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.

Beit Yosef Decides According to the Stringent Ones

In our last post, we presented the position of the "maikilim" or the lenient ones. For the sake of this series, the MK's will refer to those who hold that the only time a person must separate from his new spouse after the first intercourse is IF she has bleeding.  The bottom line of this opinion is as follows.  The gemara in Niddah 64b-65b is discussing how to treat hymenal bleeding halachically.  According to the letter of the law, as long as we can attribute the origin of the blood to the hymen and not the uterus, the woman would not be considered a niddah. The stringency of Rav and Shmuel that suspected that any blood might have uterine blood as well, was referring to cases where there actually was bleeding, however, if there is no bleeding, there is no reason to separate the new couple. 

I want to describe in some more detail now the opinion of the "machmirim" the stringent ones.  These are the Poskim who have determined that one must separate from his new spouse after the first intercourse even though they do not see any bleeding at all.

It is crucial to understand this position in order to continue, and I will begin with the following exchange recorded in the Gemara:

It was stated that the amora’im engaged in a dispute: If a husband engaged in intercourse with a virgin and did not find blood, and he went back within the first four nights and again engaged in intercourse with her and this time he found blood, Rabbi Ḥanina says: The wife is ritually impure, as this is menstruation blood. And Rabbi Asi says: She is ritually pure, as it is blood from the wound resulting from the act of intercourse. Rabbi Ḥanina says: She is ritually impure, as if it is so that it is blood from her hymen, i.e., the blood of her virginity, it would have come at the outset, after the first time they engaged in intercourse. And Rabbi Asi said: She is ritually pure, as perhaps it happened for him that he engaged in intercourse like Shmuel described. As Shmuel said: I can engage in intercourse several times without the appearance of blood. In other words, I can engage in intercourse with a virgin while leaving her hymen intact. And the other Sage, Rabbi Ḥanina, does not allow for that possibility, since he maintains that Shmuel is different, as his strength was great. Shmuel was particularly skilled at this, while others cannot accomplish this. (Niddah 64b)

There are several points that are evident from this gemara:

1. The assumption is clear that one is not prohibited to remain sexually active with his new spouse when there is no bleeding at all with the first intercourse.  Thius is undisputed in ANY of the commentaries, and it crystal clear in the passage that we just quoted.  This passage was written AFTER the decree of Rav and Shmuel, as both Rav and Shmuel lived close to a hundred years prior to Rabbi Ami and Rabbi Asi.
2. It is clear that the only concern with the second intercourse was because there was bleeding, and the question revolved whether or not it is possible that the hymen was still intact and the blood was hymenal in origin, or was it impossible to have intercourse without breaking the hymen once, and then break the hymen again.  The conclusion was that if their is going to be hymenal bleeding, we must assume that it will happen every time, as not everyone is an "expert" like Samuel was in intercourse without breaking the hymen.
3. But what if there is no bleeding at all? Not with the first or the second or the third time?  It is obvious from the Gemara that under such circumstances she would NEVER be prohibited to her husband.  Maybe because she simply does not have a hymen that will bleed, or for some other reason.  This is a crucial point.   

Despite what we have just seen, the majority of the Poskim say, as we saw quoted in the HM in our last post, that one must separate from his wife even if there is no bleeding with the first intercourse.  I can quote here the Rashba (Rabbi Shlomo ben Avraham ibn Aderet 1235-1310), the Ritva (Rabbi Yom Tov ben Avraham Asevili - 1260-1320), Ramban (Rabbi Moshe ben Nachman also known as Nachmanides 1194 - 1270) and many others.  However, I am going to choose to quote the Rosh (rabbi Asher ben Yechiel 1259 - 1327) for several reasons. For starters, the Rosh was a little later than the previous Rishonim and thus he synthesizes the opinions of the MRs in a very coherent and clear manner.  So it is our best way to get an understanding of the thought process that led to this stringency.  In addition, the Rosh famously combined the wisdom and Halachic traditions of both the Ashkenazic and the Sephardic Poskim.  Thirdly, the influence of the Rosh on the future development of Halacha, through his son's (Rabbi Jacob ben Asher 1269-1343) work in the Arba'ah Turim. The Beit Yosef (Rabbi Yosef Karo 1488-1575) and ultimately the Shulchan Aruch were directly based on the foundation laid out by the Rosh.

...Rav and Shmuel together stated that the law is that he has the first intercourse of the Mitzvah and then he separates (from his spouse) ....(The Rosh continues to quote the Talmud that establishes the decree of Rav and Shmuel as normative) ... and it seems to me that the reason for this decree is not because we are concerned that maybe there is blood from the uterus mixed in with the blood from the hymen (even though I mentioned to you before that it seems from the Yerushalmi that this is the reason for this decree.  The Rosh is disagreeing with this reasoning) For why should we be concerned (especially) by a young girl who has never menstruated that there is menstrual blood mixed in? and even by an adult woman who has menstruated, Haven't we stated (further in chapter 3 of Niddah) that if there is a woman who bleeds during intercourse, even if it occurs regularly, that if there is a wound we can assume that the wound is the origin of the bleeding, and what would is more obvious than tis (the wound of the hymenal tearing) and clearly this is hymenal blood and not uterine blood. rather, the reason for this stringency is because the first intercourse is something which all people engage in (even inexperienced and uneducated people) and most people cannot differentiate between women who have had periods before, and women who have not, and women who are adults and women who are not, Furthermore, a new groom is very excited (and therefore presumably will not differentiate between which blood is OK and which is not) So therefore the rabbis agreed to treat this blood as the most severe of all the severities (at this point the Rosh is still talking only about cases in which there was actual bleeding) ...(I am skipping here where the Rosh discusses whether or not the husband needs to wait until he loses his erection before he "comes out" and separates from his wife) ... and since they were stringent with this first intercourse to consider her like a woman who has menstruated, therefore even if they had intercourse and did not find any bleeding since most women do have bleeding from their hymen (at first intercourse) we suspect that maybe there really was a tiny drop of blood like (the size of) a mustard seed and it just got lost, or maybe it got covered up in the semen. but we do not suspect that maybe he was able to "tilt" (in such a way that the hymen did not tear as "tilting' is not common as we see in the Talmud (here he brings the Talmud we just quoted)(Rosh Perek 2 Niddah)

It is now very clear that the MRs are making several assumptions for very clear reasons.

1. The reason for the separation after the first intercourse is because the Rishonim assumed that "most women do have bleeding from their hymen (at first intercourse)" Those are his words, not mine.
2.  The decree of Rav and Shmuel, according to everyone, was regarding actual blood from the first intercourse.  This is clear from the Rosh, and clear from the Gemara itself in the case of Rabbi Ammi and Rabbi Assi which we just quoted before.  Remember that the Rosh began by explaining the reason for the decree of Rav and Shmuel. He didn't understand why she should be considered a Niddah at all if the blood was clearly Dam Makkah (blood of a wound). Clearly the Rosh understood that Rav and Shmuel were discussing a case of actual bleeding!  The Rosh then explained that the laws regarding when we can assume it is hymenal in origin and when we must be concerned that it could be menstrual in origin are too complicated for the general public, especially for the "excited new husband" so they just decided to be stringent.
3. However, the Rosh THEN established that it was the decision of the later Poskim, like the Rosh himself, following in the footsteps of the Rashba, Ritva, Ramban etc..that because they assumed that most women bleed at first intercourse from their hymen tearing, that we should assume that every woman, even when blood is not found, should be considered a NIddah as well.

Let me be extremely clear.  The Rambam and the Rif and other earlier poskim said absolutely nothing about this new decree regarding a woman who has not seen blood separating from his wife.  The Rambam clearly stated, as we showed in the last post that this entire discussion is only relevant in cases where there actually was bleeding with the first intercourse.  Furthermore, this new stringency was not widely accepted by the rabbis of the time or the general population, as we see that the Ra'avad felt that we should be lenient, and that the Hagahot maimuniyot (HM) quoted rabbis at the time that still relied upon the "lenient" opinions. 

It is this opinion of the Rosh that eventually became codified into law by the Shulchan Aruch. First, the Arba'ah Turim in Yoreh Deah 193 summarizes his father the Rosh that we just quoted as law. Interestingly, unlike his usual pattern, the Tur does not quote the Rambam at all. The Beit Yosef, also in Yoreh Deah 193, brings a lengthy discussion of the opinions of the Rishonim. I simply cannot quote him here as it is quite lengthy. I do want to point out that the Beit Yosef (BY) begins with a lengthy discussion of the parameters of when hymenal bleeding is considered Niddah blood and when it is not, and whether or not it matters if she has already had a period or not had a period (Ra'atah or Lo Ra'atah).  This includes a really long discussion of the Rambam and the Rif who seem to feel that these differences apply nowadays despite the decree of Rav and Shmuel.  In the end, because the other authorities such as the Rosh we quoted above feel that all of this is too complicated for the average person, they interpret that the very reason for the decree of Rav and Shmuel was in order to avoid the need for some complicated and nuanced differentiations.  So the BY supports the Rosh in this as the explanation for Rav and Shmuel. 

However, after establishing that in all circumstances we are stringent like Rav and Shmuel and consider hymenal bleeding to be prohibited blood, the BY (YD 193:3,4 then deals with the question of what happens if they have the first intercourse and their is no bleeding.  Here he quotes the HM and the Ra'avad and the lenient opinions, but then states that since the majority of Poskim have been stringent, we must follow the stringent opinion.  I will emphasize here, that repeatedly throughout his discussion, both in his own words and in the quotes that the BY brings from other authorities, the reason for the stringency is because they assume that most women will have hymenal bleeding at the time of their first intercourse.  This point is absolutely crucial for the remainder of our discussion in this thread.

Needless to say, when the BY codified this law in the Shulchan Aruch YD 193, he codifies into law that regardless of whether or not there is bleeding, one must separate from his wife after the first intercourse.

This is not the end, the lenient opinions of the MKs are going to pop up again, though the authority of the SA have now dealt these opinions a severe blow. 

In our next post, we will trace discuss the Ramah and how this influenced the actual experience of our young brides and grooms today. Hopefully, we will be able after that to present a new Halachic paradigm, based on rationalist Halachic principles.

Hymenal Bleeding - Does it Make a Woman a Niddah?

The law that a woman who is menstruating is prohibited from intercourse with her husband is a clear Torah prohibition.

Do not come near a woman during her (menstrual) period of uncleanness to uncover her nakedness. (Leviticus 18:19)

In other verses we learn that this "uncleanness" refers to the blood of her period that comes from the uterus.

If a man lies with a woman in her infirmity and uncovers her nakedness, he has laid bare her flow and she has exposed the source of her blood flow; both of them shall be cut off from among their people. (Leviticus 20:18)

Those words "the source of her blood flow" is understood by the Rabbis to mean that the only blood that makes a woman prohibited is blood that comes from the "Makor" or the "source" which means the uterus.  This is repeated in many places, for example:

"if she will have": from the pronouncement on. "a flow": I might think even if she flows from any place she is tamei; it is, therefore, written (Vayikra 20:18) "and she has revealed the source of her blood." This teaches us about (her) blood that (it causes uncleanliness) only if it comes from the source (the uterus) (Sifra, Metzorah, Parsha 4:2)

From here the rule is established that only uterine blood causes a woman to have the status of a niddah and not blood from any other source such as a vaginal wound or growth or injury of any sort.  This is called a "dam makkah" or the "blood of a wound".

Hymenal bleeding is clearly established by the Talmud in the category of blood from a wound that does not render a woman a Niddah. the Mishna in Niddah states:

In the case of a young girl whose time to see a menstrual flow, i.e., the age of puberty, has not yet arrived, and she married and engaged in intercourse and her hymen was torn, Beit Shammai say: The Sages give her four nights after intercourse during which the blood is attributed to the torn hymen and she remains ritually pure. Thereafter, any blood is assumed to be menstrual blood and renders her impure. And Beit Hillel say: The blood is attributed to the torn hymen until the wound heals. ...In the case of a young woman who saw menstrual blood before marriage while she was still in her father’s house, Beit Shammai say: The Sages give her permission to engage only in relations that consummate a marriage, which are a mitzva, after which she is ritually impure due to the blood. And Beit Hillel say: The husband and wife may engage even in several acts of intercourse, as any blood seen throughout the entire night is attributed to the torn hymen. (Mishna Niddah 64b)

This Mishna was written in a time that child marriage was considered acceptable.  This would be abhorrent in our time and prohibited by all modern rabbinical authorities.  For the sake of our discussion today, I will ask you to painfully look past the child marriage issue here and focus on the issue related to our current discussion.  The Mishna clearly establishes that hymenal bleeding is considered blood of a wound and does not render a woman a niddah. Even a woman who has already started menstruating prior to marriage, Beit Hillel says clearly that she is not considered a niddah from the first intercourse, as one can assume that her bleeding was from the hymen.
However, on the next page, the Talmud records a rabbinic decree:

Although the Mishnah provides a certain period of time for both a minor and a young woman during which they may attribute any blood to the torn hymen, nevertheless Rav and Shmuel both say that the halakha is that the groom engages in relations that consummate a marriage, which are a mitzva, and then he separates from his wife. (Talmud Niddah 65b)

From the context of the conversation, it seems clear that Rav and Shmuel are discussing the same case that the gemara had been discussing the entire time.  That is, when a new husband has intercourse with his virgin wife for the first time, and there is bleeding, he can complete the act, and then he should separate from her until she counts 7 clean days and immerses in the mikveh. This is an added stringency to the Mishna in which Beit Hillel permitted further intercourse despite the bleeding until the "wound" of the torn hymen is healed.  After that, he may continue having intercourse as normal, unless she sees blood again which can no longer be attributed to the torn hymen and must be assumed to be menstrual blood.  The reason for this added stringency is presumably because we are concerned that at least some of this blood is coming from a uterine source (The Talmud Yerushalmi in Berakhot 19a seems to indicate that this is the concern). This is indeed the way this Halacha is clearly recorded in the Rambam (translations are my own): issurei biah 5:18-19.

The blood of the hymen is pure, and it is not considered menstrual blood or blood of zivah, as it does not come from the uterus. So, what is the law regarding hymenal bleeding for a virgin? ... (I am skipping here the laws of marriage to a young girl who has not yet menstruated) ... If she has begun normal menstruation while still living in her father's house, and then she gets married, he shall only have the first intercourse with her and then separate from her (due to the bleeding from the first intercourse) and we assume that the hymenal bleeding from the first intercourse is (also) the beginning of her period.... (Mishna Torah Hilchot Issurei Biah 5:18-19) 

It seems quite clear from the language of the Rambam, that this rule of Rav and Shmuel is referring to what one must do IF there is bleeding from the first intercourse.  As the Rambam stated "we assume that the hymenal bleeding from the first intercourse is also ..."   In other words, according to Beit Hillel we should allow for continued intercourse despite hymenal bleeding because we can assume that the blood is hymenal in origin and not menstrual.  Nonetheless, Rav and Shmuel added a stringency that we consider this blood to be menstrual in origin, even though we otherwise could've assumed that the bleeding was from the torn hymen.

The Rambam is extremely clear about this, and repeats it again:

...and so is the law regarding the blood of the hymen, that even if ... she never has had a period before, he has the first intercourse and then separates from her (due to the bleeding from the first intercourse) and as long as she continues to have bleeding due to the wound (of the hymenal tearing) she is considered "tameh" ...  (Mishna Torah Hilchot Issurei Biah 11:8) 

Again, it is clear from the Rambam that he understood that the reason he must separate from her, is because of the blood from the hymenal tearing.  If there is no blood, then there would be no reason to separate from her. 

Let me mention also the Rif (Rabbi Yitzchak Alfasi), who discusses these laws in Shavuot Chapter two.  There is no mention of the need to separate if there is no bleeding.

The Hagahot Maimuniot (HM) (Rabbi Meir HaKohen of Rothenburg - end of 13th century) annotates the Rambam in chapter 11 which we just quoted and says:

The Raavad writes that it makes no difference if he sees the blood or otherwise (as we suspect there was blood anyway), however there is one who holds that this law applies only if she has bleeding, and it seems that one should be lenient (and assume that if they don't see bleeding she need not separate from her husband) However, I found in Rashi (that he is) stringent, and similarly in the Rokeach and in the Ramban, as he (the Ramban) writes, "Even if she does not see any bleeding, we don't think that maybe that he "tilted" (had intercourse in such a way that did not cause bleeding due to trauma to the hymen) and if so her hymen is still intact (and therefore she is still permitted to him) because it is not common to "tilt" in this way and therefore we suspect that there maybe was some (small amount of) blood and it just got lost, and therefore he should finish this first intercourse and then separate etc." and my teacher our rabbi also ruled that we should be stringent (even when there is no blood) and even those rabbis who are lenient (and assume that when there is no blood she is still permitted) require that she check herself with a cloth (to make sure there was no blood) (HM note 3)

There are a few points I would like to make clear from the words of the HM:

1. That it is clear that during the time of the HM there were Rabbis who felt that they should separate after the first intercourse regardless of whether or not there is bleeding, and there were Rabbis who felt that she should check herself and if there is no blood, she is OK to remain with her husband normally
2. It is clear that everyone understood that the Gemara meant that they must separate due to the actual blood of hymenal tearing. The Ramban and others however were stringent because they assumed that there would always be blood from hymenal tearing at the first intercourse.  The only way they thought there could not be bleeding, is if a person "tilted" in such a way that did not tear the hymen.  This they felt was unusual for most people, and therefore they felt that even if they didn't see blood, it must've been there, but they missed it. 
3. That the Ra'avad felt that we should be lenient in this matter, while many other authorities felt that we should be stringent even when the blood is not found

So, the "universal" Halachic practice of automatically separating from one's newlywed after the first intercourse was not so universal after all, at least until the time of the HM. In fact, it was only enacted because the rishonim that were stringent assumed that every virgin has a hymen, and that with the first intercourse the hymen would tear, and that this would cause bleeding. 

In our next post, we will follow this Halacha as it made its way into the Shulchan Aruch, and how it became standard practice among Halacha observant Jewry.  We will soon see how the lenient opinions we just reviewed became no longer an accepted norm. We are also going to explore in more depth the opinions of the "machmirim" (the stringent ones).

The First Time

After my discussion of the issue of male masturbation a few weeks ago, I have been inundated with requests to discuss issues related to sexuality in the Orthodox world. I wanted to move on to other topics, but apparently there is a huge need to discuss these topics, so this blog series is a response to that need.  I recently listened to this podcast here which was a Zoom panel discussion regarding many sexual problems that plague the Orthodox community.  The panel was inspired by the Netflix series "Unorthodox".  Rabbi Scott Kahn and Talli Rosenbaum of the Intimate Judaism blog hosted several experts, all of whom were incredibly qualified and articulate and had so many important things to say.  I was blown away by the amount of material they covered, and I wasn't sure where to start.   

I asked myself, "What role would my blog have in helping to tackle this issue?" The answer was obvious.  The panelists were all mental health professionals (with the exception of Rabbi Kahn) who treat patients from the Orthodox communities that need help navigating issues related to sexual intimacy.  Every single one of the panelists were committed to Halacha, but they all noted that many of the problems they deal with are a result of the Halachic parameters that are brought into the marriage from day one.  The origins of these Halachic parameters are complex, and the way they are taught and understood are complex as well.  Unfortunately, for various reasons, these have resulted in certain dysfunctions and difficulties that these therapists had to struggle with as they treated their patients.  I urge you to listen to the podcast before you continue reading this blog.

I share the desire to follow Halacha.  However,  I have argued before, and will continue to argue that a rationalist approach to these Halakhot is the only way to find real solutions to these problems. We need to be intellectually honest about these Halakhot so that we can stay true to the tenets of Orthodox Judaism while finding real solutions.

Repeatedly, the panelists discussed the issue of the first intercourse between a new husband and wife.  The pressure to "get it done" is immense, and it has many negative effects on the marriage.  I refer you to the podcast to understand why this is such a big problem. They are therapists and explain very clearly why this is such a problem. My place is to explain the Halachic origins of this issue, and how a rationalistic analysis may be able to "change the Halachic paradigm".  I have done this on this blog for the issues of male masturbation, treating gentiles on shabbat, organ donations, and abortion.  I will now do this for these issues as well. So, let us trace the laws of "the first intercourse" and see how they became what they are today, and decide if it does indeed need to be that way. Maybe a new analysis can help solve this dilemma.

First, an all too brief summary of the Halacha that is at the heart of the issue. There is a biblical law against a husband and wife having sexual intercourse while she is menstruating.  In an "ideal" case, a new bride and groom have not had sexual intercourse (with anyone) prior to their wedding.  When a woman has sex for the first time, there is sometimes a small amount of bleeding due to the tearing of the hymen.  The law is that we consider this blood to be menstrual blood. Thus, after the first intercourse the bride immediately becomes a niddah and is prohibited to her husband until she counts seven "clean" days and goes to the mikvah.  Only after that can the couple begin a "normal' intimate relationship where every time they have intercourse she doesn't automatically become a niddah again.  

Therefore, you can imagine the pressure to "get it over with" for the first time. Obviously, things are much more complicated.  We are going to take a journey down this road in the upcoming series of posts and explain where all this comes from and answer all your questions.

Before we even start our analysis, I need to dispel one major misconception.  Some people think that a marriage is not fully "consummated" until there is an act of intercourse between the newlyweds.  This is completely not true.  The wedding ceremony itself is all that is necessary for a marriage to be a legal and Halachic marriage. This ceremony includes the exchange of an item of value (typically a ring) and the "chuppah" ceremony which includes the "Yichud" (where the couple spends some time alone).  Even were a couple to never have sexual intercourse, they would still be fully married.   

Now we can begin our journey.

Here are some of the questions we will tackle during this new series of posts.

1.     Why is the hymenal bleeding considered like Niddah blood (clearly it is not menstrual blood)? What is the origin of this idea?

2.     why is she forbidden to the husband even if there is no bleeding with the first intercourse? When and why did this become "normative"?

3.     Does the new couple really have to have sex right away, why can't they wait a little until they are more comfortable with each other?

4.     Can the new couple engage in other sexual activity that doesn't include vaginal intercourse in order to delay the niddah prohibition?  If not, why not?

5.     Is it possible that entirely new halachic paradigm, consistent with halachic sources might be a reasonable alternative?

I hope you enjoy this new topic.