To read this teshuva in Hebrew click here.
Answer:
The Torah, in two places, instructs all of Israel to distance themselves from forbidden sexual relationships:
Anyone, to any close relative, you shall not approach to uncover their nakedness, I am the Lord (Leviticus 18: 6).
A woman, in her period of menstrual impurity, you shall not approach, to uncover her nakedness (Leviticus 18:19).
The Amoraim disagree on the scope of this prohibition. R. Pedat ruled, “The Torah forbade only intimate sexual contact” (Shabbat 13a), meaning, only sexual intercourse (full sexual contact) is biblically prohibited. In contrast, other Amoraim forbade any contact between a man and a woman in a case where a sexual relationship would be forbidden.[2] Even those who think that there is no biblical prohibition, agree that it is prohibited by the Sages. This Amoraic dispute is not resolved in the Talmud; Rambam rules that the prohibition of touching is biblical, whereas Ramban and other Spanish Rishonim rule that the prohibition is rabbinic.[3]
Beyond the question of the stringency of this prohibition (biblical or rabbinic), we must also understand its nature. It seems that the commentators disagree about this. Some maintain that contact is prohibited only when it is part of sexual foreplay and a prelude to intercourse, while others see physical contact as an independent prohibition; the sexual pleasure resulting from touching is itself problematic even when unconnected to intercourse.
This is how Rambam formulates the prohibition:
Anyone who has intercourse with one who is sexually forbidden to them “by way of limbs,”[4] or hugs and kisses in a sexual manner and takes pleasure in physical intimacy, is liable for the biblical punishment of lashes, as it states: “That you not do any of these abhorrent practices…” and “You shall not come approach to uncover their nakedness,” meaning, do not approach acts that lead to forbidden sexual intercourse.[5]
Shakh explains that Rambam’s intent is to prohibit embracing and kissing only when they are done “in an erotic, sexual manner,” i.e., the type of embracing and kissing that are identified with sexual intercourse.[6] Other commentators expanded the prohibition to any situation in which one gets sexual pleasure from physical intimacy and contact.[7] An example of this later point of view may be found in the writing of R. Aharon ben Yaakov Ha’kohen of Narbonne, author of Orhot Hayim, who formulated the prohibition in a more comprehensive manner and does not attribute the prohibition specifically to sexual desire, rather, to a desire for pleasure arising from contact, including contact which is not hugging or kissing:
It is biblically prohibited to touch a married woman on her hands, her face or any of her limbs, as it states: “Anyone (man), to any close relative, you shall not approach.” The law is clear that this “approaching” includes contact with her hands, face or any of her limbs in order to get pleasure from the contact.[8]
Tur formulates the prohibition such that it is not dependent on intent but on attaining a pleasurable result:
One who embraces or kisses and has pleasure from physical intimacy, incurs the biblical punishment of lashes, as it states: “You shall not approach to uncover their nakedness.”[9]
The common denominator for all the above-mentioned poskim is the definition of the prohibition as one of sexual contact that gives pleasure. There is no doubt, in their view, that on a basic level,[10] there is no place for prohibiting contact that is not strictly sexual.
Against these positions we find the following from a teshuvah of Ramban:
Question: A male doctor’s wife is currently in niddah and is ill. There are other doctors in the city who are considered just as or more knowledgeable than he. Is the husband permitted to take her pulse, either when they are alone (in yihud) or not alone? It is possible that since he is available this will be helpful, as the other doctors are not always around. Do we say that since this is just mere touch, it is only a shvut (rabbinically prohibited) and rabbinic prohibitions may be relaxed for even for one who is not deathly ill, this case should be treated similarly? Or do we say that our case is different since his desire may overcome him, as we say, “Go around, nazirite, do not approach the vineyard?”
Answer: It is evident that it is forbidden. First, it is possible that any contact is biblically forbidden, as it states in the first chapter of Shabbat (13a): ”’If he has not eaten on the mountains or raised his eyes to the idols of the House of Israel; if he has not defiled another man’s wife or come close to a menstruating woman.’ The verse equates his wife who is in niddah with another man’s wife – just as another’s man’s wife, he in his garment and she in hers, is forbidden so too his wife when she is in niddah, he in his garment and she in hers, is forbidden. This disagrees with R. Pedat for R. Pedat said: The Torah only prohibited sexual intercourse of forbidden sexual relationships, as it states, ‘You shall not come close to reveal their nakedness.'” Those who forbid any contact do so due to [the principle of], “Go around, go around, nazirite…”; nonetheless, a rabbinic prohibition is still a prohibition. Since this illness is not life-threatening, we do not relax rabbinic prohibitions.[11]
In this teshuvah, Ramban discusses non-erotic touching – taking a pulse for medical reasons. Nevertheless, he forbids this type of contact with a woman who is in niddah. From this, it emerges that the prohibition of contact, whether we rule that it is biblical or rabbinic, applies to any contact even if it does not provide sexual pleasure. It seems that this is how Beit Yosef understands Ramban and he states:
But, according to Rambam, who rules that sexual contact is biblically prohibited, even though this case involves pikuah nefesh (saving someone’s life), it is possible that it is forbidden as it constitutes an appurtenance of a forbidden sexual relationship. This requires further examination.[12]
Beit Yosef offers the possibility that taking a pulse is considered a form of contact that, according to Rambam, is biblically forbidden! These words of Beit Yosef are quite puzzling. Among other questions, if it is the case that the prohibition on physical contact applies to any type of contact, why doesn’t Ramban forbid treatment by other physicians and ruled only about the husband?[13] Shakh disagrees with this strict understanding of Rambam and argues strongly that, even according to Rambam, physical contact is forbidden only when it has erotic significance:
This does not seem to be the case. Certainly, even according to Rambam, there is only a Biblical prohibition when the contact is done in a sexual manner, as I stated in 157:10. This is not the case here and it is commonplace for [male] Jewish doctors to take women’s pulses, even married or Gentile women, and even when there are Gentile doctors available. Additionally, they perform other types of medical examinations. Rather, the matter is obvious as I have written …[14]
It is reasonable to suggest that Beit Yosef ‘s intent is not to issue a blanket prohibition, for all men, on professionally required contact; he only forbids a husband to treat his wife when she is in niddah because he does not think that a husband is capable of relating to his wife professionally without any expression of the intimacy between them. This prohibition is limited to the husband, not to every man.[15]
It is also possible to suggest that Beit Yosef understands that the prohibition is not about simple affection between husband and wife, rather, a fear that it might move to erotic touch – “At first he does not do this in a sexual manner, nonetheless, it might come to that.”[16] Nonetheless, it is important to note that Beit Shmuel understands Beit Yosef’s words literally and prohibited all contact, even non-sexual touch, between a man and a woman in niddah and even if she is not his wife.[17]
It is possible that Beit Yosef is inclined to be stringent, in practice, about this question since, in Shulhan Arukh, he forbids a husband to touch his wife when she is in niddah, and did not mention any leniency even in the case of pikuah nefesh when there are no other doctors in the city:
If a woman is ill and she is in niddah, it is forbidden for her husband to touch her in order to tend to her, for example, to get her up, to lay her down or to support her. If her husband is a doctor, he may not take her pulse.[18]
Rema accepts Beit Yosef’s understanding of Rambam, but he notes again that there are lenient opinions, and he adds in his glosses to Shulhan Arukh that it is our practice to rely on these views:
There are those who say, that if she doesn’t have anyone to tend to her, everything is permitted (Hagahot Shaarei Dura; Hagahot Mordekhai to Shabbat, Chapter 1, in the name of R. Meir) and this is our practice if she is in great need.
According to what I wrote, that we follow the lenient practice if she needs tending, it is certainly permissible to take her pulse when there is no other doctor, when she needs this and when there is danger posed by her illness…[19]
As we already noted, it is unclear whether Beit Yosef prohibits a doctor who is a stranger to touch a woman for the purpose of treating her. However, even if we accept the most stringent interpretation of his words, in the end, Rema rules that it is customary to rely on the lenient opinions among the Rishonim,[20] and Shakh argues that, even according to Rambam, there is no biblical prohibition. In practice, the poskim ruled that Shakh’s position is halakhically accepted.[21] However, there are those who concluded that, even according to Shakh, there is a rabbinic prohibition if it is not immediately recognizable that the contact is not erotic; when it is clear that the purpose of the contact is for treatment or assistance, it is permitted.[22]
To summarize what has been said to this point:
Despite the above, there is a form of touch that, although it is not done for sexual pleasure, was forbidden by some of the Amoraim. To clarify this, we begin by quoting Rambam:
It is forbidden for a man to use the services of a woman at all, whether she is an adult or a minor, slave or free, lest he come to have sexual thoughts. Which services did they mean? Washing his hands, face and feet; arranging his bed in his presence; mixing and pouring wine in his cup – only a man’s wife performs these services for him.[23]
These activities – bathing, arranging the bed and pouring wine are activities that are essentially intimate, part of the relationship between husband and wife. When a strange woman does these intimate acts for a man who is not her husband, there is a reasonable fear of improper sexual thoughts, thus, the Amoraim forbade them.[24] Although Rambam includes this prohibition in his work, the Tosafists take a different position from that of the Amoraim. According to these Tosafists, if a man knows that it will not lead him to have improper sexual thoughts, there is no prohibition. Consequently, they conclude:
Nowadays, when we employ the services of women, we rely on this.[25]
Mordekhai quotes R. Shmuel ben R. Barukh who expands this leniency further and states:
Even though we do not generally employ the services of women, it is permitted to do so when the labor sought is done in the manner of a servant, just as Avigayil did when she offered to wash the feet of David. When the Yerushalmi said these types of actions are forbidden, it meant those actions that are intimate and done in a private setting. However, when done in a public bathhouse, where there are many people present, it is permitted. Consequently, it is permitted for Gentile women and female servants to bath us [Jewish men] in a public bathhouse.[26]
In his opinion, any situation in which there is no intimacy, even though the person stands naked in the bathhouse, is permitted. The lack of intimacy stems from the fact that the relationship to this woman in the bath is that she acts “in the manner of a servant” and because there are numerous people in the bathhouse. Beit Yosef is startled by the idea that a woman may bathe a man in the bathhouse and rejects it sharply:
And I say that the matter is settled, it may not be said, and it is forbidden to consider it. There is no doubt in my mind that a misguided student wrote this and attributed it, incorrectly, to his teacher.[27]
Indeed, Shulhan Arukh cites only the words of Rambam. However, Rema maintains the Ashkenazic custom and states:
There are those who say that this only forbidden when the two are alone (in yihud), however, when it is public place, such as a public bathhouse, it is permitted for one of the Gentile servant women to wash him; this is our practice. (Mordekhai, chapter af al pi, in the name of R. Shmuel ben R. Barukh). There are those who say that as long as one does not do it in an intimate manner, and the intention is proper it is permitted. Therefore, it is customary to act leniently in these matters (Tosafot, end of Kiddushin).[28]
In view of all of the above, in determining whether it is permitted or forbidden for male counselors and volunteers to attend to the physical needs of young women with disabilities, we establish several guidelines:
We conclude with a quotation from the Bavli:
Who is a hasid shoteh (a foolish pious person)? A woman is drowning in the river and he says, “It is improper to gaze at a woman and save her.[30]
May we merit to observe the halakhah appropriately – prohibiting that which is prohibited and permitting that which is permitted and not using the Torah as a barrier to helping others where it is permitted.
[1] This is the particular question that arose. The guidelines are also relevant to a young woman providing physical care for a young man.
My thanks to two students, Rotem Heksher and Netzer Maoz, who explored this subject in detail, under my guidance, a number of years ago. Special thanks to Rabbi Dr. Yosef Slutnik who edited the teshuvah and made helpful comments.
[2] It is important to emphasize that a post-pubescent woman who has not yet immersed in a kosher mikveh is considered a niddah, according to halakhah even when she is not menstruating.
[3] Sefer Ha’mitzvot li’Rambam, Lo Ta’aseh #353, Ramban’s Glosses ad loc. Ramban discusses, at length, the status and scope of the prohibition and presents a complex, in depth approach. His inclination is that the prohibition is rabbinic though he does not present this position as exclusive. In any case, Rivash (425) determines that Ramban’s ruling is that it is a rabbinic prohibition.
[4] E.g. oral or manual sex.
[5] Hil. Issurei Biah 21:1.
[6] YD 195:20.
[7] This interpretation seems to fit the words of Rambam in Sefer Ha’mitzvot (Negative Mitzvah 353): “We are forbidden to come close to any of those sexually forbidden, even without intercourse, such as hugging and kissing, and similar licentious activities.”
[8] Orhot Hayim, Hil. Biot Asurot 13.
[9] EH 20; so it seems in Rivash 425; Ramban, Glosses to Sefer Ha’mitzvot ( Negative Prohibition 353) who sees physical contact as a type of hatzi shiur of intercourse.
[10] Regarding other levels of contact, see further on in the teshuvah.
[11] Shut Ha’rashba Ha’miuhas Li’ramban 127.
[12] Beit Yosef, YD 195:17.
[13] Although it is possible to suggest that the other physicians mentioned in the teshuvah are Gentile, this detail should have been emphasized.
[14] Shakh, YD 195:20 s.v. asur li’mashesh and further; see in greater depth in 157:10.
[15] Shut Bet Shearim, OH 294. In Igrot Moshe, YD 2:137: “See Beit Shmuel, EH 20:1 where he notes that Ramban wrote in a responsum that even when it is done in a non-intimate manner, according to Rambam, it is biblically forbidden. Nonetheless, we must say that this is only according to those who assume that contact, in general, is assumed to be intimate and it makes no difference what the specific intention is.
[16] See Mahatzit Ha’shekel, YD 195:20 s.v. assur.
[17] Beit Shmuel 20:1 s.v. o she’hebek vi’nashak. This also seems to be the explanation of Levush, YD 195:16 who says this matter results from the dispute whether “negiah” is biblically or rabbinically forbidden. He rules that our practice is to be lenient if there is a need. See also Ezer Mikdash, EH 20:1.
[18] SA, YD 195:16,17.
[19] Rema, ad loc.
[20] Darkhei Moshe Ha’arokh, YD 195:6 also Darkhei Moshe Ha’katzar ad loc.
[21] See Minhat Yitzhak 7:73.
[22] See Igrot Moshe, YD 2:137: “Even though they did not do it out of sexual desire, thus, there was no biblical prohibition, nevertheless, the Sages forbade contact even when it is not sexual in nature provided that it is not clearly recognizable as non-sexual. This is clear from Shakh, YD 195 where he writes that, even according to Rambam, the biblical prohibition of contact is when it is done in a sexual manner, indicating that it is rabbinically prohibited. He concludes that the practice is that Jewish doctors may take the pulse of women, even those who are married or Gentile, and they may do other examinations as well. The reason is that the rabbinic prohibition exists only when it is not clear that the purpose of the contact is non-sexual in nature; a doctor’s examination is clearly not sexual – it is medical.” This point of Rav Moshe needs further examination as Shakh, follows his explanation of Rambam by noting the customary practice to be lenient. It is not clear whether he makes a distinction that there is rabbinic prohibition when it is not immediately recognizable if the action is medical or sexual.
[23] Hil. Issurei Biah 21:5.
[24] See Kiddushin 81b and Ketubot 61a.
[25] Tosafot Kiddushin 82a s.v. ha’kol.
[26] Ketubot 182.
[27] EH 21 s.v. u’mah she’katav afilu li’tzok lo mayim li’rhotz.
[28] Rema, EH 21:5.
[29] Of course one should be careful to observe the laws of yihud. It should be noted that from a human and halakhic point of view, it is preferable that a permanent caregiver be of the same sex.
[30] Sotah 21b.
All of the content in The Lindenbaum Center for Halakhic Studies is released with a Creative Commons Attribution 4.0 International license. It is open for reuse with the following attribution: "Authored by [name of author] from The Lindenbaum Center for Halakhic Studies at YCT.
Rabbi David Bigman is Rosh Yeshiva of Yeshivat Ma'ale Gilboa. He participated in the founding of one of Israel's first yeshivot for women to focus on Talmud, now at Ein HaNatziv, and also served as Rosh Yeshiva at Ein Tzurim. A native of Detroit, he earned a B.A. in Economics from Wayne State University and studied at the Yeshiva of Detroit, (Rabbi Leib Bakst, Rosh Yeshiva) and in Israel at Kerem b'Yavneh, Mercaz HaRav and Yeshivat Netzach Yisrael (Rabbi Yisrael Ze'ev Gustman, Rosh Yeshivah). His teaching emphasizes critical study of Talmud and encourages independent thought in all areas.
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