"Is shomer negiah chayav misah?!" or "How to Determine the Severity of an Aveirah"

Originally posted in June 2012. Click here for a printer-friendly version of this blog post.

Artwork: Cloistered Youth, by Igor Kieryluk

"Is shomer negiah chayav misah?!" or "How to Determine the Severity of an Aveirah"

Introduction

One of the most common types of questions I'm asked by my students is any variant of: "If I violate such-and-such aveirah (transgression), how is God going to punish me?" Sometimes they ask the question in its generic, panic-stricken form: "Am I going to burn in hell?" Other times, they'll ask about specific punishments they've heard for specific aveiros.

Such a question was posed to me this past Monday in my 10th grade Chumash class. Since it was our last full day of class, I decided to have a "Q&A/discussion day." As it so happened, a student was visiting from another school and her friends told her that she can feel free to ask me any question, and no question is off limits in my class. Right away, she asked - with fear and trepidation in her eyes: "One of my teachers said that I violate 'shomer negiah' then I'm chayav misah (liable for the death penalty). Is that true? Is God going to kill me?"

I couldn't believe what I was hearing. Sure, I was aware that some teachers and parents use scare tactics in an effort to get kids to keep halacha, but would a teacher really go so far as to tell a student that "shomer negiah" is chayav misah? And even if this was a result of the student misunderstanding, I would like to know what went on in the discussion which left the student with such a gross distortion.

Ideally, I would have attempted to address all of the flawed premises. However, given the limited amount of time, I decided to answer her question in two parts: (1) by teaching her a method of determining "how bad" any aveirah is, not just "shomer negiah," and (2) by clarifying precisely what is included in the halacha that has come to be known as "shomer negiah." In this post I will focus exclusively on the first part of my response.

I answered the student by explaining that the "severity" of an aveirah can be assessed in three different frameworks - two which are accessible by us, and one which is not.

Framework #1: The Halachic System

The mishnah in Avos 2:1 says in the name of Rebbi:

You should be as careful with a mitzvah kalah (a "light" mitzvah) as with a chamurah ("severe" mitzvah), for you do not know the rewards of the mitzvos; and you should calculate the cost of a mitzvah against its reward, and the reward of an aveirah against its cost.

In order  to implement this teaching, one would need some way of calculating the "costs" and "rewards" of mitzvos and aveiros. Thankfully, the Rambam provides such a method in his commentary on this mishnah. In this blog post we will focus exclusively on his method of calculating the "costs" of aveiros, since this will help us figure out which aveiros are more "severe" than others. Here are the words of the Rambam:

Throughout the entire Torah, which includes mitzvos aseh (positive commandments) and mitzvos lo taaseh (negative commandments), Scripture explicitly states the punishments for each and every one of the mitzvos lo taaseh except for a few. Some are punishable by misah (death), others by kareis (excision of the soul), misah b'ydei shamayim (death at the hands of heaven), and malkos (whiplashes). From the punishments we can know which of the mitzvos lo taaseh are more severe and which are less so. There are eight levels: 

1. the first level, which is the most stringent of them, are those things that are liable for skilah (death by stoning). 

2. The level below it are transgressions that are liable for sreifah (death by esophageal incineration). 

3. The third level is transgressions that are liable for hereg (death by decapitation). 

4. The fourth is transgressions that are liable for chenek (death by strangulation). 

5. The fifth is transgressions that are liable for kareis. 

6. The sixth is transgressions that are liable for death at the hands of heaven. 

7. The seventh is transgressions that are liable for malkos. 

8. The eighth is transgressions for which we do not administer malkos. 

From this hierarchy the severity and "lightness" of an aveirah can be known. 

There you have it. The Rambam clearly states that the relative severity of an aveirah can be inferred from its punishment. If you want to know "how bad" any given aveirah is - that is to say, any lo taaseh - the first place to look is its penalty. 

It is important to note that there are exceptions to this general rule, which the Rambam spells out in other places. Many of these exceptions have to do with (for lack of a better term) "halachic technicalities," which remove certain aveiros from the Rambam's eight-level hierarchy. For example:

• The prohibitions of rechilus (gossiping) and lashon ha'ra (negative speech) are not punishable by a court of law because they are violated through speech, which is not halachically recognized as a physical action that is punishable by a court of law. Nevertheless, the Rambam says that rechilus "destroys the world" and lashon ha'ra is comparable to the severe transgressions of murder, idolatry, and illicit sexual relations.
• Likewise, the mitzvah of Anochi Hashem Elokechah is the most fundamental mitzvas aseh, and one who violates it is considered  to be a kofer b'ikar (denier of the fundamental principle) and has no portion in the World to Come. Nevertheless, there is no penalty for violating this mitzvah, since purely cognitive transgressions are not punishable by human courts.
• Gezel (armed robbery) is certainly a severe and violent crime. Chazal teach us that the verdict of the Dor ha'Mabul was only sealed because of gezel (Sanhedrin 108a). Nevertheless, gezel falls in at the lowest level on the Rambam's hierarchy, and isn't even chayav malkos, due to the fact that the robber must pay back what he stole. 

It is also important to consider the other factors which determine the Torah's penalties for various transgressions, which the Rambam spells out in the Moreh ha'Nevuchim 3:41:

Preface: You should know that the severity of a punishment and the difficulty of suffering it, or the lightness of the punishment and the [relative] ease of tolerating it, are dependent on four factors:

(1) The severity of the sin. Actions whose consequences are very harmful are punished severely, whereas actions whose consequences are less harmful are punished less severely.

(2) The frequency of its occurrence. A transgression that is frequently violated requires a more severe punishment as a deterrent, whereas transgressions which are relatively infrequent are sufficiently deterred by their infrequency combined with a lighter punishment.

(3) The degree of temptation in the matter. If a person is greatly tempted to do something - either because he is drawn to it by a strong desire or due to the force of habit, or due to the great pain in abstaining from it - then he will only be deterred from it by something very intimidating.

(4) The ease of doing the thing secretly and in private, so that others will not notice. We are only repelled from such acts by the fear of a harsh and severe punishment.

In other words, the severity of the aveirah is only one determinant of the Torah's penalties. There are three others: the frequency of the violation, the degree of temptation, and the ease of transgressing in private. Nevertheless, it would appear from the Rambam's commentary on the mishnah in Avos that the severity of the aveirah is the primary determinant of the penalty - enough so that one can gauge an aveirah's severity based on the penalty alone.

But in spite of the aforementioned exceptions and limitations of the Rambam's principle, the Rambam still advocated his method of determining the severity of an aveirah based on the Torah's penalty. And if this method is good enough for the Rambam, then it is certainly good enough for me to teach my students.

Incidentally, the Rambam's principle provides a good answer for students who ask, "Why do the Torah's punishments even matter nowadays, since we don't even have a Sanhedrin?" The answer is clear from the Rambam: even when there is no court to impose these penalties, they still serve as general indicators of the severity of each aveirah.

Framework #2: Natural Consequences (a.k.a. Mishlei)

Then there is (what I refer to as) the framework of Mishlei: the natural consequences of an aveirah. For example, the Torah's penalty for adultery is chenek, which is the fourth most severe category of aveirah. But what does Shlomo ha'Melech have to say about the fate of an adulterer?

For on account of a harlot [one will lack] even a loaf of bread, and a married woman will entrap the noblest person. If a man stokes a fire in his bosom, will his clothes not burn? If a man walks on embers, will his feet not be scorched? So it is with one who sleeps with his fellow's wife; whoever touches her will not go unpunished. People do not despise a thief because he steals - it is in order to fill himself up, for he is starving. When caught, he pays sevenfold, giving up his entire household. [But] one who commits adultery with a woman lacks all sense; only one who wishes to destroy himself would do such a thing. Pestilence and degradation will befall him, and his disgrace will not be forgotten. For jealousy [awakens] a man's anger, and he (i.e. the husband of the adulteress) will show no mercy on the day of revenge. For he will not look favorably upon any ransom or be placated by your bribe, however great (Mishlei 6:26-35).

Even now, when there is no Sanhedrin to impose the penalty of chenek, the "natural punishments" described here by Shlomo ha'Melech are still in effect. The adulterer risks the wrath and vengeance of the husband, the loss of his own reputation, the numerous social complications and harms that follow, the stress that comes from the secrecy and the loss of secrecy, the shame of being discovered, and more.

This framework isn't limited to physical and psychological consequences, but extends to intellectual consequences as well. Consider, for example, the lo taaseh of "al tifnu el ha'elilim" ("do not turn [your thoughts] to false gods"), which prohibits us from pursuing our curiosity about avodah zarah beliefs and practices. Even though this aveirah falls under level 7 or 8 in the Rambam's scheme - depending on whether the violation involved an action - it clearly can lead to catastrophic intellectual/metaphysical consequences.

Needless to say, these natural consequences are not consistent, nor are they guaranteed. Sometimes the consequences are knowable and predictable, but other times they are not. Also, these consequences will differ in each and every case. In spite of all these variables, these consequences can be understood through the chochmah of Mishlei, and one can assess the severity of a given aveirah by applying that chochmah to the facts at hand.

In general, I try to initiate my students into this framework as soon as possible with the hopes that it will gradually supplant their the childish imagination-based fears they've accumulated over the years. I believe this is in line with what the Rambam wrote in Hilchos Teshuvah 10:5:

Therefore, when we teach the children, women, and general populace of laymen, we should only teach them to serve out of fear and in order to receive reward, until their minds mature and they gain additional wisdom; [then] we should reveal this secret to them little by little, and accustom them to this concept with pleasantness, until they apprehend it and know it and serve out of love. 

I find that high school students tend to have difficulty factoring in both frameworks. Either they latch onto the Halachic System Framework and downplay the natural consequences, or else they seize the Natural Consequences Framework and disregard the halachic one. I guess that's why both frameworks are necessary.

Framework #3: Divine Judgment

Lastly, there is another framework of evaluating aveiros which is unknowable to us, and is therefore worthy of consideration. This is the framework of zechus and avon, as explained in Hilchos Deos 3:2:

The weighing of zechuyos ("merits") and avonos ("iniquities") does not go according to their quantity, but according to their magnitude. One zechus might be equal to many avonos, as it is stated, "Because of the fact that he found something good in him" (Melachim I 14:13), and a single avon might be equal to many zechuyos, as it is stated, "One sinner can destroy much good" (Koheles 9:18). This weighing is only done in the "Mind" of the God of Deios; He is the One Who knows how to evaluate the zechuyos against the avonos.

In other words, even though the Torah assigns its own severity-indicator to each transgression (i.e. the halachic penalty), this is from the standpoint of the system. On an individual level, Hashem "weighs" each and every transgression differently, depending on the circumstances and the individual.

For example, if two people intentionally do melachah on Shabbos, their transgression is equal in the eyes of the system: both are chayav skilah if there are witnesses, and chayav kareis if there aren't witnesses. However, the avon of one person might carry a greater weight than the avon of the other person, and only Hashem can make that determination, since only He knows all of the factors involved in the transgression. 

Summary and Conclusion

Let's summarize what we've learned. The severity of an aveirah can be assessed in three frameworks: (1) the framework of the halachic system, according to which the severity of an aveirah can be determined by its Torah-imposed penalty; (2) the framework of natural consequences, according to which the severity of an aveirah can be discerned - with varying degrees of probability - in light of the wisdom of Mishlei; and (3) the framework of "divine judgment," which is known only to God.

After briefly explaining each of these three frameworks, I answered the student's question about "shomer negiah." I explained that what she refers to as "shomer negiah" falls under the mitzvas lo taaseh of lo tikrevu le'galos ervah (Vayikra 18:6,19) and - at worst - is chayav malkos, which ranks as #7 in the Torah's hierarchy of halachic penalties (with #1 being the most severe and #8 being the least). I then provided a basic explanation of some of the natural consequences of not abiding by this halacha. I concluded by saying that only Hashem knows how each instances of this transgression will be judged. 

In conclusion, it is my opinion that these three frameworks should be taught to high school students - especially the halachic system framework. The Torah does specify the punishments for violating halacha, and - according to the Rambam - those punishments were designed to deter us from transgression. There is no need for "scare tactics" beyond these, and there is a whole lot to gain from learning about each aveirah within these three frameworks.