Friday, January 11, 2013

Death penalty for sexual crimes - based on chazaka (presumption)

Contrary to common belief - halacha prescribes punishment - even capital punishment based on circumstantial evidence and presumption (chazaka). Even strong rumors are enough to give punishment

Kiddushin (80a): This was taught only in respect of Sanctities of the border, but not in respect of genealogy. But R. Johanan maintained: Even in respect of genealogy. Now, R. Johanan is in accord with his view [elsewhere]. For R. Hiyya b. Abba said in R. Johanan's name: We flagellate on the strength of presumption, we stone and burn on the strength of presumption, but we do not burn terumah on the strength of presumption. We flagellate on the strength of presumption, as Rab Judah. For Rab Judah said: If a woman was presumed a niddah by her neighbours, her husband is flagellated on her account as a niddah. We stone and burn on the strength of presumption, as Rabbah son of R. Huna. For Rabbah son of R. Huna said: If a man, woman, boy and girl lived in a house [together], they are stoned and burnt on each other's account.6 R. Simeon b. Pazzi said in R. Joshua b. Levi's name on Bar Kappara's authority: It once happened that a woman came to Jerusalem carrying an infant on her back; she brought him up and he had intercourse with her, whereupon they were brought before Beth din and stoned. Not because he was definitely her son, but because he clung to her.

שולחן ערוך (אבן העזר יט:א): מי שהוחזק בשאר בשר, דנין על פי חזקה זו אף על פי שאין שם ראיה ברורה שזה קרוב, ומלקין וחונקין וסוקלין על חזקה זו.

 Aruch HaShulchan (C.M. 2:1): Even though the Jewish court does not judge cases involving capital punishment or flogging or fines outside of Israel – but if the beis din sees that the times require it - because there is a breakdown in law and order – then it is permitted. Everything depends on the judgment of how serious the problem is. Not only can the court judge these cases when there is community lawlessness but even when a single individual sins it is permitted to punish him if they think it is necessary - as long as they do it for pure motivation. This ability to judge these cases in emergency situations is even when there are not valid witnesses but only a reasonable basis that it is true and constant rumors are heard when there are no enemies who would create them

(Rambam (Hilchos Sanhedrin 24:5): A beis din – in all places and for all times  - has the power to flog a person about whom there are rumors of bad behavior and the people and complaining that he has transgressed prohibited sexual relations. This is only when the rumors are unceasing as we have explained and also that he doesn’t have any known enemies who would slander him. ….  

Yam shel Shlomo (Yevamos 10:20):… Similarly the beis din has the right to flog a person who has a bad reputation and there are constant rumors that he is involved in improper sexual relations. However this is only when he doesn’t have enemies that would spread lies about him

Kiddushin (81a): Rav said that we flog a person because of an evil rumor about him

Meiri(Kiddushin 81a): All those who act with inappropriate frivolity until people are constantly complaining about him that he is a sinner is to be flogged based on his activity which leads people to give him a bad reputation – even though no one has given formal testimony that he has sinned… Whoever acts in a way that causes rumors that he is a sinner has violated a negative commandment from Tradition.


  1. Do these punishments flow from the original power of beit din or from the power that seems to have devolved upon them once the kingship disappeared and with it the abiity of the king to maintain civil society?

    Joel Rich

    1. don't know if there was a change - but the rational is clearly that beis din needs to maintain a functioning society and that Torah laws can be ignored - for as long as the dysfunction exists - if they are causing society to deteriorate.

    2. Shulhan Arukh CM 2:1
      1 Any Beis Din (1) [1], even one whose judges lack semicha attained in the Land of Israel [2], if it sees the nation wantonly sinning (2) [3] (and emergency measures are necessary) (Tur), it can punish with death, monetary measures [4] or other means of punishment, even in the absence (3) [5] of solid evidence [6]. If the accused is strong and violent, the court can call in non-Jews to beat him [7]. (The courts also have the power to divest people of their property [8], or destroy belongings, as the judges see fit as essential temporary measures to control the generation) (Tur in the name of the Rambam, Laws of Sanhedrin Chap. 24). All of their actions must be for the
      sake of Heaven. Such powers, however, rest only with the greatest Torah authority of the generation, or with a city’s finest citizens [9] when the community appoints them over them as a court.

      It would seem from here that they stem from the powers that developed later.

  2. So in summary: we require evidence from witnesses unless we don't have any.

  3. "שולחן ערוך (אבן העזר יט:א): מי שהוחזק בשאר בשר, דנין על פי חזקה זו אף על פי שאין שם ראיה ברורה שזה קרוב, ומלקין וחונקין וסוקלין על חזקה זו."

    ציטוט זה אינו קשור לעניננו כלל. בנדון דהשו"ע לא ממיתין ע"פ חזקה, אלא קובעים תחילה את האיסור ע"פ חזקה, ולאחר שזה כבר נחשב איסור שמחייב מיתר, אזי ממיתין ע"פ עדים. וזה דומה למ"ש הרמב"ם שאע"פ שאין מלקין ע"פ ע"א אבל מ"מ האיסור עצמו בע"א יוחזק, ואח"כ מי שאוכל אותו איסור והיו שם ב' עדים, מלקין אותו.
    והדברים פשוטים.

  4. Even though presumption are allowed, they are limited.
    For Example. Derech noafim' is accepted proof, Yichud is not (except a sotah for its limited application).
    'Derech aivorim' is not accepted as a presumption for intercourse (although in our days
    certain activists refuse to accept this halachic limitation).
    Witnesses that are not 100% accurate do not trigger capital punishment even though if
    two people acted as married (with no witnesses to establish it as a fact) capital
    punishment is triggered if adultery is proven at a later time.
    So your right in some cases but not in most instances,

    1. Please define "Derech Noafim" and "Derech Aivorim".

    2. Not So Simple:

      Source please? I believe you are dead wrong.

  5. What is the source for the famous story regarding I believe the Rosh who allowed someone to mutilate the nose(?) of a woman who was acting as a prostitute. I believe its mentioned in the Beis Yosef.

  6. As far as death penalty is concerned for sexual transgressions, in a non-Emergency situation Shulchan Aruch requires:

    1. Prior warning by two eyewitnesses
    2. The sinner, BEFORE sinning, to verbally acknowledge he was warned
    3. Those same two eyewitnesses to witness the sex

    Regarding point 3, there are certain requirements in S"A as far as how much or how closely the sex act has to be witnessed. Perhaps someone else can elaborate what those legal requirements are.

    1. I'm sorry I seem to have missed that seif in the Shulhan Arukh. Would you kindly mind citing a source?

  7. RDE: The headline of this post is at best misleading. The S"A does not pasken one can execute based upon presumption. Only based on an emergency situation. Any other conclusion is only being based a gemora the S"A doesn't pasken like (only an Aruch Hashulchan is quoted for it.)

  8. Dan.
    By asking that question you prove your ignorance.


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