The Torah in Parashat Ki-Teseh addresses the case of a man who forcefully violates a betrothed woman, and it commands that the man be put to death. It then adds, “Ve’la’na’ara Lo Ta’aseh Dabar” – “But you shall do nothing to the young woman” (Debarim 22:26). Since she was taken by force, and did not willingly commit an adulterous act, she is not to be punished.
The Sages infer from this verse the famous rule of “Oness Rahamana Patreh” – that the Torah absolves a violator from punishment if the violation resulted from circumstances beyond his control. Just as a betrothed woman is not punished if a man forced himself upon her, likewise, anyone who commits a violation unwilfully, due to circumstances beyond his or her control, is not liable to punishment. The Sefer Ha’hinuch understands this verse as introducing a Biblical command forbidding a court from sentencing a violator to punishment if the violation was committed unwilfully.
This exemption applies even if the person violated one of three exceptionally grievous sins which one must avoid even at the cost of his life – idol-worship, murder, and immorality. If a person is forced at the threat of death to commit one of these sins, he is required to surrender his life rather than transgress. Nevertheless, if he chose to commit the offense in order to save his life, he is not liable to punishment, as he violated the prohibition under duress. Thus, if a person was forced at the threat of death to worship an idol or to kill his fellow, and he commits the act, he is not liable to punishment. However, if a man is forced to commit an act of immorality at the threat of death, he is liable to punishment, since a man cannot commit this offense without a willful decision to do so (“En Kishui Ela La’da’at”). In the case of a woman who was forced into a forbidden relationship, as we have seen, she is exempt. The woman in such a case is exempt even if she expressed her consent after initially being coerced. At a certain point in the process, it is possible for the Yeser Ha’ra (evil inclination) to overcome her, such that she consents, but since the encounter began under coercion, this qualifies as “Oness” and she is exempt from punishment.
The Ramban disagrees with the Sefer Ha’hinuch’s understanding of this verse as a command. In the Ramban’s view, the Torah here does not command the Bet Din not to punish somebody who sinned unwilfully, but rather simply instructs that such a person is not liable to punishment. Meaning, according to the Ramban, the Torah here is stating the law, not issuing a command, and thus the Ramban does not consider it a Biblical prohibition to sentence an unwilful offender to punishment. The Sefer Ha’hinuch, however, maintains that if Bet Din sentences a person who transgressed unwilfully, then the court is in violation of a Biblical command. The judges are not liable to Malkut, the Sefer Ha’hinuch writes, because this prohibition is transgressed verbally, by ordering the bailiff to administer the punishment, and one is liable to Malkut only for violating prohibitions which are transgressed by performing an action.