QUESTION

What is the origin of our current expectation of extra marital shemirat negiah (abstaining from touch)? Is this truly a halakhic obligation?

ANSWER

Thank you for the question. The first thing to note is that not all forms of touch are the same. There is casual, non-sexual touch; there is intimate, and yet non-sexual touch; and there is sexual touch. Even within sexual touch, there is touch that is very proximate to the act of intercourse, and touch that, while sexual, is more distant from the act of intercourse. Halakha in general does not lump all acts along a spectrum into the same category, and assigns different weight to qualitatively different acts, and that is true here as well.

There is no question that if a man and woman are forbidden to have sex with one another – for example, cases on incest, adultery, or when the women is in niddah – then sexual touch is likewise forbidden. For Rambam, this is a biblical prohibition based on the verse לא תקרבו לגלות ערוה, “you shall not draw near to uncover nakedness” – which for him includes any “drawing near” – any act that is close to the sexual act. While a full biblical prohibition according to him (he even states that one would receive lashes for transgressing), it is nevertheless not in the same category as the act of intercourse itself (one would not have to bring a korban or receive one of the more severe punishments, such as kareit). Ramban disagrees, and states that while such acts are forbidden according to the Rabbis, there is no biblical prohibition in such cases. The verse, according to him, is referring only to intercourse. Nevertheless, he concludes his discussion by stating ואפשר דהוה כעין חצי שיעור, that it is possible that such actions are forbidden biblically, as a type of a “half-measure.” That is, the same way that one cannot, according to the Torah, even eat less than an olive’s amount of pork – even though they would not receive lashes, since the amount is too small – one can also not, even biblically, do an act which is a qualitative “half-amount” of the act of intercourse. He is however not certain that this concept of “half-amounts” is biblically relevant here.

What constitute sexual touch to be biblically forbidden according to Rambam (and maybe Ramban) is not clear, and in different places (Sefer HaMitzvot, the list of mitzvot before Mishnah Torah, Mishnah Torah itself), Rambam describes broader and narrower scopes. (There is even what seems to be the understanding of the Beit Yosef in one place that even casual touch is biblically forbidden, but this is fully rejected by Shakh and later poskim). A number of poskim state that any hugging or kissing would be included, but in a recent teshuva, Rav Yehudah Herzl Henkin argues convincingly, that only truly erotic and sexual touch is included (let’s not forget that many Sephardi rabbis receive kisses on the hand from women, etc.).

It should be restated that any sexual touch, even if not at the level of the Biblical prohibition, is clearly forbidden rabbinically.

When it comes to non-sexual, casual touch there is also a debate amongst the poskim. The Gemara makes it clear that such touch is problematic because it can lead to illicit sexual thoughts (in men). A number of poskim are thus of the opinion that this is rabbinically forbidden. Nevertheless, the Gemara relates that a number of Amoraim would have physical contact with women and, when challenged, responded that such touch did not cause them to have sexual thoughts. Based on this, some Rishonim (Ramban, Ritva, and others) state that if there is no concern for sexual thoughts, there is not even a rabbinic prohibition. Some still state that the cases with these rabbis are exceptional, and we must as a rule, barring special exceptions, be concerned that there will or might be sexual thoughts.

Two practical cases should be addressed:

1. A man and a woman shaking hands in a business setting. Some poskim assume that this is forbidden, end of story. Others (particularly in the Modern Orthodox community) say it is permissible by arguing that while it is a rabbinic prohibition, it can be overridden for the sake of kavod haberiot – human dignity (for many this means waiting until the other person sticks out his/her hand, and to not take it would be a kavod haberiot problem). Rabbi Yehudah Herzl Henkin, in contrast, and this is also my view, would say that in such a context there is no concern, as a rule, for sexual thoughts, and it is not forbidden at all. That being said, if one of the parties feels an attraction to the other person and feels that s/he will/might get a sexual charge from the contact, it would be forbidden.
2. Husband holding his wife’s hand during childbirth (and thus when she is defined as being in niddah). Some poskim say that since the wife specifically wants to hold her husband’s (and not someone else’s) hand, this defines the touch as sexual, and thus it is abiblical problem and never allowed. I disagree, and think that there is a huge difference between intimate, comforting touch and sexual touch. I view this as non-sexual touch, and thus as a rabbinic prohibition (since this is between husband and wife when the woman is in niddah, it is a clear rabbinic prohibition), and thus there is more room to be lenient.

For practical pesak, speak to your local posek(et)!