TY - JOUR
AU - Shemesh, Abraham, Ofir
AB - Societies and cultures around the world have different laws and prohibitions concerning family and sex life. Interpersonal and family sexual restrictions were evident in ancient times and some are common in modern society to this day. The current article discusses punishments given for breaching sexual morals in the Ashkenazi-Perushim society of Jerusalem in the nineteenth century. The study focuses on historical testimony provided by Yehoshua Yellin (1843–1924), a major figure in the Perushim congregation and one of those who, in the nineteenth century, initiated the practice of banishing those found guilty of adultery or homosexual relations to residences outside the walls of Jerusalem.1 Yellin's testimony is given in his book “Zichronot Leven Yerushalayim” (“Memories of a Son of Jerusalem”), which depicts the history of the Yishuv and of communities in Jerusalem in this period, and it illuminates the image, character, and values of the Perushim community, as well as its legal system and customary modes of punishment.2 In this study three major questions will be discussed: What are the historical and Jewish roots of the modes of punishment for sex offenses mentioned in Yellin's testimony? Were there common guidelines and principles typical of forms of punishment utilized for adultery and homosexual relations? Were the punishment patterns mentioned unique to the Ashkenazi community and how were similar offenses treated in other Jewish communities throughout the Ottoman Empire? THE ASHKENAZI-PERUSHIM COMMUNITY OF JERUSALEM AND ITS LEGAL SYSTEM: A HISTORICAL REVIEW The Ashkenazi-Perushim court, officially called the “Court of Justice of the Ashkenazi Holy Community” (in short: “Badatz Perushim”), dealt mainly with matters of the Perushim community in Jerusalem and in the entire country, and was one of the important institutions of the Old Yishuv.3 One of the conspicuous figures in the court was Rabbi Shmuel of Salant (1816–1909) who, after arriving in the country in 1841, served as head of the rabbinical court under the auspices of his father-in-law, R. Yosef Zundel of Salant, who occupied the role of the Ashkenazi rabbi of Jerusalem. After the passing of R. Yosef Zundel in 1866, Rabbi Shmuel Salant was appointed rabbi of the Ashkenazi community in his father-in-law's place, and Rabbi Meir Auerbach replaced the former as head of the court.4 The court of the Perushim was located in the complex of the Hurvat Yehuda ha-Hassid synagogue (known as the Hurva) in the Jewish Quarter of the Old City. The Hurva complex was the religious–spiritual and organizational–communal center of the Old Yishuv, and particularly of the Perushim congregation. Aside from the synagogue, the complex also encompassed a Talmud Torah and the Etz Haim yeshiva, the hevra kadisha, the ritual baths, the ritual slaughter committee, and was the place where the Kolels convened.5 Due to the differences in lifestyle, language, and even religious customs, the Ashkenazi Jews constituted a separate congregation from the start. Since the first Hasidic waves of immigration in 1777, and until the Egyptian conquest of the Land of Israel (1831–40), the Ashkenazi Jews were considered subservient to the Sephardic community economically, legally, and politically.6 The Ottoman regime saw the Sephardic Jews as the exclusive representatives of all Jews in the Land of Israel, and by law the Ashkenazi Jews were subject to the Sephardic Hacham Bashi (Chief Rabbi). 7 Over the years, members of the Ashkenazi community made repeated efforts to be released from the authority of the Sephardic communities and asked for the right to have an independent court, as well as to establish houses of prayer and an independent burial system.8 After a lengthy struggle, and with the assistance of the foreign consulates, the Ashkenazi Jews managed to dissociate themselves from the Sephardic authorities. As a result, they obtained a distinct legal status and separate legal institutions, were no longer obliged to obey the Sephardic court, and could follow their own version of Jewish law and of European customs.9 As we shall see below, this also affected the modes of punishment imposed on offenders. METHODOLOGICAL NOTES The first event related by Yellin deals with a woman who committed adultery with another person in the community. There are two major methodological problems with Yellin’s testimony on this incident. One is that the date of the incident is not mentioned in the testimony, a detail that might have helped identify the judges who sat on the court. This seems to have been an event of which he had heard; it may have occurred before he was born or when he was an infant. The second problem is the lack of other sources describing the incident, i.e., halakhic rulings or court records involving this specific incident. The second case, which relates to homosexual relations between two men in the community, occurred at a later time, when Yellin was about ten years old. Yellin was aware of his young age at the time and therefore noted, justly so, that he could not judge the court’s treatment of the case as would an adult.10 Assuming that the second incident occurred in about 1853, the person who headed the court hearing these cases would have been Rabbi Shmuel Salant. In 1998, Rabbi Nisan Aaron Tukachinsky, grandson of Rabbi Shmuel Salant, published a collection of responses and rulings by Rabbi Salant; however, it includes no mention of either of these two incidents.11 PUNISHMENTS FOR A WOMAN'S INFIDELITY TO HER HUSBAND Yellin relates that several people testified in court (in his words: “Bet Hava'ad,” i.e., “the Committee House”) that their neighbor had had a lengthy romantic relationship with a married woman. They claimed to have seen the couple together in isolated places over a lengthy period and therefore decided to follow them. The climax of the illicit romance occurred when the woman’s husband was away on business and they saw the woman visit the man’s room furtively in the middle of the night. The observers approached the window and saw the couple engaged in “very ugly acts”, as Yellin describes it. In the morning, before dawn, they saw the two slip out, but the man, who must have sensed that the relationship had been exposed, fled that same day to Egypt. According to the story, this relationship was not exposed by a “modesty squad” acting on behalf of the community. Rather, it was a spontaneous initiative by people who decided to follow the couple and expose their shame, and then later testified in court against them. The judges summoned the woman to court, questioned her at length, and eventually she admitted to committing the acts ascribed to her. A considerable part of the details related by Yellin involve a description of the woman’s strict punishment which indicates: “how strong the influence of the court was in those days,” i.e., its authority to severely punish members of the community who had committed an offense.12 Yellin described the process of the woman's sentencing and manner of punishment: Then she was taken by the beadle to a room in the community courtyard and the door was closed, and the beadle was appointed to guard her until her sentence was decided. After consulting they decided that her sentence would be to be put the next morning for three hours in the device called a “kuna” and that the entire community would gather to see her shame and disgrace, and then she would receive 39 lashes and be banished from the city after her husband arrived and divorced her legally. So the next morning she was put in the kuna. And when this became known in the city almost all the town people gathered in the courtyard and also on the roofs of the houses opposite the courtyard, men, women, and children, and they all spat in her face, and cursed her and abused her, and many of those gathered pelted her face with rotten eggs and rotten eggshells and fruit peels as well as dirty rags, the more the better. And then she was led to the Committee House, where the beadle subjected her to 39 strong lashes with a whip. And the judges sent and brought her husband from Beirut, and after they divorced her she herself fled from town. The judges also took their revenge on the sinner, as they instructed that a large handsome candelabra that he had donated to the synagogue in the courtyard of Rabbi Yeshayahu Bardakey be thrown out. The public setting of the punishment imposed on the woman shows that the authorities did not object and may have even been in favor of the sentence imposed on the adulteress. Moreover, the Ottoman authorities awarded the court (partial) autonomy to punish sinners at will.13 As we shall see below, in contrast to other testimonies indicating that soldiers, on behalf of the authorities, supervised implementation of the punishment, in this case Yellin does not mention them because his intention appears to have been to emphasize the power and independence of the community court. The Ottoman authorities demanded that all of its citizens strictly adhere to the laws of morality and especially severe punishment was imposed on adulterers in the Muslim penal code. Adultery was regarded as a criminal act and a variety of punishments were mandated by the secular legislation of the Ottoman Empire. Principal among them were fines, in comparison to the religious judicial system where the punishment called for was death. Generally, the Jewish community was obliged to conform with the law and to surrender to the authorities both male and female adulterers and prostitutes. In this case, however, of the woman charged with adultery, the punishment was imposed by the Jewish community itself.14 MODES OF PUNISHMENT IMPOSED ON ADULTERESSES The manner of punishing offenders for forbidden sexual behavior was, and still is, culturally dependent and varied by place and time. The severity of the punishment in such cases was affected by society’s perception of the family institution, the severity of the offense as perceived by the legislator, intra-social implications, religious outlooks, and other factors. In western society today, adultery is not considered a criminal offense and the law does not allow punishing spouses who commit adultery (what we now call “cheating”), although adultery is considered one of the most significant violations of married and family life. In general, in ancient societies, punishments for infidelity and adultery were severe. Each society had a different way of punishing adulterers, and women were usually punished more severely than men.15 In Jewish law, the offense of adultery is considered very severe and deserving of punishment. The biblical punishment for women who committed adultery intentionally, in the presence of witnesses, after having been admonished, was death (Leviticus 20:10). The Jerusalem court could not sentence the woman to death as such a punishment required a decision by the Sanhedrin, a Jewish legal institution that ceased to exist with the destruction of the Second Temple.16 Lacking the option of carrying out the biblical punishment imposed on adulterers, Jewish communities formed different ways of punishing offending women. These included public humiliation and reprimand, physical injury such as defacing the adulteress’ beauty (cutting her nose) so “that she would become offensive to the person with whom she committed adultery,” rendering her ineligible for the sums promised in her ketubah, financial fines, and even indirect harm to her close family.17 In some cases the motivation for the punishments was extra strictness as an ad hoc way of protesting undesirable sexual behavior that might spread within the community.18 Jewish legal sources include many debates concerning acts of adultery and prostitution, particularly in medieval and modern Responsa literature, that reflect actual circumstances.19 In contrast to halakhic and Responsa sources that focus on the halakhic aspect of the incident and less on realistic details, Yellin’s descriptions depict the occurrences in a realistic and detailed manner, as well as the methods of punishment utilized by the Jerusalem court. Notably, in the domain of sexual morals considered best kept under wraps, for instance in cases of rape, it is not always possible to find multiple testimonies and debates regarding the Jewish community.20 According to Yellin’s testimony, the process of punishing the adulteress included several stages: Incarceration until the trial: Before the trial and conviction by the court, the accused was imprisoned in a closed room under the supervision of the court beadle. The woman’s incarceration seems to have been occasioned by concern that she would flee or that the legal procedures would be disrupted. Incarceration (called “holding” in the sources) to prevent the accused from fleeing was a well-known practice in Jewish courts that began in the period of the Geonim.21 Incarceration for lengthy periods was customary in many communities including European communities, for instance Moravia, Lithuania, and Poland.22 Humiliation and disgrace: A significant component of the punishment was disgracing the woman in public. The morning after the trial, the woman was imprisoned in a special device called a kuna and people were allowed to humiliate her in various forms, although with no real physical harm (we shall expand on this device below). The humiliation was indeed aimed at the offending woman, but it also included a message of deterrence for the entire public, reflecting an ancient Hebrew element (“so that they should hear and fear”).23 The practice of disgracing the adulteress in public was affected, among other things, by the nature and conduct of the biblical ritual aimed at exposing a deviant woman (sotah) whose husband suspected her of adultery, a ritual practiced in Jerusalem in the time of the Temple (see below). According to rabbinical sources, the ritual of the deviant woman was performed in public and anyone who wished could participate in it, including women (Mishnah, Sotah 1:6). It included disheveling the woman’s hair, changing her attire, and taking away her jewelry to render her unkempt.24 Nevertheless, rabbinical sources do not report humiliation of the accused by throwing objects or spitting. Whipping: Meting out lashes to sinners is an ancient punishment utilized in Jewish law.25 In our case, the adulteress received thirty-nine lashes from the court beadle, following the format of lashes mentioned in ancient sources.26 Although according to the laws of the Talmud there is no obligation to punish adulterers with lashes,27 as early as the period of the Geonim in Babylonia it was customary to employ whipping as a punishment for men and women declared adulterers and those involved in incidents of prostitution.28 Whipping was one of the most common corporal punishments in Eastern European courts in modern times, and adulterers were among those subjected to them. Punishing adulteresses with lashes (and a fine, see above) was also customary under Ottoman law, such that it is to be assumed that as far as receiving the approval of the authorities it was considered a completely appropriate and legitimate punishment.29 Granting a divorce: In addition to the criminal punishment, a woman who commits the sin of adultery may not remain married to her husband and may not marry the man with whom she had sexual intercourse (Mishnah, Sotah 5:1). Thus, the Jerusalem court summoned the husband who had been in Beirut on business to return to Jerusalem in order to divorce his wife. The purpose of the punishment is to leave the woman with no support, so that she loses her family framework and also the possibility of building a new life with the man with whom she committed the offense. Banishment from the city: Yellin relates that after the woman was divorced from her husband she fled town. It appears that she did this of her own initiative for fear of being harmed by the people or because she was to be banished, as some communities exiled offenders to another town and sometimes even from the country.30 One of the criminal issues for which communities would inflict exile was sexual morality, i.e., adulterers and prostitutes.31 Nineteenth-century sources report that this custom was common in Jerusalem for women who engaged in prostitution. The common view among the local community was that a deviant woman should be punished if possible and deported from the city.32 The purpose of distancing her from the city was not only in order to punish the offender but rather also to remove the obstacle from the entire town, with a view to the future. In contrast to the woman, who was punished severely by disgrace and banishment from the city, the male adulterer received a lenient punishment. The only thing Yellin says is that the judges determined that a candelabra he donated be thrown out of the Sukkaht Shalom synagogue in the courtyard of R. Yeshayahu Bardakey (1790–1862), one of the leaders of the Perushim community in the nineteenth century. This obviously was done so as to disgrace and denounce him.33 From a halakhic perspective his punishment should have been just as severe as that of the woman; however, it may be assumed that his punishment was merely symbolical because he had fled the city and in his case it was not possible to impose a full punishment. THE KUNA—ITS EUROPEAN ORIGINS AND MANNER OF UTILIZATION A considerable part of Yehoshua Yellin’s description focuses on the woman’s imprisonment in the kuna, a facility used in public reprimands. Yellin describes the device itself, its location, and its usage by the court in great detail and his realistic description undoubtedly demonstrates the extent of the woman’s disgrace and humiliation: In the community courtyard of the Hurva, in the wall of the women's section, to the east of the courtyard, was a shelf built intentionally so that the person sentenced would stand at a height and be seen by all those gathered, even at a distance. Above the shelf, at a man's height, there were two large perforated nails, about half a meter apart. After the person sentenced had been placed between these two nails, an iron hoop (also perforated at the ends) was fastened around his neck. To prevent the person from slipping out or sitting, locks were inserted in the perforations on the hoop and the nails.34 The device utilized by the court was located in the eastern part of the courtyard complex. To make sure that the person being punished would be seen by the many people gathered in the courtyard, he was placed on a high stool. An iron ring was fastened around his neck to prevent him from escaping, and he was forced to stand for the duration. In this case, the woman stood for three hours. Another aspect of the woman’s disgrace was the behavior and conduct of the masses that assembled next to the kuna. As related, they were free to humiliate the woman as they saw fit—by means of curses, swearing, spitting, throwing eggs, rotten fruit, and even dirty rags—and as Yellin says: “the more the better.” The kuna in Jerusalem is the only device of its kind in nineteenth-century Israel and we find no use of it in other local communities. The question that needs to be asked is: what was the origin of the kuna and how did it reach the Perushim community in Jerusalem? In medieval and modern Europe, there were various methods of punishing aberrant women, such as locking their heads in a “scold's bridle” or tying them to a stool connected to a lever (“ducking stool”) and dunking them in a nearby river or pond. As far as we know, these methods were not customary in Jewish society. The term kuna originates from the Polish and punishment by means of the kuna was customary in Jewish communities in Eastern Europe (Poland and Lithuania).35 This method of reprimand was adopted by the Jews from their Christian surroundings, but the period in which the kuna was introduced to Jewish communities is unclear. The kuna was used for men and women who had sinned against the religious laws or acted against the community’s interests and regulations; it was, in fact, a similar means of punishment as the various types of pillories customary within Christian society in most European countries.36 In Christian society, the pillory was placed in public places, for example, in markets or in the vicinity of churches. The kuna was also usually located in a public complex, near the community's committee house and the nearby synagogue. Sometimes, the kuna was in a niche in one of the synagogue's outer walls. One rare example of a kuna (pillory) that still exists is in one of the outer walls of the Great Synagogue in the town of Przysucha, one of the main towns of the Polish hasidic community.37 People sentenced by the community’s court were imprisoned in the kuna and punished for their deeds. We have some testimonies of imprisonment in a kuna in Eastern European communities, and we shall briefly mention some of these. The community records of Krakow from 2 Iyar 5532 (1772) describe how a man named Israel ben Aaron Velitshker was imprisoned in the kuna. The sentence determined that the man should be “excommunicated and banned in all synagogues […] and an iron necklace placed on his neck,” i.e., he should be tied up in iron shackles in the kuna.38 In the war waged by the Vilna mitnagdim against the hasidim in that year (1772), the two leaders of the hasidic sect in the town, R. Haim Magid and R. Isser, were punished. Isser was sentenced to have his writings burned in the kuna before kabalat shabat and there was even an intention to place him too in the kuna but his public incarceration was not implemented.39 According to the description of Herman Rosenthal, in Eastern European communities, the person sentenced was placed in the kuna before the morning or evening prayers, as this was when the community gathered.40 Any person was entitled, and some even saw it as an obligation, to spit at the person being punished, beat him, or insult him in any way possible. In Yellin’s story, things happened in a similar way. The adulteress was placed in the kuna for the morning and members of the community spat at her and cursed her. Spitting is an ancient act expressing humiliation (Deuteronomy 25:9) and cursing is also considered an acute derogatory act in Jewish sources (see for example, 1 Kings 2:8). DISGRACE IN THE SYNAGOGUE: PUNISHING FOR SUSPECTED HOMOSEXUAL RELATIONS The second incident related by Yellin involves a member of the community accused of having homosexual relations, an event that, as stated above, occurred in about 1853. This was a clerk who worked at a factory in Jerusalem and “was rumored to have sinned in a severe and abominable offense with one of the laborers.” Yellin uses a euphemism and does not explicitly state the type of offense. The judges deliberated, questioned the accused and the witnesses, and then convicted the clerk. Yellin describes the punishments imposed on the offender: According to the verdict determined by the court of justice, the clerk was obligated to stay away from the congregation for thirty days, to go to the Menachem Zion study hall at the Hurva of R. Yehuda haHasid three times, on Monday, Thursday, and Monday, in mourning clothes, to wind a black cloth on his mouth as per the verse “cover the lower part of his face,” as well as to stand on the bimah after the reading and read from a sheet arranged by the rabbis that said: “I have sinned to the Lord, the God of Israel, and I am regretful and penitent,” etc. All these I saw with my eyes and heard with my ears. According to biblical law, the penalty for homosexual relations, when the event was witnessed and followed an admonishment, is death. However as stated, since the institution of the Sanhedrin no longer exists, offenders do not receive the death penalty (Leviticus 18:22; 20:13). Hence, it has been replaced with the following punishments: Shunning: One of the most severe forms of punishment in Jewish communities over the generations is a court declaration of “excommunication” (herem) or “shunning” (niduy), i.e., disconnecting the social ties between members of the community and the sinner.41 Shunning the offender significantly hampered his conduct and functioning, as this limited his everyday activities. In the current case, the man was shunned for an entire month, which according to halakhic laws is the minimal period.42 Yellin does not list the restrictions included, but halakhic laws define these as encompassing: a prohibition against sitting within four cubits of the shunned person, eating and drinking with him, and a prohibition against including him in religious rituals, such as in a quorum in the synagogue and calling him up to the Torah.43 Moreover, similar to a person in mourning, the shunned person may not cut his hair or wash his clothes, or even wear shoes.44 The concept underlying the distancing of an offender is that his behavior deviates from what is customary and is harmful to the social-public fabric. Hence, shunning is a means of reestablishing the social order by implementing a list of sanctions against the person shunned. Wearing mourning clothes: Wearing black mourners’ clothes is mentioned in the Talmudic literature.45 The idea underlying the punishment is that the sinner is in “mourning” for his sin, atones for his bad deeds, and puts an end to his evil inclination. The sinner’s outward appearance was supposed to be irregular and repulsive. It emphasized his presence in the public medium and publicized his sin. Particularly conspicuous in Yellin’s testimony is the instruction to place a (black) cloth on the offender’s mouth as was the practice among lepers who were defined as being impure and were distanced from the community.46 Public confession and remorse: Another way of emphasizing the sin was by having the offender ascend the bimah at the synagogue while the Torah was read, to read aloud a statement of remorse concerning his bad deeds. Public confession and remorse is a pattern that appears in various European communities in recent centuries.47 In the current case, the offender was obliged to perform an act expressing remorse in the synagogue three times consecutively, on Monday, Thursday, and Monday, the weekdays on which the congregation convenes and the Torah is read.48 “Monday, Thursday, Monday” (in Hebrew: “Ta'anit bet, heh, bet”) are days on which public fasts are held and they are known as days of repentance and atonement for sins, particularly in communities of Ashkenazi Jews.49 The confession was given in the Menachem Zion synagogue, the most important and central public place in the life of the Ashkenazi community, an act that stressed even further the “social” nature of the offender’s sin.50 The wording of the confession was determined, according to Yellin’s testimony, by the court. The biblical basis for this wording is the confession of Achan who confessed to Joshua that he had embezzled from the plunder taken after the conquest of Jericho (Joshua 7:20). According to the Talmud’s homiletic interpretation of the verse in the book of Joshua, the purpose of the confession is to atone for the offender's sin (B.T. Sanhedrin 43b). At the end of his testimony, Yellin raises the possibility that the clerk was innocent, accused of the offense as a result of conflicts between different sects in the city of Jerusalem. The accused, who was a friend and relative of R. Shmuel of Salant, had injured people from another sect during a fight at the Hurva of R. Yehuda ha-Hasid, and thus they wrongfully accused him. It appears that the accusers chose to wrongfully accuse their rival of the sin of homosexual intercourse because they knew that the attitude of the community and judges to this offense was very strict. Yellin describes only two cases of punishment but it is to be assumed that there were other cases of people who were punished similarly. In practice, these cases attest to the nature of the community, its spirit, and also to the fights and tensions between the different congregations and sects in the city during the second half of the nineteenth century. DISCUSSION AND CONCLUSIONS From the 1840s and onward, rabbinical scholars who had come from Torah centers in Lithuania, Poland, and Hungary settled in Jerusalem, joining the old-time Perushim core consisting of students of the Gaon of Vilna. The Eastern European immigrants brought with them the values of their original communities, and an “island” of Eastern European life was formed in Jerusalem.51 The immigrants carried with them the culture, customs, and rulings, as well as forms of punishment used to penalize offenders in the community. Notably, Yellin’s testimony is one of the last to mention this type of punishment as such methods did not survive in the first half of the twentieth century. In the modern Jewish world, the methods discussed here have been almost completely abolished, including in ultra-Orthodox society. According to the common conception in rabbinical literature, and particularly among medieval Ashkenazi hasidim, the punishment for a bad deed involved not only compensation (“measure for measure”) but in addition was intended to atone for the sin.52 Hence, the bigger the sin, the heavier the punishment, as there is need for a greater degree of atonement. According to this approach, remorse for the deed does not exempt one from punishment, rather, the very essence of repentance is imposition of the strictest punishment.53 This outlook appears to have influenced the Ashkenazi penal system in subsequent generations as well, including the courts of the Perushim. In the two cases before us, the judges in the Perushim court imposed a list of punishments on the sinners. The sin committed by the adulteress was perceived to be graver than that of the person accused of homosexual relations and therefore her punishment was more complex and severe. The issue of atonement and remorse for a sin as part of the punishment is conspicuous with regard to the man suspected of homosexual relations, and indeed in his confession he was required to “regret and repent.”54 In contrast, the adulteress has no possibility of forgiveness and the story ends with her fleeing the city. The question that begs asking is whether the punishments that the court imposed on the adulterers (I will discuss the person accused of homosexual relations below) were imposed at the discretion of the judges or were predetermined punishments for those who commit such offenses? In practice, we have no legal protocol or halakhic ruling that reveal the considerations underlying the modes of punishment, but the impression is that it was a combination of ancient punishment traditions and independent discretion in each specific case.55 In both cases the forms of punishment were based on penalties utilized by European courts, some very ancient, i.e., from biblical and rabbinical times. For instance, shunning and whipping are ancient punishments that are widely represented in diverse communities, both Sephardic and Ashkenazi.56 In contrast, utilization of the kuna, which originated in Christian society, and placing a black cloth over the mouth of the offender, are distinct European features. We have several more ancient Ashkenazi sources of halakhic rulings that suggest punishments for adulterers, or “orders of atonement.”57 As stated, the sinner is not exempt from punishment and therefore the “orders of atonement” suggested included physical and mental punishments involving pain, torment, suffering, disgrace, and humiliation. Let us consider some of the prominent sources that undoubtedly affected and shaped Ashkenazi penalties in this area. The first Ashkenazi sources to deal with this come to us from the two most prominent figures in Hasidei-Ashkenaz, the medieval German Ashkenazi hasidic sect, R. Yehuda ben R. Shmuel the Hasid (b. Speyer 1150–d. Regensburg 1217), and his disciple, Rabbenu Eleazar of Worms, Germany (1160–1230).58 Notably, the orders of atonement that they suggest are to be carried out in private and include no recommendation that the sinner publicize or confess his sin in public, or that he be punished in public. However, in later generations some of the punishments stated by Ashkenazi Hasidim were mentioned and expanded and, at times, became considerably stricter. Moreover, later “orders of repentance” received a public dimension and some of the punishments, for instance confessions and lashes, were performed before an audience at the synagogue. A conspicuous example of this is evident in the fifteenth-century Responsa of R. Jacob (Mahari) Weil, who lived in Ashkenaz (Germany) and suggested the following order of punishments for a woman who committed adultery:59 Public confession: The adulteress must publicly express regret for her deeds, at a time that is close to the time of the reading of the Torah on weekdays or between the prayers of Mincha and Maariv. The confession shall be given in the women’s section when many women convene, similar to [the treatment of] the aberrant woman in the Temple (according to Babylonian Talmud, Sotah 8b). The woman must confess at all the congregations in which she had spent time—Helm, Belz, Lemberg and Płock. Lashes: Immediately after the confession the woman must receive thirty-nine lashes in the women’s section before the gathered women. She must sit where the mourners sit, next to the synagogue door. She must Fast: The woman must fast for 365 days, i.e., one year, but not consecutively. She must wear black clothes, remove all jewelry and decorative accessories (shawls), wear rough linen clothes and a rope belt, like the aberrant woman (compare Sotah 7a). She was to be prohibited from eating meat (eating meat is considered joyous), aside from Sabbaths and festivals. She must sleep on the ground, on straw, or with a board and clothing beneath her head. She is prohibited from washing in the bathhouse (an act considered pleasurable), except near to festivals. And she is to wash her hair only once a month. She is to avoid happy acts or situations, for example, banquets, traveling, and music. She is prohibited from having contact with men—she should not talk to them, unless the need is great. She should sit in cold water in the winter and among (biting) ants in the summer. Most of these punishments appear in the writings of Ashkenazi sages writing in the sixteenth and seventeenth centuries, for instance, R. Shlomo Luria (Rashal or Maharshal 1510–73)60 and R. Meir of Lublin (Maharam Lublin 1558-1616).61 A detailed order of atonement also appears in the writings of R. Shlomo ben Yehuda Leibush, called the Maharash of Lublin or the Second Maharshal (Poland, sixteenth century), and his words are mostly based on those of Mahari Weil.62 In general, the list of punishments suggested by Ashkenazi sources is particularly lengthy and is stricter than the testimony given by Yellin. He does not mention elements such as sleeping on the ground, fasting, and the prohibition against eating meat. In contrast, several punishments on this older list are mentioned in Yellin's testimony (particularly in the case of the person accused of homosexual relations). For example, he mentions public confession and remorse in the synagogue; whipping, wearing black clothes, and other practices associated with mourning. Strict ethical regulations and severe modes of punishment The Perushim community imposed heavy punishments on those who transgressed the laws of modesty. The strict punishments derived from, among other things, the supreme value attributed to maintaining modesty among the Jews of Jerusalem, particularly the city’s women. Moral regulations from the eighteenth and nineteenth centuries were intended to reduce women’s freedom of movement and to prevent undesirable encounters between women and men, while preventing immoral behavior of the kind described by Yehoshua Yellin. Among the regulations are a prohibition against women visiting the bakery and synagogue (other than on Rosh Hashanah and Yom Kippur), or going to the house of a non-Jew, and the obligation for women to wear a covering garment.63 These regulations were intended to ensure the moral character of the community’s women and their justification was explicitly set out in the book of regulations: “And it is passed on to us by tradition that no one is beyond temptation” (according to Hullin 11b). According to Abraham Levsky, the modesty regulations derived from the concept of women as seductive objects, while men are objects prone to seduction, and therefore it is necessary to protect the men by preventing tempting encounters with women.64 Yellin’s testimony shows that despite the regulations that were in place there were still cases of forbidden encounters and people suspected of immodesty, although such instances were relatively rare. The modesty regulations were intended, first and foremost, to retain the purity of the family and its honor, and women who did not follow this code were severely punished for having transgressed the sacred value. Nevertheless, as noted by Margalit Shilo, adulteresses were also considered to inflict harm on wider circles. They desecrated the honor of the community, as the family's honor was equivalent to the community's honor, and also harmed the sanctity of the city of Jerusalem.65 Hence, these women were sentenced to be humiliated by the community itself, as a “measure for measure,” and even to be banished in order to remove the disgrace of their presence.66 The right of the congregation or of the entire community to demand recompense for the harm done to it by punishing the individual is anchored in biblical laws: “The hand of the witnesses shall be first against him to put him to death, and afterward the hand of all the people” (Deuteronomy 17: 7. In effect, the community has both the right and the duty to severely judge the sinner; in this way, it eliminates the dangerous element that is threatening it. The punishment of adulteresses versus the punishment of prostitutes Interestingly, the punishing of women who engaged in prostitution was carried out differently than that of adulteresses. In an article published in Hamelitz, no. 26, 5 Ia'ar 1885 (p. 415), Yosef Rivlin, the editor, mentions women who opened a tavern that also served as a brothel. This became known to the Ottoman authorities and, as the writer says, the Pasha himself was shocked by the situation. The Jewish court that convened to discuss the matter decided that the women involved must close their business and also have their hair cut off.67 Cutting off the hair of men and women was an ancient Jewish punishment first initiated among the Babylonian Geonim.68 This punishment was imposed for various sins, including adultery.69 The fundamental rationale for the punishment was not only to humiliate and shame the prostitutes but also to prevent them from continuing their activity. The court closed down the site of the crime and cut their hair, as “a woman's hair is ‘ervah’” (Berachot 24a), i.e., a seductive element that must be neutralized. In contrast to the public setting of the adulteress’ punishment, as related by Yehoshua Yellin, the prostitutes were punished in the presence of a small group of people. Rivlin relates that only a few men and women from the market congregated and watched the old women shave off the hair of the deviant women. He also emphasizes that the prostitutes’ clothes were not torn off them and they were not dragged in a humiliating way. Furthermore, in contrast to Rivlin's description of the humiliation visited upon adulteresses, police officers who were present verified that no harm came to the humiliated prostitutes. Yellin does not refer to any supervision by the authorities to verify that no harm was done to the adulteress, and it even seems that the angry masses were allowed to do as they wished with the immoral woman. In the case of the prostitutes, the intentional presence of police officers on behalf of the authorities indicates cooperation with the Jewish community to purify society from the affliction, while in the story of the adulteress this is not mentioned and the actions taken are presented as independent acts of punishment. Is there a reason for the differences in the punishing of prostitutes and the adulteress? Several explanations may be offered: The composition of the judges was different, with each determining the punishment at their discretion. A married woman, who lives an assumedly upright family life and commits adultery with a man who is not her husband, is considered a “pretender,” unlike the prostitute who, from the start, is recognized as an immoral person. It is possible, as I assumed earlier, that the public setting in the case of the adulteress derived from the treatment of aberrant women in biblical and rabbinical times. In contrast, there is no traditional obligation to punish prostitutes in a public way. Homosexual relations in the Jerusalem community—regulations and punishments The community elders imposed modesty-related restrictions on men as well as women in order to prevent both forbidden encounters with women and sexual relations with other men. The Regulation of the Single Men (Takanat Haravakim), instituted before the eighteenth century, that forbade single men between the age of twenty and sixty from living in Jerusalem, is well known.70 Another regulation forbade young men from walking the streets at night (originally, in order to attend a tikun), the darkness and absence of individuals on the streets making it possible to commit acts in secret. According to Yellin's testimony, the illicit encounter of which the woman was accused occurred at night, and at night it is also possible to maintain clandestine homosexual relations (Yellin does not, in fact, state when the homosexual incident took place – in the daytime or at night).71 Regulations set in 1854 determine that the owner of a bakery should not take on a young assistant, neither a Jew nor a non-Jew, rather only a bearded married man.72 In light of the prohibition against married and unmarried women visiting the bakery, it seems that the concern involving unmarried laborers was related to the issue of intercourse between men. The story of the laborer suspected of homosexual relations occurred in 1853, while the regulation mentioned was instituted about a year later. It is not impossible that the regulation was a result of this case. In contrast to the many Ottoman and Sephardic Jewish sources from the thirteenth century and subsequent that encompass multiple testimonies of homosexual relations,73 very few Eastern European Jewish sources deal with this subject.74 Moreover, to date we have found no reference in Ashkenazi literature regarding the practice of public punishment for homosexual relations, perhaps because this was an area that was considered best kept quiet.75 According to Yellin's testimony, three punishments were imposed on the accused: shunning, wearing mourning (black) clothes, and a public confession in the synagogue. As we saw previously, the two latter punishments were also mentioned in the ancient Ashkenazi literature in the context of adulterers—compare, for example, the punishments recommended for adulteresses by the Maharash of Lublin—i.e., a person accused of homosexuality was perceived to be comparable to a type of adulterer. How were men who sinned by having homosexual relations treated in Jewish communities throughout the Ottoman Empire? Yaron Ben-Naeh, who carefully studied the phenomenon, showed that rabbis throughout the empire related to the practice of homosexuality in a variety of ways. They denounced homosexual relations, emphasized their extreme seriousness, but usually opted for education and prevention, and provided different ways of atonement by the sinner, for instance lengthy fasts or rolling in the snow.76 However, even in the rare cases that were publicly exposed and could be proven in court, the community found it hard to carry out its punishment due to the limits imposed on it by the Ottoman authorities.77 Although under Ottoman law the Jewish courts had autonomous jurisdiction they did not have the power to impose all types of punishment, such as the death penalty or other severe penalties, as these types of punishment were beyond the bounds of their authority. At present we have only one testimony—that comes to us from the city of Safed in the 1540s—which refers to corporal punishment being imposed on a person accused of homosexual relations. This person was extradited to the Ottoman authorities, imprisoned, and subjected to lashes.78 According to Yellin’s testimony, a person accused of homosexual relations was not subjected to lashes by the Jewish court, nor was any physical punishment, including humiliation and disgrace (spitting, throwing objects, etc.) imposed, unlike the case of the adulteress. Footnotes 1 The Perushim were disciples and followers of the Vilna Gaon; they left Lithuana at the beginning of the nineteenth century to settle in the Land of Israel, which was then under Ottoman rule. The current study focuses on punishments imposed on married women for adultery. Concerning the attitude of the Perushim community toward prostitutes, prostitution, and the existence of brothels in the Old Yishuv in the nineteenth century, see Margalit Shilo, Princess or Prisoner? Jewish Women in Jerusalem, 1840-1914 (Haifa, 2001) [Hebrew]. 2 Yehoshua Yellin, Zichronot Leven Yerushalayim: 1834-1918 (Jerusalem, 1924), pp. 21–23. 3 Yehoshua Kaniel, “The Courts of the Groups in Jerusalem in the Nineteenth Century,” in Shanah be-Shanah (Jerusalem, 1979), pp. 325–35 [Hebrew]. 4 Israel Bartal, “The Spiritual Life in the Old Yishuv: Between Continuity and Innovation,” in The History of Eretz Israel, Vol. 8: The Last Phase of Ottoman Rule (1799-1917), edited by Yahushua Ben-Arieh and Israel Bartal (Jerusalem, 1985), pp. 241–44. [Hebrew]; Menachem Friedman, “On the Structure of Community Leadership and Rabbinate in the ‘Old Ashkenazi Yishuv’ towards the end of Ottoman Rule,” in Chapters in the History of the Jewish Community in Jerusalem, Vol. 1, edited by Yehuda Ben Porat, Ben Zion Yehoshua and Aaron Kedar (Jerusalem, 1973), pp. 273–88 [Hebrew]. 5 Zvi Kargila, “The Organizational Development of the Perushim Community in the Land of Israel,” Zion, Vol. 46 (1981), pp. 306–30 [Hebrew]. 6 M. Friedman, “On the Structure of Community Leadership,” p. 275; Mordechai Eliav, “Relations Between Groups in the Jewish Yishuv in the Land of Israel in the Nineteenth Century,” Peamim, Vol. 11 (1982), pp. 118–134. 7 On the relationships between Sephardim and Ashkenazim in Jerusalem in the nineteenth century see Yehoshua Kaniel, “The Social Relations between Ashkenazim and the Sephardim in the Old Yishuv in Jerusalem in the 19th Century,” in Vatikin, edited by Haim Hirshberg (Ramat Gan, 1975), pp. 47–66; Idem, “Organizational and Economic Struggles Between Groups in Jerusalem in the 19th Century,” in Chapters in the History of the Jewish Community in Jerusalem, Vol. 2, edited by Menachem Friedman, Ben Zion Yehoshua and Yoseph Tobi (Jerusalem, 1976), pp. 97–126. 8 I. Bartal, “The Spiritual Life in the Old Yishuv,” p. 329. 9 Ibid. 10 Y. Yellin, Zichronot, p. 22. 11 Nissan Aron Tukochinsky, Torat Rabeinu Shmuel Salant (Jerusalem, 1998). 12 Y. Yellin, Zichronot, p. 21. Interestingly, Yellin himself was the subject of a punishment imposed on him by the Ashkenazi Jews. When he enrolled his son David in a school operated by Kol Yisrael Haverim, which did not suit their spirit, he was excommunicated. Members of the Ashkenazi community refused to buy from his shop, speak to him, and financial measures were taken against him by no longer including him as a recipient of the charity funds distributed to all Jews in Jerusalem. See Yehoshua Kaniel, “Cultural and Religious Cooperation between Ashkenazim and the Sefaradim in 19th Century in Jerusalem,” in Y. B. Porat, B. Z. Yehoshua and A. Kedar, Chapters in the History of the Jewish Community, pp. 289–300. 13 According to Lea Bornstein-Makovetsky, Jewish courts in the Ottoman Empire were restricted to matters of religious law. This included infractions of ritual law or custom, immoral behaviour, issues of marriage and divorce, and internal community affairs. The Jewish religious judges were required to obtain permission to perform their activities from the kadis, but these last normally did not interfere in the legal matters assigned to the Jewish authorities’ jurisdiction. See Leah Bornstein-Makovetsky, “Adultery and Punishment among Jews in the Ottoman Empire,” Jewish Law Association Studies, Vol. 25 (2014), pp. 29–50. See also Uriel Heyd, Studies in Old Ottoman Criminal Law, ed. V. L. Menage (Oxford, 1973), pp. 95–103. 14 Leah Bornstein-Makovetsky, “Informers and Betrayal in Jewish Society in the Ottoman Empire During the 16th and 17th Centuries: The Law of the Land is the Law,” in Jerusalem City of Law and Justice, edited by Nachum Rakover (Jerusalem, 1998), pp. 309–25; idem, “Ottoman and Jewish Authorities Facing Issues of Prostitution and Adultery: 1700-1900,” International Journal of the Jurisprudence of the Family, Vol. 4 (2013), pp. 1–22. 15 For example, according to the Code of Hammurabi, adulterers were drowned in a river (paragraph 129). Cutting off the offender's nose (Rhinotomy) was also customary in several ancient cultures, for instance ancient Egypt and India. See G. Sperati, “Amputation of the Nose Throughout History,” Acta Otorhinolaryngologica Italica, Vol. 29, No. 1 (2009), pp. 44–50. In the Aztec culture, women caught committing adultery were skewered or stoned to death. See John M. Seus, “Aztec Law,” American Bar Association Journal, Vol. 55 (1969), pp. 736–39. 16 Notably, in extreme cases, medieval offenders were sentenced to death (with the approval of the authorities), for instance, in the case of informers against the Jewish community. However, the death penalty was imposed only very rarely. See Simcha Assaf, Punishments after Completion of the Talmud (Jerusalem, 1922), pp. 18–21. 17 See, for example, R. Asher ben Yechiel, Rosh Responsa (New York, 1954), Klal 18, Siman 13, p. 42. Dismemberment was customary in several medieval communities as punishment for other sins, for instance, cutting off a finger in the case of a priest who married a divorcée (S. Assaf, Punishments, pp. 21–22). With regard to a threat voiced by the presidents of the Hungarian kolel in the nineteenth century against the husband of a married woman living in Jerusalem who refused to shave off her hair, stating that they would persecute him “with all persecutions both in monetary matters (=cutting him off from the charity funds) and in religious matters,” see “News of the Week,” Hatzvi 12, 26 Kislev 5656 (1895). 18 Strict punishments beyond those determined by Jewish law for cases of unsuitable sexual behavior can already be found in rabbinical literature. See, for example, Babylonian Talmud, Sanhedrin 46a. 19 See Shlomo Zalman Havlin, “Regulations of Rabenu Gershom Meor Hagola in Issues of Matrimony in the Areas of Spain and Provence,” Shenaton Hamishpat Haivri, Vol. 2 (1975), pp. 219–23; Rabbi Moshe Castro, Responsa Yarim Moshe (Salonica, 1890), Even Haezer, No.1. 20 This phenomenon is particularly evident in the relative dearth of testimonies of incidents of rape in the extensive Responsa literature originating from Spain, although they are reflected in documents of the non-Jewish courts. See Abraham Grossman, Hassidot Umordot (Jerusalem, 2001), pp. 229–55; Yom Tov Assis, “Sexual Behavior in Mediaeval Hispano-Jewish Society,” in Jewish History: Essays in Honour of Chimen Abramsky, edited by Ada Rapaport-Albert and Steven J. Zipperstein (London, 1988), pp. 25–59. 21 See Yoel Miller, Halakhot Pesukut min Hageonim (Krakow, 1893), siman 135, p. 70. 22 S. Assaf, Punishments, p. 25. 23 Compare Deuteronomy 10:1-13 on the matter of one who incites others to commit idolatry, who is executed by the witnesses and the masses so that they should hear and fear. For the same purpose, one who worships the celestial bodies is also killed in a public manner (Deuteronomy 17:5-7). 24 See Mishnah, Sotah 1:5-7; Tosefta, Sotah 3:4; Saul Lieberman (ed.) (New York, 1955), pp. 159–60. 25 It began in biblical law (Deuteronomy 25:2) and continued in rabbinical literature (the laws of lashing are concentrated in Tractate Makkot, Chapter 3). 26 See Deuteronomy 25:3 and compare Mishnah, Makkot 3:6. 27 Lashes as a punishment do not apply to sinners who merit death at the hands of the court (Mishnah, Makkot 3:1). Over the generations, some courts meted out lashes to offenders also for sins that do not require this by Torah law, for instance, thievery or humiliating a person, based on the Babylonian Talmud, Sanhedrin 56a, which says that they may do so if temporarily necessary. See S. Assaf, Punishments, pp. 111–12. 28 See Haim Meir Horowitz, Toratan shel Rishonim (Frankfurt on the Main, 1882), Vol. 1, p. 29; Vol. 2, p. 18. This punishment was mentioned by the Ashkenazi halakhic authorities in medieval times. See R. Aron ben Yaacov Hacohen, Sefer Kolbo (Jerusalem, 1997), siman 136. On meting out lashes to a man who was suspected of being involved in sexual relations with his female servant, see Halakhot Pesukut min Hageonim, siman 94, p. 53; Teshuvot Hageonim-Sha'ave Ztedek, Nissim Modai edition (Jerusalem, 1966), Vol. 3, siman 13, p. 56. 29 Leah Bornstein-Makovetsky, “Adultery,” pp. 29–50. 30 S. Assaf, Punishments, pp. 35–38; 79. On the goal of deportation from the city, see Maimonides, Mishneh Torah (Jerusalem, 2002) Hilkhot Teshuvah 2:4: “Exile atones for sin because it causes a person to be submissive, humble, and meek of spirit.” 31 S. Assaf, Punishments, p. 36. 32 M. Shilo, Princess or Prisoner, p. 233. 33 On Sukkaht Shalom synagogue, see Yahushua Ben-Arieh, A City Reflected in its Times: Jerusalem in the Nineteenth Century, Vol. 1: The Old City (Jerusalem, 1977), p. 341. 34 Y. Yellin, Zichronot, p. 21. A short description of the kuna, probably based on Yellin’s testimony was included by Zeev Vilnai in his book Jerusalem, the Capital City of Israel (Jerusalem, 1976), Vol. 4, pp. 268–69. 35 Herman Rosenthal, “Kuna,” Jewish Encyclopedia, Vol. VII, p. 583, http://www.jewishencyclopedia.com/articles/9550-kuna. 36 Jean Kellawa, The History of Torture and Execution: From Early Civilization Through Medieval Times to the Present (London, 2003), pp. 64–65. 37 On the kuna in the synagogue in Lvov, see Shlomo Buber, Anshei Shem (Krakow, 1895), p. 58. 38 S. Assaf, Punishments, p. 133. According to Höschel Lewin, in 1770, a freethinker was punished by the elders of the ḳahal in Vilna. He assumes that it was probably Abba Glusk Leczeka, who had made deprecating remarks before the Gaon of Vilna about the Passover Haggadah. The culprit received forty lashes, and was then put in the kuna. See Höschel Lewin, Aliyyat Eliyahu (Vilna, 1855), pp. 47–50. 39 Arieh Juda Leib ben Mordechai Mibrodi, Zemer Aritzim Harishon (Kearny, N.J., 1904), pp. 41–42. 40 H. Rosenthal, “Kuna,” Vol. VII, p. 583. 41 Excommunication is more severe than shunning. It applies to grave offenses for which the sages decided that a person should be excommunicated for thirty days if he does not repent. On the laws of herem and niduy, see Maiminides, Mishneh Torah, Hilkhot Talmud Torah 7:4; R. Joseph Karo, Sefer Megineh Eretz Shulkhan Aruch (Fiurda [Fürth] 1782), Yoreh Dea, siman 334, section 1. See also at length S. Assaf, Punishments, pp. 31–34. 42 Shulkhan Aruch, ibid., section 3. 43 Ibid., section 2. 44 Yair Eldan, Excommunication, Death, and Mourning (Tel Aviv, 2011), pp. 25–26 [Hebrew]. 45 Tractate Semachot, Michael Higger edition (New York, 1931), Beraytot Me-avel Rabbati, 4:3; Babylonian Talmud, Kiddushin 40a. 46 On the obligation of the leper to cover his mouth, see Leviticus 13:45. In fact, the mourner must also cover his head and his mouth. See Shulkhan Aruch, Yoreh Dea, siman 380, section 1. On sinners wearing black clothes, see R. Shlomo Luria (known as the Maharshal), Responsa Maharshal (Lemberg, 1859), siman 28. 47 See for instance, R. Meir ben Gedaliya of Lublin (known as the Maharam), Responsa of the Maharam of Lublin (Jerusalem, 1977), siman 45, which orders a Torah scholar who sinned by having intercourse with a married woman while drunk “to stand in the synagogue between the prayers of Mincha and Ma'ariv and confess out loud.” See also ibid., siman 43. 48 On reading a public confession by a person who disabled another, see Responsa Maharshal, siman 28: “He shall stand in the synagogue on the day of congregation [=Monday and Thursday] before the Torah scroll is taken out of the vessel [=the ark] and take two candles painted black and also wear black and say this formula [=the formula for asking forgiveness].” 49 On the meaning of these days in the literature of the Ashkenazi rabbis, see Daniel Sperber, The Customs of Israel, Vol. 1 (Jerusalem, 1990), pp. 192–99 [Hebrew]. 50 On Menachem Zion synagogue, see Y. Ben-Arieh, City, pp. 339–40. 51 I. Bartal, “The Spiritual Life,” p. 234. 52 From the rabbinical period to recent generations, various formulae outlining “acts of atonement” for sinners, who seek repentance, have been documented. See Moshe Baer, “On the Atonement of Penitents in the Literature of the Sages,” Zion, Vol. 46 (1981), pp. 159–81. The meaning of repentance and its strictest manifestations (such as mortification and self-humiliation) among Ashkenazi hasidim are evident from the works of R. Yehuda the Hasid. See Sefer Hasidim, Juda wistinetzki edition (Frankfurt on the Main, 1924), pp. 39–40, 169, and the analysis of Isaiah Tishby, The Wisdom of the Zohar, Vol. 2 (Jerusalem, 1961), p. 737. 53 I. Tishby, ibid. Itzhak Fritz Baer claimed that the principle whereby the degree of punishment should equal the degree of the offense is a typical conception reflecting a medieval Christian spirit. See Itzhak Baer, “The Social Religious Trend of Sefer Hasidim,” Zion, Vol. 3 (1938), pp. 1–50, especially pp. 10, 17. 54 Y. Yellin, Zichronot, p. 22. 55 We find a similar rationale in the words of the Maharam of Lublin, who suggests an “order of atonement” for a sage who transgressed the prohibition against intercourse with a married woman when he was drunk: “I shall arrange for him ways of repentance as I shall be instructed from Heaven and as written in the books of the ancients of blessed memory.” See Responsa of the Maharam of Lublin, siman 45. 56 S. Assaf, Punishments, pp. 22–23. 57 Notably, similar punishments were also suggested in the Sephardic halakhic literature, and it may be assumed that the communities influenced each other. For example, in a question referred to R. Simeon ben Zemah Duran (Majorca 1361 – Alger 1444), he was asked to decide the sentence of a married woman who had committed adultery with another man (Responsa Hatashbetz (Lemberg, 1891), Vol. 3, siman 191). In his answer, Duran writes that aside from losing her ketubah (marriage contract) and the obligation to divorce her from her husband, the enforcing authorities must take the following actions: she should be humiliated in public in the women’s section of the synagogue so that the rest of the women would see and be intimidated. Moreover, her ketubah should be torn in the synagogue, she should be shunned for thirty days, her hair exposed and shaved. R. Duran emphasizes that this should be done to the adulterer as well and that the court can show leniency or strictness as necessary. Several components of the punishment resemble the treatment meted out to the offender in Yehoshua Yellin’s story: public humiliation before the women of the congregation. Duran emphasizes that this is a parallel act to the sentence of the sotah in the temple (in Yellin’s testimony the adulteress is placed in the kuna facing the observers and a person accused of homosexual relations is humiliated in public in the synagogue); shaving the woman’s hair—similar to the punishment meted out to prostitutes in the Jerusalem community (see below); shunning the adulteress for thirty days (in Yellin’s story, part of the punishment given for homosexual relations). 58 Rabbi Yehuda he-Hasid recommends that a person who commits the sin of adultery should sit in winter in frozen river water up to his mouth or nose for the time it took to commit the offense, and in summer in a place with ants. And if the weather is neither cold nor hot he should eat bread and water only at night, and he also recommends fasting for three consecutive days. See Sefer Hasidim, Reuven Margaliot edition (Jerusalem, 1957), siman 167. Rabbenu Eleazar of Worms suggests a more complex order of atonement, mentioning some of the components mentioned by R. Yehuda he-Hasid. He recommends that a person who had intercourse with a married woman sit in the ice or snow for one hour every day and in the summer with flies, ants, or bees. The sinner must confess his deed every day, receive lashes, fast for forty consecutive days, sleep on the ground, refrain from washing, refrain from acts of pleasure, laughing, and traveling. See Rabbenu Eleazar of Worms, Sefer Harokeach (Warsaw, 1851), Hilkhot Teshuvah, siman 11. 59 Responsa Ma'ariv (Mahari Weil), simanim 12, 48. 60 The Maharshal suggests a penalty of atonement for a person who wrongly accused his friend of having intercourse with his married sister and bathing with her in the same bath. The punishment he suggests giving to the false accuser is measure for measure. Namely, he falsely accused the brother and sister of having intercourse and therefore his atonement would include penalties imposed on an adulterer. See Responsa Maharshal, siman 28, pp. 22a–23a. 61 Responsa of the Maharam of Lublin, siman 45. 62 R. Shlomo ben Yehuda Leibush (known as the Maharash of Lublin), Responsa of Maharash of Lublin (New York, 1988), siman 55, p. 14. 63 R. Haim Abraham Gagin, Sefer HaTakanot ve-haskamot u-Minhagim (Book of regulations, agreements and customs (Jerusalem, 1883)), 45b; ibid., 45a-b, and at length Yaacov Barnai, “The Regulations (Taqanot) of Jerusalem in the Eighteenth Century as a Source on the Society, Economy and Daily Activities of the Jewish Community,” in Jerusalem in the Early Ottoman Period, edited by Amnon Cohen (Jerusalem, 1979), pp. 271–316. On regulations from 1854 concerning visiting of women to bakeries, see Moshe David Gaon, The Eastern Jews in the Land of Israel (Jerusalem, 1928), p. 114; Sefer Hatakanot, 45b. 64 Abraham Levsky, Jerusalem's Regulations from the Beginning of the 16th Century to the Middle of the 19th Century (Ramat Gan, 1974), pp. 66–67 [Hebrew]. 65 M. Shilo, Princess or Prisoner, p. 104. 66 Ibid., p. 114. 67 The testimony was brought by Joseph Rivlin, Megilat Joseph: A Selection of Articles and Lists of R. Joseph Rivlin from the Years 1862-1896 (Jerusalem, 1966), pp. 163–65. 68 S. Assaf, Punishments, p. 16. 69 See Toratan shel Rishonim, Vol. 1, p. 29; Vol. 2, p. 18. The punishment of cutting off the hair was mentioned in the literature of the Ashkenazi rabbis in medieval times. See Sefer Kolbo, siman 136. 70 Sefer Hatakanot, p. 41a; M.D. Gaon, The Eastern Jews, Vol. 1, p. 112–13. 71 Sefer Hatakanot, ibid., p. 42b. 72 Ibid., p. 41a. 73 See Yom Tov Assis, “Sexual Behaviour in Mediaeval Hispano-Jewish Society,” in Jewish History: Essays in Honour of Chimen Abramsky, edited by Steven J. Zipperstein, Chimen Abramsky and Ada Rapoport-Albert (London, 1988), pp. 25–59; Yaron ben Naeh, “Homosexuality in the Jewish Ottoman Community,” Zion, Vol. 66 (2001), pp. 171–200. 74 See for instance the discussion of R. Joseph Saul Nathanson in his Responsa Shoel u-Meshiv, Ma'adura Kama, Vol. 1 (Lvov, 1865), siman 185, p. 69a, on a teacher who defiled his students by homosexual intercourse. Another story tells of a teacher who sexually abused his students. See Haim Elazar Shapiro, Responsa Minchat Elazar (New York, 1996), Vol. 3, siman 76, 64a. On a woman who made it publicly known that her husband had sex with men, see R. Yechezkel ben Yehudah Halevi Landau, Responsa Nodah bi-Yehudah, Ma'adura Tinyanah (New York, 1960) Even Haezer, siman 89, p. 98. 75 For example, Assaf makes no reference to punishments for homosexual intercourse. It is interesting to note the Talmudic saying: “Jews are not suspect of homosexuality or of bestiality.” (Babylonian Talmud, Kiddushin 82a). Namely, the assumption is that Jews are to be considered innocent unless there is proven evidence. This assumption was accepted in theory and in practice by the later halakhic literature. See Maimonides, Mishneh Torah, Hilkhot Esure Biah 22:2; Shulkhan Aruch, Even Haezer, Hilkhot Eshut, siman 24:1. 76 Y. Ben Naeh, “Homosexuality,” pp. 189–92. Among the punishments mentioned in the literature of Eastern countries are fasting for 233 days or rolling in the snow nine times. See R. Elazar ben Moshe Azkari, Sefer Haredim (Venice, 1601), 63a-b; R. Haim Vital, Sefer Etz Haim, Sha’ar HaKlalim (Jerusalem, 1910), chap. 11, p. 18; R. Itzhak Magriso, Yalkut Meam Loez (Jerusalem, 1968), Leviticus, Parashat Achrei Mot, 18:22, p. 191; R. Joseph Haim, Leshon Cha'amim (Jerusalem, 1928), Vol. 1, siman 68, pp. 181–96; idem, Responsa Torah Lishmah (Jerusalem, 1976), siman 379, p. 261. 77 According to Ottoman law, the punishments for homosexual relations were usually: severe whipping and incarceration until expressing true remorse, severe whipping and a fine, or simply whipping. In cases of pathological behavior it was possible to arrive at a death sentence. However, although intercourse between men was considered an offense, the authorities tended to turn a blind eye to the phenomenon. See Colin Imber, “Zinā in Ottoman law,” in Studies in Ottoman History and Law, edited by Colin Imber (Istanbul, 1996), pp. 180–89; Y. Ben Naeh, “Homosexuality,” p. 177. 78 On the attitude of the Ottomans to the verdicts of the Jewish courts, see Joseph R. Hacker, “Jewish Autonomy in the Ottoman Empire - Its Scope and Limits: Jewish Courts from the Sixteenth to the Eighteenth Centuries,” in The Jews of the Ottoman Empire, edited by Avigdor Levy (Princeton, 1994), pp. 153–202. © The Author(s) 2019. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - In the Kuna and in the Synagogue: Punishments for Adultery and Homosexuality in the Nineteenth-Century Ashkenazi Community of Jerusalem
JF - Modern Judaism: A Journal of Jewish Ideas and Experience
DO - 10.1093/mj/kjz015
DA - 2019-10-01
UR - https://www.deepdyve.com/lp/oxford-university-press/in-the-kuna-and-in-the-synagogue-punishments-for-adultery-and-zMuQ2R2Mad
SP - 271
VL - 39
IS - 3
DP - DeepDyve
ER -