Identifying
Corpses
I'm sorry, but I haven't had a chance to edit this yet-- please forgive me, but I
wanted to get it out on Thursday night. Thanks, and Shabbat Shalom.
This week's topic derives from the recent Daf Yomi where the principle was established
that halakhah only permits identifying dead bodies within three days of death. In
mentioning Daf Yomi, I want to engage in a moment of shameless self-promotion--this
Shabbat, an hour before minhah, I will have the pleasure of introducing Massekhet Ketubbot
(the next tractate the Daf will be studying) in a shiur entitled "Learning from a
Dead Letter: The Modern Message of Massekhet Ketubbot." It is a shiur that will touch
on important issues of Modern (or Centrist) Orthodoxy, and hopefully will prove both
interesting and worthwhile to all who attend.
To get back to the issues of identifying corpses, the major context in which such an
issue will arise (and, le-da'avonenu, to our great sadness, still arises in our times) is
when a man disappears for several days whose corpse is later found. In order for his widow
to remarry, we must ascertain that the corpse is indeed the deceased. The problem with
that is that the Mishnah states clearly that you can only identify a corpse within 3 days
of its leaving life; beyond 3 days, the assumption is that the process of decay will
distort the features too much to allow for an accurate identification. (I remember the one
time I was privileged to join in performing a tahara, that the leader of the group
actually knew the man who had passed away. Despite it only having been a couple of
hours--less than 24-- since his passing, the leader commented on how different he already
looked).
Two cases in the gemara provide one type of exception that is relevant in modern times.
The gemara mentions people who drowned and were found more than three days after they
passed away, yet the respective rabbis permitted their wives to remarry (meaning that they
accepted the identification of the corpse). The gemara concludes that water maintains the
deceased's features as long as there are no facial wounds to be distended. Once the corpse
comes out of the water, however, there is limited time to identify him-- Rambam says 12
hours, because beyond that the corpse once again distends and distorts as it begins to
decay.
In the sad and still-too-common modern occurrence of plane crashes (or drowning in
swimming/boating accidents), this halakhah becomes very important. Supposing a plane goes
down and the Navy divers do not find Mr. X until more than three days have passed, the
family can stil identify him immediately upon his being found, since the corpse has been
submerged in water.
Aside from the time limit on identifying bodies, the gemara seems to require that the
person's face be intact, including the nose, a condition that could also become onerous.
Suppose, for example, that we found a person's decapitated body-- does that mean the wife
could never remarry? Or, suppose the body was not found until more than 3 days after death
(or more than 12 hours after it came out of the water)-- are all of these wives agunot,
chained to their deceased husbands with no recourse?
Rabbis have struggled with these issues for centuries, and I wanted to mention a few of
the avenues for heter that have been enunciated. First, Rabbenu Tam believed that if the
body was whole, the requirement of facial features could be ignored. It was only in the
context of examining a head separate from the body that Hazal required the nose to be
present.
More interesting, far-reaching, and readily usable heterim come from the notion of
simanim. While the matter is of considerable continuing debate, there is a general
consensus that identifying marks that are either unique or extremely rare can be used as
full identification of a person. (If someone had a birth or beauty mark on their forehead
shaped like the State of California, for example, that might serve as a siman muvhak, a
sign that is rare enough to be considered perfect identification.) With less uncommon
marks and identifying features ( an ordinary birth mark identified by its location, for
example), R. Chaim Ozer Grodzenski ruled that we can combine two of such marks to allow
for a full identification. Further, he said that clothing found on a body that is not of
the type that a person might lend can also count as a siman. That means, then, that if we
know what the person was wearing and one other identifying mark, we can identify tha
tperson even after three days, indeed even without the face being intact.
In the course of researching this topic, I found a teshuva R. Moshe wrote in which he
suggested that women whose husbands went to Auschwitz but died without leaving a corpse
might nevertheless be permitted to remarry. According to R. Moshe, the rule that Hazal
instututed about when a woman could remarry were only meant in cases of individual men and
women; for mass populations, however, R. Moshe believed we might allow women to marry by
virtue of a reasonable reconstruction of events (in other words, he thought Hazal ruled
stringently when that rule would aply to individuals. For groups, multiple corpses, he was
willing to rely on oridnary principles. On the basis of that, if we know someone entered
Auschwitz, R. Moshe believed we know that person was killed. As he (R. Moshe ) said, we'll
end this sheet with the prayer that our people never again need to utilize these halakhot
in practical cases, that Jews all merit a peaceful death (where identifying the deceased
is done rapidly, without fail) and that these topics remain le-halakhah ve-lo le-ma`aseh.
Shabbat Shalom.
IF YOU NOTICE ANY ERRORS IN THIS PRESENTATION, PLEASE BRING
THEM TO MY ATTENTION. |
