The “Can We Really Do THAT?” Episode Part 1- Joy of Text 3:1 by Rabbi Dov Linzer

Which sexual acts are permitted in a marriage? The answers might surprise you! Find out why co-host Dr. Bat Sheva Marcus calls this one of “the most important episodes” of the podcast. Plus we interview the creator of the hit YouTube series SOON BY YOU, Leah Gottfried, about the challenges of dating as an Orthodox Jew, and we introduce a new take on the Final Word.

Part 1 – From Husband to Wife

Rabbi Yochanan: All Forms of Marital Sex are Permitted

The Talmud in Nedarim {source ‎1} records the opinion of R. Yochanan ben Dahavai that certain acts during marital sex impact the way the fetus will turn out. It is clear that he views these acts negatively, and hence he believes that they will have a negative impact on the child. Among the acts he discusses are the husband kissing and looking at the wife’s vagina (“that place”). The great sage Rabbi Yochanan (not to be confused with Yochanan ben Dahavai) categorically rejects this view. He does not dispute this “science,” (see Baba Metzia 84a), but rather the assumption that these acts are problematic, stating that all acts of marital sex are permitted between husband and wife. (The statement is phrased from the man’s perspective, “Anything a man wants to do with his wife…” reflecting the general androcentrism of the Talmud.) Based on this, it seems quite clear that a man can give his wife oral sex.

To illustrate his statement that all acts of marital sex are permissible, Rabbi Yochanan gives the analogy to eating meat– just as a man can eat his meat however he likes, he can also have any type of sex with his wife that he likes. This analogy is, on the surface, disturbing, as it seems to suggest that the woman is a sex object to be enjoyed by the husband. Bracketing that issue, we should realize that the larger point here is that Rabbi Yochanan is making an important values statement. He is saying: There is nothing inherently wrong with this sex act or that one. People just have different tastes and no value judgment should be assigned to that. If you find a certain sex act repulsive, it is no different than finding someone’s eating choices repulsive. This is just your emotional reaction and your tastes, not a statement about the rightness or wrongness of the act.

It might seem a little redundant to also give the analogy of eating fish, once he already gave the analogy of eating meat. However, the Gaonic work Kallah Rabbati (source ‎2), uses this to make the point that there are no restrictions when it comes to marital sex, just as there are no halakhic restrictions when it comes to eating fish (as opposed to eating meat or milk, which are permissible, but only within certain limits).

Consent

It is important at this stage to briefly address the issue of consent. Rabbi Yochanan had stated that “Whatever a man wants to do with his wife, he may do.” The point was that no sex acts are forbidden, but the phrasing could suggest that it is all the husband’s decision, and that he does not require his wife’s consent. Similarly, following Rabbi Yochanan’s statement, the Gemara brings two cases of women who complained that their husband’s performed the sex act of “overturning the table” (most likely, anal intercourse), and the rabbi to whom they were appealing stated that he could not stop the husband from doing so {source ‎3}. It sounds, from these stories, that the husband was forcing his wife to engage in this act.

The suggestion that a husband can have sex with his wife without her consent goes directly against the Talmud’s statement that a man cannot force his wife to have sex (Eruvin 100b). Ra’avad addresses this problem {source ‎4}, and first suggests that as long as the wife agrees to sex, the husband can compel her to engage in a form of sex that she is opposed to. He rejects this possibility, and concludes that a husband can never compel his wife to engage in any sex act against her will. The women who were complaining to the rabbi, in the Talmud’s stories, may have agreed to their husbands only begrudgingly, but they did acquiesce nonetheless. This reflects a real dimension of marital dynamics, and not only when it comes to sex. Often one partner wants to do something that the other is not enthusiastic about. Sometimes the other partner will agree to go along, because they want to extend themselves for their spouse, but sometimes it is asking too much, and the partner will say no. Bottom line: A person should never feel compelled to agree to something that they don’t want to do. Shulhan Arukh rules simply and straightforwardly: a husband cannot have sex with his wife without her consent {source ‎5}.

Rambam and Ra’avad

Following Rabbi Yochanan’s categorical permission, Rambam rules that all forms of sexual activity are permissible within marriage {source ‎6}. Rambam states explicitly that the man “may kiss any part of her body he desires,” clearly permitting a man to kiss his wife’s vagina, i.e., to give his wife oral sex.

We also note that Rambam states that ideally that a man should attempt to limit the types of sexual activity he engages in, as the primary purpose of marital sex is procreation (see also Laws of Character Traits 3:2 and 5:4). He also states that a person should limit the frequency of marital sex for the same reason (Laws of Forbidden Sexual Relations, 21:11 and in Laws of Character Traits, 5:4). In a different podcast, we have discussed different attitudes towards marital sex, and Rambam is squarely in the camp that sees it as problematic and as finding its justification in procreation. Given that, it is quite significant that he did not allow this ethos to influence his halakhic ruling, and that, as a matter of halakhah, he rules that a couple can engage in whatever forms of marital sex they desire, and with whatever frequency they desire.

A number of Rishonim are not as permissive as Rambam, Rabbi Yochanan’s categorical statement notwithstanding. Semak (Rabbi Moshe of Coucy, 13^th century, France) states that while as a matter of halakhah all is permitted, as a matter of piety, a person should not engage in the acts discussed in the Talmud, since this could impact the development of the fetus {source ‎7}. Apparently he believes that although Rabbi Yochanan asserted that these acts will not negatively impact the child, a small possibility of such still exists, and it would be pious to take this into account. Semak’s ruling has had little impact on later halakhic discussion of the matter.

Ra’avad pushes back on the statement of Rabbi Yochanan in a more serious way {source ‎8}. Ra’avad makes it clear that he sees many ethical and religious problems with the acts under discussion (see below, source ‎9). He thus is not prepared to accept Rabbi Yochanan’s permission on face value and tries to limit it as much as possible. He does this by stating that Rabbi Yochanan’s permission applies only to one case – namely. the overturning of the table (anal intercourse) – since this case is explicitly permitted in the Talmud. All other acts, including oral sex, may not have an impact on the fetus but, according to Ra’avad, remain forbidden.

Ra’avad enumerates the problems he finds with a man looking at or kissing his wife’s vagina {source ‎9}. He first states that by looking at his wife’s vagina, the husband is acting towards his wife as if she were free for the taking (מנהג הפקר). In the Talmud this phrase refers to a situation in which men take sexual advantage of a woman, treating her as if they can possess her at will (Yevamot 112b- 113b, Gittin 38b). He seems to be saying that when a man looks at his wife’s vagina, he is taking advantage of her, using her merely to satisfy his own sexual desires. In contemporary parlance, we might say that he is relating to her as an object and not a person.

We can certainly identify with Ra’avad’s underlying concerns here – one partner should not objectify the other one or use him or her just to satisfy their own desires. It would seem, however, that these concerns would only be relevant to a case where the wife was not desirous of the husband doing this act, and perhaps Ra’avad understood that to be the default case. If, in contrast, the wife wants her husband to be doing this, and especially when this act involves not just looking, but also kissing, such that it contributes to the wife’s sexual pleasure, there would not seem to be any place for these concerns.

Ra’avad also states that a looking at his wife’s vagina is immodest and acting in a shameless way, but he does not explicate why this is so, and it is hard to understand this contention given that we are talking about sex between husband and wife, which includes looking at one another naked, and deriving pleasure from doing so. What is clear is that Ra’avad felt that the act was improper and problematic, although it is questionable whether this assessment should be binding for those who do not share his assumptions.

When it comes to a husband kissing his wife’s vagina (oral sex), Ra’avad adds yet another problem. The Talmud states that the prohibition of bal tishaktzu (do not make yourself abominable), forbids a person to eat disgusting things or to even place disgusting things in one’s mouth. Taking for granted that a woman’s vagina is a “disgusting thing” for a man, Ra’avad states that for a man to give oral sex to his wife would be a violation of this prohibition of bal tishaktzu.

[As we will discuss later, poskim dispute this assertion of Ra’avad, either by fully rejecting his assumption, or by demonstrating that the prohibition of bal tishaktzu is defined not objectively but by the person’s subjective experience: what he does or does not find disgusting {sources ‎20 and ‎21}. If a man wants to do this and does not find it disgusting, then it is clear that there would be no problem of bal tishaktzu.]

To round out the picture of Ra’avad’s approach, it is worth looking at a passage the precedes his discussions above, where he lays out his views on the religious value of marital sex {source ‎10}. Like Rambam {source ‎6}, Ra’avad does not identify an inherent good in marital sex in terms of bringing the couple together or the like. He sees it’s value in something external to it: procreation, the husband’s providing his wife with something she desires, and a way for a man to protect himself against sin. At least from the man’s perspective, he is not in favor of the focus of marital sex being about pleasure.

For Rambam, such an attitude did not impact on his rulings regarding what sexual acts are permitted between husband and wife. Things may have been different for Ra’avad. Given what he writes in the following passage, it is perhaps not surprising that he pushed back and limited Rabbi Yochanan’s permissive statement, particularly if he saw these acts are primarily about the man’s (and not the woman’s) desire for different types of sexual pleasure, having nothing to do with procreation or the like.

Shulhan Arukh and Poskm

We have seen that Rambam rules like Rabbi Yochanan that all is permitted, while Ra’avad limits this statement to anal intercourse. How do we rule, in practice? How does Shulhan Arukh rule?

Ashkenazim

For Ashkenazim, the matter is straightforward. Rema rules like Rambam that all is permitted {source ‎11}.

Despite Rema’s explicit ruling, Beit Shmuel attempts to limit Rema’s blanket permission – much like Ra’avad tried to limit Rabbi Yochanan’s permissive ruling – and argue that it would not apply to the husband looking at or kissing “that place” {source ‎12}. Some other poskim just choose to read Ra’avad’s position into the Gemara and Rema. Others argue for this restrictive reading of Rema by pointing to Shulhan Arukh OH {source ‎16}, where Rav Yosef Karo rules restrictively like Ra’avad and Rema does not gloss and explicitly disagree with this ruling.

This argument is quite weak. Rema is explicit that all is permitted, and he even states that the man may kiss “any part of the body he wishes,” which given the Talmudic discussion obviously refers to the vagina. As to what to do with his silence in OH, it is possible that he did not feel the need to comment there, given that EH, and not OH, is the prime locus of halakhic discussions of marital sex. This approach is taken by, among others, Rav Yehudah Herzl Henkin and Rav Elyashiv Knohl {sources ‎13 and ‎14}. Rav Knohl argues further that perhaps even Rav Yosef Karo did not intend to forbid such practices as a matter of halakhah {source ‎14}.

Although Rema permits oral sex and the like as a matter of halakhah, he does state that the ideal is to “sanctify oneself at the time of sex.” The original meaning of this was almost definitely that a person should not overly indulge in such a wide range of sexual acts. Even given that definition of kedusha, it is important to distinguish between a religious ideal, possibly only achievable or even desirable by a small section of the population, and what is actual halakhah. It is also important to ask how that ideal stacks up against other, more central and pressing religious mandates – onah and the wife’s pleasure; the strength of the marriage; finding sexual satisfaction in marriage and not looking for it elsewhere, and the like.

Rav Shmuel Kedar, as well as other poskim, pushes this point further and states that truest form of “sanctity” in the sexual act is not one of restraint and asceticism, but rather ensuring that both partners fully consent to the act and that the act is pleasurable for both of them {source ‎15}. In other words, true kedushah is achieved by not using the other person merely to satisfy your own needs, but by connecting to the other person, and being attentive to their needs as well. This is fully in keeping with the sexual ethos articulated by Ra’avad, above {source ‎9}.

Sephardim

For Sephardim, the matter is a less clear. When we turn to Shulhan Arukh, Orah Hayim {source ‎16}, in his discussion of marital sex (which appears in the section of halakhot relating to the evening, following the laws of the evening prayers), we see that he rules like Ra’avad that it is forbidden for a husband to look at or kiss “that place,” for the same reasons that Ra’avad had given (immodesty, bal tishaktzu, etc.). However, in Even Ha’Ezer, in the laws of marital sex (which appear in the context of the laws of marriage), Shulhan Arukh makes no reference to this restriction, although he does articulate a sexual ethos that parallels that of Rambam and Ra’avad {source ‎17}.

How do poskim resolve the Shulhan Arukh’s restrictive ruling in OH against his silence in EH? Some poskim read his ruling in EH through the lens of his ruling in OH, and conclude that for Shulhan Arukh (i.e., Sephardim) these acts are forbidden. This is a reasonable read, given that nowhere in EH does Shulhan Arukh actually say that such acts are permitted.

Other poskim, including Rav Knohl and Rav Kedar, disagree {sources ‎18 and ‎19}. They choose to read OH through the lens of EH, and argue that Shulhan’s Arukh silence should be read as tacit permission and that his rulings in EH are more authoritative in regards to questions about marital sex, since the primary locus for this discussion is EH and not OH. For them, Shulhan Arukh’s ruling in OH is just laying out a religious ideal, and that he does not mean to issue an actual halakhic ruling.

The most formal halakhic problem mentioned by Shulhan Arukh (and Ra’avad) is that of bal tishaktzu. However, as we mentioned earlier, many poskim state that bal tishaktzu is defined by subjective standards and determined by each individual’s experience. Based on this, Rav Raphel Berdugo and Rav Hanan Aflelo, among others, rule that bal tishaktzuwould not apply if the husband did not find this act to be repulsive {sources ‎20 and ‎21}. Thus, even according to Shulhan Arukh in OH, the problem of bal tishaktzu should not apply in most contemporary cases.

In summary, these sources demonstrate that there is good basis for ruling that it is permissible for a husband to perform oral sex on his wife, not just according to Rema, but even according to Shulhan Arukh. Given the issues that are at stake here – the fulfillment of the Biblical mitzvah of onah (which requires that the husband give his wife sexual pleasure, and not just that he performs the act of intercourse); the strength of the marriage and the importance of shalom bayit; and the importance of finding sexual satisfaction in marriage and not looking for it elsewhere – it is hard to understand the position of those who rule restrictively. It seems that such restrictive rulings here is clearly a case of a “stringency that leads to (or that is, in fact) a leniency.”