Volume 62 Number 75 
      Produced: Fri, 08 Apr 16 09:35:57 -0400

Subjects Discussed In This Issue:

Aylonit (was Can a woman become a man and get an aliyah?) 
    [Martin Stern]
Can a woman become a man and get an aliyah? 
    [Harlan Braude]
Concubinage Relationship 
    [Chana Luntz]
Context for "famous quotes"? 
    [Joel Rich]
Marital rape (2)
    [Irwin Weiss  Leah S. R. Gordon]


From: Martin Stern <md.stern@...>
Date: Thu, Apr 7,2016 at 05:01 AM
Subject: Aylonit (was Can a woman become a man and get an aliyah?)

Chana Luntz wrote (MJ 62#74):

> In relation to women, while there is no specific obligation on women to have
> children - there are halachic issues in a marriage if in fact the woman is
> what is deemed an aylonis - which involves lack of fertility, particularly if
> this is not disclosed to the husband before marriage. ...
> However the level of falsehood might arguably be mitigated if the artificial
> creation could, if necessary, be carried through in all respects - ie if in
> fact science allowed the husband to in fact have children with this woman, even
> if, without the assistance of science, he could not.

I very much doubt if this could be done for an aylonit since, although
this condition involves a lack of fertility, one of its crucial
aspects is a failure to show any signs of puberty.

I have always been puzzled by how an aylonit would be described in modern
terminology and the nearest I could find was a genotypical male (XY) with
congenital androgen insensitivity syndrome (CAIS) who would appear at birth
to be female. This happens because, in the absence of androgens or changes
produced in reaction to them, a foetus will develop female characteristics
even though it may have male gonads. It would appear that this condition is
caused by the mutation of a gene carried, surprisingly, on the X chromosome
and so is transmitted from the mother.

Perhaps there are some paediatricians on our mailing list who might be able
to shed more light on the matter.

Martin Stern


From: Harlan Braude <hbraude@...>
Date: Thu, Apr 7,2016 at 11:01 AM
Subject: Can a woman become a man and get an aliyah?

Chana Luntz wrote (MJ 62#74):

> So, are you saying that in a similar modern day case to the case that the 
> Tzitz Eliezer discussed, ie where Reuven's wife turned into a man, we should, 
> even thought we knew from our medical assessment of this baby, that this baby 
> despite looking fully female on the outside, has fully developed male organs 
> that are likely to drop during puberty and turn the child into a male in all 
> respects - we should send this child to Beis Ya'akov, and only switch him to 
> Yeshiva at whatever age (13, 14, 16) that the organs do in fact drop 
> spontaneously, because prior to this what could be seen by capable and
> trained people is only female? Is that the right approach for this kid?

First, let me say that I do realize that I don't have the knowledge/wisdom to
second guess the analysis/ruling of the Tzitz Eliezer (or any posek, for that 
matter). At best, I hope my comments are seen as my attempt to understand as
best I can the issues and rulings being discussed.

Having said that, let me respond to the question whether I think my suggestion
that visual evidence be the primary guide in the case of the married woman 
who "turns into a man" (whether natural, accidental or intentional) or how to
treat the infant who is assessed to eventually suffer that fate.

Yes, I think the same, consistent standard should be applied. I don't think
technologically enhanced vision should affect the outcome.

As to the heart-rending question of "Is that the right approach for this kid?",
I'm not a parent and, perhaps, that makes me incapable of imagining the parental
pain for an ailing child. But, neither am I indifferent to it nor to the
potential suffering of this child.

However, I am also not convinced that surgery will protect this child from some
fairly intense, emotional and psychological issues as his/her self-awareness 
awakens with age, despite all our Herculean surgical, counseling and educational
efforts to do so.

Consider that puberty with all the changes - both physiological, emotional and
psychological - that take place can be fairly traumatic even for physiologically
"normal" children. Hence, we must discount this as a factor that can help us
render a ruling.


From: Chana Luntz <Chana@...>
Date: Mon, Apr 4,2016 at 06:01 PM
Subject: Concubinage Relationship

Susan Buxfield wrote (MJ 62#64):

R' Elazar M. Teitz wrote (MJ 62#63):

>> Aside from the legality of the concubinage relationship being hotly
>> debated, with the majority opinion holding that it is not permitted, it
>> could certainly not be done in the manner suggested.

> Since usage of "majority" and "minority" requires a finite countable number of
> opinions within a specific reference, the assertion of Moreinu HaRav Elazar M.
> Teitz that the "the majority opinion holding that it is not permitted" would
> appear tenuous

In stating that it is the "majority" opinion that concubinage is not permitted
R' Teitz is merely echoing the Rema in the Shulchan Aruch (Even HaEzer siman 26
si'if 1).  The Rema sees it as a split between the Ra'avad and "ktzat meforshim"
[the minority of comentators] permitting and the Rambam, Rosh and Tur against. 
Various Achronim do indeed disagree (and understand the various Rishonim
differently from the Rema and in the way that Susan cites), but it is hard to
say that the Rema's position in the Shulchan Aruch is "tenuous". given that the
position of the Rema in the Shulchan Aruch is generally understood to prima
facie be normative for Ashkenazim.

And once one gets into the Acharonim, the only serious halachic voice speaking
out in favour of concubinage is Rav Ya'akov Emden (She'elat Ya'avetz chelek 2
siman 16) , and even he specifically said that nobody should rely on his teshuva
on the subject without the agreement of the gedolei hador.  It appears that no
such support was forthcoming.  I do not think it unreasonable therefore for R'
Teitz to regard what appears to be a lone voice amongst the Acharonim calling
for the permissibility of concubinage to be a minority opinion (where you have,
for example, the Gra and the Igros Moshe regarding it is forbidden).   And that
continues to this day, those who attempt to learn general permissibility are, by
and large, usually outside the mainstream, as the vast majority of poskim
regard it as forbidden.

> Those that oppose do so either with reference to the Yerushalmi (Pilegesh
> BeKiddushin) or for moralistic reasons.

The Yerushalmi is yet another argument for the position already taken by the
Rema and regarded as mainstream, ie that concubinage is forbidden. The
Yerushalmi (in contrast to the Bavli) believes that with a pilegesh relationship
kiddushin (and hence a get) are necessary (what a pilegesh is missing is a
ketuba, something no longer permitted by the Rabbis) (see Biur HaGra [26:6].

The moralistic reasons do also need explaining.  While it is not surprising that
there are men who like the idea of being able to have a mistress (or as many
mistresses as they want), with the wife having to lump it - and/or, in the more
tragic case where the wife is unable to have children, that he can go off and
get his children elsewhere, while keeping his wife, the fact that some modern
feminists see this as a solution to the problem of get refusal is odd.  The
concubine has always been in "addition" to the wife (or wives), the extra bit on
the side.  While there are cases of concubines in Tanach, as Susan Buxfield
points out, I do not believe there is a known case of concubinage where there
was not also a main wife or wives.  And certainly to the extent you hold that
marriage is a mitzvah (for a man) then even if concubinage is permitted, it
would only be permitted in parallel to (and possibly after) marriage.  What we
are talking about is a concept of "superior" and  "inferior consort".

It therefore should be clearly understood that all who are pushing for
concubinage are also pushing to undermine the cherem of Rabbanu Gershom. 
Indeed, Rav Ya'akov Emden is very clear on this point - he does not hold by, and
does not particularly like, the cherem of Rabbanu Gershom, and at most is
willing to grant its relevance to a few towns in Germany. The two go hand in
hand, and this in itself is an argument for the Rema's position being the
dominant position in Ashkenaz.  Most people agree (R' Ya'akov Emden
notwithstanding) that the Ashkenazi tradition is not to allow a man to take a
second wife.  There is very little point having such a rule if a man can simply
take a concubine.  The amount of effort that has been expended on maintaining
the takana of Rabbanu Gershom would be pointless if the halacha was other than
as per the Rema.

There are of course those who hold that marriage is not a mitzvah at all, that
the only mitzvah involved is the male obligation of pru u'rvu [having children].
 In that case, so the argument goes, why not substitute concubinage for marriage
(in effect, forbid marriage so that there is no possibility of get refusal).  
This of course would also presumably not violate the cherem of Rabbanu Gershom
assuming only one concubine. But think about what is being asked of our halachic
practice.  It is asking for the jettisoning of thousands of years of tradition.
 We, who hesitate to eliminate the smallest minhag (the second purkan in the
davening, as the joke goes) - would eliminate marriage from our midst?  We would
completely abolish the way our mothers and our grandmothers and our great
grandmothers ordered their lives (not to mention our fathers and grandfathers
and greatgrandfathers)?  I think it is clear that this is unthinkable within
Orthodox Judaism, it is far too  fundamental a rupture with everything that has
gone before, and the concept and nature of mesorah.  In short, this is not going
to, and could never succeed in happening. - and nor do any of the authorities
who state that concubinage is permissible believe that it can or should replace
marriage (indeed Rav Ya'akov Emden felt compelled to defend himself against the
charge that it might, stressing that marriage
and concubinage should run in parallel).

So what is the most that could happen if this line regarding the permissibility
of concubinage were to move out of the halachic fringes and become more dominant
- it would just become more acceptable for a man to have a mistress in addition
to his wife or multiple partners (and undermine the cherem of Rabbanu Gershom
almost completely). It may further encourage the commitment phobic (which
despite the get refusal concerns, tends on the ground to be mostly men) from
committing to marriage in circumstances where it is the women who would prefer
to be married.   Any feminist critique of marriage is magnified a thousand fold
when applied to these types of arrangements that leave a man free to seek or
retain another "higher status" wife.  And that is why it is a very strange that
there are genuinely some feminists out there who think this line of argument
could be helpful.




From: Joel Rich <JRich@...>
Date: Thu, Apr 7,2016 at 10:01 AM
Subject: Context for "famous quotes"?

Famous sayings I - Pesachim 86b - "kol ma sheyomar lecha baal habayit aseh
(chutz metzei)" [Anything the Master of the House tells you to do, do (besides
leave)]. I must have heard this many times and passed it inside at least 3
times, yet this is the first time I noticed the parenthesis (which means don't
include it). I wonder how many famous quotes are used without fully getting the
context?  A good secular example might be "I think therefore I am."

Joel Rich


From: Irwin Weiss <irwin@...>
Date: Thu, Apr 7,2016 at 07:01 AM
Subject: Marital rape

Dr. Hendel (MJ 62#74) cites a case from Iowa, purportedly to support the
proposition that not all states regard it [having sex with a physically helpless
or asleep spouse] as rape. 

The Iowa legislator was ultimately found not guilty. He contended that he did
not have sex with his invalid wife, but that they  merely kissed and held hands.


The state had evidence to the contrary. The jury had the obligation of figuring
out what the facts were, and they seem to have sided with the defense. Thus, he
was found not guilty  of the crime for which he was charged. Yet, clearly, under
Iowa law as set forth in Volokhs piece, if a husband has sexual intercourse with
a wife who is physically helpless as that term is defined in the Iowa statute,
it is a criminal act. Thus, the Iowa law agrees with Leah.  The facts, as found
by the jury, did not support a conviction.

My earlier comment was just to note that in the US, virtually all states have
laws (American secular laws) that agree with Leah Gordons position.  I regard
myself as not qualified to express an opinion about what Jewish law is in this
area, but I'd be awfully disappointed if Jewish law was that such behavior were

Irwin Weiss

From: Leah S. R. Gordon <leah@...>
Date: Thu, Apr 7,2016 at 08:01 AM
Subject: Marital rape

Russell Hendel continues our discussion (MJ 62#74):

> But we have to ask why? Why should or should not marital rape be considered
> rape.  It has to do with how courts treat rape. Rape refers to lack of
> consent by a woman. In a date rape and marital rape, there are usually
> elements of both consent and lack of consent. This creates a reasonable doubt
> on the presence of continuing lack of consent. I would argue that this
> accounts for the reluctance of some courts (anywhere on the planet) to
> prosecute the man as a rapist. Like other serious crimes, presence of doubt
> does not legitimize the crime but may prevent conviction.

This is the musing of someone who might not be familiar with current consent
laws, as I tried to explain earlier - in the US, at least, consent must be
"explicit, sustained, enthusiastic" - and yes, it must be renewed, so to speak,
for each sexual act.  (And by the way, not just consent by a woman, but by a man
if relevant.)

I'm not sure what you mean by "elements of both consent and lack of consent". 
As I clearly explained to you, consent must be complete and current, with no
"elements" of lack of consent.  If you are implying that the act of going on a
date, or kissing someone, or marrying someone, or being married and having sex a
hundred times with someone the previous year - means that the NEXT time, there
is an "element of consent" - then you are mistaken.  You are certainly mistaken
from a US legal point of view, and I would argue you are mistaken from a Jewish
and moral point of view as well.

In the Alzheimer's case, the prevailing wisdom seems to be that someone who is
mentally unfit to consent, cannot legally consent.  However, there is now talk
of adding a category to "living wills" permitting sexual activity with an
established partner if the demented person seems to be enjoying the sex.  It is,
to say the least, highly controversial.  In any event, this living-will
instruction would have to be opt-in.  There is no implication of such simply
from a marriage years in the past.

Leah S. R. Gordon


End of Volume 62 Issue 75