Defining the Prohibition of Yichud

 

Translated and adapted by Rav Eliezer Kwass

 

 

This article discusses theoretical aspects of a very sensitive halakhic issue.  For direction in practical halakha, please refer to authoritative practical halakhic sources.

 

Background Information

 

There is a biblical prohibition against yichud (seclusion) between a man and a woman who is either married to another or one of the arayot (forbidden relationships).  The Rambam's opinion is that yichud is prohibited "mi-pi ha-kabala" (literally, from tradition).  Commentators argue about whether he holds that the core of the prohibition is biblical or not.  [See the Beit Yosef Even Ha-Ezer 22 and the Tzitz Eliezer, Part 6, 40:1.]  Yichud with an unmarried woman is a rabbinic prohibition, a decree instituted by King David and his court.  There is a difference of opinion about whether yichud with an unmarried woman who is a nidda is biblical or rabbinic.

 

DEFINING YICHUD

 

     This discussion will focus on another question: how the prohibition is formulated.  Does yichud prohibit: 1) being in a place where sin is likely, or 2) being in a situation that is objectively defined as seclusion?  It is clear, according to both sides of the question, that the REASON behind the prohibition is the likelihood of sin.  Our question is, did the sages rigidly connect the definition of yichud to this likelihood or is the definition of yichud determined independently?

 

     There seems to be a simple answer.  An objective definition of yichud would ostensibly only include one man and one woman.  Yet, the gemara (Kiddushin 80-82) rules that while it is prohibited for a man to be secluded with two women, it is permitted for a man to be secluded with a woman if her husband is in the city.  This seems to decide in favor of the first of the two possibilities - namely, that we reject an objective definition of yichud.  Instead, situations are prohibited which might lead to sin such as a man with two women, even though this is not objectively yichud.  It also permits an objectively secluded situation - a man alone with a married woman - because the worry about sin is not there, since her husband is in the city.

 

COMPARISON TO SOTA

 

     Why, then, do we even raise the possibility that yichud is defined objectively?  It seems likely that the definition of the prohibition of yichud should be identical to that of the yichud of the sota woman (whose husband warned her not to be secluded with a certain man yet she did it anyway).  The  gemara (Nazir 57a) clearly limits the yichud of a sota woman to her and and the suspected male partner, what we have referred to as objectively defined yichud. 

 

     The gemara speaks of a situation where two nazirites, (who are prohibited to become ritually impure) encounter a situation which raises doubt about whether they have become tamei (ritually impure).  The halakha's rule of thumb for dealing with doubt about impurity is: in public situations we are lenient and in private ones we are stringent.  This is based on the precedent of the sota, which is a private situation of seclusion, in which we are stringent, suspecting the two about having committed a sexual sin and thus becoming impure.  This suspicion requires the woman to come to the Temple in Jerusalem in order to drink of the waters of the sota.  What follows is the gemara's discussion, thinking out the parameters of a private and a public situation:

 

Why?  Is not the rule which demands stringency when there is a doubt about impurity in private situations, built on sota?  Does not sota only involve the man and woman involved in an intimate situation?  So also, private situations, where we are stringent, involve only two people.  Here, where there is another person standing along with the two nazirites, there are three people.  Hence, the situation is one of doubtful impurity in a public situation.  When there is doubt about impurity in a public situation we rule that it is pure." 

 

The prohibited seclusion for the sota woman involves only two people.  Once there are three the situation is already defined as public.  It would follow that one man and two women is not defined as yichud. 

 

     There might be room to distinguish between the yichud of a sota and the general prohibition of yichud.  The prohibition of yichud might be, in essence, a safeguard against sin, prohibited whenever sin is likely and permitted when it is not.  One man being secluded with two women is a situation in which sin is likely and therefore prohibited.  The law of the sota woman, on the other hand, might apply only when an objectively defined seclusion takes place.  One man and two women cannot be defined as such. 

 

     This distinction, however, is difficult for two reasons:

 

1)  Sota also seems to be based on a worry that the woman will sin with the suspected man.  If the worry exists where there are three, why not prohibit it as well?

2)  The Rambam (Hilkhot Sota 1:3) rules, based on a passage in the Yerushalmi, that a husband can voice a suspicion about two men at the same time.  If his wife then secludes herself with both of them at the same time - three people at once! - she is prohibited as a sota.  Of course, this Rambam is difficult, in light of the passage in Nazir quoted above.  It is the subject of a number of discussions amongst his commentators.  See the appendix of the Frankel edition of the Rambam for a list.

 

ONE MAN AND TWO WOMEN

 

     We find a number of authorities who write that yichud is only defined as biblical when there is just one man and one woman.  All other situations are prohibited rabbinically.  The rabbinic prohibition expands on the basic  objective prohibition to include any situation where sin is likely.  See the Chavot Yair (#73), who discusses this possibility.  The Chokhmat Adam (section 126) in Binat Adam (section 16) writes in the same vein: "It seems that only seclusion between one man and one woman (prohibited to each other) is prohibited biblically, as derived from the verse, 'When he will entice you [secretly] ...' ... but one man and two women or the opposite (two men and one woman) is only rabbinic ...."  The Tzitz Eliezer (part 6, #40:2) brings support for the Binat Adam from a responsum of the Rashba (1:587).  The Rashba implies that yichud between one man and two women is rabbinic; biblical yichud only involves one man and one woman.  [It seems to me, though, that the proof from the responsum is weak.  The Rashbam replies to a questioner who writes that yichud between one man and two women is rabbinic.  The Rashba discusses whether to distinguish between a woman who is an erva (in a forbidden relationship to the man) and one who is not.  He responds that even according to the questioner's opinion that one man with two women is rabbinic there  should be no distinction.  It is therefore hard to bring a proof about the Rashba's own approach from that responsum.]

 

     In my opinion there is a counter proof indicating that one man and two women constitutes biblical level yichud, from the Rashba's own commentary in Nida (5b).  He writes that a situation where three women are together follows the impurity rules of a private domain and we are stringent in cases of doubtful impurity.  This is, he writes, because yichud applies to three.  This would also work well with the Rambam's approach, that if a man warned his wife about secluding herself with two different men and she had yichud with both of them she becomes a sota.

 

REDEFINING YICHUD

 

     Up until now we have worked with two possible definitions of the prohibition of yichud:

 

1) Any situation of seclusion which might lead to sin;

2) One man and one woman secluded together.

 

The first and much more subjective definition, easily explains why one man and two women would be considered biblical yichud, and yet if a woman's husband is in the city it is not.  The second explanation works well with the model of the sota's yichud but must assume that yichud between one man and two women is not prohibited biblically.

 

     Our challenge is to explain the view of those who see one man and two women as biblical without rejecting the one man - one woman objective yichud model (implied by the passages in the gemara about sota).  These two are not necessarily contradictory. 

 

     The gemara we quoted earlier (Nazir 57a) said that just as the sota situation only involved the man and the woman having relations (bo'el ve-niv'elet), so too in other doubtful situations of impurity we are stringent when there are two present.  But is "those having relations" necessarily limited to two?  The Rashba in Nida 5b (quoted above) seems not to say so.  He resolves a contradiction between one passage in the gemara considering three women a private impurity situation (mandating stringency) with another that clearly considers three men a public impurity situation, based on the sota model.  His resolution is that since one man with more than one woman is still considered yichud, three women are still considered a private, sota-like situation.  Thus, the "niv'elet" (woman involved in the illicit relationship) might even refer to more than one woman.

 

     This issue might be related to a dispute among the Rishonim about the prohibition against yichud between one man and two women.  Some say we are worried that the man will have relations with one of the two women and the other woman will not prevent it from happening.  Others say that we are worried that he will have relations with both of them.  The practical difference between these two is how to rule when there is yichud between one man and three women. Just like one extra woman will not stop the other two from having relations, two will also not.  Rashi (Kiddushin 82a), though, rules leniently in this case, and the Rosh explains that it is because it is unlikely that he will have relations with all three of them.

 

     According to the approach that one man and two women are prohibited because the extra woman does not remove the worry that sin will take place, it is likely that we are working here with a rabbinic prohibition.  A second woman interferes with the man and woman's objectively defined seclusion although her presence does not prevent them from sinning.  But if we are worried that he will have relations with both of them, they might both be considered as one woman, the "niv'elet."  This  might still be a situation that can objectively be referred to as yichud - between those having relations. 

 

     The Rambam might be working with a similar concept.  As we mentioned above, he rules that if a man warns his wife against secluding herself with two men, she is considered a sota if she secluded herself with both of them together.  Because the husband suspects both men together they are considered as one.  Yichud is defined by those involved in the sin.  Usually there are only two, but even where there are more, all are considered part of the yichud situation.  Even though in general it is not considered yichud when one woman is secluded with two modest men, because they are embarrassed in front of each other, here the two men are both under suspicion.  They become the parties involved in the sin. 

 

     An issue related to this halakha is raised by the Pitchei Teshuva in Even Ha-Ezer 178:14.  When a husband warns his wife against secluding herself with two men, how long does the seclusion have to last in order for the woman to be considered suspect?  In general, the length of yichud is the minimum time necessary for the two to have relations.  In such a case, where there are two suspected men, is the time of the yichud set at the time for two acts or one?  This might (though not necessarily) be dependent on whether we are worried that she will be have relations with both of them or just with one of them.  Yichud might be defined as seclusion with those concerning when there is suspicion of sin with and its length might be determined by our suspicions.

 

     In summary, yichud can be objectively defined as applying to a man and a woman.  If a second woman or man does not interfere with the seclusion of the first, the two women or men are considered as one.  In other words, yichud is defined as applying to those whom we suspect will be involved in the sin.

 

RASHI VS. TOSAFOT

 

     This understanding of yichud might also explain Rashi's approach in the passage on yichud at the end of Kiddushin (81a).  The gemara quotes Rabba's statement that "we are not worried about yichud" when the woman's husband is in the city or when there is a door open to the public domain.  Rashi explains that although there is no punishment of lashes for such yichud, it is still forbidden.  Tosafot counter that it is not even forbidden.  Rashi and Tosafot might be on the two sides of the yichud definition dispute.  (Parenthetically, it should be noted that Rashi is referring to rabbinic lashes.  Yichud is biblical, but since no verse prohibits it explicitly, biblical lashes are not applicable.)

 

     Rashi might say that yichud is objectively defined as a situation where a woman and a man are secluded.  In a situation where there is no suspicion of sin, there is no punishment for the yichud, but it is still forbidden since it is still defined as yichud.  Tosafot see yichud as solely subjectively determined.  If there is no suspicion that the seclusion will lead to sin, it cannot be considered yichud at all and is permitted.  Because in these two situations there is no suspicion of sin - her husband is in the city or the door is open to the public thoroughfare - there is no prohibition of yichud.  [Tosafot might, alternatively, understand that there are two aspects to yichud: an objectively defined seclusion and the possibility of sin.] 

 

     The Binat Adam (#126) suggests that Rashi would permit yichud without reservations where there is one man and two women and their husbands are in town.  That way there would be neither biblical yichud (according to his approach that yichud of a man and two women is never biblical), nor any suspicion of sin.  The stringency of Rashi only applies to a case of biblical yichud.  Rashi himself, who normally views two women and one man as biblical yichud, would here also permit it.  The only reason one man and two women constitute yichud is because we view both of them as participants in the sin.  But here that suspicion does not exist because their husbands are in the city.

 

     The case where the door is open to a public thoroughfare is completely permissible, according to most Rishonim.  Rashi might here also permit it because there is no seclusion at all - they are visible to the public.  The Rambam, however, (Hilkhot Issurei Bi'a 22:12) holds that this is prohibited even though it is not complete yichud.  Although this does not seem to be yichud, as Rav Yerucham explains in the name of the Rama, one must keep as far away from sin as possible.  Rav Yerucham himself views the prohibition against yichud even when the door is open or when the woman's husband is in the city as stringencies formulated to distance oneself from sin.  It is likely that he is in the Tosafot camp, that views yichud objectively and sees no problem when there is no worry about sin.  According to the objective view of Rashi, there is room to distinguish between the case of seclusion between a man and a woman whose husband is in the city - which is objectively yichud but without suspicion of sin, and the case of when the door is open to a public thoroughfare which is not a case of seclusion at all.  A door that is closed but not locked (the "open door" of the gemara is understood in this way by the Rashba, and the Tzitz Eliezer devotes a chapter to this), might also be defined as objective yichud without suspicion of sin, based on the possibility that someone will enter the room.

 

Daf Kesher #543, Nisan 5756