Beginning the Laws of Yichud

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by R. Gidon Rothstein

Parshat Mikeitz

Yichud is an area of halachah some people observe scrupulously and some—otherwise careful Jews—seem not to pay much attention, with gradations in between. Even HaEzer 22 gives us the basics of those laws; I hope this summary will help us consider how we might want to adjust or rejuvenate our engagement with this area of halachah.

Sexual Desire Can Arise Where We Wouldn’t Think

AH opens the siman with a reminder of the underlying reason for the prohibition, the Torah (and Chazal’s) worry that sexual desire can appear where we would not expect it, suddenly, and lead to extremely serious sins. [Remember that volating arayot, sexual sins, is on par with murder and worshipping a power other than Hashem, in that a man must be killed rather than transgress in such a way.] Two people who would be committing arayot should they have sexual relations may also not be alone together in a place where such relations could occur.

[Allow me to say it clearly: the Torah and halachah think that pretty much any man and woman (with only a few exceptions, see below), given the right circumstances, can find themselves strongly enough attracted to each other for a sexual act to ensue. I stress it because of Western society’s unfounded confidence that people only engage in sex acts if they decide to rationally and ahead of time, despite their living in a highly sexualized and permissive society.

Halachah disagrees. Halachah says when the urge arises, even the strongest can find themselves irresistibly tempted, and the solution lies in making sure we not find ourselves in the situation. Although he was much mocked for it—and halachah might not require it even of Jews—Mike Pence’s personal rule not to interact, even for a business lunch, with just one woman other than his wife at least takes seriously the question of how we make sure the disaster of an arayot act not occur. As opposed to American society, for example, where surveys suggest as many as one fifth of married men and women have had affairs.]

Who Is Included

While adultery is the easiest example, yichud applies to all arayot, even ones we today assume would never turn into a sexual situation (a man with an aunt or a father’s ex-wife, for example).

Since I’m trying to track the sourcing of halachot in our discussions, I digress to note that AH calls the prohibition Biblical, as does the Gemara; however, the statement it then cites (R. Yochanan in the name of R. Yishma’el in Kiddushin 80b, but R. Shim’on b. Yehotzadak in Sanhedrin 21b) offers a remez, usually a hint or an allusion (the actual derivation, from Devarim 13;7, is too winding to summarize here; the case there is one Jew luring another to worship a power other than Hashem, but the Torah refers to ba-seter, their being secluded). Traditions seems to have assumed the Gemara meant min haTorah, Biblical rule, literally, despite also saying it was a hint.

In some cases, halachah concedes the likelihood of sexual wrongs is low enough to relieve concerns about yichud. A parent with his/her child is one, Sanhedrin 103b tells us, and in se’if two, AH notes a Yerushalmi that disallows opposite-gender siblings living together. Chelkat Mechokek held they were not prohibited from occasional yichud, just could not regularly live alone together, while Beit Shemuel thought it better to be stringent.

[I have seen the rule on siblings ignored more than once, usually by elderly siblings; perhaps they think the combination of their relationship, where sexuality is unusual, and age, which dulls desire, exempts them from the yichud issue.]

Husbands and Wives

A husband and wife may be alone together even when she is a niddah, because they have before and will again be permitted to consummate their relationship, so we assume they can and will restrain themselves. R. Kahana on Sanhedrin 37a inferred the idea from Shir HaShirim 7;3, the rules of niddah have minimal enforcement, yet Jews are careful about them.

(Note what I think is universally accepted in halachic sources but not always thought of that way colloquially, a niddah is an ervah, in the sense that the couple would incur karet, like all the other prohibited sexual acts, should they engage in relations before the wife goes to mikveh. I think I linger over the point because we often translate arayot as incestuous, but that ignores the Torah’s equal objection to other examples of wrongful sexuality.)

As a side note to this long se’if, AH reminds us of Yoreh De’ah 192, the discussion of when a bride becomes a niddah before the couple ever had relations; there, yichud will be prohibited until she goes to mikveh, the untasted pleasure of their soon-to-be-allowed marital relations too tempting to trust the couple’s self-discipline.

Non-Arayot Yichud

Se’if three introduces us to where later authorities expanded the rules of yichud. After Amnon raped Tamar, David and his court included unmarried women in the ban, regardless of whether she is a niddah. AH stresses it was not permitted before, and offers two sources: Tehillim 148;22 refers to the dancing of boys and girls rather than with girls, an indication mixed dancing was already known to be a problem.

Sticking with the dancing theme, AH considers the story at the end of Shofetim, where the remnants of the tribe of Binyamin needed women to marry to continue the existence of the tribe. Seeking a solution, the other tribes advised them to hide where the women went out to dance, and grab them (a discussion for another time). Why not just join and woo them? Because men and women already did not dance together, says AH. And if they knew how such minimal mixing can lead to more physical intimacy than is allowed, they certainly knew yichud was not a good idea.

Rather, David and his court added cases where sexual relations would not be an arayot (such as a girl who has not yet ever menstruated, or who has gone to mikveh and is not currently a niddah), told us to treat it like we would an arayot.

Yevamot 47b tells us Shammai and Hillel decreed yichud for a non-Jewish woman (with whom sexual relations are prohibited, but are not one of the arayot); they did so after Rut’s interaction with Boaz in the fields, I think because that showed that being alone together can also lead to marriage, not “just” sex.

Two Forms of Discipline for Yichud

I am going more slowly with these halachot than usual both because these are practical concerns in our times and also because my experience is that people dismiss the temptations of sexuality more casually than they should. Se’if three points out the violation of yichud was supposed to bring makkat mardut, a court administering lashes until the miscreants committed to observing these rules going forward. (Makkat mardut usually indicate a rabbinic violation, but they are also administered for violations of Torah laws that have no other punishment).

If the woman in the yichud situation is married to someone else, the court will not give her lashes, for fear people will say she had an affair, and deride her children as mamzerim, illegitimate and prohibited from marrying ordinary Jews. Tur says we also do not take yichud to prove she had the affair. For example, should her husband pass away, she could marry a kohen, because we do not view her as a woman who has had an adulterous affair.

Bach thought the court would lash the man who had yichud with this married woman (since the children won’t be linked to him), but Beit Shemuel still worried the reports would rebound onto her, and her innocent children, and therefore disagreed.

We’ll stop here; I hope to finish this next time, but I hope you agree with me it is worth making our way deliberately, to remind ourselves both of the specifics and the general attitude, that human sexuality appears where it appears, can easily and suddenly feel irresistible, such that our best course of action is to put into place the firm and clear safeguards halachah taught us.

About Gidon Rothstein

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