In the opening verses of Parashat Ki-Teseh, the Torah introduces the law known as “Eshet Yefat To’ar,” referring to an attractive gentile woman whom a soldier sees during warfare, and desires. The Torah outlines the procedure which the soldier must follow in order to marry this woman. He must bring her home with him, have her remove all her hair, and have her change into less attractive clothing. (The women in ancient times would dress in their fine clothing during war in order to attract the attention of the enemy soldiers.) For one month, she is left alone to weep for her family. After the end of this month, if the soldier still desires the captive, he may marry her. This period of weeping is required in order for the woman to appear less attractive – as continual weeping adversely affects a person’s appearance – so that the solider will be less likely to want to marry her.
The Sefer Ha’hinuch explains that the Torah established this procedure because it recognizes the great challenge soldiers face when seeing an attractive woman during war. The Torah certainly does not want a solider to take a gentile woman captive and marry her, but it acknowledges that if no permissible procedure were arranged, the soldier would likely succumb to temptation and take the woman her desires impermissibly. The Torah therefore devised a system whereby the soldier would be less inclined to take the woman as a wife, but would have a way of doing so if he so desired, in order to prevent him from taking a captive woman in a forbidden manner.
The Sefer Ha’hinuch follows the view of the Rambam (Hilchot Melachim 5:2) that the soldier is allowed to have one intimate relationship with the woman, in a private location, before bringing her home. Others disagree, and maintain that the soldier may not have a relationship with the woman until after this procedure is followed through completion.
This requirement applies regardless of whether the gentile woman is single or married, and regardless of whether or not she had been married in the past.
A soldier is permitted to take only one Eshet Yefat To’ar. The Torah in this context speaks of a soldier desiring only one woman – “Ve’hashakta Bah” – implying that a soldier is allowed to take only one woman.
The soldier may marry the woman only after she undergoes conversion. If she refuses to convert, then after twelve months of trying to convince her, the soldier must let her leave.
The solider may marry the woman only after three months have passed since he took her – meaning, two months after the one-month period during which the woman is allowed to remain alone and weep for her family. This is required for the purpose of “Habhana” (“distinguishing”), meaning, to be able to determine the identity of the father if the woman is pregnant. If she shows signs of pregnancy within the first three months, it can be determined that she conceived before the soldier took her, or during the initial relationship with the soldier, in which case the child is not Jewish, as he or she was conceived by a gentile woman before conversion. If the soldier would marry her within the first three months, and she conceives, it would be unknown whether the child is Jewish, and so Halacha requires waiting three months before marrying the woman.
A famous case of an Eshet Yefat To’ar was a woman whom King David married after seeing her during war. David’s initial relationship with her, before her conversion, produced a daughter, Tamar. Then, after the woman converted and David married her, they begot a son, Abshalom. David had a son from a different wife named Amnon, who forcefully violated Tamar. Before then, Amnon had mentioned to his father that he desired Tamar and wished to marry her. This marriage would have been allowed, as Tamar was not, Halachically speaking, David’s daughter, because she was conceived during the initial encounter with an Eshet Yefat To’ar, before the conversion. According to Halacha, the offspring produced by a union between a Jewish man and a non-Jewish woman has no legal connection to the father, and thus Tamar was not technically David’s daughter. Hence, she was not Amnon’s brother, and thus it would have been Halachically permissible for them to get married.
It should be noted that the Or Ha’haim (Rav Haim Ben-Attar, 1696-1743), in the beginning of Parashat Ki-Teseh, explains King David’s deep intentions when taking an Eshet Yefat To’ar. One must not understand this story on a simple level, as though David was driven simply by base desires.
This Misva applies only when Am Yisrael resides in its land and wages wars against its enemies. A soldier who violates these protocols for taking a captive woman transgresses this affirmative command.
The Torah in this context (Debarim 21:14) adds also two prohibitions relevant to the Eshet Yefat To’ar, forbidding the soldier from selling her or from making her him maidservant (“U’machor Lo Timkerena Ba’kasef, Lo Tit’amer Bah”). If he decides not to marry her, he must allow her to leave, and may not sell her as a maidservant, or force her to work for him. Clearly, it would be unethical after having a relationship with her to treat her with this kind of disrespect, and so the Torah requires the solder to allow her to leave. The soldier is also forbidden from making her a Pilegesh – a wife who does not have the financial rights of a full-fledged wife. He must either marry her as a wife, or allow her to leave.