Immodest Scenes in Films and Books (Column 487)

More than once I have been asked (see for example here) about watching films that contain immodest scenes, or reading such books. It is commonly thought that this is not permitted, which leads to not-insignificant constraints on consumers of culture. It is difficult to insist on watching only entirely “clean” films, since there are very few of those. This is true especially of films that have added value—i.e., meaningful insights to be gained from them—but also of films intended purely for enjoyment. In the past I answered briefly that in my opinion there is room to permit this, and in this column I will try to clarify the matter.

The above thread cites a fine and thorough article by Rabbi Avraham Stav that deals with this topic, but he leans a bit too much on the issue of “lo efshar ve-lo ka-mekhaven” (“not possible and not intending”), on which I wish to focus here. By contrast, other important clarifications he offers there—such as what sights are prohibited (are the criteria identical to modesty rules for viewing women in real life), how long a gaze must be to prohibit, whether the prohibition applies only where there is concern one will come to act (and thus viewing with others could be easier), differences between women and men regarding arousal of desire, and more—I will not enter into here.

Two further notes. First, my conclusions will require delving into the analytical details of the sugya in Pesachim. I tried to minimize this as much as possible, yet a fairly detailed discussion remains necessary to ground my renewed conclusion. Second, I will not rely here on contemporary decisors (poskim) or later authorities, except for early authorities (rishonim) who explain the sugyot themselves (and even there only where I, in my smallness, agree with them). In my view, the words of later authorities are not necessary for these sugyot and in many cases do not follow their plain meaning. Rabbi Stav brought the sugyot briefly (mainly Bava Batra 57b) and moved to a discussion of commentaries as the basis for his halakhic conclusion. By contrast, my words here take the path of first-order ruling: deciding from the primary principles as they emerge from the sugyot themselves.

The Tannaitic Dispute over “Unintended Action” (aino mitkaven)

There is a well-known dispute between R. Shimon (RSh) and R. Yehuda (RY) about “one who does not intend,” both in the laws of Shabbat and across halakhah (later authorities discussed whether these are two different rules; this is not the place). Thus, the Mishnah in Beitza 23b states:

R. Yehuda says: No utensils may be dragged, except for a wagon, because it compresses [the ground].

And the Gemara there cites RSh who disagrees:

A child’s wagon is susceptible to impurity of treading [midras]—for he leans upon it. And it may be lifted on Shabbat—because it has the status of a utensil. But it may not be dragged except over utensils. Over utensils—yes; over the ground—no. What is the reason? Because it creates a furrow. Whose view is this? R. Yehuda, who says: An act not intended is prohibited. For if it were R. Shimon—he says: An unintentional act is permitted. (As it was taught:) R. Shimon says: A person may drag a bed, chair, and bench, provided he does not intend to make a furrow.

That is, when one drags a bench to move it from place to place, but in doing so creates a furrow in the ground, this is a case of “unintended.” In such a case RY prohibits while RSh permits. In practice, all the halakhic authorities rule like RSh: an unintentional act is permitted.

There are two reservations to this leniency. If it is certain in advance that a furrow will be created by the dragging, RSh too agrees that it is prohibited; this is the rule of pesik reisha (see, e.g., Shabbat 133a and parallels). And if one derives no benefit from the forbidden outcome (lo niḥa lei), some rishonim nonetheless exempt while others disagree.

An important note for what follows: the leniency of “unintended action” according to RSh is not a leniency of compulsion (ones). When a person stumbles into a prohibition without awareness, that is usually termed mitasek (“occupied/unaware”). “Unintended” concerns a person’s intention, not their awareness. When one drags a bench, one knows (even if not certainly) that a furrow might be created; yet RSh permits if he does not intend it.[1]

It is commonly assumed that RSh is lenient, for in his view when there is no intention there is no prohibition, whereas RY prohibits even then. Further on we will see that there is also a stringent side to RSh’s view (regarding intentional action he may be stricter than RY).

The Sugya in Pesachim: Benefit That Comes to a Person Against His Will

In Pesachim 25b, Abaye and Rava dispute the understanding of the above Tannaitic disagreement. The sugya there is complex; I will summarize its upshot. The discussion is whether one who enjoys forbidden benefit that comes to him against his will thereby transgresses:

It was stated: Benefit that comes to a person against his will. Abaye said: It is permitted; Rava said: It is prohibited.

Abaye permits, for the benefit comes to the person against his will; Rava prohibits. From the phrasing “against his will,” it would seem the discussion concerns compulsion (possible/impossible) rather than intention. Yet the Gemara now specifies the case in dispute, presenting two versions. In the background, note there are two parameters at play: possibility and intention. “Possibility” concerns whether one can avoid the forbidden benefit; “intention” concerns whether one intends to enjoy the prohibition. It is not yet clear whether “against his will” refers to lack of possibility or lack of intention. On the face of it, “against his will” denotes lack of possibility (since, as noted, lack of intention is not a form of compulsion).

The first version states:

Where it is possible and he intends, or impossible and he intends—everyone agrees it is prohibited. Where it is impossible and he does not intend—everyone agrees it is permitted. They disagree where it is possible and he does not intend.

When there is intention (regardless of possibility), all agree it is prohibited. When there is no intention: if it is impossible to avoid the prohibition—all agree it is permitted; if it is possible to avoid—the dispute is there. It appears that “everyone” here is Abaye and Rava (not RY and RSh, who have not yet been mentioned). Thus, according to this version, the dispute is where it is possible yet he does not intend, and “against his will” here means lack of intention, not lack of possibility.

The Gemara immediately connects this to the dispute between RY and RSh about unintentional action:

And according to R. Yehuda, who says an unintentional act is prohibited—everyone agrees it is prohibited. They disagree according to R. Shimon, who says an unintentional act is permitted. Abaye [rules] like R. Shimon; and Rava said: R. Shimon said so only where it is impossible; but where it is possible—no.

That is, they dispute only according to RSh.

Note that in this version, benefit that comes “against his will” means benefit he does not intend, even though he can avoid it. The expression is indeed a bit strained thus. Also note that, for some reason, pesik reisha is not mentioned. Presumably the case could also be one where the prohibition will certainly occur (pesik reisha). Moreover, lack of ability is here a reason to permit, whereas in the context of pesik reisha lack of ability is a reason to prohibit. In short, this sugya seems to ignore the pesik reisha dimension.

The second version states:

There are those who say: “Possible and not intending”—that is the dispute of RY and RSh. “Impossible and not intending”—everyone agrees it is permitted; they disagree where it is impossible and he intends.

The Gemara begins by saying that the Tannaitic dispute exists only where it is possible and he does not intend. It follows that where it is impossible, both Abaye and Rava agree that even RY concedes it is permitted if one does not intend. The dispute between Abaye and Rava is where there is intention yet no possibility to avoid.

Now the Gemara adds that in this version, the disagreement is according to RY:

And according to R. Shimon, who follows intention—everyone agrees it is prohibited. They disagree according to R. Yehuda, who says: whether one intends or does not—if it is possible, it is prohibited. Abaye [rules] like RY; and Rava would tell you: RY said that an unintentional act is like an intentional one only to be stringent, but to be lenient—no.

Namely, on RSh’s assumption that intention alone is determinative, there is also a stringent side (vis-à-vis RY): even if it is impossible, one who intends is liable (and certainly when possible). But for RY, who de-emphasizes intention, what counts is possibility. Therefore Abaye holds that when it is impossible RY permits even with intention; whereas Rava maintains that RY never permits when there is intention. In this version, “against his will” in our sugya means lack of possibility (as the plain words suggest), not lack of intention.

For our purposes, the bottom line for halakhah is this: both agree that according to RSh, whenever there is intention it is prohibited (even when it is impossible).

The root of the dispute between the versions is how to understand “against his will”: in the first, it means without intention; in the second, without possibility to avoid. Halakhically, it seems we should examine RSh (whom we follow against RY), according to Rava (whom we follow against Abaye), in both versions. In the first version, RSh permits an unintentional act only where it is impossible to avoid; in the second, RSh permits an unintentional act in any case.

A look at the sugya’s conclusion shows it assumes the law follows the second version; most authorities ruled so. Thus, in the end, the rule depends only on intention, not on possibility. Even so, we should devote a section to clarifying “impossible,” since the authorities, for some reason, do not ignore it even for the halakhah.

The Basis of the “Not Possible” (lo efshar) Leniency

We saw above that RSh’s leniency of “unintended” is not of the family of compulsion (ones). His position is that when a person does not intend, there is simply no prohibition at all. The Torah’s prohibitions were stated only regarding one who performs the act with intent to transgress them, not for another purpose. But the expression “not possible” does seem to belong to the context of compulsion.

As I noted, in Pesachim—contrary to the meaning of pesik reisha, where lack of ability leads to stringency—here lack of ability leads to leniency. See also my Pesachim shiurim (Shiur 45), especially the discussion of Shabbat 29b, where this is sharpened; and in particular Tosafot s.v. “hachi gar’sinan… machloket.” In short: pesik reisha concerns the connection between the forbidden outcome and the act (will dragging necessarily create a furrow), and such necessity is a reason to be stringent; “not possible” concerns whether the person could have avoided doing this act (could he have dragged in a different way), and lack of ability is a reason to be lenient. This suggests that the “not possible” leniency really is rooted in compulsion.

But the rishonim here clarify that this is not so. If the leniency of “not possible” were from compulsion, we would expect the impossibility to be absolute. Yet all the rishonim on the Pesachim sugya write that it is not absolute. For example, Tosafot s.v. “lo efshar” write:

“‘Not possible’ throughout our sugya appears to Ri to mean: not possible in the usual way except with great effort; for the porters’ unloading of their loads is considered ‘not possible.’”

Tosafot argue that even when avoiding the act involves great effort, that is considered “not possible.” In other words, this is not a compulsion-based leniency.

Other rishonim go further. The Ritva in Pesachim writes:

“It was stated: benefit that comes to a person against his will… R. Yitzḥak wrote that wherever we say in our sugya ‘possible’ or ‘not possible,’ we mean: possible without any effort, or ‘not possible’ except with effort. Proof: ‘A person may drag a bed and chair’ we established as [large] utensils (Shabbat 29b); therefore it is ‘not possible’ except by dragging—and that is certainly ‘possible’ by effort. So explained also the Ra’ah.”

According to him, once avoidance entails any effort (not necessarily “great effort” as per Tosafot), that already counts as “not possible.” Clearly, then, this is not a compulsion leniency.

This is more explicit in Maharam Ḥalawa (Pesachim) who writes:

“‘Possible and intending’—meaning he could go by another route, and he senses the idolatrous fragrance; he could deviate to another route without detour or lengthening the way, yet he does not do so—and moreover, by not doing so he also intends to enjoy that fragrance; or ‘not possible’—by another route of equal length. In all our sugya, ‘not possible’ means: where it is not equal. Nevertheless, he might be intending; or ‘not possible and not intending’; or ‘possible and not intending.’”

He speaks of one going somewhere for a purpose, and along the way there is a shop with idolatrous perfumes (from which it is of course forbidden to derive benefit). The question is whether he must avoid that route; this is exactly “benefit that comes against his will.” He rules there is no prohibition so long as the route with the shop is the shorter one. Only if there is an entirely equal alternative, or a shorter one, is it prohibited to take the route with the shop, for then the benefit is not considered to “come against his will.”

What, then, is the basis of the “not possible” leniency? In Maharam Ḥalawa’s words we can see the answer: if there are two routes exactly equal, and one chooses the one with the idolatrous fragrance, then he presumably intends the prohibition. Otherwise, why choose that route? But if the alternative route is a bit longer, then choosing the route with the idolatrous scent is not to enjoy the prohibition but because it is shorter. If so, he does not intend the prohibition—and it is permitted. That is, “not possible” here complements “unintended”: effectively, “possible and not intending” is actually considered intending. The “possibility” parameter informs the determination of intention; ultimately the exemption is from “unintended.” The Ritva in Avodah Zarah 48b says this explicitly (cited near the end). Of course, if he explicitly intends the idolatrous scent, then even if there is no shorter way he is liable, since he intends (there is no compulsion; he could choose not to go at all).

If this indeed explains the “not possible” leniency—namely, that an easier alternative is evidence that choosing the more difficult, prohibited option indicates intention—then even a small differential should suffice to permit. If the permitted route entails a bit more effort, that already shows there is no necessary intention to the prohibition. There need not be “great effort.” This is precisely the view of the Ritva and Maharam Ḥalawa. Perhaps Tosafot do not disagree; they simply hold that if the effort is very small we would expect the person to pay the price to avoid the prohibition, and if he does not, it is likely he intends the prohibition.

A Halakhic Note

Although the sugya’s conclusion seems to be that the leniency depends only on intention, not on possibility—i.e., even “possible and not intending” is permitted—the authorities nonetheless do not ignore “possibility” for practice. Perhaps they understood, as I explained, that if there is another option and you do not choose it, that proves you intend the prohibition; therefore, in practice, that is considered intention and is prohibited. On their view, “possible and not intending” is an oxymoron: if it is possible, he intends. Yet if so, what does the sugya permit under RSh in the case of “possible and not intending”?

It may be that this speaks only of a theoretical case in which it is clear one does not intend even though an equally convenient alternative exists (for some reason he chose the prohibited path though it is less convenient, but not in order to commit the prohibition). But generally, when there is another option and one nonetheless chooses the option with a prohibition, he does intend—and it is prohibited. Again we see that the leniency is not a law of compulsion, for if there is another option he is not coerced; then there should be no difference between intending and not intending.

On this understanding, RSh’s “unintended” leniency applies only where there is no other route. But if there is another route that is no less convenient, RSh too prohibits, because de facto there is intention to the prohibition (unless it is explicitly proven that despite choosing that route he did not intend the prohibition).

Why Doesn’t “Possibility” Appear in Parallel Sugyot?

For some reason, the question of possible/impossible appears only in Pesachim. In no other context does the Talmud condition the RY–RSh dispute about “unintended action” on possibility. One might say we follow the sugya’s conclusion here, which makes possibility irrelevant. But beyond that being strained, it is true only for RSh. According to RY, possibility is relevant even for practice.

It may be that the root is this: only the sugya in Pesachim deals with prohibitions of benefit (issurei hana’ah). The other sugyot concern prohibitions of action, not benefit. I wish to argue that specifically when dealing with prohibitions of benefit, the RSh–RY dispute may hinge on possibility. Why?

In Pesachim it is explained that the basis of the leniency of “not possible” is that when it is not possible the person is not considered to be doing the act; rather, it comes of itself. In prohibitions of benefit there is no prohibited “act” of the person; benefit always “comes” to a person on its own, and so the discussion is whether this is a case of possible or impossible. But in prohibitions of action, like Shabbat labors, the matter depends only on intention—whether this is the person’s act or not—since an actual act is being done. In benefit there is no concrete act, and thus intention perhaps substitutes for action. Therefore, there is room to discuss possibility there as well.

In other words, for prohibitions of benefit, the moment of transgression is the approach to the place of benefit. Therefore, the whole discussion of possibility occurs at that earlier stage (is there the possibility not to approach the prohibition). In action-prohibitions (like Shabbat), the question of possibility is irrelevant, since it concerns the decision stage (approach) and not the stage of the prohibition itself.

In this connection it is interesting that in Avodah Zarah 12b, the Ramban raises the possibility question, and there too it concerns benefit-prohibitions. The Mishnah states:

Mishnah. A city that has idolatry, and there are decorated shops and undecorated shops—this occurred in Beit-She’an—and the Sages said: the decorated ones are prohibited, while the undecorated are permitted.

This concerns purchasing in shops decorated for idolatry. And the Gemara says:

Gemara. Resh Lakish said: They taught this only about decorations of rose and myrtle, because he benefits from the scent; but if they are decorated with fruit, it is permitted.

Here it concerns enjoying the scent of idolatry. The Ramban comments:

What Resh Lakish said—only when decorated with rose and myrtle, because he benefits from the smell—this is difficult: in such a case is it prohibited? Behold, he does not intend it, and even where it is possible [to avoid] it is permitted, as we rule in Pesachim 25b. One might say that since he tarries there to buy and sell, he does intend, only it is not on his mind [i.e., unwitting]; or alternatively, Resh Lakish holds that ‘unintended action’ is prohibited, and he establishes the Mishnah like the Rabbis who argue with RSh.

Note that it is a benefit-prohibition, and therefore possibility arises. Also note that the Ramban is not troubled by pesik reisha: if he is in the shop he will necessarily smell idolatry, so why permit? We must conclude the Ramban understands that it is permitted even where the smell is pesik reisha. The reason is that in benefit-prohibitions, the approach to the prohibition is the decisive stage, and at that stage there is not yet pesik reisha (since he can block his nose when he gets there; i.e., the walk does not necessarily lead to prohibition, so it is not pesik reisha). However, the question of possibility/impossibility is certainly relevant to that stage; hence he introduces those concepts.

This raises the possibility that our entire topic is discussed only in the context of benefit-prohibitions: only there do we speak of possible/impossible as relevant criteria to prohibit or permit. Accordingly, this is an application of the RSh–RY dispute to benefit-prohibitions, and it is no surprise that the rest of Shas does not address possibility. It also explains why the opening formulation here is “benefit that comes to a person against his will,” without mentioning intention. As noted, “against his will” naturally addresses possibility rather than intention. On our approach this is clear: the subject is only benefit that comes against his will, and the link to RSh and RY is only in the context of approaching the prohibition—the prior stage. Regarding dragging a bench, Abaye and Rava would not dispute RSh, who permits when there is no intention, or RY, who prohibits; they would not introduce the aspect of possibility.

Indeed, the Ran on the Rif here writes:

“It was stated: benefit that comes to a person against his will”—such as the scent of idolatry; and “against his will” means that he did not come there for it, but the scent comes of itself—and in such a case, even if he intends it, it is called “against his will,” for throughout the sugya we discuss ‘possible and intending’ and ‘impossible and intending.’

Some later authorities[2] write explicitly that in benefit-prohibitions, the prohibition is on taking the benefit; when one does not intend, the benefit is considered as if it came to him on its own (and is not prohibited to him).

A Contrasting Approach: The Kovetz Shiurim

In Kovetz Shiurim (Pesachim §116) we find:

“Abaye holds that ‘not possible and intending’ is permitted. ‘Not possible’ means he goes on his way for some need and has no other route, and he smells the scent of idolatry—this is permitted. One must understand: why should there be a reason to permit deriving benefit from idolatry because he has no other route? Let him not go and not benefit.”

First, he assumes there is literally no other route (not merely that the alternative entails effort, small or large). That is difficult: it would mean that with a large bench, the intent is that it is utterly impossible to lift it, not merely difficult—this is not the Gemara’s plain meaning. With effort one could say he means there is no other route as convenient as this one.

In any case, even if there is no other route at all, he rightly notes there remains the possibility not to go. Does the need to go override a Torah prohibition? That is, even if there is no other route at all, this is not compulsion—only “not possible.” Why then is “not possible” a criterion for leniency? This is essentially the opening question: how can we exempt here when there is no compulsion?

He answers:

“It seems the explanation is this: benefit that comes on its own is permitted; the prohibition is only that a person shall not act to benefit. In this RY and RSh dispute: RSh holds everything depends on intention—if he intends to benefit, the act is attributed to him; if not, it is considered as having happened on its own. RY holds it depends on possible / not possible: where he goes on his way and benefits, the benefit comes on its own.”

It emerges from his words that, according to Abaye in the second version, the RY–RSh dispute concerns only benefit-prohibitions, because benefit is not an act. Hence he explains that when there is intention, it is considered an act of taking benefit; for RY, it depends on possible / not possible. Later we will see he explained it differently than I do. Note that the Ran (on Gid ha-Nasheh) wrote that in benefit-prohibitions, “unintended” is permitted even in a case of pesik reisha (cited at the end of the Kovetz Shiurim here).

It seems the Kovetz Shiurim understood that benefit-prohibitions are exceptional in their halakhic definition (we will see this further below). But according to my conclusion above, we can explain differently. The core of his words is that for benefit-prohibitions, when the benefit comes on its own there is no prohibition; when one does not intend, it comes of itself and not by his act (and even where it is pesik reisha it is not by his act but automatically).[3] The status of pesik reisha is determined at the moment of the benefit itself, and therefore it is not relevant to benefit-prohibitions, for there the decisive stage is the approach to the prohibition. At that stage there is no pesik reisha but only intention and possibility (with “possibility” serving to determine intention, as above).

Further on Pesik Reisha in Our Context

Tosafot (s.v. “lo efshar”) in Pesachim note:

“Our case concerns where it is not pesik reisha; for in pesik reisha RSh concedes [it is prohibited]. And it cannot be said that even in pesik reisha it is permitted here according to RSh because here it concerns dragging utensils, where there is only a rabbinic prohibition, since he digs as a non-standard act (cf. Shabbat 29). For our sugya immediately brings cases of biblical prohibitions such as me’ilah, kilayim, and disqualification of the red heifer; therefore all those cases must be not pesik reisha.”

Tosafot assume the sugya always concerns non-pesik reisha, for in pesik reisha all would prohibit. This is puzzling, especially since the cases discussed are apparently pesik reisha.

The Rosh adds:

“‘Benefit that comes to a person against his will…’—‘possible and intending’… ‘impossible and intending’—all agree prohibited; ‘impossible and not intending’—all agree permitted. And this concerns a case that is not pesik reisha, such as that he can block his nostrils so as not to benefit from the smell; for pesik reisha is like intending in all biblical prohibitions.”

He offers an explanation why it is not pesik reisha: because he can block his nose.

At first glance, this is difficult: so long as he does not block his nose, he will certainly smell—it is pesik reisha. The Kovetz Shiurim §116 raises this:

“And Tosafot wrote that the entire sugya concerns cases that are not pesik reisha, such as that he can block his nostrils (as the Rosh wrote). It is difficult: what of it that he can block—if he does not, it is pesik reisha. Likewise regarding vendors of garments, where Tosafot explain it is not pesik reisha, this too is difficult: since he wears them when it rains and benefits from them, why is that not pesik reisha? And many rishonim interpret vendors of garments as pesik reisha; they only dispute the reason for leniency: the Arukh explains it is because it is not beneficial to him (lo niḥa lei), and the Shita Mekubetzet quotes many rishonim who reject the Arukh’s proof yet agree with his explanation that it is pesik reisha. And the Ran (Gid ha-Nasheh) wrote that benefit is different: even pesik reisha is permitted.”

He does not understand why the mere ability to block the nose removes the status of pesik reisha, for if he does not block it, it is pesik reisha.

Some later authorities[4] wrote that if there is another way to do the act, then even if he does it in a pesik reisha manner it is not considered pesik reisha (e.g., if he could lift the bench rather than drag it, then even if dragging will certainly create a furrow, this is not pesik reisha). On their view one could understand the Rosh. But according to my approach this is unnecessary, for the question assumes the prohibition is the smelling itself (i.e., that a benefit-prohibition functions like an action-prohibition). Then it is indeed hard to see how the ability to block one’s nose removes the pesik reisha status. But since here it is a benefit-prohibition—and I explained that the prohibition is on the approach to the benefit, not the smelling itself (which comes of itself)—here all would agree with those later authorities: when there is another possibility, it is not pesik reisha. Above we saw more: even without that there is no reason to prohibit via pesik reisha, because pesik reisha applies only at the moment of the prohibition.

Hence the Kovetz Shiurim also explains the Ran in Ḥullin as viewing benefit-prohibitions as exceptional and therefore permitting even pesik reisha. But on our path, that is not their exceptional nature. Benefit-prohibitions are exceptional because the prohibition is placed on approaching the prohibition, not on the smelling itself; and in such prohibitions, everyone agrees that the existence of an alternative (possibility) is a stringency, not a leniency.

Defining Intention in Our Sugya

On our approach, it appears that the “intention” discussed here concerns only the approach to the place of smelling/benefit, not the act itself. Indeed, Rashi in Pesachim (s.v. “hachi garsinan”) writes:

“This is the correct text: ‘Possible and intending… impossible and intending’—all agree prohibited; ‘possible for him to separate, and he intends to approach in order to benefit,’ such as the scent of idolatry; or even if it is impossible for him to separate, nevertheless he intends—he desires to benefit.”

“He intends to approach in order to benefit”—we see from his words that everything is determined by intention at the stage of approach, not at the stage of the benefit itself. And in the continuation he explains that when it is impossible to separate, “he desires to benefit,” and does not say “he intends to benefit”—again implying that he desires and therefore goes there with intent to benefit, not that the intent is at the moment of the benefit.

Note that Rashi brings a case not mentioned in the sugya to illustrate the point about approach, which is the stage at which possibility is relevant.

Rabbeinu Ḥananel writes:

“‘In any case where it is possible’—that is, there is another route, and he can avoid passing there, and he intends to pass there in order to benefit from the idolatrous scent—everyone agrees it is prohibited.”

Again, all depends on intention during the approach, not at the moment of smelling.

And the Turei Even (s.v. “Abaye ke-RY”) writes:

“And the [Temple] shade as well—if he had another open place and went there because of the shade. But so long as his walking is for some other reason, though he intends on that walk to benefit from the prohibition, Abaye would permit according to RY.”

Again, all depends on his intention along the way at the stage of approaching the prohibition, not at the stage of the benefit itself.

Implication: A Dispute Among Later Authorities About Guarding Speech

The Shulḥan Arukh YD 142:15 rules:

“It is prohibited to listen to musical instruments of idolatry or to gaze at the beauty of idolatry, since one benefits by seeing. (However, in a case of ‘unintended,’ it is permitted.) (This he found as a gloss in the name of R. Yeshaya Aḥaron; see se’if katan 34).”

It appears from the Rema that even if one benefits, if he does not intend it is permitted. He ignores that this is pesik reisha, for his standing there necessarily brings benefit. Evidently he holds that pesik reisha does not apply to benefit-prohibitions (as the Ramban), or that the ability to close one’s eyes removes it from pesik reisha and therefore it is permitted if he does not intend—even if he does not actually close his eyes (as the Rosh).

Indeed, the Shakh (ad loc. s.k. 34) cites the Rosh on our sugya:

“‘However, an unintended act is permitted’—this is an explicit sugya in ‘Kol Sha’ah’ (Pesachim 25b), and the Rif, Rosh, Ran, and Rambam (Chametz u-Matzah 12:12) so ruled. I do not know why [the Meḥaber] wrote this in the name of the glosses of Riaz; perhaps because the sugya could be explained regarding other prohibitions and not idolatry specifically, he therefore cited Riaz. But the straightforward reading implies even idolatry, and so Rashi says explicitly there; and so wrote Rabbeinu Yeruḥam. And it is explained in the sugya and the poskim that even if he could go another way it is permitted when he does not intend. And Tosafot, the Rosh, and the Riva write there that the case is where he could block his ears/eyes/nose such that he would not benefit from the sound/sight/smell; then it is permitted when he does not intend, for it is not pesik reisha; otherwise it is prohibited. But when he intends it is explained there that even if he cannot go another way it is prohibited.”

He cites the Rosh that if he can block his senses it is permitted and not pesik reisha even if he does not actually do so.

The Ḥafetz Ḥayyim (I, klal 6:5) and in Be’er Mayyim Ḥayyim s.k. 14 discusses this at length, and in a gloss he cites the Ḥokhmat Adam (Avodah Zarah, klal 87:16):

“It is prohibited to listen to music, smell the scent, or gaze at the beauty [of idolatry], and all the more so the idol itself. If one must pass there, he should block his ears, close his eyes, and stop his nostrils so as not to benefit—even though he does not intend, since it is pesik reisha…”

In his gloss there, the Ḥafetz Ḥayyim wonders at the Ḥokhmat Adam, for our sugya proves one need not actually close one’s eyes; the Shakh says so as well. We see that it suffices that he could close his eyes to render it “not pesik reisha,” and therefore permitted even if he does not actually do so. Indeed, above we inferred this from the Rema’s own words.

It seems the Ḥokhmat Adam learned that pesik reisha is determined by the situation as it is: if he benefits in any case, it is pesik reisha (as per the Kovetz Shiurim’s difficulty). But the Ḥafetz Ḥayyim held that intention and pesik reisha are determined at the stage of walking toward the prohibition. If he could close his eyes, then the walking is not pesik reisha, and thus it is permitted as “unintended.” This appears to be the plain sense of the sugya and the rishonim.

Note that the Ḥafetz Ḥayyim generalizes this to any prohibition committed through passive viewing, not only benefit-prohibitions (for he deals there with hearing lashon hara, which is not, simply, a benefit-prohibition). Conversely, where a benefit-prohibition is violated by an outright act (e.g., eating a forbidden item), the above would not apply; rather, it would resemble standard action-prohibitions. Indeed, on my view, the leniency is not limited to benefit-prohibitions but to any prohibition transgressed passively, where the person’s “act” is merely approaching the scene.

Parenthetically: in a question on the site it was noted to me that I wrote the Ḥafetz Ḥayyim concludes there is no obligation to close one’s eyes or nose, whereas his conclusion is that there is an obligation. I have now re-checked, and this is not correct: his clear conclusion is that there is no obligation to avoid the situation (regarding arayot and lustful thoughts, see below).

Interim Summary and Practical Conclusions

According to my conclusion here, even if a person will deliberately smell the prohibition, so long as he has the ability to block his nose it is permitted as “unintended” and not pesik reisha. The Kovetz Shiurim assumes that even in benefit-prohibitions the decisive moment is taking benefit on site and not the approach; but I think there are strong proofs to my claim. As we saw, according to the Ramban in Avodah Zarah the conclusion is even more far-reaching: if the person smells, even if he cannot block his nose and it is a case of pesik reisha, it is still permitted—because the approach was not with intent to smell, and pesik reisha is irrelevant to the approach stage.

Two important notes:

• A novel leniency: there is no obligation to actually block his nose. It suffices that he could block it. The proof is that if there were an obligation to block, then what is the Gemara discussing at all?! He would simply not be transgressing. The Gemara speaks of permitting a transgression in an “unintended” manner—i.e., a case where in fact he does not block his nose. The Rosh and Ramban likewise speak of a case where he senses the smell, yet claim that although it is pesik reisha it is permitted. They clearly understood he actually experiences the smell.
• A novel stringency: if in fact he intends the prohibition (he goes there in order to smell the forbidden scent), then it is prohibited whether or not it is pesik reisha, and even if it is “not possible”—for after all, he intends. According to RY in the second version there may be a case of “not possible and intending” that is permitted; but the halakhah does not follow him. We rule like RSh.

Accordingly, the same would apply to watching a film that contains immodest scenes. A person who goes to the film does so to watch that film (let us assume, for the sake of discussion, that it has no added moral value but is merely legitimate entertainment). This is a case of “not possible,” for he cannot watch the film without those scenes. Another film is not a substitute; that is certainly not less than “some effort,” i.e., the existence of another film is not evidence that he chose this one in order to see the immodest scenes. Perhaps he wants to watch precisely this film because it interests him.

It follows this is a case of “not possible and not intending”—which is permitted. Moreover, there is no obligation to close his eyes, because his going to the film was not with intent to enjoy the prohibition (per the Ramban); or at least the mere fact that he can close his eyes removes the status of pesik reisha, so there is no prohibition even if he does not in fact close them. But if he goes for the prohibited scenes, it is of course prohibited—even if this counts as “not possible.”

“Who shuts his eyes from seeing evil”

There is a parallel sugya in Bava Batra, which at first glance implies a contrary conclusion. The Ḥafetz Ḥayyim in Be’er Mayyim Ḥayyim raises a difficulty from Bava Batra 57b:

“Do not challenge our sugya from what is said in Bava Batra (57b): ‘What is the meaning of “and who shuts his eyes from seeing evil” (Isa. 33:15)?—this refers to one who does not gaze at women while they are laundering.’ The Gemara asks: How so? If there is another route—he is wicked; and if there is no other route—he is coerced. The Gemara answers: In truth, there is no other route, yet even so he should ‘force himself’ [to avert his eyes]. Rashi explains: ‘He is wicked—even if he shuts his eyes; for he should not have approached that way; we rule: distance yourself from ugliness…’ If so, why do we rule in Pesachim that “possible and not intending,” i.e., he could go another way and not encounter a benefit-prohibition of idolatry, yet he goes this way—since he goes on his way and does not intend to benefit, it is permitted—and not only regarding idolatry: all the more so for all prohibitions in the world (as the Shakh concludes YD 142). There we permit even if he sees and hears, and here in Bava Batra the Gemara calls him wicked—even if he shuts his eyes—since he has another route.”

That discussion concerns looking at women washing clothes, which may lead to forbidden thoughts. The Gemara says that even if he has another route (ikha derakha aḥarita—parallel to “possible” in Pesachim) he must remove himself from that situation. It would seem the same should hold regarding lashon hara, or idolatrous scent, or an immodest scene in a film. Yet this sugya contradicts our conclusions above, according to which if he does not intend and there is no other route, there is no obligation to avoid the situation—precisely the difficulty of the Ḥafetz Ḥayyim.

I will note only that it is reasonable that in our day the standard has changed: today, women in the public square are not different from those launderers; and there is no halakhic directive to avoid walking in the street (even if some are stringent beyond the law). This is likely based on the rule of “not possible and not intending.” One could apply this to films today as a daily matter like walking in the street—hence, as there is no instruction to avoid going outside despite the sights one may encounter, so too there is no obligation to avoid films. The accepted norm in these circumstances is permitted, meaning there is no halakhic obligation to flee. In other words, it is a case of “not possible and not intending.” Still, the difficulty from Bava Batra remains: why does that sugya not view it as such, and instead requires fleeing it?

He adds that this is difficult even for the Ḥokhmat Adam cited above:

“Even according to the Ḥokhmat Adam—who ruled one must block his ears and close his eyes—it remains difficult: for with blocking/closing it is permitted even if he has another route, since he goes on his way and does not intend; yet there, too, he is going along the riverbank (per Rashi), not for this purpose, and even so the Gemara calls him wicked.”

“Do not say this depends on the RY–RSh dispute (as in Pesachim): according to RY, ‘possible and not intending’ is prohibited, hence the Gemara calls him wicked.’ This cannot be. First, many rishonim write that RY himself concedes ‘unintended’ is biblically permitted (see Yoma 34b, Tosafot). Second, if so—since we hold like RSh that ‘unintended’ is permitted—it would be permitted even if he had another route, even if he actually sees, as we clarified above. Yet the Shulḥan Arukh, EH 21, rules it is forbidden to gaze at women when they are laundering. Do not say the reason is the conclusion in Bava Batra—namely, “he should force himself”—for then in Pesachim we should also say one must force himself not to gaze at the beauty of idolatry, lest he come to benefit; indeed, we showed in many places that we do not fear that.”

Incidentally, he notes that the Shulḥan Arukh EH 21:1 rules:

“A person must distance himself from women exceedingly. It is forbidden to signal with hands or feet or gesture with one’s eyes to any of the forbidden relations. It is forbidden to jest with her, act frivolously in front of her, or gaze upon her beauty. Even smelling her perfume is forbidden. It is forbidden to gaze at women when they are laundering. It is forbidden to gaze at the colored garments of a woman he recognizes—even if they are not on her—for he may come to have thoughts about her. If one encounters a woman in the marketplace, it is forbidden to walk behind her; rather, he should run and move her to the side or behind him. One should not pass the doorway of a prostitute—even at a distance of four cubits. Whoever gazes even at a small finger of a woman intending to enjoy is as if he gazed at her private parts. It is forbidden to hear an ervah-voice or to see her hair. One who intends to do any of these is given rabbinic lashes. These prohibitions also apply to those prohibited by negative prohibitions.”

Two comments: (a) The Shulḥan Arukh does not state there is no other route and does not discuss possibility; he simply says not to gaze at the women laundering—perhaps speaking of one who goes specifically to gaze at them, stating that this is prohibited. (b) These “laws” do not read like strict law but like worthy stringencies. It is known that “assur” in the Shulḥan Arukh does not always denote a strict legal prohibition. In any case, it seems that in practice we are not careful about many of these, and by our norms it is permitted (at least by “not possible,” or “there is no other route”). Thus, this ruling may be a counter-indicator as strict law.

One might have buttressed this with the Rashbam’s expression “wicked,” along with “distance yourself from ugliness.” But that is less clear, since “distance from ugliness” there applies to one who actually does shut his eyes—in which case it is only “because of ugliness.” But one who does not shut his eyes might be under an actual prohibition. The term “wicked” could be read either way (i.e., either as a halakhic sinner or as one acting improperly). See such interpretations in Rabbi Stav’s article, n. 18.

In the end, the Ḥafetz Ḥayyim resolves as follows:

“I considered this difficulty at length. It seems that concerning arayot we must be stricter, for a person’s soul lusts for them. Even if at present he thinks he does not desire this benefit, the evil inclination might overpower him against his will and he will come to have thoughts; similarly we find in several areas they were stricter regarding sight than any other prohibitions, even in ‘not possible and not intending’—as in Berakhot 61a: ‘Behind a lion but not behind a woman’; and ‘if one meets a woman on the way, he should run behind her and move her to the side’—from which later authorities in EH infer that even when there is no other route, and he does not desire the sight, they still prohibited; all because of what we wrote. And what the Rashbam wrote that we rule ‘distance from ugliness’—this is in such matters, where the evil inclination’s enticement and the gossip of people are very common.”

He concludes that this is a special rule for arayot: since a person desires them, there is no leniency of “not possible and not intending.” If so, my conclusion regarding film-watching would fall, since there we are dealing with lustful thoughts, not merely benefit-prohibitions. It would follow that in this prohibition there is no leniency of “not possible and not intending.” However, as Rabbi Stav notes in his article, the rishonim dispute whether that Bava Batra passage concerns only one who does not shut his eyes (as the Gemara’s plain sense) or even one who does (per the Rashbam). If so, even according to the Ḥafetz Ḥayyim, there is no prohibition to attend such a film if one closes his eyes during the immodest scenes.

In my opinion, though, the Ḥafetz Ḥayyim’s conclusion is difficult for several reasons:

1. No one raised this difficulty in the two sugyot. One would expect the Gemara itself to ask and resolve as he does, and of course the rishonim and aḥaronim on Bava Batra (those I saw) did not find it necessary to ask.
2. The Gemara there brings a verse from the Prophets, rather than saying he violates “Do not stray” (lo taturu)—i.e., a standard Torah prohibition of lustful thoughts. Apparently, if the leniency of “not possible and not intending” does not apply, this would be a regular Torah prohibition.

Therefore, even if one reads the Gemara there as a strict legal prohibition, it is not the standard biblical prohibition of illicit thoughts but a rabbinic fence.

3. The Ḥafetz Ḥayyim does not speak of the fear that thoughts might arise, since plainly in practice such thoughts do arise; otherwise, what is the discussion about (as with idolatrous scent and lashon hara)?! The concern he raises is the arising of intention (not the arising of the prohibition itself). That is, he claims there is a concern the person who enjoys may also come to intend to enjoy the prohibition (and one can further ask whether he will intend to enjoy and in practice the enjoyment is of the prohibition; or that he will intend to enjoy the prohibition as such—a more remote concern). But if indeed the fear is only that intent to the thoughts will arise (and not the thoughts themselves), I do not see why this differs between arayot and other pleasures. I understand that the chance of arising enjoyment from the prohibition is higher with arayot than with other prohibitions. But if in practice he has enjoyment, and the fear is only that he may also come to intend to enjoy the prohibition, I do not see the difference between arayot and other pleasures.

One could say here too that this is a rabbinic fence because of the gravity of arayot; but that does not seem to be the Ḥafetz Ḥayyim’s point. His words suggest a distinction in the fear itself.

4. In the Talmud we also find that idolatry “draws” a person, and not for nothing are idolatrous thoughts likened to sexual immorality (already in the Torah: “Do not stray after your heart and after your eyes”). If so, I would expect the Talmud to dictate stringency also for idolatrous scent, as it does regarding arayot. Note that these are Talmudic sugyot; there the comparison should hold. In our day, perhaps one could say idolatry is not comparable to arayot; but the Talmud does compare them.[5]

Consider Avodah Zarah 48b:

“[If] it shaded the public—one who passed under it is pure. A dilemma was raised: ‘[He] passed’ or ‘[he] passes’? R. Yitzḥak b. Elazar in the name of Ḥizkiyah said: ‘[He] passes’; R. Yoḥanan said: ‘If [he] passed.’ They do not disagree: this [stringency] is where there is another route; that [leniency] is where there is no other route.”

That is, it is permitted to pass under an asherah tree shading the public when there is no other route.

The Ramban there challenges this from Pesachim:

“This is difficult: where there is another route, that is ‘possible and not intending,’ and we rule it is permitted. One may say: since he will certainly benefit from the shade, we worry lest, as he goes to and fro, he will intend the benefit of the shade without realizing it; therefore we do not permit him to pass there ab initio when it is possible [to avoid].”

That is, there is no prohibition in the enjoyment of the shade itself, but we fear he will come to intend enjoying it unawares; therefore we do not permit him to pass there lechatchila if there is another route. But if there is no other route, it is permitted. We see that even for idolatry there is a concern of being drawn to intend to enjoy, as with arayot; and nonetheless they did not prohibit passing where there is no other route (even though he will in fact enjoy and even intend).

Interestingly, the Ritva (s.v. “ha”) resolves differently:

“There the case is that he passes outside and the scent comes and enters his nose; but here he passes directly under it. Wherever there is another route, it appears he is willful and intends the enjoyment; but where there is no other route, it does not appear so—on the contrary, we say it is ‘not possible and not intending,’ which all agree is permitted.”

This is precisely the reasoning we saw earlier: if he passes there despite there being another route, it proves intention.

All this suggests it is more reasonable to read the Bava Batra sugya not as strict legal instruction but as recommending worthy conduct and ethics. Its language indicates advice and morality more than legal ruling, as we saw also in the Shulḥan Arukh and Rashbam. One may indeed conclude from there that it is preferable to avoid films with immodest scenes—even if there is no halakhic obligation to do so. From here on, it is a matter for each person to consider: to what extent to be stringent on oneself, how necessary it is for him (“not possible,” or “no other route”), and the like. Moreover, insofar as this is not a legal ruling but a recommendation, prevailing social norms carry greater weight. What is “worthy/unworthy” should be weighed according to the circumstances and conventions of time and place. See in this vein also my earlier point based on simply walking in the street nowadays. If we add the assumption that there is cultural value in watching such films, of course it is even easier to permit watching them.

In sum, there is a reasonable halakhic basis to permit watching such films—certainly if one closes his eyes during the relevant scenes (see R. Stav that one need not fear missing parts on this account)—and in my opinion even if one does not close his eyes.

[1] There is a question whether “intention” here means will rather than awareness. If so, it is unclear why there is a qualification in cases of pesik reisha. I discussed this in my article on pesik reisha in rabbinic prohibitions (in the volume Oriyta on Hilkhot Shabbat; unfortunately not on the site), and I will not enter into it here.

[2] See, for example, Berakh Shmuel Ketubot §§7, 9; Sha’arei Yosher III:25; and Kovetz Shiurim II §23.

[3] See similar points in Penei Yehoshua at the beginning of the Pesachim sugya.

[4] Shiltei Gibborim to Perek ha-Oreg (Shabbat 38a in Rif pagination s.k. 3) and Merkavat ha-Mishneh to Rambam, Hil. Shabbat ch. 1 (cited by the Or Sameaḥ, Hil. Lulav 8:5). See my Pesachim shiurim, Shiur 42.

[5] True, the Gemara in Yoma records that the Men of the Great Assembly annulled the evil inclination for arayot; but this does not refer to the arayot of a married woman or forbidden thoughts, rather to desire for relatives. Yet there it also says they annulled the inclination for idolatry—this requires further study.