Does the Talmudic category of “ones rachmana patrei,” that “the Merciful One exempts [from punishment one who sins because of] coercion” apply to sins that are not forced on us by our enemies or by circumstances beyond our control? This issue has again risen to the fore by the assertion of a well known American-Israeli rabbi that this concept can be applied to deal sensitively with the plight of practicing homosexuals and has been the source of controversy here in Israel. To be clear, my focus here is not on the quandary of the homosexual, a situation that in our world causes great hardship to individuals and families, demands our sympathy and understanding and has been discussed at length. It is rather on the plight of the rabbinate.
What was suggested is not a new idea and was first proposed decades ago. It was posited, according to a straightforward reading of the statement, that the Torah’s prohibition of homosexual contact applies only to a heterosexual who chooses to engage in same-sex behavior, not the committed homosexual whose only desires are in that arena. As he is, purportedly, wired that way, he cannot be held responsible for his actions and, indeed, G-d would not want to deprive him (or her) of the capacity to find love in this world.
Yet, upon scrutiny, the application of “ones rachmana patrei” to this situation is flawed, misplaced and incorrect, and will inevitably lead to a deterioration in observance of any Jews who are influenced by it. There is the considerable likelihood that such contentions will lead Jews astray in every area of life in which they feel they lack self-control on the one hand or seek passionately on the other. It can and will undermine the very notion of commandment, sin, and repentance. In essence, this methodology of “ones rachmana patrei” can be equally misapplied to Shabbat desecration, theft, violence, adultery, gossip, tax fraud, and any other sin, major or minor. Several points deserve analysis.
Firstly, “ones rachmana patrei” is generally applied when one is forced to sin because of some external coercive element rather than a lack of internal control. The motivating factor is always some outside force and not simply an innate desire that cannot be constrained. For example, the anusim (from the same root; Conversos in the vernacular) were forced to convert and engage in Christian practices because of the murderous hostility of 15th century Christian Spain. The proof text for “ones rachmana patrei” is the case of the naarah ha’me’urasa, the betrothed maiden who is violated in the field against her will. “And to the maiden you shall do nothing; she is not guilty of a capital crime” (Devarim 22:26). As the Talmud (Masechet Bava Kama 28b) explains, she is guiltless, compelled to sin because of the brutish acts of her assailant.
Secondly, the classic cases of “ones rachmana patrei” are noted by Rambam (Hilchot Yesodei Hatorah, Chapter 5) under the laws of martyrdom. One who is compelled by hostile enemies on pain of death to commit one of the three cardinal sins – idolatry, sexual immorality, or homicide – is obligated to forfeit his life and not sin, as those three sins are particularly corrosive to the soul. One can save one’s life and violate all other sins except in a time of religious persecution. Yet, if the person instead saves his own life by committing one of the three cardinal sins, “he has failed to sanctify G-d’s name, but because he was coerced, he is not punished” (Rambam, ibid 5:4). Again, “ones rachmana patrei” requires the coercion of an outside party.
Thirdly, it must be underscored that “ones rachmana patrei” only means that there is no criminal punishment of the offender. It does not at all render the act in question permissible in the first instance. So even if it were true that the committed homosexual is an “anoos,” and thereby not liable to judicial punishment, that would not justify the commission of the acts in any event. They remain prohibited, even if there is no longer criminal liability. An article in the recent Tzohar journal (Volume 41, pages 81-101) reiterated the prohibition against people with same-sex attractions even secluding themselves together; the authors never entertained permitting sinful actions based on “ones rachmana patrei.”
Nevertheless, “ones rachmana patrei” is applicable in many familiar areas to us. We are not liable today for not bringing the Korban Pesach, or one in captivity has not violated the Torah by not eating in the Succa on the 15th night of Tishrei, because circumstances have made it impossible to fulfill those mitzvot. Sadly, a person without arms cannot fulfill the mitzvah of wearing tefillin shel yad like a blind person cannot recite Kiddush Levana. One who will die unless he consumes non-kosher food must eat non-kosher food. All are exempt by G-d from fulfilling these commandments because of the situation forced upon them. A license to sin because of tendencies that cannot be controlled is far removed from this concept.
Indeed, a person is only considered an “anoos” after he has made every possible effort to fulfill a mitzvah or avoid its violation – every possible effort. And even then, if he cannot fulfill the commandment, he has to be overcome with regret and sorrow, much like Moshe was when told he could not enter the land of Israel even though he desired to perform the commandments tied to the land. But wasn’t he prevented by G-d and therefore not obligated in those mitzvot? Yes, and so the Alter of Kelm noted that we learn from Moshe that even an “anoos” has to be distressed about his failure to follow G-d’s will (see Rav Menashe Klein’s Mishneh Halachot 17:189, at the end). Again, this was an inability to fulfill positive commandments; a permanent license to engage in a capital prohibition was never contemplated in the absence of any external coercive element.
There are grounds that support the notion that someone who is mentally ill and cannot control himself is not liable for his actions – because “ones rachmana patrei.” It is analogous to the insanity defense familiar in secular law. But there is no indication that the concept of “ones rachmana patrei” is being employed here in this sense, and, as we know, such an assertion in this context would be the epitome of political incorrectness.
Bringing comfort to troubled souls is one of the essential tasks of the rabbinate but to do so by distorting or fudging the Torah’s prohibitions is self-defeating and ultimately destructive. The Talmud (Masechet Sanhedrin 75a) tells the distressing tale of a man who developed an obsession with a particular woman, such that the doctors said he would die if he did not sin with her. The Sages brusquely prohibited even a private conversation between the two, much less anything more risqué. They did not seek to rationalize his desires because of “ones rachmana patrei.”
To my thinking, a homosexual who cannot alter his behavior but remains chaste because of his religious commitment and faith is absolutely heroic, a role model for all. Perhaps today we lack such role models but at one time we had them. Yosef withstood the blandishments of Potifar’s wife notwithstanding all the good reasons (even some with religious overtones) that rang in his ears, and even though he wound up incarcerated for more than a decade as a result of his demurral. That is strength of character. Yosef is the exemplar of the Jew who is caught in the throes of sensual passion and does not succumb (Masechet Yoma 35b). Boaz refrained from committing any lascivious acts with Ruth, even though it could have been rationalized on some level. And both personalities pale before the superhuman willpower of Palti who did not touch his own wife because of his fear that she was still technically married to David. (I have simplified somewhat; see Masechet Sanhedrin 19b for the details.) Those who can harness the energy of an unquenchable passion and remain faithful to G-d are awe-inspiring. “Let those who love Him be like the powerfully rising sun” (Shoftim 5:31).
Rabbis should be encouraging fidelity to Torah. Rabbis should be teaching Jews about the virtues of self-control and moderation as the keys to faith and happiness. We need not pander to the young generation as if it is hopelessly degenerate and dissolute, as if they can never truly surrender to G-d’s will. Such is the death of Torah and the irrelevance of the rabbinate. Such is the evisceration of the function of Judaism throughout our history. A Jew is called upon to sacrifice; no one was poorer than Hillel (Masechet Yoma 35b) and yet he continued his Torah study in poverty. We would not say “ones rachmana patrei” for Jews who felt compelled to work on Shabbat a century ago (and some even today); commitment to Torah requires sacrifice and that sacrifice is asked of all of us in different ways.
It is disingenuous to claim that Halacha is pluralistic, in the modern sense that there is no one truth. The Talmud characterizes the disputes between the schools of Shamai and Hillel as “Eilu v’eilu divrei Elokim chaim,” “these and those are the words of the living G-d,” but then concludes that a heavenly echo decreed “the law is according to the house of Hillel.” Yes, there was finality, as there is overwhelming decisiveness and consensus in halacha; it is not an intellectual or spiritual free-for-all. “Anything” does not go. The disputes are always along the margins, in the details of some of the laws and customs. The consensus that dominates halachic practice in the laws of Shabbat, Kashrut, Taharat Hamishpacha, Tefila, and other areas is what unites the Torah world. The differences are mostly nuances that have endured for centuries and does at all impinge on our capacity to pray, eat, learn and live together. We can debate how long to wait between meat and milk but not whether a cheeseburger is kosher.
There is a real danger that people will construe themselves as “coerced” by their internal natures – and molest, steal, murder, cheat, gossip and breach all the norms of Torah because, after all, that was the nature with which they were born and, according to modern notions, they are not expected to control and refine. We all are subject to sin, and we all must exercise discretion in not seeking to pry into people’s private lives and judging them accordingly. But it is far better to sin out of lust (and sincerely repent and then stop) than to sin intellectually by writing out of the Torah one or more of its prohibitions. The former is a human being beset by frailties, like all of us; the latter is a heretic.
Similarly, what a rabbi might advise an individual in private is not necessarily appropriate for an entire group or for readers of a newspaper. In fact, sensitivity to the individual is much more important than sensitivity to a group, notwithstanding the modern obsession with “group identity.” It is the individual who deserves our attention, respect, sympathy, not the group with which he identifies or who claims her as an adherent. But our sensitivities and sensibilities should never be projected onto G-d and can never replace the Torah. All we know of G-d’s will is what He told us, and that is what makes the Jewish people special, unique and worthy of His protective hand. We modify, reform or modernize His word and His morality at our peril.
I am saddened by the reality of people suffering with the allure of sin and illicit desire as I am by the implications of a distortion of Torah law. Jews in this situation deserve our sympathy and our help, but also our honesty. And if rabbis do not preach G-d’s values, and do not speak the language of right and wrong, permissible and forbidden, then who will?
With all due respect, the claim that “ones rachmana patrei requires the coercion of an outside party” (save the possible exception of insanity-like mental disorders) is open to question. See, for instance, Rambam, Shegagot 5:6 (codifying ruling in shvuot 18a); and Tosafot Yevamot 35b. Note especially that in the case dealt with by Tosafot, there was another option readily available: waiting longer.
None of this is meant to suggest that the suggestion to condone (if not license) homosexual activity on the basis of “oneis rachman patrei” is anything other than a travesty of halakhic reasoning.
Thank you for writing but you are not correct. The case you note is obviously ones caused by an external factor, the change in his wife’s status. That is clear from the Gemara and the Rambam.
I apologize if I wasn’t clear. I was not arguing against the proposition that oneis requires some kind of “caus[ation] by an external factor”, but rather the proposition that oneis requires an element of coercion (the only possible exception being extreme mental disorder). My argument was that this is not so. As evidence, I pointed to two cases classified as oneis in which no element of coercion is involved. (There are many more examples that could be provided.) It is precisely because there is no coercion in these cases that the Rambam (Shgagot 5:6) felt the need to explain why this is not simply shogeig.
To be clear, my point provides no support whatsoever for the notion that an activity impelled by the human sexual drive could qualify as “anus”. The crucial element in this class of oneis-cases (that is, those that lack any element of coercion or insanity-like disorder) is the extreme prior improbability that the action undertaken — albeit volitionally — would end up involving an עבירה. Obviously, this bears no relevance to someone who acts with the knowledge that what he is doing is an עבירה. My point was simply that it is inaccurate to say oneis requires either coercion or mental disorder.
Perhaps we could simply sharpen the formulation of the post to be more accurate. It could say something like:
In the case of someone who knowingly does a prohibited act, oneis rachmana patrei only applies if the act was coerced, or the agent suffers from a serious mental disorder.
I pointed this out to OTS – here is the exchange:
Yossi Baumol: What about pedophiles “who cannot find satisfaction any other way”. Does “ones rachmana patrei” also apply? Obviously this does not apply to anyone who consciously chooses to perform a forbidden act.
OTS: Rabbi […] has stated on several other occasions that we may not judge and punish someone “compelled” only in a victimless situation. For a situation where there is a victim the perpetrator should be prosecuted and punished by an earthly court to the fullest extent of the law.
The sentiment is plausible, but that, too, is not the halacha. As the Rambam I cited makes clear, if a Roman tells a Jew, A, to kill B, or he will kill A, then A is obligated to martyr himself. But if A doesn’t and instead kills B, A has failed to sanctify G-d’s name but he is not liable to punishment by the earthly court. That is a clear case of ones, and one that obviously involves a victim, and yet the perpetrator is not punished.
Of course, the Jewish court has other options in dealing with such predators, but those are extra-judicial, even “din malchut,” and the Jewish society is thus protected. But the reference above might be to a non-Jewish court and value system, as the Torah has no concept of a victimless crime.
Thank you for the inspiring, thoughtful and important message.
It is so meaningful at this time. All the best,
Thank you for your kind words.
Thank you for a great article.
You state that “There are grounds that support the notion that someone who is mentally ill and cannot control himself is not liable for his actions – because “ones rachmana patrei.” It is analogous to the insanity defense familiar in secular law.”
Please clarify: is the mentally ill not person liable because of a lack of “daas”-lack of presence of mind lack of and awareness of his actions, or is it because the mentally ill person is an “onus” due to external factors?
It could be both. On the one hand, a shoteh is patur. On the other hand, someone mentally ill – a pyromaniac – would be patur as well, even though he has da’as, just a pathological inability to control it. Society would have to take measures to prevent him from his arsonic ways.
Rabbi, if you are approached by a man in your Shul who confides to you that he is exclusively attracted to only other men, what would you advise him? He is sincerely committed to being Shomer Torah & Mitzvos, but also has strong physical passions and urges. Please answer the question as specifically as possible.
I would advise him to remain chaste. As difficult as it is, we all face challenges in some area. That is his great burden, and the love of G-d he evinces through his faith is awe-inspiring.