Issurei Biah - Chapter One
When a person voluntarily engages in sexual relations with one of the arayot mentioned in the Torah, he is liable for kerait, 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.If they transgressed unknowingly, they are liable to bring a fixed sin offering. There are some arayot with whom relations are punishable by execution in addition to kerait which is applicable in all cases.
With regard to the arayot that are punishable by execution by the court. If there were witnesses, they delivered a warning, and the transgressors did not cease their actions, they are executed through the means prescribed for them.
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.
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.
The following transgressions are punishable by stoning: one who has relations with his mother, with his father's wife, his son's wife; she is called his daughter-in-law, one who sodomizes a male, a male who has relations with an animal, and a woman who has relations with an animal.
The following arayot are punishable by burning: a person who has relations with his wife's daughter during his wife's lifetime, 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.
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.
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." If the adulteress is a consecrated maiden, both she and the adulterer should be stoned, 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.
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.
When a person enters into relations with women who are forbidden by merely a negative commandment, 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, Rabbinic Law ordains that he be given "stripes for rebellious conduct." When, however, a person enters into relations with a woman who is forbidden merely by a positive commandment,he 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.
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."
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.
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.
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." 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. Whether a person engages in vaginal or anal intercourse, when he "uncovers" [the woman], they both become liable for execution, kerait, lashes, or stripes for rebellious conduct. Whether they were lying or standing, liability is established by the insertion of the corona.
[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. And the court subjects both of them to stripes for rebellious conduct.
When a person enters into sexual relations with one of the arayot as a casual act, although he did not intend to do so, he is liable.Similar concepts apply with regard to one who enters into relations with women forbidden by a negative commandment alone or with one of the shniyot.
When, however, a man has relations with one of the arayot after she died, he is not liable at all. 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 trefe 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 signs 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.
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, he is liable for execution, kerait, or lashes and she is not liable 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.
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, or lashes and he is not liable. If he is younger than nine years old, they are both free of liability.
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. It is, however, appropriate for the court to subject the adult to stripes for rebellious conduct for homosexual relations although his companion was less than nine years old.
One is liable for anal intercourse with an androgynus just as one is liable for relations with another male. One who engages in vaginal intercourse with [an androgynus] is not liable.
There is a doubt concerning the gender of a tumtum. Therefore a person who has relations with a tumtum or vaginal intercourse with an androgynus should be given stripes for rebellious conduct.
An androgynus may marry a woman.
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, 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. 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.
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. 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. 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.
When a person lies with an animal inadvertently or a woman causes an animal to have relations with her inadvertently, the animal is not stoned to death even though they are past majority. 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. If one [transgresses] intentionally and the other inadvertently, the one who [transgresses] intentionally is liable 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.
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.
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. 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.
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 father How can we find clear proof that he is his father? Instead, we operate according to the existing presumption. So, too, with regard to other relatives, we operate according to the existing presumption.
[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 wife for 30 days, 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.
When a woman is presumed to be a niddah among her neighbors, her husband is given lashes for [engaging in relations] with her in the niddah state.
[The following rule applies when] a person issues a warning [not to enter into seclusion with a specific man] to his wife and she enters into seclusion with him. If one witness comes and testifies that she was unfaithful, 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. Although the fundamental element of this testimony is established by one witness, [her conduct caused] her identity to be established as a zonah.
When a father says: "My daughter is consecrated to this person," his word is accepted and she must marry him. [Nevertheless,] if she acts unfaithfully while [consecrated] to him, she is not stoned to death because of her father's statements unless there are witnesses [who testify] that she was consecrated in their presence.
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].
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