What Does Judaism Have To Say About Consent?

For far too long, too many men in the secular world have been using women’s bodies for their own pleasure without having any consideration about the needs or wants of the humans being they are with. Since the Aziz Ansari scandal broke, the #MeToo movement is no longer just about rape and sexual assault. People are now talking about active consent.

Many girls and women comply with a sexual dynamic that does not have their desires in mind because they don’t know that better is out there. Many men continue this behavior because they have been raised to see women as objects not just from the ubiquitous porn which permeates society, but from its more subtle messaging that trickles down into all media.

Although our “progressive”culture claims to be feminist, the more these issues come out, the more it is clear to me how utterly backwards secular society is towards women’s needs and well-being in matters of the bedroom. This is in contrast to how truly progressive Jewish law and thought are in these areas. And remember, the sources we will be quoting were written in the Talmud 1500 years ago. (It should be noted that just because Judaism has laws and values does not mean that all religious Jews are practicing them correctly. Wherever observant Jews are falling short in Jewish law they must re-learn and correct their behavior.)

I reached out to Rebbetzin Lisa Septimus of Young Israel of North Woodmere who is a also a Yoetzet Halacha of the Five Towns and Great Neck and a teacher of Talmud and Women and Jewish Law at North Shore Hebrew Academy High School to chat about what our sources say about refusal of sex and consent.

Everything we spoke about is in the context of marriage while observing the laws of taharas mishpacha (family purity, i.e. going to the mikvah). It should be noted that within the Jewish marriage contract (ketubah) a husband is obligated to sexually satisfy his wife. Failing to do so is grounds for divorce.

The Right to Refuse

Lisa explained that a woman always has the right to refuse sex. The gemara in Eruvin 100b says that a man may not force his wife to perform the mitzvah of sex. Although many universities today are still unclear as to how alcohol plays into consent when it comes to campus rape, the Talmud in Nedarim 20B forbids a man from sleeping with his wife when either is drunk because full consent is not possible.

Not only is consent necessary, but intimacy should be enjoyable. Lisa explained that Rashi in Niddah 17a says while it is a mitzvah to have relations, we should not look at intimacy as an obligation or commandment. It should not be done when the couple is exhausted. It is supposed to be an act that comes from desire.

Lisa elaborated that of course over the span of a marriage there are times that are more stressful, more exhausting, times a couple may feel more distant from one another. In these times the actual desire may be less, but it is important for each spouse to continue to value and engage in intimacy from a desire to make one’s spouse happy and to strengthen the relationship. (Of course prolonged lack of desire should be discussed with a professional, and a husband refusing to have sex with his wife or a wife refusing to have sex with her husband for an endless period of time is grounds for divorce.)

Non-verbal cues for consent

I then raised with Lisa the issue of verbal and non-verbal cues in how a woman may express consent. People claim that Ansari is not a mind reader and shouldn’t be held accountable when the woman he pressured to have sex with tried to show disapproval. Lisa brought out an amazing idea on this topic.

She explained that there are two different verbs in the Torah that are used to describe a sexual encounter between a man and a woman. The first is “yada” and the second is “shachav.”  Shachav litereally means “lie down with” and is usually used when the sexual act is immoral either because it is an adulterous act or some form of rape.

Yada is used for a sexual act that it is the context of a positive relationship/marriage. Lisa pointed out that the verb yada means “to know,” and that it is very much like using the word “intimate” in place of “intercourse.”  Intercourse is just an act of body parts, but intimacy implies that it is in the context of the couple knowing one another and achieving an emotional bond as well.

What this means is that sex, when done as an act of “yada,” is about a couple learning each other’s likes and dislikes – emotionally, physically. It is about investing the time into one another to communicate – to learn the verbal and non-verbal cues of consent and dislikes. And although I had strong misgivings about how women could fare in the casual sex department before this #metoo movement began, this insight really sealed the deal for me.

Yes, of course there are always exceptions, but from the way many women responded to the Ansari scandal it seems that it is common for women to not forcefully and clearly explain when they dislike something in the bedroom. This leads to countless girls and women engaging in acts that are unpleasant to them at best and degrading to them at worst, during what is meant to be a pleasurable experience! How important is it then for a woman to only be involved with a man who is invested in her as a human being? Who has taken the time and care to truly know her and learn her cues and care about her feelings? How incredible is it that these were the sensitivities that books of Jewish law were discussing in the 5th and 6th century! How pathetic is it that 1500 years later countless women are saying #metoo?

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