The Rama and the Law of Unintended Consequences

In the last post, we traced the development of the stringency that assumed that every new couple must separate after the first intercourse because of the assumption that most women have some hymenal bleeding at their first intercourse.  Even if they do not see any blood, the majority of the Rishonim (early halachic decisors circa 11th century - 15th century) assumed that there must have been some bleeding although it just got lost.  Therefore, one must separate from his wife after the first intercourse.

This stringency, not mentioned in the Talmud (as we demonstrated that the Talmud only requires separation when there is bleeding) , places a tremendous pressure on the new couple in the beginning of their marriage.  They cannot ever begin the normal course and rhythm of sexual life that usually occurs in an Orthodox Jewish couple until they get the "first time" over with (I deliberately chose this coarse sounding term, because that is the effect it has on the young couple).  Once the "first time" is accomplished, she can count 7 clean days, go to the mikveh, and then in most cases they can resume a normal life of intimacy in keeping with usual Orthodox practice and avoid sexual activity only during the times of her monthly cycles. 

Immediately after the codification of the Shulchan Aruch, Rabbi Moshe Isserles (1530-1572), also known as the Rama, wrote his famous "Mapah" the "tablecloth" that he felt needed to be placed atop the "table" of the Shulchan Aruch.  The Mapah was written in the form of glosses and notes on the SA. In his glosses on the SA, the Rama typically listed opinions that reflected the Ashkenazic customs and halachic opinions that were at odds with the opinions codified by the SA.  Had the Rama not done this, there was a significant risk that the laws as codified by the SA would eventually have replaced and nullified Ashkenazi practices and opinions that were practiced for centuries and fully legitimate.

The Hagahot Maimuniyot that we quoted previously was a classic Ashkenazic Posek (Halachic Decisor) from the 13th century, and he recorded the fact that in his day, many of his communities relied upon the Ra'avad who held that the couple only needs to separate after the first intercourse if there is indeed actual bleeding.  Therefore, the Rama, in order to make sure this leniency didn't get forgotten, writes the following note on the SA (my own translation):

Note: There are those opinions who are lenient in cases when she did not have any bleeding (and therefore do not require separation after the first intercourse when there is no blood) The general custom has become that when the intercourse is not complete, rather he just entered her a little bit and she did not bleed then they do not need to separate. However, if he truly has complete intercourse with her then he needs to separate from her even if she does not see any blood (IOW we are stringent like the more stringent opinions) a person who is concerned about his spiritual well being (a "ba'al nefesh") should be careful not to "play around" ("Mesachek") with a young girl (Rama YD 193:1)

There are some clear conclusions from this Rama:

1.  The Rama clearly held that the "lenient opinions" were reliable enough to uphold the custom that was prevalent in Ashkenazi Europe during his time
2. The prevalent custom among Ashkenazim at the time of the Rama was to allow for appropriate sexual activity between a new husband and wife, even involving genital contact, as long as they did not have full intercourse.  This activity would last as long as she didn't have any bleeding. Certainly this could last even up to several weeks until her next period, and presumably even beyond that time point if they still haven't had "full intercourse".
3. Once they did have full intercourse, even though there is no blood and reliable opinions hold that they need not separate, the Rama felt that we should be stringent. He was concerned due to the overwhelming number of Rishonim who felt that indeed they should separate even without any bleeding.
4. In keeping with the general ideas of sexual morality taught by Orthodox Judaism, the Rama understood that this leniency might lead a newlywed couple to engage in all sorts of sexual activity when they are first married. He was concerned about the laxity in the attitude of holiness that this could represent. He therefore added a warning, that although as long as sexual intercourse was not "completed" yet one need not separate from his spouse, be careful not to "play around' with young girls, especially for a young man who wants to maintain a holy lifestyle

The fact that this was general practice in Europe is also documented by Rav Yonatan Eybushitz (1690-1764) in Chiddushei Hilchot Niddah 193:2.  He was also concerned that the reliance on this leniency codified by the Rama could lead to a laxity in the attitude toward sexual activity between the two newlyweds. He felt that it could be immoral and not the point of the leniency of the Rama which was widespread (my own translation):

" (The Rama wrote) And the custom has become to be lenient" .. and due to this widespread custom of leniency (Pashetah Ha'Kulah") and our many sins, it has become widely known (to women that they need not separate as long as they don't have full intercourse) to women that the Groom will have sex with his new bride many times for many days as long as there is no blood on the sheets, and they end up (being guilty of) playing around with young girls, and this is not really considered "incomplete intercourse" because (often they) really are having complete intercourse, ... (Chidushei Hilchot Niddah 193:2)

Several points:

1. The custom to allow for continued contact between husband and wife and not separating until "complete intercourse" was widespread among Ashkenazi Jews.  Widespread was the words of Rabbi Eybushitz, not mine.
2. Rabbi Eybuschitz had two worries regarding this custom, the first worry was that these couples were guilty of "playing around" ("mesachek") which he felt (and the Rama felt as well) was unbecoming of a holy young man (a "Ba'al Nefesh")
3. The second worry was that they may actually be having full intercourse, in which case we should be stringent and make them separate as the Rama stated

This is really important.  The pressure placed upon the couple to "complete intercourse" the first time has become a total obsession among the Halacha observant world.  How incredible it is to learn that only a few hundred years ago, the widespread custom was to allow for the couple to have as much time as they needed to get familiar with each other, to get more comfortable with physical and sexual contact of all sorts, and then when they eventually do have sexual intercourse, they can the count 7 clean days and resume normal sexual activity for the remainder of their lives.  

We have only just begun our halachic analysis, because even this rule of separating after "complete intercourse" will be further analyzed as we progress in this thread. We still have a long way to go.

Before I leave this topic, I would like to point out the "law of unintended consequences".  The "law" refers to the many instances where a legislative body enacts a law which is intended to solve a problem, but in ways that they did not anticipate, the law actually ends up exacerbating the problem instead of solving it.  It is sometimes called the "Cobra Effect" after a famous incident in British Colonial India.  The colonial authorities were concerned about the proliferation of cobras in the populated areas of Delhi, an obvious threat to the health of the population.  So they enacted what seemed like a reasonable law.  The government would pay a bounty for every captured cobra.  In the beginning it seemed to be working, as the local population began hunting cobras and bringing them to the authorities to collect their reward.  It didn't take long for some entrepreneurial Indians to realize that this could be a great way to make money.  They could simply breed cobras in their homes and bring them in for cash.  Ultimately, instead of decreasing the cobra population in Delhi, the cobra population in Delhi exploded due to the amount of cobra breeding going on.

There are many examples of this "law" (see here for some examples). 

The Rama intended on annotating the SA in order to be more lenient on young Jewish couples, and lessen the pressure to have "complete intercourse' right away.  He included a warning that one should still practice modesty in his sexual behavior, but that the new couple may engage in whatever sexual activity they desire prior to "complete intercourse" for as long as they want. However, he created a monster that was completely not intended.

What happened was, that later halachic decisors found a differentiation between "complete" and "incomplete" intercourse.  Now instead of giving the couple the autonomy to have the time they need to get to know each other, there was now a need for the couple to figure out if what they did was indeed "complete".  Since we are generally discussing young and sexually inexperienced men and women who are trying to keep Halacha, they now had to ask their trusted family and friends if indeed what they had was "complete" intercourse.  Suddenly the Moms, Grandmoms, Aunts, sisters, and Rabbis were discussing just how far did the penis go in? At what point did you lose your erection? "did you push all the way in?" "did you ejaculate?" etc.  and you need not have a great imagination to see how ridiculous and demeaning these conversations have become.  This was clearly not what the Rama had in mind. 

There is a lot more to discuss, as I now must analyze much deeper this idea of the Machmirim (the MRs) that after the first intercourse one must separate from his new wife because of the assumption that there was bleeding but it could have been lost and thus not seen.  The discussion is far from over.