The Torah in Parashat Ki-Teseh (Debarim 22:29) commands that a man who forced himself upon a young virgin girl must marry her (if she so wishes), to ensure that she is cared for. It then commands, “He may not send her away throughout his life.” Thus, in addition to the Misvat Aseh (affirmative command) requiring him to remain married to the girl (which we discussed in the previous Misva), the Torah also issues a prohibition forbidding divorcing her.
The Sefer Ha’hinuch writes that this prohibition falls under the category of “Lav Ha’nitak La’aseh” – a prohibition whose violation can be rectified by fulfilling the associated affirmative command. One who violates this prohibition by divorcing the girl can rectify his mistake by marrying her again, and so this prohibition is considered a “Lav Ha’nitak La’aseh.” There is a general rule that one who transgresses such a prohibition is not liable to Malkut, since he can rectify his mistake in lieu of punishment. Therefore, one who divorced the woman he had married after forcefully violating her is not liable to Malkut, as he can rectify the transgression by marrying her again.
Normally, when the Torah presents a “Lav Ha’nitak La’aseh,” it first introduces the prohibition, and then introduces the Misvat Aseh which can be fulfilled to rectify the violation. In this instance, the Torah first presents the Misvat Aseh – “Ve’lo Tiheyeh Le’isha,” requiring the man to remain married to the girl – and only then introduces the prohibition – “Lu Yuchal Shalehah Kol Yamav” – that he may not divorce her. However, the Sefer Ha’hinuch writes that the sequence does not matter, and even though the Misvat Aseh is presented here before the prohibition, nevertheless, this qualifies as a “Lav Ha’nitak La’aseh,” such that if the man divorces the woman, he is not liable to Malkut, because he can correct his mistake by remarrying her.
One exception to this rule is the case of a Kohen who married a girl whom he had forcefully violated. A Kohen is not permitted to marry a divorcee, and thus after he divorces the girl, he cannot then rectify his transgression by remarrying her. Therefore, a Kohen who transgresses this prohibition by divorcing the girl whom he had violated is, indeed, liable to Malkut, as he cannot rectify his misdeed.
The Gemara brings different views as to whether this applies also in a case where the violator becomes unable to rectify his transgression due to circumstances beyond his control. For example, if the man divorces the girl, and she then dies, he obviously can no longer remarry her. Likewise, if she marries somebody else, he is unable to marry her again, even if her second husband dies or divorces here, because the Torah forbids marrying a woman one had divorced after she married somebody else. According to one view, since the violator did not create a situation whereby he can no longer rectify his sin, we apply the rule of “Lav Ha’nitak La’aseh,” and he is not liable to Malkut. This view maintains that only if “Bitlo” – the person created the situation that made him unable to rectify his transgression, such as in the case of a Kohen who divorced – he is liable to Malkut, but not if this situation resulted from circumstances beyond his control. However, the Sefer Ha’hinuch follows the view of “Kiyemo Ve’lo Kiyemo” – that once the transgression is no longer rectifiable, the violation cannot be considered a “Lav Ha’nitak La’aseh,” and so the sinner is liable to Malkut. Therefore, even if the man divorced the girl and she died, or married somebody else, he becomes liable to Malkut, since he can no longer rectify his violation by remarrying her.