To Be Or Not To Be (Shomer Negiah, That Is) ?

    It seems that the topic of shomer negiah is all over the news recently, yet despite the rhetoric, the Modern Orthodox community has yet to engage in a serious dialogue about the issue. This is a pity, because hundreds of young single people are suffering, either through their observance of this custom, or through guilt about their lack of observance.

    Part of the reason for lack of a meaningful conversation is that shomer negiah has become a meta-concept, encompassing different themes that should in fact be diffrenciated from each other: There is the set of Jewish laws about pre-marital contact, the philosophy that developed around those laws, and the social behaviors that developed as a result of the first two categories. This article will attempt to briefly attempt all three aspects of shomer negiah.

    Let’s start with the laws: The Torah forbids Jewish women from having sex after their periods, without first immersing in a ritual bath, the mikvah. Single women used to immerse, but then the rabbis feared that allowing single women to immerse would cause them to behave lewdly, thus, they passed a decree forbidding single women from immersing in mikvah. That way, single women would have to worry about violating a Torah law if they chose to have sex – more specifically, a Torah law whose prescribed punishment was karet, the ultimate Biblical justice. According to most rabbinic opinion, the violation of not having sex without immersion actually applies to all sexual contact – hence, the laws of shomer negiah were born.

    Once the laws were born, they needed a philosophy to justify their existence. Thus there sprung up a host of literature about the beauty of waiting until marriage, how touch in marriage is more beautiful if your spouse is your only sexual partner, how if you touch men before marriage (most of this literature is addressed towards women, for some reason – actually, the laws of shomer negiah are addressed primarily towards women: It is controlling women’s bodies, by not allowing them to immerse, that keeps the shomer laws in force), they will use you for your body. A prime example of this type of literature is Gila Manolson’s classic, “The Magic Touch”.

    Naturally, ritual and philosophy could not help but impact the society that adopted them. Modern Orthodox education today focuses on how a) all sexual touching outside of marriage is “bad” or “sinful” b) how waiting for marriage makes everything more special. This leads to an unhealthy dynamic, where teenagers and young adults have not been taught to distinguish between different types of touch, both emotionally (in a relationship or out, what type of relationship, do you trust the other person), and physically (kissing, “making out”, oral sex, intercourse, etc.). Knowing how to diffrenciate between different types of touch is essential for making healthy sexual decisions, and setting up boundaries one is comfortable with. Often, because students are taught that all touching is bad, and that kissing is “as bad” as sex, they feel that once they are doing one, they might as well do the other – after all, if both are equally sinful, so what difference does it make?

    Furthermore, because students are not taught about the laws surrounding mikvah until after they are engaged, when they sign up for bride/groom classes, many people who are not shomer do not realize that from the point of view of Orthodox Jewish law, their actions are more “kosher” if they immerse in mikvah – thus leading to widespread sexual activity sans mikvah immersion, which from the perspective of Orthodox Jewish law, means widespread violation of Torah prohibitions. In the Modern Orthodox world, mikvah is thought of as something for after marriage, whereas sexual activity is thought of as something that is supposed to be – yet is often not – for after marriage.

    This leads me to my next point about shomer negiah: Many Modern Orthodox Jews are not shomer, even if they claim to be so. For some, it may be the slip-up of a kiss here and there, while for others, it may be habitual non-shomerness in private accompanied by habitual shomerness in public. For most who violate these laws, this violation is accompanied by guilt and shame – meaning that a large segment of single Modern Orthodox Jews are experiencing shame about their sexuality – which is unhealthy and makes it more difficult to find a spouse and build a Jewish household – precisely the values that shomer laws were designed to protect. The stigma of non-shomerness is such that many are afraid to admit it for fear of it ruining their future shidduch chances, yet at the same time, I know certain Orthodox Jews who, in private conversations, admit to having doubts about marrying shomer people – they don’t want anyone who is too inexperienced. This leaves many daters in a “damned if you do, damned if you don’t” position, where if they are not shomer, they are tainted for some potential matches, whereas if they are shomer, they are tainted for others – even though these others may in fact publicly claim to be shomer!

    Many Orthodox rabbis I have spoken to about changing the laws of shomer negiah, have cited widespread adherence to the laws of shomer negiah as proof that custom is “working”.  In fact however, this set of laws is not working – not just because large segments of Modern Orthodox society are not keeping it, leading to widespread violation of Torah prohibitions about mikvah (since most non-shomer singles do not immerse, do the extreme taboo around it or to ignorance about mikvah laws), or because the disparity between public reputation and private action this custom produces speaks of hypocrisy, which is contrary to the spirit of Judaism, but also because this custom is producing frustration and fear of intimacy in those who do observe it, and guilt and shame about their sexuality for those who don’t, and all of these things are impediments to building healthy romantic relationships. In fact, the psychological effects of the shomer social structure may be partially responsible for the “shidduch crisis”.

Too often, the debate around shomer negiah centers on whether women and men can overcome their biology. The question however, is not whether they can – as a religious person, I do believe in freedom of choice, and the ability to overcome things despite the odds – but whether they should have to overcome their biology. Unlike the prohibition on anal sexual intercourse between two men, the prohibition on single women immersing is not a Torah prohibition, meaning that the rabbis have the authority to undo it. There is precedent for undoing a small prohibition in order to prevent  widespread violation of a bigger prohibition, which was originally the Chofetz Chaim’s justification for allowing women’s Torah learning. There is also precedent for using the concept of “her ways are ways of pleasure” in order to change rabbinic rulings towards a more lenient direction, as Dr. Daniel Sperber has shown in his book about women’s Torah reading. When it comes to the laws of shomer negiah, surely both principles would apply.

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