Sources Through Srugim, Session 10: Mikvah For Unmarried Women

(29) Do not degrade your daughter and make her a harlot, lest the land fall into harlotry and the land be filled with depravity.

(1) 1) (Vayikra 19:29) ("Do not profane your daughter to make her a harlot, lest the land fall into harlotry and the land be filled with lewdness.") "Do not profane your daughter to make her a harlot": I might think that (this means that) he (a Kohen) should not give her to a Levite or to an Israelite (in marriage, this being regarded as "profanation" in that she thus becomes unfit to eat terumah); it is, therefore, written "to make her a harlot." Scripture is speaking only of the "profanation" of harlotry.

(2) 2) And what is that? One's giving his single daughter to his neighbor, not for the sake of marriage, and, similarly, her giving herself, to this end.

The 355th mitzvah is that we have been prohibited against having intercourse with a woman without ketubah and without kiddushin, and this is what the verse states, “There shall be no prostitute among the daughters of Israel.” And the prohibition about this matter has been repeated in different words, as it states, “You shall not defile your daughter to have her whore” (Vayikra 19:29). The language of Sifra is as follows:: “Do not defile your daughter – this is one who hands over his daughter not for the sake of marriage, and similarly one who gives herself over not for the sake of marriage.”…

Before the Giving of the Torah a man would encounter a woman in the marketplace, and if he and she desired,, he would per her fee and have intercourse with her on the crossroads and then go on his way. And such a woman is called a kedeishah (prostitute). Once the Torah was given, a prostitute became forbidden [to have intercourse with], as it states, “There shall not be a prostitute from the daughters of Israel” (Deut. 23:18). Therefore, whoever has intercourse with a woman for the purposes of fornication, without marriage, receives lashes because he had intercourse with a prostitute.

A kedeishah is only a woman who is designated [for having sex], and this is a woman who makes herself available to every man. But a woman who designates herself solely to one man, for such a woman there would be neither lashes nor the transgression of a negative prohibition. And such a woman is the pilegesh [concubine] that appears in Scripture… There is no violation of a Biblical negative prohibition save in the case of a woman who has designated herself for every man.

Man of God, the holy, the pious rabbi, Rabbi Yonah (of Gerondi), may your well-being and the well-being of your Torah increase forever. I have received your question regarding the pilegesh, that you have requested that I let you know my opinion, as a matter of truth (a genuine halakhic ruling), not merely as a theoretical discussion.
I do not know what basis there is for any doubt in this matter, for she is certainly permissible, since he (the man) has designated her for himself. For the only basis for a woman to be prohibited in an act of fornication with a Jewish man is derived from the exposition of Rabbi Eliezer ben Yaakov (Yevamot 37b, Tosefta Kiddushin 1:4, Sifra Kedoshim 3:4): “[If a man has sex with multiple women or a woman has sex with multiple men,] this will result in a brother will marry a sister and a father will marry his daughter, and to prohibit this the verse states “[A man should not defile his daughter to have her fornicate, and the land shall not fornicate,] and the land will be filled with fornication.” (Vayikra 19:29). [Now this not knowing of children’s parentage is only a concern when a woman is not designated to a particular man], but when he brings her into his house, and she is designated to him, and known that she is connected to him, then her children are called by his name (are attributed to him), and she is permitted.
Behold, [King] David took a concubine, and it never appears anywhere in Scripture nor in the Gemara that there should be a difference between a king and a commoner… Perhaps, you will say, that she may be permissible as a matter of Torah law, but forbidden as a matter of Rabbinic legislation. Please tell me in what place such a legsilation is mentioned in the Talmud? And what court voted on it? And it what time period was this ruling taught?
… If he wants a woman to be just a pilegesh, that she should not be acquired to him, and not forbidden to others, and he did not betroth her at all, he has the permission to do so.…
You, our rabbi, may God give you life, in your place warn them against taking a pilegesh, for if the know of the permission [to do so], they will fornicate and act without restraint, and will have intercourse with them when they are in niddah.

You asked – that I should explain to you if the Biblical verse states, “And to a woman in the flow (niddah) of her impurity, you should not draw near to uncover her nakedness.” (Vayikra 18:19) –refers to every woman who is a niddah, whether a man’s wife or an unmarried woman? And if it is so, how is it that [the Rishonim] did not mention this?…

Answer: The matter is clear that intercourse with a niddah is prohibited, not only with a man’s wife, but whether with his wife, another man’s wife, or an unmarried woman…
But the reason is that their writings were to teach the people how act according to halakha with their wives, when they were ritually impure and when they were ritually pure. And they had no need to discuss the case of an unmarried woman, for sex with an unmarried woman is forbidden even when she is not in her niddah period. According to Rambam this is a Biblical prohibition that one would receive lashes for, if a woman made herself available in this way, that is to say, to have sex in a way of fornication, and this would be included in the category of a “prostitute” [that the Torah forbids], although she does not sit in a booth of prostitutes (bordello) and make herself available to all.

According to those who argue against Rambam and state that intercourse with an unmarried woman is not prohibited by a negative Biblical prohibition and one who does this is not liable for lashes, nevertheless, having intercourse with her does entail a Rabbinic prohibition. For even just being in seclusion with an unmarried woman [who is not a niddah] is forbidden based on the enactment of the court of King David. How much more so is intercourse with her [forbidden]. There is also those who say that intercourse with an unmarried woman is forbidden according to the Torah, although not based on a Biblical prohibition, and there are no lashes, but it is forbidden based on a positive commandment, [to wit:] “If a man takes a wife and has intercourse with her,” [it is as if] the Torah is saying: if he wants to have intercourse, he must have intercourse in the context of marriage...

Now, what you were astounded about – how is it that the Rabbis did not institute immersion for an unmarried woman, so that the masses would not stumble as a result of her (i.e., so a man having sex with her would not transgress the prohibition of niddah)? There is nothing to be astounded about! For since an unmarried woman is forbidden [even if she is not a niddah], as we have written, then the opposite is the case! If she were to immerse, that would create a stumbling (lead people to sin), for then people would be lenient regarding the prohibition that applies to her, since she would only be forbidden according to Rabbinic law…