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Noah Benjamin Bickart Yale University Room 305 451 College Noah Benjamin Bickart Yale University Room 305 451 College St New Haven, CT 06511 646.248.9231 [email protected] Crimes Against Nature: Male/Female "Sodomy" in Rabbinic Literature Abstract: Despite a general predilection for leniency with regard to non-Jews vis-a-vie Jews, in three places in the corpus of Palestinian rabbinic literature, non-Jews are explicitly enjoined against engaging in male/female anal intercourse. Conversely, this act is understood by the Mishnah to be "normal" intercourse for all practical purposes for Jews. The Bavli depicts Rava, a Babylonian sage, as having been surprised enough by this distinction to radically reinterpret it, declaring anal sex to be not "sex" at all for gentiles. Comparisons to contemporaneous Roman poetry demonstrate that the Palestinian texts actually reflect a widespread cultural disapproval of anal sex between men and women. Conversely, Rava's rereading makes perfect sense in the light of Sassanian Persian sexual norms. In both cases, Rabbinic culture is shown to police the boundaries of Jewish communities by means of this particular way of copulating. 2 Crimes Against Nature: Male/Female "Sodomy" in Rabbinic Literature From a strictly jurisprudential perspective, Rabbinic or "Talmudic" literature envisions not one but two legal systems which, from the perspective of the authors and editors of this body of literature, ought to govern the world.1 The first is Sinaitic law, the body of civil and religious law assumed and detailed by the Biblical text and thought to have been transmitted by God to Moses directly, and interpreted and developed by an unending chain of human interpreters. This body of law is conceived as essentially nationalist; applicable to the ethnic category Israelites/ Hebrews/Jews wherever they may be,2 but especially focused on the duties and obligations these citizens have to one another and to the divine in a polity in the Land of Israel. And yet, Rabbinic literature sees another body of law as mandated in the biblical text, a simpler set of fewer laws which are enjoined upon all of humanity. These are the "Noahide" laws, derived in various ways from the biblical account of Noah and the series of divine commands given to him and his family upon exiting the ark and repopulating an earth destroyed by divine wrath.3 In the most familiar 1. Suzane Stone, "Sinaitic and Noahide Law: Legal Pluralism in Jewish Law," Cardozo Law Review 12 (1991), 1157. See also, Devora Steinmetz, Punishment and Freedom: The Rabbinic Construction of Criminal Law (Philadelphia: 2008), 20-39; Christine Hayes, What’s Divine about Divine Law? (Princeton, NJ and Woodstock: Princeton University Press, 2015); 331-370. 2. On these names in antiquity, see: Martin Goodman, "Romans, Jews and Christians on the names of the Jews," in D.C.Harlow et al., eds., The‘Other’ in Second Temple Judaism, (Eerdmans: Grand Rapids, Mi. and Cambridge, 2011), 391- 401. 3. Ironically, some of the prooftexts offered come from Biblical commands given to Adam and Eve, and not to Noah and his family. See below. 3 schema,4 these laws cover seven discrete areas: mandating the creation of a just legal system,5 while prohibiting murder, theft, idolatry, blasphemy, tearing a limb from a living being and, fi- nally, certain sexual behaviors and/or partners.6 Thus, "Jewish law" mandates a kind of legal plu- ralism, in which overlapping yet distinct bodies of law are concurrently operative.7 Yet these two systems also draw and maintain boundaries between the people who are the subjects of one or the other of the systems. 4. Devora Steinmetz claims that the Bavli contains two different presentations of the seven laws, the first of which reflects classical notions of Natural Law, and the second of which appears more similar to contemporary views of Natural Law. See Steinmetz, Punishment and Freedom, pp. 31-33. Hayes, however, notes that other Rabbinic sources preclude viewing the Noahide laws as reflecting Natural law, and that the Bavli's presentation of a "natural law" theory sees such a claim as sui generis and rejects it. See Hayes, Divine Law, 363-4. 5. How this system of laws does and does not conform to Jewish jurisprudence is a matter of considerable debate, see: Nahum Rakover, “Jewish Law and the Noahide Obligation to Preserve Social Order,” Cardozo Law Review 12 (1991): 1073-1136. 6. This topic has been the subject of a number of scholarly monographs and articles, see for example, Beth Berkowitz, Defining Jewish Difference: From Antiquity to the Present, (New York: Cambridge University Press, 2012); Shaye J. D. Cohen, The Beginnings of Jewishness: Boundaries, Varieties, Uncertainties (Berkeley: University of California Press, 1999); David Novak, "Les Lois Noahides et les Relations entre Juifs et non-Juifs," La civilisation du judaïsme (2012) pp. 197-213; David Novak, The Image of the Non Jew in Judaism: An Historical and Constructive Study of the Noahide Laws (NY and Toronto: 1983); Isaac W Oliver, "Forming Jewish identity by formulating legislation for gentiles." Journal of Ancient Judaism 4,1 (2013) 105-132; Nahum Rakover, Law and the Noahides: Law as a Universal Value (Jerusalem: 1998); Hayes, Divine Law, 331-70. 7. Steinmetz, ibid. contends that two jurisprudential systems are represented here. The Noahide laws reflect a set of unchangeable moral principles which serve as basis for all human conduct, and are thus analogous to Natural Law, whereas the covenant at Sinai represents Legal Positivism, in the which divine and later human commands form the body of law, which is distinct from abstract notions like morality or nature. As with almost all statements concerning basic tenets of Rabbinic Judaism, however, the texts do not speak with a single voice. There is a stream of thought within the tradition which sees the Sinai moment not as a radical break with the legal past, but as its summation. In other words, the process of revealing divine law to humans is one which began with the first human being but which culminates with the giving of the Law to Moses. As Christine Hayes puts it, "The rabbinic idea of continuous divine lawgiving collapses the difference between creation and revelation. By dating the inception of the revelation of concrete laws to creation, the rabbis brought creation under the umbrella of Sinai." Christine Hayes, Divine Law, 333. 4 Scholars of Rabbinics tend to treat sexuality as an aspect of culture which was not, as Michael Satlow puts it a "strong site for a distinctive identity,8" assuming that Jews and gentiles generally shared ideas about sex. Indeed, there is considerable overlap between the sexual part- ners and acts prescribed and proscribed for gentiles and Jews. But they are not identical. To com- plicate the matter, Rabbinic documents are no more univocal about sex than they are about any other topic; different sets of texts present different degrees of overlap between the two bodies of legislation. As Yishai Kiel explains: The Palestinian sources tend to extend the levitical laws of prohibited sexual part- nerships to non-Jews, thereby applying a nearly-universal (there are a few excep- tions) standard of sexual morality; the Babylonian Talmud takes a particularistic approach, differentiating between Jews and non-Jews vis-a-vis accountability for sexual misconduct. On the Babylonian Rabbinic approach, the levitical sexual prohibitions apply only to Jews, whereas the sexual prohibitions governing non- Jews are derived from pre-Mosaic legislation and narrative. Consequently, the le- gal standards that apply to non-Jews are considerably more lenient, as non-Jews are essentially permitted to engage in a number of sexual partnerships that are prohibited to Jews.9 In Kiel's schema, while the Talmuds disagree as to whether legislation for gentiles is more le- nient or equally lenient as it is for Jews, gentiles are not prohibited from engaging in sexual be- haviors which are licit for Jews. Yet one of the unstated exceptions at which Kiel hints but does not state outright, presents a stark counter example. In three places in the corpus, non-Jews are explicitly enjoined against engaging in male/female anal intercourse. For Jews, this act is not only tolerated, but considered "normal" intercourse for all practical purposes as can be seen clearly from the last line of mYe- bamot 6:1: 8. Michael Satlow, "Rabbinic Views On Marriage, Sexuality, And The Family," in Cambridge History of Judaism Vol. 4, edited by Steven T. Katz (Cambridge: Cambridge, 2008), 612. 9. Yishai Kiel, "Noahide Law and the Inclusiveness of Sexual Ethics: Between Roman Palestine and Sasanian Babylonia." Jewish Law Annual 21 (2015): 60. 5 משנה יבמות ו:א (כי"ק) (Mishnah Yevamot 6:1 (MS Kauffman A50 הבא על יבמתו בין שוגג בין מזיד A Levir] who has sexual intercourse with his brother's widow] בין באונס בין ברצון אפילו הוא whether accidentally or on purpose, unwillingly or willingly, and שוגג והיא מזידה הוא מזיד והיא -even if it was accidental for him and on purpose for her, or on pur שוגגת והוא אנוס והיא לא אנוסה pose for him and accidentally for her, against his will but willingly היא אנוסה והוא לא אנוס אחד for her, or unwillingly for her and willingly for him, whether he המערה ואחד הגומר קנה ולא .[only penetrates her partially or fully, he acquires her [as a wife חלק בין ביאה לביאה: .And no distinction is made between [types] kinds of intercourse The "types" of intercourse referred to here are vaginal and anal modes of sexual intercourse,10 both of which change the legal status of the woman in question. No longer a shomeret yavam, "a widow awaiting levirate marriage," she is now a "wife." The prohibition against gentile anal sex appears in three places in the Rabbinic corpus: בבלי סנהדרין נח ע"ב (כי"ת15) בראשית רבה פרשה יח (13Vat.
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