Introduction: Halakhic Insights from Outsiders

I’m always intrigued when individuals or groups of people who are meticulously observant of some law system – particularly Halakhah – perceive themselves as not observing something even though they understand it to be the law. They are quite observant in general and they acknowledge that the particular practice is the law, but just don’t do that practice. Often, I find that if these people are really listened to and empowered with legal language, they turn out to possess some insight into that law. It’s not that they randomly disregard it; it’s that they intuit that the law is being misinterpreted or misapplied, that it shouldn’t actually be understood as the law, and that if the halls of interpretational power had better-constructed avenues of access, such that more diverse vantage points and experiences were represented, communal perception of Halakhah would be much different.

I suspect that one fascinating example of this is the laws of yichud, the restrictions on men and women from being physically alone together, in private. My anecdotal perception is that in much of the modern, observant world – let’s say, people who pursue higher, liberal arts education and work in the general workforce while maintaining life practices of mitzvot – yichud is not at the top of the halakhah heap. Even people who do observe sexual prohibitions that are counter-cultural in their integrated world still often disregard yichud. More striking, they’ll sometimes make fun of it, telling dinner party stories about that baal teshuvah friend who was staying with a family for Shabbat and kept clandestinely going down to open the front door whenever the dad went out, and then the mom would close it and wonder how it got open, hahahaha, isn’t that ridiculous how frummies can get out of hand (say the people who send someone down every 10 minutes to look for the late guest, because of course they – we – won’t press the buzzer on Shabbat).

That’s interesting to me. People of this sort will generally construct their lifestyles around a deep commitment to halakhah, sometimes at great sacrifice; they would find it small-minded, offensive, and perhaps anti-Semitic for someone to mock their practices; they don’t dispute this particular practice’s identity as a halakhah, yet they consciously do not observe it and sometimes mock those who do. What’s going on there?

It’s actually more interesting than that. Any of these folks who works, say, as a schoolteacher, social worker, therapist, or camp counselor, has internalized as a bedrock rule never to be alone in closed quarters with one of their students, patients, or campers. At Camp Ramah, where I worked for many years, this rule was emphasized at a mandatory meeting at which every staff member had to sign in as present in order for the state of Wisconsin to license the camp. And certainly since sexual harassment came into popular consciousness in the 90s, through Justice Thomas’s confirmation proceedings and President Clinton’s scandals, we, as a culture, have become accustomed to many more professional settings where steps are taken to prevent two people from being alone together when one of them has power over the other and especially when the one in power is male. Some of the observant Jews who mock yichud laws take these professional sensitivities for granted, yet they don’t use halakhic “yichud” language to describe them and don’t reconsider their laughter at yichuditeers in their light. What’s really going on there?

The Laws on the Books: Intimacy, Licentiousness, or Power?

Let’s listen to what the law actually says and do some textual genealogy:

Shulchan Arukh, Even HaEzer 22:

It is forbidden to be in seclusion with one of the ‘arayot [close family members with whom sexual relations are considered a violation of the highest order—A.B.], whether she is old or young, for this thing leads one to uncover her nakedness, except for a mother with her son, a father with his daughter, and a husband with his wife while she is menstruating…. When the deed of Amnon and Tamar occurred, King David and his court decreed to forbid seclusion with a single woman. Even though she’s not an ‘ervah [not a forbidden potential sexual partner—A.B.], this is included in the laws of seclusion with ‘arayot…. Any woman with whom one is prohibited from seclusion, if his wife is with him, it is permitted to be secluded, because his wife watches him. But a Jewish woman should not be secluded with a Gentile man, even if his wife is with him.

A few observations:

1. The laws are framed and directed primarily toward men. David is not described as decreeing that single men and women should avoid seclusion, but rather, that one should not be in seclusion with a single woman – one, ie, men, the focus of this law.

2. The core of the law is about those situations in which probably the fewest number of contemporary people are concerned – close relatives – as well as married people. The central concern is the grave sins of incest and adultery. In the basic law, single people are not imagined to have been prohibited from being alone together.

3. The Shulchan Arukh uncharacteristically goes out of its way to tell us the cause of the prohibition of “one” being in yichud with a single woman, and that is the Bible’s most explicit and detailed story of acquaintance rape, Amnon’s rape of Tamar. It is especially striking, because the “Amnon and Tamar” law applies to men and unrelated, single women, even though Amnon and Tamar themselves weren’t unrelated at all, but half-siblings. The Talmud (Sanhedrin 21a) goes to lengths to construct a reading in which, legally speaking, they were not siblings; the effort itself highlights the Sages’ sense that the message of this acquaintance rape story is relevant for unrelated individuals.

I would like to suggest that the entire concern in this legal category is not licentious sexual activity, per se, but rape. The laws are directed at those who are structurally and physically powerful – men – to prevent them from entering the situations where they can abuse that power, ie, raping women. At their core, this high wall of restriction exists where men’s power is most shielded from the interventionist arm of the state – private, family settings, where witnesses are hard to come by and public opinion often wants the court to butt out – and settings where the stakes are highest: incest rape, where the victims are most deeply scarred and endangered long-term, due to the gross violation of trust and lack of a support system, and adultery, where families can be torn most asunder, and the violence gets carried forward, stigmatizing children. Within that framework, the law additionally restricts all men from yichud with single women, since male power pervades the society and rape is sordidly real. Halakhah prohibits a single man and single woman from yichud inasmuch as it worries that he will rape her, God forbid.

Back to the Basics: Earliest Laws in the Mishnah

Let’s unpack a few of the specific laws in the early, Rabbinic material and read them through this prism.

The Mishnah (Kiddushin 4:11) teaches that a man may not be alone with two women, but a woman may be alone with two men. Why the imbalanced standard? The Talmud (Kid. 80b) explains that a man may not be alone even with two women because “women are light-minded/nashim da’atan kalot/נשים דעתן קלות”. This phrase is popularly used violently today to undermine women’s intellectual capacities in an essentialist way. But intellectual capacity seems irrelevant in this passage, whose topic is sexual will to resistance. As Professor Judith Hauptman points out in her book Rereading the Rabbis: A Woman’s Voice, this phrase appears only one other time in the Talmud, in the story of R. Shimon, a fugitive from the Roman executioner, who decides to go fully into hiding, even from his wife, because “women are light-minded/nashim da’atan kalot/נשים דעתן קלות”. “‘Light-mindedness’ here means lacking a strong enough will to resist that which one is being pressed into doing. She did not say no, in their opinion…because of the hard-to-withstand pressure a man placed upon her” (Hauptman, 39). Knowing the difficulty of resisting the gendered pressure from the Roman police detectives – including the sordidly real fear of being raped and tortured – R. Shimon did not feel that his wife could be reasonably expected to keep his whereabouts secret under pressure. The dominant feature of the relationship of R. Shimon’s wife to the Roman authorities was one of subordination to their power. That is the assumed nature of the relationship between a woman – even two women – and a man behind closed doors with no witnesses and no one with social capital to shame him into proper behavior. Perhaps the dynamic in such an average situation is not as extreme as with Roman police investigators, but it is a stable and structural power imbalance all the same.

What about the other direction? The Mishnah teaches that one woman may be alone with two men (4:12), and the Tosefta (5:9) adds that this applies even to men who have only a peripheral relationship with mitzvot, such as slaves; however, a woman may not be alone with any number of Gentile men, even 100. Hauptman explains this in terms of the social policing effects of civilization: the presence of other empowered citizens, of people who take responsibility for duty, tames one’s violent and possessive instincts (35-36). I would add the gendered aspect of power here: even structurally subordinate, marginal men – slaves – are understood to occupy the posture of domination and power vis-à-vis women, so their presence works as a mirror, arresting even free men from the worst abuses of that power. Gentiles, though, operate in a different legal culture and civilization for the Rabbis. History teaches us all too painfully how people can behave with civility to members of their own culture, even when they have power over them, but brutally abuse subordinate individuals who are not members of their own culture, and that legal and police authorities do not enforce their laws in protection of foreigners as they do for their own. All over the world today, migrants and refugees are the most vulnerable and abused systemic rape victims. Where Jews and Gentiles inhabit the same legal universe, participate in the same government, and obey the same police authorities, this would presumably cease to be an operable distinction.

Giving Rabbinic Language to Alienated People’s Intuitions

In that light, I think that those Torah-observant people who mock what they perceive as yichud laws are actually articulating, however inelegantly, a legal insight. Their position is that those social contexts where they mock have been liberated from the structural power imbalance that makes it so dangerous for a man to be secluded with a woman. In other words, the feminist revolution has been a real thing. Women are more empowered. Men, as a result, are not structurally dominant over women. Not all situations of seclusion equally set the stage for rape. What they intuit is that in professional, pastoral, or counseling settings, where one party is the other’s supervisor or counselor, and especially if that person in power is male, it should be forbidden for that person of power to be behind closed doors with his subordinate. In fact, we should be more stringent than the Sages across the ages: whereas the Talmud rules explicitly that a man can be in yichud with another man, because Jewish men are not suspect for forbidden sex with males (TB Kiddushin 82a), today’s professional wisdom is that people in certain positions of power should not be alone behind closed doors with their subordinates, at least with minors, regardless of sex. That was the rule at camp: never be behind closed doors with a camper, period.

However, in social situations, or houseguest arrangements or other non-hierarchical settings – the settings in which some observant Jews mock those who are meticulous about yichud – they intuit that the classic laws do not apply and were never meant to be the subject of the laws. This is a very important insight and needs to be taken seriously. The laws were always about power abuse and the insight recently summed up by Jewish leadership scholar Dr. Hal Lewis that the “proclivity for abuse stem[s] from the very power [one] wield[s]….Abuse is not the province of a deviant few. It is a risk that must be recognized by everyone who holds power.” To follow this age-old halakhic wisdom properly, one must also recognize that dangerous power situations map differently in different cultures.

Pushing Back: A Substantive Case for Expansive Yichud Restrictions

Personally, I am sympathetic to this read and it more or less captures my personal practice. However, I do want to push back on it on substantive grounds. Are these interactions really so innocuous? Every encounter with the prevalence of rape – especially of acquaintance rape – and every reflection about the persistence of “rape culture” should give us great pause. When women going out on dates or social situations typically take precautions to avoid being raped and men never do that, how equal are we in terms of sexual power? Is it wishful thinking or male privilege speaking when we claim that abuse has nothing to do with our social lives? Even if we have small pockets of the society that have normalized healthier and safer sexual relationships, do we abandon the struggles of real victims of sexual violence by weakening the taboo on practices that may still be necessary for their protection? Do we want to be tools of more violence? I would like to hear those who observe a more robust regime of yichud restrictions to argue this case forcefully and I would like the rest of us to take them seriously.

Pushing Back the other Way: What are the Costs?

On the other hand, what are the places where we actually prevent progress from happening by locking in rules and regulations that are directed toward problems we may be able to move past? Do we actually inscribe power and violence in a place where it was absent by requiring protections for it there? Do we not reify men’s sexual power over women and give up the effort – and any progress – toward a structural, feminist revolution for gender power equality if we maintain situation-blind, rigid restrictions on yichud on account of men being perceived as bearing sexual power that they are likely to abuse?

Conclusion: Let’s Maybe Talk Substance and Listen to each other?

or, “You Gots to Chill”

Lost in the dysfunctional non-dialogue of “It’s the halakhah; the Shulchan Arukh says so” vs. “You’re being ridiculous” is the ability for each viewpoint actually to hear the other’s insight and to respond in kind. The former, formalist attitude misses that halakhah, if properly translated, may forbid certain situations that have been disregarded, such as a male teacher being in yichud with a child or teen male subordinate, while they put too much capital in interactions that Halakhah may not forbid. The latter, instinctive position, may not take sufficiently seriously that our society may be more structurally sexist than they realized, that rape culture is more persistent than they estimated, and that the consequences of this may mean that we should be much more cautious than we are about situations where power will be abused. They’re not speaking to each other, so they don’t get to be challenged by each other or even to hear their own voices and what they really think. Starting to listen will be a good step in the revolution we seek.

Postscript: Food for Thought

Questions to consider:

1) That’s all well and good about avoiding yichud with children in our care in communal settings like school or camp; what about the home, though? What should be our guidelines for babysitting?

2) What effects might we expect the queerification of our sexual norms and mindset to have on the safety and norms in our private spaces?