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Laws of Seclusion (2)

In last week’s article we began to discuss the prohibition of yichud, seclusion with women who constitute prohibited unions. We discussed the basic nature of the prohibition (Torah/rabbinic; ‘essential’/’protective’), and elaborated on the common leniency of a woman whose husband is in town.

This week, we will continue to discuss the common halachos of yichud. In particular, we will focus on the important leniency of pesach pasuach, a doorway that opens to the public domain. We will also consider which circumstances of seclusion constitute yichud, and we will dwell on precisely whom the yichud prohibition applies to, on the matter of shomrim (‘guards’), and on the common question of yichud in an elevator.

Yichud of Children

As we have already seen (see previous article), the prohibition of yichud does not apply between a man and his mother, or between a father and his daughter. Likewise, the prohibition does not apply with grandparents and with grandchildren (see Bach, Even Ha’ezer 22:1).

With regard to brothers and sisters, authorities are lenient for a short period of time, but not for a lengthy period of time (see Beis Shmuel 22:1). Concerning the definition of a ‘short time,’ some write that this lasts up to three days, and others write that only thirty days is considered a ‘lengthy time’ (see Torah Yichud Chap. 2, no. 19).  It is therefore permitted for parents to leave a brother and sister home in a yichud situation, though Iggros Moshe (Even Ha’ezer Vol. 4, no. 65, sec. 11) writes that this should not be done on a regular basis.

The prohibition of yichud applies even to young girls, from the age of three upwards, and to boys from the age of nine and up (Shulchan Aruch, Even Ha’ezer 22:11; see Nitei Gavriel 11:1).

The question of children is especially pertinent with regard to babysitters, and it is important to be aware of the halachic issues that can arise. However, there is no need to be stringent with regard to a boy and girl who are both beneath the age or bar/bas mitzvah (Devar Halachah 2:8; however, see Sheraga Ha-Meir 8:126).

Pesach Pasuach: An Open Door

Chazal teach that a door which is open to the public domain causes a yichud situation to be permitted. This principle is known as “pesach pasuach lireshus harabim,” an open doorway to the public domain. As the Shulchan Aruch rules (Even Ha’ezer 22:9), based on the Gemara (Kiddushin 81a): “If the door is open to the public domain, there is no concern of yichud.”

The reason for this heter is that if the door is open, the people in seclusion will fear being disturbed by uninvited visitors, and there is therefore no concern for improper conduct.[1] The leniency will also apply to a window that opens to the public domain, provided that the entire room can be see through the window (Noda Biyhudah Kamma, Even Ha’ezer 71; see Devar Halachah 3:13).

Based on the rationale above, it follows that the leniency will not apply at all times. For instance, late at night, when there are no passersby on the street, and little or no chance that the people in seclusion will be disturbed, the leniency does not apply (Pischei Teshuvah 9, citing from Keneses Ha-Gedolah).

Although the Keneses Hagedolah is only lenient for the first half-hour of the night, Rav Wosner (Shevet Halevi Vol. 5, no. 203, sec. 5) explains that even late at night, one can be lenient while there are still passersby in the street. He adds that one must be stringent in places where people are generally afraid to go out at night.

The Devar Halachah (3:14) cites from the Chazon Ish that in Bnei Braq (of his day), the leniency of pesach pasuach applies until ten at night, but in a large city (15) the leniency will apply during the entire night, provided that the door is literally open (see below). This will not apply to every large city, and the halachah depends on the actual presence of passersby on the streets.

Some rule (see Dvar Halachah 3:15, Minchas Ish 13:24) that if a room is fully illuminated, and the door to the room is literally open (see below), there is no prohibition of yichud, even late at night. Under difficult and extenuating circumstances a rabbi should be consulted concerning reliance on this leniency.

Closed but not Locked

Authorities dispute the status of a door that is closed, but not locked, so that the door can be opened from the outside. According to Rabbi Akiva Eiger (100) and the Beis Meir (49), if the door is closed the leniency of an ‘open door’ does not apply. However, according to the Binyan Tzion (138), and a number of other authorities, the leniency applies even to a door that is open yet not locked.

The Devar Halachah (3:2) cites in the name of the Chazon Ish that one may rely on the leniency of an ‘open door’ even if the door is closed (but not locked), and that the Chazon Ish relied on this (in practice) even for a door that opens to an apartment building on the second and third floor. When the person in question asked the Chazon Ish that surely people knock before coming in, the Chazon Ish replied that the chance of ill-mannered people walking in without knocking is sufficient to alleviate concerns of improper behavior.

Shut Dovev Meisharim (Vol. 1, no. 5) addresses the question of a door-to-door salesman who makes his living by marketing goods in people’s houses: Is it permitted for the salesman to be secluded with a woman behind a closed door? His reply was that the leniency of an unlocked door can be relied on, but only in conjunction with the leniency of the woman’s husband being in town.

In the case he discusses the leniency of the woman’s husband being town does not fully apply—as noted in the previous article, where the husband gives his wife permission to be secluded with others, the Binas Adam rules that one must be stringent. Nonetheless, he rules that one may be lenient because of the fact that the door is unlocked. Even in this case, which merges together two distinct reasons for leniency, the Dovev Meisharim is only lenient because the matter is required for the sake of parnasah.

In a similar vein, the Shevet Halevi (op. cit. sec. 4) rules that one must take into account the stringent views mentioned above, but one can be lenient when the leniency of an unlocked door is joined by the leniency of a woman’s husband being in town (the same will apply for other factors of leniency). Others rule that where necessary the leniency of an unlocked door can be relied on without additional factors (Nitei Gavriel 1:10; 33:3; 32:7), but if possible the door should be literally opened.

Certainly, where the person in question is libo gas bah (has warm and cordial relations with the woman in question; see the previous article for details and examples), one cannot rely on the leniency of an unlocked door, but must ensure that the door is literally open to the public domain (see Shevet Halevi op. cit. sec. 7).

Giving the Key to Others

Even if the door is locked, authorities rule that when others have the key to the door (or the lock is a combination lock and others know the numbers), and are liable to enter without warning, the locked door is considered as an ‘open door,’ thereby permitting yichud (Dovev Meisharim, loc. cit.; Tzitz Eliezer Vol. 6, no. 40; Devar Halachah 3:3; Shevet Halevi Vol. 9, no. 261).

However, if the people inside are able to see a person approaching the door through a camera, the element of surprise is lost, and the fact that others have a key will not permit yichud (see Shevet Halevi Vol. 6, no. 191, sec. 3; Mishnah Halachos Vol. 4, no. 187). Toras Ha-Yichud (5:18) writes that several people should be given the key, so that those in the yichud situation will be afraid of being disturbed.

Based on the reasoning above, many give a key to a neighbor in order to avert situations of yichud. However, it is important to realize that giving a key to a neighbor is not sufficient to permit yichud, unless the neighbor is specifically told to come in at any time. Most people who give keys to a neighbor do so in order that if they ever get locked out, a spare key will be available at the neighbor’s house. This does not create a pesach pasuach situation, because there is no concrete fear of the neighbor coming in (Nitei Gavriel 42:6).

Giving a key to a neighbor is a useful method of preventing yichud for a babysitter who is in a situation of yichud with the children she is babysitting. She should ask the neighbors to come in from time to time, hence creating a pesach pasuach.

Shomrim: The Yichud ‘Guards’

In general, a woman is allowed to be in seclusion with a man when a shomer, a ‘guard,’ is present (Shulchan Aruch, Even Ha’ezer 22:3).

Such situations of yichud are permitted because the man or woman will be ashamed to perform improper acts in the presence of the shomer, and also fear that the shomer will reveal the conduct to others. The shomer does not literally have to be with the man and the woman in the room the whole time. As long as the shomer can enter freely as he wishes, he serves to permit yichud.

The presence of a single shomer is effective during the day. At night, however, a single shomer is not adequate, because the shomer may fall asleep. Therefore, the presence of two shomrim is required at night. Two shomrim are adequate even if both are sleeping, for the man and woman will fear that one shomer might awaken, and discover any improper conduct.

A special shomer, which applies even at night, is a person’s wife. A woman may be in seclusion with any (Jewish) man whose wife is present with him, for his wife guards him from any improper conduct (Even Ha’ezer 22:3). Some rule that this halachah is not limited to cases where the wife is in the same house as her husband, but applies even when the wife is in close proximity, and comes in and out of the house. Others, however, require the wife to be literally present in the house (see Devar Halacha 6:2, 4; Nitei Gavriel 41:6).

When a wife is present, the leniency applies even if the wife is sleeping (Nitei Gavriel 41:4), though Shevet Halevi (op. cit. sec. 4) notes that if the wife took a sleeping pill, and it is highly unlikely she will wake up during the night, then the leniency does not apply. The leniency does not apply to the wife of a non-Jew, and some add that it does not apply to a non-observant and promiscuous man, where even the presence of his wife will not deter him from improper conduct (Nitei Gavriel 40:11).

Another ‘special case’ of a shomer who is effective even at night is a woman’s son, who is deemed particularly vigilant in ensuring his mother will not fall to sin (Devar Halachah 9:17).

Who Qualifies as a Valid Shomer?

A second man (but not a second woman) serves as a valid shomer. Therefore, during the day, it is permitted for two men to be in seclusion with a woman, and during the night, it is permitted for three men (Even Ha’ezer 22:5). This applies only to men who are morally upright; men who are perutzim (promiscuous or susceptible to immoral conduct) cannot serve as shomrim. In general, a Torah-observant Jew can be assumed to be a valid shomer (Rema, loc. cit.)

Where a second man is not present, children are often chosen as suitable shomrim, provided they are old enough to be aware of improper conduct, and to report it to others. However, if the children are too old, they will not serve as valid shomrim, because they will themselves be susceptible to the prohibition. The presence of a Jewish boy or girl from the age of six until nine thus serves to permit yichud: The child is old enough to recognize any improper conduct, yet young enough to be immune to participation. During the day, the presence of a single child is sufficient, and at night two children are required.

Another option for valid shomrim is a relative. Relatives are effective shomrim because they are vigilant that no improper conduct will transpire. Relatives of the man that permit yichud are: his mother; his daughter or granddaughter; his sister; his grandmother. Relatives of the woman who permit yichud are: her father; her son or grandson; her brother; her grandfather (see Iggros Moshe, Even Ha’ezer 2:15; concerning mother and daughter, see Nitei Gavriel 21:13, who quotes differing opinions).

Because of their family tie, these shomrim are valid even if they would not otherwise serve as valid shomrim (for example, for women, or for non-observant Jews). However, with the exception of a son, an additional shomer must be present at night.

Another case of valid shomrim is a woman’s mother-in-law, daughter-in-law, and sister-in-law. A person may not, however, be secluded with two sisters.

Yichud in an Elevator

Several authorities have ruled that yichud is only prohibited when a man and woman are secluded for the duration of five (five minutes) or more (see Iggros Moshe, Even Ha’ezer Vol. 4, no. 65, sec. 22; Minchas Yitzchak Vol. 4, no. 94), though other authorities mention shorter times (see Minchas Ish, Chap. 14, at length; he writes that one can certainly be lenient for less than one minute).

The Minchas Yitzchak discusses whether a prohibition of chatzi shiur (seclusion for a shorter time than this) can apply, and cites a debate between the Imrei Eish and the Maharil Diskin over the matter. However, Rav Shlomo Zalman Auerbach (Minchas Shlomo Vol. 1, no. 91; sec. 22) writes that there is certainly no prohibition of yichud for a very short time.

Yet, even opinions that mention a minimum time period for yichud agree that where the people involved are able to continue the yichud for a longer time, even momentary seclusion is prohibited (see Minchas Shlomo, loc. cit. Devar Halachah 15:2).

Concerning yichud in an elevator, some authorities write that one should only be lenient in difficult circumstances (see Minchas Yitzchak, loc. cit.; Chelkas Yaakov Vol. 2, no. 14). In principle, however, based both on the short time period and on the fact that the elevator can be stopped at any floor by those wishing to enter, many authorities are lenient (Mishnah Halachos Vol. 4, no. 187; Tzitz Eliezer Vol. 6, no. 22, sec. 4; see Minchas Ish at length).

Nitei Gavriel 15:2 writes that this leniency will not apply late at night, when there is little chance that the elevator will be stopped.

Situations of Yichud

It is important to note that the prohibition of yichud is not limited to a man and woman in the same house. Rather, yichud applies in any secluded area, such as a quiet country spot, beach, park or forest. As long as the man and woman cannot be seen by other people, and they are not afraid of intrusion, the prohibition of yichud applies.

Indeed, one of the sources (Megillah 14a) for the prohibition of yichud is from the choice of the prophetess Devorah to sit underneath a palm tree. She chose that type of tree since it is tall and offers little shade, so that she would not be secluded with anyone. It is thus clear that yichud applies not only in an enclosed room, but even under a tree, or in any other secluded spot (See Devar Halachah 9, note 15; Taharas Yisrael 22:2).

It is thus important to be vigilant of yichud, whether at home, in the workplace, or in any other circumstance. Although over the course of the two articles we have tried to touch the basic issues of yichud, there are many halachos that we have not discussed, and in practical questions one should always consult with a halachic authority.

[1] According to Rashi (see last week’s article), it is possible that under circumstances of an open door, the circumstance is not defined as ‘seclusion’ at all.

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