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Laws of Religion

Laws of Judaism Concerning Women and Men

 

10. Forbidden Sexual Acts

from the Biblical Books of Moses (Torah),

the Code of Maimonides (Mishneh Torah)

and the Shulchan Aruch

 

 

Forbidden Sexual Acts

From the Biblical Books of Moses (Torah)

 

The Torah tells about how Abraham’s wife, Sarai, did not have any children so she gave her female slave, Hagar, to Abraham so she, Sarai, could have children through her.[1] As a result, Ishmael was born.[2]

 

Similarly, when Rachel had no children, she gave her female slave, Bilhah, to her husband, Jacob, so that Rachel could have children through Bilhah. Bilhah had two sons of Jacob’s, Dan and Naphtali.[3]

 

When Jacob’s other wife, Leah, was no longer able to bear children, she gave her female slave, Zilpah, to Jacob and two sons, Gad and Asher, were born as a result.[4]

 

(Editor’s note: These four sons born to the female slaves belonging to Jacob’s wives became the founders of four of the twelve tribes of Israel, just as the sons Jacob had with his wives, Leah and Rachel, were the founders of the other tribes.)

 

The Torah says that Abraham had concubines. He gave gifts to the sons that he had with these concubines and sent them away from his son Isaac, whom his wife Sarah had borne.[5]

 

The Torah tells the story of how the men of Sodom tried to get Lot (Abraham’s nephew) to give up two male guests to them so they could rape them. The men of Sodom turned down Lot’s offer to give them his daughters instead. As a result, the men of Sodom were punished by being struck blind.[6] (Editor’s note: The story of Lot (Lut) is also told in the Qur’an, reflecting similar condemnation by Islam of the men who would seize and rape Lot’s male guests.)

 

During their travels from Egypt to Canaan, Israelite men had sexual intercourse with Moabite women and were enticed into worshiping their deity, Baal-Peor. This caused the Lord to order that the Israelite leaders be impaled. Moses ordered that all those who had worshiped the Moabite deity should be killed. When Phinehas, a grandson of Aaron, drove a spear through an Israelite man and a Midianite woman he was with, the Lord rewarded him and ended a plague that had already killed 24,000 Israelites[7] – a plague that the Lord had inflicted upon the Israelites for worshiping Baal-Peor.[8]

 

When Onan’s brother died, Judah told him to have sexual intercourse with the widow to create offspring for his dead brother (in accordance with the rules of levirate marriage). But when Onan had intercourse with his brother’s widow, he would always spill his semen on the ground because he knew that any child that resulted would not be his. This displeased God, so he killed Onan.[9]

 

 

The Torah lists close relatives that a man is forbidden to have sexual intercourse with: his mother,[10] his father’s wife (even if she is not his mother),[11] his sister (even if they have only one parent in common),[12] his granddaughter,[13] his aunt,[14] his son’s wife and his brother’s wife.[15] Also forbidden is a woman and her daughter or granddaughter, a woman and her sister while the original woman is still alive, the wife of a neighbor and any woman who is menstruating.[16] A man is also forbidden to have sexual intercourse with another man.[17] Both men and women are forbidden to have sexual intercourse with any animal.[18]

 

God says that Israelites will be cast out of the Land if they engage in such acts, just as the nations who lived on the Land before them were to be cast out because they committed these abominations. Anyone who does these things – their soul will be cut off from their people.[19] If a man has sexual intercourse with his father’s wife, his son’s wife, with a woman and her daughter or with another man, both shall be put to death.[20] If a man or a woman has sexual relations with an animal, both the person and the animal shall be put to death.[21] When sexual relations occur between a brother and sister[22] or between a man and a menstruating woman,[23] both of them shall be cut off from their people. The punishment when a man has sexual intercourse with his aunt or with his brother’s wife is that both of them shall be childless.[24]

 

When a man and a woman have a child even though their relationship to each other means they are forbidden from having sexual intercourse, that child (mamzer) shall not be permitted to be part of the congregation of the Lord. This ban shall hold for ten generations.[25]

 

 

If a man has sexual intercourse with another man’s wife, they are both to be put to death.[26] If a man has sexual relations with a female slave who is betrothed to another man, they are not to be put to death since she is not free. The man shall make a guilt offering of a ram to a priest, and he will be forgiven.[27]

 

If a man suspects that his wife has committed adultery but has no witness to prove it, he is to take her to the priest. The priest will mix dust from the floor of the Tabernacle (Temple) into holy water. Then he will write the curses of punishment and wash the curses into the water. The woman shall drink the water and if she is guilty it will be bitter, her belly will swell, her thigh will drop and she shall become a curse among her people. But if she is innocent of the accusation, the water shall not have any ill effects on her. She will be able to bear children and her husband will be free of any guilt as well for having accused her out of jealousy.[28]  

 

 

If a virgin is betrothed to a man and she has sexual intercourse with another man in the city, the woman shall be stoned to death because she did not cry for help and the man shall be stoned to death for defiling his neighbor’s wife. But if the man forces himself upon her out in a field, the man shall be executed but the woman shall be let free because it is possible that she cried out for help and there was no one to rescue her.[29]

 

If a man forces himself upon a virgin who is not betrothed, he shall pay fifty shekels to her father and marry her. He is not permitted to divorce her ever because he has defiled her.[30]

 

If a man marries and, after having sexual intercourse with his wife, he finds that he hates her so he claims that she had not been a virgin, then the woman’s parents shall show the bloodstained cloth to the city elders to prove her virginity. The man shall be punished for slandering a virgin of Israel by paying 100 shekels to the woman’s father and by never being permitted to divorce his wife. However, if no evidence of the wife’s virginity is found, she shall be stoned to death for acting as a whore while in her father’s house.[31]

 

 

A man is not to turn his daughter into a prostitute, lest the whole land become depraved.[32] No Israelite woman or man shall be a cult prostitute. No earnings of a prostitute, woman or man, shall be brought into the house of the Lord in payment for any vow.[33] If the daughter of a priest (a male descendant of Aaron) engages in prostitution, she is to be executed by burning.[34]

 

A woman shall not wear men’s clothing and a man shall not wear a woman’s garment. This is an abomination to the Lord.[35]

 

Forbidden Sexual Acts

Jewish Law (Halakha) from the Code of Maimonides (Mishneh Torah)

 

Contents:

 

General prohibitions

 

Being alone in private with another

 

Accusations of forbidden sexual intercourse

 

Forbidden relatives

 

Homosexual acts

 

Marriage and sexual intercourse with non-Jews

 

Children resulting from forbidden unions

 

Rape and seduction

 

 

General prohibitions (Maimonides, Mishneh Torah). A man who has sexual intercourse with any woman who is not his wife is subject to a flogging because he has had sexual relations with a harlot (zonah)^*.[36]

 

A man who has sexual relations with a betrothed^** woman is subject to execution even if the woman has not yet entered the home of the man she is betrothed to and even if the betrothed couple has not had sexual intercourse.[37] If a man has sexual intercourse with a "maiden" (na'arah)^*** betrothed to another man, they are both to be executed by stoning if the maiden is still a virgin living in her father's house.[38] If ten men in succession have vaginal sexual intercourse with a virgin female still in her father's home, the first one is to be executed by stoning and the rest by strangulation; if they all have anal intercourse with her, then they are all executed by stoning since they all had intercourse with her when she was a virgin.[39] If the betrothed female is a mature woman (bogeret)^§ or if she has departed from her father's house for the purpose of getting married, then she and the man who had intercourse with her are to be executed by strangulation.[40]

 

A female minor (k'tanah)^§§ is not punished for engaging in a forbidden act of sexual intercourse with a man.[41] Thus, if a man has sexual intercourse with a married female minor who was betrothed by her father to her husband who is now an adult^‡, the man is to be executed by strangulation and the female is henceforth forbidden to her husband but she is not punished in any other way.[42] If the female minor is betrothed but not fully married, then the man is to be executed by stoning while she is not punished.[43]

 

A wife who commits adultery has made herself forbidden to her husband and she receives nothing at all from her ketubah when he, as he is required to do, divorces her.[44] But if she was raped, her relations with her husband continue unchanged[45] and she remains entitled to the full amount of her ketubah.[46] Rape occurs when sexual intercourse is forced upon a woman initially even if, as the act proceeds, she is overcome by the pleasure of it. It is still rape even if she says that she wants to continue copulating and that if he had not raped her she would have paid him to have sexual intercourse with her.[47]

 

If there are scandalous reports about a married woman, even without direct observation of a sexual act, she loses the full amount of her ketubah. This applies when, for example, witnesses see her in a place putting on her underwear or tying her belt just after a man who is not her husband was seen leaving that place, or they are both seen coming out of a dark place or helping each other out of a pit, or a man is seen kissing her body through her open garment, or they were seen kissing or embracing each other or just the two of them entered a place and closed the doors. If, upon such a scandalous report, she loses the amount of her ketubah even if she was not warned, in advance, against such acts.[48] However, her husband is not required to divorce her. Even when he does not divorce her for these actions, she forfeits the full amount of her ketubah.[49] If a man does divorce his wife because of scandalous reports about her, he may never remarry her.   [50]

 

If a husband tells his wife in the presence of witnesses that she is not to be alone in a private place with a particular man, and two witnesses observe her doing just that for enough time to have sexual intercourse, the husband must divorce her and she receives none of the amount of her ketubah.[51] In such a case, if he ever has sexual relations with her again, he is to be punished by flogging for disobedience. If he remarries her, he must divorce her.[52]

 

If a man actually sees his wife committing adultery or learns of it from a trusted relative, he must divorce his wife. However, he must pay her the full amount of her ketubah unless she confesses to the adultery, in which case she receives nothing of her ketubah amount.[53]

 

If a woman tells her husband that she has committed adultery, she need not be believed and no divorce is required. However, she loses all of the amount of her ketubah. If her husband believes her, then he is to divorce her.[54]

 

The only conditions under which a court can compel a man to divorce his wife for adultery is if there are two witnesses who testify that they were present during the act and the adulterous woman was acting of her own free will.[55]

 

The son of a Jewish man and a non-Jewish woman is a non-Jew unless it is established that the woman converted to Judaism before the child was born. Similarly, if a man and his female slave have a son, the son is a slave unless it is clearly demonstrated that his mother had been emancipated before the child was born.[56] In such a case where the mother was a slave, if the father treats the child as if it were his son or he says that the mother was freed from slavery before the child was born, then the child is to be considered as his son for the purpose of inheritance of his estate. This applies only if the father is a scholar of the Torah or is otherwise proven to be an honorable man and strict observer of religious laws. Even so, the child may not marry a Jewish woman unless proof is presented that the mother had been freed before he was born. If the father is an ordinary man, the child is a slave and his biological father's other sons may sell him even if the father says that the child's mother was freed before he was born.[57]

 

Three classes of women are forbidden to a priest (descendant of Aaron through the male line): a divorced woman, a harlot (zonah)^* and a woman born from the union of a priest and a woman forbidden to him.[58]

 

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Being alone in private with another (Maimonides, Mishneh Torah). It is forbidden for a man to enter into seclusion with a woman who is forbidden to him by the Torah (Leviticus 18)[59] or any unmarried woman or heathen^‡‡ woman,[60] regardless of her age, either young or old, to prevent sexual relations between them from occurring. The exceptions to this are that a mother may be alone with her son, a father with his daughter, and a husband with his wife who is forbidden to him because of her menstrual period.[61]

 

It is also permitted for a man to enter into seclusion with a female child less than three years of age^§§§ or for a woman to enter into seclusion with a male child under nine years of age^‡‡‡. This is because the prohibitions concerning being in private with others apply only to those old enough to engage in what is legally considered to be sexual intercourse.[62]

 

The prohibitions against being secluded with another person do not apply if they are in a room with a door that is open to a public area.[63]

 

If a man violates a prohibition against secluding himself with a woman, both the man and the woman are subject to a flogging for disobedience and their transgression publicly announced. However, no punishment is inflicted if the woman is married because that could lead others to believe that she committed adultery and thus her children are mamzerim.[64]

 

If a Jewish man's wife is present, he may be secluded with a forbidden woman since his wife will prevent any illicit sexual activity from occurring.[65] If a man's profession requires him to deal directly with women, he should either keep his wife with him when this happens or turn to another profession.[66] However, a Jewish woman should not be secluded with a heathen man even with his wife present since heathens have no shame and the wife will not stop her husband from having sexual relations with the Jewish woman.[67]

 

A woman is permitted to be secluded with many Jewish men as long as the wife of one of the men is present.[68] A man should not be secluded with multiple women, but multiple men may be secluded with multiple women.[69] A man may, however, be secluded with two women who, because they have one of the following relationships with one another, are assumed to hate each other and therefore one of them would not assume that the other would keep secret an act of forbidden sexual intercourse she had witnessed; this applies to two wives of the same man, a woman and her mother-in-law, a woman and her husband's daughter by another wife, a woman and her mother-in-law's daughter, or two women who are subject to the same levirate marriage.[70]

 

A married woman may be secluded with a man who is not her husband as long as her husband is present in the same town at that time. This is because she will be in fear of her husband. However, if the man is someone very familiar to her, for example they grew up together or they are related, she may not be alone with him even when her husband is in the same town. [71] (Their familiarity may cause her to forget her fear of her husband and commit adultery.)

 

A Jewish child should not be sent to a heathen teacher because we suspect all heathen men of engaging in sexual intercourse with males.[72] We do not put our animals in the care of heathens, either by letting them stay in an inn staffed by heathens[73] or by entrusting them, including birds, to heathen animal keepers for this will lead the heathens to violate the prohibition against having sexual intercourse with animals[74] – a prohibition that applies to them as well as to Jews.[75] We do not even allow female animals to be left in the care of female heathens because we assume that all heathen women are promiscuous and will have heathen men coming around who will have sexual intercourse with our animals.[76]

 

It is permitted for a Jewish man to be alone with another man or with an animal because we do not suspect Jewish men of having sex with them. It is, however, praiseworthy to avoid being alone with another man or an animal.[77]

 

If a man and a woman are being held as captives and are to have sexual intercourse forced upon them, the payment of ransom to redeem the man from captivity takes precedence over that for the woman because the man is less accustomed to such activity.[78]

 

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Accusations of forbidden sexual intercourse (Maimonides, Mishneh Torah). If a man warns his wife, in the presence of two witnesses, not to enter into seclusion with a particular other man and she does so, she is forbidden to him until she drinks the bitter water. This applies only if she is secluded with the forbidden man long enough to have had sexual relations with him – that is, at least for the amount of time it takes to roast an egg and swallow it.[79] The ritual of the bitter water can only be ordered by the court of 70 judges at the Temple in Jerusalem[80] (which was destroyed in the year 70 AD).

 

If, after hearing the husband's accusation and the wife's denial, the court so ordered, then the bitter water was prepared. Soil from under the floor of the Temple sanctuary, a bitter substance such as wormwood and the ink from the written oath that the priest had administered to the woman were all mixed into a container of the water that the Temple priests use for washing.[81]

 

If the woman was guilty, her eyes and veins would bulge, her belly would swell, her thigh would break open and she would die.[82] The man with whom she committed adultery would also suffer a swollen belly, a ruptured thigh and death.[83]

 

If the woman was innocent, drinking the bitter water would cause her health to increase and her face to glow. Any sickness she had would disappear.[84] She would go home and resume her life as her husband's wife[85] and she would give birth to male children.[86]

 

The effects of the bitter water on a guilty wife only occurred if her husband was, himself, innocent of any sexual transgression during his adult life.[87]

 

As openly committed adultery became widespread, the Sanhedrin abolished the ritual of the bitter water even when the Temple was still standing.[88]

 

In an era (such as the present) in which the bitter water is not available, a wife who enters into seclusion with another man after being warned by her husband not to do so is forbidden to her husband forever.  She is to be divorced without receiving any of her ketubah amount.[89] However, if there is only one witness testifying that she entered into privacy with the man her husband warned her about, and the husband considers this witness to be reliable, he must divorce his wife but, since there is only one witness rather than the required two witnesses, he must pay her the amount of her ketubah. If the husband considers the witness to be unreliable, then she is still permitted to him.[90]

 

If, after a woman enters into privacy with a man her husband warned about, her husband has sexual intercourse with her, she is forbidden to him forever but he must pay her the amount of her ketubah.[91]

 

If two witnesses report that a woman entered into privacy with a man who is not her husband and stayed there long enough to have sexual intercourse but her husband had not warned her about this for this particular other man, she is not forbidden to her husband and she is not required to drink the bitter water.[92]

 

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Forbidden relatives (Maimonides, Mishneh Torah). Anyone who intentionally has sexual relations with a person with which such relations are forbidden in the Torah (Leviticus 18) is subject to extinction (karet),[93] which includes a flogging, if there were the required witnesses and warnings.[94] The witnesses are not required to have seen the actual insertion of the penis, only that the two people were in a position generally known to involve sexual intercourse.[95]

 

When someone has sexual relations with certain people with whom such relations are forbidden by the Torah, the punishment is execution if they continued their actions after being warned of the consequences.[96] If a man has sexual relations with his mother, his father's wife or his son's wife, they are subject to execution by stoning.[97] Execution is carried out by burning when a man has sexual relations with his daughter, his granddaughter, his wife's daughter by another marriage while his wife is alive, or his wife's granddaughter, mother or grandmother.[98] If a man has a forbidden sexual relationship with a daughter of a priest, the man is executed by strangulation and the woman by burning.[99] While a man's wife is alive, the penalty of death by burning applies if he has sexual relations with his wife's mother, grandmother, daughter, granddaughter or sister. If the sexual relations occur after the death of the man's wife, the punishment for them is extinction (karet), which entails a flogging, except if the sexual relations are with the deceased wife's sister.[100] Also, if a man has sexual relations with his wife's sister while his wife is alive, his wife becomes prohibited to him and he must divorce her.[101] A male past puberty who inserts his penis into any animal, or any person past puberty who has an animal insert its penis into their vagina or anus, is subject to execution by stoning; the animal or bird involved is also to be stoned to death if the male person involved is above nine years old or the female person involved is at least three years and one day old.[102] Death penalty cases can only be tried when the Temple (in Jerusalem, which was destroyed in the year 70 A.D.) is standing[103] and when the Sanhedrin (the highest Jewish court) meets there.[104]

 

It is a general principle that the same punishment is to be given to the man and to the woman when they engage in forbidden sexual relations. [105] When a woman is forced into forbidden sexual intercourse, she is not liable and is not punished. A man cannot be absolved of responsibility for having been forced because getting an erection is a matter of will.[106]

 

The punishments of execution, karet or flogging for prohibited sexual intercourse apply as long as the tip of the penis to the corona is inserted into either the woman's vagina or anus whether the two are standing up or lying down.[107] If, however, the man inserts his penis without actually having an erection, the only punishment is flogging for disobedience.[108]

 

There is no punishment when a man has sexual intercourse with a forbidden woman after she has died.[109] There is no punishment for a man who has sexual intercourse with a forbidden female less than three years and one day old since this is not considered to be sexual intercourse^§§§.[110] A woman who has sexual intercourse with a forbidden male below nine years old incurs no punishment.[111]

 

A person who is asleep while engaging in an act of sexual intercourse forbidden in the Torah (Leviticus 18) is not liable for the transgression.[112] A man who inadvertently has sexual intercourse with a forbidden person is liable only for a fixed sin offering, namely an animal (cattle).[113]

 

A man who derives lustful pleasure from physical contact with a female relative who is forbidden to him by the Torah (Leviticus 18) is subject to a flogging, even though sexual intercourse did not occur but only hugging or kissing.[114] It is forbidden for a man to act frivolously with such a forbidden woman such as winking or making suggestive motions with his hands or legs. He may not smell her perfume or gaze at her beauty. Such actions make him liable to flogging for disobedience. He is forbidden from hearing her sing or looking at her hair. If he looks at even just her little finger for the purpose of deriving pleasure from it, it is as serious a transgression as if he had looked at her genitals.[115]

 

It is shameful, foolish and forbidden for a man to embrace or kiss any female relative forbidden to him by the Torah (Leviticus 18) even if he did not experience lustful pleasure from this contact (though, in such a case, no flogging is incurred).[116] The only exceptions are that a father may embrace his daughter and a mother her son. When these children are minors, they may even sleep naked together with their parent of the other sex with their bodies touching. However, when the daughter's breasts have developed and she has grown pubic hair or when the son has reached maturity^‡, they must be clothed when sleeping with their parent of the opposite sex.[117]

 

It is forbidden for any woman other than a man's wife to perform personal services for him: washing his face, hands or feet; arranging his bed in his presence; pouring his drink.  A man is not to inquire about a woman's well-being, even if the inquiry is made through an intermediary messenger.[118]

 

A man may gaze at his wife when she is forbidden to him because of her menstrual period. But he should not joke or act frivolously with her, lest this lead to forbidden contact.[119]

 

There are 20 female relatives, including one's maternal and paternal grandmothers, with whom sexual intercourse (and, therefore, marriage) is forbidden by rabbinic decree but not forbidden by the Torah. These are considered secondary prohibitions because of their rabbinic origin.[120] A man who has intercourse with one of these relatives is subject to flogging for disobedience.[121]

 

In general, if a Jew is forced to violate a religious law upon pain of death, the law should be violated. However, there are three exceptions to this. Death is to be chosen to avoid worshiping other gods, committing murder or engaging in forbidden sexual intercourse.[122] Thus, if a man is sick out of attraction to a woman forbidden to him and his physicians agree that he will die unless he has sexual intercourse with her, he is to refrain from sexual intercourse with her. Better he should die than Jewish women should be unprotected from forbidden sexual intercourse.[123]

 

When a slave is purchased from a non-Jew, the slave is given the option of becoming a Jewish slave by following a limited number of the commandments of Jewish religious law and, for a male, becoming circumcised. If the slave agrees then the slave undergoes immersion in a mikveh. If the slave does not agree, then after one year the slave is to be sold to a non-Jew.[124] A slave who has been thus immersed, and for a male, circumcised, is no longer considered to be a heathen and the prohibitions that pertain to heathens no longer apply. The slave is, at the same time, not yet a Jew, so relations forbidden to Jews are not forbidden to the slave.  As a result, the slave is permitted to have sexual intercourse and to marry his mother, sister or daughter.[125] Similarly, when a slave is freed, those people who were his relatives in his slavery are no longer considered to be his relatives.  Therefore, he is now permitted to have sexual intercourse or marry his mother, his sister, his daughter or any other woman he was related to before he was freed.[126]

 

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Homosexual acts (Maimonides, Mishneh Torah). An adult male who has sexual relations with another adult male is subject to execution by stoning.[127] If a man has sexual intercourse with a male below the age of nine years, both are free of liability and neither is to be executed, but the court may order the man to be flogged for disobedience.[128] (Sexual intercourse involving a male under nine years of age is not considered to be sexual intercourse.[129])

 

When a man has sexual intercourse with a male older than nine years but below the age of puberty, the prepubescent male is not punished, but the older man above the age of puberty is to be executed by stoning.[130]

 

It is forbidden for a woman to have sexual relations with another woman, and flogging them for disobedience is appropriate when this occurs. Such relations to not make a woman a harlot (zonah)^* and so she may still marry a priest. This Lesbianism is the "conduct of Egypt" [Leviticus 18:3] where, according to our Sages, a man would marry another man, a woman would marry a woman or a woman would marry two men. A man should keep women who are known to engage in such practices away from his wife.[131]   

 

 

To guard against unseemly sexual thoughts, a man should not go to a bathhouse with his father, his sister's husband, his student[132] or his father-in-law.[133] In some locations, custom also prevents two brothers from going to the bathhouse together.[134]

 

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Marriage and sexual intercourse with non-Jews (Maimonides, Mishneh Torah). Having sex with non-Jewish women causes Jews to cleave to non-Jewish nations from which God has separated the Jews, to turn away from God and to betray him.[135]

 

A Jewish man or woman who has sexual intercourse with a non-Jew as husband and wife is subject to a flogging.[136]

 

A Jewish man who has sexual intercourse with a non-Jewish woman with licentious intent rather than as her husband is subject to a flogging for disobedience to discourage marriage between them. If this happens only once with a particular non-Jewish woman, he is flogged for disobedience once for having intercourse with a non-Jewish woman. If, however, their relations continue, he is liable for flogging for disobedience multiple times, separately for having intercourse with a non-Jewish woman, with a menstruating woman, with a female servant and with a harlot (zonah)^*.[137]

 

If a Jewish man has sexual intercourse with a non-Jewish woman witnessed by ten or more Jews, then it is praiseworthy for a zealot to attack that man and kill him, but only if the slaying is done while they are having intercourse. If it occurs after the intercourse is completed, then the zealot is to be executed as a murderer.[138] If no zealot slays him and he is not subjected by a court to a flogging, then he is liable to extinction (karet). Such a man, who has had sexual intercourse with a non-Jewish woman, is considered as if he had married a false god – an idol. He has desecrated what is holy to God.[139]

 

If a Jewish man has sexual intercourse with a female heathen^‡‡, the woman is to be executed. This applies as long as the man did the act intentionally, he is above the age of nine years and she is above the age of three years, whether or not she is married. She is executed because of her role in causing him to transgress[140] just as an animal is to be killed if a Jew has sexual relations with it.[141] If the male involved is less than nine years old, the woman is not executed because intercourse with such a young boy is of no consequence.[142] Similarly, if the non-Jewish female is below the age of three, she is not executed because sexual intercourse with a female less than three years and one day old is not considered to be sexual intercourse^§§§.[143]

 

A child that results from a union of a Jewish man and a non-Jewish woman is not considered to be the child of the Jewish man, though a child resulting from any other type of forbidden sexual intercourse is considered to be the child of the Jewish father.[144]

 

Any person who converts and accepts all the commandments of the Torah is a Jew in all respects.[145] A convert must undergo immersion and, for males, circumcision.[146] Such a convert may marry a Jew.[147] A heathen is forbidden from having sexual intercourse with only his mother, the wife of his father, a maternal sister, a married woman, another man or an animal.[148] However, upon conversion to Judaism, the former heathen's relatives are no longer considered to be his relatives. Therefore, he is no longer forbidden from having sexual intercourse with his mother, his father's wife or his maternal sister.[149]

 

If a male heathen^‡‡ has sexual intercourse with a married Jewish woman, he is liable to be executed. If she is not married, he is not to be executed.[150]

 

A female slave who has been immersed in the waters of a mikveh and who has agreed to follow the limited number of commandments that slaves of Jews are required to follow[151], is no longer a heathen but is still not a Jew and therefore a free Jewish man is forbidden from having sexual intercourse with her, whether or not he is her owner. If he has such intercourse, he is liable for a flogging for disobedience rather than a flogging for violation of the Torah. If, however, she is given to a Jewish slave, he is permitted to have sexual intercourse with her even though she is not Jewish.[152] A Jewish man may marry her without being liable for a flogging. Also, a zealot may not kill a Jewish man for having sexual intercourse with her in public, as would be called for if she were a heathen.[153]

 

A freed slave (who has been immersed in the waters of a mikveh and who has agreed to follow the limited number of commandments that slaves of Jews are required to follow) is a Jew in all respects, including the ability to marry a Jew.[154] A freed slave becomes a Jew in this manner even without accepting all the commandments of the Torah.[155]

 

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Children resulting from forbidden unions (Maimonides, Mishneh Torah). A child resulting from sexual intercourse between two Jews who are forbidden to each other is called a mamzer (similar to, but not the same as, a bastard). The exception is that if the violated prohibition against sexual intercourse is that the woman is menstruating and not yet immersed, the child is not a mamzer.[156]

 

It is forbidden for a Jew to marry a mamzer[157] unless that Jew is a convert[158] or a male descendant of two married converts.[159] Any child of a mamzer and a convert to Judaism is a mamzer.[160]

 

The descendants of a mamzer are also prohibited from marrying Jews (other than converts or male descendants of two converts), for all subsequent generations, forever.[161] If a Jew (who is not a convert or the male descendant of two converts) and a mamzer become betrothed and have sexual intercourse, they are both to be punished by flogging. If, however, they have sexual intercourse without betrothal, the fact that one of them is a mamzer is not a cause for flogging. But a flogging is imposed in this case nonetheless because the man had sexual intercourse with a woman who was not his wife, as stated above.

 

The child of a Jewish woman and a heathen is a legitimate Jew, not a mamzer. Similarly, the child of a Jewish woman and a male slave is a legitimate Jew.[162] The fact that a heathen or slave fathers a child has no effect on the status of the child, which will be the same as the status of the mother.[163] Similarly, the child of a Jewish father and a female heathen or slave is a heathen or slave, like its mother. The father has no effect on the status of the child when one parent is a Jew and the other parent is either a heathen or a slave; the mother's status alone determines the status of the child.[164]

 

If the husband of a pregnant woman says that her fetus is not his, then the child is a mamzer. If, however, the wife says that the child resulted from her having sexual intercourse with a heathen or a slave, then the child is a legitimate Jew, not a mamzer.[165]

 

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Rape and seduction (Maimonides, Mishneh Torah). A man who rapes a Jewish virgin girl must pay a fine and also compensation for embarrassment of the female, for inflicting a blemish on her and for pain. If it was seduction rather than rape, then the same fine and compensation apply except that compensation for pain is not levied because she will not suffer pain if she had intercourse willingly.[166] The fine, which is 50 silver pieces, is payment for the sexual pleasure of the rapist or seducer.[167] All these payments are made to the girl's father if he is alive or to the girl herself if her father is not alive.[168]

 

The fine is required only if the girl who was raped or seduced is at least three years and one day old but is not yet a mature woman^§.[169] (Sexual intercourse with a female less than three years and one day old is not considered to be sexual intercourse^§§§.[170])

 

The fine is paid only if the sexual act of the rapist or seducer was vaginal intercourse. No fine is required for anal intercourse[171] but compensation for embarrassment and blemish is.[172]

 

No fine (50 silver pieces) has to be paid for the rape of a female who has dissolved a marriage through mi'un or of a mature woman^§. In these cases, however, the rapist must still pay compensation for embarrassment, blemish and pain. Seduction of such females results in no requirement for any payment at all.[173]

 

The fine and compensation to be paid for rape or seduction do not apply when the girl's father intentionally put her in a position to engage in sexual intercourse or when the girl prepared herself for such activity. In these cases, the girl is considered to be a harlot. Both she and the man who had sexual intercourse with her are to be flogged.[174]

 

No fine need be paid if the girl who was raped or seduced converted to Judaism, was freed from slavery or was redeemed from captivity when she was more than three years old.[175] This is because it is assumed that slave girls, non-Jewish girls and captive girls engage in sexual intercourse at any age[176] but sexual intercourse with a female less than three years and one day old is not considered to be sexual intercourse^§§§.[177]

 

The amount of payment for embarrassment depends on who the girl is and who the man is. If the girl is someone of high status from a distinguished family, then the payment is greater than if she is a common person of humble birth. Similarly, if the rapist or seducer is of high status, the payment is less than it would be for a common man of low character.[178] These factors weigh in the determination by the judges of how much the girl's father and family would have paid to prevent the seduction or rape from happening; this is the amount of the payment levied on the perpetrator for embarrassment.[179]

 

The payment for blemishing the girl is determined by how much her value would be reduced if she were to be sold as a non-virgin rather than as a virgin slave.[180]

 

The compensation for pain, which is to be paid by a rapist but not by a seducer, depends on the ages and body sizes of the rapist and the girl he raped. The judges determine how much the girl's father would have paid to prevent his daughter from suffering this pain, and the rapist's payment for pain is equal to this amount.  [181]

 

If the act of sexual intercourse occurred in a field, we assume that it was rape rather than seduction unless there are witnesses who testify that she consented to seduction. But if the act took place in a city and the woman was not heard crying out, we assume that she consented and it was seduction rather than rape unless witnesses testify that he threatened to kill her with his sword if she cried out.[182]

 

If the man denies a girl's accusation that he raped or seduced her, he must take an oath denying the accusation. An oath taken for this purpose does not require that the man hold a Torah scroll while making it, however.[183] It is a less severe oath that only requires that God be mentioned. Once he has taken this oath, he is free of any responsibility for the rape or seduction he was accused of.[184] If a girl claims she was raped but the man says he seduced her, he must make an oath holding a Torah scroll for his assertion to be accepted. Once he makes that oath, he is then liable for the fine and the compensation for embarrassment and blemish that a seducer must pay, but is freed from paying compensation for pain.[185]

 

A rapist or seducer should be judged by three judges ordained in the Land of Israel.[186] (Editor’s note: Such judges no longer exist.)

 

A man who rapes a virgin girl must marry her unless she or her father object to such a marriage. If the girl and her father want the marriage to take place but the rapist objects, he is forced to marry the girl. Once such a marriage takes place, the man cannot initiate action to divorce her unless she commits adultery.[187] If he does divorce her, he is to be forced to remarry her.[188] A rapist who marries the girl he raped still has to pay the fine[189] and also the compensation for embarrassment, blemish and pain.[190]

 

A man who seduces a virgin girl does not have to marry her if he (the seducer), the girl or the girl's father object. He only has to pay the fine. If he marries the girl, then he does not have to pay the fine, but rather writes a ketubah (marriage contract) for her, specifying an amount of 200 denar as would be the case for a virgin getting married.[191] He must, however, pay the compensation for embarrassment and blemish whether or not he marries the girl.[192]

 

If a man, out of jealousy, warns his wife not to be secluded with a certain other man and she is secluded with that man, then she becomes prohibited to her husband and loses the amount of her ketubah.[193] The man she is warned about must be at least 9 years of age.[194] The warning must be made in front of two witnesses. In order to become prohibited to her husband, her seclusion with the man must be witnessed and she must stay secluded with him long enough to have sex, which is the amount of time it takes to roast an egg and consume it.[195] It is not necessary for the husband to know that she has engaged in any sexual activity with the man and the warning applies even if the man is not capable of having an erection.[196]

 

If the wife secludes herself with the man she has been warned about for the requisite amount of time, she is to be divorced without receiving the amount of her ketubah and is forbidden to her husband forever.[197] If, however, only one witness tells a husband that his wife had secluded herself with another man and the husband deems the witness to be reliable, he should divorce her and pay the amount of her ketubah.[198] Similarly, if the husband himself sees his wife go into seclusion with the man she was warned about, or if he hears the women who weave at night gossiping that his wife has had sexual relations with the man she was warned about, then he must divorce her and pay the amount of her ketubah.[199]

 

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Forbidden Sexual Acts

Jewish Law (Halakha) from the Shulchan Aruch

 

Contents:

 

Forbidden sexual partners

 

Rape and seduction

 

Homosexuality

 

^*Harlot (zonah): The word zonah, meaning "harlot" or "licentious woman," is used in the texts of Jewish religious law to designate any female who is not Jewish by birth, no matter what her age, even if she is a virgin and even if she has converted to Judaism.

The term zonah also includes any Jewish woman who has had sexual intercourse with a man who she is forbidden to marry by Jewish religious law. Such forbidden men include relatives forbidden by the Torah, all heathen men and slaves.[255] A Jewish woman becomes a zonah as a result of sexual intercourse with a man she is not permitted to marry whether the intercourse was consensual or accident or rape and whether it was vaginal or anal as long as the woman was more than three years of age^§§§ when it happened and the man was over nine years of age^‡‡‡.[256]

However, an unmarried woman, even a prostitute, who has sexual intercourse indiscriminately with men is not classified by Jewish religious law as a zonah as long as none of the men she has sex with are forbidden to her the law.[257] Even becoming pregnant when unmarried does not make a woman a zonah.[258] Also, having sexual intercourse with animals does not make a woman a zonah.[259]

 

^**Betrothal: In the historical times being described by Maimonides, two separate steps were required to achieve a full marriage. The first step, kiddushin or erusin, is the consecration of the woman to the man and is referred to in our texts as "betrothal." The reversal of this process required a get (a bill of divorce). A man was not responsible for supporting a woman who was betrothed to him.[260] Also, after betrothal the couple was not permitted to have sexual relations until the finalization of the marriage (nisu'in) even if the betrothal had been carried out through sexual intercourse.[261]

The marriage was finalized by nisu'in – the woman moving into the man's house to live there. In the times being described by Maimonides, this second step might have occurred one year after the betrothal.[262]

In the present era, both steps, betrothal (kiddushin) and finalization of the marriage (nisu'in), occur in a single ceremony when the couple marries under the chuppah – the wedding canopy that symbolizes the couple's home.

 

^***"Maiden" (na'arah): When a female who is at least twelve years old has two pubic hairs, she is no longer a minor (k'tanah) but is now a "maiden" (na'arah). After six months as a "maiden," she becomes a mature woman (bogeret).

 

^†The Shulchan Aruch, written by Joseph Caro in the 16th century, represents his Sephardic background. Printed copies of the Shulchan Aruch always include the comments of Moses Isserles, which are written from an Ashkenazi perspective.

 

^§A mature woman (bogeret) is one who is at least 12-1/2 years of age and has had at least two pubic hairs for at least six months.[263]

 

^§§A female minor (k'tanah) is one who either is under the age of twelve or has not yet grown two pubic hairs.

 

^§§§Sexual intercourse with a female less than three years and one day old is not considered as sexual intercourse[264] because, according to the codes of Jewish law, healing will restore the hymen, and thus the virginity of such a young female, following intercourse.[265]

 

^‡A male is a minor (katan) until he has reached the age of thirteen years and has at least two pubic hairs, at which point he becomes an adult (gadol).

 

^‡‡The term translated as "heathen" refers to an idol-worshiper (polytheist) – a person who worships false gods.[266]  An apostate is considered to be a heathen[267] as is a Jew who publicly desecrates the Sabbath.[268] While Muslims are recognized as monotheists,[269] according to Maimonides Christians are not,[270] (though there are other rabbis who hold that the Christian Trinity is compatible with monotheism).

 

^‡‡‡Sexual intercourse with a male less than nine years old does not count as sexual intercourse according to the codes of Jewish law.[271]

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Abbreviations used in footnotes:

Gen: The Biblical book of Genesis.

Exod: The Biblical book of Exodus.

Lev: The Biblical book of Leviticus.

Num: The Biblical Book of Numbers.

Deut: The Biblical Book of Deuteronomy.

 

MT:  The Mishneh Torah of Maimonides (Code of Maimonides). The names of the specific books and treatises within each book are given according to the Yale University Press translation and also the Moznaim/Touger Hebrew transliterations to facilitate locating the texts posted here.

F:  indicates page numbers in the Feldheim Publishers, Ltd., translation of Book 1 of the Mishneh Torah of Maimonides, the Book of Knowledge.

M:  indicates page numbers in the relevant volume of the Moznaim Publishing Corporation’s Touger translation. (Some of the books of Mishneh Torah are published in several volumes by Moznaim, so the Moznaim volume numbers do not correspond to the Book numbers of Maimonides’ work.)

Y:  indicates page numbers in the translation of the Yale University Press Judaica Series.

 

SA:  The Shulchan Aruch of Joseph Caro, with the comments of Moses Isserles noted, as appropriate. Our summaries are based on the Sefaria English translation, which is not yet complete. The four sections of the Shulchan Aruch are on Sefaria at the following links: Orach Chayim, Yoreh De'ah, Even HaEzer and Choshen Mishpat.

    

●  The sources cited are described on the page Source Texts Used for Laws of Judaism.