Mishpatim: The holy law of sex

Mishpatim (Exodus 21:1–24:18) is a blockbuster section of the Bible containing numerous Divine commands.  Last year we focused on slavery and arranged marriages, and learned that while so many people assume the Bible is anachronistic, these laws are actually relevant today.

We studied about the Jewish maidservant in the Torah:

The Bible has separate rules for a female servant (Exodus 21:7).  An extremely impoverished man may sell his minor daughter into service to a wealthy man.  Like the male servant who works to pay his debt, she works towards the set price, and can redeem herself.  She is also automatically freed when she reaches maturity at age 12. 

However, the Torah anticipates that the man who bought the maidservant may want to marry her, or engage her to marry his own son (Ex 21:8-9).  If a man from the wealthier family does marry her, the maidservant has the full rights of a Jewish regular wife, even if the man has multiple wives 21:10.  Indeed, our ancient sages learn a husband’s marital obligations to his wives from the rights the Bible gives to the maidservant (Talmud, Ketuvot 47).

So let us turn to those marital obligations.  The Bible, Exodus 21:10, mentions three items that a husband must provide his wife that are so central to marriage that he may not decrease them when he takes another wife (see our discussion of poly):  אִם־אַחֶ֖רֶת יִֽקַּֽח־ל֑וֹ שְׁאֵרָ֛הּ כְּסוּתָ֥הּ וְעֹנָתָ֖הּ לֹ֥א יִגְרָֽע׃.  These three are called in the Torah “she’erah, kesutah, onatah”.  The Talmud (Ketuvot 47) debates the exact meaning of these three terms:

The first teacher maintains that the obligation of a husband to provide his wife’s sustenance applies by Torah law, as it is taught: “If he takes another wife for himself, her food [she’era], her clothing [kesuta], and her conjugal rights [onata], he shall not diminish” (Exodus 21:10).
She’era”; this is sustenance, and it likewise states: “Who also eat the flesh [she’er] of my people” (Micah 3:3).
Kesuta” is understood literally as covering – clothing.
Onata”; this is her conjugal rights, which is stated in the Torah, and so it says: “If you shall afflict [te’aneh] my daughters” (Genesis 31:50), which teaches that a husband may not deprive his wife of her conjugal rights as that causes her affliction.

The Talmud concludes that a husband and wife can agree to waive her rights to food and clothing, but that the right to sexual relations in marriage cannot be waived.  Sexual intimacy is considered an absolute requirement in marriage as defined by the Bible, and a lack of intimacy is called affliction (Genesis 31:50 and Deut. 26:7).  There are other suggestions of what these three terms mean:

Rabbi Elazar says:
She’era”; this is her conjugal rights, and so it says: “None of you shall approach to any who is near [she’er] of kin to him, to uncover their nakedness” (Leviticus 18:6), demonstrating that the word she’er is used in the context of sexual relations.
Kesuta” is understood in its literal sense as clothing.
Onata”; this is sustenance, and so it says: “And He afflicted you [vayanekha], and made you suffer hunger, and fed you with manna” (Deuteronomy 8:3).

Rav Yosef taught the following:
She’era,” this is referring to closeness of flesh during intercourse, that he should not treat her in the manner of Persians, who have conjugal relations in their clothes.  The Gemara comments: This teaching supports the opinion of Rav Huna, as Rav Huna said: With regard to one who says: I do not want to have intercourse with my wife unless I am in my clothes and she is in her clothes, then he must divorce his wife and pay her for the marriage contract.

Not only must a married couple be intimate regularly, neither partner can demand that their sex life become perfunctory, done in haste with clothing still on.  Performing the act with clothes is not a problem if their desire was such that the couple could not wait to remove all their clothing before getting down to doing what God commands. 

The problem here is that the man does not want to be bothered with removing his clothing, he just wants to get back to his work, or he is implying that he does not want to see his wife naked.  A partner giving the impression that he or she wants to get it over with and get back to more important business is clearly communicating that intimacy is not important.

As aside: the old rumor that Jews were only intimate through a hole in a sheet (assumedly for modesty) was a misunderstanding that arose from Europeans seeing Jewish men’s Tallit Katan hanging up to dry, as that resembles a sheet with a hole in the middle.

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The Ramban, an important Sage and commenter almost 1000 years ago, explains that Rav Yosef’s understanding of She’era is the most accurate, since the word she’erah is clearly related to the word for flesh, in the context of sexual relations.  According to his interpretation, our verse has two references to intimacy, both to the quality (she’erah: with closeness of flesh) and to the quantity (onatah: her time – with regularity). 

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The Torah requires a man and wife to have both high quality and regularity in their intimate life.  This understanding fits the opinion in the Talmud that a man’s obligation to feed his wife is on the Rabbinical level, not explicitly mentioned in the Bible.

Turning back to our source verse for the key elements of a marriage, we now have two words out of the three referring to sexual intimacy, according to Rav Yosef and the Ramban.  What about the odd word out? 

Kesuta” is understood as clothing, but the usual word for clothing is “Beged“.  “Kesuta” really means her covering, implying a less substantial garment than normal clothing.  See Genesis 20:16 “kesut eynaim” meaning eye-covering or eye-patch.  One does not wear actual clothing over the eye, but something more flimsy.  In context with the the other two words which are about intimacy, we can safely conclude that “Kesuta”  implies a special type of covering used by a woman to make her sexually attractive to her husband, such as lingerie.

According to our full understanding of Exodus 21:10, a husband was also expected to supply his wife not just with typical outer clothing, but with special garments to help her be more attractive to him.  The Bible encouraged the couple to enhance their intimate life by having the woman dress in an attractive manner when with her husband.  Keep in mind that in ancient times women did not dress in a provocative manner in public.  However, the Torah is hinting that it is appropriate and necessary to look sexy and be arousing in private.

The Talmud refers to such undergarments as “bigde tzivonim” colored clothing, because most outer clothing was not made in bright colors.  In those times, a red dress was considered too scandalous to wear in public.  However, in private a man and wife were expected to make an effort to appear attractive to one another.  Lingerie was designed to catch the eye, so it was made with attractive colors.  This is another way the Bible teaches us to emphasize our intimate life, by increasing desire.

Men are especially attracted to what the eye sees, so he is told to get her sexy clothing which will enhance her attractiveness and his desire.  This also helps her to reciprocate his desire, because women enjoy being desired by a valuable, successful man.  (If the man is developing himself through following God’s instructions, he is becoming more valuable).  Therefore, “kesuta” refers to garments that improve the sex life for both partners.

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With this deeper understanding of Exodus 21:10, we realize that all three words describing the core requirements of a Biblical marriage are actually ingredients to bake a healthy sex life.  To modern people unaware that the ancient Bible speaks to all areas of human life, it may be shocking that the Torah contains sexual regulations.  We have learned sections of the Talmud that show us that sexual intimacy was considered normal and expected in ancient society.  We know from Brakhot 24 that our sages were not embarrassed when their students knew they had slept with their wives.

By contrast, modern secular society is simultaneously lewd and prude.  The media and advertising depict sex constantly since sex sells.  But in many contexts, revealing any hint of sexual interest in a woman, let alone having an open discussion of intimacy is verboten. Men lose their jobs over mild, vague remarks or even glances.  America especially has a dysfunctional mix of a remnant puritanism than shuns sex as shameful with a pervasive media that pushes explicit content on us to sell products. It’s schizophrenic.

Back 2000 years ago, intimacy was a normal human function that everyone knew about, so it wasn’t a big deal. But no one went around publicly talking about it. Married women, Jewish or not, would not even show their hair in public, to avoid sexual attention other men. Now, sex is both forbidden to mention and half naked women are used to sell any product under the sun.

Intimacy was considered normal, healthy, and even holy.  Not only does the Bible give a couple advice as to how to maintain a good sex life, Jewish law gives guidelines for how often a man is obligated, as a minimum, to provide sex “onatah” for his wife:

Students may leave their homes and travel in order to learn Torah (without their wives’ permission) for up to thirty days, and laborers may leave their homes for up to one week.  The set interval of a husband’s conjugal obligation to his wife stated in the Torah, Exodus 21:10, (unless the couple stipulated otherwise), varies according to the man’s occupation:

Men of leisure, who do not work outside the home, must engage in marital relations every day, laborers must do so twice a week, donkey drivers once a week, camel drivers once every thirty days, and sailors once every six months. This is the statement of Rabbi Eliezer.  Talmud, Ketuvot 61b

The variation in timing is according to the man’s occupation and resulting proximity to his home.  For example, sailors were expected to be home long enough to rest up and pleasure their wives at least once every six months.  A man who had a career that allowed him to be home was not allowed to become a sailor without his wife’s permission, since she would suffer in his absence.

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These guidelines are the minimum level, Jewish law explains that whenever a man understands that his wife desires intimacy, he should fulfill her desire.  The Talmud and Shulchan Aruch (code of law) note that a woman normally expresses her desire in a nonverbal manner. A man is expected to be perceptive to nonverbal cues that his wife is interested and be ready to act on them.

The man does express his desire verbally, and a good wife is expected to want to please him.  After all, this is a core component of a marriage.  If a wife is not willing to be intimate, the husband may divorce her without paying her marriage contract.  However, a man should realize when she is not receptive and avoid sexual contact then.  Our sages not only condemn marital rape, but also explain that children from an encounter without genuine desire are inferior.

A wise man learns to read his wife and her moods, and use his own talents to plant in her seeds of desire, or to fan her flames of desire.  Even when she in menstruating and they cannot sleep together, our sages note the value of a husband and wife being alone together, and disapprove of interfering with a couple’s privacy.

Again, sexual intimacy within marriage was normal and discussed by our ancient holy men and sages.  The Bible itself makes it the key component of a marital relationship.  This reflects what we know about the Bible: far from being an arcane tome focused on spiritual minutiae, it is practical guide to everyday life for every human being.

Even if you don’t believe that the Bible is Divine at all, it still provides a useful window into how men understood humanity over 3000 years ago.  Learning how men and women were expected to get along according to the Biblical view of human relationships is incredibly eye opening, especially when you make the effort to compare it to modern cultural expectations. 

Studying the Bible as as sociological and historical document gives us tremendous insight into the reality of human interactions, before political correctness and various ideologies began to pull the wool over our collective eyes.  Men understood millennia ago that sex is critically important to a committed relationship.  That truth should be obvious, but some deny this today.

If you are married, you should be having good sex regularly.  Otherwise you are glorified roommates.  God, in the Bible, taught us that intimacy is vital for marriage.  If you or your partner are not enjoying this part of life, something is very wrong.  The Bible gives concrete suggestions to improve the quality, quantity, and desire in our intimate life.

Judgment is yours

Neither shall you glorify a poor man in his lawsuit.” 23:3

“Do not pervert the judgment of the destitute in his grievance.” 23:6

The Torah commands that judges do not take sides.  This applies even if one side is poor or destitute.  Now, we know the Bible commands we give charity (Deuteronomy 15:7, Deuteronomy 26:12).  But God does not allow the court to give one side the benefit of the doubt in order to take into account his personal situation.

We can imagine the temptation of a merciful judge to rule against a rich megacorporation, forcing it to give desperately needed money to a poor individual.  It won’t cost the business much, relative to their assets.  You may have thought this would be a valid form of charity.  Perverting justice is never acceptable.

However, these same verses are taken to mean that both sides get exactly the same rights in court.  The Sforno explains, that the judge may not speak harshly to one litigant and kindly to another, or allow one party to sit but the other must stand.  In addition, the case cannot begin if one side is dressed in nice clothing and the other is dressed in rags, because a judge can influenced by the appearance of both. 

Jewish law (Choshen Mishpat 17:1) requires that the litigants are told that either the poor person should be given clothing equal to the rich man, or the rich person should remove his expensive clothing and dress simply.  This reminds us that how we dress and appear to others does influence how they think of us.  Even before you open your mouth, other people are already judging you based on how you present yourself visually.

Jewish law does not allow favoring a poor litigant, but demands that he get an equal chance to present and explain himself.  We see the importance of both sides having equal representation and ability to present their case.  One of the many problems in the modern secular “justice” system (if you can even call it justice) is that often one side has the resources to wage a much more intense or prolonged fight in court. 

One side may be willing and able to drag out the litigation for years, causing considerable loss to the other side.  This is especially true when the state, with unlimited resources and the home court advantage, goes up against individuals.

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The concepts of Justice and Equality are straight out of the Bible.  But when we reflect on how the Bible discusses the justice system, we see that the focus is not on using judicial action to change society, but on giving every person a fair shake and equal rights.  This is sorely missing in modern America.

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