Prohibited Sexual Relationships

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by R. Gidon Rothstein

(Editor’s note: Due to my confusion around the holiday and the disconnect between Israeli and Diaspora Torah readings, this should have been posted during Chol HaMo’ed. I am posting it now to catch up. Going forward, R. Rothstein’s articles will follow the Israeli Torah reading while my Divrei Torah and R. Safran’s articles will follow the Diaspora reading. That way, we have something for everyone.)

Parshat Aharei Mot: Prohibited Sexual Relationships

The Torah twice lists relationships Jews may not enter, and Ramban and Rambam debate how far the prohibition extends. Before we look at that debate, I want to draw your attention to another disagreement of theirs, because its premise calls us to examine our casual assumptions.

Ramban wonders why the Torah prohibited these relationships, a question I think we do not bother to ask, because we assume incest is icky. Given our culture’s resistance to incest (although, sadly, those barriers are weakening in our zimah-soaked Western society), we are unsurprised by the Torah’s ban on such acts. The reasoning is weak to start, because the Torah prohibits some relationships without an obvious repulsiveness to them, and allows others we today find objectionable.

The answers Rambam and Ramban give, their justifications for the prohibitions (you can find them in Ramban’s Humash Commentary) are not my topic here, but they are not the ones we would have assumed. I brought it up to remind us we sometimes take for granted what turns out not to be at all obvious.

Not Even Come Close To

Rambam’s Prohibition 353 takes us into other nonobvious territory. He accepts the view of Sifra 13;2, Vayikra 18;6 (lo tikrevu le-galot ervah, loosely, do not come close to sexual relations) means to forbid any sexually charged acts—hugging, kissing, for Rambam’s examples– by ervah couples, those whose marriage or marital relations are prohibited.

Sefer HaHinuch refuses to draw a sharp line between the Biblical and rabbinic prohibitions. He makes it an overall framework, Jews may not engage in any conduct that leads to fantasizing about women other than their wives, or to flirt with women (he says remez le-karev da’at ha-ishah, hint in a way to bring a woman’s interest closer).

[At the end of the mitzvah, he emphasizes women are equally included in all of this, violate this same prohibition should any sexual acts occur. I think the Torah spoke from the man’s perspective because men were seen as initiators of this kind of activity.]

In addition, each person knows him/herself, and must refrain from anything that would stimulate such thoughts/interests.

The Canaanites and Egyptians’ Legacy

The chapter of the Torah starts and ends with warnings these were the kinds of behaviors adopted by Egyptians and Canaanites, and prohibits Jews’ following their ways in general. The warnings sandwich a list of sexual prohibitions, but tradition did not limit the problem with mimicking Canaanites (and non-Jews generally) to these.

Rambam here therefore digresses to say the list of arayot, prohibited sexual relationships, presents some of those nations’ abominations, specific actions the Torah singled out for mention. Jews may not follow generational customs of non-Jews and may not engage in these kinds of sexual relationships, nor come close to them.

Despite it’s not really being part of our prohibition, he cites Sifra’s idea their ma’asim, their actions we must not ape, included a man marrying a man, a woman a woman, or a woman marrying two men.

It shows Hazal of the time of the Mishnah (and Rambam of the twelfth century) knew of these kinds of relationships, knew of societies that accepted them as legitimate and reasonable, back in the time of Yetzi’at Mitzrayim, the Exodus from Egypt (and I am sending this out just before Pesah!).

I stress it whenever I can, because people in our time who promote acceptance of such prohibited activities pretend we have new insight, new awareness of why we should accommodate or respect those who feel a push in that direction. When, really, as Shlomo HaMelech reminded us, ein hadash tahat ha-shemesh, there is nothing new under the sun. It has always been around, will always be around, is an example of a yetzer ha-ra, an inclination to sin, people find so tempting they seek desperately for justifications to engage in it.

Why He Went Far Afield

Rambam also throws in a reminder—he says “what is worth your while to know– a child born of arayot intercourse (where the couple could have been punished by death or karet for a deliberate act) is a mamzer, a permanent challenging status, whether the conjugal act was malicious, unwitting, or coerced.

Rambam does not explain why he wrote so unusually lengthily and digressively about this mitzvah. His comments on hukkot ha-goyim, ways of non-Jews, such as homosexual marriage, have little if anything to do with our actual mitzvah, the obligation to refrain from any sexualized contact with people prohibited at this level. Nor does the mamzer outcome belong here, since our prohibition is about actions that could never produce a baby.

My guess is he was trying to show why the Torah would prohibit early-stage sexual activity (the Torah does not often legislate protective mechanisms, it usually leaves that endeavor to Hazal). By putting these prohibitions in a larger framework of distinguishing ourselves from the Canaanites and Egyptians, and reminding us of the significant consequences of violating the eventual prohibition, he has given us a reason the Torah would say “forget an affair with type of person, do not even hug or kiss him/her in a way that could plausibly lead to more.”

Sifra Says What, Exactly

Ramban disagrees, although he readily concedes Sifra is a very strong source for Rambam’s view. He counters with Shabbat 13a, where R. Pedat says our verse addresses only kerevah le-gilui ervah, coming close to full sexual relations. He argues the Gemara would have cited Rambam’s Sifra as a disproof of R. Pedat, were it an accepted view. [He is assuming the Gemara can be relied on to know and quote any Baraita relevant to a discussion.]

By not doing so, it let us know it read that Sifra to be laying out a rabbinic prohibition, citing verses as asmachta, ways to see the idea hinted in the Torah, not meant as the technical legal source. Ramban adds that Sifra and Sifrei are full of verses used as asmachta; if we accept his view, it greatly complicates any project of defining original Torah law, because each verse presented as prooftext might be only asmachta, without (as far as I know) clear rules for how to detect which is which.

Or, he says, maybe the prohibition is Biblical but as a hatzi shi’ur, a not fully realized violation, like eating half an olive’s worth of a prohibited food. The Torah ruled out all sexuality with such women, but only a consummated act runs afoul of a full prohibition.

Close Isn’t As Far as Rambam Thought

In addition, Ramban thinks the word karov in the Torah, when used regarding this area of life, means sexual relations or something close to it. When a man claims his wife had an affair between erusin, betrothal (the ring ceremony, which makes her married in terms of counting an affair as extramarital) and nisu’in, marriage (we today put the ceremonies together, making this scenario highly unlikely), Devarim 22;14 anticipates he will say va-ekrav eleha, I came close to her. Close there clearly means they consummated their marriage.

Yeshayahu also uses the root krv, “come close,” when the prophet and his wife produce a pregnancy, and to prepare for the Giving of the Torah, the Jews are warned al tigshu, do not approach, when only relations were disallowed. For the Torah, Ramban is trying to prove, “close” means closer than we might have thought.

The Prohibition, According to Ramban

I am skipping Ramban’s discussion of who might have been more stringent than R. Pedat, because one of the lessons of reading Rambam and Ramban on these and other issues is that sources often have enough room for either view. Our goal here is to see what is clearly de-oraita. Or, like here, to review the main views on either side.

Ramban holds Sifra only saw a prohibition on lying naked with a prohibited partner, a stage at which we would have to be worried they would proceed to intercourse. He supports the idea with another passage in Shabbat 13, where Ulla repeats a well-known saying, we tell a nazir not to approach a vineyard (where the Torah only opposed ingesting grape products). So, too, a story there portrays Eliyahu (the prophet) as assuming a Torah scholar who allowed himself to sleep nude with his wife while she was a niddah violated a rabbinic decree, not a Biblical prohibition.

The Possibility of Change

This is a good example of the ramifications of our discussions. If a future Sanhedrin adopts Rambam’s view, kissing, hugging, and other intimate acts with prohibited women (which includes women who have not gone to mikveh, married or not) are all Biblical issues, and not easily prone to alteration. Should the Sanhedrin follow Ramban, and also decide the gezerah on intimate acts should be changed, much about the Jewish approach would change as well.

I don’t think that last sentence is likely, particularly where the world around us moves daily farther from a reasonable view of sexuality, properly prompting us to put up further protections. But it’s interesting to think about, particularly when it is an area teenagers struggle with.

And Why Hazal Are Unlikely To Change Anything

More, Sefer HaHinuch and Rambam give us great reason to expect any future Sanhedrin would be greatly leery of relaxing these rules. Aside from the slippery slope, they both point out the Torah’s warning against any of the abominations of the Canaanites. Sefer HaHinuch adds that the word to’evah, abomination to Gd, indicates a sin that distances a Jew from goodness, from Divine Providence. Should the Sanhedrin accept his idea, it is unlikely they would help Jews risk a loss of Providence.

[I believe mori ve-rabi R. Lichtenstein, zt”l, complained about people selectively fastening on the Torah’s use of to’evah about homosexuality but not its other contexts, like food prohibitions and/or the use of improper weights and measures in business. I suspect Sefer HaHinuch would have been fine with the point, to go with it the other way, to say those sins, too, lose or weaken a Jew’s connection to divine providence.]

In addition to loss of providence—which, sadly, might not worry us as it should—violations bring punishment. Sefer HaHinuch advises a Jew to envision Gehinnom (hell, or whatever form future punishment takes) opening up when he contemplates any sexual improprieties. It will help him/her conquer temptation and tamp down dangerous thoughts.

A Few Details, Courtesy of Minhat Hinuch

I am almost out of space, so I will only briefly raise some issues Minhat Hinuch discusses. He first assumes a Jew violates this prohibition—according to Rambam, who saw it as Biblical—separately from the prohibition of the sexual act itself. This matters for punishment (whether a Jew could be punished for this prohibition if s/he is already going to be put to death for the more significant one, for example), but conceptually as well.

In Minhat Hinuch’s understanding of Rambam, for any couple to get to actual prohibited relations, they will necessarily also have engaged in Torah-banned kerevah, coming close to, and will therefore violate this prohibition as well.

Tosafot in a few places assumes the Torah also prohibits yihud, being secluded in a place where untoward activity could occur, with an ervah. If we accept both Rambam and Tosafot, any coupling banned at this level (including, most relevantly in our times, adultery) must ignore three prohibitions, three times the Torah told us not to do it. Which, sadly, is still not always enough.

As many times before, there’s a lot more, but we have reminded ourselves of the necessity—by Torah law for Rambam—of de-sexualizing relationships with those the Torah told us were not appropriate partners. For us, they must be people only, not potential paramours.

About Gidon Rothstein

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