Laws of Yichud/Seclusion (1)15 Kislev 5772
The verse in this week’s parashah states (Devarim 13:7): “If your brother, the son of your mother, or your son, or your daughter, or the wife of your lap, or your friend that is as your own soul, entice you secretly, saying: ‘Let us go and serve other gods,’ which you have not known, neither you nor your fathers.”
Chazal (Kiddushin 80b) derive from the verse ‘a hint’ at the prohibition of yichud (seclusion): “Rabbi Yochanan said in the name of Rabbi Yishmael: ‘From where is there a hint to the Torah to [the prohibition of] seclusion? As it states: ‘When your brother, son of your mother, tempts you;’ does the son of a mother tempt but the son of a father does not tempt? Rather, to teach you: a son may be secluded with his mother, and it is forbidden to be secluded with all of the [other] prohibited unions in the Torah.”
The prohibition of seclusion with a woman who is considered an ervah, a marital union prohibited by the Torah, is a detailed field of Jewish Law, and we will not be able to encompass all its details in this forum. However, we will seek to define the basic parameters of the prohibition, and to demonstrate how these parameters are expressed in the specific laws of yichud.
A Torah or Rabbinic Prohibition
Most rishonim agree that the basic prohibition of yichud is a Torah law, as implied by the Gemara (Avodah Zarah 36b; see Devar Halachah 1, who cites the rulings of rishonim that demonstrate this). Although the Rambam (Issurei Biah 22:1) writes that the prohibition of seclusion is derived from divrei kaballah, many (including the Vilna Gaon) write that even this should be understood as a Torah law, though some write that according to the Rambam it is only a rabbinic prohibition.
To the basic prohibition of yichud, Chazal added rabbinic enactments: “In Torah law, [seclusion with] a married woman is prohibited. David then came, and enacted a prohibition on seclusion with an unmarried woman; the disciples of Beis Hillel and Beis Shammai enacted a prohibition even on seclusion with a non-Jewish woman.”
In Torah law (according to most rishonim), only seclusion with a Torah ervah, a woman whose union is prohibited by Torah law, is prohibited. Chazal added to this that even seclusion with an unmarried woman, and seclusion with a non-Jewish woman, is prohibited.
The Binas Adam (Beis Ha-Nashim 16) writes that although the Mishnah (Kiddushin 90b) writes that it is forbidden for one man to be in seclusion with two women, this prohibition is only rabbinic. In Torah law, the prohibition is limited to one man and one woman, as the case of a son and his mother derived by the Gemara. Where two women are present, the prohibition is only rabbinic.
Shut Chavas Ya’ir (no. 73) likewise writes that by Torah law, only “full seclusion,” meaning the seclusion of one man with one woman, is prohibited. Beyond this, where one man is secluded with two women, or two men with one woman (where the men are promiscuous), the prohibition is rabbinic (see also Shut Maharsham Vol. 3, no. 153, who writes even the seclusion of one man with two women is prohibited by Torah law, though there is room to debate the proofs he mentions; see Divrei Sofrim Yichud 1, Emek Davar 9).
Yichud: An ‘Essential Prohibition’
Based on the fact that the prohibition of seclusion is mandated by the Torah, Rav Elazar Menachem Schach (Avi Ezri, Issurei Bi’ah 22:12) explains that according to Rashi (Kiddushin 81a) the prohibition is an ‘essential prohibition.’ This means that the Torah does not merely wish to distance a person from the possibility of forbidden marital relations, but actually wishes to prohibit the seclusion of a man and woman whose union is forbidden.
Where the Sages enacted a prohibition, the prohibition is only a ‘fence’ meant to distance a person from forbidden relationships; the Torah prohibition, however, is not merely a ‘fence,’ but rather an ‘essential prohibition.’
Based on this definition, Rav Schach explains that the Talmudic leniency of “her husband is in the town” (Kiddushin 81b), which states that where a woman’s husband is in town there is no prohibition of seclusion with the woman, is limited (according to Rashi) to the rabbinic prohibition of yichud. With regard to the prohibition enacted by Chazal, which is designated to distance a person from sin, a woman’s fear of her husband is sufficient to ensure that no sin will result. With regard to the Torah prohibition, this is not sufficient, because the prohibition of seclusion is of an ‘essential’ nature.
This ‘essential prohibition’ requires some elucidation. If there is no concern for forbidden relationships, why does the Torah prohibit the seclusion itself? Rav Schach addresses this point, and writes as a possibility that the seclusion leads to forbidden thoughts, as mentioned by the Rambam (Issurei Be’ah 22:20).
Prohibition as a ‘Protective Fence’
The Chazon Ish, in his glosses to Avi Ezri (printed at the back of the book), disputes this position, and writes that the prohibition of yichud is not an ‘essential prohibition,’ but rather means to form a ‘protective fence’ around the prohibition of forbidden relationships. This principle is implied by the wording of the Rambam (22:6, as copied by the Shulchan Aruch): “It is forbidden to be in seclusion with a forbidden union, for this causes forbidden relationships.”
The Chazon Ish proves the point further from the specific halachah of seclusion with a niddah. The Gemara writes that there is no prohibition of yichud with regard to a man and his wife. Even during the niddah period, it is permitted for husband and wife to be in seclusion, because “the Torah attests that … even a fence of roses will not be broken”—there is no need for the ‘extreme’ measure of yichud to separate between husband and wife.
Tosafos explain further that the reason for this is the general permission of marital relationship between husband and wife: because they are able to engage in permitted marital relations, they will not come to sin. This rationale does not apply in a case of a husband who has not yet consummated his marriage, and when a bride is in a state of niddah at the time of her marriage, there is thus a prohibition of yichud with her husband (Shulchan Aruch, Even Ha-Ezer 22:1).
The Chazon Ish thus proves that the prohibition is not an ‘essential prohibition,’ for as such, there would be no difference between a niddah before the consummation of the marriage, and her status after the marriage was already consummated. Rather, this law indicates that the prohibition is a ‘protective fence’ to ensure that the sin of forbidden marital relationships will not be transgressed. For a husband and wife, there is no concern, provided that the marriage has been consummated.
It is important to note that even Rav Schach only wrote his approach (of an ‘essential prohibition’) according to Rashi. According to the Rambam, which is also the halachic consensus (though some authorities write that one should heed the opinion of Rashi, as will be noted below), the leniency of “her husband is in town” applies even to Torah mandated yichud. Furthermore, in instances where there is no concern for forbidden marital relations (as discussed below), there is therefore possible room for leniency in yichud.
The Elderly and the Impotent
Shut Tzitz Eliezer (Vol. 6, no. 40, chap. 22, sec. 8) writes that based on the above wording of the Rambam, which implies that the prohibition of yichud means to distance a person from forbidden relationships, it follows that there is no prohibition of seclusion for somebody who suffers from impotency, or somebody so elderly that there is no concern for transgression. He continues to prove this halachah from the rulings of a number of authorities.
In a separate responsum (Vol. 7, no. 46, sec. 2), Rabbi Waldenberg quotes a letter that he was send by Rav Elyashiv shlita on this topic, in which he disputes the position, arguing that seclusion is prohibited even for somebody for whom there is no concern for transgression. Rabbi Waldenberg defers the proof mentioned by Rav Elyashiv, and adds (in a third teshuvah, Vol. 12, no 67, sec. 2) a proof to his ruling from a teaching of the Chasam Sofer (Derush to Chanukah 5564) whereby Yosef was not concerned to be in seclusion with the wife of Potiphar, because he considered himself incapable of marital relations.
Shut Iggros Moshe (Even Ha-Ezer Vol. 4, no. 65, sec. 10) agrees in principles with this leniency, but writes that in general, yichud remains forbidden even for an extremely elderly person, because even the desire of the old and infirm can sometimes be awakened (as demonstrated by the Gemara, Kiddushin 81b). A like ruling is given in Devar Halachah (Appendix to Siman 2, no. 9), citing from the Chazon Ish, and adding that the Divrei Malkiel (Vol. 4, no. 102) ruled similarly.
Only with regard to somebody who is clinically impotent does Rav Moshe rule that there appears to be no prohibition of seclusion.
The Leniency of a Husband in Town
A very important and pertinent leniency in yichud, which we have already mentioned above, is the case of a woman whose husband is in town. This leniency is stated by the Gemara (Kiddushin, loc. cit.): “Rabba stated: If her husband is in town, there is no concern for seclusion.”
Rashi and Tosafos dispute the nature of the leniency. According to Rashi, when a woman’s husband is in town, there remains a prohibition of seclusion, but it does not carry the same severity (there is no punishment of malkos). As noted above Rashi maintains (based on the explanation of Rav Schach) that even where there is no concern for forbidden relations, the prohibition of yichud remains in place.
Tosafos, however, understand that the leniency entirely permits seclusion, and the Beis Shmuel (22:12) writes that the wording of the Rambam and the Shulchan Aruch implies their agreement to this position.
Yet, Shut Shevet Halevi (Vol. 3, no. 180) notes that the Chelkas Mechokek and the Beis Shmuel mention the opinions of both Rashi and Tosafos, without conclusively deciding between them. Elsewhere (Vol. 5, no. 203, sec. 1), Rav Wosner writes that although the principle halachah follows the opinion of Tosafos, one should heed the instruction of Rabbeinu Yerucham, whereby “one who is modest must distance himself from ki’ur (an ‘ugly’ situation), even when her husband is in town.”
Libo Gas Bah
The Gemara qualifies the leniency, explaining that it does not apply to somebody who has a warm and cordial relationship with the woman in question (libo gas bah).
Examples of such relationships include:
- A woman whom a man has known as a child, and with whom he has grown up.
- A close family relative, such as a cousin with whom one has grown up.
- A close family friend.
- A co-worker, such as a partner.
- A therapist.
- A housekeeper or maid.
This significant qualification is ruled by the Rambam (22:12) and the Shulchan Aruch (22:8).
Rationale Behind the Leniency
According to Rashi (Kiddushin 81a), the rationale behind the leniency is that the woman fears that her husband will come in at any time. The Rambam and the Shulchan Aruch, however, write that the reason is that “her husband’s fear is upon her.” This does not imply a concrete fear that her husband will walk in, but rather that she feels a natural inhibition, in the knowledge that her husband is close by (Shevet Halevi, loc. cit.).
An important ramification of this debate is the question of large cities such as London or New York, where a husband can be ‘in town,’ yet his wife can know with confidence that he won’t be coming in for several hours. According to Rashi, in this case the leniency of a husband being in town will not apply. According to the Rambam, however, the presence of a husband in town ensures that “her husband’s fear is upon her,” and the leniency will apply.
For a husband at work in a distant place (albeit in town), Shut Shevet Halevi is not lenient, and adds that one should preferably follow the stringency of Rashi, whereby only the concrete possibility of a husband’s walking in can permit yichud.
Shut Iggros Moshe (Even Ha-Ezer Vol. 4, no. 65, sec. 7) rules: “For those who work away from home, and spend eight hours at work, and a further two hours of travelling time, there is a prohibition of seclusion where it is not common to come home. However, for somebody who is self-employed, and can return home at will, there is no prohibition of seclusion.”
Halachic Details of the Leniency
The Pischei Teshuvah (22:7) cites a number of novel halachos in this matter from the Binas Adam:
- The leniency of a husband in town applies only when the wife is at home. If the wife is away from home, the presence of her husband in town does not permit seclusion. The reason for this is that the husband is not aware of her whereabouts, and therefore she does not fear him.
- Even if the husband knows the whereabouts of his wife, yet he gives her permission to be there, the leniency does not apply, because she does not fear him.
- This is all the more true where a husband gave his wife permission to be secluded or to speak intimately with another man. In this case, the husband’s fear is clearly not upon his wife.
These stringencies are based on understanding the leniency as being based on the concern that the husband will come home; if the wife is not home, there is no concern for the husband’s homecoming, and the leniency does not apply. Some authorities, however, highlight the alternative rationale of the wife’s fundamental fear of her husband, according to which the wife’s location and the husband’s permission has no bearing on the leniency.
Although the Chazon Ish (cited in Devar Halachah 7:2) was lenient in this matter, the Chafetz Chaim (Nidchei Yisrael 24:6) rules stringently, and as Rav Wosner notes (Shevet Halevi Vol. 5, no. 203, sec. 3), it is hard to be lenient in practice. Shut Iggros Moshe (65:11) is stringent with regard to the first qualification, but adds that “this is only true for a place which the wife does not regularly frequent.” With regard to the last two qualifications, he concludes that although there is certainly room to dispute the final two halachos, one should only be lenient in difficult and extenuating circumstances.
Because the leniency is based on a basic fear that women experience, some rule that it applies even to a non-Jewish married woman (Ezer Mi-Kodesh 3). However, it is possible that this will only be true for situations where there is a concrete chance of the husband coming home. For a non-Jewish woman, we will not rely on the rationale whereby a wife inherently fears her husband (see Divrei Sofrim, Laws 9:4).
It is important to note that the leniency of a husband in town does not apply to the converse—a husband whose wife is in town. Although the Mishnah (Kiddushin 90b) rules that there is leniency of “his wife guards him,” this applies only when a wife is present together with her husband (as stated by Shut Iggros Moshe 65:6), and not for a wife who is in town.
We are yet to address a broad range of issues in the laws of yichud, including: the leniency of a door facing the public domain, the question of what defines seclusion, the laws of ‘guards’ (shomrim), the time-frame of yichud (seclusion in an elevator), questions of yichud among family members, the age from which the prohibition applies, and others. Please G-d, we will discuss these issues in the next article.