SEXUAL OFFENSES

Although the technical term for sexual offenses in general is gillui arayot (lit. "the uncovering of nakedness"), the term is usually (though not always: cf. Ex. 20:23; Isa. 47:3, et al.) employed to denote carnal knowledge (Lev. 18:6–19). In the present context, however, the term "sexual offenses" includes offenses committed by prohibited sexual intercourse, offenses of unlawful sexual conduct short of intercourse, and related offenses presumably motivated by the sexual urge.

As well as acts of *adultery and *incest, the Bible also prohibits sodomy and homosexuality (18:22), denouncing such acts as "abhorrent" and making them capital offenses (20:13); having carnal relations with any beast is also made a capital offense (18:23; 20:15–16). These offenses were punishable by stoning to death (Sanh. 7:4; Maim Yad, Issurei Bi'ah, 1:4), and the beast with which the offense had been committed was also destroyed (Lev. 20:15–16). A married girl (i.e., me'orasah, her legal status after kiddushin, but before ḥuppah; see *Marriage) who was found not to have been a virgin (though claiming to be one upon her kiddushin) is liable to be stoned to death, "for she did a shameful thing in Israel" (Deut. 22:20–21). Both she and her seducer are thus punished if they had intercourse with each other by mutual consent (Deut. 22:23–24); but where the girl did not consent her seducer alone is liable to execution (Deut. 22:25–27).

It is noteworthy that apart from this particular case and cases of adulterous or incestuous intercourse, rape as such is not a criminal offense in Jewish law: the rapist will merely be held liable to pay the girl's father 50 shekels of silver by way of bride-price, "and she shall be his wife, because he has humbled her; and he may not put her away all his days" (Deut. 22:28–29). Under talmudic law, the rapist must also compensate the girl for the physical and psychological damage she sustained (Ket. 42a–43b). But if the girl refuses to marry him, he is not compelled to marry her (Ket. 39b). If a girl was raped by several men, she is given the choice of the one who is to marry her (tj, Ket. 3:6, 27d; for further details see *Rape).

It is an offense to have intercourse with a woman, including one's wife, "having her sickness," i.e., *niddah during the period of her menstruation (Lev. 18:19 and 20:18). The penalty is karet (see *Divine Punishment): "both of them shall be cut off from among their people" (ibid.). If they were warned beforehand and witnesses are available, they are liable to be flogged (Mak. 3:1).

It is an offense, punishable by flogging, to have sexual intercourse with a non-Jew, by way of purported or intended marriage (ibid., 12:1). For other sexual intercourse with a non-Jew (which is not criminal), flogging may be administered by way of rebuke and admonition (makkat mardut; ibid. 12:2). The biblical story of Phinehas (Num. 25:6–8) gave rise to the rule that where intercourse between Jew and an idolatress takes place in public, any person present may kill them (Sanh. 9:6; Yad, Issurei Bi'ah 12:4). Failing such summary execution, the offender is liable to divine punishment and to be flogged (ibid. 12:6).

Marrying a person born of an adulterous or incestuous union (see *Mamzer) and having sexual intercourse with him or her is a criminal offense punishable by flogging (ibid. 15:2). Marrying a person whose testes are crushed or whose member is cut off (Deut. 23:2), and having (or attempting to have) sexual intercourse with him, is also punishable by flogging (Yad, Issurei Bi'ah 16:1) – although the offense was qualified so as to apply only where the infirmity had not existed from birth but was acquired later by human act or accident (ibid. 16:9; Yev. 75b). It is similarly an offense punishable by flogging to castrate a person by causing injury to his sexual organs (Shab. 110b) – an offense which was extended even to the castration of animals (Tosef., Mak. 5:6; Yad, Issurei Bi'ah 10); but does not apply to females (ibid.) nor to castrations that do not cause injury to sexual organs (ibid. 16:11).

Some particular offenses apply to kohanim (priests) only: e.g., a Kohen who marries a divorcee, a harlot (including a non-Jewess), or a woman born of a prohibited union with a priest (Lev. 21:7), and has sexual intercourse with her, is guilty of an offense and liable to be flogged (ibid. 17:2), and so is the woman partner (ibid. 17:5). The high priest who had sexual intercourse with a widow (Lev. 21:13–14) was also liable to be flogged (Yad, Issurei Bi'ah 17:3).

The only sexual offense short of intercourse is "approaching" (Lev. 18:6) any person with whom intercourse is prohibited under penalty of death (including divine punishment). Embracing and kissing such persons, and other such precoital activities, are offenses punishable by flogging (Yad, Issurei Bi'ah 21:1). But it is no offense – however reprehensible and "foolish" it may be in some cases – to embrace or kiss one's mother, daughter, sister, or aunt, or such other relatives who do not normally arouse the sexual urge (ibid. 21:6; see *Incest). The prohibition against "cult prostitution" (Deut. 23:18) was interpreted as creating the offense of sexual intercourse with a harlot (cf. Lev. 19:29), both she and the man being liable to be flogged (Maim. Yad, Na'arah Betulah, 2:17). But however much *prostitution may be condemned (cf. e.g., Jer. 3:1–3), it appears in biblical times to have been widespread (cf. Gen. 34:31; 38:15; Judg. 11:1; 16:1; Isa. 23:15–16; Prov. 7:9–22; et al.) and not punishable. In post-talmudic times, sexual licentiousness was punished as a matter of course (cf. e.g., Halakhot Pesukot min ha-Ge'onim, 94).

There are several prohibited acts which do not amount to punishable offenses, but which may render the perpetrator liable to flogging by way of admonition and rebuke: e.g., indecent gestures or suggestions to women with whom intercourse is prohibited (Yad, Issurei Bi'ah, 21:2); lesbian conduct among women (21:8); sexual intercourse with one's wife in public (21:14); being secluded with a woman with whom intercourse is prohibited – other than one's mother, daughter, or (menstruous) wife, and also except a woman married to another man (because, in the latter case, the flogging might bring her into disrepute; 22:3).

In the State of Israel, rape is punishable with up to 14 years' imprisonment; when committed in the presence of several accessories to the crime, the punishment is up to 20 years' imprisonment (Section 152, Criminal Code Ordinance, 1936, as amended in 1966). Constructive (statutory) rape (sexual intercourse with an infant girl) has been extended up to the girl's age of 17. Proven acts of sodomy (homosexuality), buggery (carnal knowledge per anum), and bestiality (carnal knowledge of animals) are felonies. The largest group of sexual offenses comes under the heading of "indecent acts" – for which the penalty may increase in gravity if they are committed by force, or upon children, or in public. The law relating to procuration for purposes of prostitution and the keeping of brothels was restated and made considerably more severe in the Penal Law Amendment (Prostitution Offenses) Law, 5722 – 1962.

[Haim Hermann Cohn]

In the State of Israel

As of 1977, the law regulating sexual offenses is the Penal Law, 5737 – 1977 (hereinafter: "the Law"). In 2005, the basic penalty for rape was 16 years imprisonment and, under aggravated circumstances – such as rape of a minor or rape accompanied by threat to use a weapon – the penalty was 20 years imprisonment (Article 345 of the law). The prohibition on homosexual relations which had previously existed in Article 351(3) of the law was repealed in 1988 (Penal Law (Amendment No. 22) 5748 – 1988, (S.H. 62).

rape in marital relations

Jewish law absolutely prohibits the wife's rape by her husband. The Supreme Court (ca 353/62, El Fakir v. Attorney General, 18(4) pd 200; Judge Binyamin Halevi) criticized the position of English law, which at the time permitted the husband to force his wife to have sexual relations with him: "This outlook is not commensurate with human dignity and the dignity of marriage… A woman who agrees upon marriage to have sexual relations with her husband does not thereby agree to the use of force or the threats of severe physical maiming of her body. A woman is not 'like a prisoner taken by the sword' with her husband, and is entitled to the freedom of her body just as her husband is" (page 219 of the decision).

In this statement Judge Halevi made reference to the Rambam's statement, according to which: "A woman who has prevented her husband from having sexual intercourse is called rebellious, and she is to be asked why she has rebelled. If she says I find him repulsive and cannot have intercourse with him willingly, he is compelled to divorce her, because she is not like a captive who must have intercourse with someone she detests" (Yad., Ishut 14.8; regarding moredet, see *Husband and Wife). It should be stressed that, in any case, according to Jewish law it is prohibited to have intercourse by coercion; even if the wife's refusal is not justified, the wife may not be compelled to do so, although in this case she is liable to be considered "rebellious" or to lose the rights conferred to her by the marriage.

In the Cohen case (ca 91/80 Cohen v. the State of Israel, 35 (3) pd 281; Justice Bechor) the Court discussed the position of Jewish law on this matter in some detail. At the focus of the Cohen affair was the term "unlawful" in Article 345 of the law (as formulated at the time of the Cohen affair), which defines the act of rape as one who "has unlawful sexual intercourse with a female, against her will…." The accused claimed – and there was no factual dispute that he had had intercourse with his wife against her will – that the element of "unlawful" required under Article 345 did not exist, because according to Jewish law he had the right, as her husband, to have sexual relations with his wife; therefore, similar to English law, a husband who coerced his wife to have sexual relations with him does not thereby commit an offense of rape under the law, because the coercion of intercourse was "lawful." Justice Bechor rejected the defendant's argument, stating that under Jewish law the husband is prohibited from forcing his wife to have intercourse. He stressed that, according to the Torah, it is the husband's duty toward his wife to have sexual relations with her ("her food, her raiment, and her conjugal rights, he shall not diminish"; Exod. 21:10), while there is no imperative in the Bible or Talmud imposing a parallel obligation on the wife. Her obligation, rather, stems from her commitment in the marital agreement, which imposes an obligation on her part to give herself to her husband (p. 288 of the verdict). Insofar as the source of the wife's commitment is her undertaking at the time of her marriage, it is obvious that the wife did not agree that her husband would have sexual relations with her by rape, and has no such obligation (see: M.Elon "Ma'amad ha-ishah" ('Status of Woman'), 218 et seq.; N. Rakover "Yaḥasei Ishut bi-Khefiyyah," 305). Justice Bechor further cited the statement in the Talmud: "Rabbi Bar Ḥama said in the name of Rav Assi: It is forbidden for a man to coerce his wife to a devar mitzvah [i.e., to have sexual relations]" (Eruvin 100b) as well as the statement of the Rabad of Posquières: "As it was stated in tractate Eruvin that a person who coerces his wife to a 'devar mitzvah' is considered evil, because it has been said 'Also, that the soul be without knowledge is not good and he that hasteth with his feet sinneth.' (Prov. 19:2). Accordingly, rape is forbidden even with his wife; rather, if he needs to have that act [i.e., sexual intercourse] he should conciliate his wife and then have sexual relations with her" (Rabad, quoted in Tur, oḤ 240 and in Tur, eh 25; pp. 288–89 of the verdict). Summarizing his verdict, Justice Bechor said:

The conclusion I have reached accords with the basic principle of the dignity of woman as a free person and not as a slave, who is subject to her owner's good will in such a sensitive and delicate matter – principles which have, regrettably, not been realized in the legislation and adjudication of enlightened and advanced countries in the world. And it is not difficult to imagine how sad the fate of a woman can be in those countries, particularly in light of the fact that, according to the laws of the country or religion concerned, it is not easy and at times difficult or even impossible to arrive at the solution of divorce. It may be that this feeling is what brought about a certain alleviation in England, when it was decided that the wife's duty to have sexual relations against her will and as a result of coercion does not apply if a situation of legal separation exists between the couple, even if they are not divorced. I might add that the Jewish people may be proud of the progressive and liberal approach of its heritage and halakhah with respect to such matters since ancient times (p. 291 of the Verdict; Ma'amad ha-Iishah, ibid).

rape that ends in consent

According to Jewish law, a married woman who has had sexual relations with a man who is not her husband is permanently forbidden to her husband; hence, her husband is obliged to divorce her. However, if the woman was raped by the other man, then the woman is not forbidden to her husband, unless he was a kohen (member of a hereditary priestly family; see *Marriage, Prohibited). In a case in which the man initially forced himself upon the woman, but during the course of the act she came to consent, it is ruled that the woman is nevertheless not forbidden to her husband: "Rabba stated: Any woman, the outrage against whom began under compulsion, even though it terminated with her consent; and even if she [the raped woman] said, 'Leave him be,' and even if she states that, had he not attacked her, she would have hired him [to have relations with her], is permitted [to her husband]. What is the reason? She came to be overwhelmed by her passion [i.e., that during the course of the act her passion was aroused, so that even this passion that overcame her against her will is considered as rape]" (Ket. 51b; Yad., Ishut 24.19).

The Supreme Court (Cr. A. 115/00, Teib v. State of Israel 54 (3) pd 289. 308, (per Justice Yitzhak Englard) ruled in a case in which the defendant charged with rape argued that he had misunderstood the woman's refusal to have sexual relations, because at the end of the act the woman had cooperated, and her physiological and sexual response to his acts had been positive. The Court determined that, similar to the case in Jewish law regarding "initial rape that ends in consent," the woman's response should not be regarded as constituting consent to sexual relations, and one could not say that in such a case the man could have formed the impression that the woman consented to his actions.

sexual degradation. Section 348 of the law prohibits the perpetration of an indecent act, defined as "any act intended for sexual excitement arousal, gratification or degradation." The Supreme Court discussed a case in which a robber ordered women whom he had robbed to remove all their clothes. The District Court convicted the defendant, in addition to the crime of robbery, with that of performing an indecent act. In an appeal before the Supreme Court, the defendant argued that he ought not to be convicted of the offense of an indecent act, because the purpose of ordering the women to remove their clothes was not to sexually abase them, as required by this law, but in order to determine whether they were concealing money on their bodies; hence, it was incorrect to attribute criminal intent to him with respect to the offense of "sexual abasement." The Supreme Court (Cr. A. 3728/04 Deviri v. The State of Israel, per Justice Eliakim Rubinstein) rejected the defendant's argument and ruled that the defendant was well aware of the fact that the act of taking off their clothes would cause the women's sexual degradation. In the matter of coercing nudity on a person as sexual degradation, the court referred to the story about Queen Vashti, of whom we are told (Esther 1:11) that King Ahasuerus commanded that she be brought wearing the royal crown "to show the peoples and the princes her beauty; for she was fair to look on." The Midrash interpreted the command as a demand that she be brought to the banquet wearing only her royal crown, i.e., in the nude (See Megillah 12b, pdre 48, Esther Rabbah 12). Midrash Sifri de-Aggadata – Midrash Abba Guryon 1 interprets the words "'…with the royal crown' Rabbi Abba said: that she should be wearing nothing but the crown and she should be nude. Rabbi Shimon Bar Naḥmani said in the name of Rabbi Yonatan: Evil persons are not judged in Hell except in the nude, as has been said, 'O Lord, O Lord, when thou awakest, thou shalt despise their image' (Ps. 73:20)" – meaning that very fact of coercing a person to be nude is a degradation (cf. Ma'amad ha-Ishah, 223–28).

[Menachem Elon (2^nd ed.)]

bibliography:

Guttmann, Mafte'aḥ, 2 (1917), 122–8; S. Assaf, Ha-Onshim Aḥarei Ḥatimat ha-Talmud (1922), passim; et, 1 (1951³), 168–72, 5 (1953), 295–300; 12 (1967), 49–74; G. Melber, Averat Innus va-Averot Miniyyot Aḥerot ba-Mishpat ha-Ivri u-va-Mishpat ha-Angli… (Diss. Jerusalem 1960), summary in Eng.; em, 2 (1965), 935–7. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:48, 72, 175, 185, 208, 248, 282ff., 287, 290ff., 297, 312, 318, 396, 414, 456ff, 654, 655, 670, 692ff., 697, 711, 722, 790ff.; 2:842, 1070; idem, Jewish Law (1994), 1:53, 80, 194, 208, 234, 289, 334, 339ff., 344ff., 354, 373, 380ff.; 2:483, 505, 556ff., 810, 827ff., 855, 860, 877ff., 891, 969ff.; 3:1030, 1291; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), 3–5, 9–13, 173; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 4–5, 6–11; M. Elon, Ma'amad ha-Ishah, Mishpat ve-Shipput, Masoret u-Temurah, Arakheyah shel Medinah Yehudit ve-Demokratit (2005), 216–28; N. Rakover, "Coercive Marital Relations between a Man and his Wife," in: Shenaton ha-Mishpat ha-Ivri (1980), vol. 6–7, 295 (Heb.); N. Rakover, "Hitgabberut ha-Yeẓer ke-Ta'anat Ones," in: Teḥumin, 18 (1998), 197; Y. Zefira, "Yaḥasei Ishut bi-Khefiyyah," in: Teḥumin, 24 (2004), 222.