The Mission of Orthodoxy Project, #14: The Death Penalty & Karet Prohibition by Rabbi Gidon Rothstein, WebYeshiva

In the introduction to his eighth century Halachot Gedolot, one of the earliest compendia of Jewish law we have, the author (known as Behag, the acronym for Baal Halachot Gedolot, author of Halachot Gedolot) provided one of the earliest extant listings of the 613 mitzvot, and grouped them by punishment, so that a part of his list gives us exactly the subset of prohibitions we were seeking. While some of his choices were subjected to later critique, particularly by Maimonides, enough of his list is universally accepted that we can use it without abandoning our search for unanimity.

Behag notes eighteen commandments punishable by stoning. Just before I begin, let me note and reiterate that Judaism never favored the wholesale, or even infrequent, use of the death penalty. These penalties would only be administered in the most extreme cases, where the sinner flagrantly and willfully flouted communal mores. We are here looking at these penalties only as markers of the severity of the transgression involved.

Acts That Could, At Their Worst, Deserve Death by Stoning

Several of the sins mentioned in that context are sexual, so let me also note that the Torah not only prohibits intercourse, but also “coming close” to such relationships, although that would not incur the death penalty. The definition of “coming close” is certainly not unequivocal, so I mention it only to point out that the Torah is opposed to any such inappropriate sexual activity. It is only that some such activity is so serious as to lead to a person’s death (and to be clearly mission-shattering), while lesser such activity is merely reprehensible.

Similarly, the halachic notion of אביזרייהו, mentioned in Sanhedrin 74b, tells us that while we might not administer the death penalty for extensions of such relationships (or of murder and idol worship, for that matter), the person faced with such a sin would have to allow him or herself to die in many circumstances rather than transgress even such an extension. That, too, suggests these areas are deeply problematic— meaning, I think, mission-destroying—not only in their most extreme version, but even ordinarily.

One last technical note: Between all the versions of death and karet, we are going to quickly list almost eighty prohibitions here. I do not intend to comment on each of them, only to note patterns that characterize the whole list. As you read through the lists, therefore, I hope you will try to get a sense of the overall picture presented by them rather than getting caught up or bogged down in trying to memorize or characterize each one.

Stoning Prohibitions

The first six prohibit sexual intercourse with 1) one’s mother, 2) one’s father’s wife (meaning, even if she is not the man’s mother), 3) one’s daughter in law, 4) another man, 5) an animal, 6) a woman engaging in bestiality.

The Torah and Behag mention the female partner in the last of those because there was no male human involved. The Torah addresses the man in the other sexual prohibitions presumably because it assumes the man initiated such sins, but both willing partners are fully implicated in the crime and the punishment. Completely unwilling partners, male or female, bear no liability, although the definition of “completely unwilling” would require further clarification in a full discussion.

The next sins on the list move away from wrongful sexuality, no. 7 being blasphemy, no. 8, idolatry, no. 9 giving one’s children over to Molech worship, no. 10 & 11 being Baal Ov and Yidoni. I did not translate these last two because there is debate about which types of witchcraft or sorcery they are, and because the definition is not vital for our discussion.

The twelfth stoning sin on Behag’s list is desecrating the Sabbath, no. 13 being cursing a parent, no. 14 having intercourse with a נערה המאורסה, a girl between the ages of 12 and 12 ½ who has been betrothed to another, no. 15, attempting to lure individuals to idol worship, regardless of whether the attempt succeeds, 16, attempting to lure a group to idol worship, 17, being a witch, and 18, being a rebellious son.

I note that each type of death penalty is a subcategory on its own, and would likely reward consideration of any overarching themes running through that subcategory. I am less sure, however, that such themes could be identified unequivocally, and therefore leave that for another time.

Prohibitions That Deserve Burning or Death by the Sword

An additional nine sins are punishable by burning: A man having sexual intercourse with 19) a woman and her daughter (and they with him, as we noted above), 20) his own daughter, 21) his granddaughter through a daughter, 22) his granddaughter through a son, 23 & 24) his wife’s daughter and granddaughter, through her son or daughter, 25) his mother-in-law, 26) his mother-in-law’s mother, 27) his father-in-law’s mother, and 28) a priest’s daughter who commits adultery. The male partner in that last case would receive the ordinary punishment for adultery, strangulation.

I find two points worth noting about this list. First, it is entirely about problematic sexuality, and second, while there is debate about whether and which of these should be separate prohibitions, the punishments for these acts are universally accepted.

Only two commandments lead to death by the sword: 29) murder, and 30) committing idol worship as part of a city where the majority has similarly worshiped.

Sins That Incur Strangulation

Nine are punishable by strangulation: 31) hitting a parent, 32) kidnapping, 33) a qualified elder contravening a ruling of the Great Court, 34) being a false prophet, 35) prophesying in the name of an idol, 36) having intercourse with a married woman, 37) and she with him. I notice, as I am sure you have, that Behag here singles out the adulteress as a separate commandment when he did not do so for other female sexual infractions. As I have mentioned, Rambam and others disagree with Behag’s count of sexual infractions in this and other areas. As they do not argue about the prohibition or the punishment administered, though, we can safely leave that discussion for another time.(1)

Excision

The punishment of excision, or karet, is ordained for a man having intercourse with: 40) his sister, 41& 42) his aunt, paternal or maternal, 43) his wife’s sister, 44) his brother’s wife, 45) his uncle’s wife, or 46) a menstruating woman. In addition, various eating sins incur karet, such as 47) prohibited fats, 48) blood, 49) leavened bread on Passover, 50&51) eating or performing prohibited actions on Yom Kippur, 52) leftover sacrifices, 53) or those sacrifices that became פיגול, having been offered with wrong intention, and 54) a ritually impure person eating sacrificial meat. Staying with the Temple but not eating, we find karet for 55) entering while ritually impure, 56& 57) slaughtering and offering sacrifices outside the Temple, 58-60) making or anointing oneself with the ritual oil of anointing, or making the incense, 61) failing to offer a Paschal sacrifice, and, last, 62) failing to circumcise.

Any one of these transgressions, committed willfully, suffices to exclude a person from the nation, which suggests there should be an explanation of their essential importance to Jewish observance. Both for the sake of brevity and because those kinds of analyses are rarely so convincing as to be unequivocal, I restrict myself to noting general patterns.

The Importance of Sexuality

Twenty-six of the sins we just noted—over forty percent (slightly less for Rambam, but not significantly)—deal with prohibited sexuality. In today’s environment, this bears repeating and emphasizing: of all the prohibitions in Judaism that incur either the death penalty or excision, forty percent stem from illicit sexuality. This would seem to mean that Jews, as part of the mission of the religion to which they adhere, are meant to be members of a people that bear witness to God’s view of appropriate sexuality as the base standard for the human condition.

In stressing that, I note that wrongful sexuality (defined slightly differently) applies to non-Jews as well as Jews, so that this part of the Jewish mission is to declare a universal ethic about sexuality, one at great odds with common assumptions of contemporary Western thought. It is also true that the Torah itself tells us that violating these sins will lead the Land of Israel to spew out those who do so, as it did to the nations that inhabited the Land before us.

I emphasize this so because it is not only out of sync with Western culture, but with much of the Orthodox world today. Perhaps because of a laudable desire to help sinners find their way back to God, the past century and a half has seen a revolution in Orthodox responses to sinners. In the last five decades, as Western society’s sexual ethic has changed, there has been a move within Judaism to also be more sensitive to the great pressures and struggles faced by people challenged by frowned-upon sexual urges.

That reaction, it seems to me, can be completely true and appropriate in the individual case, but the recognition that these sins are central to the Jewish mission is equally important. In all cases of wrongful sexuality—and, from a Jewish perspective, they are all the same, situations where well-intentioned human beings are struggling with a sexuality that wishes to express itself in ways God declared completely off-limits, whether that is through adultery, a close relative, a woman who is menstruating, or two men together– our practical approach to dealing with specific sinners raises different questions than our communal policies and attitudes. In the latter, it is part of our mission to declare and insist on striving for what should be, difficult as it may be to get there.

Summing Up the Rest

A further eleven of the prohibitions have to do with the Temple and its service. Some of those still apply today, such as not slaughtering or offering sacrifices outside the Temple, but it is an area we can mostly leave for another time. It does show the centrality of proper treatment of the Temple in a full Jewish experience, and should reinforce our awareness of how inherently lacking we are in our ability to fulfill the basic mission of the religion in the absence of a standing Temple.

Ten Commandments legislate issues of idolatry or witchcraft, reminding us of the religion’s concern with focusing worship solely on God, on not turning to other powers for assistance or protection. Finally, five sins on the list focus on the three most significant holidays of the year, the Sabbath (captured in one prohibition, although one with 39 parts, the prohibited creative labors of the day, the willful commission of any of which suffices to incur the death penalty), Yom Kippur (the prohibitions on creative activity and eating), and Passover (the obligation to bring the sacrifice and the prohibition against eating חמץ, leavened bread).

Sum total, eighty percent of these significant sins focus on sexuality, the Temple, idolatry, or three central holidays. Interestingly, the holidays in question carry a strong theological component as well, Sabbath being explicitly a reminder of both the Exodus and Creation, Passover of the Exodus as the foundation of the Jewish people’s relationship with God, and Yom Kippur as a day of atonement, a reminder of judgment, Providence, and reward and punishment.

Building only on this foundation, we would have to say that the mission of Orthodoxy is to build a relationship only with God as controller of the universe, to the exclusion of any other candidates, to cultivate a sexual sanctity defined by the limits set by these mitsvot, and using certain times of the year (and, ideally, a central place) as specific vehicles of sustaining and furthering the relationship with that God.

That picture comes out of the prohibitive approach to the religion, and yet is still consonant with what we have seen before. Next time, we will begin working on the positive approach, and see if that takes us to the same place.

(1) A similar complication of deciding what to include in the 613 bedevils Behag’s no. 38, witnesses who falsely testify against a priest’s daughter. This would seem a detail of the prohibition of עדים זוממין, false witnesses who receive the punishment they attempted to impose on their victim. Behag apparently counts it because they receive a different punishment than the female victim. Either way, they do receive the death penalty, and thus belong on our list. So, too, with no. 39, the man who has adulterous intercourse with a priest’s daughter, who gets a separate appearance on Behag’s list for his differing death penalty.
The offering priest assumes, during one of the crucial aspects of offering the sacrifice, that the sacrifice will be eaten after its right time, invalidating the sacrifice.