Citing Talmud, Dr Ruth questions sexual consent requirements

JULIE WIENER

NEW YORK

With her new book, “The Doctor is In: Dr Ruth on Love, Life, and Joie de Vivre” out on Tuesday, the German-born Holocaust refugee, Israeli War of Independence veteran who turns 87 this week is on the media circuit. And one of her talking points – which she made on Monday on “The Diane Rehm Show”, a public radio programme – is that consent becomes moot after the clothes are off.

Here’s how she put it: “I am very worried about college campuses saying that a woman and a man – or two men or two women, but I talk right now about women and men – can be in bed together, Diane, and at one time, naked, and at one time he or she, most of the time they think she, can say ‘I changed my mind’.

“No such thing is possible,” Westheimer added. “In the Talmud, in the Jewish tradition, it says when that part of the male anatomy is aroused and there’s an erection, the brain flies out of that and we have to take that very seriously, so I don’t agree with that.”

JTA reached out to Westheimer to clarify her views on consent and find out exactly which passage in the Talmud she was referencing, but she was not available – perhaps not surprising given that Tuesday was the launch day of her book and Monday night she was at a fundraising dinner for the Museum of Jewish Heritage.

However, clearly aware that her comments are being construed as green-lighting rape, she tweeted on Tuesday, “I am 100 per cent against rape. I do say to women that if they don’t want to have sex with a man, they should not be naked in bed w/him.”

Moments later, she added: “That’s risky behaviour like crossing street against the light. If a driver hits you, he’s legally in the wrong but you’re in the hospital.”

Several rabbis are questioning her use of the Talmud.

Rabbi Danya Ruttenberg, author of several books on Judaism, including “The Passionate Torah: Sex and Judaism”, said the Talmud actually offered a strong argument that sex without explicit consent was a crime. The Talmud (in Ketubot 51B) went so far as to assert, Ruttenberg said, that even if the woman had an orgasm or decided in the middle of the act that she did consent, if she had not consented at the outset, it was still considered wrong.

“I’m grateful that Dr Ruth has in the past made a space to talk about human sexuality in a way that was really radical for its time,” Ruttenberg said. “But a) she’s wrong about this, and b) she should not be using our tradition to bolster her argument.”

Although she was uncertain what part of the Talmud Westheimer was referencing, Ruttenberg noted that the statement was quite similar to a Yiddish saying: “Ven der Putz shtayt, der saychel gayt,” literally (according to JTA’s unofficial Yiddish translator, author Shulem Deen), “When the penis ‘stands’, the brains walk out.”

If the rabbis in fact said this – no doubt using less colourful phrasing – Ruttenberg theorises, they probably intended it as descriptive rather than prescriptive.

“The rabbis had a lot to say about sexual arousal and the ways this can be a problem, and how to arrange your life so you are not aroused when it’s not appropriate,” she said, adding: “I’m very comfortable saying, knowing the rabbinic corpus as I do, that they were not saying: ‘Boys will be boys.’ I think they were saying this is a thing that happens and how do we deal with it.”

Rabbi Shmuley Boteach, whose books about sex and Judaism include “Kosher Sex”, “Kosher Adultery” and “Kosher Lust”, said: “I know Dr Ruth and very much like her, but anyone in the Jewish community should strongly object to what she said. Consent is offered by a woman, and it can be withdrawn at any moment.

“The idea that men are ravaging beasts who are controlled by their hormones and can’t stop themselves, is a Neanderthal view that Judaism would never embrace. It’s a shockingly frightening excuse for rape.”

Like Ruttenberg, Boteach was unfamiliar with the precise source of Westheimer’s Talmudic citation and questioned whether the interpretation was accurate. And like Ruttenberg, he pointed out counterexamples from the Talmud.

“The Talmud says [in Sanhedrin 37A] that if a woman begins menstruating in the middle of the act, the man has to prop himself up on his elbows and subside because it’s not sanctioned by Jewish law,” Boteach said, referring to the Jewish prohibition on sexual contact during menstruation known as niddah. “The Talmud is showing that a man can absolutely control himself.”

In addition, Boteach said, the Talmud strongly prohibited rape, even in marriage, ruling in Nedarim 20B that a man could not sleep with his wife when either was drunk, because full consent was not possible.

“A woman’s consent is dependent entirely on her,” he added. “If she says no, stop, that’s it. To say ‘I’m on autopilot’ is ridiculous.”

Rabbi Dov Linzer, head of Yeshivat Chovevei Torah, a liberal Orthodox rabbinical school, agreed with Ruttenberg and Boteach, pointing to the passages they cited and also noting a passage in Berachot 62A saying that even when a man and his wife were naked together in bed, it was incumbent upon him to make sure she desired to have sex before beginning the act.

Although known for its conflicting opinions and arguments, the Talmud was notably consistent about sexual consent, Linzer said, adding that he could not think of any passage that forgave or condonds sex without full consent and that “the whole issue of responsibility and culpability is a major theme in the Talmud.

“This is about inflicting something unwanted on another person,” he said.

While it was “one thing” to use feeling out of control as an excuse for committing certain transgressions, Linzer said, “it’s a different thing to say you can go ahead and do something to someone else, that you don’t have responsibility toward another person.” (JTA)