Parshat Kedoshim: Shifha Harufa Revisited.
It is known that in some cases the various interpretations of Torah that existed in the times of Tanach did not get preserved as one of the opinions of either Talmud<![if !supportFootnotes]><![endif]>. One such possible example may be the full implication of the law of Shifha Harufa (Vayikra 19:2). The Torah discusses some unusual case when under certain circumstances relations with a servant woman are punishable by Korban Asham. The Talmud offers three interpretations of the exact case we are dealing with<![if !supportFootnotes]><![endif]>. According to Halacha, we are dealing with a non-Jewish slave-woman (shifha Canaanit) who was owned by two partners, one of whom freed her. She is married to a Jewish slave-man<![if !supportFootnotes]><![endif]>. If someone now has relations with this woman he needs to bring a “guilt offering”<![if !supportFootnotes]><![endif]>. According to Hazal the woman herself gets flogged.
Needless to say this interpretation implies a very rare occurrence<![if !supportFootnotes]><![endif]>. Amazingly we find in the book of Ezra (10:19) that many men who sinned with non-Jewish women all brought Korban Asham. Most commentators explain that this was “Horaat Shaa”<![if !supportFootnotes]><![endif]>. However the Talmud sees them as all having had relations with shifha harufas (Kritot 11). This interpretation presents its own difficulties besides that it does not seem to fit the context, there did not seem to exist Jewish slaves at the time that these shifhas could have been engaged to<![if !supportFootnotes]><![endif]>. However, if this was “horaat shaa”, it’s hard to imagine that the book of Ezra did not mention some hint of this<![if !supportFootnotes]><![endif]>. It seems the simplest interpretation is that the relations with non-Jewish woman was punishable by Korban Asham.
Let’s examine our verses: “If a man lies carnally with a slave woman who is married to another man, and she has not been redeemed or given her freedom. [Her not fully married status] must be verified and since she has not been freed, they should not be put to death. [He] must bring his guilt offering to G-d<![if !supportFootnotes]><![endif]>”. The Torah seems to emphasize that since this woman is not fully free, and therefore she can’t be fully married, and relations with her are not punishable by death. The strange word “bikoret” according to many commentators means that we need to indeed verify that she is not a married woman and that’s the reason they are not considered to have committed adultery<![if !supportFootnotes]><![endif]>. It would seem possible that if one had relations with a slave-woman who was not freed at all or with a gentile woman, the Asham (guilt) offering is also to be brought. The emphasis of the Torah is that even if the woman is half freed and half married, there is no death penalty. It’s possible that the Torah is using an extreme case, just as the verse above: “Don’t curse the deaf”, prohibits cursing anyone, including even deaf people, who can’t hear anyway. The Torah may require Korban Asham in all cases of women with whom marriage can’t happen (kidushin lo topeset): slave-women or non-Jewish women, but the Torah is emphasizing that there is no death penalty even when the woman was half free and half married, since she can’t be fully married<![if !supportFootnotes]><![endif]>.
<![if !supportFootnotes]><![endif]> Here are a few examples of midrashim and targumim that mention opinions completely different from Talmud Babli and Yerushalmi:
- “Targum Yonatan” (Devarim 22:5) understands the prohibition to wear clothes of opposite gender to include the prohibition for a woman to put on tefillin (in contradiction to Talmud Bavli, Eiruvin 96a);
“Targum Yonatan” (Shemot 21:7, 22:2) considers that the seven years of a slave are counted according to shmita and not according to his date of sale like our Gemorah.
“Targum Yonatan” (Devarim 22:26): a raped woman becomes forbidden to her husband in contradiction to our Gemorah.
- Yalkut Shimoni (943): Mezuzot need to be affixed to both door posts.
- Targum Onkelos (Shemot 22:30) apparently understands “treifa” to mean meat that was ripped by a wild animal.
- Targum Neofiti (Shemot 22:4) understands “beiro” to be damage from fire, not as classically understood by the Talmud to be damage by “tooth” (see “Between the Yeshiva World and Modern Orthodoxy The Life and Works of Rabbi Jehiel Jacob Weinberg”).
In theory there could be many other interpretations that did not get preserved, and any interpretation of the Torah could have been a legitimate ancient opinion. A good example is from Parshat Emor (21:5): the redundancy in the prohibition for kohanim to “not have a bald spots shaved on their head, not to shave their beards, and not to cut slashes in their body”. The obvious difficulty is that these prohibitions are mentioned for all Jews and according to the Talmud in these laws there is no difference between a kohen and any other Jew. Interestingly, Ibn Ezra explains that the prohibition of shaving for a regular Jew may have only applied in the time of mourning. In that case we could explain that when the Torah specifically mentions these three prohibitions in regard to kohanim, it means to forbid it to them even when they are not mourning (as they can’t serve in the Temple when they are shaven, bold or bruised). This may also explain why Yirmiyahu (41:5) mentions men with shaved beards after the Temple was destroyed. The prohibition to non-priests only applied when they were mourning for dead.
<![if !supportFootnotes]><![endif]> It’s quite unusual that there is such major divergence not just in regards to the details of the law but even on the more basic question: who is this woman.
<![if !supportFootnotes]><![endif]> This is the only man that can marry both a free woman and a gentile slave-woman, and so he can marry someone who is half free. According to other interpretations in Hazal, she is in fact not freed at all, but lives like a wife with a specific Jewish or non-Jewish slave. Ibn Ezra offers a possibility that we are dealing with a regular Jewish daughter who was sold as a maid, and does not become fully married after the mitzvah of yiud (see also Rambam, Melachim 4:4).
<![if !supportFootnotes]><![endif]> This is the unique case where the sacrifice is brought for deliberate relations, usually deliberate relations with forbidden women are punishable by death or Karet, and only if it’s done unintentionally is a sacrifice brought.
<![if !supportFootnotes]><![endif]> In later times the Hazal would sometimes force the second master to free such a woman because when she is half free it’s quite difficult for her to marry legally and therefore she may become a stumbling block for men (Gitin 38b).
<![if !supportFootnotes]><![endif]> A special case normally not practiced in Halaha, presumably due to Ezra being a prophet he was able to issue such a temporary ruling.
<![if !supportFootnotes]><![endif]> See Tosafot Gitin 36b and Ramban there.
<![if !supportFootnotes]><![endif]> For example, Ezra said to them: “For your great sin you should bring Asham …”
<![if !supportFootnotes]><![endif]> Note that our verse follows the prohibition of shatnez and other forbidden mixture, seemingly implying that relations with a shifha is also a type of “forbidden mixture”.
<![if !supportFootnotes]><![endif]> According to Hazal “bikoret” implies that she gets flogged.
<![if !supportFootnotes]><![endif]> Note that according to some opinions Asham Taluy could be brought at any time as a voluntary offering, even when there was no specific safek avera. Since there is no difference in the performance of an Asham Taluy and regular Asham, it’s quite possible that in the times of Ezra they were permitted to bring Korban Asham even when they did not have a clear proof that the Torah requires one. An interesting detail that applies only to Shifha Harufa is that to be punishable relations with her have to be with sperm, as is learned from our verse (“shihvat zera”, Kritot ibid). The reason seems to be that the main problem is not as much the relations itself but the offspring it produces. Interestingly, according to some targumim (see also Tosafot Yom Tov, Megila 4:9) the prohibition to have relations with a non-Jewish woman is learned from the verse: “Don’t give your zera (literally sperm) to Molech (idol)” i.e. don’t produce idolatrous children from non-Jewish woman. As in case with shifha harufa the specific emphasis is on “zera”.