That he not divorce her all of his days: That the rapist is forever prevented from divorcing the one he raped. And about this is it stated (Deuteronomy 22:29), “because he has violated her, he cannot send her away all of his days.”
From the roots of this commandments and a few of its laws are written in its positive commandment in this Order (Sefer HaChinukh 557) — and take if from there.
And [about] this negative commandment, they, may their memory be blessed, said in Tractate Makkot 15a that a positive commandment has already preceded it — and that positive commandment is that which the verse stated, “and to him shall she be for a wife.” And there it is said [that] a rapist who divorces his wife — if he is an Israelite, he takes her back [in marriage again] and he is not lashed, since the negative commandment is already rectified by the positive commandment that preceded it, as behold, “she is to him for a wife”; but if the rapist is a Kohen (a priest) and he divorced her, he is lashed and he does not take her back, as a priest is forbidden [to marry] a divorcee. And since he divorced her, she is not fitting to bring her back any more — therefore he is lashed. And know that if he was an Israelite and he divorced the one he raped and she died before he could take her back or she married another [man] — that behold, since he can no longer fulfill the positive commandment, he is lashed in any event. And even though he did not truly negate the negative commandment with his [own] hands, but rather it was negated by [another] cause — he is liable for lashes, since he is no longer able to fulfill the positive commandment. [This is] like that which is a major principle with us concerning, “he fulfilled it and he did not fulfill it,” as I wrote in this Order, concerning the commandment of “sending away the nest” in its negative commandment (Sefer HaChinukh 544).
שֶׁלֹּא יְגָרְשֶׁנָּה כָּל יָמָיו – שֶׁנִּמְנַע הָאוֹנֵס מִלְּגָרֵשׁ אֲנוּסָתוֹ לְעוֹלָם, וְעַל זֶה נֶאֱמַר (דברים כב כט) תַּחַת אֲשֶׁר עִנָּהּ לֹא יוּכַל שַׁלְּחָהּ כָּל יָמָיו.
That he not divorce her all of his days: That the rapist is forever prevented from divorcing the one he raped. And about this is it stated (Deuteronomy 22:29), “because he has violated her, he cannot send her away all of his days.”
מִשָּׁרְשֵׁי הַמִּצְוָה. וּקְצָת דִּינֶיהָ וְכָל עִנְיָנָהּ, כָּתוּב בְּמִצְוַת עֲשֵׂה שֶׁלּוֹ שֶׁבְּסֵדֶר זֶה (מצוה תקנז), וְקָחֶנּוּ מִשָּׁם.
From the roots of this commandments and a few of its laws are written in its positive commandment in this Order (Sefer HaChinukh 557) — and take if from there.
וְזֶה הַלָּאו אָמְרוּ זִכְרוֹנָם לִבְרָכָה בְּמַסֶּכֶת מַכּוֹת (טו, א) שֶׁכְּבָר קְדָמָהוּ עֲשֵׂה, וְהָעֲשֵׂה הוּא מָה שֶׁאָמַר הַכָּתוּב וְלוֹ תִהְיֶה לְאִשָּׁה. וְשָׁם נֶאֱמַר, אוֹנֵס שֶׁגֵּרַשׁ אֶת אִשְׁתּוֹ אִם יִשְׂרָאֵל הוּא מַחְזִיר אוֹתָהּ וְאֵינוֹ לוֹקֶה, לְפִי שֶׁכְּבָר נִתְקַן הַלָּאו בַּעֲשֵׂה שֶׁקְּדָמוֹ, שֶׁהֲרֵי הִיא לוֹ לְאִשָּׁה, וְאִם כֹּהֵן הוּא הָאוֹנֵס וְגֵרְשָׁהּ לוֹקֶה וְאֵינוֹ מַחְזִיר אוֹתָהּ, שֶׁהֲרֵי כֹּהֵן אָסוּר בִּגְרוּשָׁה, וּמִכֵּיוָן שֶׁגֵּרְשָׁהּ אֵינוֹ רָאוּי לְהַחֲזִירָהּ עוֹד, לְפִיכָךְ הוּא לוֹקֶה. וְדַע שֶׁאִם הָיָה יִשְׂרָאֵל וְגֵרַשׁ אֲנוּסָתוֹ וּמֵתָה קֹדֶם שֶׁיַּחְזִירֶנָּה אוֹ שֶׁנִּשֵּׂאת לְאַחֵר שֶׁהֲרֵי אֵינוֹ יָכוֹל עוֹד לְקַיֵּם הָעֲשֵׂה, לוֹקֶה עַל כָּל פָּנִים, וְאַף עַל פִּי שֶׁהוּא לֹא בִּטֵּל הַלָּאו בְּיָדוֹ מַמָּשׁ אֶלָּא שֶׁנִּתְבַּטֵּל בְּסִבָּה חַיָּב מַלְקוּת, מִכֵּיוָן שֶׁאֵינוֹ יָכוֹל עוֹד לְקַיֵּם הָעֲשֵׂה, כְּמוֹ שֶׁהוּא הָעִקָּר אֶצְלֵנוּ, אֵצֶל קִיְּמוֹ וְלֹא קִיְּמוֹ, כַּאֲשֶׁר כָּתַבְתִּי בְּסֵדֶר זֶה, בְּמִצְוַת שִׁלּוּחַ הַקֵּן בַּלָּאו שֶׁלּוֹ (מצוה תקמד).
And [about] this negative commandment, they, may their memory be blessed, said in Tractate Makkot 15a that a positive commandment has already preceded it — and that positive commandment is that which the verse stated, “and to him shall she be for a wife.” And there it is said [that] a rapist who divorces his wife — if he is an Israelite, he takes her back [in marriage again] and he is not lashed, since the negative commandment is already rectified by the positive commandment that preceded it, as behold, “she is to him for a wife”; but if the rapist is a Kohen (a priest) and he divorced her, he is lashed and he does not take her back, as a priest is forbidden [to marry] a divorcee. And since he divorced her, she is not fitting to bring her back any more — therefore he is lashed. And know that if he was an Israelite and he divorced the one he raped and she died before he could take her back or she married another [man] — that behold, since he can no longer fulfill the positive commandment, he is lashed in any event. And even though he did not truly negate the negative commandment with his [own] hands, but rather it was negated by [another] cause — he is liable for lashes, since he is no longer able to fulfill the positive commandment. [This is] like that which is a major principle with us concerning, “he fulfilled it and he did not fulfill it,” as I wrote in this Order, concerning the commandment of “sending away the nest” in its negative commandment (Sefer HaChinukh 544).