Welcome to JOFA's Fireside chat with Rabbi Dov Linzer!

Many of you are familiar with our Joy of Text podcast, which discusses sex/sexuality and halakha thematically. If you have not listened yet, please do! Over the next three days you get the opportunity to ask questions about sex and halakha and have Rabbi Linzer answer. Questions can be submitted anonymously by following the link above. Let's jump in!

Rabbi Linzer--What is the origin of our current expectation of extra marital shmirat negiah (abstaining from touch)? Is this truly a halakhic obligation?

Thank you for the question.  The first thing to note is that not all forms of touch are the same.  There is casual, non-sexual touch; there is intimate, and yet non-sexual touch; and there is sexual touch.  Even within sexual touch, there is touch that is very proximate to the act of intercourse, and touch that, while sexual, is more distant from the act of intercourse.  Halakha in general does not lump all acts along a spectrum into the same category, and assigns different weight to qualitatively different acts, and that is true here as well.


There is no question that if a man and woman are forbidden to have sex with one another - for example, cases on incest, adultery, or when the women is in niddah - then sexual touch is likewise forbidden.  For Rambam, this is a Biblical prohibition based on the verse לא תקרבו לגלות ערוה, "you shall not draw near to uncover nakedness" - which for him includes any "drawing near" - any act that is close to the sexual act.  While a full Biblical prohibition according to him (he even states that one would receive lashes for transgressing), it is nevertheless not in the same category as the act of intercourse itself (one would not have to bring a korban or receive one of the more severe punishments, such as karet).  Ramban disagrees, and states that while such acts are forbidden according to the Rabbis, there is no Biblical prohibition in such cases.  The verse, according to him, is referring only to intercourse.  Nevertheless, he concludes his discussion by stating ואפשר דהוה כעין חצי שיעור, that it is possible that such actions are forbidden Biblically, as a type of a "half-measure."  That is, the same way that one cannot, according to the Torah, even eat less than an olive's amount of pork - even though they would not receive lashes, since the amount is too small - one can also not, even Biblically, do an act which is a qualitative "half-amount" of the act of intercourse.   He is however not certain that this concept of "half-amounts" is Biblically relevant here.


What constitute sexual touch to be Biblically forbidden according to Rambam (and maybe Ramban) is not clear, and in different places (Sefer HaMitzvot, the list of mitzvot before Mishneh Torah, Mishneh Torah itself), Rambam describes broader and narrower scopes.  (There is even what seems to be the understanding of the Beit Yosef in one place that even casual touch is Biblically forbidden, but this is fully rejected by Shakh and later poskim). A number of poskim state that any hugging or kissing would be included, but in a recent teshuva, Rav Yehudah Herzl Henkin argues convincingly, that only truly erotic and sexual touch is included (let's not forget that many Sephardic rabbis receive kisses on the hand from women, etc.).


It should be restated that any sexual touch, even if not at the level of the Biblical prohibition, is clearly forbidden rabbinically.


When it comes to non-sexual, casual touch there is also a debate amongst the poskim.  The Gemara makes it clear that such touch is problematic because it can lead to illicit sexual thoughts (in men).  A number of poskim are thus of the opinion that this is Rabbincally forbidden. Nevertheless, the Gemara relates that a number of Amoraim would have physical contact with women and, when challenged, responded that such touch did not cause them to have sexual thoughts.  Based on this, some Rishonim (Ramban, Ritva, and others) state that if there is no concern for sexual thoughts, there is not even a rabbinic prohibition.  Some still state that the cases with these Rabbis are exceptional, and we must as a rule, barring special exceptions, be concerned that there will or might be sexual thoughts.


Two practical cases should be addressed:


(1) A man and a woman shaking hands in a business setting.  Some poskim assume that this is forbidden, end of story.  Others (particularly in the Modern Orthodox community) say it is permissible by arguing that while it is a rabbinic prohibition, it can be overridden for the sake of kavod ha'briyot  - human dignity (for many this means waiting until the other person sticks out his/her hand, and to not take it would be a kavod ha'briyot problem).  Rav Yehudah Herzl Henkin, in contrast, and this is also my view, would say that in such a context there is no concern, as a rule, for sexual thoughts, and it is not forbidden at all.  That being said, if one of the parties feels an attraction to the other person and feels that s/he will/might get a sexual charge from the contact, it would be forbidden.


(2) Husband holding his wife's hand during childbirth (and thus when she is defined as being in niddah).  Some poskim say that since the wife specifically wants to hold her husband's (and not someone else's) hand, this defines the touch as sexual, and thus it is a Biblical problem and never allowed.  I disagree, and think that there is a huge difference between intimate, comforting touch and sexual touch.  I view this as non-sexual touch, and thus as a rabbinic prohibition (since this is between husband and wife when the woman is in niddah, it is a clear rabbinic prohibition), and thus there is more room to be lenient.


For practical psak, speak to your local posek(et)!


Shmirat negiah is certainly a hot topic amongst many Orthodox Jews of all ages. Thank you Rabbi Linzer for shedding some light onto its multifaceted nature! 


Our next question:

Are there halakhic concerns about a woman masturbating during the sheva neki'im (7 clean days before she goes to the mikveh)?


In regards to female masturbation in general, many poskim are of the opinion that this is permitted (you can hear our Joy of Text podcast on this topic, here).  Rav Moshe Feinstein (Iggrot Moshe, EH, 1:69) rules that it is nevertheless forbidden to be thinking of doing acts of sexual transgression, as this would fall in the category of הרהור עבירה, indulging in sinful thoughts.   This may, however, only apply to cases where one is actual thinking about really doing such acts, and not merely fantasizing.


When a women is in a state of niddah - whether when she is actively menstruating or when she is during the period of shiva nikkiyim - and cannot be having sex with her husband, it seems to me that it would likewise be permitted.  I can see three possible reasons that one might want to be more strict:


1. Perhaps stimulating the genital area will lead to bleeding.  I do not believe that this has any basis in fact.


2. The gemara's concept of דם חימוד - that strong sexual desire can produce uterine bleeding.  This concept, however, plays almost no role in practical halakha (outside of the issue of when a woman goes to the mikveh before her wedding).  If it did, every time a woman was about to have sex with her husband, she would have to check that her desire did not cause her to bleed.  While there have been some who have ruled this way, this is certainly not how we pasken.   


3.  It is improper to be having sexual thoughts at a time when one cannot be with her husband.  I cannot, however, see any good basis for this assertion.  First, often the case is that someone is having sexual thoughts and feelings regardless, and masturbating actually provides a healthy outlet for these feelings.  It could even be seen as a safeguard from acting on those feelings, and having sex with her husband when she is a niddah, which would be a serious violation.  As to the concern that masturbating will stimulate and increase such feelings - again, unless there was a concern that this would lead to acting on these feelings, I do not see why this should be forbidden or in any ways different than masturbating at other times.


I do, think, however, that the woman should not hide from her husband the fact that she is doing this.  If her husband knows that she is masturbating to relieve sexual tension, it makes it part of their shared sexual relationship, and ultimately even her sexual thoughts and fantasies can tie back to her relationship with her husband.  If, however, it is something that is done in secret, then it could be experienced either by her or by him, as a form of "cheating" on one's spouse.   


This is the approach I would take in general, even not during niddah.  I don't think that means having to let the spouse know each time it is happening, just a general awareness that this is something that one does from time to time.  


It is important to note that during niddah in particular, the husband may likewise be having sexual feelings and struggling with his urges at a time that he cannot act on them, and for him, masturbating is not a halakhically acceptable option (if he is concerned that if he doesn't masturbate he might be tempted to have sex with his wife when she is a niddah, then that is a different matter.  See בית שמואל, אבה"ע, ס' כ"ג ס"ק א).  This is all the more reason to be in conversation with each other about this, so it does not feel that one person is taking care of her needs, and the other's needs are not even being acknowledged.

Thanks Rabbi Linzer!

Don't forget to tune back in tomorrow for more exciting questions with Rabbi Linzer. Please continue to submit questions anonymously through the link above. 


 Final Question of Day 1:

If a couple has sex the night of their wedding do they need separate immediately following intercourse? It feels like a punishment for couples who actually wait, not even being able to enjoy the a full night together and then separating for at least 12 days. 

If the woman is a virgin and her hymen is not perforated then after the first act of vaginal intercourse, she and her husband have to separate.  This is the principle of דם בתולים, that the first hymeneal bleeding, in the Talmudic and Geonic period, was treated as menstrual bleeding.  This practice even grew to include cases when no actual blood was seen on the assumption that some hymeneal blood must have been present.   


This law would not apply if the woman has had vaginal intercourse in the past or has had her hymen surgically removed.  Nowadays, many women will, by the time of their marriage, already have a perforated hymen due to natural (non-sex-related) activities over the course of her teens and twenties.  If her gynecologist inspects her hymen and tells her that it is perforated in a manner similar to how it would look after the first act of vaginal intercourse, or that in his/her estimation there would be no bleeding as a result of intercourse, then a number of contemporary poskim rule that if no blood is seen, she would not be considered a niddah after the first act of sex.  If, however, there was bleeding, then this would be דם בתולים and she would be a niddah.


As to physically separating and sleeping in separate beds.  Yes - this is very challenging, not only because it means that they cannot continue to be sexual, but also because they just can't hold and embrace one another at a time when they feel emotionally that they need to be doing so.  


In terms of the halakha, the Gemara says that after the first act of sex, the man must פורש, he must to separate from his wife.  The simple sense of this is that they cannot continue to have sex.  Nevertheless, almost all of the Rishonim state that because halakha considers this to be like niddah bleeding, the laws of הרחקות, distancing, applies, and husband and wife must sleep in separate beds, just as they do when the woman is actually in niddah.


It should be noted, however, that רשב"ם (הובא באור זרוע), מחזור ויטרי, ספר האורה, and others from Rashi's school say that they can continue to share a bed if they are not naked and do not engage in sexual touch.  The phrase used is לא להרחיק ממנה כאשה נדה, אלא פורש מתשמיש, הוא בכסותו והיא בכסותה... ומשום כבוד חתנות לא רצו להחמיר ולהרחיקו יותר, "he does not have to distance himself as if she were a niddah, he rather refrains from sex, and they can remain together, he in his clothes (i.e., not naked) and she in hers (so that they will remember not to have sex)... And for respect of the wedding they did not want to be more strict and demand greater distancing."  It seems that these Rishonim are of the opinion that total separation is asking too much at this stage.  While this position is very marginal (it is not quoted in later poskim, and it is mostly unknown), there are those who choose to rely on it at least for the first night, and to sleep together and hold one another, without continued sexual activity, for the first night after intercourse. 


Another way couples deal with this challenge is to not have vaginal intercourse on the first night.  This allows them to be sexual together for a the first night, and the following day, and even another day or two, before they finally move on to intercourse after which she will considered to be in niddah.  Not only does this give them a lot of time together physically and make the separating afterwards easier, it also allows them to expand their sexual repertoire and learn how to please one another and how to be sexual without it all being about intercourse.


There is evidence that this practice has been going on for centuries.  It is a practice that a number of poskim roundly condemn because it leads, according to their psak, to zera li'vatalah, wasting of seed, since the husband ejaculates outside his wife's vagina.  It should be noted, however, that other poskim are of the position that a man ejaculating outside his wife's vagina, if it results from sexual activity between the husband and wife, is not considered zera li'vatalah, as it is part of marital sex.  According to this position, it would be no different than sex during pregnancy or post menopause or when the women is using birth control is not zera li'vatlah.  As you can imagine, this is a matter that is heavily debated.


Finally, I should note that the idea that sex on the wedding night is a mitzvah does not mean that sex must take place on the first night.  As Rav Moshe and many poskim explain, it just means that since it is assumed that they wife wants to have sex that night, this becomes the mitzvah of onah - the husband's obligation to satisfy his wife when she wants sex.  If she does not want to have intercourse that night, then the ביאת מצוה will take place on a later night, when she wants it and is ready for it.

Good morning and welcome back to the fireside chat! Remember, keep submitting questions anonymously using the above link.


Rabbi Linzer-

Is a condom ever permitted according to halakha?

It is generally understood by the larger community that condoms are always forbidden.  Amongst the poskim also, the dominant, although not unanimous, voice is that barring life-threatening situations (for example, a doctor who was poked by a dirty needle and is waiting for the results from an AIDS test, or when pregnancy would be life-threatening for the woman), condoms would always be forbidden.  That being said, the author of the Tzitz Eliezer, Rav Waldenberg, rules in a case where semen causes a painful, burning sensation in the woman, that the husband could use a condom because serious pain is sometimes close to the category of pikuach nefesh.

Thus, one case in which a condom can and must be used is in a case of casual sex, or any situation in which there is a risk of AIDS or venereal disease, such as when the partner's sexual history is not fully known.  While it is not permissible to engage in sex outside of marriage, that does not change the reality that if someone is already doing it, he has an obligation to himself and to his partner of pikuach nefesh, ensuring that he is not endangering lives or the health of himself or others.  See the article, AIDS: A Jewish Perspective, by Rabbi Yizchak Breitowitz, for more on this topic, as well as a Joy of Text podcast where we addressed this issue.

As I mentioned, while the dominant approach is that it is forbidden, there are other positions.  The key question is whether this would be considered zera li'vatalah.  Although the man ejaculates as a result of marital sex, the semen never enters into the woman's body.  Does that make it zera li'vatalah or not?

The restrictive approach is based on a number of Gemarot, particularly one that has to do with women using a mokh, some type of a sponge that caused semen to spill out of the vagina after ejaculation. There is a debate how to interpret this gemara and which position to pasken like.  For a number of Rishonim the conclusion is that except for life-threatening situations, the use of such a mokh is forbidden.  Most poskim follow this position and rule that a condom, like a mokh, is strictly forbidden. 

However, other Rishonim rule otherwise and state that a mokh is always allowed and the debate in the Gemara was only whether it was required in some circumstances (a detailed discussion and analysis of these approaches can be found in David Feldman's "Martial Relations, Birth Control and Abortion in Jewish Law").  The Maharshal in his Yam Shel Shlomo follows these Rishonim and rules that as long as the sex is taking place in a normal way - גוף נהנה מן הגוף - one body deriving pleasure from the other body - it is permissible and not considered zera li'vatala.

This becomes part of a larger discussion rooted in a sugya in the Gemara regarding anal sex, as to whether semen ejaculated in the course of martial sexual activity but not inside the woman's body should be defined as zera li'vatalah or not.  This could include not only anal sex, but also oral sex or ejaculation as a result of manual stimulation by the wife.  A number of Rishonim say such cases do constitute zera li'vatalah, there are conflicting manuscripts as to what Rambam says on the matter, and the RI in Tosafot and the Tosafot haRid say that it is not zera li'vatalah.  

RI however states that for a man to withdraw before ejaculation and ejaculate outside his wife for the purpose of preventing pregnancy would be considered zera li'vatalah because then the man is purposefully being maschit the zera, destroying the semen, and it is not just a natural consequence of sexual activity between husband and wife.  

Thus, even RI who is more lenient in general might forbid the use of a condom since this could be defined as intentionally destroying the seed.  It is, however, possible to distinguish between the two cases, and to say that withdrawing to ejaculate outside the vagina is in itself an act of haschata, destroying the seed, whereas ejaculating naturally during sex, even if a condom were put on before, is defined just as ejaculation, and not an act of destroying the seed.

Thus, while the dominant voice is that condom use is forbidden save life-threatening situations or serious health issues, there are some poskim who follow Maharshal (and RI, understood in one way), and who are lenient in cases when other options of birth control are not working.  Again, ask you local posek(et)!
We received this fascinating question:
I am an Orthodox Jewish man who is autogynephilic, which means that I am sexually aroused by the thought or image of myself as a woman. What does Halakhic tradition have to say about such a condition?

You can hear Rabbi Linzer answer this question, and talk about discussing sex with your children,  on episode 7 of the Joy of Text, coming soon! 


Our next question is:
I am a single bi-sexual woman living in NYC. What are the halakhic parameters of lesbian sex? What is muttar and what is assur?  What is the letter of the law and what is the spirit of the law? I've never been sexually active with another woman though I would very much like to do so. 

Halakha defines sexual intercourse as penile penetration of the anus or the vagina.  Thus, (anal) sex between two men is defined as sex and forbidden by the Torah, while sex between two women is not defined as sex, and thus not forbidden in the Torah's list of arayot, sexual sins.

 

What about according to the Talmud? The Bavli, interestingly, discusses this phenomenon (which it refers to as נשים מסוללות / מסולדות זו בזו, women who sport with one another / rub up against one another) in two places.  In Yevamot 76a, the Gemara quotes Rav Huna who states that a woman who engages in such behavior is considered a zonah and forbidden to a Kohen.  Rava, and the Gemara, reject this and state that since there is no halakhic act of sex, the woman’s status cannot be affected by this act.  This act, concludes the Gemara, is פריצותא בעלמא, “mere wantonness.”  (See also Yerushalmi Gittin 8:8 for a parallel debate between Beit Hillel and Beit Shammai).  This phrase indicates that while the act is seen as morally reprehensible, it is not technically forbidden according to halakha, even Rabbinically.

 

This is also the sense that emerges from the other sugya, in Shabbat 65a.  There, the Gemara states that Shmuel’s father did not let his daughters sleep together in the same bed.  The Gemara rejects the possibility that this is because their rubbing up against one another may itself be seen as forbidden.  It concludes that the concern was only that if they become accustomed to sleeping with another person they may have sex with a man before they are married (see Rashi, there).  The simple sense of the Bavli is that there is no halakhic prohibition, possibly because the Bavli does not recognize this as real sexual activity, let alone an act of intercourse.

 

There is however one Rabbinic source that is more stringent.  The Sifra, the Tannaitic commentary to Vayikra, states that to institutionalize marriage between two men or between two women would be a violation of the prohibition כמעשה ארץ מצרים לא תעשו... ובחוקותיהם לא תלכו, “Like the acts of the Land of Egypt you shall not do… and their edicts you shall not follow.”  On the one hand, this is significant in that it makes the relationship between two women parallel to the relationship between two men.  This might indicate that it would view the act of sex between two women more stringently as well.  On the other hand, the Sifra only refers to the institution of marriage (as the verse can be seen to be referring, in general, to societal institutions), and not to the act of sex per se.

 

Given that the Sifra is not quoted in the Bavli, and that it is referring only to marriage and not to sex, it would have been reasonable to expect that we would rule that sex between two women, while considered פריצותא, wantonness, is not technically forbidden.  Halakha however did not go that way because of how Rambam ruled. Rambam, both in his Commentary to Mishna (Sanhedrin 7:4) and in his Laws of Forbidden Sexual Relations (20:8) quotes the Sifra and states that sex, and not just marriage, between two women is forbidden as a violation of the “acts of Egypt”.  He makes it clear that this is not halakhically defined as sex per se, and hence a woman who did such an act would not be considered a zonah, and would not have committed an act of adultery.  Nevertheless, he states that such activity is unambiguously forbidden.

 

Shulkhan Arukh (Even HaEzer 20:2), follows Rambam and rules that sex between two women in forbidden based on the verse prohibiting the “acts of Egypt.”  The only remaining question in the poskim is whether this is a Biblical or Rabbinic prohibition, and whether it is forbidden under all contexts, or only in a marriage or marriage-like context (see Otzar HaPoskim, EH 20:2).

 

For further reading, see the article “Two Women Who Were Sporting with Each Other” by Admiel Kosman and Anat Sharbat.

 

To conclude, such activity is certainly seen as wrong according to the spirit of the law.  According to technical halakha, it is fair to say that according to most poskim it is at least rabbinically forbidden, although there are some who would take issue with Rambam or limit Rambam to only certain marriage-like contexts.

 

What has not been addressed is also the question of engaging in any sexual activity outside of marriage.  Halakha and tradition underscore that sex is something that should be done only in the context of a long-term, committed relationship, specifically marriage.  It is this that sanctifies the act of sex and makes it about connecting deeply to another person and not just about gratification of desire.  This is an important ethos to keep in mind at all times.

Thank you everyone who submitted questions! Please keep them coming by submitting anonymously using the link above. Tune back in tomorrow for more questions with Rabbi Linzer.


Final question of the day:

Why is it forbidden for an unmarried woman to immerse in a mikveh?

This is actually a relatively late practice.  In the time of the Gemara, married and unmarried women immersed in a mikveh at the end of their niddah period, as would men after they had become טמא through seminal emission or other ways.  This was so that ritual impurity, טומאה, would not be transferred to sanctified foods, such a תרומה.  When the concerns with sanctified foods became relatively moot (especially for those who lived outside of the Land of Israel), and when טומאה became widespread and inescapable, both men and women stopped going to the mikveh just to remove ritual impurity.   Women, of course, continued to go to the mikveh at the end of their period of niddah, so that they and their husbands could resume sexual relations.  Since unmarried women were as a rule not having sex, there was no need for them to go to the mikveh, and thus in practice it became something that was done only by married women.


The issue of unmarried women using or not using the mikveh is addressed by Rivash (Rav Yitzchak bar Sheshet, 14th Century, Spain) in a responsum (425).  Rivash was asked whether the laws of niddah apply only to married women, given that all the codes that talk about niddah speak exclusively about married women.  The questioner goes further to ask that if niddah does indeed apply to unmarried women, why did the Rabbis not make it a practice for unmarried women to go to the mikveh, so that they would not transgress the prohibition of niddah were they to have sex.  


Rivash first makes clear that the prohibition of niddah applies whether a woman is married or not, and that the focus on married women in the codes is based on the assumption that unmarried women are not having sex.  As to why there was no practice established for unmarried women to go to the mikveh, Rivash states that this would only open the door to widespread pre-marital sex, something that, while not as severe as the prohibition of niddah, remains forbidden.  If the weightier restriction of niddah were removed, people would feel that they have a license to engage in pre-marital sex.  It is better, he states, for unmarried women not to go to the mikveh, as this will keep the weightier restriction in place and help serve as a deterrent against pre-marital sex.  This teshuva of the Rivash is quoted in the Beit Yosef (Yoreh Deah 183), and referred to Rema (YD 183).


Some later authorities have interpreted the Rivash's position to mean that there was actually a takanah, a post-Talmudic decree, that unmarried women cannot use the mikveh, but there is no evidence of this in the Rivash.  Rivash does not state that a ruling was made to forbid using the mikveh.  He rather explains why the Rabbis did not specifically make it a practice for all women to use the mikveh (and this is how it is quoted in Be'er Heitev, YD 183, no. 6).  Nevertheless, it is clear from Rivash that he feels that it would be a bad societal practice for unmarried women to use the mikveh, as this would increase the occurrence of pre-marital sex.   


It is finally worth noting that non-use of the mikveh by unmarried women, and the fact that all discussions of niddah and mikveh-use focus on married women, reinforces the misconception, already seen in the question posed to Rivash, that these laws do not apply outside of marriage.  This is probably further reinforced by our use of the term taharat ha'mishpacha, family purity, to refer to the laws of niddah, rather than referring to it directly as "hilkhot niddah".  I have come across more than a few observant women who believe that the laws of niddah only apply once they are married.   Thus, while on the one hand we need to underscore that the mikveh is meant to be used by married women, since one is only supposed to be having sex in marriage, it is at the same time critical to educate people that the laws of niddah apply in all contexts, whether the woman is married or not.

Welcome back to another exciting day of questions with Rabbi Linzer. 

Please keep the questions coming! 


Rabbi Linzer-

Is there any hope for a gay man to live a meaningful sexual and romantic life with another man within halakha?


This is one of the most challenging religious and halakhic questions that we are facing today, and I think that our focus has to be not on halakha, but on communal acceptance and on making gay men and women, and their spouses or partners, as well as their children, fully welcome and fully a part of our communities, synagogues, and schools.


Regarding halakha, as I am sure you are aware, there is a Biblical prohibition for two men to have (anal) sex with one another.  This does not necessarily mean that two men cannot, within halakha, live in the same home, have a committed, loving relationship, and raise children (if they choose) together as a family.  


That being said, we should note that while the Gemara states that there is no prohibition of yichud for two men (Kiddushin 81b), the Shulkhan Arukh (EH 24) states that when there is a concern that they will have sex together, they should not be in yichud, and the Chelkhat Mechokek points out that in such circumstances they certainly cannot sleep in the same bed.  Whether this is meant as a strict halakhic requirement as part of the rabbinic rules of yichud (this seems to be the Vilna Gaon's understanding, see his note there in EH), or whether it is a practical, yet non-halakhic, safeguard to prevent against transgression, is not clear.


Regarding sexual acts other than anal sex, we should first note that the Talmud never explicitly deals with sexual touch between two men.   Nevertheless, it would seem obvious that those acts which are seen as quasi-sexual intercourse, what the Gemara refers to as a ביאה דרך אברים, sex by way of other body parts, such as oral or manual sex, while not as severe as anal sex, would still definitely be forbidden, quite possibly Biblically according to Rambam ("thou shall not draw near to uncover nakedness - see more on this, below) and according to Ramban's idea of חצי שיעור "half-measure" (see Monday's discussion on נגיעה, sexual touch). 


As far as sexual touch that is not quasi-intercourse is concerned (and not to be confused with loving, intimate touch, see the discussion from Monday), it would also seem that such acts would be prohibited Biblically according to Rambam, based on the verse "you shall not draw near to uncover nakedness," which for him refers to any sexual touch in the area of arayot, forbidden sexual relations.  This certainly is the position of the Minchat Chinukh (on Sefer HaChinukh, mitzvah 188), who says that this is פשוט, obvious.  It should be noted, however, that the Sefer HaChinukh itself, in describing the scope of this Biblical prohibition (of sexual touch), states that it applies to the arayot, והן קרובות ואשת איש ונדה, "and they are those forbidden based on incest, and married women, and a niddah."  His omission of the case of two men may just have been because this was not on his radar screen as a case which would actually occur, but it is curious that he omits it (see also Rambam and Ra'avad, Laws of Forbidden Sexual Relations, 14:18).   Finally, when Shulkhan Arukh discusses the prohibitions of sexual touch (EH 21), he does not deal with sexual touch between two men.  Again, this may be because this was not on his radar screen, although interestingly, his statement regarding yichud (EH 24), quoted above, would indicate otherwise.


Bottom line, sexual (again, in contrast to loving and intimate) touch between two men is assumed in the poskim to be forbidden, possibly (and depending on the context) according to the Torah, but certainly according to Rabbinic law, although, again, the Talmud and Shulkhan Arukh do not address this directly.   It should be reiterated that not all acts of sex and sexual touch carry the same halakhic weight.


On a communal level, we should be very wary of assuming that we know what goes on behind closed doors.  It also is none of our business. We do not presume to know, or believe it our business to know, which family is or is not keeping the laws of niddah, and to judge them accordingly, and this should be no different.  Finally, we should also remember that sexual touch between a man and a woman who are not married to each other is unquestionably forbidden according to halakha (whether Biblically or Rabbinically), and yet it occurs commonly in our high schools and in college and during the dating years, without much communal or rabbinic censure, for better or worse.  In the end, our focus must be on the welcoming and accepting gay individuals and families into our communities, our synagogues, our schools, and our homes.  

 

This is certainly one of the most challenging issues facing our community today. Thank you for that thoughtful and thorough answer and reminder that our job is not to judge, rather our job is to open our hearts and our communities.


Our next question:

I was  was sexually abused as a child by my father. Working with a therapist, I am working through the process of consciously remembering and trying to heal the trauma. I have a supportive, understanding husband who understands when I don't want to or am not able to have sex, but I love him and don't want to always say no to him even when that would be my preference. Is it ok to take Valium before sex so I can tolerate it as a gift to my husband?

Let me start by saying how my heart goes out to you for what you have suffered.  May you continue to draw on your own inner strength, and the support of your therapist and understanding husband, so that you can further the healing process and find some degree of peace.

It sounds to me like your question is less a halakhic one and more one that you should be discussing directly with your husband or together with a therapist.   Would your husband want you to take Valium so he could have sex with you?  How would that impact the dynamics of how you were having sex?  Would you be able to feel connected emotionally?  I think these and similar questions are ones you would have to talk through first to determine that this is something that you both would want to do.

Regarding halakha, it is important to remember that one of the strongest demands that halakha makes in terms of how a husband and wife are having sex, is that it be ברצון שניהם ובדעתם, with both of them as willing and active participants, and that it be in the context of connecting to one another, and not using the other person.  A man is not allowed to have sex with his wife when she is sleeping or drunk, for example, because she is not truly present in the act.  If you were to use Valium, you should make sure that you are still able to be present when having sex.  I am sure that this is something that you would both ideally want as well.  

It would also be worth exploring if there are ways you could be having sex that would work for you without your feeling that you would need to take Valium.  For example, what about having sex without vaginal intercourse, such as oral sex, or using your hands?  As we discussed above in the question on condoms, there are poskim who say - and this is my psak as well - that there is no halakhic problem for the husband to ejaculate outside the wife's vagina in the course of sexual activity between the two of them.  Given that, I would explore if oral or manual sex would be an option that would work for the two of you.   Perhaps it would work for you in one direction (who is providing and who is receiving), but not in the other.  Either way, this is something for the two of you to explore.

I wish you strength and perseverance as you continue to work through the healing process with the help of your therapist and your husband.

 Thank you Rabbi Linzer for that poweful answer and thank you to all of our submitters for sending honest and compelling questions that are pushing our community to grow and understand one another! 


To hear more questions like these, interviews, and discussions with Rabbi Linzer and Dr. Batsheva Marcus please listen to our podcast The Joy of Text available on iTunes or at TheJoyOfText.org


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