Siman 20

One who comes upon any of the arayot mentioned in the Torah, and they are eighteen in number as written in siman 15, section 24, if done intentionally, is liable for karem, and if she was also intentional, she is liable for karem as well, as it is written: "For whoever does any of these abominations, they shall be cut off" etc. (Vayikra 18:29). And if they were unintentional, they are liable for a chatat offering, and each of them brings an offering. And if one was intentional and the second was unintentional, the intentional one is liable for karem and the unintentional one for an offering. And there are some arayot for which they are liable for death by beit din in addition to the karem that applies to all arayot, and we explained them in siman 15, see there. However, death by beit din is only by way of witnesses and warning, and even a Torah scholar requires a warning even though he knows the law himself, for it is a decree of the Torah. And this which the Rambam wrote in chapter 1, law 3: They do not put to death nor do they lash until there is a warning there, for a warning was only given in every instance to distinguish between the unintentional and the intentional. Thus far his words. His intention is that there are several types of unintentional acts, such as perhaps he does not know that she is the ervah, and an unintentional act like this can occur even with a Torah scholar. And if he came upon one ervah five times, if it was at one time, he is only liable for one offering. And if it was with five unintentional acts, such as if it was hidden from him that she is an ervah and he came upon her, and it became known to him afterwards, and it was again hidden from him and he came upon her, he is liable for an offering for each and every act of intercourse. And regarding those liable for lashes in such a case, if there were five warnings, he is liable for five sets of lashes. And if with one warning, he is only liable for one set of lashes. And if he came upon five arayot even though they are of one type, such as if he came upon his five sisters, even if it was in one lapse of awareness, he is liable for five chatat offerings since the bodies are distinct, and likewise regarding those liable for lashes in such a case.

Forbidden relations that do not carry a death penalty of the beit din, nevertheless, if it occurred with witnesses and a warning—they are lashed, for all those liable for karet are lashed. And one who cohabits with one of those prohibited by a negative commandment intentionally with witnesses and a warning—they are lashed. And if it was unintentional—they are exempt from everything, for there is no sacrifice for those liable for negative commandments except for a designated handmaid. And if he cohabits with one prohibited by a positive commandment—he is not lashed, as there are no lashes for a positive commandment; however, before the act, they strike him until his soul departs so that he does not violate the positive commandment. And one who cohabits with one of the secondary forbidden relations that we enumerated there—they strike him with lashes of rebellion. And so too regarding those prohibited by a positive commandment, if it appears to the beit din to strike him with lashes of rebellion in order to distance the people from transgressions—the authority is in their hands [the Rambam ibid., halacha 8].

One who is coerced is exempt from everything, for the Merciful One exempts the coerced, as it is written: "But to the girl you shall do nothing" (Deuteronomy 22:26); and he is exempt from a sacrifice and from lashes, and it goes without saying from death. And a woman whose intercourse began with coercion, even if its end was with will, is exempt from everything, for the inclination coerced her to this; and since he began to cohabit with her by coercion, it is no longer in her power not to derive pleasure, for such is the nature of the inclination, and ultimately she is coerced and what was in her power to do? And coercion only applies to a woman, but regarding a male, coercion is not applicable; for granted that they coerce him to come upon a forbidden relation, if he comes with a dead limb he is exempt, as will be explained, but to make it alive it is impossible to force him to this, and behold he does this with his will. And we do not say that regarding this he is coerced as we said regarding a woman when her beginning was by coercion, for it is different there since the act of transgression had already begun, but here the beginning of the transgression is with his will; unless, for example, he was prepared to come upon his wife and they coerced him to come upon a forbidden relation, where he is certainly exempt [Ra'avad]. And some say that in any case, since they coerced him, he is exempt by the laws of man [the Maggid Mishneh], for this is also a type of coercion; however, this is specifically when there is coercion of death, but without this he is liable. And the Rambam ruled according to the first opinion. [And see Tosafot Yevamot 53b, s.v. she-ansuhu].

In siman 15 we explained all the arayot, and a married woman is also an ervah, and once a man has betrothed a woman, six women from among her relatives become arayot to him forever, whether he performed the marriage ceremony or divorced her, and whether during his wife's lifetime or after her death, and these are they: her mother, her mother's mother, her father's mother, and likewise her daughter, her daughter's daughter, and her son's daughter. The Rambam, of blessed memory, wrote in the second chapter of Issurei Biah that if he came upon one of them during his wife's lifetime intentionally and with witnesses and a warning—both of them are burned, and if he came upon them after his wife's death—these are subject to karet and do not carry a death penalty of beit din, as it is said, "with fire they shall burn him and them" (Leviticus 20:14). And as for his wife, what was her sin? Rather, this is the explanation: that as long as both of them exist, meaning his wife is also alive and even if she was divorced from him, he and the ervah are burned, but when she does not exist, there is no burning. And even though this verse is written regarding his mother-in-law, the Rambam learned from it for all the arayot that were forbidden through his wife, but there are some among the Rishonim who disagree with him and hold that his mother-in-law after his wife's death is under a mere prohibition and does not carry a liability of karet, and the other arayot are subject to burning even after her death, and there are those who are in doubt regarding this [see there in the Maggid Mishneh, halacha 7].

His wife's sister is an ervah to him during his wife's lifetime, even after he has divorced her; however, when his wife dies, he is permitted to marry her sister, as it is written: "And a woman to her sister you shall not take to be a rival, to uncover her nakedness upon her in her lifetime" (Leviticus 18:18). There is no difference whether she is her sister from her father or from her mother, or whether she is her sister from her father's marriage or from his harlotry. For him, there is no prohibition unless he performed kiddushin with a woman, then the seven arayot that have been explained become prohibited to him; but if he committed harlotry with a woman, her relatives—who are the seven women we have enumerated—are not prohibited to him. Only the sages prohibited him from marrying one of them as long as the harlot is alive, because the harlot comes to visit her relatives and he might be secluded with her, and since he is familiar with her, he may come to sin by having relations with the ervah. Not only this, but even if he was suspected regarding a woman, he shall not marry one of her relatives until this woman of whom he was suspected dies; and if he married the relative after having committed harlotry with her relatives, he shall not divorce her. The Rambam, of blessed memory, wrote there: One who was suspected regarding an ervah or about whom an evil rumor spread regarding her, he shall not dwell with her in the same alleyway and shall not be seen in that neighborhood; and it happened that there was one about whom people were gossiping regarding his mother-in-law, and the sages struck him with lashes of rebellion because he passed by the entrance of her house. Thus far his words. And some say that this is only regarding his mother-in-law because she is familiar with him on account of her daughter, but not regarding another ervah.

One who has relations with a woman and her daughter by way of zenut, or with a woman and her sister and the like, this is as if he had relations with two unrelated women, for they do not become ervah to one another except through marriage, not through zenut. And so too, if his father or his son or his brother or his father's brother raped a woman or seduced her, she is permitted to him and he may marry her, for it was only stated "the wife of," and there is no marriage here. And so too, if his father or his son married a woman, he is permitted to marry her daughter or her mother [the Rambam]. And it is permitted for a man to marry the wife of his brother's son when he dies or divorces her. And a man may marry a woman and her sister's daughter or her brother's daughter simultaneously in a place where they marry two women [ibid.].

The male is fit for intercourse from when he is nine years and one day old, and the female from when she is three years and one day old. It is a known matter that a minor male and a minor female are exempt from punishments. Until when? The male until he is thirteen years and one day old, and the female until twelve years and one day old. Therefore, regarding all arayot, if both are adults—both are liable for death or a korban. If both were minors—both are exempt. If one was an adult and one was a minor—the adult is liable and the minor is exempt. Likewise, if one of them was a deaf-mute or an insane person—his law is like that of a minor.

"And a man who commits adultery with the wife of a man" (Leviticus 20:10), and we expound: "a man" — to exclude a minor, for a minor who comes upon a married woman is exempt. And we do not say that since the woman is liable for death, if he is fit for cohabitation as has been written, they should kill him as well, as in the case of one who comes upon an animal. And similarly they expounded: "the wife of a man" — to exclude the wife of a minor. And even though a minor has no legal marriage and a verse is not needed for this, nevertheless it was necessary, for example, for a woman awaiting yibum for this minor and he already came upon her and he is nine years and one day old, and I would have said that her law is like a married woman; the verse comes to teach us that she is not like a married woman since he was a minor. And similarly, one who comes upon the wife of a deaf-mute or an imbecile — their law is like the wife of a minor. And similarly, one who comes upon the wife of a tumtum or an androgyne — his law is like the wife of a minor. And similarly, a person of sound senses who married a deaf-mute or an imbecile — she is not a complete married woman, and one who comes upon them is exempt from death and from a sacrifice, and they only strike him with makkat mardut. And similarly, one who comes upon a woman who is betrothed in a state of doubt or divorced in a state of doubt — they strike him with makkat mardut. And a minor girl whose father betrothed her to an adult man, she is a complete married woman, and one who comes upon her is liable for death when she is fit for cohabitation. And if she was an orphan and was betrothed by herself or by her mother and her relatives — this is only a rabbinic betrothal, and one who comes upon her is exempt from death and from a sacrifice, and they strike him with makkat mardut.

That which is stated, "And the daughter of any kohen, if she profanes herself by playing the harlot, she profanes her father; she shall be burned with fire" (Leviticus 21:9), the explanation is not when she is unmarried, but rather when she is married. For a married daughter of an Israelite is liable to strangulation when she commits adultery intentionally, whereas the daughter of a kohen is liable to burning. However, a betrothed daughter of a kohen, her law is like a betrothed daughter of an Israelite—with stoning, for behold, stoning is more severe than burning, and it is impossible to say that the daughter of a kohen is more lenient than the daughter of an Israelite. Therefore, we apply it to a married woman, as burning is more severe than strangulation. But the one who cohabits with her, his law is not changed—and he is subject to strangulation. And regarding the daughter of a kohen, there is no distinction whether her husband was a kohen or whether he was an Israelite; even if her husband was a mamzer or a Natin or one of the other those liable to negative or positive commandments—her law is with burning, for the Merciful One made it dependent on her lineage. Therefore, the wife of a kohen who committed adultery and she is the daughter of an Israelite—her law is not with burning, but rather with strangulation.

One who has relations with a young woman betrothed to a man who has not yet married—both are punished by skilah as is explicit in the Torah, and if she was coerced—he is liable for skilah and she is exempt. And the liability of skilah is only as long as she is a na'arah and not a bogeret, a virgin and not a non-virgin, betrothed and not married, and as long as she is still in her father's house; and if she entered the chupah even though she has not yet had relations, and even if she did not enter the chupah but the father delivered her to the husband's messengers who came to take her and she committed adultery on the way—her law is like a married woman and not like a betrothed woman. And one who has relations with a minor betrothed in her father's house—he is punished by skilah and she is exempt. And one who has relations with a bogeret betrothed in her father's house—both are punished by chenek, and two people who had relations with a betrothed na'arah—the first is punished by skilah and the second by chenek since she is no longer a virgin; therefore, if the first had relations with her in an unnatural manner such that she is still a virgin—the second is also punished by skilah [Sanhedrin 66b and according to the Rabbis]. And know that in all forbidden relations there is no distinction between natural relations and unnatural relations as the verse did not distinguish, except regarding a shifchah charufah as will be explained. And a betrothed na'arah who was a convert or a freed maidservant, even though she converted or was freed when she was less than three years and one day old, nevertheless her law is not skilah but chenek, for the betrothed na'arah who is punished by skilah is written regarding Israel, as it is written "because she has committed a disgraceful act in Israel" (Deuteronomy 22:21).

The laws of a motzi shem ra are explicit in the Torah and explained in the Rambam, chapter 3 of Na'arah Betulah. According to the opinion of the Rambam regarding a motzi shem ra, if it is found that she committed adultery after she entered the huppah before she had intercourse with her husband – she is liable to skilah, and such is the opinion of several of our teachers [see Tosafot Ketubot 45a in the name of the Rashbam]. And there are those of our teachers who disagree on this and hold that she is not liable to skilah unless it is found that she committed adultery in her father's house, but if she committed adultery after she left her father's house – she is subject to hennek like all other women.

Regarding a betrothed maiden who committed adultery, it is written that the stoning shall be at the gate of the city, and regarding one who brings forth an evil name, it is written that they shall stone her at the entrance of her father's house. And thus the sages taught [Ketubot 44b]: If witnesses came against her in her father-in-law's house that she committed adultery in her father's house—they stone her at the entrance of her father's house, as if to say, "See the offspring that you raised." And if witnesses came against her in her father's house that she committed adultery in her father's house—they stone her at the entrance of the city gate. However, the Rif and the Rambam read in the latter clause: If witnesses came against her in her father's house that she committed adultery in her father-in-law's house, they stone her at the entrance of the city gate, such as if she was in her father-in-law's house between betrothal and marriage and committed adultery there and returned to her father's house; but if she committed adultery in her father's house, they stone her at the entrance of her father's house. And that which is said, the stoning is "at the gate of the city"—this is when she committed adultery in her father-in-law's house. And this is more reasonable, for since the reason regarding one who brings forth an evil name as to why she is stoned at the entrance of her father's house is because of "see the offspring that you raised," if so, all the more so when witnesses came while she was in her father's house. And according to the first opinion, it must be said that there, there is no need for proof of the offspring they raised, for behold, everyone knows that she committed adultery in her father's house since she is still in his house; but regarding one who brings forth an evil name, where she is currently in her father-in-law's house, everyone does not know that she committed adultery in her father's house, therefore the Torah required to stone her at the entrance of her father's house so that everyone should know that the evil came out from his house [and this is the intent of Rashi there, s.v. "Re'u," see there]. And in the Tosefta, chapter 10 of Sanhedrin: It was taught, a betrothed maiden who committed adultery, they stone her at the entrance of her father's house—it is also explicitly stated like the opinion of the Rambam. And according to the first opinion, it must be said that the witnesses came after she was in her father-in-law's house [see Rashi there, 45a, s.v. "Al petach"].

The Rambam, of blessed memory, wrote: If witnesses came after she reached maturity or after her husband had relations with her, even though they testified that she committed adultery in her father's house while she was a na'arah—she is stoned at the beit haskilah, thus far his words, and not at the entrance of her father's house. And they wondered about him, for the entire matter of motzi shem ra deals with a case where the husband had relations with her, as it is written: "And I approached her and did not find her tokens of virginity" (Deuteronomy 22:14), and so the Rambam himself wrote in the third chapter of Na'arah; if so, her stoning should be at the entrance of her father's house. And it is possible that his intention refers to the arrival of witnesses without a motzi shem ra, or it is possible his intention is that he had relations with her beyond the first act of relations, such that she is now like a fully married woman, and therefore, even though her law did not change to strangulation since she committed adultery beforehand, nevertheless she has already been removed from the entrance of her father's house and is similar to a bogeret who has left her father's authority entirely, [and he inferred it from what we say there on 45a: "And once she has reached maturity etc. she and those who conspired against her precede to the beit haskilah," and the standard beit haskilah is not at the entrance of her father's house, and from this he judged regarding a fully married woman as I have written].

And likewise, if her conception was not in sanctity even though her birth was in sanctity—she is never stoned at the entrance of her father's house, but rather at the entrance of the city gate, for she has no father. And likewise, anyone whose commandment is to stone her at the entrance of the city gate, if the majority of the city are gentiles, they stone her not far from the entrance of the beit din, and likewise, anyone whose commandment is to stone her at the entrance of her father's house and she has no father or he has no house—they stone her at the entrance of the place of stoning of the city or of the beit din, for "the entrance of the father's house" was only stated as a commandment and not as a requirement, and even according to the one who holds we require the verse as it is written, nevertheless here the verse revealed to include her conception not in sanctity, which is also "she has no father," consequently it is not a requirement.

It is written in Kedoshim (Leviticus 19:20-21): "And if a man lies carnally with a woman, and she is a maidservant betrothed to a man, and she has not been redeemed or given her freedom, there shall be an inquiry; they shall not be put to death, because she was not free. And he shall bring his guilt offering," etc. And the tradition has come that this refers to one who is half-maidservant and half-free woman who is betrothed to a Hebrew slave, as it is said, "they shall not be put to death, because she was not free" – implying that if she had been entirely freed, they would be liable to death, for she would have become a complete married woman. And the law of this cohabitation is different from all forbidden cohabitations in the Torah, for in all cohabitations the punishment of the male and the female are equal, but in this cohabitation she is liable to malkut, as it is said "there shall be an inquiry [bikoret]," which is a term for inspection, for regarding malkut they would inspect the person to see if he is fit to receive the malkut or not; and he is liable for a sacrifice, and even for a willful act he brings a sacrifice, whereas in all forbidden cohabitations we do not find a sacrifice for a willful act. And one who cohabits with her many times, whether willfully or inadvertently, brings one asham, but she is liable to malkut for each and every cohabitation when she acted willfully. However, if he cohabited with five betrothed maidservants, even inadvertently and in one lapse of awareness – he is liable for an asham for each and every maidservant because they are distinct bodies [Keritot 9a]. And similarly, this cohabitation is different in that in all cohabitations initial contact is like the completion of cohabitation, but here there is no liability except for the completion of cohabitation, as it is written "shikhvat zera," which is fit for insemination; and for this reason also, there is no liability here for unnatural intercourse, unlike all forbidden cohabitations. And similarly, this cohabitation is different in that the matter depends only on her, and thus the sages taught [ibid. 11a]: When the woman is lashed – the man brings a sacrifice; if the woman is not lashed – the man does not bring a sacrifice. Therefore, when she is inadvertent, or under duress, or a minor who is not subject to the liability of malkut, he is not subject to the liability of a sacrifice. And her liability is only when she was already a non-virgin. And the sages, of blessed memory, derived all of these there from verses, see there. Therefore, according to the opinion of the Rambam, of blessed memory, at the end of the third chapter of Issurei Biah, when she is liable to malkut, he is liable for a sacrifice even if he has not yet reached the years of majority, if he is nine years and one day old, as he is fit for cohabitation; and even though in the entire Torah a minor does not bring a sacrifice, it is different here since the Torah made it dependent on her. And there are those who disagree on this. And we find something similar to this in the Rambam in the eighth chapter of Gezeilah, law 11, that a minor brings a sacrifice, see there, for it is impossible for his law to be without a sacrifice. And we explained this with the help of Heaven in Choshen Mishpat, siman 367, section 25, that his intention is that if the minor desires atonement he brings a sacrifice, and not that they compel him to this, see there.

The Rambam, of blessed memory, wrote in the first chapter of Issurei Biah: One who inserts the head of the atarah alone is called one who "uncovers" (me'areh), from the expression "he has uncovered (he'erah) her source" (Leviticus 20:18), and one who inserts the entire organ is called one who "completes" (gomer). In all forbidden unions, both the one who uncovers and the one who completes are the same; even if he did not emit semen, and even if he withdrew and did not complete—once he inserted the head of the atarah, both are liable to death by beit din, or kareth, or lashes, or lashes of rebellion. Whether one comes upon a forbidden relation in the natural way or one comes upon her in an unnatural way, once he uncovers within her, both are liable to death, or kareth, or lashes, or lashes of rebellion, whether they were lying down or they were standing—the liability is for the insertion of the atarah. Thus far his words. However, that which he inserts until the atarah is nothing but flesh and not the gid, as I wrote in siman 5, and this does not carry the status of biah. And even according to what I wrote there, that on the underside of the gid it is all atarah, nevertheless the liability is only for one who inserts until the atarah that is on the upper side. And some say that in truth the insertion of the atarah is called the head of the gid, and nevertheless regarding lashes one is liable even in such a case. And it is possible that also to forbid a woman to her husband she is forbidden in such a case even if she was not preceded by witnesses of unseemly conduct. However, from the wording of our teacher, the Rema, who wrote: "An adult woman upon whom a minor less than nine years old came is not liable to death through him, and it seems to me that the same applies that she is not forbidden to her husband," thus far his words, it does not imply so, and before the atarah is no better than the biah of a minor; and it requires further study for the law.

Anyone who performs a forbidden act of intercourse without an erection, but rather his organ was limp, like the organ of the dead, such as those who are ill or one who was born thus like a saris hammah, even if he inserted the organ with his hand – he is not liable for kareth nor for lashes, and it goes without saying death, for this is not intercourse. However, he disqualifies her from terumah, and the beit din strikes them both with makkat mardut [the Rambam], and she is forbidden to her husband in such a case as written in siman 178 [Beit Shmuel]. One who has intercourse with a dead ervah is exempt, but one who has intercourse with a sick woman, even when she is in the throes of death or she is a tereifah in whom the majority of the two organs have been slaughtered, nevertheless if she is still alive, they are liable for intercourse with her. And so our Sages, of blessed memory, said: One who acts unintentionally with arayot is liable because he derives pleasure [Sanhedrin 62b]. And he is called "unintentional" when he did not intend for a forbidden intercourse, such as when he intended for his wife and an ervah happened upon him, or when he did not intend for intercourse at all and performed the act. And this liability is a liability for a korban regarding arayot, but death and lashes are not applicable in such a case, for it is a complete accident. We have already explained that a female three years and one day old is fit for intercourse, and one who has intercourse with her when she is an ervah becomes liable for death through her, or lashes, or a korban. But one younger than three, her intercourse is not intercourse at all and even her hymen returns. And more than this they said in the Yerushalmi, the first chapter of Ketubot: If she was three years and one day old and he had intercourse with her, her hymen does not return; yet if the beit din decided to intercalate the year and it was found that she is not yet three – her hymen returns. And it derives this from the verse, "I will cry out to God Most High, to the God who completes for me" (Psalms 57:3), see there. One younger than three, her intercourse is nothing, for even if her father betrothed her to a kohen she is permitted to him; but at more than three years she is forbidden to a kohen and permitted to a Yisrael even if she committed zenut of her own will, for the seduction of a minor is considered duress according to most poskim [Beit Shmuel]. There is no difference regarding arayot between one awake and one asleep; therefore, if one was awake and the second was asleep – the one awake is liable and the one asleep is exempt. One who has intercourse with a deaf-mute or insane ervah – is liable, since they are fit for intercourse like a minor older than three years and one day. If both were minors or deaf-mutes or insane – they are exempt; nevertheless, they are struck so that they do not become accustomed to transgressions, as written in Choshen Mishpat siman 349 regarding theft, see there.

The sages taught in the Sifra on Emor: "None of you shall approach to uncover nakedness" (Leviticus 18:6) – I only know that one may not uncover; from where do I know that one may not approach? The verse states, "And to a woman in her menstrual impurity you shall not approach" (Leviticus 18:19). I only know this regarding a niddah; from where do I know it regarding all forbidden relations? The verse states, "None of you shall approach to uncover nakedness." And the Torah forbade any approaching of forbidden relations, such as hugging and kissing, and certainly to derive pleasure from her through fleshly proximity or through limbs. And if one did so with those liable for karem, the Rambam wrote in chapter 21 of Hilkhot Issurei Biah that he receives lashes by Torah law, as it is said, "that you do not perform any of these abominable customs," and it is said, "none of you shall approach to uncover nakedness" – meaning, do not approach things that lead to the uncovering of nakedness. And some say that he is not liable for lashes. One who does any of these things is suspected of forbidden relations and is disqualified from testifying regarding a woman. Likewise, it is forbidden for a man to rub against a man with his limbs in a lustful manner, and likewise a woman with a woman. And thus the sages, of blessed memory, said [Shabbat 65a]: women who rub against each other are disqualified from the priesthood, and it is the practice of the land of Egypt, regarding which it is said, "Like the practice of the land of Egypt... you shall not do" (Leviticus 18:3), for such was their filthy way. And it is proper to strike them with lashes of rebellion since they performed a prohibition. A man should be meticulous with his wife, his sons, and his daughters regarding such things, and he should prevent women known to him who are accustomed to this from entering his house. And we hold that they are not prohibited to the priesthood by this [Yevamot 76a].