Volume 62 Number 73 
      Produced: Mon, 04 Apr 16 01:54:04 -0400

Subjects Discussed In This Issue:

Can a woman become a man and get an aliyah? 
    [Harlan Braude]
Capital punishment - buring 
    [Sanford Lefkowitz]
Marital rape (3)
    [Martin Stern  Isaac Balbin  Irwin Weiss]
Synthetic meat? (2)
    [Martin Stern]
Under age marriage (was Halachically married without civil marriage) (2)
    [Martin Stern  Perets Mett]


From: Harlan Braude <hbraude@...>
Date: Sun, Apr 3,2016 at 12:01 PM
Subject: Can a woman become a man and get an aliyah?

Chana Luntz wrote (MJ 62#72):

> And that would presumably mean (again geneticists might be able to help me
> here) that, despite certain halachic assumptions brought by the Tzitz Eliezer
> that an androgynos is unable to have children, that is not in fact true  - 
> that they might well be able to do so as a male.  Does such an androgynous 
> have eggs? Could she have a child as a female by way of a surrogate mother? 
> Is it science fiction for a womb to be created and for her to possibly carry
> her own child? These are medical questions to which I do not know the 
> answers, but which might have halachic relevance. Is the Tzitz Eliezer 
> right?  Should we be doing surgery on babies in order for them to fit into one
> of the two categories of modern society, when halachically there were
> traditionally four categories?

In my simplistic, "baala'batishe" view of the world (forgive me if this results
in reductio ad absurdum), I think we're over-thinking the issue. Chaza"l gave us
basic tools to determine things like when puberty is reached and how gender is
(or isn't) determined. It's principally based on what can be seen, like
the presence and number of hairs and other physical attributes.

It does not depend, for example, on the ability (or lack thereof) to become
pregnant, otherwise a number of women (men?) who's gender has never been in
doubt could be subjected to forced reclassification.

Neither should there be a need to depend on findings from invasive surgery,
magnetic or ultrasound imagery nor even genetic testing to make these 
classifications. Just use the original standard: what can be seen by capable and
trained people (I didn't say "naked eye" so as not to get into an argument about
reading glasses/contact lenses. Let the games begin).

I think we tend to view scientific advances with a certain amount of awe that,
while understandable, tends to cloud our understanding of the basic issues they
appear to revolutionize.


From: Sanford Lefkowitz <slefkowitz@...>
Date: Sun, Apr 3,2016 at 06:01 PM
Subject: Capital punishment - buring

How was the punishment of s'reifa (burning) carried out?

The Gemara in Sanhedrin 52a describes the procedure as pouring a 'wick' of
molten lead down the person's throat. With the melting point of lead around 620
degrees, that procedure sounds extraordinarily painful (and difficult to do).
How was this procedure actually performed?


From: Martin Stern <md.stern@...>
Date: Sat, Apr 2,2016 at 05:01 PM
Subject: Marital rape

Leah Gordon wrote (MJ 62#72):

> Russell Hendel wrote (MJ 62#66):

>> Here is a further clarification. It is prohibited (at least rabbinically) for
>> a man to have intimacy with his wife say while asleep. I would suggest the
>> following: If an ordinary person has intimacy with a woman while she sleeps,
>> his act is rape which emanates from a prohibition of theft and has tort
>> implications. If a man has intimacy with his wife while asleep, he has not
>> raped her (But he has violated a separate rabbinic prohibition against so
>> doing).

> I understand from this that Mr. Hendel is opposed to sex with one's spouse
> while that spouse is sleeping.  That is certainly a relief.  However, it is
> false to claim that, "if a man has intimacy with his wife while asleep, he has
> not raped her" - I'm surprised even to read this statement.
> According to the law of the land in the United States, as well as what I would
> consider to be a reasonable person's opinion, a person who is asleep cannot
> legally consent to sexual relations.  Hence, it is rape.  That is what "rape"
> means - sexual use of a person without his/her consent.  Or "sexual assault"
> for various other activities perhaps short of sexual intercourse.
> Consent is now defined in many jurisdictions as NOT just the absence of
> objection to sex (which in any case cannot be assumed, EVEN FROM A SPOUSE, if
> the other person is unconscious), but rather "sustained enthusiastic
> participatory consent".
> Please don't make statements that make our people sound, l'havdil, like the
> Daesh/ISIS/ISIL monsters who believe that women are property to be raped at
> will.  Please also do not make statements that assume the readers of MJ are 
> all men and that women are "other" or even "objects" that can be acquired.
> I thank G-d every day that I don't live in any kind of theocracy.

I fear that Leah is making an unwarranted assumption that the definition of
a word in one legal system automatically makes it a universal objective one
that must be accepted in all other systems. Clearly the halachic definition
of ones [rape] is slightly different from that in US law and her
consequential conflation of certain other halachically prohibited behaviour
with it is unfortunate.

Martin Stern

From: Isaac Balbin <isaac@...>
Date: Sat, Apr 2,2016 at 06:01 PM
Subject: Marital rape

In response to Leah S. R. Gordon (MJ 62#72):

Leah Gordon has, in my opinion, missed Dr Hendel's point. Dr Hendel was careful
to delineate halachically between cases which were biblical rape and those which
were rabbinic rape. 

He did not say at any point that even if an event was not Rabbinic rape that
meant it was permitted. When one's country invokes laws which are reasonable
then, in the sphere of Isurrei Biah (forbidden relationships) or Tzniyus
(modesty) as two examples, one is Rabinically bound by Kedoshim Tihyu (be holy)
to assume a commensurate level. If the issue was of another nature then Dina
D'Malchusa (law of the land) may become the Halachic reason for the matter the
be forbidden.

BUT and this is the nuance that Leah has missed, we do not assume the
nomenclature of the offence when that nomenclature is Country/State defined.
Rather, one would say it is forbidden, full stop. Rape (for example) is never
defined by that name, halachically, by the nomenclature of the time. One might,
for example, be charged with profaning a holy day, if they kept their shop open
on, say, Easter. That would be forbidden, full stop. It would not, however, mean
that there is 'Chillul Yom Tov' (breaking the laws of a holy day).

I do not understand Leah's final comment about theocracy, but for Judaism
theocracy will resume once we have the final redemption. That's something to
look forward to, as one of our tenets  of faith.

From: Irwin Weiss <irwin@...>
Date: Sun, Apr 3,2016 at 10:01 AM
Subject: Marital rape

Leah S. R. Gordon (MJ 62#72) says that if a man has sex with a sleeping woman it
is rape. This is certainly true with regard to American criminal law.

Here is a discussion from a recent Maryland case:

A Sleeping Victim Is A Non-Consenting Victim

The common law of rape has long recognized that engaging in sexual intercourse
with a woman who is asleep is a form of  rape. In Lewis Hochheimer, Crimes And
Criminal Procedures,  429 Rape, p. 456 (2d ed. 1904), it is said:

"Carnal knowledge of a woman is said to be by force and against her consent, if,
to the knowledge of the accused, she was in such an imbecile or idiotic state of
mind, or so drunken, or unconscious from sleep, or affected by drugs, as to be
unable to assent."

In 3 Wharton's Criminal Law, 289 Incapacity to Consent, p. 38 (Charles E.
Torcia, ed., 14th ed. 1980), it is similarly stated:

"A female is obviously incapable of consenting to sexual intercourse when she is
unconscious or asleep."

With respect to the absence of consent by a sleeping victim, the national case
law is in essential agreement. 

King v. State, 978 P.2d 1278, 1280 (Alaska App.1999); 

Harvey v. State, 53 Ark. 425, 14 S.W. 645, 646 (1890); 

Davis v. State, 538 So.2d 515, 516 (Fla.App.1989); 

Brown v. State, 174 Ga.App. 913, 331 S.E.2d 891, 892 (1985) (sexual intercourse
with a woman whose will is temporarily lost from intoxication, or
unconsciousness arising from use of drugs or other cause, or sleep, is rape);

Boone v. Commonwealth, 155 S.W.3d 727, 731 (Ky.App.2004) (Although sleep may not
always be a fully unconscious condition, [i]t is axiomatic that sleep is the
antithesis of awareness. It is that periodic state of rest in which
consciousness is suspended. Whether induced by drug, or achieved by normal
processes, being in the state of sleep renders one unable to make a conscious

People v. Perry, 172 Mich.App. 609, 432 N.W.2d 377, 382 (1988); 

State v. Welch, 191 Mo. 179, 89 S.W. 945, 947 (1905); 

State v. Rush, 278 N.J.Super. 44, 650 A.2d 373, 375"76 (App.Div.1994) ([A]
person who is actually asleep is incapable of fleeing or communicating
unwillingness to act.);

State v. Moorman, 320 N.C. 387, 358 S.E.2d 502, 505 (1987) (a sleeping person is
a physically helpless person); 

In re Childers, 310 P.2d 776, 777 (Okla.Crim.App.1957) ([A] person who is
unconscious by reason of intoxication, drugs, or sleep, is incapable of
exercising any judgment in any means whatsoever.); 

State v. Puapuaga, 54 Wash.App. 857, 776 P.2d 170, 172 (1989) (The state of
sleep seems to be universally understood as unconsciousness or physical
inability to communicate unwillingness.).

Travis v. State, 218 Md. App. 410, 431-33, 98 A.3d 281, 293-94 (2014)

I do not see how it could be otherwise.

Irwin Weiss


From: Martin Stern <md.stern@...>
Date: Mon, Mar 28,2016 at 02:01 AM
Subject: Synthetic meat?

Hillel (Sabba) Markowitz wrote (MJ 62#71):

> Shmuel Himelstein wrote (MJ 62#69):
>> Yesterday I read of a new process whereby cells of a live animal can be
>> grown to yield (within 9-21 days) the identical type of meat (chicken,
>> beef, etc.).
>> ...
>> Thus one can obtain meat without slaughtering any animal. They are talking
>> of going commercial in a few years. Can anyone authoritative comment on this,
>> in terms of the following (for example):
>> Is it kosher?
>> Is it fleishik?

> This would seem to raise the much more serious problem of ever min hachai [the
> consumption of a limb cut from a living animal - MOD] since the animal is
> alive when the meat is cultured and the remainder of the cultured meat stays
> in the nutrient medium after it has been harvested. This would seem to be more
> important than other kashrus considerations that occur when the cells are
> taken from slaughtered animals.

To qualify as ever min hachai, the portion consumed must contain not only
meat but also sinews and bones. The latter, in particular bones, are hardly
likely to be included any more than in the already widely available
vegetarian meat substitutes. There is still the possible problem of basar
min hachai [meat from a living animal] but this is probably not the case
since the product might come under the category of zeh vezeh gorem [produced
from several substances some of which are permitted] but a definitive
practical decision must be left to more qualified persons.

Martin Stern

From: Isaac Balbin <isaac@...>
Date: Mon, Mar 28,2016 at 05:01 AM
Subject: Synthetic meat? 

Immanuel Burton wrote (MJ 62#70):

> Shmuel Himelstein (MJ 62#69) asked about lab-grown meat from cells taken from
> a live animal, and pointed out that one can obtain meat without slaughtering 
> any animals.  I suspect one kashrus problem may lie with how the original 
> cells were obtained - if they were obtained from a live animal or an animal 
> that died other than by shechitah, then all subsequent lab-grown tissue may 
> also be not kosher.
> It is in any event already possible to obtain kosher meat without shechitah. 
> A calf found inside a cow after the cow has been shechted [ritually 
> slaughtered] does not itself need shechitah before it is eaten (a calf like
> this is called a "ben pekuah") for the reason that the shechitah of the 
> mother includes the foetus that is still inside.  Furthermore, a ben pekuah 
> can't be unkosher, assuming that the mother animal was found to be kosher 
> after shechitah, and not only do its lungs not have to be checked for 
> lesions, the fats and sinews normally forbidden for consumption do not have 
> to be removed.
> A calf with two ben pekuah parents is also considered a ben pekuah, with the
> same rules.  It would therefore seem that if one could raise herds with
> documented parentage, one could raise kosher meat that doesn't require 
> shechitah or porging.  In fact, there seems to be a commercial attempt to do
> just that: 
> http://www.benpekuahmeats.com
> I understand, however, that a ben pekuah requires shechitah by Rabbinic
> ordinance, but does that shechitah have to be 100% kosher, etc?

It needs to also be mentioned therefore that Gedolay Horoah (major halachic
decisors) in Israel forbade this venture, including Rav Kanievsky. There is also
an explicit responsum from Rav Hershel Schachter forbidding it and one from the
Charedim in Melbourne. I am not aware of more than a handful of people who
allegedly rely on Rabbi Rabi, under whom the Kashrus supervision of this venture
is dependant. I'm led to believe it is designed mainly for export as none of the
the 3 kosher butcher shops in Melbourne allow. Ironically all sectors of
Melbourne's Rabbinate have united and expressed their disapproval.  If anyone is
interested in the explicit letters forbidding this venture they may email me and
I will forward material from Gedolay HaPoskim (the senior Rabbinic decisors) in
Israel and the USA.


From: Martin Stern <md.stern@...>
Date: Sat, Apr 2,2016 at 05:01 PM
Subject: Under age marriage (was Halachically married without civil marriage)

Yisrael Medad wrote (MJ 62#72):
> Perets Mett (MJ 62#71) wrote:
>> Two barmitsva boys are quite likely not of age by Torah law and would not
>> qualify as witnesses to a marriage.
> Just as an aside, there were more than a few Jewish men who were married before
> their barmitzvah prior to the 19th century.

This seems completely implausible since a minor cannot give a woman kessef
kiddushin [nowadays a ring] to effect the marital tie. It is possible that
there may have been shidduchin arranged for them but that is quite a
different matter. 

Of course, there may have been an attempt to effect kiddushei biah, since
for a boy over nine we rule biato biah, but, even so, I doubt if it would
have been any more effective since he would nonetheless not have had the
requisite da'at [legal capacity]. In any case this mode of kiddushin has
been banned since Talmudic times.

Perhaps Yisrael could fill in some more details.

Martin Stern

From: Perets Mett <p.mett00@...>
Date: Sat, Apr 2,2016 at 06:01 PM
Subject: Under age marriage (was Halachically married without civil marriage)

In response to Yisrael Medad (MJ 62#72):

Just two points:

1) I find it hard to believe that a man under barmitsva could contract a valid

2) In any event, his statement has no bearing on what I wrote.


End of Volume 62 Issue 73