Defining a Shoteh, Revisiting a Heresh

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by R. Gidon Rothstein

We should be discussing the next type of halachic person, the shoteh, commonly thought of as a person who is not in his/her right mind. We will, but be forewarned Peri Megadim will take us back to heresh for comparisons. (A better person than I would have read and absorbed the entire second part of this Petihah Kollelet, reordered it more straightforwardly and then presented it. I wish for you a better summarizer of important texts in the future.)

Note, first, he calls the shoteh the second type, meaning the people we saw last time, who lacked either hearing or speech, were not a type, they were people similar to the heresh who were full adults in halachah. The shoteh also has subtypes. For the primary definitionhe sends us to Yoreh De’ah 1;5, where the shoteh is defined as someone who walks alone at night, tears his/her clothing, sleeps in cemeteries, or destroys whatever people give him/her. In Hoshen Mishpat 35;8, about who is insane enough to be disqualified from serving as a witness, Shulhan Aruch says it is not only a person who walks around naked, breaks items (for no reason), or throws stones, but anyone who is found to be nonrational on any topic, depending on the judge’s evaluation of the person.

The Shoteh and the Peti

R. Eisenberger points out the two sources might mislead us into thinking the standards for mental awareness for testimony are more stringent than for ritual slaughter. He notesHoshen Mishpat35;10 brings up another category, the peti, a person unable to see when two ideas contradict, does not have the same intellectual grasp as ordinary people. Hoshen Mishpat says such people count as shotim as well. Tevu’ot Shor suggests a peti was born that way, a shoteh lost his/her previously rational mind. Sema 35;21 (a commentary only on Hoshen Mishpat, by the late-16th century author of the Perishah and Derishah to Tur) offered an alternate distinction, a shoteh can be fully competent in many areas and insane in one, where a peti has overall issues.

Sema seems to say someone who is admittedly insane in one area (hears voices on Wednesdays, let’s say, or is insane about driving a car) will be considered a shoteh even elsewhere, where many later authorities disagree, hold we would treat such a person as an ordinary adult in those other areas or times. This matters especially because Shulhan Aruch Hoshen Mishpat 335;20 invalidates the financial transactions of a shoteh, his/her purchases, sales, and gifts, for movable property as well as real estate. For Sema, a shoteh in one area will not be able to enact financial transactions.

Marriage, and Back to Heresh

Peri Megadim points out Hazal instituted marriage and divorce for a heresh, at a rabbinic level, but not for a shoteh [the most common ramification, as far as I know, is that if one of the partners to a marriage loses his/her mind, divorce is not a possibility.] The rabbinic element means if a woman married and divorced a heresh, despite the entire marriage being rabbinic, she cannot marry a kohen thereafter, whereas a woman who connected with a shoteh and split, the woman is not considered a divorcee, as Hazal never made any provisions for an institution of marriage.

Parenthetically, Peri Megadim calls our attention to Beit Shemuel Even HaEzer 6;2, who says a kohen needs to part from a safek gerushahhallalah, or zonah, women who have some feasible doubt about their status of permissibility to a kohen. According to Rashba (and many other rishonim), the Torah itself obligates Jews to be stringent about cases of doubt, so this kohen would have a Biblical reason to separate from such a wife, where Rambam (somewhat famously) thought the principle of ruling stringently about Biblical doubts was rabbinic. For the kohen who married a woman with some doubt about her divorcee status, the couple’s requirement to separate would be rabbinic (allowing for more leniencies if there are other confounding factors).

Rabbinic Doubts and Their Limited Leniencies

This aside belonged here—and I skipped a piece about a mamzer or safek mamzer as not our issue—because a woman who had a safek divorce from a heresh would be allowed to marry a kohen. Since her divorce is a doubt about a rabbinic rule, and we rule leniently on rabbinic doubts, we are allowed to treat it as if she was not divorced.

This would only be true if the doubt was created by two sets of witnesses, one set saying she had been divorced, the other by another. Were there to be only one set of witnesses and some doubt had arisen about the effectiveness of the divorce, we would assume she is still prohibited to the kohen because there is a hezkat issur, a prior state of prohibition we think continues until some event gives us reason to believe her status had changed.

Shoteh Has No Da’at

Shulhan Aruch Orah Hayyim 266;4-5 deals with a Jew stuck in a place where carrying on Shabbat is not permitted, in possession of an item of value. If a hereshshoteh, and katan are around, Shulhan Aruch (based on the Gemara) says the Jew should give the item to a shoteh rather than either of the others, because the shoteh is considered to have no da’at, no adult intent, where the heresh has da’at kelishta, weak (but some) mental competence. [For the katan, the minor, Peri Megadim makes reference to a discussion in Shu”t Makom Shemuel, who thought the Gemara’s reference to a minor as ba li-chlal da’at, will eventually have da’at, to mean the minor does not currently have any. R. Eisenberger points out minors are not all of a type, so very young minors might count as not having any mental competence, with it growing over time.]

The shoteh’s lack of ordinary adult sanity [remember: even in one area, a remarkable idea, seeing how far we are going with this, and to my mind supporting my idea that “mental competence” here is about similarity of experience to the general populace] to wonder whether a shoteh ‘s affair with a married woman would yield a mamzer, a child disallowed from marrying ordinary Jews. A non-Jew’s affair with a married woman does not lead to mamzerim, because the non-Jew has no way to marry the woman; since the same is true for a shoteh, perhaps no mamzer results from his affairs, either.

Peri Megadim acknowledges the other way to look at it, the heresh and shoteh are Jews, with a theoretical obligation to observe the Torah marred by their lack of enough mental similarity to other Jews. If so, their affairs should result in mamzerim just like any other Jew.

[R. Eisenberger’s notes point out many objected strongly to his speculation, confident the child would have to be a mamzerPeri Megadim’s idea also floates the possibility an affair would not lead  a shotah woman to be prohibited to her husband; perhaps her actions do not count as a betrayal of the husband such that she has to leave the marriage. That, too, is disputed among acharonim, a question of the extent to which the shoteh’s inability to create marriages also puts him/her outside of other rules about the sanctity of marriage.]

Divorcing a Shotah (and Others Lacking Full Mental Competence)

By Torah law, divorce does not require the intent of the woman [herem Rabbenu Gershom instituted it, along with a prohibition against marrying more than one wife]. For a shotah, it could mean the husband can still divorce her, despite her inability to comprehend what is happening. However, Hazal prohibited it, for fear the woman would be left unprotected, in terms of being lured into promiscuity. That applies only to a shotah who understands divorce enough to know she is no longer married to this man, that she must now live elsewhere. A woman so far gone she is not able lishmor et gitah, to keep (or adhere) to her divorce, cannot be divorced by Torah law.

[It’s not completely clear to me how this works, but Hazal were confident that women without some protector would let themselves be drawn into multiple meaningless relationships, I think in search of someone who would want to stay with them. I do not know if this is accurate today; I do remember a movie where the character played by Marlee Matlin, who is deaf, spoke of “dating” turning from a pleasant evening with a foregone conclusion into just the conclusion.]

hereshet or a ketanah were assumed to be more in control of their sexuality, and therefore divorce could work for them even if their marriage was Biblical, such as if the woman became a hereshet after marriage or the child’s father married her to the man. Because divorce does not need her contribution (at a Biblical level), it can be effected even where she does not have the da’at usually required for transactions.

Issues of a shoteh/shotah Peri Megadim chose to include in his overall introduction to Shulhan Aruch.

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