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The Torah Learning Library of Yeshivat Chovevei Torah

Vayetzei -The Rosh Yeshiva Responds – Levels of Obligation in Shemirat Negiah

by Rabbi Dov Linzer (Posted on November 23, 2023)
Topics: Rosh Yeshiva Responds, Sefer Breishit, Torah, Vayeitzei

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וַיִּשַּׁק יַעֲקֹב לְרָחֵל וַיִּשָּׂא אֶת קֹלוֹ וַיֵּבְךְּ:

“And Yaakov kissed Rachel, and he lifted up his voice and he cried” (Breishit 29:11)

QUESTION

What is the origin of our current expectation of extra marital shemirat negiah (abstaining from touch)? Is this truly a halakhic obligation?

ANSWER

Thank you for the question. The first thing to note is that not all forms of touch are the same. There is casual, non-sexual touch; there is intimate, and yet non-sexual touch; and there is sexual touch. Even within sexual touch, there is touch that is very proximate to the act of intercourse, and touch that, while sexual, is more distant from the act of intercourse.

There is no question that if a man and woman are forbidden to have sex with one another – for example, cases on incest, adultery, or when the women is in niddah – then sexual touch is likewise forbidden. For Rambam, this is a biblical prohibition based on the verse “you shall not draw near to uncover nakedness” (Ex. 18:6)– which for him includes any “drawing near” – any act that is close to the sexual act. While a full biblical prohibition according to him, it is nevertheless not in the same category as the act of intercourse itself.

Ramban disagrees and states that while such acts are forbidden according to the Rabbis, there is no biblical prohibition in such cases. The verse, according to him, refers only to intercourse. Ramban does consider the possibility that sexual touch might be considered halakhically like a quasi-act of intercourse and Biblically prohibited on that account, although he does not dwell on this possibility.

What constitute sexual touch to be biblically forbidden according to Rambam is not clear, and in different places, Rambam describes broader and narrower scopes. (There is even what seems to be the understanding of the Beit Yosef in one place that even casual touch is biblically forbidden, but this is fully rejected by Shakh and later poskim). A number of poskim state that any hugging or kissing would be included, but in a recent teshuva, Rav Yehudah Herzl Henkin argues convincingly, that only truly erotic and sexual touch is included.

It should be restated that any sexual touch, even if not at the level of the Biblical prohibition, is clearly forbidden rabbinically.

When it comes to non-sexual, casual touch there is also a debate amongst the poskim. The Gemara makes it clear that such touch is problematic because it can lead to illicit sexual thoughts (in men). A number of poskim are thus of the opinion that this is rabbinically forbidden. Nevertheless, the Gemara relates that a number of Amoraim would have physical contact with women and, when challenged, responded that such touch did not cause them to have sexual thoughts. Based on this, some Rishonim (Ramban, Ritva, and others) rule that if there is no concern for sexual thoughts, there is not even a rabbinic prohibition. Others argue that the cases with these rabbis are exceptional, and we must as a rule, barring special exceptions, be concerned that there will or might be sexual thoughts. Those who follow this latter opinion will not shake hands with a person of the opposite sex unless and until the other person sticks out his or her hand. I side with the former opinion, and do not hesitate to shake hands and be the one to offer my hand first.

And let’s not forget that many Sephardi rabbis receive kisses on the hand from men and women alike.