Q&A: Is a Menstruant a Matter of Sexual Prohibition?
Is a Menstruant a Matter of Sexual Prohibition?
Question
I was asked on WhatsApp: how should one understand the words of Tosafot in Gittin, who writes that a menstruant is not a matter of sexual prohibition with respect to the rule that “a matter of sexual prohibition requires no fewer than two”? (According to Tosafot, the source for the credibility of one witness in matters of prohibition is the woman’s credibility in matters of menstruation.)
Answer
Answer: A “matter of sexual prohibition” in this context, where two witnesses are required, means a legal matter of personal status. Two witnesses are needed in any legal issue, that is, either in matters of Choshen Mishpat (monetary/civil law) or in matters of personal status (Even HaEzer). But in matters of Orach Chayim and Yoreh Deah, one witness is sufficient, and these are decided by a rabbi and not by a religious court. See my article on obligations and rights and the definition of Choshen Mishpat. The laws of menstruation are not a legal matter (which is why their laws appear in Yoreh Deah, and they are decided by a rabbi and not by a religious court), and therefore one witness is sufficient.
See in greater detail here: https://mikyab.net/%D7%9B%D7%AA%D7%91%D7%99%D7%9D/%D7%9E%D7%90%D7%9E%D7%A8%D7%99%D7%9D/%D7%91%D7%99%D7%9F-%D7%94%D7%98%D7%A8%D7%99%D7%98%D7%95%D7%A8%D7%99%D7%94-%D7%A9%D7%9C%D7%99-%D7%9C%D7%98%D7%A8%D7%99%D7%98%D7%95%D7%A8%D7%99%D7%94-%D7%A9%D7%9C-%D7%94%D7%96%D7%95%D7%9C%D7%AA-%D7%A2
Discussion on Answer
Even HaEzer is what in the legal world is called personal status. Menstruation certainly does not belong there. To testify that a certain woman is your sister is testimony about her personal status (family relations). But testimony that a woman is menstruating has nothing to do with her personal status, and therefore it is not a legal issue.
And of course, testimony that someone is a priest is also testimony about personal status, not about a temporary condition of a specific person.
Hello Rabbi,
The distinction between Yoreh Deah and Choshen Mishpat is clear. What is not clear is what counts as Even HaEzer. Why is menstruation not a change of status? After all, she is now forbidden.
There is a Talmudic passage that to testify about a priest that he is the son of a divorced woman requires two.
There is also room to discuss whether testifying about a certain woman that she is his sister, and therefore he may not marry her, requires two.