Week Ten: The Laws of Yichud

Yichud is an area where Jews seem to pick and choose their level of observance, without obvious connection to what halachah says. Even HaEzer 22 gives us the basics of those laws; I hope this summary helps us consider whether and how we might want to adjust or rejuvenate our adherence to what tradition commands.

Sexual Desire Can Arise Where We Wouldn’t Think

AH opens with a reminder of the underlying reason for the prohibition, the Torah (and Chazal)’s awareness that sexual desire appears unexpectedly, suddenly, and can lead to extremely serious sins. [Remember that a Jew must be killed rather than let himself be pressured into violating arayot, sexual sins, the same as with murder or worshipping a power other than God.] Yichud prohibits two people from being alone together where sexual relations could occur, if such relations would violate the Torah at a karet level.

AH and the Gemara call the prohibition Biblical; however, the statement it then cites (R. Yochanan in the name of R. Yishma’el, Kiddushin 80b, R. Shim’on b. Yehotzadak in Sanhedrin 21b) offers a remez, a hint or an allusion (the derivation, from Devarim 13;7, is too winding to summarize here). This tradition seems to assume the Gemara meant min haTorah, from the Torah, fully, literally, despite also saying it was a hint.

Who Is Included

While adultery is the easiest example, yichud applies to all arayot, even ones we today assume would never turn sexual (an aunt and nephew, a father’s ex-wife). This is because, by and large, halachah believes pretty much any man and woman (with a few exceptions, see below), in the right circumstances, can find themselves strongly enough attracted for a sexual act to ensue. I stress it because of Western society’s unfounded confidence that people would never do that, despite living in a highly sexualized and permissive society.

There are cases where halachah accepts that sexual wrongs are unlikely enough not to worry. A parent with his/her child is one, Sanhedrin 103b tells us, and in se’if two, AH notes a Yerushalmi that disallows opposite-gender siblings living together. Chelkat Mechokek inferred that occasional yichud wasn’t an issue, just full cohabitation, while Beit Shemuel thought it better to be stringent. [I have seen the rule ignored more than once, usually by elderly siblings; perhaps they think the combination of the sibling status, with age, which dulls desire, exempts them from the yichud issue.]

Husbands and Wives

A husband and wife are allowed to be alone together even when they may not be physically intimate, because we expect they can restrain themselves, since they will again be permitted to each other relatively soon. R. Kahana, Sanhedrin 37a, inferred the idea from Shir HaShirim 7;3, despite the minimal enforcement of the rules of niddah, Jews are careful about them.

(Note an halachic truth poorly recognized: a niddah is an ervah, in the sense that the couple would incur karet, like other prohibited sexual acts, leading us to expect there should be a yichud prohibition. This makes “incestuous” a poor rendering of ervah or arayot, because the Torah also proscribes some non-incestuous relationships.)

As a side note to this long se’if, AH reminds us of Yoreh De’ah 192, where a bride becomes a niddah before the couple had relations, yichud will be prohibited until she goes to mikveh, because we fear the desire for the untasted pleasure of their soon-to-be-allowed marital relations will overwhelm their self-discipline.

Non-Arayot Yichud

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

Sticking with the dancing theme, AH considers the story at the end of Shofetim, where the remnants of the tribe of Binyamin needed women to marry. Seeking to help them, despite having vowed not to let Binyaminites marry their daughters, the other tribes advised them to hide where the women went to dance, and grab them (a discussion for another time).

Why not just join the dance and woo them? Because men and women already did not dance together, says AH. And if they knew how such minimal mixing can lead to more physical intimacy than allowed, they certainly knew yichud was not a good idea. What David and his court added were cases where sexual relations would not be an arayot (such as a girl who had not ever menstruated, or went to mikveh and is not currently a niddah), told us to treat it like we would an arayot.

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

Two Forms of Discipline for Yichud

Se’if three points out the violation of yichud was punished by makkat mardut, where a court lashes the miscreant until s/he commits to observing these rules going forward. (Makkat mardut usually reflects a rabbinic violation, but courts do it also for violations of Torah laws that have no other punishment).

If the woman in the yichud situation is married to someone else, the court will not give her lashes, for fear people will say she had an affair, deride her children as mamzerim, the product of a banned union, prohibited from marrying ordinary Jews. Tur says we also do not take yichud to prove she had the affair, such that she would have to divorce her husband, or to say she could not marry a kohen if the husband passed away.

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

We’ll stop here, although this is a bit shorter than usual. But next time’s, finishing up these laws, is about the same size. Better to take less and absorb it better than strive for too much. I hope you agree with me it is worth making our way deliberately, to remind ourselves both of the specifics and the general attitude, that human sexuality appears where it appears, can easily and suddenly feel irresistible, such that our best course of action is to put into place the firm and clear safeguards halachah taught us.

Adapted from articles previously published on Torah Musings