VIRGINITY AND THE KETUBA
Question: The traditional ketuba classifies a bride as a virgin or places her in a number of other categories. Nowadays, many couples have lived together before marriage. Should this fact be taken into account in writing the ketuba? Should an inquiry be made by the officiating rabbi? What would the consequences be if the bride is called a “virgin” and actually this is not so? (Rabbi Richard Marcovitz, Pittsburgh, PA)
Answer: Chastity before marriage has been urged by both the Bible and the Talmud (Proverbs; Lev. 19:29; 20:10; Tos. to Kid. 1:4, etc.). These and other sources, of course, apply to both men and women. However, virginity has only been mentioned in the marriage document in the case of women. Virginity deter- mined the mohar, in other words, the amount of the legal purchase agreement which has been an age-old portion of the marriage document. There was a difference between the sum to be provided for virgins and for those who were not virgins. In the Bible the price seems to have been fifty shekels for virgins (Ex- od. 22:15; Deut. 22:29; Ket. 10, 29b, 30b). In the later rabbinic period, the mohar for a virgin was two hundred zuzim, which seems to have been the equivalent of fifty shekels (Ket. 10a, 110b), while a non-virgin had a mohar of one hundred zuzim (B.K. 36b; Ket. lOa-b; Tos. to Ket. lOalla ff; Yad, Hil. Ishut 11:3). The priestly aristocracy established a mohar of double this amount (L.M. Epstein, The Jewish Marriage Contract, pp. 73ff). In more recent times, the ring symbolizes the former cash mohar without the pejorative overtones of a purchase agreement. We have interpreted the ring as a symbol of mutual love.
The status of the bride was not only reflected in the mohar but also through the descriptive term used with her name in the ketuba. We must now ask whether the ketubot of the past made an effort to reflect the status of each bride accurately. They were, of course, to contain no false material (Git. 10b; 87b; Yad,Hil. Ishut 3:8). No problem ever existed for women who were widowed or divorced, who were so designated in the ketuba. Their status was public knowledge and there was no reason to hide it or to be ashamed of it. A woman who was no LONGER a virgin because of accident or intercourse, should have been so designated. Yet we find that in ancient Judea, where premarital intercourse seems to have been frequent, the Judeans did not permit such a reflection against their women and insisted on a mohar of two hundred zuzim for everyone, including the widowed and divorced. In other words, all women were automatically classified as virgins. It seems that at this time it was not customary to mention the status of the bride when her name appeared in the ketuba(Ket. 10b,12a; Tos. to Ket 25c). There were a number of other periods in Jewish history when loose standards of conduct were widespread. However, this does not seem to have affected wording ketubot (Isaac b. Sheshet quoting Nahmamdes #6, 395, 398, 425; L. Epstein, Sex Laws and Customs in Judaism, p. 128). There is some likelihood that the joining together of erusin and nisu-in, which occurred in the Middle Ages, was due to illicit intercourse which took place between the couple during long interval between the two ceremonies, often separated by as long as a year (Z.W. Falk, Jewish Matrimonial Law in Aees pp 43ff; A. Freiman, Seder Kidushin veNisu-in).
Let us now look at the document itself and the various categories of non-virgins, such as widows and divorcees. In the case of a divorcee, this is placed in the ketuba in order to indicate that she is prohibited from marrying a priest. In the case of someone who has been raped or seduced, the lack of virginity may be omitted in the ketuba in order to refrain from shaming her through this memory; some insist that it be mentioned and made public knowledge (Nachalat Shiv-a 12:15). However we should also note that no inquiry to see whether the individual involved was, in fact, a virgin was suggested. B. Schereschewsky suggests that if the bride is neither widowed nor divorced, the ketuba should indicate “virgin” (Dinei Mishpacha,p. 99).
We should also note that the traditional ketuba made no demands to virginity upon the groom. There about his virginity or lack of it, nor was this reflected in the economic segment of the ketuba.
Now let us go one step further and see what the consequences of writing “virgin” in a ketuba are when this was not so. It is clear from the biblical text (Deut. 22:14) that an accusation of non-virginity could be brought by the groom after his wedding night The parents would then proceed with the defense of their daughter. If indeed she was not a virgin, the death penalty was invoked (Deut. 22:20-21). If she had been accused erroneously, then her husband was fined a hundred Pieces of silver and forfeited the opportunity of ever divorcing her (Deu. 22:13-19. All of this has been discussed further by the Talmud and later literature (Ket. 10a, 46a, etc.). One authority, however, indicated that if such an accusation was brought before him, the young man was to be whipped, as the accusation indicated that he himself had engaged in illicit intercourse earlier (Ket. 10a).
We should also note that if there was any kind of misrepresentation of a physical defect on the part of the wife, without the knowledge of the husband, then this was grounds for a divorce or for the annulment of the marriage (Tos. to Ket. 7:8-9; Ket 72b ff). This was also true if the groom found that his wife was not a virgin. In order to accuse her, he had to show that he had never been together with her without a chaperone. The laws concerning chaperonage were extremely strict.
The husband had to being his complaint to court immediately. Such an accusation did not necessarily reflect that she had lost her virginity because of an accident, without intercourse (Ket. 13a). Her only penalty then was a reduction in the mohar.
From this we can see that with our modern system of dating, it would be absolutely impossible for any man to bring a successful accusation of non-virginity against his wife. Therefore, there are no legal consequences which can be drawn from a statement of virginity made in the ketuba or represented by the mohar when, in fact, the bride was not a virgin.
As we summarize the facts, we realize that there were periods in our history when female virginity was very important. However, we can also see that during other times looser moral standards prevailed, and that the ketubot written during those periods were not changed.
We must also express our modern concern for men and women. If we expressly name the status of the female we should also do so for the male.
We might also view the entire matter differently and see the marriage as already taken place, through the intercourse of the couple who lived together. This form of marriage is legal, bedi-avad, although frowned upon since the talmudic period (Kid. 9b; Shulchan Aruch, Even ha־Ezer 33:1; 42:1). The marriage subsequently conducted in the synagogue, and the resultant ketuba, would confirm an already existing status. The bride may very well have entered into the original relationship as a virgin.
On all these grounds, it would be wise either to refrain from any kind of designation of status for the woman in the ketuba (for which there is ample precedent), or simply to use the designation “virgin” as part of a standard formula. We may standardize it in exactly the same spirit as some of the economic elements of the ketuba which no longer possess significance for us.
Walter Jacob, Chairman CCAR Responsa Committee