Compensation for Shame

Ketubot (3:7) | Yisrael Bankier | 18 years ago

The Mishnah (3:7) details how the component of compensation referred to as boshet (shame) is calculated. This was raised because it is one of the components of compensation that a rapist is required to pay¹⁹. Boshet is also included as one of the five basic forms of compensation placed on one that inflicts physical injury on another.²⁰ The Mishnah explains its calculation as follows:

What is boshet? It is according to the person that caused the shame and the one who was shamed.

The above Mishnah describes that the social standing of the two parties influence the calculation. As the Rambam (Na’arah Betulah 2:4) explains, the greater social standing of the victim and the more base the offender, the greater the shame.²¹

With the above information noted, we are still left wondering how exactly to place a monetary value on the shame caused. The Rambam (ibid. 2:5) explains:

Accordingly, the judges assess the standings [of the victim and offender] and evaluate how much the father and family would be willing to pay to avoid this incident from such a person, and this is what [the criminal] is obligated to pay.

The Ramah²² however argues that such a manner of assessment does not isolate the boshet component and would also include tza’ar (anguish) as well. Furthermore in the hypothetical scenario, for example, of a hand being severed, it may be insignificant if the crime occurred in secret, as the embarrassment of having a severed hand endures beyond the incident itself.

The Ramah therefore suggests using other hypothetical cases to isolate and assess the value of the boshet. For example, in the case of a severed hand, how much would this person be will to be paid in order to have his shrivelled hand (that no longer has any sensation) that required severing be severed by such a person? Or alternatively, how much would he be willing to pay such that his hand, that the courts ruled must be severed, not be severed by such a person. He brings support for this means of assessing boshet as the Gemara uses a similar means when assessing tza’ar in the case where there is also physical damage. Using the same example, the Gemara (85a) writes that the judges assess how much a person would be willing to pay to have a hand that had to be severed by court ruling, be removed with anaesthetic (i.e. painlessly) or in the manner in which the criminal severed it.

In defence of the Rambam one could suggest that boshet is different to tza’ar. The monetary value of physical pain can be isolated as the potential pain experienced in the hypothetical scenarios may be equal to the case in question. In other words the physical pain to be endured by this victim who had his hand severed by the criminal would be equal irrespective of the reason why it was being severed as long as the method employed was the same. Shame however is far more complex. One cannot be certain that the shame experienced in any hypothetical case would be equal to the shame endured as a result of the crime. Consequently the Rambam does not employ any hypothetical tools and simply charges the judges to assess how much one would wish to pay to avoid the entire incident.

¹⁹ This is amongst other obligations – see 3:4 for more details.

²⁰ See Bava Kama 83b, which lists nezek (physical damage), tza’ar (pain), ripui (medical costs), shevet (lost labour opportunity) and boshet as the five principle elements of compensation.

²¹ See also Rashi (Ketubot 40b) who writes the criminal being a beinoni (regular person) can be more shameful than if the criminal was an important person or a base person. The Bach (Choshen Mishpat 420:24) suggests that perhaps Rashi is allowing for a different measure of boshet in the case of rape than a regular case of inflicting bodily harm. Nevertheless, he cites the Ran who dismisses this Rashi as referring to something else and notes that the Rambam and Tur seem to treat the calculation of boshet in the same manner across the board.

²² See the Shitah Mekubetzet Bava Kama 85a and Ketubot 40b.

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