Parshat Kedoshim: Shifha Harufa Revisited.
It is known that in some cases the various interpretations of
Torah that existed in the times of Tanach did not get
preserved as one of the opinions of either Talmud[1].
One such possible example may be the full implication of the law of Shifha Harufa (Vayikra 19:2). The Torah discusses some unusual case when
under certain circumstances relations with a servant woman are punishable by
Korban Asham. The Talmud offers three interpretations
of the exact case we are dealing with[2].
According to Halacha, we are dealing with a non-Jewish slave-woman (shifha Canaanit) who was owned by
two partners, one of whom freed her. She is married to a Jewish slave-man[3].
If someone now has relations with this woman he needs to bring a “guilt
offering”[4].
According to Hazal the woman herself gets flogged.
Needless to say this interpretation implies a very rare
occurrence[5].
Amazingly we find in the book of Ezra (10:19) that many men who sinned with
non-Jewish women all brought Korban Asham. Most
commentators explain that this was “Horaat Shaa”[6].
However the Talmud sees them as all having had relations with shifha harufas (Kritot 11). This interpretation presents its own
difficulties besides that it does not seem to fit the context, there did not
seem to exist Jewish slaves at the time that these shifhas
could have been engaged to[7].
However, if this was “horaat shaa”,
it’s hard to imagine that the book of Ezra did not mention some hint of this[8].
It seems the simplest interpretation is that the relations
with non-Jewish woman was punishable by Korban Asham.
Let’s examine our verses: “If a man lies carnally with a
slave woman who is married to another man, and she has not been redeemed or
given her freedom. [Her not fully married status] must be verified and since
she has not been freed, they should not be put to death. [He] must bring his
guilt offering to G-d[9]”.
The Torah seems to emphasize that since this woman is not fully free, and
therefore she can’t be fully married, and relations with her are not punishable
by death. The strange word “bikoret” according to
many commentators means that we need to indeed verify that she is not a married
woman and that’s the reason they are not considered to have committed adultery[10].
It would seem possible that if one had relations with a slave-woman who was not
freed at all or with a gentile woman, the Asham
(guilt) offering is also to be brought. The emphasis of the Torah is that even
if the woman is half freed and half married, there is no death penalty. It’s
possible that the Torah is using an extreme case, just as the verse above: “Don’t
curse the deaf”, prohibits cursing anyone, including even deaf people, who
can’t hear anyway. The Torah may require Korban Asham
in all cases of women with whom marriage can’t happen (kidushin
lo topeset): slave-women or non-Jewish women, but
the Torah is emphasizing that there is no death penalty even when the woman was
half free and half married, since she can’t be fully married[11].
[1] Here are a few examples of midrashim and targumim that mention opinions completely different from Talmud
Babli and Yerushalmi:
- “Targum Yonatan” (Devarim
22:5) understands the prohibition to wear clothes of opposite gender to include
the prohibition for a woman to put on tefillin (in contradiction
to Talmud Bavli, Eiruvin
96a);
“Targum Yonatan” (Shemot
21:7, 22:2) considers that the seven years of a slave are counted according to shmita and not according to his date of sale like our Gemorah.
“Targum Yonatan” (Devarim
22:26): a raped woman becomes forbidden to her husband in contradiction to our Gemorah.
- Yalkut Shimoni
(943): Mezuzot need to be affixed to both door posts.
- Targum Onkelos (Shemot 22:30) apparently understands “treifa”
to mean meat that was ripped by a wild animal.
- Targum Neofiti (Shemot 22:4) understands “beiro”
to be damage from fire, not as classically understood by the Talmud to be
damage by “tooth” (see “Between the Yeshiva World and Modern Orthodoxy The Life and Works of Rabbi Jehiel
Jacob Weinberg”).
In theory there could be many other interpretations that did not get
preserved, and any interpretation of the Torah could have been a legitimate
ancient opinion. A good example is from Parshat Emor (21:5): the redundancy in the prohibition for kohanim to “not have a bald spots shaved on their head, not
to shave their beards, and not to cut slashes in their body”. The obvious
difficulty is that these prohibitions are mentioned for all Jews and according
to the Talmud in these laws there is no difference between a kohen and any other Jew. Interestingly, Ibn Ezra explains that
the prohibition of shaving for a regular Jew may have only applied in the time
of mourning. In that case we could explain that when the Torah specifically
mentions these three prohibitions in regard to kohanim,
it means to forbid it to them even when they are not mourning (as they can’t
serve in the Temple when they are shaven, bold or bruised). This may also
explain why Yirmiyahu (41:5) mentions men with shaved
beards after the Temple was destroyed. The prohibition to non-priests only
applied when they were mourning for dead.
[2] It’s quite unusual that there is such major
divergence not just in regards to the details of the law but even on the more
basic question: who is this woman.
[3] This is the only man that can marry both a free woman
and a gentile slave-woman, and so he can marry someone who is half free. According
to other interpretations in Hazal, she is in fact not
freed at all, but lives like a wife with a specific Jewish or non-Jewish slave.
Ibn Ezra offers a possibility that we are dealing with a regular Jewish
daughter who was sold as a maid, and does not become fully married after the
mitzvah of yiud (see also Rambam,
Melachim 4:4).
[4] This is the unique case where the sacrifice is
brought for deliberate relations, usually deliberate relations with forbidden
women are punishable by death or Karet, and only if
it’s done unintentionally is a sacrifice brought.
[5] In later times the Hazal
would sometimes force the second master to free such a woman because when she
is half free it’s quite difficult for her to marry legally and therefore she
may become a stumbling block for men (Gitin 38b).
[6] A special case normally not practiced in Halaha, presumably due to Ezra being a prophet he was able
to issue such a temporary ruling.
[7] See Tosafot Gitin 36b and Ramban there.
[8] For example, Ezra said to them: “For your great sin
you should bring Asham …”
[9] Note that our verse follows the prohibition of shatnez and other forbidden mixture, seemingly implying
that relations with a shifha is
also a type of “forbidden mixture”.
[10] According to Hazal “bikoret” implies that she gets flogged.
[11] Note that according to some opinions Asham Taluy could be brought at
any time as a voluntary offering, even when there was no specific safek avera. Since there is no
difference in the performance of an Asham Taluy and regular Asham, it’s
quite possible that in the times of Ezra they were permitted to bring Korban Asham even when they did not have a clear proof that the
Torah requires one. An interesting detail that applies only to Shifha Harufa is that to be
punishable relations with her have to be with sperm, as is learned from our
verse (“shihvat zera”, Kritot ibid). The reason seems to be that the main problem
is not as much the relations itself but the offspring it produces.
Interestingly, according to some targumim (see also Tosafot Yom Tov, Megila 4:9) the
prohibition to have relations with a non-Jewish woman is learned from the
verse: “Don’t give your zera (literally sperm) to Molech (idol)” i.e. don’t produce idolatrous children from
non-Jewish woman. As in case with shifha harufa the specific emphasis is on “zera”.