One way to look at this question is to simply say that there is no such thing as pre-marital sex, as the act of intercourse is one of the ways to become married according to traditional Judaism.Because of this fact, the Bible is relatively silent on this question except to state that a man who has intercourse with a woman who is not his wife, is then required to keep her as a wife (and that includes even men who have wives, because in the Torah polygamy is acceptable).
Of course that is not how we operate in the modern world, so the question is an important one. In Judaism the sexual act is one of extreme intimacy, and therefore is best performed within the structure of marriage. That said, for couples who are in monogamous, committed relationships, it is not a sin, but should always be considered very carefully. Where it crosses into sinful behavior is for those who hop from one sexual partner to another, or for those who are sexually active with several others at the same time.
This distinction is made clear in the text of the Torah. When the Torah speaks of sexual relations between a husband and wife, it uses the term “Yadah” which means “to know.” The use of that term suggests a deep intimacy and love between the two partners. When the Torah speaks of sexual relations that are conducted outside of that bond, other terms are used.The term “Yavo” – to come, tends to be used in cases of prostitution (Judah and Tamar) and when a man takes a concubine (Abram and Hagar), while the term “Shachav” – to lie with, tends to be used in cases of idolatrous practice (such as occurred with ancient fertility rites), improper relations between relatives (the story of Lot and his daughters and Leviticus, chapters 18 and 20) and cases of rape (rape of Dina).
Therefore the ideal sexual relationship is one conducted in the spirit of “Yadah” of two people who intimately know and love one another.For Judaism, the best way to create that sense of intimacy is through the vehicle of marriage (whether state sanctioned or not).
The Torah presumes that a woman will leave her parents’ household a virgin and will have sexual intercourse only once she enters her husband’s house upon marriage. This presumption is clear in the way Torah deals with violations of this rule in Deuteronomy 22:13-29 and Exodus 22: 15-16.
Before dealing directly with how these texts begin to answer your question, some background regarding the process through which a woman goes from being a single woman in her parents’ household to a married woman according to Torah law (as interpreted in the Rabbinic tradition) is required. This process involves two stages. The first stage is erusin – betrothal, in which the exclusive sexual relationship between a man and a woman is contracted and sanctified, but not yet entered into. Until the middle ages, erusin initiated a one-year period during which the couple prepared for marriage – building and furnishing a home. During this period, the woman has the status of me’orasa - betrothed. At the end of this period, the ceremony of chuppah, in which the seven blessing are pronounced, begins the marriage (nisu’in) of the couple. The blessing for the ceremony of betrothal – erusin – praises God as the one who forbids to us those who are betrothed (arusot) and permits to us those who are married (nesu’ot) to us through chuppah and kiddushin (sanctification). Thus during the erusin stage, the betrothed couple are forbidden to have sexual relations with each other. However, betrothal requires a divorce should the couple decide to split up, and if the woman were to have a sexual relationship during this stage with a man other than her betrothed, the parties to that sexual relationship would be guilty of adultery, just as they would be guilty of adultery if that sexual relationship were engaged in after the woman had entered the marriage. Since the middle ages, erusin and nisu’in have been collapsed into one combined ceremony, so the status of me’orasa generally lasts for only a few moments during the ceremony.
Exodus 22:15-16 deals with the case of an unmarried, unbetrothed woman who is seduced while still in her parents’ household: “When a man seduces a virgin who is not betrothed and lies with her, he shall surely make her his wife by payment of the bride-price. If her father refuses to give her to him (in marriage), he must still weigh out silver in accordance with the bride price of virgins.” Leaving aside the matter of the monetary damage caused by the loss of the woman’s virginity before marriage in a society where that was a significant concern, a few conclusions can be drawn from this law (as well as the parallel laws regarding a rape in Deuteronomy 22: a) sexual relations should be for marital purposes – i.e., to establish or maintain a marriage; b) an unbetrothed, unmarried woman who has a sexual relationship before marriage (and the man who has sexual relationships with her) are not in violation of a severe prohibition on the level of adultery and other major sexual violations listed in Leviticus 18:6-23; it is a violation of the sanctity expected of sexual relations within marriage which can best be corrected after the fact by formalizing a marriage between the parties.
Since sexual intercourse is one of the three ways by which a man can legally sanctify a marriage, the intention of the parties to the act is crucial. Sexual intercourse outside of marriage with no intent to sanctify a marriage is defined as zenut – fornication. According to Rabbinic sources, God hates zenut (Palestinian Talmud, Sanhedrin ch. 10, 28d; Mishnat Rabbi Eliezer, parashah 18, p. 335-6; Eichah Rabba 5). However, since intention cannot be easily discerned by anyone other than God, the Rabbis of the Talmud operate under the presumption that a person does not have intercourse for the purpose of zenut, but rather has marital intentions (Gittin 81b; Tosafot there, s.v. Beit Shammai). Thus a single woman who is known to have engaged in sexual intercourse with a single man to whom she was not married is presumed not to have engaged in an act of zenut (opinion of the Sages in Yebamot 61b as opposed to the opinion of R. Elazar there), unless there is decisive contextual evidence to the contrary.
Irrespective of intention, a more severe prohibition most likely applies to almost all cases of premarital sex these days. Leviticus 18:19 and 20:18 forbid intercourse with a menstruant woman, stipulating a severe penalty. Talmudic law considers the severe penalty to apply even to an act of intercourse which occurs long after the cessation of the menstrual flow so long as the woman has not immersed herself fully in a mikveh or natural body of water for purification (Shabbat 64b; Maimonides, Laws of Forbidden Intercourse 4:3; Shulhan Arukh YD 197:1, ). Since unmarried women generally do not immerse themselves seven days after their menstrual periods as mitzvah-observant married women do, it must be presumed that any act of premarital sex will violate this severe prohibition.
A cautionary story I have heard is in order here. The story is of two yeshiva students in the same yeshiva, each of whom was discovered to have engaged in an act of premarital sexual intercourse. One of the students insisted that the woman immerse in a mikveh before engaging in the act. The other student had intercourse with a woman who had not immersed. The student who insisted that his partner immerse in the mikveh was expelled from the yeshiva. The other student was allowed to remain in the yeshiva and repent. Apparently, the one who had the presence of mind and discipline to insist on avoiding the more severe prohibition was considered more culpable for not having applied that discipline to not violating the less severe prohibition. The one who violated the more severe prohibition could sincerely express regret for having succumbed totally to his passions in the moment.
To sum up: premarital sex is forbidden in Jewish Law. It is forbidden even when the parties to the act intend a life-long relationship, even when they are engaged to be married, even when they have legally sanctified an exclusive relationship through erusin. It is forbidden until after the couple is married through the ceremony of chuppah. While the prohibitions against premarital sex may not be equal in severity of the legal or moral consequences of violating the prohibition(s) depending on the circumstances, premarital sex is equally forbidden by Jewish Law in all circumstances.
When faced with the temptation to engage in sex before fully entering marriage, we should seek to emulate the disciplined behavior of Boaz in Ruth 3:13, as understood by the Rabbis (Sifrei Bemidar, Beha’alotekha, pisqa 88). Boaz was sleeping by his grain on the threshing floor when he noticed that a woman was laying by his feet. When Ruth answered Boaz’s inquiry by identifying herself and indicating that she would be willing to marry him in order that he could redeem the estate of her deceased husband and father-in-law, Boaz said, “By the life of Hashem, lie here until morning.” The Rabbis understand Boaz to have made two separate statements, only the second of which was addressed to Ruth. “Since the evil inclination was troubling Boaz all night, telling him, ‘you are unmarried and seeking a wife, and she is unmarried and seeking a husband, and you know that a wife can be acquired through intercourse, get up and have intercourse with her, and she will become your wife,’ and Boaz said (swore) to the evil inclination, ‘By the life of Hashem, I will not touch her,’ and to the woman he said, ‘lie here until morning.”
Since most people lack that level of discipline, Jewish Law requires that a man and a woman who are not married to each other should not be alone in private in order not to be in a position of temptation (Kiddushin 80b-81a; Maimonides, Laws of Forbidden Intercourse 22:3 ff.; Shulhan Arukh EH 22).
Your question is an excellent one and it is as most questions at first glance, simple but much more complex. Sex with all of its emotional weight is always a very complicated issue particularly in a religious community and context. The Torah tells us early on that sex within the context of an established relationship is an important value:
God built the rib that he took from the man into a woman, and God brought her to the man. The man said, 'Now this is bone from my bones and flesh from my flesh. She shall be called Woman (Ishah) because she was taken from man (ish).' A man shall therefore leave his father and mother and be united with his wife, and they shall become one flesh. The man and his wife were both naked, but they were not embarrassed by one another. (Genesis 2:22-25)
Obviously, this story raises serious questions about gender equality in the Torah, but let's leave that discussion for the moment. It is important to note that all of the early characters in the Torah are sexually intimate in the context of a marital relationship. Sex, even as far back as the Bible within those confines is clearly a normal, natural and healthy part of the dynamic. In early Genesis itself we received the commandment “be fruitful and multiply” which obviously requires sexual intimacy. This intimacy is so critical to the Torah’s view of relationships a violation of the marriage covenant is condemned in the strongest terms:
Do not lie carnally with your neighbor's wife, since this will defile her. (Leviticus 18:20)
The later rabbinic tradition also strongly condemned acts of lust or non-marital sexuality. Marriage and family are understood as holy obligations; making a covenant with another human being is part of fulfilling our covenant with God. It is primarily within that context that sex is discussed.
However, this is simply not the reality for most people today. People wait longer to start careers, they have access to birth control, and they have long, caring, committed monogamous (but non-marital) relationships, not particularly common in pre-modern society.
So how should we create a Jewish sexual ethic in this context? Well, although there is no document endorsing pre-marital sex there are certain guiding approaches we might use to create such a document. We should seek to create a document, which perhaps would recognize the possible holiness that might be created between two monogamous, consenting adults in a loving relationship in the context of their sexual relationships. A beautiful ethical framework for understanding sexual relationships is articulated by (my teacher) R. Elliott Dorff, in A Rabbinic Letter on Intimate Relations, published by the Rabbinical Assembly.
R. Dorff describes eight values that should affect Jewish sexual decision-making:
1) Seeing oneself and one's partner as the creations of God
2) Respect for others
6) Health and safety (including emotional safety)
7) The possibility of a child
8) The Jewish quality of a relationship
While R. Dorff, would not explicitly say that premarital sex is the Jewish ideal, premarital sex can be sanctified and made holy by applying these basic Jewish principles and ideals to those parts of our life. If a relationship is characterized by honesty, respect, commitment, mutuality, humility and modesty it can be seen within the framework of Jewish sexual ethics.
Though historically premarital sex may not have been the ideal, the reality before us is of import: young American Jews are waiting longer to get married and engaged in meaningful relationships outside of marriage well into their 30’s. Sexual and physical intimacy is an important part of these relationships and we want as Jews to sanctify even new, modern constructions of relationships. Much of Judaism’s wisdom comes from its ability to construct holy moments, holy encounters in the most basic parts of our human existence. Judaism’s ability to respond to new concerns and new needs in relationships is its greatest strength, always keeping in mind the basic values and ideals of respect, responsibility and commitment.
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