Rabbinic Authority I, Part I; Rabbinic Authority; The Vision, Chapter 3; Recovery for Infliction of Emotional Distress; Toward Relief for the Agunah

Recovery for Infliction of Emotional Distress: Toward Relief for the Agunah

In 1994, Avraham and Sarah Cohen were married in accordance with the Halakhah. Children were born to them. After five years of marriage, tensions between the spouses began to surface, and the couple began to live separately under the same roof. Though the wife desired to engage in conjugal relations with her spouse, her husband willfully and unjustifiably refused to engage in sexual relations with her. For the sake of their children, both husband and wife remained outwardly married, but in actuality lived separately in the marital home for five years.

Given the moribund state of her marriage, in 2004 Sarah Cohen sought a bill of divorce (get) from Avraham Cohen, her husband of ten years. Both spouses, being observant American Jews, considered them­selves bound as much by Jewish as by civil law. Both appeared before a beit din, a rabbinical court, and it was resolved that it was proper that the parties divorce. However, the husband initially refused to give his wife a bill of divorce. According to the Halakhah (Jewish law), dissolution of the matrimonial bond requires the voluntary agreement of both spouses, and failure of one party to assent to the divorce action precludes execution of the divorce. Coercing a recalcitrant spouse to grant a get produces a divorce that is arguably invalid (get me’useh). Without a valid divorce or rabbinic dispensation (in the case of a recalcitrant wife), neither party may remarry without violating the norms of Halakhah.

As a result, in the case at hand, the wife became an agunah, a “chained woman,” unable to remarry because of her husband’s refusal to grant her a get. If she remarries without having received a get from her husband, she is, in the eyes of Halakhah, an adulteress. Any children born to her from a new relationship will be mamzerim, that is, offspring of a prohibited sexual relationship, and thus unable to marry most other Jews.¹Mishnah Torah, Hilkhot Gerushin 10:4; Hilkhot Issurei Bi’ah 15:7, 21; Ben Tzion Schereschewsky, “Divorce,” in M. Elon (ed.), The Principles of Jewish Law (Jerusalem: 1975), 414–15. A mamzer may marry another mamzer or a convert.
Once a beit din issues a divorce judgment, can a husband stipulate that he will grant a get upon the beit din’s resolution of certain financial matters regarding their marriage? This issue is beyond the scope of our presentation; however, according to one position, which is adopted by numerous batei din, such a request will be entertained. Hence, only once all the financial issues have been addressed by the beit din does the husband become obligated to grant his wife a get. Should there be any delay in addressing and resolving these issues due to the husband’s intentional stonewalling of the process, as will be shown in our presentation, the beit din may assess damages for the wife’s emotional stress for withholding conjugal relations during this period of the husband’s recalcitrance. Pursuant to the other view, the get must be delivered immediately upon the issuance of a divorce judgment. Therefore, should the husband procrastinate due to certain outstanding financial issues relating to the marriage, he will be deemed a recalcitrant husband from that the date of the issuance of a divorce judgment by a beit din, and therefore subject to damages for his wife’s mental anguish. For a lively exchange regarding this matter, see R. Menashe Klein and R. Shimon Ya’acobi, Esq., “The Giving of a Get and Financial Arrangements: Which Precedes the Other?” [Hebrew], 22 Tehumin (5762), 157. See also PDR 3:169; 5:208–214; 10:115–144; 11:153–171; Dovid Bass, “Establishing of Conditions by a Husband who is Obligated to Give a Get” [Hebrew], 25 Tehumin (5765), 149; Uriel Lavi, “The Establishment of Preconditions by a Husband Who is Obligated to Give a Get” [Hebrew], 26 Tehumin [5766], 160.
However, according to many authorities, in cases of wife beating, a get must be granted immediately, prior to any resolution of outstanding claims. Regarding whether the husband can stipulate the granting of a get upon a wife’s compliance with certain conditions, see E. Shochetman, “Violence Against Women as Grounds for Divorce” [Hebrew], in Aharon Barak and Aviad Hacohen (eds.), Menachem Elon Jubilee Volume (forthcom­ing), nn. 141–148.

Outraged and emotionally distraught due to her husband’s intolerable behavior during their marriage, Sarah Cohen wants to file a rabbinical court claim against her husband for the infliction of emo­tional distress during the five years of separation prior to the court’s directive recommending divorce. Her experience of mental anguish, she argues, was not the ordinary stress attendant on living in an imperfect world, but severe mental injury. Despite her emotional dis­tress, however, she never utilized the services of a therapist, and thus did not submit a claim for therapeutic expenses. Although not a victim of spousal violence, her husband’s insensitivity to her feelings and outrageous behavior inflicted severe emotional distress, she argues, and this distress ought to be sufficient grounds for recovery of dam­ages.

I.

Can a psychologically-injured person recover damages when no physical harm accompanies the mental anguish? Prior to the granting of a get, can this agunah submit a claim against her husband in a rab­binical court for the period of their marriage during which she was precluded from engaging in conjugal relations, or might such a course of action be taken as constituting a form of duress that could taint any subsequent get?

In the absence (to the best of my knowledge) of any hiddushin (­novella), sefer psak (restatement), teshuvah (responsum,) or psak din (published rabbinical court ruling) addressing this question, deciding between competing arguments is the decisor’s prerogative. As I will show, a fourteenth century teshuvah (responsum) by R. Yitzhak ben Sheshet (Rivash) recognizes such a claim in a ruling authoritatively cited by Rema. I will show that a present-day rab­binical court’s authority to address the claim of spousally-inflicted emotional distress can be grounded in various codified rulings and numerous teshuvot (responsa) that address defamation of character and broken engagements, particularly a 1965 rabbinical court decision handed down by R. Yosef Elyashiv, widely acknowledged to be one of the generation’s greatest Torah scholars. To establish the legitimacy of accepting a wife’s claim for damages due to emotional distress without running afoul of the strictures against coerced divorce (get me’useh), the positions of R. Shlomo Daichovsky, R. Elyashiv, R. Moshe Feinstein, and R. Shilo Rafael will be adduced. The spectrum of views on this matter attests to the vibrancy of the halakhic process, which does not require us to gloss over differences and force disparate approaches into a Procrustean bed for the sake of forging a neat, coherent, and per­suasive position. This article will examine the relative strength, effectiveness, and plausibility of each argument applicable to our case, in the hope that these arguments will be tested within the framework of future rabbinical court decisions.

How does the Halakhah address liability for mental anguish in gen­eral, and its emergence due to a husband’s refusal to engage in conjugal relations in particular? With these questions in mind, let us consider the following passage from Tractate Kilayim of the Talmud Yerushalmi:

If the owner struck opposite the eye [of his Canaanite slave] and blinded him, opposite the ear and deafened him, the slave does not go free … The slave could have escaped [before the blow]. The proof that this is correct is that it is stated: If he held him [preventing him from escaping], he is liable.²Yerushalmi Kilayim 8:2. See I. Haut, “Recovery for Fright, Shock and Emotional Dis­tress under Jewish Law and Some Comparisons to Common Law,” 14 Jewish Law Annual (2003), 121, 129.

The rule of non-liability in the case of fright and shock is predicated on the fact that the slave did not attempt to escape the consequences of the blow. As such, if he is held down by the injurer (mazik) and cannot escape the blow’s impact, the injurer is liable. Commenting on this passage, R. Moshe Margaliot concludes that if the owner holds him and frightens him, he is liable.³Pnei Moshe, ibid., s.v. teida she-hu ken. In fact, Yerushalmi Bava Kama 8:6 provides for recovery for embarrassment (absent physical impact) if the injured party is a great scholar. Such a provision is not found in the Bavli. In his opinion, although frightening is equiva­lent to physically holding him down, liability for the ensuing mental anguish is incurred only if the injurer holds down the slave, and not if he merely frightens him. R. Meir Halevi Abulafia (Rama), disagrees, arguing that if the injury could not have been prevented, there is liabil­ity for fright and shock even absent direct physical contact.⁴Shita Mekubetzet, Bava Kama 91a, s.v. u-le-inyan psak.

On the other hand, the Talmud Bavli states:

Come and hear. If he hit him in the eye and blinded him or on his ear and deafened him, the slave goes out free thereby. If he struck an object that was opposite his eye and blinded him [e.g., pounded on the wall opposite the slave’s eye, causing him to become blind] or if he struck an object that was opposite his ear and deafened him, he does not go out free. Is not the reason for this rule that assessment [of the plausibility that injury was caused by the blow] is required [and it is assumed that the said activity might not have caused the injury to the slave]? No. The absence of tort liability is predicated on the fact that he [the slave] frightened himself. As it was taught: If one frightens another, he is not liable by the law of man, but he is liable by the law of heaven. If he blew [with a trumpet or the like] into his ear and made him deaf, he is not liable. But if he held him and blew into his ear, and made him deaf, he is liable.⁵Bava Kama 91a; see also Bava Kama 56a; Kiddushin 24b. The disparate approaches of the two Talmuds are noted in Hazon Yehezkel, Bava Kama 6:5.

Absent physical contact and physical damage, one who frightens another does not thereby incur liability. Relying on the Talmudic rationale that the one who is frightened is a rational person and scared himself, Rif,⁶Rif, Kiddushin 9a. Ran,⁷Ran on Rif, Kiddushin 9a, s.v. keivan de-bar da’at. Rashi,⁸Rashi, Kiddushin 24b, s.v. shani adam. R. Menahem Meiri,⁹Beit ha-Behira, Bava Kama 56a. R. Shimon ben Tzemah Duran,¹⁰Teshuvot Tashbetz 2:114. and R. Feinstein¹¹Iggerot Moshe, HM 1:98. all conclude that every indi­vidual who ventures out into the world assumes the risk of injury, exposes himself to unexpected trauma,¹²Though this rationale is offered by Rama, as quoted in Shita Mekubetzet, Bava Kama 277, nevertheless, as the Tosafot, Bava Kama 91a, s.v. lo aptly note, Tosefta Bava Kama 9:26 contends that non-liability for mental anguish in the absence of physical impact is rooted in a gezeirat ha-katuv, i.e., a Torah decree, and is not due to the victim’s lack of self-control. and should try to be more thick-skinned rather than burden others with responsibility for his emotional weaknesses; failure to inure oneself to the routine stresses of existence bars recovery for any ensuing psychological injury. Translating this position into contemporary legal terminology, non-liability is due to contributory negligence. Hence, unless the fright and shock was caused by physical impact, the injurer is exempt from liability.¹³Rashi, Bava Kama 56a, s.v. ha-mavit; Mishnah Torah, Hilkhot Hovel u-Mazik 2:7; Tur, HM 420:22; SA, HM 420:25. Maharshal¹⁴Yam Shel Shlomo, Bava Kama 8:38. and Ra’avad¹⁵Hiddushei ha-Ra’abad, Bava Kama (Atlas edition), 223. argue that the fright and shock could not have caused the injury, since the generally accepted assessment (omed) is that that fright and shock do not suffice to cause emotional scarring. Others, such as Rosh,¹⁶Piskei ha-Rosh, Bava Kama 2:17. Tur,¹⁷See Tur, n. 13 above. Mordekhai,¹⁸Mordekhai, Bava Kama 91a, sec. 95. and R. Meir mi-Rotenburg,¹⁹Teshuvot Maharam mi-Rotenburg (Prague edition) 300. argue that there is no liabil­ity for an injury that is caused indirectly. In Talmudic parlance, this is a case of gerama, and the principle is, “gerama be-nezikin patur” – that is, there is no liability for indirectly-caused damage.

What emerges, then, from the Talmud Bavli is that non-liability for emotional stress is based on one of the following rationales: It falls into the category of gerama; there is no connection between the act and the injury; one must exercise emotional self-control with regard to the stresses of life.²⁰For an elucidation of these views, see Haut, supra n. 2, 121. A minority view, reflected in Yerushalmi Kilayim and Rema’s position, claims that even without physical contact, there may be liability for emotional stress.

The common denominator of all these approaches is that shouting that engenders fright and shock in and of itself is an act (ma’aseh) that generates legal liability if accompanied by physical contact. In the absence of physical contact, the act of shouting only generates liability for fright and shock according to the laws of heaven. Hence, although a husband’s refusal to engage in conjugal relations with his spouse may generate feelings of emotional stress, the absence of an act causing these feelings precludes liability even according to the laws of heaven. Thus, with respect to indirect injury (garmi/gerama), the strict law of damages does not mandate recovery for emotional stress.²¹Liability by the law of heaven for indirectly-caused damage is predi­cated on an act’s having been carried out; see Teshuvot Tashbetz 2:114; Teshuvot Rashbash 509. Hence, absent any act, there are no grounds for putting forward a claim. However, it could be argued that a claim could be put forward by adducing other principles relevant to damages, such as “indiscernible damage” (hezek she-eino nikar).

II.

Having discussed the black-letter law concerning damages, and having attempted to delineate the rules governing recovery for mental anguish, let us consider another dimension of recovery for mental anguish. Though the Halakhah mandates that those who decide legal questions do so in compliance with rules rather than on the basis of whim or bias, it countenances and indeed encourages the exercise of judicial discretion. Judicial discretion, a familiar notion in both hala­khic and western legal thought, can be defined as the judge’s “power to choose between two or more courses of action each of which is thought of as permissible.”²²Henry Hart, Jr. and Albert Sacks, The Legal Process: Basic Problems in the Making and Application of Law (Cambridge, MA: 1958), 162. See also Aharon Barak, Judicial Discretion (New Haven: 1989), 7–9.

Addressing this second layer of halakhic law of damages, Professor Aaron Schreiber declares:

Halakhah, with its emphasis on rules, might mistakenly be understood as being positivistic and ignoring policy. It might be thought that a legal decision, especially by a court or other religious legal authority, is (and should be) reached on any issue of law simply by determining the applic­able legal doctrines and principles. These would then be analyzed logic­ally and deductions would be made therefrom until a “legal” decision would be reached. The legal decision would be dictated solely by the application of deductive logic to these a priori legal rules and principles, without regard to policy … Policy, societal conditions and context would be overtly ignored.²³Aharon Schreiber, “Positivism, Policy, Morality and Discretion in Jewish law,” 19 Dine Israel (5757/5758), 5, 9.

In fact, however, as we will show, the decisors sought to address the issue of recovery for emotional stress by moving beyond the formal rules of damages and invoking the arbiter’s discretionary capacity, and specifically the capacity to exercise “emergency powers.”

Compensation is paid to an injured party for five elements of dam­age: nezek (loss of capacity to work), tza’ar (pain), ripui (“healing,” medical expenses), shevet (loss of income during convalescence), and boshet (shame and embarrassment) — as assessed by the arbiter. Imposition of these payments is conditional on the injury’s having been caused by a physical act.

Prior to the mid-fourth century CE, arbiters who had received ordination (semikhah, “the laying on of hands”) were authorized to resolve both ritual and civil matters, including damages by individuals. After the lapse of the ordination process, non-ordained arbiters, namely, community leaders and lay arbiters (beit din shel hedyotot), were granted authority to resolve cases involving common injuries that caused the injured party a financial loss. However, the compensation for such bodily injuries that could be imposed by the said arbiters was limited to two elements – loss of income and medical expenses.²⁴SA, HM 1:1–2; Bah, HM 1; Shakh, HM 1:7. Cf. Piskei ha-Rosh, Bava Kama 8:2. By law, then, claims of liability due to shame and embarrassment (boshet), for example, though arising from bodily damage ensuing from a physical act,²⁵SA, EH 83:1. In cases of assault in which no injury resulted, there may be liability for boshet, but there is no legal liability in the absence of a physical act of assault; see Bava Kama 8:6; Rema, HM 420:43. could not be submitted to a non-ordained arbiter for adjudication, since there was no loss of income.

Although certain matters are excluded from the jurisdiction of non-ordained arbiters, nevertheless, pursuant to normative Halakhah, ordained and non-ordained arbiters are empowered to exercise exi­gency jurisdiction both in matters of civil damages, such as boshet, and in matters involving capital punishment,²⁶Teshuvot ha-Rashba 1:612; 3: 109; SA, HM 2:1; Rema, HM 2:1. Numerous responsa that take this position are cited in Aharon Schreiber, Jewish Law and Decision-Making: A Study through Time (Philadelphia: 1979). However, cf. Nimmukei Yosef on Rif, Bava Kama 96b, Sanhedrin 52a; Hiddushei ha-Ran, Sanhedrin 46a; Urim ve-Tumim, HM 2:2, which maintain that given the demise of ordination, the court’s jurisdiction is limited to imposing non-capital punishment. under the Talmudic rubrics of “beit din makin ve-onshin she-lo min ha-din” (a court may mete out punishment not prescribed by the Torah),²⁷Yevamot 90b; Sanhedrin 46a. “le-migdar milta” (protective measures),²⁸Yevamot 90b. and “ha-sha’ah tzerikhah le-kakh” (the times demand it).²⁹Ibid. The phrase “hora’at sha’ah” (temporary measure) is often invoked in such a situation; see Menachem Elon, Jewish Law: History, Sources, Principles (Philadelphia: 1994), 533–6; H. Ben-Menahem, Judicial Deviation in Talmudic Law (Chur, Switzerland: 1991), 173–9. The arbiters’ punitive powers are not limited to criminal matters, then, but encompass civil matters as well. To promote broader policy goals, arbiters are authorized, in certain circumstances, to deviate from the letter of the law and impose actual and/or punitive damages.³⁰There is ongoing debate among contemporary scholars as to whether this extra-halakhic capacity is legislative or judicial in nature. My view is that the latter approach is the correct one; see H. Ben-Menahem, ibid., 146–8. Cf. Menachem Elon, ibid., 515.

Some of the basic policy goals in Halakhah as expressed in broad classifications at a high level of abstraction, are: to bring the spirituality and holiness to God down to earth and, through operative principles, to incul­cate them into mundane matters and conduct in the finite world; to sanc­tify God’s name … to preserve life and the law … to act for the benefit of individuals and society, by not harming them and making life pleasant; to preserve modesty and morality … to improve society by correcting inequities … to maintain public order …³¹See Schreiber, supra n. 23, 10. See also J. David Bleich, Contemporary Halakhic Problems (NY: 1995), vol. 4, xv–xix.

Granting the arbiter discretion allows his decisions to be shaped by the aforementioned goals. In effect, the halakhic system encompasses exigency law, a juristic technique for effectively resolving problems for which the strict law has no efficient solution, so that the covenantal faith community’s basic objectives can be realized.

But what constitutes an “exigency situation?” Three approaches to its definition can be found in the writings of the Later Authorities:

Falk,³²Sma, SA, HM 2:2. in his commentary on Karo, attempts to delineate express guide­lines. He states if all the people are not dissolute as to certain matters, an individual may not be punished under this authority unless he is a habit­ual wrongdoer … Shakh³³Shakh, SA, HM 2:2. views this analysis as an appropriate restate­ment of the principles as derived from the Talmud and as codified by the Tur. Falk’s approach is cited with approval by … Netivot,³⁴Netivot ha-Mishpat, SA, HM 2:1. and Beer Hagola.³⁵Be’er ha-Golah, SA, HM 2.
Shaar Ephraim³⁶Teshuvot Sha’ar Ephraim 72. … held that only if many people in the community are engaging in this type of conduct may an individual be punished.
This opinion … is in conflict with the holding of Falk and Maharam.³⁷Teshuvot Maharam Lublin 138. See also Kenneset ha-Gedolah, HM 2:2. For Falk holds that even where the majority of the people are not dissolute, if the individual is dissolute he may be punished by the court invoking its extrajudicial power. And Maharam holds that even if the community is not dissolute or the individual is not dissolute, if a court feels that failure to punish this person may cause other people to feel that they might act in a similar manner with impunity, the court may impose extrajudicial sanc­tions on the individual. In short, as enunciated by Maharam, extrajudicial authority may be invoked by a court in any situation when it feels that sanctions are necessary to deter potential misconduct. Shaar Ephraim, by contrast, would limit the court’s authority to situations where the com­munity has, in fact, engaged in such misconduct.³⁸Emanuel Quint and Neil Hecht, Jewish Jurisprudence: Its Sources and Modern Applications (Chur, Switzerland: 1980), 174–5.

On all three views – namely, the views of R. Yehoshua Falk, Sha’ar Ephraim (R. Ya’akov Katz, 1616–1678), and the Maharam of Lublin – if the individual is a habitual wrongdoer with regard to a certain practice, or has frequently committed a transgression in public,³⁹Teshuvot Shevut Ya’akov 1:136. and many mem­bers of the community, by engaging in this misconduct, have shown themselves to be dissolute (parutz ba-aveirot),⁴⁰This term is used in Tur, HM 2 and SA, HM 2:1. According to R. Ya’akov Katz, if the community is not dissolute, a court may not exercise such sanctions against a habitual wrongdoer; see Teshuvot Sha’ar Ephraim 72 (43b). an emergency exists if the individual will continue violating the halakhic norm unless he is pun­ished. Under these circumstances, a rabbinical court may exercise extrajudicial authority (le-migdar milta) as a deterrent, to forestall the danger that others will emulate the wrongdoer’s behavior if it goes unpunished.

Who is authorized to impose such extrajudicial sanctions? What types of non-ordained arbiters possess such authority? On the view of Rosh,⁴¹Piskei ha-Rosh, Bava Kama 9:5. See also Beit ha-Behirah, Sanhedrin 52b; Bnei Shmuel, HM 2:2. R. Yosef Karo,⁴²SA, HM 2. and Maharshal,⁴³Yam Shel Shlomo, Bava Kama 9:7. According to Maharshal, in such matters, the scholar serves as a member of the community court. such authority may be exercised by the greatest scholar of the generation. R. Yoel Sirkes (Bah), in the name of R. Yeruham, holds that the greatest scholar of the generation may impose these extrajudicial sanctions even if he has not been accepted by the community.⁴⁴Bah, HM 2. Meiri,⁴⁵Beit ha-Behirah, Bava Kama 94b. R. Karo,⁴⁶Beit Yosef, HM 2; SA, HM 2:1. See also Bnei Shmuel, HM 2:2. R. Moshe Isserles (Rema),⁴⁷Rema, HM 2:1. R. Mordekhai Jaffe,⁴⁸Levush Ir Shushan, HM 2. R. Yehoshua Falk,⁴⁹Sma, HM 2:9. R. Ya’akov Lorberbaum of Lissa,⁵⁰Netivot ha-Mishpat, HM 2:5. and R. Yehiel Michel Epstein⁵¹Arukh ha-Shulhan, HM 2:2. See also Teshuvot Tashbetz 1:161; Teshuvot Binyamin Ze’ev 132, 303. On a present-day proposal to utilize the Knesset as a communal institution to nullify marriages, see Berachyahu Lifshitz, “Have the Rabbis Neglected Marriage Matters?” [Hebrew], Kerem B’Yavneh Jubilee Volume (2004), 314. Although generally appointed by the community at large or by communal representatives, such as “the seven elders of the city,” such panels may be appointed by the majority of the rabbis in a given town; see Teshuvot lggerot Moshe, HM 1:13; E. Schlesinger, “The Hala­khic Validity of the State-Recognized Rabbinical Courts” [Hebrew], 45 Torah she-Be’al Peh (2005): 165, 171 (R. Elyashiv’s opinion). claim that exigency rulings can also be handed down by communal leaders, generally laymen, who have been appointed arbiters by their com­munity (beit din shel hedyotot).

Given that the law authorizes such exigency rulings, some contend that laymen are empowered to impose severe penalties. Indeed, during the thirteenth and fourteenth centuries in the Spanish provinces of Catalonia, Majorca and Valencia, Jewish communities had an institution known as the “board of inquiry into transgressions” (berurei aveirot). Authorized by the king of Spain, these lay courts would contract com­munal loans, sell communal property, render decisions regarding financial matters (such as taxation and wills) and personal status claims, and in certain communities even had the power to administer oaths to litigants and witnesses and to excommunicate offenders. More­over, as numerous teshuvot by Rashba, R. Yitzhak ben Sheshet, and others attest, the berurei aveirot, as custodians of religious rectitude and order, were authorized to mete out criminal and monetary sanctions for ritual and moral offenses that were eroding the communal fabric. As grounding for the institution of berurei aveirot, the halakhic author­ities invoked the classic Talmudic sources that provided for exigency authority in these matters.⁵²Teshuvot ha-Rashba 3:385, 393; 4:311; Teshuvot ha-Meyuhasot le-Ramban 279; Teshuvot ha-Rivash 265; Teshuvot ha-Ran 41. Indeed, no rabbinical discussion of the legitimacy of criminal sanctions and fines for civil injuries so levied was deemed necessary.⁵³Teshuvot ha-Rashba 1:1187; 3:318. Following in this tradition, R. Tzemah ben Shalom Duran,⁵⁴Teshuvot Yakhin u-Bo’az 1:126. See also Teshuvot Rashbash 211. R. Yehoshua Falk,⁵⁵Prisha, HM 2. Halakhah Pesukah,⁵⁶Halakhah Pesukah, HM 2:1, n. 13. See also Mishpatim le-Yisrael, 42–43, 59–60. R. Z. Goldberg,⁵⁷Hanina Ben-Menahem, “Non-Legislative Punishment” [Hebrew], Mishpetei Eretz – Jurist, Jurisdiction, Jurisprudence [Hebrew], (Ofra, Israel: 2002), 152, 159, n. 17. and others⁵⁸Beit ha-Behirah, Bava Kama 94b; Teshuvot ha-Rosh, rule 100:9; Mordekhai, Gittin 384; Teshuvot Terumat ha-Deshen 307; Teshuvot ha-Ridbaz 3:480; Nahalat Shiva 66; Divrei Ge’onim 34:4. Though none of these sources explicitly endorse the said position, their argumentation and use of the term “court” supports this conclusion. For an explicit endorsement, see Kenneset ha-Gedolah, HM 2:19. A contemporary Israeli arbiter recently reached the same conclusion; see S. Daichovsky, “Monetary Enforcement Meas­ures against Parties Who Refuse to Grant a Get” [Hebrew], 26 Tehumin (5766), 173, 177. recognize the authority of lay communal arbiters to impose these types of sanctions in emergency situations.

Whether a contemporary rabbinical court has the extrajudicial authority to impose a criminal or monetary sanction, such as punitive damages, on a habitual wrongdoer who is part of a dissolute com­munity where many engage in the same improper behavior will depend on whether a non-ordained panel of arbiters has the jurisdic­tion to wield this type of authority. The authority of a non-ordained panel of arbiters is predicated on both parties’ willingness to submit their claims to this body. If one party refuses to accept the authority of a communal rabbinical court, the signing of an arbitration agreement (shtar borerut), which requires both parties to submit to the panel’s authority, provides a way to resolve a claim by imposing damages.⁵⁹There may be courts that subscribe to the view that extra-judicial powers are reserved solely for the greatest scholar of the generation or for com­munal officers who have been appointed as arbiters, yet nevertheless allow for tort recovery on the basis of the signing of an arbitration agreement (shtar borerut). See infra 176–177.

III.

Let us now revisit our hypothetical case of a husband’s denying his wife conjugal relations and thereby causing her mental anguish. Assuming a contemporary rabbinical court is empowered to have recourse to extrajudicial authority in exigency situations, it must be decided if the circumstances in question indeed constitute an exigency situation. Does a husband’s refusal to engage in sexual relations consti­tute wrongdoing of the sort that creates an exigency situation that may entitle the victim to damages? Consider the following Talmudic dictum:

R. Eliezer ben Ya’akov said: A man must not marry a woman if it is his inten­tion to divorce her, as it is said, “Devise not evil against your neighbor, seeing he lives securely by you” (Proverbs 3:29).⁶⁰Yevamot 37b; Gittin 90a.

As the Sefer ha-Hinukh explains, in such a situation, the wife is con­sidered a married woman, yet the husband views her as a divorcee.⁶¹Sefer ha-Hinukh, mitzvah 455. Entering into a marital agreement requires both spouses to have the same mental intent vis-à-vis the marriage, viz., the intention to remain married to each other. A marriage that is factually dead, that is, in which the spouses do not engage in conjugal relations, yet the husband either remains under the same roof, moves out of the marital home while remaining formally married for the sake of the children (or other reasons), or refuses to grant a get, is deemed a violation of the law by Rambam, Tur and Shulhan Arukh.⁶²Mishnah Torah, Hilkhot Issurei Bi’ah 21:28; Hilkhot Gerushin 10:21; Tur, EH 119; SA, EH 119:1–2; Helkat Mehokek, EH 119:1; Taz, EH 119:2. R. David ben Shmuel ha-Levi interprets the aforementioned Talmudic dictum as follows: “Even though it is permissible to ‘devise evil,’ that is, to divorce one’s wife, in accordance with the law … he who desires to do so should do so [soon], and not delay the divorce. Therefore the verse states, ‘he lives securely with you’ – this is the essence of the prohibition.”⁶³Taz, ibid.

That is, a husband’s unwillingness to have sexual relations with his wife, whether due to a personal vendetta, sheer hatred of his wife, or a desire to gain financial concessions with respect to a divorce he is contemplating, involves a violation of the injunction “devise not evil against your neighbor, seeing he lives securely by you.”⁶⁴Mishnah Torah, Hilkhot Gerushin 10:21; Tur, EH 119; SA, EH 119:1. See also Beit Shmuel, SA, 119:1; Pri Hadash, EH 119:2. But cf. Helkat Mehokek, n. 62 above, and Mishnah la-Melekh, Hilkhot Gerushin 10:21, who question this position. The psycho­logical consequences of violation of this norm, namely, tza’ar (mental anguish) are recognized by the Halakhah. Denying one’s wife conjugal relations during an ongoing marriage in which no divorce is impending or she is unaware of any contemplation of divorce on her husband’s part prevents her from engaging in sexual relations with someone else, as she remains a married woman. The mental anguish involved in this situation to some extent parallels that facing the agunah, the “chained” woman who is prevented from remarrying because of her husband’s refusal to grant a divorce.⁶⁵On defining tza’ar as emotional anguish, see infra n. 72. Causing such anguish also constitutes violation of the prohibition against causing pain to living creatures (tza’ar ba’alei hayyim), which applies to human beings as well as to animals. See Bava Metzia 32b; Teshuvot ha-Rashba 1: 252, 256, 257; Drishah, HM 272:15; Sma, HM 272:13; Teshuvot be-Tzel ha-Hokhmah 4:125; Teshuvot Divrei Hakhamim, YD 1.
In addition to the psychological consequences of a husband’s unwillingness to have relations with his wife, the court may declare him a rebel (mored), a possible consequence of which is that his wife may be granted an increase in the amount due her from her ketuba; see SA, EH 77:1; Rema, ad loc.

Among a husband’s monetary obligations and rights vis-à-vis his wife are the obligations to provide maintenance and pay for ransom and burial expenses; he has rights to articles his wife finds and to be her sole heir.⁶⁶Mishnah Torah, Hilkhot Nisu’in 12:2–3. Another halakhic consequence of marriage is the establish­ment of spousal property relations. One of the rules governing these relations is that “in financial matters (mamon), one’s stipulation is valid.” That is, in monetary matters such as spousal support, one may make stipulations contrary to biblical law.⁶⁷Kiddushin 19b. However, where no such private stipulations have been agreed to by the couple, the biblical rules are default rules that govern the marital relationship. Do private arrangements extend beyond the realm of monetary affairs into the sphere of personal matters? Can a husband stipulate that he is under no duty to have intercourse with his wife? If the husband stipulates that he is under no obligation to engage in conjugal relations, such a stipulation is invalid.⁶⁸Tur and Beit Yosef, EH 88; SA, EH 38:5; Rema, ad loc. Cf. Yerushalmi Bava Metzia 7:7; Tosefta Kifshuta, Kiddushin 3:7, 947–48. Expounding the biblical verse, “her conjugal rights he shall not diminish,”⁶⁹Shemot 21:10. According to some decisors, this injunction is contravened even if the husband, by refraining from relations, unintentionally causes his wife pain; see Shita Mekubetzet, Ketuvot 48a, s.v. ha-omer (in the name of Ritva); Teshuvot Maharam Alsheikh 50. But cf. Mishnah Torah, Hilkhot Nisu’in 14:7; Sefer ha-Mitzvot, mitzvah 262; SA, EH 76:11; Teshuvot ha-Mabit 3:131. On the differences between the view expressed in the Mishnah Torah and that of the Shulhan Arukh, see Adat Ma’oz, EH 2:76:11. and the concept of shi’abud (servitude) in the realm of conjugal relations,⁷⁰In contradistinction to a husband’s duty to engage in intercourse, a wife is bound to him (meshu’abedet), but just as a wife becomes bound to her hus­band rather than acquiring title to his body, so the husband acquires servi­tude to her body. See Yevamot 65b; Nedarim 81b; Ketuvot 71b and Rashi ad loc., s.v. ha-madir; Hiddushei Rabbi Avraham mi-Montpellier, Nedarim 15b and Rashi ad loc., s.v. de-amar Rav Huna; Hiddushei ha-Rashba, Gittin 75a and Nedarim 15b; Teshuvot Mahaneh Hayyim, vol. 2, EH 44; SA, EH 154:6; PDR 1:5. On the distinction between servitude and title vis-à-vis marriage, see J. David Bleich, “Kiddushei Ta’ut: Annulment as a Solution to the Agunah Problem,” 33 Tradition (1998), 90, 116. Implementation of a kinyan to establish matrimonial ties articulates the parties’ willingness to assume the duties and rights associated with marriage and by no means constitutes evidence that the husband has acquired title to his wife; see Birkat Kohen, 101–123; Torah Temimah, Vayikra 22:11. the Netziv, R. Naftali Tzvi Yehuda Berlin, writes:

Reason tells us that man is so duty bound. It is, as we all know, for this purpose that a bride enters into marriage … Hence, if he denies her sex­ual relations, she is deprived of her right. Sexual fulfillment is primarily the husband’s duty and the wife’s entitlement. Sexual relations are the essence of marriage and depriving a woman of this right creates “tza’ar gufa,” that is, emotional pain.⁷¹Birkat ha-Netziv, Mekhilta de-Rabbi Yishmael, Mishpatim 3 (Horowitz-Rabin edition), 258–9. See also Shita Mekubetzet, Ketuvot 63a. In fact, should a husband initially fail to address her desire for conjugal relations and then dutifully engage in relations, his behavior is construed as a fulfillment of a religious obligation by way of a transgression (mitzvah ha-ba’ah ba-aveirah), namely, transgression of the precept “her conjugal rights he shall not diminish” (Shemot 21:10); see Shita Mekubetzet, Ketuvot 62b, s.v. ve-katvu. Moreover, the withholding of conjugal rights is construed as theft; see Teshuvot Noda be-Yehuda, Mahdura Kama, OH 35; Teshuvot Minhat Hayyim, vol. 1, EH 18. See also Yevamot 118a; Rashi, Kiddushin 19b; Ran, Kiddushin 19b; Rashbam, Bava Batra 126b; Taz, EH 38:7; Beit Shmuel, EH 76:7 and Be’er Heitev, ad loc.; Levush, EH 38:5; Arukh ha-Shulhan, EH 38:12.
Neverthe­less, a wife has no duty to engage in conjugal relations and may consent to forgo her conjugal rights, provided her husband’s obligation to procreate has been fulfilled; see Tur, EH 76:6; SA, EH 76:11; Birkei Yosef, EH 1:2. She is, however, entitled to change her mind and reinstate her right to conjugal relations; see Lehem Mishnah, Hilkhot Nisu’in 15:1; Teshuvot Mahari Weil 1. Cf. Teshuvot Ranah 2:44.
Many decisors have ruled that a husband’s failure to engage in sexual relations involves contravention of a biblical prohibition (“her food, her clothing, and her conjugal rights he shall not diminish” [Shemot 21:10]); see Mishnah Torah, Hilkhot Nisu’in 12:2; Tur, EH 69; Beit Yosef, ad loc. Accord­ing to R. Shimon Shkop, the status of the violation – biblical or rabbinic – determines whether abstinence from conjugal relations is deemed to create severe emotional distress for the wife. R. Shkop’s contention has been explained as follows: “All biblical prohibitions are proscribed because higher wisdom recognizes that this is as bad for Israel as poison, and the fact is that the prohibition and the warning exist because the matter is bad … And rabbinic prohibitions are the exact opposite. The matter is good … and the proof is that given the Torah did not proscribe it, it isn’t bad – but rather, the Torah mandated that we listen to the rabbis” (Rabbi Hayyim Shmuelevitz Memorial Volume [Hebrew] [Jerusalem: 1979], 285). See also Sha’arei Yosher, sha’ar 1, ch. 10. Cf. Sefer Yerei’im 191 and Smag, negative pre­cept 81, which maintain that failure to fulfill this duty violates a Rabbinic prohibition. On the view espoused by R. Shkop, such a violation does not cause the said harm to the wife.

Withholding sexual intercourse (onah) causes emotional scarring and may have repercussions for the future of the marriage. This aware­ness of emotional hurt is underscored in other contexts. For example, the Talmud debates whether, given the tension and mental anguish that arises from spousal conflict, the execution of a divorce is a boon for the wife, or whether, notwithstanding marital tensions, the wife none­theless prefers the gratification of her bodily desires (niha de-gufa) to divorce.⁷²Yevamot 118b. The initiation of conjugal relations by the husband is for the wife’s pleasure (simhat ishto), while a husband’s pleasure is a beneficial consequence of imparting pleasure to his wife; see Devarim 24:5 and Rashi ad loc.; Pesahim 72b; Ra’avad, Ba’alei ha-Nefesh, Sha’ar ha-Kedushah; Smak, positive commandment 285. This need to instill joy applies to a pregnant and/or barren wife as well. As R. Moshe Feinstein notes, “Conjugal relations do not depend on the possibility of conception, but are part of a husband’s obligation toward his wife, to give her pleasure and not cause her pain;” see Iggerot Moshe, EH 1:102. See also Maggid Mishnah, Hilkhot Nisu’in 15:1. Regarding whether a husband is obligated to sleep in a Succah on Succos without his spouse and the implications of this issue for simhat ishto, see Taz, OH 639:9; Bikurei Ya’akov(Ettlinger), Aruch la-Ner Succah(end), OH 639:18.
The halakhic literature suggests that the proscribed pain is not only physical pain, but rather emotional anguish as well. The subtext to the duty to engage in sexual relations is reflected in the requirement that a husband refrain from sexual relations with his wife when intoxicated, angry at her, or intending to divorce her; see Yevamot 37b; SA, OH 240:3, 10. Similarly, the notion of bringing joy to one’s wife entails recognition of the wife’s right to emotional integrity and equanimity. Hence, the with­holding of sexual relations, unless requested by the wife, is deemed to cause mental anguish, and serves, according to some decisors, as potential grounds for compelling a divorce. In Rambam’s formulation, it is grounds for the claim, “My husband is repulsive to me (ma’is alai);” see Hilkhot Nisu’in 14:8. For others who endorse Rambam’s position, see Yuval Sinai, “Coercion of a Get as a Solution for the Problem of Agunah,” 20 Jewish Law Association Studies (2010), 246, which records a substantial number of heretofore unknown decisors who subscribe to Rambam’s view. See R. Avraham Gatinieu’s review of the Poskim concerning this matter and his conclusion that most Rishonim endorse Rambam’s view. See Teshuvot Tzel ha-Kesef 13–14.
Although some decisors do not endorse this position as grounds for compelling a get, my proposal to recognize claims for tza’ar boshet in cases of spousal refusal of conjugal relations (see below at nn. 109–118) may have the indirect effect of encouraging recalci­trant husbands to grant a get. The Talmudic conclusion is, “tav le-meitav tan du mi-le-meitav armelu” (It is better for two to dwell together than to dwell alone). The underlying idea here is that a woman has a compelling desire for mar­riage, such that she will even accept a degree of routine quarreling and marital strife. The assumption is that given that a woman’s need for sexual relations through the husband’s fulfillment of the “conjugal rights” precept is an existential fact and not conditioned by contingent social or cultural factors, a woman prefers to remain married.⁷³This understanding of the “tav le-meitav tan du” dictum was developed in a talk by R. Joseph Soloveitchik, “Surrendering to the Almighty,” summar­ized in Light (17 Kislev, 5736 [1976]), 11–15, 18. Cf. Iggerot Moshe, vol. 4, EH 83. This is, however, a halakhic presumption, and not applicable to every marriage; see Bleich, supra n. 70, 102–8. Whether the “tav le-meitav tan du” presumption assumes the need to engage in sexual relations or can refer to a woman’s desire for companionship and security merits further analysis. On the notion of mental torment (inui nefesh) as denoting, in certain contexts, abstention from conjugal relations, see Bereishit 31:50; Vayikra 16:29; Yoma 76a, 77b. Hence, a husband’s refusal to engage in sexual relations undermines his wife’s ongoing emotional stability.⁷⁴Note that the emotional harm ensuing from a wife’s refusal to engage in conjugal relations is likewise deemed infliction of emotional distress on the husband, and is likewise a violation of Halakhah; see Teshuvot Ri Migash 186; Mishnah Torah, Hilkhot Nisu’in 14:9, 11–12; Hiddushei ha-Rashba, Ketuvot 73a, s.v. ve-ha-amar rav; Hatam Sofer on Taz OH 639:9.

However, a wife may seek to opt out of a deteriorating relationship when the spouses do not engage in conjugal relations though residing under the same roof, or while de facto separated from each other. The husband’s withholding of a get under these conditions results in an untenable situation:

The daughters of Avraham remain grass widows with living husbands. They are left starving, thirsty, and destitute. And we should be apprehen­sive lest they become involved in objectionable conduct … Moreover, these women are young and nubile [and will not be able to wait indefinitely].⁷⁵Ginat Veradim, EH 3:20. Although this description relates to a case in which the husband disappeared, it also applies to the present-day agunah whose husband refuses to grant her a divorce.

The Rabbis likened the situation of such a woman to that of a moribund individual in imminent danger of death (goses).⁷⁶Rashi, Yevamot 122a. Clearly, the analogy to someone about to die (goses) is metaphorical. Although the withholding of sexual relations generally does not lead to death, both the wife and the goses will likely experience emotional distress as a result of their respective conditions. In both cases, there is objective pain that is not self-induced; see Rashi, Sukkah 25a, s.v. tirda de-reshut. While withholding a get does not constitute murder per se, in the eyes of R. Yosef Henkin, the prohibition against it is a stricture ancillary to the prohibition against murder (avizrayhu de-retziha).⁷⁷Kitvei ha-Gaon Rav Yosef Henkin, vol. 1, 115. R. Henkin describes a recalcitrant husband as a thief. As Prof. Berachyahu Lifshitz observes (in a personal com­munication to this author), given that the husband is obligated to have relations due to his shi’abud vis-à-vis his wife (see supra nn. 70–72), R. Henkin’s characteriza­tion is apt. On emotional abuse as grounds for divorce in rabbinical writings and contemporary Israeli rabbinical court judgments, see Shochetman, supra n. 1; 54/168, Supreme Rabbinical Court (SRC) (Jerusalem), Nov. 17, 1994; 1-2-016788168 SRC, May 10, 2001.

Moreover, the husband may compound the injury by dismissing the harm, arguing that one who suffers emotional pain has only herself to blame, and that emotional distress is a transient psycho­logical and/or culturally conditioned behavioral pattern rather than an existential fact.

Given the wife’s emotional distress, we are dealing with a husband who, in keeping his spouse from engaging in sexual relations, is a habitual wrongdoer who will continue to violate the law unless he is punished. If many in the community are dissolute (parutz be-aveirot), in that they engage in similar misconduct, or are at risk of doing so, an exigency situation can be said to exist.⁷⁸See supra n. 40. Under these circumstances, can a rabbinical court today exercise extrajudicial authority to forestall the danger that, should the behavior of the husband in question go unpunished, others will emulate the offender? Let us first analyze the emotional distress being perpetrated by the husband.

Above, we noted that according to the strict law (dinei nezikin min ha-din), there are five aspects of personal injury for which compensation is paid: 1. nezek (loss of capacity to work due to the permanent loss of a limb); 2. tza’ar (pain resulting from physical contact); 3. ripui (healing, viz., medical expenses); 4. shevet (loss of income during convalescence); 5. boshet (shame and embarrassment).⁷⁹See above n. 24; Bava Kama 91a; SA, HM 420:3.

Under which category of damage does infliction of emotional dis­tress fall? Though, according to the strict law of torts, the term tza’ar is associated with physiological pain rather than emotional distress, in the context of exigency jurisdiction, it can be taken to have its ordinary sense, that is, to encompass emotional distress.⁸⁰Bava Kama 85a; Piskei ha-Rosh, Bava Kama 8:1; Tur, HM 420:17 and Beit Yosef ad loc.; SA, HM 420:16. The position of R. Ya’akov Blau on this point is unclear; see Pithei Hoshen, vol. 6, 313, n. 32. Alternatively, mental anguish could be categorized as boshet. In the psychological and philosophical literature, shame is intimately connected to the victim’s sense of self and the presence of those who confirm one’s self-esteem.⁸¹John Rawls, “Self-Respect, Excellence, and Shame,” in R. Dillon (ed.), Dignity, Character and Self Respect (NY: 1995), 128; Gabriele Taylor, Pride, Shame, and Guilt (NY: 1985), 64. The Halakhah defines shame as the consequence of an injury generated by physical contact⁸²Bava Kama 91a. Cf. Yerushalmi Bava Kama 8:6, which provides for recovery for humiliation absent physical impact only if the victim is a great scholar. witnessed by a third party.⁸³SA, HM 420:7; Rema, HM 420:8; Teshuvot Rivevot Ephraim 6: 453; Teshuvot Az Nidberu 8: 63. But cf. Tosafot, Ketuvot 65b, s.v. be-zman, which argues that the presence of a third party who witnesses the injury is not required. On this view, shame is not simply the humiliated party’s subjective feeling, which was generated by physical contact (such as a slap, spitting, and so on) between the parties, unrelated to any third party’s awareness of the act. Rather, shame is the feeling of humiliation accompanied by the knowledge that others are aware of the event causing the victim’s discomfiture, and the resulting diminution of his sense of worth. The Talmud asks whether, if the victim is unaware of the humiliation (as for instance, if, while asleep, someone disrobed him, and he subsequently died in his sleep, unaware of the incident), other parties who have been indirectly humiliated, such as family members of the directly humbled party, can sue for boshet.⁸⁴Bava Kama 86b. Can the heirs sue for family humiliation? If liability depends on third party awareness, there should be no liability in such a case; if liability is grounded in the victim’s feelings of shame, then given his unawareness, the injurer should be exempt. The Talmud’s view is that though family members were indirectly humiliated, a boshet claim arises only if the victim himself experiences shame, and in the case of the disrobed sleeper, the injurer is exempt.⁸⁵Rosh’s ruling, endorsed by Rema and Sema, is that the victim’s heirs cannot sue for boshet; see Piskei ha-Rosh, Bava Kama 8:7; Teshuvot ha-Rivash 27 (cited by Beit Yosef, YD 343:7–8); Rema, HM 420:35; Sema, HM 420:43. Others contend that the Talmud did not take a definitive stance; hence, we must refrain from extracting money from the tortfeasor. See Mishnah Torah, Hilkhot Hovel u-Mazik 3:3; SA, HM 420:35.

But shame has a broader sense than that addressed by the black-letter Halakhah, as it can extend to the humiliated party’s subjective feelings even in the absence of physical contact between the injurer and the victim, or where there are no third party witnesses. By law, some­one expectorating mucus or phlegm that comes in contact with some­one else’s skin is liable to pay for boshet; if, however, the expectoration damages only the other party’s clothing, he is exempt from paying compensation for boshet.⁸⁶SA and Rema, HM 420:38. See D. Feldman, The Right and the Good (NY: 2005), 1–5. In the absence of physical impact, the court cannot hold the offender liable. Note that this is in line with the principle that holding someone down while shouting in his ear establishes liability.⁸⁷SA, HM 405:1. Hence, some authorities maintain that the law of damages does not mandate imposition of fines when an engagement is broken; see Ketzot ha-Hoshen, HM 207:7; Teshuvot Rabbi Akiva Eiger (2nd edi.) 75; E. Shochetman, “More About Damages of Breach of Promise to Marry” [Hebrew], 9 Mishpatim (1978), 109, 120. But cf. Beit ha-Behirah, Bava Kama 90b and 91a, where it is argued that there is liability for boshet absent physical impact. Damages for expectoration of mucus that comes in contact with someone’s clothing generates liability, not on the basis of the strict law, but on the basis of exigency law.

Yet breaking an engagement, which likewise does not entail physical contact, may conceivably generate liability for boshet. This has been argued for not by adducing the jilted party’s embarrassment that people are aware of what happened, but rather on the grounds that breaking an engagement leads to a decline in the jilted party’s social status, and reduced prospects for finding a spouse.⁸⁸See PDR 3:205, 210; however, it was left an open question there. A different argu­ment was put forward by R. Yosef Shaul Nathanson:

Shame is that which touches one’s body. Therefore, when it does not touch his body, he is exempt. Yet an engagement has impact on the rational soul and is much worse than physical injury, hence with regard to broken engagements, even in the absence of physical contact, there is liability. And one who verbally embarrasses his friends will not have a share in the world to come, even though he did not physically injury him.⁸⁹Teshuvot Sho’el u-Meishiv (2nd ed.) 4:69. See also Ketzot ha-Hoshen, HM 207:7. But cf. Teshuvot Maharik, root 29. On emotional anguish as a form of boshet, see also Tosafot, Ketuvot 65b, s.v. be-zman; Nedarim 27b, s.v. asmakhta; Kiddushin 8b, s.v. maneh.

On this view, boshet devarim (verbal embarrassment) is not limited to verbal insults or defamation of character.⁹⁰SA, HM 420:38; Teshuvot ha-Ridbaz 3: 480; Teshuvot Hatam Sofer, HM 181. It also encompasses emo­tional distress unaccompanied by physical contact and unrelated to third party awareness, such as the emotional fallout generated by broken engagements.⁹¹Cf. Teshuvot Beit Yitzhak, EH 1:112, which claims that a broken engagement encompasses not just verbal embarrassment, but a physical act (if, upon breaking the engagement, the party who terminates the relationship becomes engaged to someone else). Ketzot ha-Hoshen, HM 207:7, argues that obligating oneself by executing an engagement document (shtar shiddukhin), generates liability for boshet.

Antecedents for this type of boshet can be found in a Jerusalemite practice from Talmudic times: If someone entrusted preparation of a meal to someone else, who spoiled it, the latter had to compensate the host for the insult to him and to his guests.⁹²Bava Batra 93b. The fact that the act in question generates boshet liability according to the laws of heaven (dinei Shamayim), if not according to the laws of man, entails that the Halakhah recognizes embarrassment that does not ensue from physical contact. Liability for the host’s embarrassment ensues from his being publicly embarrassed by the spoiled meal. Liability for guests’ embarrassment is grounded in their mental anguish for the host who wanted to serve a delicious meal; the Talmud identifies these “third-party” feelings as boshet too.

Analogously, the husband’s misconduct may be taken to cause the wife distress that, from the halakhic perspective, gives rise to liability for boshet.⁹³Assuming that the husband intended to embarrass his wife. Lack of intent would exempt him from liability for boshet; see Bava Kama 27a; SA, HM 421:1, 11; Beit Meir, EH 66:6. Just as a broken engagement by its very nature generates feel­ings of mental anguish, that is, boshet, unrelated to any physical contact or verbal remarks,⁹⁴Beit Meir, EH 7. a husband’s denying his spouse conjugal relations generates emotional stress, that, though there is no accompanying physical contact or verbal insult, should be categorized as boshet.

Given that intentional infliction of mental anguish is akin to boshet devarim, can this claim be resolved by a rabbinical court? While, accord­ing to the strict law, there is no remedy in cases of boshet involving no physical contact, a rabbinical court, whether or not its members are ordained judges, does have the extrajudicial power, “in every locale and at all times,” to benefit the community by imposing criminal sanc­tions and holding the wrongdoer liable for damages for boshet devarim.

At first glance, such a conclusion might seem unfounded. The Shulhan Arukh rules that only ordained arbiters residing in the Land of Israel can assess a specified penalty established by the Torah (kenas katzuv)⁹⁵Halakhah distinguishes between cases in which the offender is liable to pay monetary compensation (mamon), and cases of offenses that incur fines (kenas). Whereas one who confesses to an act commission of which incurs liability for monetary restitution is obligated to pay, this is not so with regard to fines. Here, admitting to an act does not render one liable to payment of the fine; see Bava Kama 64b, 75a. Since a litigant’s con­fession regarding humiliation is admissible in evidence, boshet payments fall into the category of mamon; see Rashi, Ketuvot 42a; Tosafot Rid, Ketuvot 41a; Mishnah Torah, Hilkhot Nedarim 8:3. Nevertheless, in some Tal­mudic and post-Talmudic sources, boshet is arbitrarily designated a fine; see Sma, HM 1:5; Shakh, HM 1:3. Given that non-ordained arbiters may adjudicate only matters that occur frequently and involve a loss of money, injuries such as boshet, if they that do not occur frequently and do not entail a loss of money, are deemed to fall under the category of offenses incurring fines, and as such, cannot be adjudicated; see Teshuvot Rav Natronai Gaon (Brody edition) 329, 363; Otzar ha-Ge’onim, Bava Kama 64–68; Tosafot, Bava Kama 84b; Maggid Mishnah, Hilkhot Hovel u-Mazik 5:6; Beit Yosef, HM 1; Amihai Radzyner, “Foundations of ‘Dine Qena­sot’ in Talmudic Law” (unpublished doctoral dissertation, Bar Ilan University, 2001), 229–36. for personal injuries, and today, all arbiters are non-ordained and hence lack the authority to mete out such penalties.⁹⁶SA, HM 1:1. How, then, can a rabbinical court today award damages for boshet? As we have explained, on the strength of exigency law, even non-ordained arbiters are empowered to mete out penalties known as “fines imposed by the Rabbis” (kenas hakhamim), such as payments for boshet-related injury.⁹⁷Piskei ha-Rosh, Gittin 4:41; Mordekhai, Gittin 384. See Radzyner, n. 95 above, 281–2. In our presentation, we have focused upon the exigency jurisdiction of a contemporary beit din’s authority to address a wife’s claim for tort damages; see SA, HM 2 and supra, text accompanying nn. 26–59 and infra, text accompanying nn. 98–101. A beit din is empowered to render an award for two types of damages: compensatory damages and punitive damages. Compensatory damages represent the financial equivalent of the loss or harm suffered by the victim, to restore the injured victim to the position he was in prior to the nezek. The scope of the compensatory damages includes economic damages, such as nezek, and non-economic damages, such as boshet; see SA, HM 420:15–18, 24. Unlike compensatory damages, punitive damages consist of an assessment of damages above and beyond compensating the victim for the harm suffered. The goal of punitive damages is to punish the mazik for his or her conduct, deter the mazik from repeating his or her improper act, and prevent others from engaging in similar behavior. For a contemporary application of the imposition of punitive damages in a case of physical assault, see File no. 9326-35-1, SRC, Aug. 25, 2008. Regardless of whether the award is compensatory or punitive in nature, the justification of the award is based upon the exigency jurisdiction of a beit din, namely the assessment that the community must deter such improper behavior rather than satisfying a claim due to the fact that the wife is personally entitled to such relief.
Should a beit din today deem it necessary to award damages for boshet devarim, it has the option to either award compensatory damages calculating the shame based upon the societal status of the offender and the offended or award punitive damages that would exceed a compensatory damage award. See SA, HM 420:24, 35, 43; Sma, HM 420:25. Since the calculation of the compensatory damages for boshet devarim is subjective, should a beit din determine to render such an award, the panel must be careful to render an assessment that reflects a compensatory damage award, lest one blur the lines between a compensatory damage award and a punitive damage award. Regarding a contemporary beit din’s authority to render an award for boshet devarim, see Teshuvot ha-Rosh 101:1, 8, 9; SA, HM 420:38; Teshuvot ha-Ridbaz 3:480; Teshuvot Hatam Sofer, HM 181.
Regardless of whether the damages are compensatory or punitive in nature, the awarding of such damages is viewed as a vehicle to appease the victim and is grounded in the beit din’s exigency jurisdiction. See Tur, HM 1:11; Rema, HM 1:2, 5; SA, HM 420: 38; Teshuvot ha-Mabit 1: 93; Teshuvot ha-Ridbaz 4:1291.

The actual implementation of these powers concerning boshet­ related injuries is not limited to Talmudic era rabbinical courts, but has been applied in contemporary times.⁹⁸On rabbinical courts that imposed criminal sanctions on those who insulted and defamed their fellow-Jews, see Teshuvot ha-Rosh, rule 71:1, 8, 9; Teshuvot ha-Rashba ha-Meyuhasot le-Ramban 240; Teshuvot Havot Ya’ir 62; Teshuvot Tumat Yesharim 1:160. On the imposition of boshet devarim fines for broken engagements, see Shakh, HM 207:24, 333:49; Teshuvot Noda be-Yehuda, Mahadura Tanina, YD 146; Teshuvot Avodat ha-Gershuni 74; Teshuvot Givat Pinhas 74; Teshuvot Hatam Sofer, EH 134; Teshuvot Rav Pe’alim, vol. 2, EH 3; Teshuvot Zera Emet, YD 102-103; Teshuvot va-Yomer Yitzhak 1:161; Teshuvot Peri Yitzhak 13; Teshuvot Zekhut Avot 31; Nahalat Shiva 8:6; Shochetman, supra n. 1, 120 n. 49. For example, in 1965, invoking their exigency authority, members of the Supreme Rabbinical Court in Jerusalem, Rabbis Abudi, Elyashiv, and Goldschmidt, marshaled numerous responsa to support the position that damages for boshet can be awarded in the case of a broken engagement.⁹⁹PDR 5:322. In the words of R. Elyashiv, who authored the psak din:

There is a consensus that a rabbinical court is empowered to impose cor­poral punishment or social shunning (nidui) until he assuages the [hurt] feelings, yet this will not be accomplished through boshet payments pursu­ant to the law, but rather, everything is resolved in accordance with the specifics of the matter, the times, and the arbiters’ discretion.¹⁰⁰Ibid., 327, reprinted in Yosef Shalom Elyashiv, Collected Teshuvot 2:129. Whether R. Elyashiv’s justification for invoking this exigency power rests on the court’s status as a community court (see above at nn. 45–50) or a non-ordained panel of arbiters (see above at nn. 51–58), or is based on the signing of an arbitration agreement (see supra n. 59) is unclear from the ruling in question. But given that in other decisions, R. Elyashiv ascribes to the view that the Israeli rabbinical courts are communal courts, mandating submission to their authority (see PDR 7:225, 227 and E. Shochetman, Civil Procedure in Jewish Law [Hebrew] [Jerusalem: 1988], 169, n. 34), it is clear that he deems the exercise of such authority by community courts fully legitimate. Moreover, given that a community court is a non-ordained panel of arbiters, R. Elyashiv would presumably conclude that any lay panel may exercise such powers. But cf. Teshuvot Divrei Yoel, YD 35:4.

Adopting R. Elyashiv’s position, subsequent Israeli rabbinical courts have invoked their extra judicial authority and imposed boshet pay­ments for broken engagements.¹⁰¹PDR 3:209–10; 6:117, 119.

It remains to identify the specific reason infliction of emotional distress by refusal to engage in conjugal relations serves as grounds for awarding boshet damages. Is it a “le-migdar milta” (a protective measure) or is it due to “the needs of the time?” Is the emotional fallout from spou­sal refusal of conjugal relations like the mental anguish resulting from a broken engagement? On the one hand, this type of distress does not result from any physical injury or impact. Is it, then, like being spat on (where the spittle lands on one’s clothing and does not touch one’s skin), being called derogatory names, or being jilted by a fiancé? On the strength of a court’s authority to invoke its exigency jurisdiction in all these aforementioned situations, the injurer can be fined.¹⁰²SA, HM 420:38. It would seem that this should apply to our scenario as well.

The Talmud and halakhic authorities, however, exhort us to refrain from making rules that impose a fine in one realm on the basis of laws pertaining to a fine in another realm. The halakhic authorities do have recourse to analogical reason­ing to identify similarities and differences between cases (medameh milta le-milta)¹⁰³Bava Batra 130b and supra 53–57. so as to address new situations, but does this allow us to establish a new rule governing a particular fine from a rule pertaining to another fine? For example, the Mishnah gives examples of liability for imperceptible damage.¹⁰⁴Gittin 5:4. The question then arises whether the laws governing the specified sorts of imperceptible damage can encompass other sorts of imperceptible damage. One school of thought argues that since monetary penalties are involved, the list cannot be added to, as this would constitute establishing a new penalty. Despite putative similarities between two situations, arbiters are not to derive new pen­alties by analogical inference from existing penalties. On this view, though absence of physical contact appears to be a common feature of spitting on someone else’s clothing, defamation, and emotional distress due to spousal refusal to engage in conjugal relations, this putative analogy cannot serve as a basis for expanding the sphere of exigency law to encompass the latter.¹⁰⁵Yad Malakhi 550–551; Shakh, HM 385:1; Tosfot Yom Tov, Gittin 5:4.

On another opinion, however, the Talmud’s rejection of analogical inferences from one penalty to another is applicable only in the context of black-letter Halakhah. With respect to matters falling under the rubric of le-migdar milta, however, analogical inferences are permissible.¹⁰⁶Teshuvot Shevut Yaakov 1:145. On this view, if the injury caused by a broken engagement can be subsumed under the category of boshet devarim by analogical inference, so too emotional distress due to spousal refusal to engage in conjugal relations can be classed as falling under boshet devarim. The question, then, is whether breaking an engagement in a manner that humiliates the aggrieved party constitutes boshet devarim. One responsist argues that breaking an engagement should be on a par with all types of boshet, including boshet devarim, and the arbiter should handle it accordingly as a “protective measure.”¹⁰⁷Teshuvot Avodat ha-Gershuni, supra n. 98. Another contends that it is analogous to the case of spitting on someone’s cloth­ing. If a rabbinical court can invoke its extrajudicial powers to resolve a spitting incident even absent contact with the defendant’s body, surely, on breaking an engagement in a manner that generates emotional scarring of the aggrieved party, liability should ensue.¹⁰⁸Teshuvot Shoel Umeishiv, supra n. 89.

Having considered this debate, it is my opinion that, given that emotional distress due to spousal refusal to have conjugal relations may have more severe psychological impact than a physical act of injury, it should indeed be handled like boshet devarim and spitting on clothing. The court’s discretion to impose extrajudicial fines can provide monetary relief for this type of emotional anguish.

We saw that a husband’s denying his wife conjugal relations contravenes the biblical directive, “Devise not evil against your neigh­bor, seeing he lives securely by you” (Proverbs 3:29).¹⁰⁹See supra text accompanying n. 60. A husband’s deny­ing his spouse sexual relations occurs when the spouses reside under the same roof, and either have an ongoing marriage in other respects, or are de facto separated from each other and the marriage is factually “dead,” but the husband is delaying the granting of a divorce. The lack of conjugal relations causes tza’ar (mental anguish) as well as injury to the wife’s sense of self (boshet), the latter not necessarily being a func­tion of the public’s perception of her worth. (As we saw above, by the strict law, damages for boshet are a function of public perception of an individual’s social standing.) Contemporary rabbinical courts, by virtue of their power to exercise exigency authority, can adjudicate claims for such damages.

Moreover, the consequences of violating the prohibition against delaying the granting of a divorce extend beyond the halakhic recogni­tion of tza’ar and boshet, and indeed, beyond the realm of domestic relations. The distress generated by denial of conjugal relations also constitutes a kind of deception:

Just as there is deceitfulness in buying and selling, so there is deceitfulness in verbal exchanges. One should not ask how much something costs if he dos not wish to buy it … If someone is the descendant of converts, he should not admonish, “remember your ancestors’ deeds.”¹¹⁰Bava Metzia 4:10.

Causing unnecessary mental anguish is prohibited in both social and commercial contexts. Inquiring about a price when one has no intention of purchasing the object is termed ona’ah (deception). Lest the biblical prohibition against deception (Lev. 25:14) be construed as applying only to ona’at mamon (fraudulent business transaction), the Mishnah explicitly states that deception occurs in the realm of conver­sation as well (ona’at devarim). The Mishnaic examples are edifying: The distress caused by needless verbal insensitivity in conversation is simi­lar to the distress caused to a merchant whose hopes of making a sale are needlessly built up and then dashed.¹¹¹See Bava Metzia 58b. See also Sefer Yerei’im, 180; Smag, negative com­mandment 171; Piskei ha-Rosh, Bava Metzia 4:22; Teshuvot Hikrei Lev, YD 4: 80, Y. Sofer, “On Ona’at Devarim” [Hebrew], Mekabtziel, 9, 41, 51. But cf. Tosefta Bava Metzia 3:25; Sifra, Behar 3:2; and Ra’avad on Sifra ad loc., which take the concept of “verbal deception” to apply only to objectionable verbal inquiries. In the halakhic literature, verbal deception has been characterized as the infliction of “dread and fear” and “pain and distress.”¹¹²See Rambam, Sefer ha-Mitzvot 251; Ra’avad, Shita Mekubetzet, Bava Metzia 58b; R. Yonah Gerondi, Sha’arei Teshuvah 3:24; R. Samson Raphael Hirsch, Commentary on the Torah, Vayikra 25:14–17. Cf. J. David Bleich, “Ona’at Devarim,” [Hebrew] 35 Hadarom (1972): 140–1. Others argue that not any insensitivity, but only deceptive speech constitutes ona’at devarim; see Or ha-Hayyim, Vayikra 25:17; She’iltot Rav Ahai Gaon, Behar, She’ilta 113; Sefer ha-Hinukh, mitzvah 337. See also Tur, HM 228; SA, HM 228:3. The individual’s emotional persona must be protected from unjustified verbal assault.

The open-ended nature of the prohibition against ona’at devarim is articulated in Sefer ha-Hinukh:

It is impossible to provide specific details of every type of behavior that causes emotional distress … One who transgresses this prohib­ition and behaves contrary to the directives propounded by the halakhic scholars violates a precept.¹¹³Sefer ha-Hinukh, mitzvah 341 (338).

Over 700 years later, R. Ya’akov Blau introduces his exam­ination of ona’at devarim by describing the many acts subsumed under this prohibition:

One who creates noise in his home or in the street while the neighbors are sleeping … [and] one who resides on an upper floor and disturbs his neighbor on a lower floor is deemed to be causing pain … If one needs to move or remove beds, it should be done during the day … and during the evening hours, one should walk with light footwear and not run elec­tric saws or washing machines and the like … In this book, he discusses whether students in a study hall or yeshiva in a residential area can learn aloud … There is also discussion about eating food that produces a vile odor that may cause bad breath that is offensive to someone one is conversing with.¹¹⁴Pithei Hoshen, vol. 4, 15:3.

On R. Blau’s view, when one party to a relationship is deliberately inconsiderate of the other, he may be liable for ona’at devarim. In inter­personal relations, such as relations between neighbors, the respective parties’ sense of self-worth is to be secured and enhanced, and care must be taken to avoid giving offense or creating mental anguish. There is a special prohibition against ona’at devarim vis-à-vis one’s wife.¹¹⁵Tur, HM 228; SA, HM 228:3. A fortiori, a husband’s denying his wife conjugal relations, a direct assault on her sense of self-worth, is an instance of ona’at devarim.

With regard to ona’at devarim, no act has been committed, but rather, the offense is merely verbal, and hence not justi­ciable according to the strict law.¹¹⁶Sema, HM 420:49. Articulating words is not deemed an act; see Teshuvot ha-Rashba ha-Meyuhasot le-Ramban 240 regarding the legal import of a blasphemer’s words. It is thus exigency law that empowers a rabbinical court to impose fines for ona’at devarim.¹¹⁷Beit Yosef, HM 1:12; Darkei Moshe, HM 2:5; Rema, HM 2:1, 420:38. Though our hypothetical scenario falls under the category of boshet, it also constitutes a violation of the prohibition against ona’at devarim. Shaming someone verbally entails “verbal deception.”¹¹⁸Rashbatz, Magen Avot, Avot 3:15; Bi’ur ha-Gra, HM 420:49. In effect, a rabbinical court applying exigency law to a case of spousal denial of conjugal relations is at the same time addressing contraventions of the prohib­ition against ona’at devarim.

Given that every decision related to awarding damages for emo­tional scarring can be characterized as a hora’at sha’ah (emergency directive), the rabbinical court must realize that the contemplated rulings are ad hoc determinations arising from exigency situations, and as such call for cool-headedness. As Rashba formulates it:

With patience, deliberation, and consensus, the community will be directed toward [fulfilling the will of] heaven. Every major act and mighty hand requires vigilance and the elimination of anger. The arbiter must worry that his fervent zeal for God will inflame his innards and do away with the correct and proper [judicial] comportment.¹¹⁹Teshuvot ha-Rashba 6:238. See also Teshuvot ha-Rivash 171.

Applying this to our scenario, the panel must first ascertain whether the husband is indeed a wrongdoer. Let us first consider the question of when a husband is deemed to be refusing to divorce his wife (mesarev get), and at what point his wife is deemed to be an agu­nah. If a married couple have been living in separate rooms in the marital home for three months and appear in front of a rabbinical court for the purpose of executing a divorce, what is the court’s mandate? As long as there are prospects of reconciliation,¹²⁰Teshuvot Ginat Veradim, YD 3:4; PDR 12:199–204. it is the court’s responsi­bility to promote shalom bayit (domestic tranquility).¹²¹PDR 10:310, 313. In instances in which it is clear that the husband’s claim for shalom bayit is intended only to stretch out the rabbinical court proceed­ings, the court must issue a divorce judgment; see Teshuvot Yaskil Avdi, vol. 6, EH 15; PDR 21:333, 362. But if there is little likelihood that domestic harmony will prevail, a rabbinical court decision to rule with a view to fostering shalom bayit only serves to unduly lengthen the divorce proceedings. Unless the specifics of the marital situation dictate otherwise, the court should set a maximum time of eighteen months to restore marital tranquility.¹²²R. Hayyim Palagi, Teshuvot Hayyim ve-Shalom 2:35, 112. Some decisors contend that separation is not akin to divorce, but its purpose is rather to ease spousal tensions and facilitate reconciliation; see Teshuvot u-mi-Tzur Dvash, EH 8; Teshuvot Yaskil Avdi, EH 6: 25, 45; Teshuvot Noda be-Yehuda, EH 3:89; PDR 4:267, 274. Cf. Teshuvot Ta’alumot Lev 3: 20, §4; Teshuvot Seridei Esh, EH 29.
In effect, irreconcilable differences between parties and the inability to restore shalom bayit serve as grounds for the parties’ subsequent divorce; see Teshuvot ha-Ridbaz 4:89; Teshuvot Yaskil Avdi 6:96; Teshuvot Yabia Omer, vol. 2, EH 10; R. Henkin, supra n. 77; Iggerot Moshe, YD 4:15; Tel Aviv District Rabbinical Court, 016948564-21-1; Haifa District Rabbinical Court, 051778991-22-1; 050562289-13-1; Netanya District Rab­binical Court, 8885. Whether marital breakdown due to irreconcilable differences culminating in a “dead” marriage allows a court to compel a divorce is subject to debate; see Teshuvot Divrei Malkiel 3:145; PDR 1:161, 162; 6:13; 9:200, 211, 213; 10:168, 173; 9:149, 153; 20:239, 275. If a spouse moves out of the marital home and the couple is continuously separ­ated for the entire eighteen months, or if the spouses are legally separ­ated, the marriage is functionally over, and it becomes the court’s task to persuade the couple to divorce.¹²³R. Palagi’s stance, ibid., is intended to persuade rather than coerce the parties to execute a divorce; see PDR 12:198, 206. Cf. PDR 9:200, 211–212; 10:168, 173. Legal separation or de facto separation is a prerequisite for a rabbinical court ruling recommending that the spouses divorce. Living under the same roof in different bedrooms is not deemed separation in this context; see Z. Warhaftig (ed.), Collected Rulings of the Rabbinical High Court of Appeals [Hebrew] (Jerusalem: 1950), 30. Nevertheless, Israeli rabbinical courts have at times recommended separate bedrooms in order to facili­tate reconciliation in the hope of the couple’s eventual return to shared quarters; see PDR 4:267, 274. This is done by issuing a divorce judgment that it is “proper” or “recommended” that “the parties divorce each other.”¹²⁴Although in the period of the Rishonim, such judgments were for­mulated in terms of an “obligation to divorce” (hiyuv le-garesh) rather than “compelling” divorce (kofin le-garesh), Kaplan argues that today, rabbinical courts, in particular in Israel, use even weaker terms, saying that divorce is “recommended” or “a mitzvah.” See Yehiel Kaplan, “Enforcement of Divorce Judgments by Imprisonment: Principles of Jewish Law,” Jewish Law Annual 15 (2004), 57, 77–80, 134–8. A cursory glance at recent cases indicates that courts do in fact use the term “obligation to divorce” (hiyuv le-garesh); see Jerusalem District Rabbinical Court, 1-21-9918 and 2-21­764; Tel Aviv District Rabbinical Court, 038416327-21-1; Petach Tikva District Rabbinical Court, 4927-21-1; Netanya District Rabbinical Court, 1-24-4564; Haifa District Rabbinical Court, 8952-21-1. On the need to avoid the locution “obligation to divorce,” see Teshuvot Yabia Omer, vol. 2, EH 10. Once the judgment has been issued, the parties are to arrange for execution of the divorce (sidur ha-get). Should the husband refuse to give the get due to a personal vendetta, desire to use the get as a bargaining chip for financial concessions, or sheer hatred of his wife, at that juncture he is deemed a mesarev get. As noted, at this point, there are grounds for providing monetary relief for the wife, who is deprived of conjugal relations, and suffers the attendant emotional distress.

However, prior to addressing and awarding such a claim for infliction of emotional distress, the court must engage in mediation, so that either the victim may be assuaged with words of appeasement or the injurer can voluntarily offer monetary recompense.¹²⁵Rema, HM 1:5. Adducing a Geonic precedent, various halakhic authorities argue that there should be recourse to appeasement “according to the issues at hand, the status of the one who perpetrated the humiliation, and the status of the victim of the humiliation.”¹²⁶Teshuvot Rav Natronai Gaon, supra n. 95, 329; see R. Sherira Gaon, Teshuvot Sha’arei Tzedek, part 4, gate 1, no. 19; Piskei ha-Rosh, Bava Kama 8:3; Perishah, HM 1:12; Levush, HM 1:5. Relying on the Geonic precedents and SA, HM 1:6, there is the option of imposing a ban or social shunning (nidui); after calculation of the approximate damages to be paid, the injurer is released from the ban, regardless of whether he has appeased his wife. Depending on the circumstances of the case and the religious and/or social status of the parties, the court will attempt to mediate an appeasement. Should attempts at mediation be unsuc­cessful, and assuming the standards for invoking exigency Halakhah have been met, the court will proceed to assess the damages caused by the husband’s infliction of emotional distress.

Given that the injuries are imperceptible, how does the court assess these damages? Post-Talmudic sources indicate that the court does so by exercising judicial discretion. Defining this discretion in a negative fashion, some characterized the assessed damages as fines (kenasot) that have no rationale, one decisor even saying, “I am astonished that the sages found any basis for arriving at these assessments.”¹²⁷Otzar ha-Ge’onim, Bava Kama 212, 65; Teshuvot Sha’arei Tzedek, part 4, gate 1, no. 7; Ra’abad, quoted in Shita Mekubetzet, Bava Kama 91b. According to R. Yisrael Isserlein, there is no prescribed formula (middah kavuah) for estimating this type of award; see Teshuvot Terumat ha-Deshen 2:212. Others, among them R. Yosef Elyashiv, describe the court’s discretion in exigency situations in positive terms: “Everything is resolved in accordance with the specifics of the matter, the times, and the arbiters’ discretion.”¹²⁸PDR 5:327, and see above at n. 100. A similar formulation is found in Teshuvot Avodat ha-Gershuni 74; Teshuvot Rav Pealim, vol. 2, EH 3; Kenneset ha-Gedolah, HM 1:35.

I am not, of course, claiming that the court decides on the basis of whim; rather, there is an authoritative decisional standard. Boshet is determined by the principle of proportionality, that is, in accordance with the relative status of the perpetrator and victim of the humiliation. In effect, defendants pay damages commensurate with their wrongs, and plaintiffs recover damages commensurate with their losses. A secular legal system might ask: Ought not the husband to have foreseen the injury that would result from his conduct? Did the wife have an “eggshell personality,” resulting in unforeseeable mental injury? The halakhic system does not ask these questions. The doctrine that a hus­band’s denying his spouse conjugal relations is a violation of the prohibitions against ona’at devarim and boshet enables the court to assume that long term abstinence from conjugal relations engenders anguish in every wife, and does not reflect psychological fragility, but is rooted in the very essence of her humanity. Similarly, the forseeability of the harm ensuing from the husband’s failure to engage in sexual relations need not be proven in order to establish liability.

The boshet generated by spousal denial of conjugal relations cuts across all economic and social strata. It is incumbent upon the husband to be aware of his spouse’s rights and his own marital obligations, and to be aware of the injury that will ensue from failure to fulfill his obligation to engage in conjugal relations (onah) while preventing his wife from severing the marital bond. Failure to be aware of these duties is grounds for liability for his wife’s foreseeable emotional distress.

Although a court is to be guided by the relative religious and/or social status of the parties in assessing tza’ar-boshet payments, such imperceptible injuries cannot be readily quantified and will result in wide variations in monetary awards.¹²⁹Tosafot, Bava Kama 86a, s.v. ke’ilu. This conclusion also applies to com­mon law; see C. McCormick, Handbook on the Law of Damages (St. Paul, MN: 1935), 88, 318–19; S. Atiyah, Accidents, Compensation and the Law (London: 1980), 213. Ought the court implement a policy of minimizing or maximizing these awards? The black-letter Halakhah sets a fixed boshet payment for certain injurious acts that are accompanied by physical contact: “If he spat and the spittle reached him, if he stripped his cloak from him … he gives him four hundred zuz … all in accordance with his dignity [viz., his status].”¹³⁰Bava Kama 8:6.

The Mishnah notes that an individual is deemed poor if he cannot pay for food and clothing for a year, which at the time came to 200 zuz.¹³¹Pei’ah 8:8–9; Mishnah Torah, Hilkhot Matnot Aniyim 9:13. Cf. Or Zarua, Hilkhot Tzedakah 14; Tur, YD 253:2. Some argue that the value of the ketubah should be equal to one year’s support; see Sma, HM 88:2; Avnei Me’luim 27:1 (in the name of Rashi and Ritva);Teshuvot Beit Avi 3:137 and R. Daichovsky, PDR, 1-213655, Feb. 22, 2005. In 2008, in New York City, using the Consumer Price Index, the 200 zuz amount would be equivalent to an annual outlay of $55,000 for food and clothing. Hence, the statutory Mishnaic compensatory damages for spitting or stripping off a cloak are $110,000 per occurrence, depending on the relative status of the parties. As understood by Talmud and later authorities, these monetary awards are the maximum sums that can be awarded for the said injurious acts.¹³²Bava Kama 91a; SA, HM 420:43. The law adopts a policy of restraint (le-kulah) vis-à-vis compensation for damage claims, including those of boshet, limiting the compensation paid out.¹³³Bava Kama 58b; Piskei ha-Rosh, Bava Kama 8:1, Bava Metzia 5:16.

Though the goal of the law stricto sensu is to compensate the victim while keeping the perpetrator’s monetary liability within reasonable limits, exigency law is resorted to for punitive purposes and deter­rence. Applying exigency law in cases where there is a claim of emo­tional distress due to the withholding of sexual relations serves two goals. As we saw, it imposes liability for a type of injury not covered by the strict law, namely, non-physical injuries unaccompanied by direct physical contact. But optimally, the system should not only compen­sate deserving victims, but also deter halakhically reprehensible behavior in the future. Referring to exigency rulings in terms of such rubrics as “protective measures” and “the times requires it,”¹³⁴See supra nn. 26–30. conveys the idea that the system is focusing on an immediate problem, and the imposition of sanctions is punitive. But deterrence is also critical. In the words of R. Natronai Gaon: “One may penalize monetarily at a minimum or at a maximum in order to prevent the increase of perpetrators in Israel. This is the tradition of rabbinic courts, and we learn from them; and this is our judicial practice.”¹³⁵R. Natronai Gaon, n. 95 above. The discretionary nature of the assess­ment, the fact that there is no mention of a policy of limiting awards, is stressed in PDR 3:131, 151; 5:322, 327, as well as in the teshuvot cited in n. 98 above. Some of these sources emphasize that the fine should be calculated on the basis of the status of the perpetrator and the status of the victim.

Given that the damages are not just compensatory, but punitive and deterrent, the amount of the award will be proportionate to the transgression in question. Taking into account the range of possible scenarios, awards for similar injuries may vary considerably from case to case. As the amount of the award is discretionary, wide variations in monetary awards will result. This variation in award is not unique to the halakhic system. In American law, for example, awards for spousally-inflicted emotional distress have ranged from $15,000 to as much as $500,000.¹³⁶Twyman v. Twyman, 855 S.W. 2d 619, 620 (Texas 1993) [trial court award]; Massey v. Massey, 807 S.W. 2d 391, 395 (Tex. Ct. App. 1991), writ denied, 867 S.W. 2d 766 (Tex. 1993); Chiles v. Chiles, 799 S.W. 2d 127 (Tex. App.- Houston [14th Dist.] 1989), writ requested [trial court award].

IV.

We have assumed that a court can hear a claim for infliction of emotional anguish prior to a wife’s receiving her bill of divorce (get). But would submission of such a claim while her husband was refusing to grant the divorce render the divorce, when ultimately granted, unlawfully coerced (get me’useh)? In our scenario, the wife lived, de facto, apart from her husband during five years of marriage, and subsequently was denied a divorce by her recalcitrant husband for over three years. Can she proceed to submit a claim for emotional distress she suffered during the five years of separation prior to seeking a divorce?

We will address this through the lens of some medieval teshuvot and contemporary rabbinic writings. R. J. David Bleich summarizes some early views and the normative Halakhah on the question of kefiyat get (coerced divorce) in other contexts:

Rashba maintains that any coercion relating to execution of a get, even if self-imposed in the form of a voluntarily assumed penalty for non-execution, renders a get invalid … This view is disputed by R. Simon ben Zemah Duran, Teshuvot ha-Rashbats (Tashbats), II, no. 68, who declares, “One who says, ‘I will give 100 gold pieces to the king if I do not divorce my wife’ may divorce his wife and there is no question in the matter, for since this obligation came of his own accord, he divorces of his own will.”¹³⁷J. David Bleich, “Indirect Coercion in Compelling a Get,” 5 Jewish Law Annual (1985), 66–67. Though according to Rashba, any voluntarily assumed penalty related to the execution of a get constitutes a forced get, some decisors maintain that even a self-imposed penalty unrelated to the execution of a get will render the get invalid; see Teshuvot Betzalel Ashkenazi 15. Cf. Torat Gittin, EH 134:4; Teshuvot Beit Ephraim (2nd ed.), EH 73; Teshuvot Ein Yitzhak 2:33:1; Hazon Ish, EH 99.

In essence, Rashba’s position is that a get is invalid when executed under duress even if such duress is indirect. Hence, duress compelling a person to fulfill a perfectly binding undertaking to pay compensation for failure to execute a religious divorce invalidates the get, since it is simply an indirect means of securing compliance in executing the get. Those who disagree with Rashba maintain either that self-imposed duress does not constitute duress or that since the enforceable demand is for financial compensation rather than for a get, a get executed under such circumstances is not to be regarded as executed under dur­ess. So long as satisfaction of a lawful claim remains a viable option in order to avoid execution of the get, execution of the get in order to avoid payment of a just debt is regarded as a voluntary act motivated by the self-interest of the husband.¹³⁸J. David Bleich, Contemporary Halakhic Problems (NY: 1989), vol. 3, 337. Obviously, a voluntary monetary obligation assumed by the husband in exchange for granting a get is valid. For example, a few years ago, the Supreme Rabbinical Court in Jerusalem validated a spousal agreement stipulating that in exchange for monetary payment, a husband would grant his wife a get. See 011588860-21-1, SRC, Mar. 6, 2005.

Rema cites both conflicting opinions and rules that a get should be executed in the absence of prior forgiveness of the penalty for non-execution, but adds that if a get has been executed under such circumstances, it is valid even in the absence of prior for­giveness of the penalty, provided that the penalty was assumed voluntarily.¹³⁹Rema, EH 134:5. See Bleich, ibid., 96. Cf. Pithei Teshuvah, EH 134:10.

Onsa de-nafshei (self-imposed duress) is the subject of much debate among the decisors. However, even under the sorts of circumstances in question, the get is valid ex post facto. The question we must address, however, is whether a wife can initiate such a claim prior to receiving her get. To be sure, there are certain types of monetary fines or incarcer­ation that do not raise concerns about get me’useh. As Rivash points out, certain kinds of pressure are not sufficiently coercive to render a divorce invalid, provided the coercive element arises from circumstances that are independent of the divorce.

The case … involved a person cast into debtor’s prison for nonpayment of a debt. His wife’s relatives offered to satisfy the debt on his behalf and thereby obtain his release from prison on the condition that he divorce his wife. Rivash finds no objection to execution of a get under such circum­stances, “for he was not seized in order to [compel] him to divorce [his wife] but on account of his debt; the get is not coerced but [the product] of free will.”¹⁴⁰Bleich, n. 137 above, 67. This conclusion presumes that the sanctions are themselves legitimate; see Teshuvot Mabit 2: 138; Teshuvot Betzalel Ashkenazi 15; Hazon Ish, EH 99:3; I. Breitowitz, Between Civil and Religious Law: The Plight of the Agunah in American Society (Westport, CN: 1993), 26. Some argue that even if the husband was incarcerated due to a financial obligation not deemed a debt in the eyes of Halakhah or the incarceration was impermissible in the eyes of a Halakhah, the divorce would be proper; see Teshuvot Rivash 127; H. Izirer, “Duress in Monetary, Criminal, and Divorce matters” [Hebrew], 5 Shurat ha-Din (1999), 309–15.

Rivash’s argument is that the husband was imprisoned for default­ing on a debt rather than as a means of compelling him to execute a divorce. Hence, his release in exchange for executing a divorce does not constitute duress, and the get is not regarded as unlawfully enforced.

Rivash takes the same approach in another teshuvah. A wife attempted to prevent her husband from leaving their locale lest she be denied her right to conjugal relations. Here, the coercion unrelated to execution of the divorce pertains to the husband’s refusal – in effect – to have conjugal relations:

We put him under nidui [a ban], or flog him until he agrees to cohabit with her. If he, of his own [free will], divorces her, in order to save himself from those [measures], it is not an unlawfully enforced get. For the court did not compel him at all to give the get, but rather, to fulfill his conjugal obligation to the best of his ability, just as he is obligated by law to fulfill the [other] commandments.¹⁴¹Teshuvot ha-Rivash 127 (transl. from Kaplan, supra n. 124, 102), accepted by Rema, EH 154:21. Rema extends Rivash’s conclusion, arguing that a rabbinical court can even indirectly coerce a husband and tell him, “either resume conjugal relations or divorce your wife.” Whereas Rivash contends that a court’s power of compul­sion is limited to the restoration of conjugal ties, Rema argues, pursu­ant to his understanding of Rivash’s position, that the court may, in articulating its “coercive” directive, allude to divorce. Note that in the case addressed in the Rivash’s teshuvah, the woman is seeking to remain married, and there is no concern about a coerced divorce. Here, the “coercion by way of choice” (kefiyah be-derekh bereirah) differs from that applic­able in the more typical case, in which the coercive choice offered to the husband would be, “either support your wife or divorce her,” a form of coercion which would not invalidate the subsequent execution of a divorce. See Beit Yosef, EH 134 in the name of Rashba; Beit Meir 117; Pithei Teshuvah, EH 154:4, 8; Iggerot Moshe, EH 1:137; PDR 1:15, 19; 9:1542, 1551.

Many authorities subscribe to the idea that kefiyah li-devar aher (coercion vis-à-vis another matter) is permissible.¹⁴²Teshuvot ha-Rivash 232; Teshuvot Tashbetz 1:1; Teshuvot Ranah 1:63. On why kefiyah li-devar aher does not constitute coercion that renders a divorce invalid, see Hazon Ish, EH 99:1; Teshuvot Bigdei Yesha, 36:5; Teshuvot Beit Ephraim (2nd ed.), EH 1:73. However, Rabbis Hayyim Zimbalist and Avraham Azulai added a caveat in a ruling handed down when they sat on the bench of the Tel Aviv District Rabbinical Court:

A young woman had married a man who was serving a four-year prison term in Israel for drug offenses. The wife petitioned for a divorce on the grounds of nonsupport and loss of consortium. The Rabbinical Court of Tel Aviv … directed the husband to execute the get but did not find any grounds … that would mandate the direct imposition of coercive sanctions, such as additional imprisonment or fines. The issue before the court was whether it was … proper to recommend parole or reduction of sentence in exchange for the husband’s executing a get . . . On the one hand, the get is the mechanism by which the prisoner may obtain his freedom, and if a person is told, “Sign the get or stay in jail,” this resembles duress. Yet because the imprisonment was for completely unrelated offenses, the failure to give a get does not, in and of itself, result in direct coercion, but simply removes the … benefits of parole that would otherwise ensue.¹⁴³Breitowitz, supra n. 140, 24.

Under these circumstances, though the imprisonment was unrelated to the delivery of the get, any recommendation of parole would render the subsequent execution of a get tainted by duress. The linkage of the parole recommendation to compliance with a rabbinical court’s direct­ive to grant a get is regarded by these decisors as coercion.¹⁴⁴They cite Pithei Teshuvah, YD 134:11, which invokes Torat Gittin, as the source for their ruling. See also Bleich, n. 147 above, 99. Cf. Teshuvot Tashbetz 1:1; Mishnah la-Melekh, Hilkhot Geirushin 2:20; Teshuvot Pnei Moshe 1:26; Pithei Teshuvah, EH 132:6. Cf. Teshuvot ha-Rivash 127; Teshuvot Ranah 1: 63; Teshuvot Pnei Yehoshua 75 and Teshuvot Beit Ephraim (2nd ed.), EH 1: 73, who argue that mention of divorce does not invalidate any subsequent execution of a get.

Others, including Rabbis Daichovsky, Elyashiv, and Rafael, see no objection to executing a divorce under such circumstances, since the husband was imprisoned for failing to repay a debt rather than as a means to compel him to divorce his wife. Since the imprisonment was unrelated to the husband’s recalcitrance in giving a get, a release from prison in exchange for the execution of a get is not, they argue, to be construed as a form of coercion.¹⁴⁵3763/38, PDR 11:300, 302–307 (R. Daichovsky); PDR 16:271, 272–279 (R. Rafael), 275–276 (R. Elyashiv).

A similar approach is upheld by R. Feinstein. As Professor Breitowitz summarizes:

In a teshuvah dated 5719 (1959), R. Feinstein dealt with the following situation: a husband and wife were civilly divorced and the husband was ordered by a court to pay alimony. Failing to meet those obligations, the husband was imprisoned. The wife then agreed to drop her alimony claim (for arrearages) and procure his release if he would execute a get, which he did. Was this a get me’useh? R. Feinstein ruled that it was not, and such a get could be executed even ab initio.¹⁴⁶Breitowitz, supra n. 140, 135, n. 391. See Iggerot Moshe, EH 1: 37. See also Teshuvot Pnei Yehoshua 2:75.

Thus R. Feinstein validates a get granted in exchange for escaping a monetary obligation unrelated to the execution of the get, namely, pay­ing maintenance (mezonot).

Rabbis Daichovsky, Elyashiv, Feinstein, and Rafael concur in sub­scribing to the view expressed by R. Moshe of Trani:

A get is only considered unlawfully enforced when [the husband] is coerced with regard to the divorce. But if he is coerced with regard to a different matter, and in order to free himself from that coercion he divorces his wife, [the get] is not regarded as unlawfully enforced.¹⁴⁷Teshuvot ha-Mabit 1:22 (translation from Kaplan, supra n. 124, 104–5). Based on this teshuvah as well as Teshuvot ha-Mabit 1:76, this con­clusion applies whether the husband is unwilling to pay the debt or incapable of paying it. See the reading of Mabit’s position advanced in Teshuvot Simhat Kohen, vol. 2, EH 9.
On the consistency of these teshuvot by Mabit with other teshuvot, he wrote on the matter (2:138 and 206), see R. Zvi Gartner, Kefiyat Get, 376–77. R. Gartner’s conclusion differs from my own. He contends that Mabit’s true position, expressed in 2:206 and 3:212, is that a husband’s inability or unwillingness to satisfy an independent financial claim does taint any subsequent execution of a divorce; see R. Gartner, ibid., EH 134, 379. Though the teshuvot on which R. Gartner bases his conclusion reflect a minority view and stand in con­tradiction to Mabit’s teshuvot 1:22 and 76, on which I base my own reading of Mabit, and though R. Gartner, in a written com­munication to this author, acknowledges that this minority view is not supported by other Aharonim, some contemporary decisors nonetheless concur with R. Gartner’s understanding of Mabit’s position. See Bleich, supra n. 138, 339; Izirer, n. 140 above, 312; Yosef Goldberg, “Duress Unrelated to Divorce” [Hebrew], 7 Shurat ha-Din (2002): 353; Teshuvot Mayyim Tehorim, EH 15; Uriel Lavi, “Arranging a Get after the Husband has Been Obligated to Pay His Wife Monetary Damages” [Hebrew], 26 Tehumin (2006), 160, 165. In endorsing R. Gartner’s interpretation of Mabit’s view, these decisors argue that we must show deference to the minority view due to the seriousness of the halakhic consequences of an invalid divorce. See J. David Bleich, “Monetary Agreement for the Purpose of Avoidance of Get Recalcitrance” [Hebrew], 41 Or ha-Mizrach (1992), 272–80.
In light of the internal contradictions in 2:138 as well as its inconsis­tency with two of Mabit’s other teshuvot, as well as the fact that other Aharonim reject this position or uphold the reading of Mabit’s pos­ition I have endorsed, I see no reason to factor it into decision-making on this matter. Indeed, neither R. Feinstein nor R. Rafael invoke this view. Though argumenta ex silentio of this sort are inconclusive, this silence of major authorities does serve to support the lenient position.

As long as the sanctions applied are, from the outset, intended to address a breach of an independent claim that is halakhically legitim­ate, and are not simply a means of pressuring the husband to grant the divorce, any subsequent execution of a get will be valid. Just as accord­ing to Rivash, social shunning of one who fails to have conjugal relations with his wife does not create a get me’useh, so too compensating the wife for mental anguish engendered by denial of conjugal relations does not taint any subsequent divorce.

What about a sanction that is ostensibly independent of the get, but employed for purposes of compelling the get? Is the kavanah (intent) to introduce an independent claim at a particular point in time relevant in determining whether a divorce is coerced? How is intent to be ascertained – by noting whether anything is said about divorce when the independent claim is made, by judging the wife’s actions, or by inference from the circumstances? Some argue that even if divorce is merely mentioned, this indicates that the intent of the independent financial claim is to induce the husband to grant the divorce. If divorce is not mentioned, we can assume that the intent of advancing the finan­cial claim is to have it settled, rather than for it to serve as leverage toward procuring a get.¹⁴⁸Iggerot Moshe, EH 1:137, s.v. veto muvan; Teshuvot Ein Yitzhak, EH 2:33:1–6; Gartner, ibid., 379, 386.

Others contend that the focus must be the claim itself. Emotional distress generated by refusal to grant a divorce, financial coercion and blackmail on the part of the husband in the course of the negotiations, and the anguish arising from years of divorce litigation cannot serve as grounds for a monetary award. Claims for compensation for these injuries are related to the get and therefore contravene the requirement that the get be freely given. However, mental anguish due to the absence of conjugal relations is an independent claim, and therefore may be grounds for granting an award. The point in time at which the wife submitted the claim or her verbal remarks linking the claim to receiving a get need not be considered by the court. As we have seen, such a claim may be advanced even where divorce is not contemplated.

In our scenario, a couple had been living separately under the same roof for five years. Though the wife would have liked to engage in conjugal relations with her spouse, her husband willfully refused to have rela­tions. For the sake of their children, the couple remained outwardly married while in actuality living separately. In principle, at any time during this period of separation, the wife could have chosen to submit a claim against her husband for intentional infliction of mental anguish. For various reasons, she chose to refrain from advancing such a claim prior to deciding to be divorced, but the grounds for such a claim did exist throughout the five years of de facto separation. In other words, this claim is inextricably linked to the emotional stress engendered due to the absence of conjugal relations within their mar­riage, and not introduced merely for the sake of pressuring her hus­band to grant the divorce. The fact that subsequent to her years of anguish, the wife is being held hostage by her husband’s recalcitrance, financial coercion, and blackmail ought not impact the legitimacy of her claim, and should not serve to invalidate any subsequent execution of a divorce. Her intent in advancing the claim at this time, three years after the court’s issuance of a divorce directive, is halakhically insignificant.

Others disagree, and invalidate any get executed subsequent to the wife’s recourse to such a claim for damages. They maintain that even though a self-standing claim, such as a claim for payment of a monet­ary debt or the amount specified in the ketuba, is not linked to a request for execution of a divorce, nevertheless, if there is an established pre­sumption (umdena de-mukhah) that these claims were put forward pri­marily to procure a divorce, any subsequent delivery of a get is invalid.¹⁴⁹Teshuvot Maharashdam, EH 63; Teshuvot Rav Pe’alim 2:3. In a recent decision handed down by the Jerusalem Supreme Rabbinical Court, R. Zion Algerbli states:
There is no reason for reluctance to submit to the court a claim for tort damages for boshet and the like due to one spouse’s neglect of the other … even if the claim is procedurally linked to [i.e., submitted along with] a claim for divorce. However, it must be clear that the tort claim was not submitted for the purpose of pressuring the husband to grant a get . . . Only a rabbinical court may determine whether this claim impacts the propriety of the get. (7041-21-1, SRC, Mar. 11, 2008)
If, in the eyes of the court, the claim is self-standing and not intended to coerce the granting of a divorce, any subsequent granting of the divorce is proper. On the other hand, Teshuvot Ranah 1:63; Teshuvot Beit Ephraim, EH 1:73; Teshuvot ha-Mabit 1:22; and Teshuvot Pnei Yehoshua 75 all contend that the intent is irrelevant and the subsequent divorce proper. However, our situation is readily distinguishable from situ­ations in which such a presumption is warranted. In our case, even if the ostensibly independent claim for damages for emotional distress was motivated by the desire to procure a divorce, it is a claim, and not an existing obligation. In the other situations, the husband grants the divorce in exchange for the wife’s agreement to release him from a financial duty, in effect saying to him, “Pay up or grant a get.” Our case deals with the advancement of a claim that may or may not result in the awarding of damages.¹⁵⁰Many decisors contend that a husband who gives a divorce due to a threat is deemed to have been forced to grant the get; see Teshuvot ha-Rashba 2:276; Teshuvot Maharival 2:77; Teshuvot Shem Aryeh 93–94; Teshuvot Avnei Nezer, EH 178:2–3; Pithei Teshuvah, EH 134:15 in the name of the Ridbaz. But these rulings are readily distinguishable from our case, since all deal with situations of “clear and present danger” – that is, these are cases in which a husband is being threatened with harm, imprisonment, or death if he refuses to consent to a divorce, and hence all are indeed instances of unlawfully coerced divorce. By contrast, in our case, the husband is threatened by a monetary claim too remote to rise to the level of compulsion, and especially since the amount of the potential award to the wife is, as we saw, highly variable. As Tashbetz comments, “If he has a remote fear of financial loss and therefore desires to give a get, ought one label this a coerced get?” See Teshuvot Tashbetz 2:69. Indeed, the wife may threaten to submit a claim and never follow through with her threat; see Mordekhai, Gittin 395; Teshuvot Maharik 185; Mikhtav me-Eliyahu, gate 7, no. 18. But cf. Teshuvot ha-Rashba 1:883; Teshuvot ha-Rivash 27 and 32; and Teshuvot Betzalel Ashkenazi 15, which argue that even a mere threat constitutes duress. See also Kaplan, supra n. 124, 98.
Obviously, if the rabbinical courts do begin to award damages for this claim, and it becomes a “clear and present danger” akin to the threat of imprisonment, the threat that such a claim will be submitted may render execution of the get coerced. However, even were such an award to become commonplace, the amount of the compensation would not be known in advance, and hence the threat remains remote; see Breitowitz, supra n. 140, 248. Moreover, if a wife threatens to cause her husband financial loss out of spite, and the husband, of his own initiative, decides to give her a get, her threat is not deemed duress, and the get is valid. See Pithei Teshuvah, EH 134:11; Iggerot Moshe 1:137. A fortiori, in our case, a wife’s submission of an independent claim for damages unrelated to the divorce ought not impugn the validity of a subsequent get. Similarly, if there has been no threat to submit such a claim, but the husband grants the divorce because he fears that such a claim will be made if he fail to do so, this is not deemed to be duress; see Teshuvot Bnei Hayai, HM 2:81. Since the consequences of the suit are not spelled out in advance, the putative “coercion” is too remote to rise to the level of duress. Whereas the said authorities invoke an established presumption in the context of an existing independent outstanding debt, which does entail coercion of a get, in our case there is no such existing debt, but only the threat that a claim for damages may be presented to the court.

Moreover, on its face, the advancement of her claim for monetary damages in order to coerce her husband to grant a get is analogous to the case of a husband who receives money in exchange for a divorce, which does not render the resulting divorce a get me’useh. As R. Rafael elucidates:

One is allowed to release from imprisonment someone who is serving time for contempt of the rabbinical court [failing to produce information requested by the court], and condition his release on his giving his wife a get. For his imprisonment is not related to his recalcitrant refusal to grant the get, but is, rather, punishment for contempt of court, and he is redeeming himself by giving the get. And at the time, R. Elyashiv agreed with me.
One can promise a prisoner that his term of imprisonment will be reduced by a third in exchange for giving a get . . . and I hear from R. Elyashiv, long may he live, that it is clear that this is not considered a coerced divorce, and it is like [the case of] a wife who purchases her get for a certain sum of money – such a get is entirely acceptable (kosher le-mehadrin).¹⁵¹PDR 16:271, 275–276. Whether R. Elyashiv and R. Rafael would agree that a husband’s failure to heed the rabbinical court’s ruling that he should divorce his wife constitutes contempt of the rabbinical court that may be punishable by imprisonment, and whether they would agree to a release in exchange for his granting a get, is an open question. The logic of their positions would seem to imply such a conclusion, but they have not specifically addressed the question of whether failing to heed a court’s divorce judgment constitutes denigration of the court; see infra at nn. 159, 170, and 176.

In various rabbinical judgments “obligating divorce,” R. Elyashiv permits a husband whose wife does not wish to accept a bill of divorce to appease his recalcitrant wife by offering money in exchange for her accepting the get; the ensuing divorce is not deemed to be unlawfully coerced.¹⁵²PDR 7:111; 8:36; 9:65. R. Avraham Sherman, a student of R. Elyashiv, subscribes to his position; see 2337, SRC, Dec. 27, 2004. See also Teshuvot Tashbetz 1:1; Teshuvot ha-Rosh 35:2; Teshuvot Hemdat Shlomo, EH 80(2); Teshuvot Tzemah Tzedek 262–263; Teshuvot Yabia Omer, vol. 6, EH 10. For a contemporary exposition, see the advisory opinion of R. Shimon Ya’acobi, legal advisor for Israel’s Rabbinical Courts Administration, in Bagatz 2609/05, Plonit v. Supreme Rabbinical Court et al. Teshuvot in Tashbetz, Torat Gittin, and Noda be-She’arim (R. Dov Berish Ashkenazi) attest to the not-uncommon phenomenon of wives absconding with their recalcitrant’s husband’s assets and releas­ing them only upon receiving a get. It is hardly, if ever, claimed that these were improper inducements that rendered the divorces coerced.¹⁵³Teshuvot Tashbetz 4:35; Torat Gittin 134:4; Teshuvot Noda be-She’arim 6. See also Pithei Teshuvah, EH 134:11 in the name of Rashbatz. Some authorities argue that if the wife has stolen large sums from her husband and is willing to return the money in exchange for a divorce, the sub­sequent execution of the divorce is indeed coerced; see Teshuvot Tzemah Tzedek, EH 262:3. Financial inducements, whether to appease a recalcitrant husband or a recalcitrant wife, do not contravene the strictures against coerced divorce.

R. Ezra Batzri, a Jerusalem rabbinical court judge, analyzes the dynamics of such a situation as follows:

Should a rabbinical court be aware that the husband is interested in divorcing his wife, his intent to extort monies from her … constitutes coercion by way of unjustified extortion of money from the wife. Essen­tially, [any steps the court takes] do not coerce him to divorce her, since he desires to divorce his wife. He is employing the divorce as a means to achieve things improperly … As long as the husband is not interested in peace and the court is aware that the purpose of delaying the get is not to foster peace with his wife, but on the contrary, to cause pain and take revenge on her or extort from her monies that do not rightfully belong to him – in such a situation, there is no apprehension that the divorce is coerced.¹⁵⁴PDR 18:71, 81. See also Teshuvot Heikhal Yitzhak, EH 158; Teshuvot Tiferet Tzvi, EH 102; Iggerot Moshe, EH 3:44; Gartner, n. 147 above, 244; Teshuvot Shema Shlomo, vol. 1, EH 15:3; Haifa District Rabbinical Court, 050562289-13-1. The same rationale is given in the context of a wife har­assing her loving husband to grant her a divorce; see Arukh ha-Shulhan, EH 134:22; Haifa District Rabbinical Court, 061391348-21-1.

In short, financial inducements to procure a divorce do not render the divorce coerced. In effect, a wife’s willingness to waive an award for mental anguish in exchange for her get is no different than forgiving a debt or transferring cash for a delivery of a get. Hence, a wife’s claim for damages for mental anguish due to her husband’s denying her conjugal relations during the years the two were living under the same roof prior to the divorce ought to be permissible.¹⁵⁵Note that those authorities who argue that any discussion and/or arrangement to waive this claim in exchange for delivery of the get would render execution of the get coerced would insist that there be no discus­sion of the get when the claim is submitted.

Given that such a claim can be put forward, how does the court proceed? Once both the husband and the wife obligate themselves to submit to the court’s resolution of the wife’s claim for mental anguish,¹⁵⁶The parties’ signing of an arbitration agreement (shtar borerut) gives the court the authority to resolve this matter; see Rema, HM 12:7; Sma, HM 12:18; Yoezer Ariel, “The Halakhic Need for a Shtar Borerut” [Hebrew],14 Tehumin (5754),147, 152; Mishpatekha le-Yaakov 2:405–406; Zvi Lifshitz, “Compensation for Verbal Embarrassment” [Hebrew], 17 Tehumin (5757), 381, 388. Assuming this decision complies with the rules of secular arbi­tration procedure, it would be legally enforceable in a competent civil jurisdiction in the United States; see Uniform Arbitration Act, sec. 1.
To address claims for emotional distress, an arbitration agreement that will be halakhically binding on both parties as well as legally enforceable in civil courts should include the following clause:
The parties acknowledge that the beit din is authorized to resolve all disputes, including, but not limited to, a spouse’s refusal to engage in conjugal relations, coercion of the other spouse to engage in con­jugal relations, distribution of assets, spousal support, child support, child custody and a spouse’s refusal to give the other spouse a Jewish divorce or receive a Jewish divorce from the other spouse.
Signing off on this clause can be construed as a threat that either spouse may in the future assert a claim for mental anguish due to having been denied conjugal relations during the period the divorce was withheld. As we have seen, this type of threat will not impair the legitimacy of the sub­sequent execution of a get in order to stave off this claim or payment of an award for this claim. The divorce is valid provided that any monetary award, such as damages for tza’ar-boshet, is self-standing and independent of the get. See Daichovsky, supra n. 169, 300, and idem., “Monetary Steps of Enforcement Against Mesarvei Get” [Hebrew], 26Tehumin (5766), 173–7. the court proceeds to address the claim on the merits. Upon deliberation, should the court rule in the wife’s favor and hand down an award, it will direct the husband to pay this award. Should the husband refuse to pay the tza’ar-boshet award, the award can be enforced in civil court. On the other hand, should the husband accept the rabbinical court’s decision, he has the option of suggesting to his wife that in exchange for a divorce, she waive her entitlement to the monetary damages awarded her by the court; the resulting get will not be tainted by coercion.¹⁵⁷See supra at nn.153–155. See also Teshuvot Beit Ephraim, vol. 3, EH 73 (288a-b); Teshuvot Zera Anashim, 36; Teshuvot Tashbetz 1:1; Teshuvot Hemdat Shlomo, EH 80. However, to avoid any concerns that the divorce will be deemed coerced, the monetary award should not be “excessive” and should be tenable given the husband’s financial situation.¹⁵⁸According to R. Yitzhak Herzog, a get executed in order to escape an exorbi­tant support obligation would run afoul of the strictures of a get me’useh. However, if the stipulated sum is within the husband’s ability to pay, his decision to grant a get is considered voluntary; see Teshuvot Heikhal Yitzhak, EH 1:1, 2. Analogously, as long as the tza’ar-boshet award is nei­ther unreasonable nor exorbitant, it will not render the divorce coerced.

What happens if a husband refuses to proceed to beit din concerning a wife’s claim for mental anguish due to denial of conjugal relations? Upon the court’s determination that the husband’s refusal to comply is unwarranted, the beit din will issue a “contempt of court” order (shtar seruv), with all its attendant consequences,¹⁵⁹Refusal to comply with a court decision or being declared in contempt of court (mesarev le-din) makes one subject to being placed under a ban (nidui); see SA, HM 11:1; Iggerot Moshe, YD 3: 142:2; PDR 11:168–181; SA, YD 334:43; Teshuvot Maharil Diskin, rulings, 52; Teshuvot Hatam Sofer, HM 177. and a dispensation for the other party to initiate proceedings in civil court (heter arkha’ot).¹⁶⁰SA, HM 26:2; Arukh ha-Shulhan, HM 26:5; Teshuvot ha-Rema 52; Teshuvot Maharsham 4:105. Others contend that generally or under certain condi­tions, a dispensation is not even required; see Sefer ha-Terumot, Gidulei Terumah, gate 62:3; Tumim, HM 26:7; Kesef ha-Kodshin, SA, HM 26; Teshuvot Tuv Ta’am va-Da’at 3: 261; Teshuvot Maharil Diskin, rul­ings,13. Though some decisors will allow a person to approach a rabbi for a heter arkha’ot, the customary practice today is to request permission from the court; see Asher Weiss, “Permission to Litigate in Civil Court” [Hebrew], 5 Kovetz Darkhei Hora’ah (2006), 99, 102. Whether one requires permission from a panel of three dayanim or it suffices to receive permission from the presiding head of the court (av beit din) or a single dayan appointed by the community is subject to debate; see Teshuvot Maharsham 4:105; Orah Mishpat, HM 26:2; Teshuvot be-Tzel ha-Hokhmah 4:37. Whether one approaches a court or one’s own rabbi, it behooves the authority to hear both sides of the matter prior to issuing any dispensation to litigate in a secular court; see Pithei Teshuvah, HM 67:5; Sefer Meishiv ba-Halakhah, 38–40. Alternatively, prior to the wife’s request to have the beit din address this claim, she may ask a rabbi who has expertise in Even ha-Ezer and Hoshen Mishpat whether she can proceed to civil court without a beit din’s permission, or, if a heter arkha’ot is required, whether she may approach the beit din that dealt with her claim or whether she is allowed to approach another beit din to request permission to have her claim heard in civil court. Note that a heter arkha’ot does not mean that the wife has a carte blanche to advance any and all claims in civil court. Only if the claim is legitimate in the eyes of the Halakhah can it be asserted in civil court.¹⁶¹Should a party recover money in civil court that he would not have been awarded in a rabbinical court, it is viewed as stolen and must be returned to the other party; see Teshuvot Tashbetz 2:290; Teshuvot Hut ha-Me­shulash 1:19; SA, HM 28:3; Teshuvot Rabbi Akiva Eiger, HM 26:1. There is an opinion that in cases of boshet, one can recover a civil monetary award which would exceed the amount awarded by a beit din; see Kesef ha-Kodshin, HM 26:2. According to most authorities, this heter arkha’ot is granted whether we are dealing with a claim that is provable (hov barur), e.g., by a creditor’s producing an authenticated document of indebtedness, or whether the claim is dis­puted, e.g., a claim for injuries. See Teshuvot Imrei Bina 27; Yeshuot Yisrael 26:2; Teshuvot Orah Mishpat 26:2. In the opinion of Netivot ha-Mishpat, which argues that a disputed claim cannot be resolved in civil court, a claim for damages for mental anguish may not be resolved there; see Netivot ha-Mishpat, HM 26: Hiddushim (8) and Bi’urim (3). However, I would sug­gest that a claim for damages for mental anguish is to be subsumed under the category of provable claims, given that the abstention from sexual relations is a halakhic fact; see supra n. 73.

On being summoned to the civil proceeding, can the wife assert a claim against her husband for recklessly causing her severe emotional distress in connection with their years of divorce litigation? In fact, there have been a few instances of Jewish wives lodging claims in American courts against their Jewish spouses who wrongfully refused to grant a get, thus inflicting emotional distress.¹⁶²Roth v. Roth, #79-192709-DO (Mich. Cir. Ct. Jan. 23,1980); Perl v. Perl, 126 A.D. 91, 512 N.Y.S. 2d 372, 1987 N.Y. App Div.; Weiss v. Goldfeder, New York Law Journal, Oct. 26, 1990; Golding v. Golding, 176 A.D. 2d 20,581 N.Y.S. 4,1992 N.Y. App Div.; Giahn v. Giahn, New York Law Journal, Apr. 13, 2000, N.Y. Supreme Ct. Are such claims halakhically legitimate or do they risk tainting a subsequently executed get? Addressing a French court’s award of compensation for a hus­band’s failure to execute a Jewish divorce, contemporary decisors, fol­lowing earlier authorities, have construed such an award as a classic example of financial compulsion (ones mamon), viz., indirectly securing compliance in executing a get by exerting financial pressure.¹⁶³In D. v. France, 35 Eur. Comm. H.R.D.R. 199 (1983), the husband had been ordered by a French court to pay his ex-wife 25,000 francs to compensate her for his refusal to deliver a get. See Teshuvot Shevet Ha-Levi, vol. 5, EH 210; Teshuvot Minhat Yitzhak 8:136; 7041-21-1, Plonit v. Ploni, SRC, Mar. 11, 2008. For a survey of civil jurisdictions worldwide that have awarded such compensation, see Bruker v. Marcovitz, 2007 SCC 54 (CanLII).

The qualms expressed regarding the aforementioned claim do not apply to our claim for mental anguish due to denial of conjugal relations during marriage. As I have argued, such a claim is made solely to protect the wife’s emotional integrity. Hence, just as a rabbinical court may deliberate on the merits of such a claim, so too such a claim, submitted to a civil court, may be addressed on the merits.¹⁶⁴The tort of intentional infliction of emotional distress (IIED), independent of physical harm or impact, has been recognized in all US states; see Robert D. Sack, Sack on Defamation: Libel, Slander and Related Problems, 3rd ed. (NY: 2005), §13.6, pp. 13–45. It appears that no action for damages for precluding a spouse from engaging in sexual relations has ever been brought before an American court. Whether American courts would rec­ognize such emotional harm is an open question. Many jurisdictions are increasingly recognizing IIED tort actions between spouses; see L. Karp, Domestic Torts: Family Violence, Conflict and Sexual Abuse (rev. ed. 2005), vol. 1, 116. New York does not allow such claims; see Xiao Yang Chen v. Fisher, 843 N.E. 2d 723 (N.Y. 2005). Some jurisdictions have concluded that the defendant’s conduct failed to be outrageous enough to allow the plain­tiff’s claim for IIED; see Hassing v. Wortman, 333 N.W. 2d 765 (Neb. 1983); Nagy v. Nagy, 210 Cal. App. 3d 1262 (Cal. 1989); Alexander v. Inman, 825 S.W. 2d 102 (Term. 1991); Ruprecht v. Ruprecht, 599 A. 2d 604 (N.J. 1991); McCul­lob v. Drake, 24 P. 3d 1162 (Wyo. 2001). Other states have held husbands liable for emotional distress, provided there was harassment or assault and battery; see Karp, 118–135. Recently, a court awarded damages for IIED to a wife whose husband refused to grant her a get; see Tessler v. Zadok, #2:08-cv-05695-R-RC (California District Ct., May 11, 2009).
Some states have, for public policy reasons, refrained from permitting such suits in general, and in particular those that emerge from marital differences; see Linda Berger, “Lies Between Mommy and Daddy: The Case for Recognizing Spousal Emotional Distress Claims Based on Domestic Deceit that Interferes with Parent-Child Relationships,” 33 Loyola of Los Angeles Law Rev. (2000), 459, 467–70; I. Ellman and S. Sugarman, “Spousal emotional abuse as a tort?” 55 Maryland Law Review (1996), 1269, 1285–89; B. Redman, “Jewish Divorce: What Can Be Done in Secular Courts to Aid the Jewish Woman?” 19 Georgia Law Review (1985), 389, 422–23; R. Orsinger, “Assert­ing Claims for Intentionally or Recklessly causing Severe Emotional Distress in Connection with Divorce,” 25 St. Mary’s Law Journal (1994), 1253, 1293–94. In a written communication, Marc Stern, formerly General Counsel of the American Jewish Congress, observes that given that certain states have a policy of precluding interspousal damage awards, a court may decline to enforce an arbitration award based on public policy grounds; see Aleem v. Aleem, 2008 WL 1945345 (MD 2008).
Numerous proposals for and against limiting recovery for emotional distress have been put forward. On the grounds for recognition of the tort, see Restatement (Second) of Torts, sec. 46, comments d, e, f and j (1965). As to the argument that First Amendment problems of entanglement of law and religion preclude the possibility that a civil court will offer relief to a recalci­trant spouse in the context of a Jewish divorce, it has been argued that there is a compelling secular interest to afford such relief; see S. Friedell, “The first amendment and Jewish divorce: A comment on Stern v. Stern,” 18 Journal of Family Law (1979–1980), 525; Redman, 416–25; David Cobin, “Jewish Divorce and the Recalcitrant Husband: Refusal to Give a Get as Inten­tional Infliction of Emotional Distress,” 4 Journal of Law and Religion (1986), 405, 425–29; Michelle Greenberg-Kobrin, “Civil Enforcement of Religious Prenuptial Agreements,” 32 Columbia Journal of Law and Social Problems (1999), 359. On the other hand, Marc Stern contends that entertaining such claims entails entanglement of law and religion on two separate grounds: (a) Awarding such a claim involves addressing the threshold issue of whether the Halakhah mandates the grant­ing or receiving of a get; (b) The granting of such an award amounts to the state’s coercing an individual to comply with a religious act.
In Israel, given that the dissolution of Jewish marital ties is effected via execution of a Jewish divorce, the constitutional issue of establishment of religion does not arise. In fact, commencing with 2001, four judges have awarded tort damages against a recalcitrant spouse; see 19480/05, Jerusalem Family Court, Apr. 30, 2006. For additional cases after 2006, see Addendum A. Furthermore, even if it can be demonstrated that the civil court will award more damages than a rabbinical court would, the wife may retain the entire award handed down by a civil court.¹⁶⁵Kesef ha-Kodshin, HM 26:2. In the view of Rabbis Daichovsky, Elyashiv and Z. Goldberg, prior to accepting an award from a civil court, one must ascertain the appropriateness of the amount of the award. Generally speaking, one must ask his rabbi whether the amount of the award would have been granted in a rabbinical court. If a rabbinical court would have awarded a smaller amount, then only that amount may be accepted; see M. Ralbag, “Litigating in Civil Court with the Rabbinical Court’s Permis­sion,” [Hebrew] 25 Tehumin (5765), 249, 251–52. However, in our case, given that it is permissible to accept a civil court award for an amount larger than may have been awarded in a rabbinical court, there is no requirement that one’s rabbi be consulted about the propriety of accepting the civil award.

V. Concluding Remarks

We have focused on a particular type of contemporary agunah: the wife who seeks damages for mental anguish caused by her husband's refusal to engage in conjugal relations while a divorce is being withheld. This raises a question: given that the primary emotional trauma is due to her husband’s recalcitrance in granting a divorce rather than the denial of conjugal relations, may the wife put forward a claim for damages for this period without rendering a subsequent divorce unlawfully coerced (get me’useh)? More broadly, may a con­temporary agunah, even one who shares a domicile with her husband, but decides to seek a divorce due to irreconcilable differences or spou­sal abuse, and is met by intransigence on the part of her husband, advance a claim for mental anguish incurred during the period of her husband’s recalcitrance? In effect, may an agunah seek claims for emotional stress from her husband for the period of her inability to remarry and engage in conjugal relations with her husband?¹⁶⁶This claim may be grounds for an award in one of the following ways. First, there is a woman’s compelling desire to be married. Alternatively, an individual who prevents another individual from performing a mitzvah can receive damages min ha-din (black-letter Halakhah) rather than as a kenas (fine). For a discussion of these claims, see the addendum at the end of this chapter. We have argued that as long as the monetary obligation is not linked to the divorce, but independent, and the penalty will remain in place after the get has been granted, execution of the get will be deemed proper. In the words of Torat Gittin:

If he obligated himself with a penalty, should he fail to divorce her by a specific date, and he retracted and refused to divorce her until after the stipulated date, once the stipulated date passes he becomes obligated to pay the penalty even if he divorces her … And the court can mandate the penalty, and it is akin to coercing someone to pay his debt, and if he divorces her in order to free himself from paying the debt, the get is not deemed a forced get, as noted by Rashbatz.¹⁶⁷Torat Gittin, EH 134:4.

The reasoning is that while monetary pressure is improper if the granting of the get will free the husband of his monetary obligation, if the penalty will have to be paid regardless of the giving of the get, then financial pressure is not the motivating factor in his granting the get and will not taint its execution. The wife may be willing to waive her right to the money in exchange for the get. Such a waiver is proper and no different from what transpires when the court has mandated that a husband pay a debt unrelated to the divorce, such as the ketubah pay­ment, and the couple mutually agree to waive payment of the ketubah in exchange for the get.¹⁶⁸See Bleich, supra n. 147, 272–6.

In light of teshuvot dating back to Rivash, and in light of Torat Gittin’s exposition of the Halakhah, R. Daichovsky argues that a wife may collect tza’ar-boshet damages for the mental anguish caused by her hus­band’s conduct. As these damages relate to the husband’s conduct in the past, even if he decides to grant his wife a divorce, the damages stand and must be paid. And even if the wife waives her right to these damages, this decision will in no way impair the fitness of the get.¹⁶⁹S. Daichovsky, “Rabbinical Courts and Civil Courts: Thoughts on Their Overlapping Boundaries in Family Matters” [Hebrew], 4 Moznei Mishpat (2005), 261, 295–98; idem. 2006, supra n. 156, 173–7. But cf. Shevet ha-Levi and Minhat Yitzhak, supra n. 163, who argue that secular legislation mandating an award for a husband’s recalcitrance in granting a get is improper monetary pressure that would taint subsequent execution of the get. Recent Israeli rabbinical court rulings have refused, on similar grounds, to mandate delivery of a get in the face of such tort claims presented by women in the Israeli civil courts. See Tel Aviv District Rabbinical Court, 031783426, Aug. 4, 2005, 02786214-2, Dec. 6, 2006; Netanya District Rabbinical Court, 054568514, Jan. 29, 2007. These decisions and others can be found in ha-Din ve-ha-Dayan 19 and 27. For the most recent decision, see Netanya Rabbinical Court, 272088/6, Jan. 23, 2011. (In a situation in which it is clear that the husband is voluntarily delivering a get to his wife, the presence of a tort claim for get recalcitrance will not impact the validity of the get. See Tel Aviv Rabbinical Court, 364836/1, Nov. 24, 2009). However, given that the award is based on a free-standing obligation to compensate the wife for tza’ar-boshet, these decisors may well concur with R. Daichovsky’s view. On other potential challenges to R. Daichovsky’s position, see Daichov­sky, op. cit., 299–301. Should a husband refuse to submit to the rabbinical court’s authority, a claim for damages due to tza’ar-boshet may be submitted to a civil court, and given the husband’s failure to heed the rabbinical court’s recom­mendation that he divorce his wife, R. Hadaya suggests that monetary penalties may be imposed on the husband for contempt of court.¹⁷⁰Teshuvot Yaskil Avdi 6:96. In addition to being in contempt of court (mesarev le-din), the husband is also violating proscriptions against deni­grating a Torah scholar and dayan; see SA, YD 243:6–7, 334:47; HM 27:1–2. In fact, in serving as a dayan in the Israeli rabbinical courts, R. Daichov­sky has, pursuant to Jewish and Israeli law, directed the civil authorities to imprison recalcitrant husbands. See S. Daichovsky, “Divorce Enforce­ment” [Hebrew], 25 Tehumin (5765),132, 138–43. The underlying premise of this position is that imprisonment in contemporary prisons does not render a divorce unlawfully coerced; see Amud ha-Yemini 19 (R. Yitzhak Herzog’s opinion); Mishpetei Shaul 36; Teshuvot Yabia Omer, EH 3:20:34.

What is the purpose of providing an award for emotional distress to this present-day agunah? First, it is an opportunity to bring an action that provides public recognition of the intrinsic value of human dignity by formally acknowledging its violation. By invoking exigency Hala­khah, the rabbinical court is attempting to mitigate the emotional suffer­ing, and particularly the humiliation, of a vulnerable victim who is denied conjugal relations and whose husband’s intransigence pre­vents her from in receiving a divorce and remarrying.

The avoidance of shame and psychological torment is a central principle of other realms of Jewish living.¹⁷¹See Alfred Cohen, “The Valance of Pain in Jewish Thought and Practice,” 53 Journal of Halacha and Contemporary Society (2007), 25, 30–35, 47–50. For instance, despite the proscription against hurting and endangering oneself, to avoid shame and relieve mental discomfort, certain types of cosmetic and plastic surgery are permissible.¹⁷²Tosefot, Shabbat 50b, s.v. bishvil; Teshuvot Helkat Ya’akov 3:11; Teshuvot Mishnah Halakhot 2:246–247; Teshuvot Minhat Yitzhak 6:105:2. Protec­tion of a woman’s dignity should also be extended to her emotional persona. The awarding of these damages for mental anguish gives symbolic recognition to the significance of a wife’s bodily and emo­tional integrity. Though monetary damages may not be equivalent to the emotional injury experienced, they can serve as a symbolic means of restoring a sense of personal security and autonomy.

Furthermore, a successful suit can publicly reprimand and eco­nomically penalize a recalcitrant husband who unjustifiably withholds conjugal relations (onah) and/or a get, thereby deterring other members of the community from committing the same offenses. Realizing that there may be a suit filed for this action, a husband may think twice before refusing to engage in sexual relations with his wife or withhold­ing a get. Finally, if the suit is successful, the award will compensate the wife to some degree for the emotional loss caused by the said assaults on her psyche.¹⁷³The primary function of tort damages is to compensate the victim for injuries, restoring him to the position he occupied prior to the tortious act; see Hiddushei Rabbi Hayyim ha-Levi, Hilkhot Toein ve-Nitan 5:2; Yisrael Gustmann, Kuntresei Shiurim, Bava Kama, shiur 6. Com­pensation for medical expenses falls under this rubric; see Maggid Mishnah, Hilkhot Hovel u-Mazik 2:16; SA, HM 420:23. In contrast, tza’ar and boshet, which are non-physical injuries, are compen­sated by imposing a monetary penalty; see Mishnah Torah, Hilkhot Hovel u-Mazik 3:3. Clearly, given that there is no possibility of restoring the wife’s emotional persona to its state prior to the hus­band’s denial of conjugal relations, the only compensation can be a mon­etary penalty.

For all these reasons, prior to endeavoring to resolve a divorce situation, the court should inform the parties that adjudicating spousal claims for emotional distress is within its purview.¹⁷⁴In other words, the claim or the possibility of a future claim will be incorporated into the arbitration agreement accompanied by a provision empowering the rabbinical court to obligate the parties to deal with a husband’s refusal to engage in conjugal relations; see supra at n.156. Indeed, rabbinical courts should insist that resolving end-of-marriage issues includes addressing spousal claims for mental anguish. Should a party refuse to arbitrate such a claim, a court should decline to address the other issues pertaining to termination of the marriage. Failure to insist on an all-or­ nothing approach simply encourages the already pervasive phenom­enon of shopping around for the “right” rabbinical court – namely, one that serves the husband’s needs rather than addressing all the issues in an honest and forthright fashion. Just as the court should insist on hearing all claims associated with the end of marriage, a woman should insist that all of her claims be heard in court.¹⁷⁵If the decisional standards have failed to establish that there is “an exigency situation” in order for a beit din to hear claims for tza’ar-boshet (see supra, text accompanying nn. 22–59), an arbitration agreement (as well as a prenuptial agreement; see supra n. 156) may be drafted to entail the undertaking of an obligation (hithayvut) by the parties to advance such claims. In effect, the parties obligate themselves to pay tortuous damages such as tza’ar and boshet based upon a hithayvut rather than the laws of damages. Such a stipulation would not necessitate the need to address the systemic issue of meting out damages in contemporary times. See Avraham Sheinfield, Torts [Hebrew] (Jerusalem: 1991), 362–3 (R. Zalman N. Goldberg’s opinion). For the underpinning of such a view in the Shulhan Arukh and Rema’s rulings, see SA, HM 55:1; 175:40; Rema, HM 386:3; 388:2. For additional sources, see Sheinfeld, ibid., 74–75, 246, 377.
In principle, such an obligation may be executed via a mutual verbal commitment of the parties; see Teshuvot Divrei Hayyim 1: 42; Teshuvot Maharash Engel 7:168. In practice, to preempt the possibility of a potential future challenge to the authenticity and veracity of this commitment, this mutual obligation should be recorded into writing. The text of such an arbitration agreement or prenuptial agreement would include the following:
The parties acknowledge that the beit din is authorized to resolve all disputes related to a spouse’s refusal to engage in conjugal relations, coercion of the other spouse to engage in conjugal relations against her will, and a spouse’s refusal to grant or receive a Jewish divorce from the other spouse according to their discretion, pursuant to the circumstances, and obligate themselves now (meshabed nafshei mei-achshav) to pay tortuous damages such as nezek, tza’ar and boshet, should they be imposed by beit din.”
In effect, the parties obligate themselves to pay tortious damages on the strength of this undertaking (hithayvut), rather their covenantal duty to comply with the laws of damages. See Aruch ha-Shulhan, HM 1:13; Teshuvot Imrei Bina, HM 2; Teshuvot Beit Yehuda 1; Mishpatekha le-Ya’akov 2:32:3; R. Zalman Nehemiah Goldberg, Yeshurun 11 (2002), 602–3; and text accompanying n. 3 in Addendum B below.
Cf. Sha’ar ha-Mishpat 1:1; Pithei Teshuvah 1:3; Zeit Ra’anan 2:46:1; Mishkenot Ya’akov, HM 1.

On the other hand, a court’s refusal to hear the claim – and if justi­fied, to award damages – effectively bestows on the injurer a kind of “halakhic entitlement” to cause the injury. The perceived weakness of the rabbinical courts can only lead to increased violation of the law, because others are seen to violate the law with impunity. Given the prevalence of the phenomenon of chained wives in contemporary soci­ety, it is not surprising that twentieth century decisors such as Rabbis Herzog and Hadaya stress the obligation to heed the words of Torah scholars (mitzvah li-shmo’a le-divrei hakhamim) regarding compliance with a court’s issuance of a divorce judgment.¹⁷⁶Teshuvot Heikhal Yitzhak, EH 1:1:5; Teshuvot Yaskil Avdi 6:96.

These words of admonishment should be applicable to our situ­ation as well. Failure to adjudicate a claim of spousally-inflicted dis­tress (assuming the conditions elaborated on above are obtained) may undermine a community’s trust and confidence in rabbinical authority in general and rabbinical courts in particular.

Hopefully, the following incident recorded in the Talmud could not transpire in our day:

R. Rehumi who was [studying at the school] of Rava at Mahoza, used to return home on the eve of every Day of Atonement.¹⁷⁷According to Ketuvot 62b, those studying Torah may leave their wives for a two- or three-year maximum. While at home, the frequency man­dated for sexual intercourse was once a week. Today, the minimal fre­quency mandated for conjugal relations is twice a week; see Ketuvot 61b; Iggerot Moshe, EH 3:28. On one occasion, he was so engaged in his studies [that he forgot to return home]. His wife was expecting [him any moment, saying,] “He is coming soon, he is coming soon.” As he did not arrive, she became so depressed that tears began to flow from her eyes. [At that moment,] he was sitting on a roof. The roof collapsed under him, and he fell and died. ¹⁷⁸Ketuvot 62b.

As the Shulhan Arukh admonishes, “One must be mindful of [causing] anguish to one’s wife, for her tears are ever-present.”¹⁷⁹SA, HM 228:3. Though our presentation focuses upon the right of an agunah to advance a claim for emotional stress against her husband who withholds a get, such a right equally exists for a husband who is unable to receive a get from his wife. However, our discussion focuses on the more frequent situation of the abusive husband.