Why consent has always been a Jewish issue

A scene from Unorthodox (Jewish News)
A scene from Unorthodox (Jewish News)

Ever since Unorthodox had us gripped to our Netflix screens, the conversation about sex education, kallah classes, consent and marital rape in the Charedi world has snowballed. I read with trepidation the apparently common scenario painted by sex therapist Elisheva Liss “I used to rape my wife” and Yehudis Fletcher’s article “Marital rape is expressly forbidden in Jewish law. However…” The picture is a truly sobering one.

I am a kallah teacher with a particular interest in how Jewish texts and values can speak to a contemporary sexual ethic. I live and work a world away from the communities described in the articles above, but Torah is Torah, and there is so much that it has to say on the subject of consent. And what these texts say is powerful, unequivocal and before their times. Consent is a subject that the wider world is still grappling with – we’ve all heard of upsetting court cases, numerous accusations of assault and that tea video. So it’s certainly not just the Charedi community who would do well to read on. 

It is time to set the bar high in terms of Jewish ethics on consent. In fact, consent is only the beginning of the high bar Judaism sets for sexual ethics. But let’s start with the basics. 

The imperative for consent is set out unambiguously in the Talmud: “A husband may not compel his wife in the mitzva [sex]” And to add a disincentive (the Talmud regularly adds incentives and disincentives to reinforce sexual laws) the passage continues “Any man who compels his wife to perform this mitzva will have unworthy children” (Eruvin 100b). In tractate Yoma a man who forces his wife to have sex is compared to a lion who tramples its prey before eating it, a graphic condemnation. 

The Meiri, a 13th century scholar, elaborates: “It is forbidden for a person to force his wife for private matters, even for the intention of a mitzvah”. Both the Talmud and Meiri say that these laws are so self-evident that even without the Torah, we’d learn them by way of natural law, imitating the rooster who apparently takes time arousing its mate (who knew?!).

The Iggeret Hakodesh, the oldest Jewish “manual” for the new husband (attributed, improbably, to the Ramban) goes further: “he should not force her to have sex and he should not rape her; for in this type of connection the Shechina (God’s presence) does not reside”. It is remarkable to consider that, with consent, a couple can bring God’s presence into the world through sexuality. Without consent, this is a relationship completely unsanctioned by God.

Most of the sources I’ve quoted go on to instruct a man how to entice his wife through words, charm, gifts, foreplay and establishing a deep connection. Let’s take a moment to appreciate that medieval Jewish men were being taught this, while their Christian counterparts oscillated between the expectation of marital “rights” and ideals of abstinence. Sadly, I’m not convinced that chatanim (Jewish grooms) today are widely taught these texts in their pre-wedding lessons. They should be, along with the many other texts on the importance – in fact the mitzvah – of female sexual pleasure. 

To be sure, the absence of physical force, which let’s hope everyone would object to, is a long way from full consent. Consent requires respect, empowerment, education and communication. Respect, first and foremost for the feelings of the other person. Empowerment to articulate one’s own desires and feelings. Education to understand enough about what you are agreeing to. Communication, finally, should go in both directions. It includes reading and responding to both verbal and non-verbal cues. 

Do the Jewish sources I’ve quoted speak to full consent? Absolutely. The Iggeret Hakodesh speaks of “united intentions” and the “connection of minds”. Later halacha too: Rabbi Moshe ben Yosef of Trani (16th century Spain) writes “she is certainly not obligated to him at all times if she does not want”. 

So where have we gone wrong? And let’s not be under illusions that this problem is limited to the Charedi community; the influences of pornography in particular have pressurised women across society to always be “up for it”. But there are undoubtedly particular challenges in the orthodox and Charedi worlds. As Yehudis Fletcher points out in her article, “very few Charedi brides can actually say no”. For a start, sex is seen as a “mitzvah” and obligation. The most basic of sex education may be partial or even absent. Laws around separation when the woman has her period brings additional time pressures. 

Most significantly however, are Jewish taboos on “spilling seed” – the prohibition against “wasted” semen. Orthodox communities who see this prohibition as a serious transgression (in my view, there are other, better readings) inadvertently put huge pressure on women to go through with sex whether they want to or not, to avoid their husband “slipping up” through masterbation or a wet dream. This leaves us with what appears to be a devastating zero sum game between consent on one hand, and the “sin” of wasting seed on the other. Working on easing this taboo and the guilt and shame which surrounds it will be a crucial piece in the puzzle of moving forwards in strictly orthodox communities. 

The first step though, is to amplify Jewish texts which insist on full consent – to establish that this is an absolutely basic Jewish value. Along with it should come education in the four steps necessary for full consent: 1) respect for the other 2) empowerment to share one’s feelings and desires 3) proficient sex education and 4) tools for communication. There are many ways to make this change: the voices of ordinary Jews – Charedi or otherwise – will have an impact, the syllabuses of kallah and chatan teachers will be crucial, and of course direction given by Rabbis will put this squarely on the agenda. It’s time for a new conversation on Jewish sexual ethics.It’s time to set the bar higher. 

  • Credit is due to Rav Rahel Berkovits’, whose course Sexuality & Sanctity at the Pardes Centre for Jewish Studies is the source of the texts I have quoted in this article. 
About the Author
Miriam is a Jewish educator starting her Rabbinical training this year at Yeshivat Maharat, the first orthodox institution to ordain women. Her teaching, described as "expansive, open and a lot of fun" builds on working in Jewish community leadership development, seven years spent working in inter-faith dialogue, a degree in Theology at the University of Cambridge and study at Midreshet Harova and Pardes in Jerusalem.
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