Thursday, September 06, 2007

Daf Yomi Ketubot 35b: The Mature Woman's Claim of Virginity

Note: Not intended halacha lemaaseh. Somewhat mature context, but that is what happens in masechet Ketubot.

This post addresses issues of girsology and halacha, to a very common occurrence -- the marriage of a mature virgin who already menstruated at some point in her life. How many times during the wedding night might the new husband and wife have intercourse? According to standard current practice, after the first intercourse, we assume that any blood we see was not blood resulting from the torn hymen, but rather is menstrual blood, and so she is a niddah. Therefore, he must separate after the first intercourse, and they don't touch each other again during the seven days during which she is supposed to be rejoicing with her new husband. Furthermore, even if they do not see blood, we assume it was there but was tiny, and perhaps covered by semen, and so the same rules apply -- we treat her as a niddah.

I do not believe that this halacha is correct (though of course this post is not halacha lemaaseh), but I see how it developed. And it developed through unfortunate girsology.

I cite the following from my ongoing translation of the Rif:
גרסינן בפ' אלו נערות
החרשת והשוטה והבוגרת ומוכת עץ אין להן טענת בתולים
הסומא והאילונית יש להן טענת בתולים
ומקשינן ובוגרת אין לה טענת בתולים
והאמר רב בוגרת נותנין לה לילה הראשונה אלמא אית לה טענת בתולים דאי לית לה אמאי נותנין לה לילה ראשונה הא דם נדה הוא
ומפרקינן אי דקא טעין טענת פתח פתוח הכי נמי דיש לה טענת בתולים דכל בתולה בוגרת פתחה סתום
אלא הכא במאי עסקינן דאין לה טענת בתולים דקא טעין טענת דם
דאמרינן האי בתולה היא אלא שכלו דמיה
והא דרב אוקימנא פרק תינוקת בבוגרת שעדיין לא ראתה דם אבל בוגרת שראתה ועודה בבית אביה אין לה אלא בעילת מצוה ופורש
וכן הלכה
נמצאו עכשיו שהבתולות הבוגרות יש מהן שיש להן דמים והיינו דאמר רב נותנין לה לילה הראשון ויש מהן שאין להן דמים והיינו דקתני הבוגרת אין לה טענת בתולים הא טענת פתח פתוח יש לה
וכן הלכתא
We learn in perek Elu Naarot {Ketubot 35b-36a}:
The female deaf-mute, the female imbecile, the mature woman, and the one wounded by wood {such that she tore her hymen} -- they do not have to them a claim of virginity {able to be lodged against them}. The blind woman and the aylonit {who never developed signs of maturity} do have to them a claim of virginity.
And we ask: And does a mature woman not have a claim of virginity? But Rav said, "A mature woman, we give her the first night {to continue to have intercourse}." Thus it is clear that she does have a claim of virginity, for if she does not, why do we give her the first night -- it is surely menstrual blood?!
And we answer: If he lodges the complaint the "I found the opening open," indeed she does have a claim of virginity {able to be lodged against her}, for all virgin mature women, her opening is closed. Rather, with what are we dealing when we say that she has no claim of virginity {against her}? Where he claimed a claim of {absence of} blood. That we say that she was a virgin, but her blood {which would come from breaking the hymen} was finished {used up}.
And this of Rav, we establish it in perek tinoket {Niddah 64b} as referring to a mature woman who had not yet seen {menstrual} blood, but a mature woman who had seen {menstrual} blood when she was still in her father's household, she only has the intercourse of precept and then he separates.
And so is the halacha.
We now find that mature virgins, some of them have blood {since it was not "finished"} and this is what Rav said that we give them the first night, and some of them do not have blood {since it has "finished"}, and this is what they teach that the mature woman does not have {against her} a claim of virginity {based on absence of blood}, but a claim of "an open opening" she does have.
And so is the halacha.
This is quite a long and elaborate Rif, especially when we compare it with the gemara(s) he is citing. The overwhelming majority of text above is the Rif's elaboration and explanatory comments. And when so much commentary is needed, this is often enough a clue that something is wrong.

The plain text of the gemara in Ketubot is simply:
והבוגרת אין לה טענת בתולים: והאמר רב בוגרת נותנין לה לילה הראשון
אי דקא טעין טענת דמים הכי נמי הכא במאי עסקינן דקטעין טענת פתח פתוח
This gemara can be very simply explained:
"A mature woman has no claim of virginity {against her}." But Rav said that a mature woman, they give her the entire night {to have intercourse}. {Thus, we assume that her torn hymen will bleed, and this is not menstrual blood, and so she may continue to have intercourse that first night despite the blood.} If he claimed a claim that she lacked blood, indeed {it would be a valid claim}. In what case are we dealing {where the mature woman has no claim against her}? Where he claimed that "the opening was open" {for she will not be as "tight" as a minor}.
This works out quite well locally, though there would be some problems with the gemara in Niddah (which we will eventually address). Why does the Rif not simply give this explanation we have just offered?

The answer is that the Rif has a different girsa of the gemara than we have. While we have אי דקא טעין טענת דמים הכי נמי הכא במאי עסקינן דקטעין טענת פתח פתוח, Rif has the two clauses reversed. Thus, instead of אי דקא טעין טענת דמים הכי נמי, he has אי דקא טעין טענת פתח פתוח הכי נמי, and instead of our הכא במאי עסקינן דקטעין טענת פתח פתוח, he has הכא במאי עסקינן דקטעין טענת דמים. This causes all sorts of problems with the straightforward reading of the gemara, which I will list shortly.

Indeed, Rashi explicitly puts a hachi garsinan, that this should be our girsa (as we have in our gemara rather than as in Rif), at the top of Ketubot 36a, so he was aware of this competing girsa. And Tosafot notes Rashi's choice in girsa and notes that Rabbenu Chananel differs and gives the opposite girsa (parallel to what we have in Rif).

We have the following difficulties assuming the Rif's girsa:
  1. The objection to the statement that she has no claim of virginity against her is made from Rav's statement that she has the whole night. The implication of Rav's statement was that she would bleed. The response of the gemara should a harmonization -- that the claim that cannot be made against her has nothing to do with blood, but rather about "an open opening." However, of course there should be blood, so such a complaint can indeed be lodged against her. This is the obvious harmonization, which our girsa of the gemara has.
    Instead, the gemara agrees that a complaint about blood cannot be brought. This just reinforces the contradiction with Rav's statement.
  2. Furthermore, what cause is there to conclude that a claim of "an open opening" is not a valid claim?? It would make sense if it were a harmonization with Rav's statement, but if it is not forced in this manner, why should I believe that any claim about a mature virgin is valid? We only have the Tannaitic statement that a claim about virginity is not valid. This claim about "an open opening" being a valid claim now comes from nowhere.
  3. Furthermore, we are left with no harmonization. The gemara does not say שכלו דמיה. It is the Rif's statement and elaboration, that comes from nowhere. Unless we say that because of this difficulty, this was actually in the text of his gemara, perhaps added by some Savora. I would point out that שכלו דמיה is clearly Hebrew, with she- as a prefix to kalu, while the statement in the gemara it is explaining is clearly Aramaic, with de- as a prefix to ka ta'in.
  4. We have to appeal to a somewhat odd medical theory that she ran out of blood, such that an injury to the hymen would not cause it to bleed. It is one thing to claim that her hymen was worn away, or is not as tight, such that we should not expect blood. But we are explicitly saying, in Rif's version, that a mature virgin's opening is closed. Thus, why should we not expect blood. The answer is once again an odd medical theory, that menstruation might have caused her to "run out" of blood. This despite the fact that next month, she will indeed menstruate, such that she did not run out of blood for menstruation. But somehow, having menstruated before, while betrothed, caused specifically the hymen not to bleed when torn.
  5. In order to bolster this explanation, Rif explains the gemara in Niddah against its simple reading. Niddah 64b read:
    אמר רב בוגרת נותנין לה לילה הראשון
    וה"מ שלא ראתה אבל ראתה אין לה אלא בעילת מצוה ותו לא
    The simple meaning of this clarification in gemara, based on context and other factors, is that this, where she may continue to have intercourse the entire night, is where she did not see blood during the intercourse, but if she indeed saw blood, she only has this first intercourse of precept.
    Instead, Rif must explain that this is whether she ever in her life saw blood before, during the normal course of menstruation. Indeed, the overwhelming majority of mature women would have seen menstrual blood at some earlier point in their lives. This is an awkward reading in the gemara in Niddah. (See Ketubot 6a, though, about the tinoket shehiga zemana lir`ot. I don't think this forces Rif's explanation, however.)
This next point should be a point #6, but it was important enough to take it out of the list and treat independently. That is that, according to the setama digmara according to the Rif's version, a mature virgin's opening is closed. This is explicitly contradicted by a Yerushalmi, in Yerushalmi Ketubot 2a:
רבי יונה בשם רבי קריספא בוגרת כחבית פתוחה היא
הדא דאת אמר שלא להפסידה מכתובתה אבל לקיימה אינו רשאי משום ספק סוטה
ואתייא כיי דרבי חנינא דרבי חנינא אמר מעשה באשה אחת שלא נמצאו לה בתולים ובא מעשה לפני רבי אמר לה איכן הן אמרה ליה מעלותיו של בית אבא היו גבוהין ונשרו והאמינה רבי
הדא דתימר שלא להפסידה מכתובתה אבל לקיימה אינו רשאי משום ספק סוטה
Rabbi Yona cited Rabbi Krispa: A mature woman {virgin} is like an open cask.
This that you say is so as not to deprive her of her ketuba, but to maintain her {as a wife}, he is not permitted, because of her being a doubtful adulteress {who cheated while betrothed}.
And this goes like this of Rabbi Chanina. For Rabbi Chanina said: There was an incident with a certain woman who they did not find virginity, and the incident came before Rabbi. He said to her: Where are they? She said to him: The steps of my father's house her steep and they wore {/tore} away. And Rabbi believed her.
This was said in terms of not depriving her of her ketuba, but to maintain her, he is not permitted, because of her being a doubtful adulteress.
An open cask most certainly has the implication of finding her opening open, rather than lack of blood.

We see the same thing in Yerushalmi Yevamot 36b:
לא ישא את הבוגרת ר' לעזר ורבי שמעון מכשירין בבוגרת שוין שלא יקח את מוכת עץ. מה בין בוגרת. מה בין מוכת עץ. בוגרת כלו בתוליה במעיה מוכת עץ יצאו בתוליה לחוץ. ואית דמחלפין לא ישא את מוכת עץ רבי לעזר ורבי שמעון מכשירין במוכת עץ. ושוין שלא ישא את הבוגרת. מה בין בוגרת מה בין מוכת עץ. בוגרת עברו ימי הנעורים. מוכת עץ לא עברו ימי הנעורים אחות מוכת עץ
Thus, both the woman injured by wood and the mature woman do not possess her hymen, though due to different causes. This does not have to do with lack of blood, but rather with lack of hymen. This goes well with our version of our Bavli Ketubot, but directly contradicts Rif's version.

Under Occam's Razor, our girsa of gemara is correct, and Rif's is incorrect. Therefore, we should not be basing halacha on Rif's (and Rabbenu Chananel's) girsa of the gemara.

Thus, it is a claim of "an open opening I found" that has no validity, just as we find in these two Yerushalmi's. The Rif's assertion that a mature woman's opening is closed is untrue. Her opening is open, as Rabbi Krispa stated, and thus the claim is invalid. However, the claim of finding no blood does indeed have validity.

But if her opening is open, how could a claim of finding no blood be valid. Only if her opening is closed will he tear the hymen with intercourse, so perhaps her opening was open and so she had no blood?! The harmonization appears to be invalid.

Indeed, I would argue that the harmonization, offered by the setama digmara, is in fact invalid. This difficulty could well have been what caused some scribe to reverse the two claims.

But if the harmonization is invalid, what do we do with Rav's statement?

I would suggest two possibilities.

1) I am wrong, and the harmonization is indeed valid. Perhaps the hymen will give way readily, such that he thinks he found an open opening, but in reality it was present and tore, such that there is blood. So carry on. (That is, you do not have to accept this particular portion of my argument.)

2) I am right, and the harmonization is indeed invalid. So how do we square the two statements?

Simply put, there is no contradiction. No claim against virginity can ever be brought against a mature woman, because she is like an open cask, as Rabbi Krispa stated. One cannot bring against her a claim of "an open opening I found," and therefore, certainly no claim of absence of blood may be brought against her either.

However, that she is like an open cask does not mean that she must be like an open cask. In certain cases, her opening might be closed and she might therefore see blood from a torn hymen. Indeed, this is the case bechol yom. All the Mishna is saying is that if she does not see blood from this, or if he finds an open opening, he should not attribute it to infidelity, but in enough cases it is simply because she is like an open cask that no claim of virginity may be brought. But blood, or a closed opening would not be considered a nes by Chazal.

On to Rav's statement. A tinoket, that is a younger woman, has a certain number of days in the beginning of marriage during which blood seen during intercourse is attributed to the torn hymen rather than menstrual blood. A bogeret, a more mature woman, only has this first night to have intercourse as long as she likes. That, clarifies the setama digmara, is if she did not see blood, but if she did see blood, that is the end of the intercourse.

The blood here is blood seen because of the intercourse. (Note that I am taking a different interpretation here than the Rif, who says "saw blood" meant that she saw menstrual blood at some point in her life before marriage, while yet in her father's house.) A bogeret might well not see any blood -- after all, she is like an open cask. And so she may continue the entire night. But, clarifies the setama digmara, if she does indeed see blood, we do not attribute it to a torn hymen. Perhaps this is because of the likely possibility that she is an open cask, in which any blood might well be menstrual blood.

Nowadays, not only if she saw blood she must separate, even if she didn't she must separate after the first intercourse. This would be against my understanding of Rav. But it might work with Rif's troublesome interpretation, since any woman married nowadays has menstruated in the past, such that Rav's leniency does not apply. (Though perhaps Rif would require also that she saw blood on the wedding night, and would then attribute it to menstrual blood since her blood as per the hymen "finished.") And it can even be a newfound requirement according to my understanding of Rav, if we say this is an additional imposition of chumra. We would require it only if she saw actual blood, but we are really really worried about the possibility, such that even if she did not see actual blood, maybe she saw it and it was covered up.

I would also note that this explanation, that this is where she did not see blood, is the explanation of a setama digmara, perhaps influenced by trying to harmonize with other concepts. However, the pashut peshat of Rav's statement is that of course, if she saw blood, she may continue to have intercourse. That is his leniency. Some mature women are like an open cask. But not all women are. Therefore, if she is a virgin and this is her first night of intercourse, and she sees blood at the time of intercourse, it stands to reason that she is one of these women who is not an open cask, and the blood she sees is in all likelihood the result of her torn hymen. And throughout that entire night, when she sees blood, she may attribute it to the torn hymen. However, the next day, if she has intercourse and sees blood, she may no longer attribute it to the tearing of her hymen. This is the plain meaning of the statement that she is given that entire night, as is apparent from reading associated gemaras. She is given that entire night to attribute blood she sees to the torn hymen.

Therefore, if it is a mature woman's wedding night, and she has first intercourse and does not see blood, she should certainly be allowed to have further intercourse. And even if she does see blood, she should be allowed to have further intercourse, for that is Rav's leniency. And she may continue to have intercourse the next day and the rest of the week, so long as she does not see blood.

The Talmud does explicitly mention a requirement for a bachur to rejoice with a betula for the first week. Requiring in all instances, even absent seeing any blood, that they have only that first intercourse and afterwards not even touch each other for the next seven days seems contrary to this requirement, or at least its spirit. Especially if we do so on the basis of a faulty girsa, and/or in order to be machmir.

Final Note: Once again, don't act based on this. I am exploring the sugya, thinking of it in terms of halacha because that it part of my methodology, but this is all without intention of halacha lemaaseh. I may have made egregious errors of oversights. As usual, consult your local Orthodox rabbi.

Update: From my next post:
And now let me take the opposite position, and show how I am wrong. Again, this is why I say is not halacha lemaaseh.

Assuming we sever the Rif's connection between the gemara in Ketubot 35b and in Niddah 64b, we still should read the gemara in Niddah as referring to having seen menstrual blood previous to this.

The Rif had drawn a relationship between his girsa in Ketubot and Niddah. The Rif's girsa in Ketubot said that a bogeret has no claim of missing virginity against her, but this was only where she had menstruated in the past. Thus, kalu dameha, her blood had been finished up. A bogeret who had not yet menstruated was able to have such a claim lodged against her. And similarly in Niddah, Rav gave a bogeret that entire night, and the gemara clarifies that this is where she had not seen blood. Thus, it is a woman who had never before seen menstrual blood, but if she had, perhaps we would say kalu dameha and so she has no blood from a torn hymen, and so we would attribute it to menstrual blood and she would have to separate immediately.

I questioned the Rif's girsa in Ketubot for several reasons, including a much simpler and straightforward available girsa and an otherwise contradictory Yerushalmi. But further, I noted that this was a strange medical theory linking previous menstruation to kalu dameha such that she would not see blood from tearing her hymen.

However, as I noted in my introduction to this, even assuming we sever the connection between Ketubot and Niddah, we still may read it as above. Indeed, it may be the most plausible reading.

If you recall, the gemara in Niddah 64b read:
אמר רב בוגרת נותנין לה לילה הראשון
וה"מ שלא ראתה אבל ראתה אין לה אלא בעילת מצוה ותו לא
Rav said that for a bogeret, we give her the entire first night.
And the gemara clarifies: And these words were where she did not see, but if she did see, she only has the intercourse of the precept and no further.

The Rif summarizes this -- or perhaps it is his girsa -- as
והא דרב אוקימנא פרק תינוקת בבוגרת שעדיין לא ראתה דם אבל בוגרת שראתה ועודה בבית אביה אין לה אלא בעילת מצוה ופורש
Thus, that she saw blood of menstruation in the past in her life. I suggested it meant that she saw blood during the wedding night.

Even rejecting the connection between sugyot and rejecting the strange medical theory, we can explain this as the Rif does.

That is, if she has even seen blood in the past, then we know that she menstruates. Therefore, we have reason to fear that this blood we see now is not blood from the torn hymen but rather menstrual blood. However, if she has not menstruated in the past, why should we assume it is such now. We have an even stronger case to assume that it is from the torn hymen.

Indeed, this is the reading of the setama's restriction that makes sense. After all, granting her the entire night, or in other cases, granting her until Shabbat, means that even if she sees blood, we can attribute it to the torn hymen. So how in the world are we "granting" her this night is she has to stop when she sees blood. It would be have to be a reinterpretation of granting, such that we grant her so long as we do not see blood. But if she does not see blood, she should theoretically be allowed to continue for much longer. But if she sees blood on the second day, we no longer grant her this.

And indeed, there is precedent for such an interpretation. For example, in Ketubot 6a:
R. Hisda objected: If a girl, whose period to see [blood] had not arrived yet, got married, Beth Shammai say: One gives her four nights, and the disciples of Hillel say: Until the wound is healed up. If her period to see [blood] had arrived and she married, Beth Shammai say: One gives her the first night, and Beth Hillel say: Until the night following the Sabbath [one gives her] four nights
Thus, we have a girl {= a virgin} whose period to see menstrual blood has arrived and married, and she gets the first night, says Bet Shammai. It is not exact but pretty close in terminology.

So, most women who marry, even virgins, are bogeret, and furthermore have had their periods. (One exception is the 20-year old woman mentioned in this teshuva from Rav Moshe in Igrot Moshe.) Thus, no one will get the full night mentioned by Rav. Rather, they are all subject to the second case:

אבל ראתה אין לה אלא בעילת מצוה ותו לא

What does this mean? It is where she saw menstrual blood before. But what does אין לה אלא בעילת מצוה ותו לא? We could read it that once she sees blood, she immediately separates. But it never said that she saw blood that night. So it might mean that she only gets that intercourse of precept ever, regardless of if she saw blood.

If so, we can read present practice into the gemara's words.

Whether this extra restriction is Talmudic {/stammaic} practice or post-Talmudic, we can find precedent with a certain incident in Ketubot 10a:
Some one came before Rabban Gamaliel the son of Rabbi [and] said to him, 'My master, I have had intercourse [with my newly-wedded wife] and I have not found any blood.' She [the wife] said to him, 'My master, I was a virgin.' He said to them: Bring me that cloth. They brought him the cloth, and he soaked it in water and he washed it and he found on it a good many drops of blood. [Thereupon] he [Rabban Gamaliel] said to him [the husband]: Go, be happy with thy bargain.
Thus, the idea that blood may have been covered by semen is one already introduced in the gemara.


Anonymous said...

Out of curiosity, do you have a theory as to why the halacha changed to limit intercourse and touch after the first intercourse against the text (and I might add against human nature?) Meaning do you think the textual problems and the Riff's attempt to solve them is enough to so dramaticlaly change the concept of the 7 days of rejoicing, or do you think social norms or attitudes towrd sexuality had anything to do with it?

joshwaxman said...


I'll try to post more on this later, but I can show why I am wrong here. That's why my caveat is critically important.

That is, the text can indeed show that one should limit intercourse. Aside from the textual problems globally, we may sever the present sugya and show how locally to Niddah the Rif's reading is indeed quite, and possibly the most plausible. Thus any woman would not have the full night, but would have until blood was seen. And perhaps less than that -- the text implies less than that, which would then give current practice. But I'll save that for my update.

In general, I am a big proponent of text based understanding, and would assume that conclusions are arrived at based on different concerns logal to the intellectual argument. Only after exhausting that would I look to social concerns. Thus, when looking to the issue of women and shechita, the book about "Pious and Rebellious" women looks first to social change, but amazingly makes no mention of Eldad haDani and the Hilchot Eretz Yisrael (properly Amar Yehoshua) which certainly influenced matters.

joshwaxman said...

read my post again, with the update, to see what I mean in terms of where I was wrong.


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