A woman who committed adultery with her husband’s consent

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asked 9 years ago

Hello Rabbi.

A question that interests me, and although I tried to find sources for it, I was disappointed to see that there are almost no sources to review.
A woman who committed adultery voluntarily and with the consent of her husband (as is done today in couple swapping) is this called adultery?
On the one hand, I saw that the verse in the Feast (9:1) does say, “Who is the one who is twisted and cannot be corrected, etc., who comes upon a man’s wife and forbids her husband.” On the other hand, the verses in Parashah Sota say, “And he brings him up above” that the thing was done without the husband’s consent, under his authority, and in secret. “And he disappeared from the eyes of the woman,” “And she was not caught.”
I also saw that the gaon, author of the letters Moshe (Iven HaEzer, Part 4, Sign 44, Letter 6), looked into this a bit in the case of a woman who married a Gentile with her husband’s consent and came up with the idea that if she did so completely by mistake, thinking that she was forced to commit adultery in order to please her husband, then perhaps it should be said that she is not forbidden to him.

And I saw that indeed there is a division in cases of adultery, one that is a sin against heaven, as in the parsha of the holy ones, “And a man who commits adultery with another man’s wife, and a man who commits adultery with his neighbor’s wife, both the adulterer and the adulteress shall be put to death,” which does not depend on the husband’s misconduct, but rather on the sin itself. On the other hand, the very “prohibition” that is prohibited on the husband depends on whether “he commits an offense” and if the matter was with his consent, there is no misconduct here and he is not prohibited on him.

And the very prohibition that is forbidden to the husband is not taught explicitly, but rather a doctrine of “as is forbidden to the husband, so is it forbidden to the adulterer.” But is it forbidden simply because it is forbidden or because in the most ordinary situation the husband would divorce such a woman when he discovered that she had committed adultery, but in such a case, if he wanted to, what is the ruling?

And one should also note from the Tosafot Zebachim (2:) that a woman is not eligible for divorce – “and even if she has committed adultery under her husband” and it is mentioned that he can keep her and not divorce her, as long as she does not use us.

I would love to know more about this.

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מיכי Staff answered 9 years ago

Meir Shalom. I didn’t really understand your question. Regarding the prohibition, it is clear that she and her husband were forbidden and both must die. I assume that you are only asking about the prohibition against her husband, if it is intentional, she must die and the question is hypothetical. If it is unintentional regarding the prohibition but intentional regarding the adultery and the husband’s consent, then perhaps there is something to discuss. Legally, it seems clear to me that prostitution is forbidden, regardless of whether the husband agrees or not. Where did we find that when the husband agrees, it is different? The Maharik regarding the above and above in a woman demands, from his own understanding, a difference between a woman who was mistaken in the prohibition and a woman who was mistaken in the actual act. This is a difference only with regard to the prohibition for the husband and the adulterer and not with regard to the prohibition itself or the punishment. This is an innovation of his and his own. You want to extend this to a woman whose husband agrees to adultery. If this is reasonable – it doesn’t seem so to me. If you claim that you haven’t found anyone who denies this – I assume it is because no one has thought of such a situation. But I don’t know of any clear evidence or source that discusses this.

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אילון replied 9 years ago

There are two sources that I remember and may help you:

1. The prohibition for the husband is learned from "the first husband cannot do it after he has been defiled" which in the plain language refers to the one who takes back his divorced wife who has been defiled. But I think there is a sermon that says that from this one also learns about his wife who has been defiled. I don't remember which gemara this is from, but it is found in the Rambam. Look in the Book of Commandments.

2. There is a very strange story that I heard that Rabbi Wasner (Rev. Shevat Halevi) allowed their husbands to sleep with some 17 young brides after their marriage with the bride guide (or whatever it was) because he convinced them in their innocence that it was something that should be done (perhaps as part of the preparation for married life) and that there was no prohibition on it (only among Haredim Hasidim this can happen). And he claimed that there was no "higher status in a woman" in this and therefore they were not forbidden, perhaps based on the Maharik that the Rabbi brought. This was not the case that interests you because of course it was without the knowledge of their husbands, but if you find this ruling I am sure you will be able to get a lot of material on the subject and perhaps even a direct reference.

מיכי Staff replied 9 years ago

Regarding 2, see Rabbi Daychovsky's article in Tachumin (the last one or the one before it) regarding the women who had relations with Ezra Sheinberg in Safed because they thought it was a correction for their souls or something like that. He makes a similar argument there. But this is a discussion of the question of what rape is and not a discussion of the question of what happens if the husband agrees.