THE IMPOTENT BRIDEGROOM-TO-BE

QUESTION:

The prospective bridegroom is under psychiatric care in the attempt to cure him of his sexual impotence. Should the rabbi officiate at this marriage?

ANSWER:

THERE IS a large amount of halachic discussion on the question of the relationship between marriage and impotence. Beginning with the Mishnah at the end of Nedarim down to the contemporary scholars, the various questions related to this situation have been discussed; and yet, strangely enough, as far as I can determine, the specific question asked here has never been directly raised, namely, whether one should or should not officiate at the marriage when it is already known before the ceremony that this bridegroom-to-be is sex-ually impotent. The entire discussion all through the halachic literature concerns marriages which have al ready taken place and in which the wife complains that the husband is impotent. Perhaps the reason that this plain question was never raised was the fact that up to the present time the fact of the groom’s impotence would hardly have been known before the marriage took place. But nowadays, with so much sexual liberty, a young man might well learn long before his marriage whether he is impotent or not. In past generations, if an unmarried young man did have sexual relationship, he would keep the fact carefully concealed.

Although this direct question as to whether to officiate at such a marriage has not specifically arisen, nevertheless the long and complex discussion which already exists with regard to marriage and impotence may give us some guidance in this new question.

There are primarily two sets of laws going back to the beginning of the Halachah and codified in the Shulchan Aruch which have bearing on this question. First there are the laws prohibiting the marriage of a man physically mutilated in his sexual parts, and of a eunuch (Even Ha’ezer 5 and 172). Then there are the laws dealing with the question of a woman’s complaint that her husband is impotent and has been impotent from the very beginning of the marriage (Even Ha’ezer 154:6, 7).

With regard to the prohibition against a eunuch or a man sexually mutilated marrying, the law is clear: “He shall not enter the congregation of the Lord” (Deut. 23:2, M. Yevamot VIII, 2). Nevertheless, Mai monides says that if such a marriage has taken place, it is a valid marriage (Hilchot Ishut IV, 10, also Shulchan Aruch, Even Ha’ezer 44:4). There is disagreement as to what circumstances Maimonides had in mind. The commentator Abraham De Boton, in his commentary to the Yad, Lechem Mishnah, says the validity depends upon whether or not the defect was known before the marriage. But at all events, ab initio, such a marriage should not take place. Another involvement in this particular question is with regard to the sexless type of woman who, as with a eunuch, should not be married. Nevertheless, Isserles says (Even Ha’ezer I, 3 and 8) that nowadays we are not concerned enough with it to restrict it, especially if the man by a previous marriage has performed his duty of having a son and a daughter.

With regard to the question raised now, we may ask: Is not an impotent man to be considered a eunuch and the marriage should not take place? But if it does take place, it is nevertheless valid (according to Maimonides) . This must be considered an open question, especially in this case where there is still a possibility that since the impotence is not due to an irremediable physical mutilation, but to a psychological attitude, it may possibly be cured. In that case it depends on whether (according to De Boton) the bride-to-be knows of this situation and is quite willing nevertheless to enter into the marriage.

A clearer picture of the situation is derived from the second set of laws, Even Ha’ezer 154:6,7, which deal with the complaint of a woman that her husband has been impotent from the very beginning of the marriage. With regard to this situation the first question is whether the woman is to be believed. If she demands the full payment of her ketubah money and the finan-cial additions recorded in the document, then her claim may be doubted: she may be making it in order to get the money. If she claims it in the absence of her husband, she may also be doubted. But if she claims it in the presence of her husband, it is evident that they both know it is a fact and the claim must be accepted as true.

But there is also some doubt even with regard to the latter situation (i.e., that she makes the claim bluntly in the presence of her husband) dating back to Meir of Rothenburg (thirteenth century) that “nowadays women have become shameless” and will make claims of this kind because they want to marry somebody else. But, in general, despite this doubt based upon the supposedly deteriorating character of women, her claim is to be believed.

Now since her claim is believed, what is to be done? The obvious solution is for the court to compel the husband to divorce her. But there is a further opinion that even if he does not divorce her, this marriage is no marriage at all and is, ipso facto, void. In fact, Sabbatai Cohen (seventeenth century) the great commentator on the Shulchan Aruch, wrote a special treatise on this very question (Gevurat Hanashim) . He states at the end, where he sums up his long argument that, if the woman actually married a second man under these circumstances in the presence of her husband that second marriage is absolutely valid and she does not even require a divorce from her first “husband” but, he says, this is the strict law. In actual practice, she should get a divorce.

In recent years two scholars have dealt with the question in America, one, Judah Eliakim Goldberg who is both a rabbi and a physician (Kocho Dehetera, New York, 1922) and, more recently, Moshe Feinstein, who is the best-known decisor in America today and is now the head of the Agudat Harabanim (Igrot Moshe, Even Ha’ezer #79). Rabbi Goldberg’s treatise is remarkably complete and he lists the chief scholars beginning with Simon ben Zemach Duran onward who dealt with the question. He shows that the larger majority hold that such a marriage should be declared void. The specific case that he mentions is as follows: The young woman complains that when she married the man she assumed that he was normal, but from the very first night of the marriage he proved impotent and has been impotent all through the seven months of the marriage. In spite of all medical treatment, he remains impotent and he never once had any sexual intercourse with her and she is still a virgin. She has already received a divorce from the civil courts and she asks that she be now freed by a rabbinical court so that she may remarry according to rabbinical law. Goldberg (who is himself a member of this rabbinical court) mentions the fact that the young man absolutely refuses to give her a Jewish get. The court finally decided to declare the marriage void. Moshe Feinstein’s case was virtually the same, but in this case the young man ran away, disappeared, and was unavailable for a get. He also decided that in this specific case the marriage is void.

Of course, if the woman in either case (and in all the other cases cited in the long halachic discussions) did not complain but were satisfied to remain married, the rabbi certainly would not take the initiative and declare that such a marriage is void, in spite of the fact that the purpose of marriage, namely, the having of children, could not be fulfilled. There are many reasons why a woman might be willing to remain married to the man. Perhaps, then, instead of saying that such a marriage is “void,” it is more correct to say that it is “voidable” if the woman requested it to be voided. Almost precisely the question asked here was asked of Dov B. Weidenfeld. His answer is in his Dovev Mesharim., #77. He discusses the various opinions as to whether such a marriage is void or not and, on the assumption that the man is curable, comes to the conclusion that such a marriage can be valid.

As to whether the rabbi should officiate at such a marriage, the question must be asked, how does the rabbi know of this impotence or imputed impotence? Who told him? Perhaps the statement was made out of malice. The crucial question is, does the bride already know about it? In Noam, Volume 13, page 317, “Tif eret Adam,” by Moses David Oestreicher, responsum #137 is quoted in the following analogous case: A doctor knows that a certain bridegroom-to-be is mortally ill and will not live more than a year or two. The author decides that it is the physician’s duty to inform the bride, for otherwise she may be tragically widowed within a year or two and the doctor will be violating the commandment of “put not a stumbling block before the blind.” It is his duty to tell her and she, then, will do as she wishes.

So in the case we are discussing if the bride knows about it and if there is a fair prospect on the testimony from the doctors that the man may be cured, perhaps the rabbi may officiate at the marriage. But if she does not know about it, or if there is no likelihood of his being cured, then there is grave doubt whether the rabbi should officiate at all. Certainly she must be told. If she consents, I believe (reluctantly) that he may officiate, remembering that he is officiating at a marriage of dubious validity, one that can be voided in the rabbinical courts and certainly ended by the civil courts.