Q&A: A Woman Who Committed Adultery with Her Husband’s Consent
A Woman Who Committed Adultery with Her Husband’s Consent
Question
Hello Rabbi.
There is a question that interests me, and although I tried to find sources to study it, I was disappointed to see that there are almost no sources to examine on this.
If a woman willingly committed adultery with her husband’s consent (as people do today in partner-swapping), is that considered adultery?
On the one hand, I saw that the Talmud in Chagigah (9a) indeed says: “Who is one whose crookedness cannot be corrected… one who has relations with a married woman and thereby forbids her to her husband.” On the other hand, the verses in the passage of the sotah say, “and she commits a trespass against him,” implying that the matter was done without the husband’s consent, while under him and in secret: “and it was hidden from the eyes of her husband,” “and she was not seized.”
I also saw that the great authority, the author of Igrot Moshe, touched on this somewhat (Even HaEzer, part 4, siman 44, sec. 6) regarding a woman who had relations with a non-Jew with her husband’s consent, and he suggested that there might be room to say that if she did so in complete error, thinking she was compelled to prostitute herself in order to satisfy her husband, perhaps one could say that she does not become forbidden to him.
I noticed that one can indeed distinguish between two aspects in cases of adultery: one is a sin toward Heaven, as in the portion of Kedoshim: “And a man who commits adultery with a married woman, who commits adultery with his neighbor’s wife, the adulterer and the adulteress shall surely be put to death.” That does not depend on betraying the husband, but on the sin itself. On the other hand, the actual “prohibition,” that she becomes forbidden to her husband—does that depend on “she commits a trespass against him,” and if it was done with his consent, then there is no trespass and she is not forbidden to him?
Also, the very prohibition by which she becomes forbidden to her husband is not learned explicitly, but from the exposition: “Just as she is forbidden to the husband, so too she is forbidden to the adulterer.” But is she forbidden because she is simply forbidden, or because in an ordinary case the husband would in any event divorce such a woman once he discovered that she had committed adultery? But in a case like this, where he wanted it, what is the law?
It is also worth noting Tosafot in Zevachim (2b), on the statement that “an ordinary woman is not presumed to be standing for divorce” — “even if she committed adultery while under her husband.” They imply there that he may keep her and not divorce her, only that she may not serve him sexually.
I would be glad to hear a broader discussion of the topic.
Answer
Meir, hello. I didn’t really understand your question. As far as the prohibition itself is concerned, it is clear that she and the man involved both transgressed a prohibition, and both are liable to death. I assume you are asking only about her being forbidden to her husband. If this was intentional, she is liable to death, so the question is hypothetical. If we are speaking of an error with respect to the prohibition, but intentional regarding the adulterous act, and with the husband’s consent—there perhaps there is room for discussion. Practically speaking, it seems clear to me that adultery renders her forbidden, with no connection whatsoever to whether the husband agrees or not. Where do we ever find that if the husband agrees it is different? The Maharik, regarding “and she commits a trespass against him,” derives on his own initiative a distinction between a woman who erred about the prohibition and a woman who erred about the very act itself. That distinction is only with respect to whether she becomes forbidden to the husband and to the adulterer, not with respect to the prohibition itself or the punishment. That is his own novel view. You want to extend this to a woman whose husband consents to the adultery. If this is a logical argument, it does not seem convincing to me. And if you are arguing that you did not find anyone who rejects it—I assume that is because no one ever imagined such a situation. But I do not know of any clear proof or source that discusses it.
Discussion on Answer
It is generally accepted that it is. See Maimonides, Laws of Forbidden Relations 12:1-4. However, see the Tur and Shulchan Arukh, Even HaEzer, beginning of siman 16, who bring two opinions as to whether this is only rabbinic (and “you shall not marry them” applies only to the seven nations) or Torah-level. But even according to Maimonides’ view that it is Torah-level, that was said only regarding intercourse in the context of marriage (for the sake of matrimony). In casual intercourse there is no Torah prohibition, but zealots may strike him.
Regarding the development and scope of the prohibition, see an interesting article here:
http://alex-klein.co.il/%D7%90%D7%99%D7%A1%D7%95%D7%A8-%D7%92%D7%95%D7%99-%D7%95%D7%92%D7%95%D7%99%D7%94/
Hello Rabbi, is anal intercourse with a married woman considered intercourse such that it renders her forbidden to her husband?
Yes. See Rema, Even HaEzer siman 20, סעיף 1.
Is it forbidden to sleep with a non-Jewish woman?