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Issurei Biah - Chapter One

Issurei Biah - Chapter One

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Halacha 1

When a person voluntarily engages in sexual relations with one of the arayot1 mentioned in the Torah, he is liable for kerait,2 as [Leviticus 18:29] states: "Whenever anyone performs any of these abominations, the souls will be cut off...." [The plural is used, referring to] the man and the woman.3If they transgressed unknowingly, they are liable to bring a fixed4 sin offering. There are some arayot with whom relations are punishable by execution5 in addition to kerait which is applicable in all cases.6

Halacha 2

With regard to the arayot that are punishable by execution by the court. If there were witnesses, they delivered a warning,7 and the transgressors did not cease their actions, they are executed through the means prescribed for them.

Halacha 3

Even if a transgressor was a Torah scholar neither execution or lashes is administered unless a warning was given. For [the obligation for] a warning was instituted universally only to make a distinction between a person who transgresses inadvertently and one who transgresses intentionally.8

Halacha 4

Among the arayot punishable through execution by the court are those for [which the violators are] executing by stoning, those for which they are executed by burning, and those for which they are executed by strangulation.9

The following transgressions are punishable by stoning: one who has relations with his mother, with his father's wife,10 his son's wife; she is called his daughter-in-law,11 one who sodomizes a male, a male who has relations with an animal, and a woman who has relations with an animal.

Halacha 5

The following arayot are punishable by burning: a person who has relations with his wife's daughter12 during his wife's lifetime,13 with the daughter of her daughter, with the daughter of her son, with her mother, with the mother of her mother, with the mother of her father, with his own daughter, with the daughter of his daughter, or with the daughter of his son.

Halacha 6

The only instance in which forbidden sexual relations are punishable by execution by strangulation is adultery, as [derived from Leviticus 20:10]: "The adulterer and the adulteress shall surely be put to death." Whenever the Torah mentions "putting to death" without further description, the intent is strangulation.14

If [the adulteress] is the daughter of a priest, she should be executed by burning and the adulterer by strangulation, as [ibid. 21:9] states: "The daughter of a priest, when she begins to act promiscuously, she shall be burnt with fire."15 If the adulteress is a consecrated16 maiden,17 both she and the adulterer should be stoned,18 as [Deuteronomy 22:23-24] states: "When a virgin maiden.... they shall be stoned with rocks...." Whenever the Torah uses the phrase "They shall surely be put to death, they are responsible for their own blood" [Leviticus 20:11] - they are executed by stoning.19

Halacha 7

All of the other arayot are punishable by kerait alone and are not punishable by execution by the court. Therefore if there were witnesses and a warning was administered, the court punishes them with lashes, for all those who are obligated for kerait are lashed.

Halacha 8

When a person enters into relations with women who are forbidden by merely a negative commandment,20 both he and she are lashed. If they do so unknowingly, they are not liable for punishment. When a person enters into relations with one of the shniyot,21 Rabbinic Law ordains that he be given "stripes for rebellious conduct."22 When, however, a person enters into relations with a woman who is forbidden merely by a positive commandment,23he need not be punished. If, however, the court [wishes to] administer stripes for rebellious conduct to him to distance him from sin, they have that option.24

Halacha 9

A person compelled [to engage in forbidden relations] is not liable at all, not for lashes nor for a sacrifice. Needless to say, there is no obligation for capital punishment, as [reflected by Deuteronomy 22:26]: "And to the maiden, do not do anything."25

To whom does the above apply? To the victim of rape. When, by contrast, a man engages in relations, there is no concept of being compelled against his will. For an erection is always a willful act.26

When a woman is compelled into relations at the outset and afterwards, she consents, she is not liable. Once [a man] compels her to engage in relations, it is beyond her control whether to desire [or] not. For man's natural tendency and inclination is compelling her to desire.27

Halacha 10

A person who inserts the corona into [the woman's vaginal channel] is referred to as one who "uncovers" as [Leviticus 20:18] states: "He uncovered her source."28 A person who inserts the entire organ is referred to as one who completes [intercourse]. With regard to all the forbidden relations [mentioned] by the Torah, one who "uncovers" and one who "completes [intercourse] are [equally] liable for execution by the court, kerait, lashes, or stripes for rebellious conduct. Even though the man did not ejaculate and even if he withdrew and did not complete relations, [the man and the woman] both become liable.29 Whether a person engages in vaginal or anal intercourse,30 when he "uncovers" [the woman], they both become liable for execution, kerait, lashes, or stripes for rebellious conduct. Whether they were lying or standing,31 liability is established by the insertion of the corona.

Halacha 11

[There is never any liability when] a man engages in forbidden relations without an erection, instead his organ was hanging loosely like the organ of the dead, e.g., one who was sick or a person with a congenital malady, i.e., he was born sexually inadequate. Even though he inserts his organ with his hand, he is not liable for kerait or lashes. Needless to say, he is not liable for execution. For this is not considered sexual intercourse. Nevertheless, [such an act] disqualifies a woman from partaking of terumah.32 And the court subjects both of them to stripes for rebellious conduct.33

Halacha 12

When a person enters into sexual relations with one of the arayot as a casual act,34 although he did not intend to do so, he is liable.35Similar concepts apply with regard to one who enters into relations with women forbidden by a negative commandment alone or with one of the shniyot.36

When, however, a man has relations with one of the arayot after she died, he is not liable at all.37 Needless to say, this applies with regard to those women with whom relations are forbidden by a negative commandment alone. When, by contrast, one has relations with a person who is trefe38 or who has relations with an animal which is trefe, he is liable. [The person or the animal] is [now] alive even though he will ultimately die from this illness. Even when the two signs39 which validate ritual slaughter were slit but [the woman or the animal] is making its last movements, if one enters into relations with [her or it] he is liable until she or it dies or is decapitated.

Halacha 13

When an adult male enters into relations with any of the women forbidden in connection with the above transgressions who is three years and one day old or more,40 he is liable for execution, kerait, or lashes and she is not liable41 unless she is past majority. If she is younger than this, both participants are not liable, for the act is not considered as sexual relations.42

Similarly, when an adult woman enters into sexual relations with a minor, if he is nine years and one day old, she is liable for execution, kerait,43 or lashes and he is not liable. If he is younger than nine years old, they are both free of liability.44

Halacha 14

When a man enters into relations with a male or has a male enter into relations with him, once the corona is inserted [into the anus] they should both be stoned if they are both adults. As [Leviticus 18:22] states: "Do not lie with a man," [holding one liable for the act, whether] he is the active or passive partner.

If a minor of nine years and a day or more is involved, the man who enters into relations or has the minor enter into relations with him should be stoned and the minor is not liable. If the male [minor] was less than nine years old, they are both free of liability.45 It is, however, appropriate for the court to subject the adult to stripes for rebellious conduct for homosexual relations46 although his companion was less than nine years old.

Halacha 15

One is liable for anal intercourse with an androgynus47 just as one is liable for relations with another male. One who engages in vaginal intercourse with [an androgynus] is not liable.48

There is a doubt concerning the gender of a tumtum.49 Therefore a person who has relations with a tumtum or vaginal intercourse with an androgynus should be given stripes for rebellious conduct.50

An androgynus may marry a woman.51

Halacha 16

When a person sodomizes an animal or has an animal insert its organ in him, both the person and the animal should be stoned to death,52 as [Leviticus 18:23] states: "Do not lie down with any animal," prohibiting [such relations] whether he sodomizes the animal or has the animal enter him. All [living creatures] animals, beasts, and fowl should be stoned to death.53 The Torah did not make any distinction with regard to the age of an animal whether it is young or old. "Any animal" implies a prohibition on the day of its birth. Whether the person enters into vaginal or anal intercourse with the animal, when he inserts the corona or the animal inserts the corona within him, they are liable.

Halacha 17

When a boy nine years old sodomizes an animal or has an animal engage in relations with him, the animal should be stoned, but he is not liable.54 If the boy was less than nine years old, the animal is not stoned. Similarly, when a girl three years old or more causes an animal or a beast to have relations with her, whether it is an older animal or a younger animal, once the corona of the animal is inserted into her vagina or anus, the animal is stoned to death and she is not liable.55 If she was past majority, they both should be stoned to death. If she was less than three years old, the animal should not be stoned.56

Halacha 18

When a person lies with an animal inadvertently or a woman causes an animal to have relations with her inadvertently,57 the animal is not stoned to death even though they are past majority.58 With regard to [relations with] all the arayot, when one is an adult and the other a minor, the minor is not liable and the adult is liable, as explained. If one is awake and one is sleeping, the one who is sleeping is not liable.59 If one [transgresses] intentionally and the other inadvertently, the one who [transgresses] intentionally is liable60 and the one who transgresses inadvertently must bring a sacrifice. If one acted under duress and one acted willingly, the one who acted under duress is not liable as stated above.61

Halacha 19

The witnesses are not required to see [the precise details] of couple's intimate relations, the man inserting [his organ]as one inserts a piston into a pipe. Instead, once they see them clinging together as is the way of all who engage in relations, they may be executed on the basis of this evidence. We do not say: Maybe he did not insert the corona, because we can assume that in this position, the corona was inserted.62

Halacha 20

When an established presumption that people are close relatives has been established, we judge accordingly even though there is no clear proof that they were relatives.63 We give lashes and execute by burning, stoning, and strangulation based on such a presumption.

What is implied? If it is an accepted presumption that a particular woman is a man's sister, daughter, or mother and he had relations with her in the presence of witnesses, he is given lashes or executed by burning or stoning even though there is no clear-cut evidence that the woman is his sister, mother, or daughter, only the accepted presumption.

An incident occurred with a woman who came to Jerusalem carrying an infant on her shoulders and she raised it, [establishing] the assumption that he was her son. [After he grew older,] he had relations with her and they brought her to the court who executed her by stoning.64

A proof of this law can be drawn from the fact that the Torah speaks of the judgment of execution for one who curses his father and strikes his father65 How can we find clear proof that he is his father?66 Instead, we operate according to the existing presumption. So, too, with regard to other relatives, we operate according to the existing presumption.

Halacha 21

[The following rules apply when] a man and a woman come from overseas, he says: "This is my wife," and she says: "This is my husband." If in [their new] city, he establishes the presumption that she is his wife67 for 30 days,68 we execute [an adulterer who has relations] with her. Within 30 days, however, we do not execute anyone on the presumption that she is a married woman.69

Halacha 22

When a woman is presumed to be a niddah among her neighbors,70 her husband is given lashes for [engaging in relations] with her in the niddah state.71

[The following rule applies when] a person issues a warning [not to enter into seclusion with a specific man]72 to his wife and she enters into seclusion with him. If one witness comes and testifies that she was unfaithful,73 her husband was a priest, and he engaged in relations with her afterwards, he receives lashes because of her because he had relations with a zonah.74 Although the fundamental element of this testimony is established by one witness,75 [her conduct caused] her identity to be established as a zonah.76

Halacha 23

When a father says: "My daughter is consecrated to this person," his word is accepted77 and she must marry him.78 [Nevertheless,] if she acts unfaithfully while [consecrated] to him, she is not stoned to death79 because of her father's statements unless there are witnesses [who testify] that she was consecrated in their presence.80

Similarly, when a woman states: "I have been consecrated," [if it is discovered that she engaged in relations with another man,] she is not executed on the basis of her own statements. Instead, there must be witnesses [that she was consecrated] or she must have established a common conception [that this was the case].

FOOTNOTES
1.

In Hilchot Ishut 1:5, the Rambam defines the term arayot as "[Those women] with whom relations are forbidden by Scriptural Law and with whom relations are punishable by kereit as enumerated in Parshas Acharei Mot.

2.

Literally, the soul's being cut off. This involves premature death in this world (before the age of 50, Mo'ed Kattan 28a) and the soul not meriting a portion in the world to come (Hilchot Teshuvah 8:1).

3.

The prohibition and the punishment is incumbent on them both equally.

4.

This term is used to distinguish the sacrifice from the "adjustable guilt offering" (korban olah viyoreid) that is brought for certain transgressions. See Hilchot Shegagot ch. 1 which describes the fixed sin offering , and ch. 10 which describes the adjustable guilt offering.

5.

See Halachot 4-6.

6.

Even if they cannot be executed because the court cannot find two appropriate witnesses, they are punishable by kerait.

7.

See Hilchot Sanhedrin 12:2 which describes the obligation to give a warning and states: "How is a warning administered? We tell him: 'Desist..." or 'Do not do it. It is a transgression and you are liable to be executed by the court....'.

8.

The Rambam's ruling reflects a unique instance in which he uses the wording of a Talmudic passage for the opposite intent. Sanhedrin 8b quotes Rabbi Yossi bar Rabbi Yehudah as coining the expression the Rambam employs: "A warning was instituted only to make a distinction between a person who transgresses inadvertently and one who transgresses intentionally." Rabbi Yossi, however, used this concept as support for his contention that a Torah scholar does not need a warning. Since he is knowledgeable, we assume that he is familiar with the laws. If he is transgressing, we can conclude that he is doing so as a conscious act of rebellion. Hence, he is deserving of punishment.

The Rambam differs, maintaining that even a Torah scholar might not be aware that his act violates a particular prohibition. We do not suspect that he did know the law, it was however possible that he was aware of the prohibition, but not know that it applied in this instance, e.g., he knew that adultery was forbidden, but did not know whether or not the woman was married or related to him. The warning will clarify that for him (Maggid Mishneh; Kessef Mishneh to Hilchot Sanhedrin, loc. cit.).

9.

See Hilchot Sanhedrin 15:1-5 for a description of these different modes of execution.

10.

Even if she is not his mother.

11.

The wording of the Hebrew emphasizes that his son married the woman, not merely engaged in relations with her.

12.

I.e., from a previous marriage.

13.

After his wife's death, her daughter is still prohibited to him and they are punishable by kerait. There is, however, no punishment to be administered by an earthly court. As stated in Chapter 2, Halachah 8, this applies to any woman prohibited because they are closely related to the person's wife.

14.

Sanhedrin 52b explains the rationale for this statement as follows: Just as death at the hand of heaven does not leave a mark; so, too, unless another form of execution is explicitly stipulated, death at the hand of the court should not leave a sign. This alludes to strangulation in which the condemned's body is not marred at all.

15.

See Chapter 3, Halachah 3.

16.

According to Jewish law, marriage is a two-staged process involving consecration (erusin or kiddushin) and marriage (nissuin). Consecration establishes the bond between a man and a woman. From that time onward, she is forbidden to engage in relations with other men. It is not until marriage, however, that the husband and wife relationship is consummated and the couple begin their life together.

In the present era, both of these stages of marriage are completed at the same time. In the Biblical and Talmudic eras, it was customary to wait a year between these two stages.

17.

I.e., between the age of twelve and twelve and a half and she is a virgin. Otherwise, adultery is punished by strangulation.

18.

See Chapter 3, Halachah 4.

19.

Sanhedrin 53a derives this concept from the fact that this phrase is used with regard to a person who divines with a yidoni concerning whom Leviticus 20:27 explicitly states that he should be stoned to death.

20.

I.e., the punishment of kerait is not mentioned with regard to them. They include nine forbidden relationships, e.g., a mamzer or a mamzeret to an acceptable Jew or a divorcee to a priest. These nine are mentioned in Hilchot Ishut 1:7.

21.

Literally, "secondary." In Hilchot Ishut 1:6, the Rambam explains that this term refers to "women with whom relations are forbidden according to the Oral Tradition. These prohibitions are Rabbinic in origin." He continues listing 20 such women with whom our Sages forbade relations as a safeguard for the Scriptural prohibitions. For example, as a safeguard against relations with one's mother, the Sages forbade relations with both of one's grandmothers.

22.

Lashes mandated by Rabbinic decree which are given as punishment for the violation of Rabbinic commandments and for other purposes. See Hilchot Sanhedrin 16:3, 18:5, which mentions this punishment.

23.

Relationships which the Torah does not explicitly prohibit, but the prohibition can be derived from a positive commandment. For example, there is no prohibition against a High Priest marrying a non-virgin. Nevertheless, since he is commanded (Leviticus 21:13) to marry a virgin bride, we assume that it is forbidden for him to marry a woman who is not a virgin. There are two other such relationships: Egyptian and Edomite converts who cannot marry into the Jewish people until the third generation. See Hilchot Ishut 1:8.

24.

See Hilchot Sanhedrin 24:4 which states that the court may administer punishment that is not required by Torah Law if they feel that it will lead to the moral development of the Jewish people.

25.

The verse cited speaks of the rape of a consecrated maiden in a field where even if she had called for help, there would have been none to save her. Since she was compelled to perform the transgression, she is not held responsible.

26.

The Ra'avad takes issue with the Rambam on this point, explaining that if a man develops an erection with the intent of having relations with his wife and while he is still erect, he is compelled to engage in forbidden relations, he is considered to have acted against his will. The Maggid Mishneh states that even the Rambam would accept such a ruling.

The Maggid Mishneh states, however, that there are authorities who maintain that if a man is compelled to engage in relations at the pain of death, he is considered to have been compelled to act against his will. Yevamot 53b, the source for the Rambam's ruling, is speaking about a situation when a person is not compelled by forces beyond his control. Other authorities maintain that he is liable, even in such a situation. It is, however, unlikely that the Rambam would maintain that the court should actually carry out capital punishment. For in Hilchot Yesodei HaTorah 5:4, the Rambam writes that a person who is compelled by gentiles to engage in adulterous or incestuous sexual relations should sacrifice his life rather than do so. If, however, he fails to chose martyrdom and transgresses, he should not be punished by the court. It would be difficult to explain that ruling applies only in a situation when he had already developed an erection for a woman with whom he was permitted to engage in relations and was then compelled to engage in forbidden relations. Thus it would appear that the man is not held responsible for capital punishment engaging in relations at the threat of death. [See Bayit Chadash (Yoreh De'ah 20)].

See also the Kessef Mishneh to Hilchot Sanhedrin 20:2 who states that since developing an erection comes as a result of the man's own pleasure and desire, he is considered to have acted willingly even though he was compelled to engage in the relations.

27.

Ketubot 51a states that even if the woman says: "Let him continue, for had he not taken me by force, I would have hired him," she is considered as acting under duress and freed of liability. For it was not until after she was overcome by desire that she consented.

28.

This expression is used with regard to relations with a woman in the nidah state. From that instance, Yevamot 54a derives a connection to the entire Torah.

29.

If, however, the man merely touches the entrance to the vaginal channel with his organ, he is not liable (see Beit Shmuel 20:3).

30.

Based on Leviticus 19:13, Sanhedrin 54a states that both forms of intercourse are equally forbidden.

31.

Or Sameach notes that Leviticus 18:23 explicitly mentions a woman standing while engaged in forbidden relates.

32.

I.e., if a priest's daughter or a priest's wife is involved in such a sexual act, she is forbidden to partake of terumah just as if she would be forbidden to do so had she engaged in ordinary relations (see Hilchot Terumah 6:6).

33.

"Stripes for rebellious conduct" is a punishment which is not dependent on the Torah's binding laws, but rather is left to the court's jurisdiction based on its conception of what is appropriate for the moral standards of the persons involved and the community. Although such an act is not formally considered as sexual relations, chastisement is necessary to prevent such behavior from continuing.

34.

The Hebrew term kimitasek literally means "as one was going about his business," i.e., he was performing other actions and without any intent, the forbidden act was performed.

35.

Since he derived pleasure from the physical act, he is liable even though originally he had no intent (Yevamot 62b).

This refers only to liability for a sin offering for inadvertent transgression. Needless to say, he is not liable for punishment by the court, because in such instances, he must acknowledge a warning (Maggid Mishneh).

The commentaries question how sexual relations can be performed "as one was going about his business." With regard to the Sabbath prohibitions, we can appreciate the use of such a term. For example, a person intended to cut produce that was not connected to the ground and in the course of doing so also cut produce that was connected to the ground. But with regard to sexual relations, how is it possible to say that a man performed the act without intention? As stated above, "an erection is always a willful act."

Based on Hilchot Shegagot 2:7, the Maggid Mishneh interprets this as referring to an instance in which a person intended to engage in relations with his wife, but accidentally engaged in relations with his sister.

36.

The Ra'avad questions the Rambam's statements and the Maggid Mishneh states that this clause is a printing error, for there is no sacrifice associated with these transgressions. The Kessef Mishneh offers a resolution, explaining that although he is not punished by an earthly court, nor is he obligated to bring a sacrifice, the transgressor is liable to God. He will reckon with the transgression on His scales of judgment. Rav David Arameah states that this teaches that the person has an obligation to confess his sin.

37.

Yevamot 55b derives this concept through the techniques of Biblical exegesis.

38.

An animal or a person that is sick or wounded and will die within a year.

39.

I.e., the esophagus and the windpipe were cut.

40.

I.e., she reaches the date of her third birthday.

41.

For a minor is never liable for punishment. Even though she consented to the transgression, she is not subjected to punishment, because she is not considered as responsible for her actions (Nidah 44b). Despite the fact that the woman is not punished, the man receives the punishment mandated by the transgression.

42.

For until that age, her signs of virginity will regenerate and hence, relations are not of consequence. Nevertheless, even when the girl is below that age, it is forbidden to enter into such relations (the Rambam's Commentary to the Mishnah, Sanhedrin 7:4).

43.

In his commentary to the Mishnah (ibid. ), the Rambam states that the punishment of kerait is not given until the violator is 20 years of age. Until that age, the person is considered immature and hence, not held liable by the heavenly court.

44.

For below that age, relations are not of consequence.

45.

For sexual relations with a male below the age of nine are not of consequence. Nevertheless, it is forbidden to enter into such relations (the Rambam's Commentary to the Mishnah, Sanhedrin 7:4).

46.

Although he is not liable according to Scriptural Law, his act certainly warrants punishment that will discourage him from continuing this pattern of conduct.

47.

A person with male and female sexual characteristics.

48.

For there is a doubt regarding the halachic status of such an individual.

49.

A person whose genital are is covered with a mass of flesh and whose gender is impossible to detect. With regard to an androgynus, the doubt concerns the individual's halachic status. With regard to the tumtum, the doubt concerns the actual facts: Which gender is covered by the mass of flesh?

50.

Since there is a possibility that such relations are prohibited, this punishment should be given to discourage them.

51.

I.e., although there is a question regarding the status of the androgynus, relations between him and her are permitted (Maggid Mishneh).

52.

Since the animal was the direct cause for the person's death, the animal is also executed. Alternatively, since the person was engaged in an unseemly transgression due to the animal, it is executed (Sanhedrin 54a).

53.

And it is forbidden to benefit from that animal (Hilchot Issurei Mizbeach 4:2).

54.

For a minor is never liable for punishment. Sanhedrin 55b explains that based on the first rationale mentioned in the previous note, one might think that the animal should not be executed. Nevertheless, the person is worthy of execution because of his deed, it is only that the Torah has pity on him. And the Torah has pity on the person and not on the animal.

55.

For she is not of age.

56.

For this is not considered relations.

57.

The question how such acts can be considered inadvertent has been raised by the commentaries. Among the answers given is that the person was not aware that the act which he performed was forbidden.

58.

Since the person is not executed, according to the first of the rationales mentioned above, the animal should not be executed. Since our Sages did not conclude which of the rationales should prevail, the matter is left undecided and therefore the animal is allowed to live.

59.

The person sleeping is considered as if he performed the forbidden act under duress.

60.

For punishment by the court or at the hand of heaven.

61.

Halachah 13.

62.

This and the following halachot are based on the principle that a chazzakah, a presumption that is firmly established, is binding and considered as actual fact.

63.

I.e., as long as it is the popular conception that two individuals are related, we judge accordingly. It is not necessary for the court to bring testimony from the midwife that in fact this-and-this woman bore this-and-this child.

64.

The punishment given for relations between a mother and her son.

65.

Exodus 21:15, 17.

66.

For we have no way of establishing the fact that his father conceived him.

67.

By living together as husband and wife in a way obvious to all.

68.

We see the concept of 30 days used to establish a person's identity in another context: After that period of time, his name may be mentioned in a legal document without fear of deception (Chelkat Mechokek 19:3; see Hilchot Malveh ViLoveh 24:4).

Although capital punishment is not enforced in the present age, there are certain aspects of this halachah which are relevant, for there are several halachic contexts in which it is necessary to determine whether or not a woman is married. Today, with the advances in recording keeping and communication, it is customary for the Jewish community - particularly, in Eretz Yisrael and in a partial way, in certain places in the Diaspora - to keep records and to be able to verify whether or not a couple are married.

69.

The transgressors are given "stripes for rebellious conduct" for certainly there is at least a possibility that the couple who claim to be husband and wife are married (Rabbi Akiva Eiger to Halachah 15).

70.

I.e., she wore clothes that she set aside to wear while she is in her niddah state. See Turei Zahav 185:2 who states that even if the woman later gives an explanation for her conduct, her explanation is not accepted and we consider her status to have changed. The Siftei Cohen and others, however, differ. See Chapter 4, Halachah 10.

71.

A man is forbidden to have relations with a woman while she is in the niddah state. In this instance, although we do not know for certain that she was in the niddah state, we act according to the presumption created by her conduct.

72.

When a man issues such a warning to his wife and she violates it, he is forbidden to engage in relations with her until she drinks the sotah waters (Hilchot Sotah 1:2).

73.

In which instance, she is not given the sotah waters to drink. Instead, her husband is required to divorce her (ibid.:14).

74.

The term zonah is halachicly defined as any woman who engages in relations with a man forbidden to her. The term literally means "a prostitute" or "a promiscuous woman." Here, however, the term is given the specific halachic meaning mentioned above. Whether she willingly or unwillingly engages in such relations, she is placed in this category. A priest is forbidden to engage in relations with such a woman. See Chapter 18, Halachah 12.

75.

One might think that it was necessary for the change in the status of the woman to be established through the testimony of two witnesses.

76.

I.e., since she violated the warning her husband gave her, we assume that she acted unfaithfully. Hence, the testimony of one witness is sufficient to bring about a change in her status.

The Ra'avad differs with the Rambam and maintains that the man is given lashes for violating a different prohibition, the prohibition against relations with a wife who has been unfaithful. The Ra'avad, however, speaks of the woman being raped and maintains that a woman is not placed in the category of a zonah when only one person observes her being raped.

The Maggid Mishneh questions the Ra'avad's statements, noting that the Rambam does not mention rape at all. The Maggid Mishneh also states that the Rambam does not require lashes when a man engages in relations with his wife after she was unfaithful. The Kessef Mishneh questions that statement, noting that in Hilchot Gerushin 11:14, the Rambam specifically rules that a man is given lashes in such a situation. See also the notes to Chapter 18, Halachah 7.

77.

We are speaking about a girl who is a na'arah between the age of twelve and twelve and a half. Her father has the right to consecrate her to whoever he desires. Therefore we accept his word when he states that he consecrated her, as Deuteronomy 22:16 states: "I gave my daughter to this man" (Kiddushin 64a).

(A father's word is also accepted with regard to consecrating his daughter is she is younger. We are, nevertheless, compelled to say that here we are speaking about a na'arah, because punishment is mentioned and a girl below the age of twelve is never punished by the court.)

78.

Or undergo formal divorce proceedings before marrying another man.

79.

The punishment given for relations with a consecrated maiden.

80.

Although the father's statement is given a certain amount of legal credibility, it is not considered as sufficient basis for capital punishment (Kiddushin 63b).

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