#MeToo and Jewish Sex Laws: My Jewish Standard Dear Rabbi Zahavy Talmudic Advice Column for November 2018

#MeToo and Jewish Sex Laws

My Jewish Standard Dear Rabbi Zahavy Talmudic Advice Column for November 2018

Dear Rabbi Zahavy,

I just read an opinion by an outspoken Orthodox rabbi that made sense to me. He said that many centuries ago Orthodox Judaism resolved the terrible problem of the harassment of women by instituting many practices and customs to govern relations between men and women. Isn’t he right? Shouldn’t we men speak up now about this, and let the world know how to resolve the #MeToo crisis by promoting and enforcing our Jewish rules?

Protector of Women in Paramus

Dear Protector,

I believe you refer to the recent article by an Orthodox rabbi, “A safer space for women in Orthodox Judaism’s rules for sex.” He calls the traditional regulations in this arena “realistic and wise.”

And do you know what? After the intense struggles of the past year over #MeToo, which brought down more than 200 powerful men who were accused of harassment (according to the New York Times), it’s really tempting to pause, consider the alternatives, and declare to the rabbis’ team a “touchdown” — to admit we need “rules for sex” and consider seriously advocating for the rabbinic system.

But allow me to develop a sports analogy. Sure, we “referees” can look at the hard-fought struggle on the field, and the struggle in our society, and then declare that tradition has the “touchdown” solution to the problems.

But then we may need to call timeout and send that call up to the referees in the booth for an appeal, to have them look hard at the “videotapes” and see if they will reverse that call.

As a trained historian of religions and an expert on religious texts and practices, I can tell you that some religions besides Orthodox Judaism have tried to regulate relations between the sexes.

We know that American puritanism in colonial New England decreed many modesty practices in actual law codes. And we know that based on verses in the Quran, some Islamic traditions even today require women to wear a burka to cover their bodies when they go out in public.

Yet more than any other religion that I know of, rabbinic Judaism has codified detailed laws relating to sexuality. Let me review the main topics in these laws, those halachot that might deter sexual harassment. Let’s look at what topics we find in the rabbinic texts from the Talmud through to the medieval law codes and responsa that clarified and prescribed to Jews the proper and improper sexual contacts and relationships between individuals.

Rabbinic ideas and rules of sexuality fall into these major categories: The laws of yihud teach us that a man can’t be alone in a room with a woman who is not his wife. That would seem to be a perfect way to prevent most episodes of sexual harassment from ever getting started.

The laws of tzniut teach that a woman must dress modestly, prescribing a long skirt and long sleeves, and mandating that a woman cover her hair if she is married. The assumption in such rules seems to be that how a woman dresses indicates her sexual availability. It seems intuitive (but by no means certain) that the prevalence of less provocative attire will decrease the incidence of outright harassment.

The laws of negiah regulate that a man cannot touch a woman who is not his wife, even to shake hands in a polite social gesture. Needless to say, a hug or kiss is not allowed. That rule should be a full stop to harassment.

The laws of kol ishah say that a woman’s singing voice is a provocative manifestation of her sexuality. Hence women may not sing in public in the presence of men. We can grant that these rules might deter bad actions, even though it’s not as overt as the preceding examples.

The complex laws of niddah — the rabbinic menstrual taboos — are worthy of mention too. They make up an entire tractate of Talmud. These regulations prohibit a couple from having sex if the woman has menstruated but not immersed yet in a mikvah pool. It does sound like that body of law could inhibit many instances of harassment, if such rules were to be propagated and observed within a society.

Wow, it looks like the ancient rabbis anticipated the crisis of 2018 in America and their many solutions are right there in plain sight in the rabbinic law. You ask, shouldn’t we tell the rest of the world that we already have the perfect solution to #MeToo? It sounds like that’s the advice I should give to you, our questioner.

Accordingly, it seems at first glance like a big score for the rabbis. A touchdown. But going back to my earlier analogy, upon further examination of the video tapes up in the booth, the decision by the referees on the field may have to be reversed. It’s apparently not going to be a touchdown at all.

Why? If laws are out there on the books, yes that might inhibit some men. But certainly not all. It’s not enough to just have the laws on the books — you need for your people to observe them.

Sex is a strong drive, perhaps the strongest in human motivations. Freud described the id as that part of the human psyche — the primitive and instinctual part of the mind that harbors sexual and aggressive drives and submerged motivations.

The rabbis themselves recognized the daunting power of our sexual urges to override our inhibitions.

Now the apologists among us, who preach how perfect our system is, tell us that in Orthodox communities the instances of sexual harassment are low. But the problems are that we do not know the record of how well this system works to prevent harassment because, simply put, the rabbis are men, and the good old boys may not report each other’s violations to the authorities.

The cases of serial harasser Rabbi Shlomo Carlebach and the mikvah peeping-Tom rabbi are just two examples of many, far too numerous to list, where observant men violated rabbinic standards of “protecting” women. And many a woman may be reluctant or unable to report sexual harassment in a community that could turn around and blame her.

But for the sake of argument, let’s say the numbers are good, and sexual harassment is lower in the observant world. And if there are fewer episodes of harassment in Orthodox communities, that is a good thing, right?

Well, just keep this in mind. A defendant is not advised to plead in court, “I only murdered one person — and that is statistically insignificant because there are 7 billion other people in the world, your honor.” So even one victim is one victim too many.

Effective or not, there is another problem with advocating the rabbinic system to protect women — the big bitter ironic contradictory hypocritical elephant in the room.

In rabbinic Judaism women are officially discriminated against and denied equal rights. The rabbinic system places much of the burden of “protection” by stipulating how women must conduct themselves.

Wait, before I get started on this path, shouldn’t I just accept that maybe women are being protected — not discriminated against? To clarify this, let’s look at some of the main problematic examples.

The rabbis say that women cannot sing in the presence of men. But okay, perhaps that is meant to protect them from harassment.

The rabbis say that women must sit in the back of the synagogue behind walls and curtains. Sure, but again, you could say that is to protect them from harassment during the services.

They say that in synagogue women cannot get an aliyah to the Torah. They rule that women cannot lead the services. And according to most Orthodox authorities, women cannot become rabbis. So, is all this benevolent protection, or is it outright discrimination?

Furthermore, rabbis rule that women cannot testify in a Jewish court. That one is tough. I cannot figure how to make the case that such a diminished status protects women from harassment.

And finally, in Orthodoxy women cannot divorce their husbands — even in the case of an abusive spouse. There is no way to claim that protects women.

So here we are now in a world full of talmudic contradictions, in a world that is beset by ongoing acts of men harassing women.

Now, let me consider adding to that another layer of complexity. In secular society in 2018 the goalposts have been moved.

Social mores and public norms about harassment have changed. We need to ask ourselves, why have the limits changed now? Have we finally matured in our society to a higher ethical plane? Is culture changing for the better? Have we progressed?

The interest in harassment today is not necessarily an indication that society has found it needs to be more sensitive or moral. One motivator may be fear of legal liability for damages. And it also may be that women are finally getting a voice, by gaining political, economic, and social power.

So in the end, what is my advice to you? Do we turn to religious laws that marginalize women while purporting to protect them? Should religious men promulgate the notion that we solve the #MeToo problem by hiding and segregating women and by making touching them taboo?

Putting it more broadly — we should recognize that the realm of sexual relations is of utmost complexity, and sex drive can be a potent force in our personal and social lives, one that overrides even the most well-intentioned rules and customs. And keep in mind, we are not sure how effective and well designed the rules were to begin with.

Maybe we can learn from the rules of the past for the needs of the present — but it is a muddy swamp to work our way through.

Sexuality is such a complex domain of life — clearly one set of rules does not fit all variants along the spectrum. And we need to consider that the rabbinic rules may not be the right ones in this case, as they tread on the rights of the potential victims.

Conclusion from up in the talmudic booth — the referee reviewing the recorded videos makes the final call: it’s not a touchdown for rabbinic law.

Now, for sure we are good sports. And that negative determination does not detract at all from the values that tradition brings to the playing field. But I surely can’t advise my questioner to go out and evangelize for our Orthodox laws to be legislated in this case, for the good of our broader secular society.

Tzvee Zahavy has been a professor of Talmud, Jewish law codes, Jewish liturgy, Jewish history, Near Eastern and Jewish studies, and religious studies at major U.S. research universities and seminaries. He received his Ph.D. from Brown University and his rabbinic ordination from Yeshiva University. He is a prolific author who has published numerous books and articles about Judaism and Jewish law. Details at www.tzvee.com.

The Dear Rabbi Zahavy column offers mindful advice based on Talmudic reasoning and wisdom. The author aspires to be equally open and meaningful to all the varieties and denominations of Judaism. You can find the column here usually on the first Friday of the month. Please mail your questions to the Jewish Standard or email them to zahavy@gmail.com