Symmetry in Marital Sex
The mitzvah of onah, the mitzvah of marital sex, raises the issue of the symmetry or asymmetry of the halakhically-defined sexual relationship. The Gemara discusses at length the husband’s obligation to have sex with his wife (at regular intervals or when she indicates that she is interested) based on the Biblical obligation of onah. However, while the Gemara takes it for granted that a wife must have sex with her husband (and one who regularly refuses to do so is termed a moredet, a rebellious wife, and can be divorced with cause), it never makes clear from where this obligation is derived. In a brief but pivotal sugya, the Gemara in Nedarim (15b) states that neither husband nor wife can forbid their sexual relations on the other through the use of a neder, a vow, because of their obligations to one another. What is of interest is that the Gemara uses slightly different phrasing to describe their respective obligations: “He is obligated (mishtabed) to her Biblically, as it states, “Her fixed time he may not diminish” and, in her case, simply, “She is obligated (shibudei mi’shubedet) to him.”
Whether the different phrasings reflect a substantive difference in their obligations is a debate between the Rishonim. Rambam states (Laws of Vows 12:9) that the husband is Biblically obligated to have sex with his wife, whereas, in her case, her sexual rights are owned by him. That is, he is entitled to have sex with her not because of any obligation that she has to him, but rather because he has a properly claim on her. In contrast, Rashba (Nedarim 15b) states that husband and wife are equally and reciprocally obligated to one another, not only because of the mitzvah of onah, but first and foremost because the very nature of nissuim is a contract of marriage, a staple of which is being committed to and obligated to one another in regards to marital sex.
What this debate reflects is a fundamental difference in the halakhic understanding of the concept of marriage. Notably, the first mishnah in Kiddushin refers to kiddushin as a kinyan, a purchase, that the man does to (or with) the woman. How literal and how one-sided is this to be understood? Rambam seems to understand it quite literally, that the man takes possession of the woman as property for the purpose of sex, or – to phrase it less harshly – acquires her sexual rights. Rav Naftali Tzvi Yehudah Berlin (Berlin, 19th century) in his responsa Meishiv Davar (4:35) emphatically embraces this definition, and states that it is parallel to the acquisition of a Hebrew slave. In neither case is the other person owned as property outright, but in both cases – he states – they are owned (or one has rights in them) for a specific purpose: Hebrew slaves for their labor and a wife for the purpose of sex. He then draws the obvious conclusion, that according to this the husband is entitled to have sex whenever he wants, and if the wife is not interested she can be forced (presumably in court, not physically) to acquiesce to his demands. According to this approach, that the wife is considered the husband’s sexual property, marital rape would not be fundamentally forbidden and, indeed, while the Gemara states that a husband cannot have sex with his wife against her will, Rambam quotes this passage in his Hilkhot Middot (5:4), clearly limiting it to the context of proper behavior and not of strictly forbidden actions (he quotes it in Laws of Marriage 15:17 in a similar context).
While we are justifiably outraged about the idea of marital rape not being forbidden, it is important to realize that it was not forbidden in the secular world for 1,500 years after the Talmud was written. Indeed, it only began to be outlawed in some states in the US in 1975, and it was not until 1993 that it became forbidden in all 50 states. Rav Berlin’s understanding of the wife as sexual property is thus far from being an exception to other systems of thought. Rather, it was the same underlying concept of the wife as sexual property of the husband throughout countless cultures and over hundreds of years that made the legality of marital rape possible, and that only in recent years has begun to shift.
It is thus significant that Rashba’s opposite approach – that husband and wife are equally and reciprocally obligated to one another – was adopted and embraced by a significant number of later poskim already hundreds of years ago. Significantly, Hatam Sofer (Hungary, 19th century), in his responsa (7:25) states that the concept of kinyan in a marriage is bilateral, not unilateral, and that it refers to the parallel and reciprocal obligations that the husband and wife undertake to one another – the husband becomes obligated to provide her clothing and food, and to have regular marital sex with her, and she is obligated to have regular sex with him. There is no asymmetry insofar as their obligations towards martial sex are concerned. Similarly, Mabit (R. Moshe of Trani, Tzefat 16th century) in his Kiryat Sefer (Ishut chapter 15) and his son Maharit (Responsa 1:5) state that a woman can freely choose to refuse to have sex with her husband. In the words of Maharit, “she is not like one taken captive by the sword that she must have sex with him at all times.”
Interestingly, Rav Moshe Feinstein (Orah Hayim 4:75) accepts that in principle there is a difference between husband and wife – he has an obligation towards her, whereas regarding her, there is no obligation, but it is rather that he has rights to her. Nevertheless, in practice Rav Moshe bridges the difference. We already discussed last week that the husband is obligated whenever she indicates her interest. Similarly, according to Rav Moshe, the husband has rights to have sex with her, not on demand, but when he is “in pain,” i.e., has strong sexual needs. The practical difference between these two scenarios may be very minimal, although a difference of nuance certainly still exists.
In the end, contemporary halakha rejects the “sexual property” model and the idea of sex on demand. The Rashba’s approach is the one that has been, and must be, adopted. While a husband and wife may at times have different sexual needs, it should never be understood that they have different degrees of claims on each other. We fully follow the Rashba’s assertion that “they have equally obligated themselves to one another for this matter,” and any difference of needs and desires must be worked out and negotiated between the two of them to ensure the greatest mutual happiness and satisfaction.