In this week’s parsha we have the pasuk: לא תתורו אחרי לבבכם ואחרי עיניכם – “You shall not stray after your heart or your eyes” (Bamidbar 15:39). Rashi explains: הלב והעינים הם מרגלים לגוף, מסרסרים לו את העברות, העין רואה והלב חומד והגוף עושה את העברה – “The heart and the eyes are the “spies” of the body — they act as its agents for sinning: the eye sees, the heart covets and the body commits the sin”.
The Rambam (Hilchos Teshuvah 4:4) writes:
ומהן חמשה דברים העושה אותן אין חזקתו לשוב מהן. לפי שהם דברים קלים בעיני רב האדם ונמצא חוטא והוא ידמה שאין זה חטא. ואלו הן... ג) המסתכל בעריות מעלה על דעתו שאין בכך כלום שהוא אומר וכי בעלתי או קרבתי אצלה. והוא אינו יודע שראית העינים עון גדול שהיא גורמת לגופן של עריות שנאמר (במדבר טו לט) "ולא תתרו אחרי לבבכם ואחרי עיניכם ".
Also among them are five [transgressions] for which it is unlikely that the person who commits them will repent. Most people regard these matters lightly. Hence, [by committing such a transgression,] a person will sin without realizing that he has. They are: .... 3) One who looks at women that are forbidden to him. He considers the matter of little consequence, rationalizing: "Did I engage in relations with her? Was I intimate with her?" He fails to realize how looking [at such sights] is a great sin, for it motivates a person to commit aroyas as implied by (Bamidbar 15:39), “Do not follow after your heart and your eyes."
This week we will discuss the sensitive topic of traveling via bus and train at a time when they are very crowded and both males and females use them, and it’s very difficult to avoid bumping into each other, pushing into each other, and even looking at each other. We will discuss if there is any heter [allowance] to use such modes of transport at such busy times.
There are many points that need addressing: Is it permissible to travel via such modes of transport when it’s difficult for men and women to avoid touching each other? Is it ok for a man to sit next to a woman, or must he stand? Is sitting perhaps better than standing? If a chillul Hashem will be created, is there room for leniency? Does the heter to sit next to a woman depend on what type of clothing she is wearing? Is a man perhaps obligated to walk or pay more money and book a private taxi (cab)?
Insights Into Halachah
It's important to note, nowadays in many places in Eretz Yisroel there are mehadrin modes of transport and there are ways to avoid the above issues. It’s well known that the Gedolim have already encouraged people to try and use mehadrin modes of transport, therefore, what we will discuss may not be halachah lemaaseh, as even if we find some leniencies, if there is a mehadrin option which the gedolim have advised using, certainly this is what one should be doing.
Introduction – Mixed Transport and the Prohibition of Looking and Touching
Before we start, it’s important to note that there are really two issurim involved. 1) The issur of touching, 2) The issur of looking and having bad thoughts. There is room to differentiate between the two issurim, both in terms of being lenient and in terms of being stringent. However, below we will focus primarily on the heter of touching, and as we go along, we will see that some of the arguments apply to the issur of looking as well.
R’ Menashe Klein zt”l (Shu”t Mishneh Halachos 4:186) was asked about traveling on trains and buses which are full with both men and women. The sho’el [asker] took on that it’s obvious that if the train or bus is already full one isn’t allowed to get on due to the issur of touching women, which we find Chazal treat very severely. His question was, however, that sometimes when one gets on the bus or train it is quiet, and only after a few stops does it get full of lots of women. The sho’el wanted to know if he is obligated to get off as soon as he can in order to avoid accidently touching a woman, or if he may stay on the train until he arrives at his destination.
The Mishneh Halachos quotes the Medrash Rabbah (Bo, Perek 16) which says :
אמר הקדוש ברוך הוא כשם שאם נדר נזיר שלא לשתות יין אסור לאכל ענבים לחים ויבשים ומשרת ענבים וכל היוצא מגפן היין, אף אשה שאינה שלך אסור לגע בה כל עקר, שכן שלמה אומר (משלי ו, כז כט): היחתה איש אש בחיקו ובגדיו לא תשרפנה, כן הבא אל אשת רעהו לא ינקה כל הנגע בה, לכך סמך הקדוש ברוך הוא פרשת נזיר לפרשת סוטה שהן דומות זו לזו, וכל מי שנוגע באשה שאינה שלו מביא מיתה על עצמו, שנאמר (משלי ז, כו): כי רבים חללים הפילה, וכתיב (משלי ה, ה): רגליה ירדות מות שאול צעדיה יתמכו.
The Holy One blessed be He said: ‘Just like if a nazir vows not to drink wine, it is prohibited [for him] to eat moist and dry grapes, and food that is soaked in wine, and anything that emerges from the grapevine; so, too, a woman who is not your wife, you may not touch her at all, as Shlomo says: “Can a man stoke fire in his bosom and his garments not be burned...so one who goes in to his neighbor's wife; anyone who touches her will not be absolved” (Mishlei 6:27–9). This is why the Holy One blessed be He [wrote] the portion of nazir adjacent to the portion of the sotah, because they are similar to one another. And anyone who touches a woman who is not his wife brings death upon himself, as it is stated: “For she has felled many corpses” (Mishlei 7:26), and it is written: “Her feet descend to death; her steps support one to the grave” (Mishlei 5:5).
The Mishneh Halachos writes: It’s clear from the Medrash that if one touches a woman which is not his, he brings death upon himself. From many Achronim it seems that even if it is not done derech chibah [out of love] and there is no issur de’O’raisa, there is certainly an issur derabonon. Therefore, certainly we must look into this shailah and see what to do.
In truth, not only is touching a woman an issue, but looking at a woman is also a big issue. The Gemara in Avodah Zorah (20a) teaches:ונשמרתם מכל דבר רע שלא יסתכל אדם באשה נאה ואפילו פנויה באשת איש ואפי' מכוערת ולא בבגדי צבע [של] אשה : “And you shall guard yourself from every evil thing”; this teaches that a person should not gaze upon a beautiful woman, even if she is unmarried; and a person should not gaze upon a married woman, even if she is ugly; nor should one look at the colorful clothes of a woman.”
The Gemara relates a story that R’ Shimon ben Gamliel and R’ Akiva once saw a beautiful looking non-Jewish woman, and they made a berachah thanking Hashem for his wonderful creations. The Gemara asks: How were they able to look, surely it says, “And you shall guard yourself from every evil thing”? The Gemara answers: קרן זוית הואי – “They met at a corner”, i.e. they were coming around a corner and they accidentally met the beautiful woman. We see from this Gemara, that without this argument, even looking at a woman without intention of deriving benefit is forbidden, as if it was permitted the Gemara could have simply answered that R’ Akiva and R’ Shimon ben Gamliel looked at the woman without intending to benefit.
The Shulchan Aruch (Even HaEzer 21) rules:
צריך אדם להתרחק מהנשים מאד מאד ואסור לקרוץ בידיו או ברגליו ולרמוז בעיניו לאחד מהעריות ואסור לשחוק עמה להקל ראשו כנגדה או להביט ביופיה ואפילו להריח בבשמים שעליה אסור ואסור להסתכל בנשים שעומדות על הכביסה ואסור להסתכל בבגדי צבעונים של אשה שהוא מכירה אפי' אינם עליה שמא יבא להרהר בה. פגע אשה בשוק אסור להלך אחריה אלא רץ ומסלקה לצדדין או לאחריו .
A person must stay very far from women. He is forbidden to signal with his hands or his feet, or to hint with his eyes, to one of the arayos. He is forbidden to be playful with her, to be frivolous in front of her, or to look upon her beauty. Even to smell the perfume upon her is forbidden. He is forbidden to gaze at women doing laundry. He is forbidden to gaze at the colorful garments of a woman whom he recognizes, even if she is not wearing them, lest he come to have [forbidden] thoughts about her. If one encounters a woman in the marketplace, he is forbidden to walk behind her, but rather [must] run so that she is beside or behind him.
The Sefer Chasidim (siman 177) writes:
כתיב (קהלת יב יד) כי את כל מעשה האלק ים יבא במשפט על כל נעלם זה שנזדמן לו אשה בקרן זוית אם פגעה בו ולא נתכוין לראות אותה וראה אותה יפה ושמח על שראה אותה וחושב בלבו מאחר שבלא כונתי ראיתי' אין לי עון על ככה ועל זה נאמר יביא אלהים במשפט.
It says (Koheles 12:14) “For G-d will judge every deed – even everything hidden”, this refers to one who chances upon a woman at a corner. If one happened to see her, and never intended to, and he is happy and rejoices that he saw her, and he thinks in his heart that since he never intended to see her he has no sin, about such a thing it says, “For G-d will judge every deed”.
In the next siman the Sefer Chasidim writes:
שלשה פנים אסורות לראות. פני עובד אלילים פני אשה פני רשע.
Three faces are forbidden to look at. The face of an idol worshipper, the face of a woman, and the face of a wicked person.
In regard to the question of the sho’el, the Mishneh Halachos writes: We can’t make gezeiros [enactments] that most of the community can’t keep, and it appears that it’s permissible according to everyone to enter onto a busy subway or a bus, and it’s no worse than traveling on a train or wagon, where we never find that anyone objected. The Gedolim and Tzadikim from previous generations travelled on such things. The same is with planes and ships in places where the public travels on them, we don’t find that in previous generations the Gedolim refrained from using them, and the above argument is not enough reason to forbid using them.
Reasons for Leniency
The poskim mention many arguments to be lenient and allow traveling on mixed public transport: 1) It’s not derech teivah vechibah (דרך תאוה וחיבה ), it’s not done out of desire and love, 2) In regard to other women where one’s heart is not so acquainted (אין לבו גס בה), they never enacted special harchokes [enactments of keeping distant], 3) When the situation is unavoidable, it is considered like one never had intention, 4) When there is no other option, there is room for leniency, 5) The clothing make an interruption.
1) It’s Not Derech Teivah Vechibah
In Shu”t Igros Moshe (Even HaEzer 2:14) R’ Moshe Feinstein was asked about traveling on the subway and on buses at a time when people are going to work, and there are lots of men and women pushing into each other, and it’s very difficult to avoid touching and pushing into women. R’ Moshe was asked if it’s permissible to travel at such times, or if one must avoid using public transport at such times?
R’ Moshe answered: Regarding touching and pushing women there is no issur, as it is not being done derech teivah vechibah, and the issur of touching aroyas [forbidden women] even according to the Rambam who learns it’s de’O’raisa from the pasuk לא תקרבו – “Don’t come close”, only holds it is forbidden if done derech teivah vechibah. From the Rambam (Hilchos Isurei Biah, Perek 21) it’s clear that if it is not done derech teivah vechibah, there is not even an issur derabonon, as he makes no mention of there being one.
The above is clear in the Shach (Yoreh Deah 157:10) and he brings proof from the Amoraim who would hug and kiss their daughters and sisters.
It’s clear that if it’s not done derech teivah vechibah there is no issur and is not considered לא תקרבו לגלות ערוה. Since it’s not being done with bad intention it isn’t going to lead to anything. The issur of לא תקרבו לגלות ערוה, is to avoid doing things which will lead to giluy ervah, and if it’s not done derech teivah vechibah, it won’t lead to anything, therefore, it’s permissible, and Chazal never even felt a need to forbid it on a rabbinical level.
However, R’ Moshe writes there are three categories of people:
1) According to basic halachah, when it comes to other women, even if they are married, a niddah, or a non-Jew, there is no problem for a man to touch them not derech teivah vechibah. Consequently, there is nothing wrong with traveling on the subway or a bus at a busy time, even if it is likely that men and women will bump into each other as touching unintentionally due to it being impossible otherwise, is not considered derech teivah vechibah.
Based on this reasoning, it would even be permissible to sit next to a woman if there are no other available seats. As again it’s not considered derech teivah vechibah. If one’s wife is a niddah and the only option is to sit squashed next to her and touch her, perhaps according to the Beis Yosef it would be forbidden. However, since most Achronim seem to hold like the Shach, and even the Beis Yosef is not clear that he forbids it, if there is no other option, we don’t need to be concerned about the benefit the husband gets by touching his wife who is a niddah.
2) If one knows he will come to have bad thoughts he should avoid traveling at such busy times, unless it is very urgent. If one needs to get to work, then we can’t say that traveling at such times if forbidden. Such a person should try to take his mind away from having bad thoughts, and he should think about Torah, like the Rambam (Hilchos Isurei Biah 21:19) advises, and with this he can be lenient and travel to work.
3) If one knows that traveling at such times will lead him to have things worse than bad thoughts, then it’s forbidden for him to travel at such a time, even if he needs to for work. However, R’ Moshe writes: Chas vesholam for a person to be like this, and such things comes from wasting one’s time, like we find in Kesubos (59) by a woman, and the same thing is for a man. One needs to be busy with Torah and work, and such a thing shouldn’t be happening.
The Mishneh Halachos brings the same logic as R’ Moshe, that if it’s not derech teivah vechibah it’s ok. He mentions that the Beis Shmuel learns in the Rambam that even if it’s done not derech teivah vechibah it’s a problem and is de’O’raisa, however, he brings that the Shach argues, and most Achronim go like the Shach.
2) Harchokas Were Never Enacted for Women That One Is Not Well Acquainted With
The Mishneh Halachos brings a second reason to be lenient based on a Teshuvos HaRashbah (1:148). The Rashbah writes: All the harchokas that apply for a husband whose wife is a niddah, only apply to a husband and wife, as a husband is very familiar with his wife (לבו גס בה) and touching etc. is likely to lead to an aveirah. However, for other women, who one is not so familiar with, we aren’t worried it will lead to an aveirah, and when Chazal enacted harchokas they only made them for a husband and wife, when the wife is a niddah.
Based on this, we have to say that the Beis Shmuel who learns in the Rambam that touching not derech teivah vechibah is de’O’raisa, and the Shach who learns it’s derabonon, are only talking about a wife who is a niddah, however, for other women, even the Beis Shmuel agrees it’s not de’O’raisa. (See inside where he cites many proofs.)
3) When It’s Impossible to Avoid, It’s Like Not Having Intention
The Gemara in Pesachim (25b) teaches: הנאה הבאה לו לאדם בעל כרחו – “Benefit that comes to a person against his will” (Rashi – such as smelling avodah zorah).לא אפשר ולא מיכוין כולי עלמא לא פליגי דשרי – “If it’s impossible to avoid, and one doesn’t have intention, everyone agrees that it’s permissible (and one doesn’t need to avoid it).”
Rashi explains: If it’s impossible to avoid, and one doesn’t intend to smell it, there are two reasons to be lenient, therefore, everyone agrees it is permissible.
The Ritva explains, what it means אפשר and לא אפשר (possible and not possible) and מיכוין and ולא מיכוין (intentionally and unintentionally). He explains: “Possible” and “not possible” means possible without effort, or not possible except with effort. And “intentionally” when smelling avodah zorah doesn’t mean literally smelling it intentionally, as why would one commit such a terrible act of intentionally smelling avodah zorah, rather, it means a smell which many people don’t particularly benefit from and for them it’s not pleasant, however, for this particular person it is. Therefore, if one enjoys the smell it’s forbidden, and if one doesn’t then it’s allowed.
Based on this Gemara the She’orim Metzuyonim B’Halachah (Vol. 4, siman 152, ois 11) addresses the question of travelling on aeroplanes and trains, when sometimes men and women end up touching each other. He suggests that based on the Gemara in Pesachim (25b) which says: לא אפשר ולא מיכוין כולי עלמא לא פליגי דשרי – “If it’s impossible, and one doesn’t have intention, everyone agrees it’s permissible”, it would be permissible. According to Tosfos, that even if one has another route he could take, however, if it takes more effort, it’s considered like one doesn’t have another option, then in our case, even though one could travel in a private taxi and avoid the issue, since this costs lots of money, it’s considered a big effort, and it’s like a case of לא אפשר ולא מיכוין, which would be allowed.
The Shu”t Mishneh Halachos brings this svora [logic] and he calls it a סברא ישרה להקל – simple reason to allow leniency. He writes: Even those who are stringent and say that even touching not derech teivah vechibah is forbidden, and they don’t differentiate between a niddah and other women, nonetheless, everyone would agree that they only forbade touching when one does it intentionally, and since it is done intentionally, one may get familiar with the woman and take things further. However, if one touches her unintentionally, certainly everyone agrees there is no issue.
The Mishneh Halachos continues: If the touching is done unintentionally, and he doesn’t even touch her properly – he just accidentally bumps into her, it would seem that even for tzniun, meticulous people, it would be ok, as it is certain that in such a case they never made any gezeiros. Such an argument is logical and requires no proof, for such things we say, סברא הוא קרא למה לי – “it’s very logical, why would we need a pasuk”.
He writes further: “According to this, it’s obvious that when travelling on an aeroplane or train and one doesn’t intent to touch a woman, and it’s not certain that he will, if sometimes he accidentally touches her without intention, there is no issur according to all opinions. It’s obvious that the passenger doesn’t intend to touch a woman chas vesholam, and on the contrary, he looks for a place to sit where he won’t end up touching her, therefore, such a thing is not forbidden.”
4) There Is No Other Option (ליכא דרכא אחריני)
The Gemara in Bava Basra (57b) teaches:
״ועצם עיניו מראות ברע״ – אמר רבי חייא בר אבא: זה שאין מסתכל בנשים בשעה שעומדות על הכביסה.היכי דמי? אי דאיכא דרכא אחריתא – רשע הוא! אי דליכא דרכא אחריתא – אנוס הוא! לעולם דליכא דרכא אחריתא, ואפילו הכי – מיבעי ליה למינס נפשיה.
“One who closes his eyes from seeing bad” – Reb Chiyah bar Aba said: This refers to one who doesn’t look at women when they are standing washing clothes by the river. What is the case? If there is another route to go on to avoid the women – such a person is a rosha! If there is no other path – he is under duress! Really we are talking about a case when there is another route, and even still – he should have forced himself to not look.
From the aforementioned Gemara it’s clear that if there is no other option, one may travel along a path, even if there are women standing there who need to uncover parts of themselves so that they can stand in the river (and one should look the other way). If so, perhaps we can compare this Gemara to our case of traveling on a bus or train even if one will end up touching women, and we can say that since there is no other option it’s permissible. Or, perhaps, we can’t compare the two cases, and there is a difference between the issur of touching a women and the issur of looking at a women.
Based on this Gemara the Shu”t Ateres Poz (Chelek 1, Krach 3 – Even HaEzer, siman 6) brings that he saw in Shu”t Salmas Chaim of R’ Yosef Chaim Sonnenfeld (Even HaEzer 60) that the sho’el [asker] wanted to allow travelling on mixed buses, even if one may end up looking at forbidden things, as if one is travelling from city to city and it’s far away, since nowadays it’s not common to travel by foot it would be considered ליכא דרכא אחריתא – there is no alternative route. If one would pay for a taxi, it would be very expensive, and in Bava Basra we don’t find that if there is no other way, one should hire a covered wagon etc.
Perhaps, even if one is travelling within a city from one neighbourhood to the next and it’s difficult to go by foot, and one needs to get there quickly, it would also be considered ליכא דרכא אחריתא .
The sho’el further wanted to suggest in the Gemara in Bava Basra that if one would go along the path which passes by the river and get home in 15 minutes, or take an alternative route and arrive home after two hours, it would be consideredליכא דרכא אחריתא, and the Gemara is only talking about a case when both routes take equal amount of time.
The Ateres Poz writes that from the silence of R’ Yosef Chaim Sonnenfeld, it seems that he agrees.
Based on this, in our case as well, since taking alternative transport would be expensive, it is like ליכא דרכא אחריתא, and one may use public transport. Unless we say that touching is worse than looking.
5) Clothing Interrupts
In Shu”t Salmas Chaim (Even HaEzer, siman 12) R’ Yosef Chaim Sonnenfeld was asked about travelling on public wagons when it’s impossible to ensure that a woman doesn’t sit next to a man. The sho’el wanted to know if we can bring proof from the Yerushalmi cited in Tosfos in Sotah (19a) that it’s ok. The Yerushalmi asks: How was the Kohen allowed to place his hand under the hand of a sotah (when waving the minchas sotah), surely such a thing is despicable (מכוער )? The Yerushalmi answers that there was a cloth separating between the hand of the Kohen and the hand of the sotah. We see that using a cloth makes it not despicable. Therefore, perhaps by the wagon as well, we can say that clothes act as a separation. If the man is able to distance himself and he willingly chooses to sit next to her, from the Ramban (Sefer HaMitzvos) about lying next to a woman, even if there is clothing separating seemingly there is an issur of לא תקרבו, if one intends to benefit. However. if one doesn’t specifically choose to sit next to the woman, can we rely on the Yerushalmi?
R’ Yosef Chaim answered: שנראה דאין בזה משום מכוער – “It seems that such a thing is not despicable.”
Sitting Next to a Woman and Touching Via Clothing, In Pressing Circumstances
Tosfos (Sanhedrin 37a) teaches: If a man and woman are both wearing clothing, it’s still forbidden for them to be in the same bed if the woman is married, even if there is no issue of yichud [seclusion], משום איקרובי דעתה שנהנין ומתחממין זה מזה – as a certain familiarity is created, when they benefit and warm up from each other.
The Shu”t Oz Nidberu (5:48) discusses if a chosan may sit with his future wife on the same bench when traveling on a bus.
He adds: The truth is, the question isn’t only relevant for a chosan, really, it’s relevant the entire time: May one sit next to his wife who is a niddah? May a chosan sit next to his future wife? May one sit next to another married women? In all these cases there is an issur of לא תקרבו לגלות ערוה. The question is: Is sitting next to a
