Class Notes - Class #7

Mitzvah #197 and 198 prohibit a man from having sex with his aunt; #197 relates to his father’s sister, and #198 relates to his mother’s sister.  The sisters can be full sisters or half-sisters, whether from a proper or illicit relationship.  The punishment for breaking these mitzvot b’mazid is karet.

            Mitzvah #199 prohibits a man from having intercourse with his father’s brother.  This applies to the father’s full brother or half-brother, from a proper or illicit relationship.

Like the prohibition on having sex with one’s father, this is redundant with the prohibition on male homosexual sex in mitzvah #209.  Both participants are punishable with the death penalty if they acted b’mazid and there were witnesses and warning.  It’s not clear from this essay whether each participant is being punished for violating this mitzvah, though; they could each be subject to the death penalty for violating mitzvah #209 which prohibits male homosexual sex.  Look carefully at the last line of this essay.  If they act b’shogeg, the author says the nephew is required to bring two hattat sacrifices, whereas the other, presumably the nephew, is only required to bring one.  We will see in mitzvah #209 that both the active and passive partner violate the prohibition against male homosexual sex and both are punishable.  That would explain why each partner here, the nephew and his uncle, have to bring one hattat.  So it seems that only the nephew is actually punishable for violating this mitzvah.

            Mitzvah #200 prohibits a man from having sex with his aunt, his father’s brother’s wife.   She becomes his wife at eirusin, but the prohibition remains in effect after the uncle’s death of if the aunt and uncle get a divorce.   The prohibition does not apply to a woman involved in a sexual relationship with the uncle outside of marriage. 

            To understand the permutations of relationships that the author discusses, note that there are six possible relationships between the man and the wives of his uncles:

1.      the wife of his uncle who is his father’s full brother,

2.      the wife of his uncle who is his father’s half-brother, the brothers having a common father,

3.      the wife of his uncle who is his father’s half-brother, the brothers having a common mother,

4.      the wife of his uncle who is his mother’s full brother,

5.      the wife of his uncle who is his mother’s half-brother, the brother and sister having a common father,

6.      the wife of his uncle who is his mother’s half-brother, the brother and sister having a common mother.

The d’oraita mitzvah applies to the wife of the man’s father’s full brother (case #1).  Also, if the father has a half-brother, and the brothers have a common father, this mitzvah applies (case #2).  The author says sex between a man and an aunt of any of the other four types is forbidden, but only d’rabanan.  For example, if the father has a half-brother, and the brothers have a common mother, then sex between the father’s son and the father’s brother’s wife is only prohibited d’rabanan.  (Or course if the uncle and aunt are still married, this sexual encounter is also adultery.)  The rabbis also forbade sex between a man and his mother’s brother’s wife, whether the mother and her brother are full siblings or half-siblings on either side. 

            In the punishment section, the author points out that the punishment for a sexual encounter that is adultery is death by strangulation.  Here, though, if the uncle has died, the man who has sex with his aunt has only violated this mitzvah.  If there are witnesses and warning, he is punishable with malkos.  If there are no witnesses but the man acted b’mazid, he is punishable with karet.  If the man acted b’shogeg, he brings a hattat.  If he had sex with one of his aunts that he is forbidden to have sex with by a rabbinic prohibition, and the uncle was no longer alive, he gets makkat mardut.  If he did that b’shogeg, he is not punishable at all.  I don’t think the author has ever explicitly said that someone who breaks a d’rabanan prohibition b’shogeg is not punishable at all.

            Mitzvah #201 prohibits a man from having sex with his daughter-in-law, the wife of his Jewish son.  As we have seen before, the prohibition begins when the son and daughter-in-law undergo eirusin, and the mitzvah survives the death of the son or the divorce of the son and daughter-in-law.  The prohibition applies even if the son is the product of an illicit relationship, but not if the mother of the child is not Jewish.

            The author explains that the rabbis prohibited sex between a man and his grandsons’ wife, his great-grandson’s wife, etc. down the generational chain.  The rabbis also prohibited sex between the man and his daughter’s son’s wife.  They did not continue to prohibit comparable relationships down the generational line through daughters, though, since the main focus of this mitzvah is on the son’s branch of the family.

            The punishments follow the pattern we have established clearly in the other mitzvot we have seen.

            The final incest prohibition is mitzvah #202, which prohibits a man from having sex with his sister-in-law, the man’s brother’s wife.  The brother involved here is a full brother or either kind of half-brother, whether or not the brothers’ parents were married to each other. The prohibition begins when the brother and his wife undergo eirusin.  It survives the divorce of the brother and his wife.  It also survives the death of the brother, but that proposition is more complex for this mitzvah than it is in other parallel prohibitions we have seen.  In particular, if the brother dies before he and his wife have children, the man whose brother has died has an obligation to marry and have children with the widow, the mitzvah of “yibum.”  So here, either the man has a prohibition to have sex with his sister-in-law or he has a mitzvah to marry her.  We shall return to that complex topic later in our study.

            As to punishments, if the man has sex with his sister-in-law while his brother is still alive, both are punishable with death by strangulation for adultery.  If he has sex with his sister-in-law after his brother divorced her, or after the couple already had children and then after the brother died, the punishment is karet if the act was b’mazid and a hattat if the act was b’shogeg. 

            So far we have seen a series of incest prohibitions.  The author wrote about these mitzvot as if the only prohibition was on the man involved, not on his partner.  The author pointed out that the partner might be punishable if the partner broke some other applicable mitzvah, like the prohibition on male homosexual sex or on adultery.  We will return to consider the question of the man’s partner after the next group of mitzvot.

 

The next set of mitzvot forbid a man from having sex with a woman and also with certain of her close female relatives.  We saw a little bit about some of these mitzvot when we studied the g’zairah shavah justifying the prohibition on a man having sex with his daughter.

Mitzvah #203 prohibits a man from having sex with a woman and her daughter.  This mitzvah begs for careful definition, especially as to timing.  The rabbis rely on the work “tikah,” “take” to interpret the prohibition to mean having sex with the daughter of a woman the man has married.  D’oraiata, the prohibition is not triggered if the man has sex with a woman without marrying her and then has sex with her daughter.  But the rabbis extended the prohibition, so that if a man had sex with a woman without marrying her, he is forbidden to marry her daughter or her other close female relatives during the woman’s lifetime.  (More on those close relatives shortly.)  The prohibition survives the death of the wife.  This mitzvah prohibits a man from having sex with his step-daughter; that is a relationship that leaves the step-daughter particularly vulnerable, a situation that is still common and dangerous.

Here, the author says both sexual partners are liable for violating this mitzvah.  The woman married to the man has not violated this mitzvah; her daughter who has sex with him after the marriage is liable.  The author cites Rabbi Akiva, who constructs a case where the man and both women are liable.  If a man married a woman and then her daughter and her granddaughter,  then each of the second two women he had sex with would have been violating this mitzvah.  The author knows both sexual partners are liable because there is a verse that explicitly says so.  (See Lev. 20:14.)

The punishment for the couple who break this mitzvah while the man’s wife (also the woman’s mother) is still alive is death by burning, assuming there were witnesses and warning.  If the wife has died, the couple is punishable by karet if they acted b’mazid and by bringing a hattat sacrifice if they acted b’shogeg.

Mitzvah #204 and 205 prohibit a man from having sex with a woman and also her granddaughters, #204 for her son’s daughter and#205 for her daughter’s daughter.  As with the prior mitzvah, the man has to be married to the grandmother; then when the man has sex with one of her granddaughters, both he and the granddaughter have broken these mitzvot.

The rabbis extended the prohibition to the wife’s great-granddaughters.  They also prohibited him to have sex with various female relatives of the wife’s father, the details of which we will not go into.  (We already have plenty of details to deal with, and we have more to go.  Feel free to untangle these on your own if you like.) 

Punishments for violations of the Torah prohibitions are exactly parallel to what the author said about mitzvah #203.  In these two mitzvot, though, the author also comments on the punishment for violating the rabbinic prohibitions.  The punishment is makat mardut, and the author seems to say that only the man involved gets that punishment.

In this essay, the author gives a summary of which of a wife’s relatives her husband is prohibited from having sex with.  Seven are prohibited by Torah law:  the wife’s 1. mother, 2. maternal grandmother, 3. paternal grandmother, 4. daughter, and 5. son’s daughter, and 6. daughter’s daughter, and 7. sister.  The man who has sex with his wife’s mother is violating mitzvah #203; he is having sex with a woman and her daughter.  Similarly, a man who has sex with his wife’s grandmother is violating mitzvah #204 or #205.  We will see the prohibition on the man having sex with his wife’s sister in mitzvah #206.  The author also summarizes the extensions of those prohibitions made by the rabbis.  Feel free to list those for yourself.

Mitzvah #206 prohibits a man from having sex with his wife’s sister, whether or not he married the sister. (Remember that a man is permitted to have more than one wife by Torah law.)  The prohibition begins when the man and his wife undergo eirusin.  The prohibition survives even if the couple gets divorced; the ex-husband is still prohibited from having sex with his ex-wife’s sister.  But the prohibition ends when the wife dies; after her death, the man may marry her sister.  The prohibition applies to the wife’s full sister and half-sister, whether or not the sexual encounters that resulted in either or both of the sisters were permitted or prohibited.

The author reflects what the source verse says about this mitzvah, that the shoresh of this mitzvah is that a man marrying two sisters will likely lead to tension and unhappiness.  God, in favor of peacefulness and serenity, prohibits that situation.  The author does not mention the story of Rachel and Leah, both married to Jacob, but that story certainly fits the theme.

Like mitzvah #202, this mitzvah interacts with the institutions of yibum and halitzah, and the author expands on those relationships here.  When a couple is married and the man dies before the couple has children, the widow and the husband’s brothers have a special relationship.  One of the husband’s brothers has a mitzvah to marry the widow.  That is a form of marriage called yibum.  If the couple does not marry, one of the brothers and the widow undergo a form of divorce called halitzah.  There can be a period of time after the husband dies and before yibum or halitzah have happened.  During that time, the widow is considered to be “z’kukah,” “bound” to the brothers.  We will learn more about these situations late in our study. 

Here, the author considers how yibum and halitzah relate to the prohibition on a man having sex with his wife’s sister.  That becomes relevant because the rabbis prohibit a man from having sex with the sister of a woman who is z’kukah to him.  The brothers have an obligation to marry the widow, although none of the brothers are married to her yet.  The rabbis prohibit the brothers from having sex with the widow’s sister while that relationship exists.  If one of the brothers marries the widow, that brother will be prohibited from having sex with the widow’s sister during the widow’s lifetime, so the rabbis extend that earlier in time when the marriage is a possibility but has not happened yet.

Further, if the widow and one of the brothers undergo halitzah, the rabbis prohibit the brother from having sex with the sister of the widow.  Halitzah is parallel to divorce, and the mitzvah here prohibits a man from having sex with his wife’s sister while the wife is alive even if the husband and wife have divorced.

The situation is more complicated in a case where, when a man dies, one of his brothers has undergone eirusin with one of the widow’s sisters.  According to the rabbinic prohibition we just saw, he should be prohibited from marrying her or having sex with her, since she is z’kukah to him.  But that would be a tragic end to the brother’s marriage, which the rabbis would rather not do.  Also, if the husband who died had more that one brother, any one of those brothers is obligated to yibum or halitzah.  If one brother does either of those, the other brothers no longer have any personal obligation.  So here, the rabbis put the brother’s marriage to the widow’s sister on hold, pending one of the other brothers taking care of yibum or halitzah. The widow is no longer z’kukah to him, so the brother can complete his marriage to the widow’s sister.  But that solution only works if there is another brother to take care of yibum or halitzah.  If there is no other brother, the author says the brother must arrange halitzah with the widow and divorce the widow’s sister.  If one of the sisters dies, though, the brother is free to marry the remaining sister.

The author summarizes the punishment rubric for this mitzvah, with which we are thoroughly familiar by not.  As opposed to the other mitzvot we have seen in this series, the author says the punishment for breaking this mitzvah b’mazid and with witnesses and warning is malkos.  If there were not witnesses and warning, the punishment is karet.  The author writes about the punishments as though only the man involved is punishable.

At the end of this essay, the author covers a topic we mentioned in our last class.  If a man and woman who are forbidden to have sex with each other by one of these mitzvot marry each other, what is the state of that marriage? 

When a man has sex with his wife’s sister, the man may remain married to his wife.  (One might suspect that the wife would prefer a divorce, but that is not the issue here.)  That is true whether he married the sister or did not marry the sister. The man has violated this mitzvah by trying to marry the sister, whether or not he had sex with her, but the attempted marriage to the sister is invalid.  He does not need to divorce the second sister, because despite the ceremony, he did not succeed in marrying her. 

The author says that the same is true if a man tries to marry any of the women considered “arayot.”  He never does define that term precisely.  He specifies that the same applies to the seven of his wives female relatives he is forbidden from having sex with; we saw that list in mitzvah #205.  It seems reasonable that any of the Torah prohibitions in this series of mitzvot would be included.  The man may remain married to his wife, and the other women do not need a divorce since their marriage to him did not take effect. 

The author describes one exception the rabbis created lest people be misled into thinking it is permissible for a man to marry two sisters.  Let’s say a man and woman had eirusin.  After that, he married her sister.  We would expect that, having had eirusin with the first woman, he could stay married to her.  Since that marriage took effect, the second marriage was void and the sister did not need a divorce.  But the rabbis require him to divorce both women.  They require him to divorce the second sister lest people think there was some stipulation that could have been put on the first marriage that would make the second marriage permissible.  Once he divorced the second sister, the rabbis had to require him to divorce the first sister, lest people think it was OK for him to marry the sister of a woman he had divorced.

 

Before we go on to learn about other forbidden sexual relations in our next class, we need to ask whether the author thinks the mitzvot we have seen so far are prohibitions only on the man to whom the verses are addressed, or on his partner also. 

The author has been very careful throughout his work to explain exactly to whom each mitzvah applies.  There is no reason to think he would do differently here.  If we read him carefully, it would seem that most of these mitzvot apply only to the man, although the author never says that explicitly.  Rather, we understand the author’s position based on what we would have expected him to say but which he does not say.

There are cases where the author says both sexual partners are punishable.  As we will see next week, the author says both the active and passive partner in male homosexual relations have violated mitzvah #209. In mitzvot #203 – 205, which prohibit a man from having sex with his wife’s daughter and granddaughters, the author says specifically that the women are also punishable. Lev. 20:14 specifically says that both the man and the women should be punished if they violate mitzvah #203. 

Otherwise, the author speaks only of the man involved.  In the punishment section of mitzvah #199, which prohibits a man from having sex with his father’s brother, the author implies that the uncle is not punishable for breaking this mitzvah.  (See our discussion of that mitzvah above.)

It also seems that the author thinks that when a couple violates one of the rabbinic extensions of these mitzvot only the man is punishable.  In mitzvot #204, 205 and 206, where the author says both members of the couple are punishable if they violate the d’oraita prohibitions, when he describes the punishment for violating the rabbinic prohibitions, the author only mentions the man.

It would seem the author’s opinion on the question of who these mitzvot apply to is clear.  But other factors make it hard to see how the author could take that position.  Recall that the rabbis insist that where violation of a mitzvah is punishable, we must be able to identify a verse that defines the prohibition and a separate verse that delineates the punishment.  The verses that underlie these prohibitions are all phrased as prohibitions on the man.  But the midrash halachah, quotes in the Talmud Yerushalmi, identifies a source verse for these prohibitions on the woman as well.  (See Lev. 18:29.  The term “v’nichre’tu haneshamot,” is in plural, to include women.)  The verses that define the punishments for many of these mitzvot appear in Lev. 20: 11 – 21, and those verses all describe the punishments in plural, implying that both partners would be punished.  Rambam says explicitly that both the man and woman are prohibited from engaging in any of the arayot.  (See Hilchot Issurei Biah 1:1.) 

 Given that, the author’s position seems untenable.  Nevertheless, the author typically writes very precisely, and it is clear he is writing precisely about the punishments for these prohibitions.  I have no explanation for the author’s position here, but any suggestions are welcome.

 

 

 

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