Question: May a person act leniently when faced with a situation that is possibly, but not certainly, yichud?
Short Answer: There are many poskim, including Rav Moshe Feinstein zt”l, who appear to allow one to act leniently when faced with a situation that is possibly, but not certainly yichud d’Rabbanan (Rabbinic).
I. Source of Yichud
There is no pasuk in the Torah that explicitly forbids yichud, the prohibition not to be secluded with a person of the opposite gender. Nevertheless, the Gemara (Kiddushin 80b) sets forth the “remez” (loosely translated as “reference” or “source”) in the Torah for yichud. The pasuk (in Parshas R’ei) that states “Ki y’sisecha achicha ben imecha” is discussing a “meisis,” one who entices another to perform avodah zarah (or other forbidden acts). Yet, the Torah employs a seemingly odd phrase, writing that “when your half-brother from your mother leads you astray...” Why would only your half-brother from your mother lead you astray and not your half-brother from your father? Rather, it teaches us an extra law about yichud – that one may only have yichud with his mother, but not with any other “arayos” (forbidden relationships). Similarly, the Gemara (Avodah Zarah 36b) states that yichud is d’Oraisa from this pasuk in Parshas R’ei.
Based on these sources, most Rishonim and poskim, including the Tur (Even HaEzer, 22:1), rule that yichud with arayos is d’Oraisa. For example, it is Biblically forbidden for a man to be secluded with a married woman other than his wife.
Additionally, based on the pasuk in R’ei that permits yichud with a mother despite that she is one of the arayos, the Mishnah (Kiddushin ibid) and the Shulchan Aruch (Even HaEzer ibid) rule that one is completely permitted to have yichud with a child or a parent. Many Rishonim explain that a person has no yeitzer ha’ra to do anything improper with these individuals. See Nit’ei Gavriel (Yichud 2:1). The Bach (ibid) extends this leniency to any direct descendants (i.e., grandchildren, great-grandchildren, etc.). While the Pischei T’shuvah (Even HaEzer 178:10) notes that the Noda BiYehudah appears to think that this leniency does not extend past parents with children, the minhag clearly is to be lenient on this issue. See Nit’ei Gavriel (ibid) in the name of the Divrei Y’tziv.
II. Opinion of the Rambam
The Rambam (Isurei Biah 22:2), however, has a unique opinion about yichud. Instead of parroting the Gemara that yichud has a “remez” in the Torah and thus is presumably d’Oraisa, the Rambam writes that yichud is “divrei kabalah.” The precise meaning of “divrei kabalah” is debatable. [Divrei Sofrim – Yichud (Rav Yavrov, p. 1) writes that the Rambam based his opinion on a second Gemara in Kiddushin (80b), which asks, “What is the simple meaning” of the pasuk in Parshas R’ei, implying that this pasuk does not provide a d’Oraisa source for yichud.]
Many poskim understand that the Rambam rules that yichud (even with arayos) is only d’Rabbanan, Rabbinic in nature. This appears to be the opinion of the Beis Shmuel (Even HaEzer 22:1) and the Vilna Gaon (ibid).
On the other hand, some poskim, including the Magid Mishneh, appear to understand that the Rambam rules that yichud with arayos is d’Oraisa. Since the Torah does not explicitly set forth the prohibition, the Rambam employs the language of “divrei kabalah.” See the Beis Yosef (Even HaEzer 22:1).
III. Rabbinic Cases of Yichud
Certain cases of yichud are d’Rabbanan in nature. For example, the Gemara (Avodah Zarah, ibid) sets forth that David HaMelech was “gozer” – enacted a prohibition of – yichud between a man and an unmarried Jewish woman. The Gemara (ibid) further states that Beis Shamai and Beis Hillel were gozer yichud between a man and a non-Jewish woman. Notably, there are many poskim who rule that nowadays yichud between a man and an unmarried Jewish woman above the age of 12 is always d’Oraisa, as single women are considered nidos until they are married and go to the mikvah. See Nit’ei Gavriel (Yichud 7:2).
There is likewise a discussion in the poskim whether yichud between one man and two women (i.e., all three secluded in a room together) is forbidden d’Oraisa or d’Rabbanan. The Divrei Sofrim (ibid) cites the Chavos Yair and the Binas Adam who rule that it is only d’Rabbanan. Indeed, the fact that the Gemara provides a reason why this prohibition is unique to one man and two women and not vice versa (“nashim daatan kalos”) proves that that it is only d’Rabbanan, as if it was d’Oraisa, no reason would need to be provided. On the other hand, the Divrei Sofrim cites the Maharsham who rules that yichud between one man and two women is d’Oraisa. This is based on a comparison in certain Rishonim between the laws of Sotah and yichud in the context of secluding with multiple women.
IV. Disqualified Witness
The sefer Ohel Yaakov (Yichud, p. 11) cites L’horos Nasan (7:88) who suggests a potential ramification whether one violates a d’Oraisa yichud scenario or a d’Rabbanan scenario (which, according to some opinions in the Rambam, is all yichud scenarios). He cites the Beis Shmuel who appears to suggest that if yichud is d’Oraisa, the violator deserves malkos, lashes, on a Biblical level. Since one who violates a Biblical offense with lashes may not serve as a witness nowadays, whether a person violates a d’Oraisa or d’Rabbanan yichud scenario has ramifications on his future ability to testify in a beis din proceeding.
The L’horos Nasan ultimately rejects this ramification, as the Vilna Gaon writes that even if yichud is d’Oraisa, it is not an offense (i.e., a “lav”) that deserves lashes, but is rather a bitul asei.
V. Factual Ambiguity
Another potential ramification whether a scenario of yichud is d’Oraisa or d’Rabbanan is a case of safeik, i.e., when there is a certain factual ambiguity. If the scenario is d’Oraisa, we would rule stringently, and disallow yichud to occur. This is based on the rule of safeik d’Oraisa l’chumra. On the other hand, if the scenario is d’Rabbanan, we should be able to rule leniently, as safeik d’Rabbanan l’kula.
Indeed, Ohel Yaakov (ibid) cites the sefer Nesivos L’Shabbos (by the Haflaah) who rules that one may be lenient in cases of safeik yichud d’Rabbanan. Similarly, Rav Moshe Feinstein zt”l (Even HaEzer 4:65:12) appears to rule leniently in such a scenario, as he allowed a man to have yichud with a girl who was approximately three years old, the minimum age of yichud, where there was uncertainty whether the girl was indeed three years old already. Rav Moshe based this leniency on the fact that such yichud is only d’Rabbanan, as she is an unmarried young girl. [But see Nit’ei Gavriel (Yichud 10:8) who questions this ruling by Rav Moshe, as this safeik is ascertainable and thus not subject to the rule of safeik d’Rabbanan l’kula.]
On the other hand, the Sheivet HaLevi (5:201:1) is stringent even by safeik of yichud d’Rabbanan, as it is a matter of arayos, which is worthy of being strict. Similarly, the Nit’ei Gavriel (10:8) rules that one should be stringent even by safeik yichud d’Rabbanan, unless there is great financial loss.
Next Week’s Topic: Is there a prohibition of yichud where an under-bar mitzvah-aged boy is secluded with an under bas-mitzvah-aged girl?