It is not uncommon for one to be asked by a near-stranger, “Are you shomer?”, as if inquiring to another’s sexual habits were as normal as inquiring what someone has for breakfast. Sexual behavior is inherently private, and talking about it is generally considered immodest. Yet Orthodox Jews are now expected to openly proclaim their sexual life or lack thereof as a marker of their religiosity, and a test for their datability.
Being shomer negiah is probably one of the hardest halachas to follow, especially since people now get married much older than they did when the laws were formulated. Many people claim to be shomer even though they are not, while even those who legitimately attempt to be shomer may occasionally slip up. This is an extremely serious issue.
As the halacha stands now, unmarried women are not allowed to go to mikvah. This makes them nidot, ritually impure. The Torah says of a nidah, “Lo tikrav legalot ervatah”, you shall not go near to uncover her nakedness. Most sources take this verse to outlaw foreplay as well as sexual intercourse, as can be seen from the words “go near”. This makes sense, since usually the Torah will simply say, “Lo tigaleh ervat”, you shall not uncover the nakedness of (fill in the blank). Thus, the Torah’s going out of the way in this instance to specify not going near to uncovering does seem to prohibit foreplay. Ramban says that the prohibition on foreplay is rabbinic in nature, with the Gemarah using the pasuk merely as an asmakhta. Rambam holds that the prohibition on foreplay is deoraita. The punishment for having sex or foreplay (depending on who one holds by) with a nidah is karet, so one really doesn’t want to take a chance in misinterpretation.
I believe that this is one instance in which et laasot laHashem definitely applies. It is worth it to allow women to go to mikvah in order to stop putting most Orthodox people in a position where they are, at least once in their lives, violating something that very well may be an issur deoraita that one is chayav karet for.
The main objection I have heard to this when I discussed it with rabbis is that it would make it seem like the rabbis are condoning premarital sex if they allow women to immerse themselves in mikvah before marriage. My response to this is for women and men to have to undertake a halachikly binding neder not to engage in pre-marital sex. The extremely serious nature of halachik neders and violations of said neders should be impressed upon them, so that they will not violate it. While violating a neder is extremely serious, at least one could claim violation of the neder is “covered” by Kol Nidrey, whereas possibly violating the deoraita on nidah that induces karet is not. (Of course, teshuvah can be done, but teshuvah for a mitzvah for which one is chayav karet is extremely difficult.) Furthermore, I believe that people would be less likely to violate this than shomer negiah, since they would be having at least some of their sexual desires fulfilled even without violating the neder, whereas the definition of being shomer is essentially not having any of your desires fulfilled. Furthermore, I hope Jewish education would stress the importance of not having pre-marital sex and also of not breaking neders.
I think that allowing women should go to mikvah should be accompanied by an intensive education - for both women and men - of the laws of taharat hamishpacha and the issurs of nidah. It can be thought of almost as a way for women to get into the practice of observing taharat hamishpacha from an early age, getting accustomed to it before marriage, when they will be having sex and mistakes in taharat hamishpacha could have serious halachik ramifications. Additionally, marriage is daunting enough without having to worry about taking on a whole new set of extremely important mitzvot. Discomfort with the mikvah process has in the past led many married women to stop observing nidah properly, and preparing women for mikvah early on in life could combat that.
I think that the current shomer laws encourage early marriage. A couple that knows they want to get married may choose to do so earlier than they otherwise would have in part, at least subconsciously, because of the shomer issue. Getting rid of shomer laws while imposing a ban on pre-marital intercourse could lessen the pressure while providing just enough pressure to still encourage couples to marry young, thus preventing the breakdown of family values and the marriage structure that some fear would ensue if shomer laws were abnegated. Furthermore, with the increase in number of officially shomer people in the past twenty years there has also come a deepening of the shidduch crisis, so shomer is clearly not able to be enough of a positive force for young marriage to result in more people getting married and starting families. If anything, the pressure it puts on relationships and on people to get married may be having a negative effect and placing tension on people that precludes their developing the meaningful relationships that are precursors to marriage.
I also think a lot of the rabbis are not aware of the extent to which shomer laws are being violated, since such violations are not exactly something most people are open about with rabbis, and since so many people who claim to be shomer either are not actually shomer, or really are shomer but have slipped up once or twice.
The shomer laws can also encourage negative attitudes towards sexuality; people are taught over and over on how forbidden sex and all intimate touching is before marriage, but are often not taught the flipside on how sex within marriage can not only be enjoyable, but is obligatory. One story is told of a couple who went to the rabbi after three weeks. They still had not consummated their marriage because after hearing over and over how forbidden it was, they simply could not believe that now it was no longer assur. A recent study shows that emphasizing the values of enjoying sex and of personal responsibility when educating adolescents is likely to result in their waiting longer to have sex and being safe when they do so. Perhaps the Jewish education system should bear this in mind, emphasizing the joys of sex within marriage and the virtue of personal responsibility, how people need not be slaves to their desires but can take responsibility for doing the right thing in the face of those desires.
Yabia Omer, Part 1, 30:15: “What should be done in a place where the men are lax in sexual morals, and there is interest in setting up a network of unmarried prostitutes to save the men from committing adultery? Answer: If a great sin is performed without the permission of the courts, the Jewish people are innocent. However, if a little sin is performed with the courts’, approval, it is the sin of the entire community...It has never occurred to anyone to allow nowadays unmarried women to go to mikvah to save men from the grave sins involving nidah. Well known is the Rivash’s responsum stating that the rabbis forbade unmarried women to go to mikvah lest men be led to sin.”
The Yabiah Omer’s response shows many things:
Adultery, like nidah, is an issur deoraitah, yet was not strong enough to allow the immersion of unmarried women.
The official rabbinic position need not and should not adjust itself to the sinful practices of the laity. Nevertheless, as noted above, my suggestion not only does not encourage the rabbis to condone premarital sex, but on the contrary, encourages them to take a strong stand against it by obligating people to engage in neders not to have it.
The concern is with men sinning, not with women sinning.
Rabbi Ellinson comments that the actual words of the Rivash are “The rabbis did not establish immersion for the unmarried”, which sounds descriptive rather than proscriptive. Nevertheless, not having seen the Rivash in context, I can offer no further comment other than to say it appears that in the Rivash there may be a bit more wiggle room for allowing premarital immersion.
In conclusion, the issue of shomer negiah is extremely complex and one of the most pressing issue for young men and women today, because it is the hardest to keep and because of the importance of nidah. My suggestion of immersion for single women combined with neders not to engage in pre-marital sex may or may not be successful. Nevertheless, it should be part of a larger discourse and debate about shomer negiah and about creative halachik innovation and whether it can be used to address shomer issues. It is sad that on an issue that is so important, so many choose to be silent. Perhaps that is because of the personal nature of sexuality. Nevertheless, the Torah and the Gemarah did not shy away from difficult topics, including sex, and neither should we, provided our discussions are lishem shamayim.
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