as meeting the definition of refugee and instructed the Population and Immigration Authority (PIA) to provide them protection as such. The applicants were applying for refugee status because they feared that their daughters, if returned to their country of origin, will be forced to undergo female genital mutilation (FGM). This posts aims to explain the Court’s decision and discuss the implications of this decision. 

Receiving Protection from FGM

The applicants are a family from Ivory Coast. The parents have arrived to Israel in 2004 and 2005, and applied for asylum based on their own persecution. PIA rejected their applications, but they were able to remain in Israel under Temporary Protection status. When Israel revoked the Temporary Protection of Ivorians in 2012, they applied for asylum once again, saying that their daughters, who were born during their stay in Israel, would be forced to undergo FGM. They had shared with PIA that the grandmother of the girls had conducted FGM to one of her granddaughters without her parents’ consent, when the parents were away from their home. Their asylum application was rejected due to the “internal flight alternative”, since the immigration authorities assumed that they would be able to protect the girls from FGM if they reside in an area of their country which is remote from their families. The family appealed this rejection. The parents were concerned that they would not be able to protect their daughters from this practice, which is culturally important to their tribe, even if they move to a different part of the country.

As the case was pending before the Court, PIA decided to give the family status which would grant them a humanitarian status, allowing them to stay in the country while emphasizing that this is done despite the fact that the family does not meet, in their professional opinion, the standards for asylum. 

The Court decided to rule in favor of the applicants, making this the first case that the Israeli Supreme Court instructs PIA to grant an individual refugee status. The Court has generally refrained from determining whether asylum seekers meet the requirements of the definition of refugee, and leaving the question of what their status is obscure. It is interesting that the first decision of this sort is in a case of women fleeing FGM, and not in one of the cases of asylum seekers who were fleeing political or religious persecution. I have argued elsewhere, that this was a strategic choice for the Court, in an effort to evade a full confrontation with the legislative and the executive branches of government. These other branches are already threatening to pack the Court and to take away its judicial review powers by enacting an override clause, since the Court has previously issued numerous other decisions in the context of immigration law and policy. Perhaps notably, the leading opinion in this case was given by Justice Daphne Barak-Erez, who before her appointment to the Israeli Supreme Court was one of the leading feminist legal scholars in Israel. 

The decision also stands out among multiple decisions on protecting asylum seeking women from gender-based persecution in Israel. Most of the decisions given to date failed to apply a gender-sensitive definition of the category of refugee, and therefore were not instrumental in providing protection for asylum seeking women in Israel. While other countries have recognized women who have a well-founded fear of being persecuted by different forms of persecutions typical to women such as rape, FGM, forced marriage, etc., Israel has been slow and reluctant to adopt a similar approach. This decision brings Israel closer to the standards of other western democracies. 

Public Response to the Decision

Immediately after the decision was given, the former minister of justice, Ayelet Shaked, tweeted that the decision creates “a radical and dangerous interpretation to the refugee convention”, and that FGM, as appalling as it may be, cannot be grounds for refugee status in the Middle East. However, there is actually nothing radical about this decision. The US acknowledged that fear of FGM can be grounds for asylum in 1996, and so have multiple other countries. Gender-based persecution in its many forms is widely acknowledged by different countries and by the United Nations High Commissioner for Refugees. In fact, in the course of the litigation of this case, PIA did not argue that fear of FGM could not justify asylum: the legal debate was only on whether it was sufficiently proved that the family could be safe in other parts of their country of nationality.

The Minister of Interior, Arye Deri, said that the decision could have harsh consequences, and may create a situation in which Israel has to include many African women, which he saw as unacceptable. This concern seems far-fetched at best. While the “fear of numbers” is typical to the immigration context, it really has no factual grounding in the case of Israel. Since the erection of the border fence along the Israel-Egypt border in 2013, the long continental border which Israel shares with Africa, it has become impossible to enter Israel in an undocumented manner. In such a situation, it is hard to imagine a phenomenon of large-scale migration from Africa. Also, research indicates that the inclusion of gender-based persecution in the definition of refugee had little or no impact on the number of women seeking asylum in other countries, so there is no reason to think this will make a difference in the case of Israel. There are so many barriers preventing women from fleeing and seeking asylum, that favorable changes in immigration norms are not key determinants of whether they will arrive to a country to seek asylum.  

The decision given by the Israeli Supreme Court puts Israel on the same line with many other western democracies, and contributes to the international efforts to combat violence against women in its various shapes, including FGM. As an Israeli woman, it is a proud moment to see that Israel lives up to the lesson of “never again”, a lesson learned by the suffering of the Jewish refugees, and extends it to African children refugees. 

Dr. Tally Kritzman-Amir is an Israel Institute Visiting Associate Professor, Harvard Department of Sociology, and a Senior Lecturer at the College of Law and Business, Israel. She is a 2018 GCRL Scholar in Residence and a current Research Associate at HBI.

 

Suffering, Stereotypes, and Psychosis: The Representation of Jewish Femininity in Crazy Ex-Girlfriend

By Samantha Pickette

The CW Network’s Crazy Ex-Girlfriend finished its final season last spring.  Throughout its four seasons, the series—a hybrid musical/romantic comedy that plays with and satirizes the tropes of both genres—has been lauded for its progressive discussion of mental health, gender, and politics.  The series has also been praised for its depiction of protagonist Rebecca Bunch’s Jewish identity; The Forward, The New York Times, and countless other publications have declared Crazy Ex-Girlfriend as one of the most “explicitly Jewish” series on contemporary television (along with other female-driven vehicles such as The Marvelous Mrs. Maisel, Broad City, and Transparent).  Yet, while it is certainly true that Crazy Ex-Girlfriend is an “explicitly Jewish” show in the sense that its central protagonist is Jewish and does not shy away from identifying as such, the series’ relationship with Jewishness is more complicated than the critical reception of Crazy Ex-Girlfriend would suggest.  

Crazy Ex-Girlfriend revolves around the story of Rebecca Bunch (played by Rachel Bloom), a successful, Ivy-League educated lawyer who abruptly leaves her job at a Manhattan law firm and moves across the country to West Covina, California, the hometown of her unrequited girlhood crush, Josh Chan.  Once there, she actively pursues Josh despite the fact that he is in a committed relationship, manipulating, scheming, and lying to get what she wants in the name of “true love.” The only real connection to her Jewish identity that Rebecca displays while in California is through memories of the old life that she rejected on the East Coast and the two Jewish women—her overbearing and manipulative mother, Naomi (played by Tovah Feldshuh), and her entitled, hyper-competitive childhood rival, Audra Levine (played by Rachel Grate)—who put her on the path to self-loathing, leaving her with a desperate need for attention and love.  In the episodes where Naomi and Audra appear, Crazy Ex-Girlfriend not only perpetuates classic stereotypes of Jewish women and of Jewish culture in general, but actually seems to make the case that Rebecca’s Jewish heritage is at least partly responsible for the personal and mental health problems she faces.

Rebecca’s relationship with her Jewishness, then, is tangled up with her feelings about her past life in New York, and both her memories of and interactions with Audra Levine and Naomi Bunch inform the way that Rebecca understands what it means to be Jewish.  As a result, Jewishness is something that Rebecca views negatively, and, through the relatively one-dimensional depiction of Audra Levine as a stereotypical Jewish-American Princess (JAP) and Naomi Bunch as a stereotypical “Jewish Mother,” Crazy Ex-Girlfriend does little to challenge Rebecca’s negative, stereotype-driven reading of the two women who, for her, personify her Jewish heritage.  The series makes the direct connection between Jewish identity and misery several times throughout its four seasons, but never more explicitly than in the season two episode “Will Scarsdale Like Josh’s Shayna Punim?” during which Rebecca brings Josh Chan (by then her boyfriend) home to Scarsdale to attend a family bar mitzvah.  She articulates the binding legacy of genetic, intergenerational Jewish suffering by telling the non-Jewish Josh:

…you are, forgive me, a non-Jew from the West Coast.  Let me explain how this goes. East Coast: dark, sad.  West Coast: light, happy…these people, they don’t understand what fun is.  Trust me…do you remember the ceremony? They made a 13-year-old boy say the Kaddish.  That’s a prayer for the dead. People like us only know how to be miserable.

This episode embraces the dichotomy between the dreary, depressing Jewish East Coast and the sunny, optimistic non-Jewish West Coast even further through the musical number “Remember That We Suffered,” a hora-themed, klezmer-style number in which the Bar Mitzvah party guests sing about how being happy is “selfish” and that even when celebrating, Jews are expected to acknowledge the Holocaust and the historical legacy of Jewish suffering in general.  Rebecca blames her lifelong malaise on the fact that “Jewish people’s DNA is literally imprinted with our past trauma,” and while the Bar Mitzvah concludes with a conversation between Rebecca and her Rabbi about the importance of self-love and taking responsibility for her own happiness, Rebecca’s assertion that her unhappiness stems from her Jewishness makes sense given her interactions with the series’ only other Jewish characters: Audra Levine, who, as Rebecca’s major rival, is able to find fulfillment and success in the Jewish life that Rebecca rejected when she moved to the non-Jewish haven of West Covina and who appears throughout the series as a reminder of Rebecca’s past self as a New York JAP (a term that the series uses both in dialogue and in two major musical numbers); and Naomi Bunch, who uses guilt as a weapon and capitalizes on Rebecca’s mental health issues in order to pressure her into job opportunities and romantic relationships that Naomi believes will increase her own social standing amongst the other Jewish mothers in her circle. Rebecca’s unhappiness, therefore, is an intergenerational inheritance that she can only escape by removing these archetypal Jewish women from her life and embracing a non-Jewish existence.  

This symbiotic relationship between Rebecca’s mental health and her Jewishness is troubling on multiple levels.  Most importantly, it plays into the historical connection between Jewishness and psychosis that pervaded the study of psychology in the nineteenth- and early-twentieth-centuries, a myth cultivated by racial scientists in an effort to further “other” European Jews living within assimilated European society.  Additionally, the specifically gendered villainization of Naomi and Audra, as well as Rebecca’s desire to separate herself from anything that tethers her to the women of her Jewish past, contributes to the idea put forth by Sylvia Barack Fishman that “Jewish femaleness is pictured as a kind of pathology” in American film and popular culture.

Crazy Ex-Girlfriend, of course, does not fully attribute Rebecca’s mental health problems to her Jewishness in the same way that European psychologists racialized the diagnosis of psychosomatic diseases like hysteria and neurasthenia in Jewish patients as “proof” of their difference.  But, by drawing a connection between Rebecca’s Jewish background and her struggle with anxiety and depression, by investing in the East Coast/West Coast dichotomy of Jewish misery and non-Jewish happiness, and by confirming the role that Rebecca’s stereotypically Jewish Mother has played in making her “crazy,” Crazy Ex-Girlfriend does essentially endorse the idea that there is something about the Jewish mind that sets it apart from the minds of “normal” people.  

In the middle of season three, when Rebecca is diagnosed with Borderline Personality Disorder (BPD), her perception of the world around her begins to change.  It becomes clear that much of her erratic, destructive behavior throughout seasons one and two was the result of her undiagnosed and largely untreated mental illness, and the latter half of season three and season four introduce a new Rebecca, one who still struggles with her mental health, but who is keenly aware of the fact that she needs to take responsibility for her actions.  Consequently, the series’ representations of many major and minor characters shift as it becomes clear that Rebecca’s subjective point-of-view (largely driven by her fluctuating mental health problems) shaped the way that the audience was encouraged to see her friends, colleagues, and romantic partners. As Rebecca moves forward with her treatment, her perspective becomes less skewed, and the people around her become rounder and more three-dimensional.

However, Rebecca’s post-diagnosis clarity does very little to shift her perception of Naomi or to challenge the stereotypes embodied by Audra, and the representation of both women as flat, stereotypically Jewish villains persists throughout the duration of the series.  And, since Naomi and Audra are the only conduits of Jewishness that the series provides, the fact that they remain largely unchanged puts forth the message that while Rebecca’s perception of everything else was skewed when she was struggling with her undiagnosed and untreated BPD, her negative feelings about her Jewishness were accurate and justified.  Naomi and Audra personify Jewishness in their stereotypical qualities and the negative impact that their “Jewish” behavior has on Rebecca’s life. The version of Jewish femininity that Crazy Ex-Girlfriend upholds presents Jewish women as stereotypical Jewish Mothers and Jewish-American Princesses.  And, as a Jewish woman herself, Rebecca has inherited some of these same traits. Moreover, her hysteria, anxiety, and need for control are all further exacerbated by the biological reality of her Borderline Personality Disorder.  Rebecca, Naomi, and Audra are actually very similar in nature—each of the three women are hypercompetitive, over-dramatic, manipulative, and self-centered, all of which the series portrays as characteristics that are “Jewish” in nature—but the crucial difference that sets Rebecca apart is the fact that she rejects the negative parts of herself that are coded “Jewish” while Naomi and Audra embrace them wholeheartedly.  In other words, Rebecca rejects “Jewishness” by rejecting “craziness”—her BPD is a manageable illness that she can control with therapy and self-care, but her Jewishness, and the craziness that it brings into her life, can only be controlled by suppressing it and running away from it.

Jewishness in Crazy Ex-Girlfriend, then, is less of an ethnic or even cultural identity and more of a series of stereotypes underscored by the implication that there is, in fact, an innate difference between “normal” people and “hysterical” Jews.  While Rebecca is “Jewish” in the sense that she was raised by a Jewish Mother in a Jewish environment, she becomes increasingly less “Jewish” as the series goes on and she is more entrenched in her life in West Covina, more aware of the negative impact her Jewish Mother has had on her life, and more cognizant of the Jewish misery, survival instinct, and “craziness” that is her ethnic birthright.  The fact that any attempt on the part of Crazy Ex-Girlfriend to explore her Jewish heritage results in a negative portrayal of Jewish femininity that draws a connection between Jewishness and misery is inherently problematic.  Furthermore, by endorsing the caricatures of the Jewish Mother and the JAP and by only exploring Rebecca’s connection to Jewishness through the lens of her toxic relationship with Naomi or through her girlhood rivalry with Audra Levine, Crazy Ex-Girlfriend ultimately plays into the same stereotypes of Jewish femininity that have dictated representations of Jewish women for the past 50 years.

 

Samantha Pickette is a Ph.D. Candidate at Boston University and the intern coordinator for the Gilda Slifka Summer Internship at the Hadassah-Brandeis Institute.  Her work focuses on the representation of Jewish women in American literature and popular culture, and her dissertation explores female-driven responses to the Jewish-American Princess stereotype in literature, film, and popular culture from the 1960s and 1970s.

This essay is based on an article published in Vol. 19, Issue 1 of The Journal of Modern Jewish Studies (January 2020).

HBI is currently accepting applications for our 2020 Gilda Slifka Summer Internship. Apply today.

 

 

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 II of a blog about the aguna issue. It shows that approaches currently in use have long been tried and have failed to solve the problem, and proposes solutions that would free current agunot and end iggun. Part I discussed the underpinnings of iggun in halakha and some of the politics around the failure to end it.

The Unilateral Power of Men

Iggun (the state of being so chained) is caused by the sacrosanct, unilateral, exclusive power of Jewish men in the halakhic system to contract, and end marriage. This being the case, attempts to pressure, cajole, punish, or penalize men who withhold gittin—core tactics of aguna (Jewish woman chained in marriage against her will) advocacy organizations– not only miss the point. Such efforts, however well intentioned, feed and exacerbate the problem by reinforcing the abusive husband’s awareness of his power. They do the same for the all-male rabbinic courts, both of whom become the central focus when such courts order men to issue a gett and the men refuse, despite sanctions which, outside of Israel, are social (shunning); and inside Israel include job loss, freezing bank accounts, and jail. While some men accede to pressure, others respond with even more resolute refusal. In one infamous case, that of Tzviya Gorodetsky, the husband sat in an Israeli jail for more than two decades until a private rabbinic court annulled the marriage, finally freeing Tzviya. In the meantime, agunot in such cases remain not only chained but sidelined to male power struggles—secondary patriarchal victimization atop the first.

Halakhic Exceptions Abound, but Not for Agunot

There is another reason to cease the tactics used by aguna advocate organizations: a proven record of failure. The problem is not lack of halakhic expedients to end iggun but the refusal of rabbinic courts to apply them. Aguna advocates often cite the many creative ways that halakhists over the generations have found to circumvent conflicts between biblical and rabbinic law and changing realities–  about business dealings, Sabbath, festival, and other observances—but not about freeing agunot and ending iggun. These are summarized in the following crie de coeur by the group, “Unchain My Heart”: 

 Susan Aranoff and Rivka Haut, veteran aguna activists and authors of The Wedlocked Agunot write, “…halakhic solutions to [iggun] exist. Over the ages, wise rabbis have devised ways of easing difficulties caused by halakhic strictures,” and they cite one of the expedients named in the above list, heter iska, “which structures forbidden interest as profit from an investment.” It would certainly not cheer them, or other aguna activists in the U.S., Israel, and elsewhere, to learn that these words, almost verbatim, were pronounced in Europe a hundred years ago.

The problem of agunot was a central topic at conferences organized by women’s organizations in the 1920s: Bnos Agudath Israel (in Lodz); the Vienna Women’s Conference that was part of the second World Congress of Agudath Israel; the World Conference of Jewish Women (in Hamburg); the Women’s International Zionist Organization (WIZO) that met in Zurich. Dr. Ada Reichenstein, a delegate from Lemberg (Poland) to the World Congress of Jewish Women in Vienna in 1923, described the “question of Jewish marriage and divorce [as] an [eastern European] catastrophe,” referencing some 25,000 women in one region of Poland alone whose husbands had disappeared during World War I and who could not remarry because the deaths had not been confirmed by halakhic criteria. At the 1927 International Conference for the Protection of Jewish Girls and Women in London, Bertha Pappenheim, the quite Orthodox founder and leader of the Jewish Women’s Organization of Germany,  denounced the failure of rabbis on this issue, saying: 

We have at this meeting several rabbis from Eastern Europe, and I had hoped that they would listen to us and do something to improve the difficult position of so many Jewish women. It is not only a question of ‘agunoth’ but also of facilitating divorce. I had hoped that a Sanhedrin of Rabbis would come together and that they would introduce the needed ritual reforms and re-organize Jewish ceremonial dealing with this matter. That is what I had hoped, but I have been told that we must not expect it, for the rabbis do not have the power to introduce the changes asked for [my emphasis]. In that case we must continue to flounder within this ‘golus’ [exile], but it is a ‘golus’ within a ‘golus’.

As Naomi Seidman notes, “Pappenheim was not persuaded that the rabbis were truly powerless to address the problem of the aguna; she was particularly offended that rabbis seemed willing to reform Jewish law to make business dealings easier, while claiming that the same could not be done to ease the way for women.” Leah (Levin-Epstein) Proshansky scored the problem of agunot for the Warsaw-based monthly, Froyen Shtim (Women’s Voice), whose inaugural issue—in 1925– called attention to the problem, in particular, that of abandoned wives left undivorced by men who emigrated. 

Seidman writes:

Proshansky… excoriated such husbands… but reserved [her] harshest criticism for the rabbinic leadership that treated the problem with indifference… Rabbis were quick to criticize women for succumbing to immodest fashion trends, [but] were silent [about] abandonment… Proshansky [rejected] the notion that the Polish rabbinate sympathized with abandoned women but was unable to help them… In Proshansky’s words, rabbinic literature is full of…  accommodations to urgent circumstances. She mentions as an example heter iska, the rabbinic ruling rendering it permissible to lend money with interest despite a biblical prohibition… For men saddled with mentally ill wives, rabbis found a way [heter meah rabbanim] to allow the husband to divorce his wife without her consent. 

But with regard to women denied a gett, with a few notable exceptions, the rabbinic answer was then, as it remains, “sorry, nothing we can do.”

It does not take advanced feminist consciousness to note that normalizing women as perpetual, inevitable victims of male privilege and abuse accords with broader patriarchal attitudes; that the reason iggun has not been resolved is because it goes to the heart of male control—ownership—of women; to the heart of patriarchy, in short. This is why rabbinic creativity has eluded this problem while deftly maneuvering around so many others. This is why continuing to appeal to the same rabbinic system that perpetuates the problem to remedy it is not only futile but counterproductive. We don’t need theory to see this; we have history.

Gett Extortion

Gett extortion is nothing new, either. Records from the pre-Zionist yishuv in Palestine as well as from eastern Europe document the demands of husbands for payoffs to grant gittin. Such extortion has become a full-fledged enterprise, abetted by rabbinic courts. Aranoff and Haut cite case after case of rabbinic courts in the U.S. operating to abet gett extortion, a phenomenon they call, “the open institutionalization of extortion.” “The idea,” they note, “that it is acceptable for men to put a price tag on the gett was so widely accepted that Rabbi Yehuda Levin, director of Get Free, a short-lived organization, unabashedly described himself as a ‘negotiator’ whose mission was to obtain a get for a woman at the lowest possible price” (for a fee, of course). Gett extortion, they report, “is so widely accepted by rabbis that they actually solicit ‘charitable’ donations for that purpose,” thereby encouraging the practice of hostage taking and blackmail of a particular, designated, population—women.

The State of Israel also turns a blind eye to and even endorses gett extortion. Rabbinical courts in Israel not only condone gett extortion but encourage it, in the words of Susan Weiss, Founder and Director of the Center for Women’s Justice, “…as a valid, efficient, and religiously acceptable method of divorce resolution. Blackmail does not invalidate a Jewish divorce” (unless, of course, such tactics are exercised by the wife, which would cast aspersions on the husband’s sacrosanct “free will” in the matter). 

“In a similar vein,” Weiss states, “the Supreme Court [of Israel] has upheld the validity of contracts [obtained in rabbinic divorce courts], in which women have waived their… property and legal interests in return for a writ of divorce, refusing to find that such divorce agreements were signed under duress;” one justice finding gett extortion no different than arrangements made in regular contract disputes—as if women are equal participants in the contract that is rabbinic marriage, with any say about its terms and responsible for making a bad deal.

Some rabbinic authorities have taken forthright and courageous positions, despite shunning and attacks on their integrity, to propose solutions both to prevent iggun and free agunot. Several eminent halakhic scholars—Rabbis Louis M. Epstein; Saul Lieberman; Eliezer Berkovits– proposed such solutions in the early and mid-20th century; these were adopted by the Conservative/ Masorti movement but rejected in Orthodoxy for political reasons: agreeing to implement halakhic decisions elaborated and accepted outside of the Orthodox establishment would confer legitimacy on the Conservative movement, another expression of male power struggles at the expense of women. Indeed, the acceptance or rejection of these expedients became a defining line between the Conservative and Orthodox movements as these were in formation in the U.S.—once again, the objectification of women.  

More recently, pioneering rabbis in the U.S. and Israel—Rabbis Emanuel Rackman, Simcha Krauss, Daniel Sperber and some others—have established their own courts in which they apply various methods to free agunot, not least, through retroactive annulment (which has no effect on the status of children of such marriages). 

Continuing to appeal to the system to deliver results other than those it has by pleading with the men who run it, whose male privilege immunizes them from ever sharing the predicament of agunot, is a demonstrably futile and demeaning, proposition. As Dahlia Lithwick puts it, “The problem with power is that there is no speaking truth to it when it holds all the cards.”

Current Approaches Exacerbate the Problem

Tinkering with this problem, much less continuing the same tactics that have—however inadvertently– become part of the problem and its perpetuation—is clearly not the way to go. Solutions exist both to prevent iggun, and to free agunot, now. Iggun is not caused by bad husbands or bad rabbis. It derives from kinyan and kiddushin, which degrade women’s full humanity, whether or not iggun eventuates, and which should be abolished on that ground alone. There are other ways, based on rabbinic traditions elaborated for men and therefore, treating both parties with equal status and concern, to enact Jewish marriage. One, proposed by Rabbi Rachel Adler, is adaptation of halakhic partnership law. Another, used by Rabbi Aviva Richman and her spouse, Tzemach Yoreh, uses nedarim and hatarat nedarim (halakhic vows—nothing like the emotional pronouncements used in Christian and other wedding ceremonies, but legally binding contracts, and their dissolution), for marriage and divorce, respectively. These proposals honor Jewish tradition by adapting rather than discarding it; by treating halakha as the serious praxis that those who elaborated it intended, but applying to its treatment of women the injunction, “Justice, justice, shalt thou pursue”(Deut. 16:20); and by taking the radical statement of Genesis 1:27, which declares female and male as in the Divine Image and making it an imperative—halakhizing it. This verse, so unlike the one with which this essay opened, has not been halakhized, certainly, not with regard to women. But that neglect is reparable. Indeed, it can, must, become the charge for tikkun in our time. Women are in the Divine Image. That status is categorically incompatible with treating women as sex objects or as wards– never mind, hostages– of men; as anything but equal not to, but with men: authors of our own lives. If cultural conditions in previous eras precluded this insight, delivered, literally, from on high, awaiting us from the dawn of Creation, it is certainly available to us now, as is the charge to make it actionable, in norms of behavior. 

As for freeing agunot, now: women who married without even prenups (the best of which are no guarantee, but better than nothing)—and women who are agunot– must declare that, when they married, they did so without being warned that they could become agunot by entering into marriage via kinyan and kiddushin, and that, had this information been shared with them, they would have sought iron-clad protection from that possibility or refused the marriage; and that therefore, withholding this information constitutes a situation of mekah ta’ut: an agreement entered into on the basis of mistaken, misleading, incomplete, or deceptive information, which therefore, voids the marriage in the case of iggun. Women who married intended to marry, not to become hostages or subjects of extortion. They never gave informed consent to the latter situations; on the contrary, relevant knowledge was withheld from them that would have let them protect themselves from dire harm — a basic right in any contractual agreement under rabbinic law. Any woman whose husband withholds a gett or demands payment for it must have her marriage annulled immediately, upon demand—hers– on grounds of mekah ta’ut. Not giving a gett when one has been asked must trigger this action ipso facto. A gett withholder or a man who demands payment for one, would trigger the end of the marriage in those very acts. This would end iggun on the spot.

Kol yisrael arevot zo la’zot: All Jewish Women are Responsible for One Another:  What Call Does the Problem of Iggun Have on Jews Outside of Orthodoxy?

What responsibility do those outside of Orthodoxy have regarding this issue? 

Al ta’amod al dam re’ekha, the Torah (Lev. 19:16) teaches: do not stand by as the blood of your companion is shed. It is unthinkable that those outside of Orthodoxy would adopt a triumphalist stance about iggun because they were born into or subscribe to variants of Judaism which, one way or the other, have obviated the problem; or because they subscribe to no religious structure. Others of us were born into other variants and have profound attachments to them. Orthodox and ultra-Orthodox women are entitled to individual freedom of conscience and freedom of religion no less than anyone else.

Jewish women must be arevot zo la’zot because, for all our differences, we share the predicament and complicated challenge of Otherness in a beloved tradition, in which we are both insiders and outsiders. We have different ways of dealing with that challenge but its dialectics and imperatives are our common inheritance as Jewish women. 

It is not only unrealistic but terribly unfair to say to Orthodox agunot, “Why don’t you just leave?” Such questions disregard the impact of family, of formal and informal education– of socialization and its internalization; the ties that bind women raised in any variant of Orthodoxy to their families and communities. It is to fly in the face of the very meaning of  “Orthodoxy,” which does not, as is commonly assumed, connote belief in the God of Torah, or even traditional observance, but rather, belief in the authority of the rabbis, past and (Orthodox) present. It is difficult to convey traditional reverence for great rabbis, their knowledge and piety, and for the authority of halakha, which is believed to derive from Moses at Sinai and to have been passed to them. Even when individual rabbis and rabbinic courts prove wanting, even very wanting, the fault is understood to be with them, not with the system as a whole. The very fact that significant reforms were enacted in halakha, including some—like the ketubba, which once benefitted women– abets this belief. Those of us outside of Orthodoxy must understand why seeing halakha as androcentric, patriarchal, and misogynistic is so difficult for insiders to see or accept. An entire edifice of belief, a world of meaning, a way of life, is threatened by it. 

Women who know no life outside of Orthodoxy have formal but rarely realistic choice to leave. To disavow the authority of halakha in the most fraught area of taboo—regarding gender and sex—is an extreme act with tremendous consequences, some of which– the label “adulteress,” the stigmatization of children as “mamzerim”– we have mentioned. To flout authority in this area is to risk alienation from parents, children, siblings; from friends; from the synagogue one has prayed in, the schools one has attended and which one’s children attend, and from which they will likely be expelled; the neighborhood one lives in; one’s job. This is not a decision about a law but about one’s entire life and sense of self, everything one has been taught, believed, lived, and loved. I know of no study of agunot, specifically, who have left the system and freed themselves but studies of ultra- and modern Orthodox Jews who have dropped out of that world for any number of reasons illustrate the difficulties and devastating price, emotional, familial, and financial, such people pay.  To posit a choice that Orthodox and ultra-Orthodox women have to abandon halakha and the requirement of a gett, effectively, is to blame the victims rather than to appreciate, as in other situations of abuse, the complexity of women’s imbrication with the world in which they were raised and to work to find ways to lessen its abusive power over women. Orthodox (or any) women should not have to cease being who they are in order to be free of dead marriages and extortion.  

Half the Jewish world resides in the State of Israel, in which Jewish women, regardless of their religious beliefs or observance, are under the rule of halakha for divorce and have no kind of choice to leave the system. 

Iggun is not an Orthodox problem; it is a Jewish problem. And it is our responsibility, our duty, to solve it. 

When a problem is treated as intractable, that is what it becomes. We have become inured to “the aguna problem,” to shaking our heads at the latest egregious case, to fury and handwringing, to empty denunciations, empty not because they are insincere but because they achieve nothing—as if iggun was an ineluctable law of nature rather than a product of humans, amenable to solution. 

Solutions exist. We must educate against the use of kinyan and kiddushin for marriage—used also in Conservative Judaism. We must not only use but make known the use of alternatives at weddings; support agunot in demanding and using rabbis and rabbinic courts that use measures that free them, swiftly and assuredly; and for the use of measures that end iggun, once and for all. All this is attainable. 

We must liberate ourselves from learned helplessness. 

Let there be no more “Agunah Days,” which, however well intentioned, ritualize the victim status of women and contribute, however inadvertently, to the too-accepted notion that women’s victimization is normal and inevitable. 

Et la’asot: it is time to act, to end this. 

Shulamit MagnusShulamit 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.

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.

Addressing Gender Inequity in Israel Studies

[This blog post discusses one of the AJS presentations mentioned in the companion blog post. As part of a roundtable discussion exploring the status of women in Jewish Studies and Israel Studies, Drs. Gila Silverman and Rachel Harris will be presenting their research, which was supported by an HBI Research Award, on the ways that gender impacts career trajectories in Israel Studies.]

By Gila Silverman and Rachel Harris

In Israel Studies, there are only four tenured women faculty in North America, and no female full professors in the United States or Canada. Of the 36 Israel Studies centers in North America listed on the Association for Israel Studies (AIS) website, only one is run by a woman. In Israel, there are 40 programs or centers that work in Israel Studies, and only three are directed by women. 

The absence of women in senior positions in the field is especially concerning, given that growing numbers of women are working in Israel Studies, and excelling in research, publication, and teaching. For example, women have received 13 out of 22 annual Ben Halpern Award for Best Dissertation in Israel Studies; and authored, or co-authored, eight out of the 23 books awarded the Shapiro Prize for the Best Book in Israel Studies. 

The relative gender equity at the graduate level slowly disappears during the transition from degree to employment, and particularly as one progresses through the ranks of tenure-stream faculty. Anecdotal evidence shows that few women completing a Ph.D in Israel Studies progress beyond post-doctoral fellowships or contingent academic positions, despite the relatively large percentage of new faculty positions in Israel Studies (compared to other fields, including Jewish Studies). Women are more likely to find employment in lower status non-tenure track administrative appointments, contingent labor positions, or in alternative-academic careers. 

The Task Force on Women in Israel Studies was convened by Dr. Rachel Harris, in order to identify the causes of this “leaky pipeline”, and to remedy it. The Task Force seeks to gather information on the situation of women in Israel Studies; to facilitate networking and mentoring among women in the field; and to propose policy and programmatic solutions to the systemic issues that affect women’s advancement. 

The first meeting of the Task Force took place at the University of Illinois, Urbana Champaign, March 10-12, 2019. It brought together 23 women working in Israel Studies, from the United States, Canada, Germany, and Israel; they included associate professors, assistant professors, post-doctoral fellows, graduate students, administrators in academic non-profits, and unsalaried independent scholars.

The Task Force meeting also provided a forum in which we could gather qualitative data on factors affecting career trajectories in Israel Studies. Focus groups with the women present allowed us to explore the benefits to Israel Studies of increasing women’s involvement in the field; what helps to build careers; networking and mentoring; obstacles to career development; potential solutions to barriers identified; and impact of family responsibilities and parenting on careers.

Through preliminary analysis of these focus groups, as well as ethnographic observations conducted throughout the three-day meeting and at the annual meeting of the Association for Israel Studies, we have begun to identify an interwoven set of issues influencing the career trajectories of women in Israel Studies. Some are similar to those facing women throughout academia, while some are specific to this field. 

Issues that face women throughout academia include decreasing resources, limited job opportunities, both explicit and implicit discrimination linked to gender norms, and sexual harassment. Other issues are specific to Israel Studies, including, for example, the politics and ideologies (real and perceived) relating to working on Israel/Palestine; the discipline’s historic emergence out of particular male-dominated intellectual and social networks; a lack of female role models and mentors; and the undervaluing of the methods, topics, and populations that women are more likely to study. 

One of the central themes that emerged in these conversations was that both Israeli society and American Jewish culture (in both of which Israel Studies is primarily embedded) are inherently patriarchal. Much of this may manifest in ways that are not obvious to the men involved, but of which the women are acutely aware. Women report body language, informal comments, and informal social interactions that make them feel that they do not belong and are not taken seriously as scholars; they often feel that they are seen first as women, daughters, granddaughters, and mothers, rather than as intellectual peers. A related issue was the gendered social norms that influence the division of family responsibilities (both for child and elder care); perhaps the single greatest topic of informal conversation at the meetings was the often overwhelming “mental load” carried by women, as they manage their families and careers. 

Addressing the complex web of issues influencing gender parity in Israel Studies will require a multi-layered and multi-directional process, involving raising awareness and training; creating opportunities for networking, mentoring, and support among women in the field; and structural and systemic changes. These disparities, developed over years, will likely take years to remove. Doing so demands greater awareness, deep honesty, and a willingness to be uncomfortable. In particular, issues such as prestige, value, hierarchy, social and family norms, comfort, and mental load cannot be resolved only through policy changes.

Much more research – both within AIS and to learn from other professional associations who are addressing the same issues, including AJS – is needed to determine which solutions are most feasible and will have the most impact. It is also essential to gather additional data to understand these factors more deeply, establish their prevalence beyond this small group of women, and compare experiences and trajectories across genders and countries. 

[The roundtable discussion on Women in the Profession will take place at the Association for Jewish Studies annual meeting in San Diego, Monday, December 16, 3:30-5 pm. In addition to Rachel Harris and Gila Silverman, the panel with include Jennifer Thompson, Sarah Imhoff, Susannah Heschel, Matthew Boxer, and Gayle Zachmann.] 

Gila Silverman is a 2017 HBI Scholar-in-Residence and a visiting scholar at the Arizona Center for Judaic Studies.

 

 

Rachel S. Harris is Associate Professor of Israeli Literature and Culture in Comparative and World Literature and the Program in Jewish Culture and Society at the University of Illinois, Urbana-Champaign. 

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