Q&A: Seclusion
Seclusion
Question
Hello Rabbi,
I read that according to Jewish law, the prohibitions of seclusion apply to girls already from age 3. I wanted to know why Jewish law is so strict about this. Is it really concerned about such cases? Is Jewish law also determined based on extreme cases / extreme people?
Thank you
Answer
I don’t think the question is about extreme cases. A three-year-old girl is considered in Jewish law to be fit for intercourse, and therefore the prohibition begins at that age. This is not a question of stringency or of the likelihood that a person will come to have sexual relations. Once intercourse is halakhically considered intercourse, the prohibition of seclusion applies.
Discussion on Answer
The question whether seclusion is a fence or not is apparently subject to a dispute among the medieval authorities (Rishonim); Rabbi Yosef Engel discussed this in the well-known section in his book that deals with the question of whether there can be a fence within Torah-level law. But even if it is a fence, a prohibition is still established everywhere there is a possibility of coming to forbidden intercourse. There is no reason to exclude a girl of some age from the scope of the prohibition. It is very reasonable to set the prohibition from the moment intercourse is halakhically considered intercourse. From what age would you set the prohibition? The line will always be arbitrary, so it is reasonable to establish the prohibition for every case in which there can be forbidden intercourse.
But a decree has a rationale, so why decree in a situation where it definitely does not exist?
Why does the Rabbi claim that the line is always arbitrary? It would make sense to decree it from an age where there is actual concern. Clearly at age 3 there is no such concern. The fact that one can argue about what the most reasonable age is for drawing the line (6, 9, or 12) should not cause us to give up entirely on a sensible line and set it in a meaningless way.
I would appreciate an explanation.
As I wrote, one can argue about the age from which there is concern, and therefore the most reasonable approach is to establish the prohibition for any age at which intercourse is halakhically considered intercourse.
But the fence is meant to prevent them from coming to the act itself, isn’t it? Or is there something problematic in the act of seclusion itself? It’s not just a definition.