Producer Karyl Lynn Burns, actor Tom Dugan, producer Daryl Roth and media personality Dr. Ruth Westheimer attend the ‘Wiesenthal, A New Play’ opening night reception at West Bank Cafe on November 5, 2014 in New York City. (Photo by Cindy Ord\/Getty Images for Wiesenthal)<\/p>\n<\/div>\n
Rabbi Danya Ruttenberg, author of several books on Judaism, including \u201cThe Passionate Torah: Sex and Judaism\u201d (NYU Press), said the Talmud actually offers a strong argument that sex without explicit consent is a crime. The Talmud (in Ketubot 51B) goes so far as to assert, Ruttenberg said, that even if the woman has an orgasm or decides in the middle of the act that she does consent, if she has not consented at the outset, it is still considered wrong.<\/p>\n
\u201cI\u2019m grateful that Dr. Ruth has in the past made a space to talk about human sexuality in a way that was really radical for its time,\u201d Ruttenberg said. \u201cBut a) she\u2019s wrong about this, and b) she should not be using our tradition to bolster her argument.\u201d<\/p>\n
Although she was uncertain what part of the Talmud Westheimer was referencing, Ruttenberg noted that the statement is quite similar to a Yiddish saying: \u201cVen der Putz shtayt, der saychel gayt,\u201d literally (according to JTA\u2019s unofficial Yiddish translator, author Shulem Deen), \u201cWhen the penis ‘stands,’ the brains walk out.\u201d<\/p>\n
If the rabbis in fact said this — no doubt using less colorful phrasing — Ruttenberg theorizes, they probably intended it as descriptive rather than prescriptive.<\/p>\n
\u201cThe rabbis had a lot to say about sexual arousal and the ways this can be a problem, and how to arrange your life so you are not aroused when it\u2019s not appropriate,\u201d she said, adding, \u201cI\u2019m very comfortable saying, knowing the rabbinic corpus as I do, that they were not saying, \u2018Boys will be boys.\u2019 I think they were saying this is a thing that happens and how do we deal with it.\u201d<\/p>\n
Rabbi Shmuley Boteach, whose books about sex and Judaism include \u201cKosher Sex,\u201d \u201cKosher Adultery\u201d and \u201cKosher Lust,\u201d said, \u201cI know Dr. Ruth and very much like her, but anyone in the Jewish community should strongly object to what she said. Consent is offered by a woman, and it can be withdrawn at any moment.<\/p>\n
“The idea that men are ravaging beasts who are controlled by their hormones and can\u2019t stop themselves is a Neanderthal view that Judaism would never embrace. It\u2019s a shockingly frightening excuse for rape.\u201d<\/p>\n
Like Ruttenberg, Boteach was unfamiliar with the precise source of Westheimer’s Talmudic citation and questioned whether the interpretation was accurate. And like Ruttenberg, he pointed out counterexamples from the Talmud.<\/p>\n
\u201cThe Talmud says [in Sanhedrin 37A] that if a woman begins menstruating in the middle of the act, the man has to prop himself up on his elbows and subside because it\u2019s not sanctioned by Jewish law,\u201d Boteach said, referring to the Jewish prohibition on sexual contact during menstruation known as niddah. \u201cThe Talmud is showing that a man can absolutely control himself.\u201d<\/p>\n
In addition, Boteach said, the Talmud strongly prohibits rape, even in marriage, ruling in Nedarim 20B that a man cannot sleep with his wife when either is drunk because full consent is not possible.<\/p>\n
\u201cA woman\u2019s consent is dependent entirely on her,\u201d he added. \u201cIf she says no, stop, that\u2019s it. To say \u2018I\u2019m on autopilot\u2019 is ridiculous.\u201d<\/p>\n
Rabbi Dov Linzer, head of Yeshivat Chovevei Torah, a liberal Orthodox rabbinical school, and co-host of “The Joy of Text” monthly podcast on Judaism and sexuality, agreed with Ruttenberg and Boteach. Linzer pointed to the passages they cited and also noted a passage in Berachot 62A saying that even when a man and his wife are naked together in bed, it is incumbent upon him to make sure she desires to have sex before beginning the act.<\/p>\n
Although known for its conflicting opinions and arguments, the Talmud is notably consistent about sexual consent, Linzer said, adding that he could not think of any passage that forgives or condones sex without full consent and that \u201cthe whole issue of responsibility and culpability is a major theme in the Talmud.\u201d<\/p>\n
\u201cThis is about inflicting something unwanted on another person,\u201d he said.<\/p>\n
While it is “one thing” when “circumstances might be considered so overwhelming so as to lower the culpability of certain acts or transgressions, it\u2019s a different thing to say you can go ahead and do something to someone else, that you don\u2019t have responsibility toward another person.\u201d<\/p>\n
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