Halachic Sensitivity to the
Rael Strous, M.D.
The nature and phenomenology of the shoteh is distinctly described by the Gemara in Hagiga 3b. The baraita asks, “Who is a shoteh?” and answers with three cardinal features: ha-yotseh yehidi ba-layla (he who goes out alone at night), ha-lan be-veit ha-qevarot (he who spends the night in a cemetery), and ha-meqare’a et kesuto (he who tears his clothes). Later, a second baraita adds a fourth criterion: ha-me’abbed kol ma shenotenim lo (he who destroys all that is given to him).
The shoteh portrayed as such is best understood today as manifesting symptoms typical of the insane, or what in clinical terms is known as the psychotic individual. Psychosis in this sense may be heuristically defined as the state in which an individual lacks the ability to distinguish fantasy from reality. The concept has also become clinically synonymous with an associated severe impairment of social and personal functioning characterized by an inability to perform expected roles. With gross impairment of reality testing and insight, the psychotic individual incorrectly ev- aluates perceptions and thoughts and, in so doing, makes incorrect inferences about external reality despite evidence to the contrary.
Having described the shoteh in this manner, it is clearly evident that the shoteh is one who is expected to struggle to meet societal expectations of functioning and who would demonstrate impaired ability to cope with the usual frustrations and routine challenges of life. Halachic norms and values demonstrate acute sensitivity to the nature of the shoteh, thereby displaying exquisite sensibility and preparedness to the range of human experience and occurrence, in this domain as in all others. This sensitivity manifests not merely toward the shoteh himself – thus protecting his rights, status, and standing in the community – but also the rights of the community itself, which may find itself at times compromised by psychotics’ irrational acts.
How precisely are these factors played out within the rubric of halacha? What are the ways in which the shoteh is shielded from excessive unrealistic expectations extended to sane individuals? We will elaborate briefly on some of these issues, fully aware that a concise discussion cannot do the subject adequate justice.
Subtypes of the Shoteh
Halacha recognizes that psychotic symptomatology exists on a continuum and that this range of human behavior may express itself in a number of forms. Consequently, the Torah is sensitive to the individual nature of certain manifestations of psychosis and does not merely “lump” all phenotypic expressions of psychotic illness together. The specific individuality of the individual remains protected. Furthermore, since the diagnosis of the shoteh is made by members of the beit din steeped in the halachic nuances of the various categories of shoteh, as opposed to mental health practi- tioners who may not be as intimately associated with the subtleties of this classification, the shoteh’s status and rights are further secured. With this in mind it becomes important to recognize pre- cisely and to typify overt symptomatology in order to facilitate optimal categorization.
Categories defined by Hazal include the following:
1. Shoteh gamur (completely insane): perhaps best illustrated by the chronic schizophrenic patient, whose prognosis remains poor and whose baseline functioning is seldom regained.
2. Shoteh who exhibits ‘itim halim ‘itim shoteh (who cycles in and out of psychosis): for example, the manic depressive, or bipolar, patient, for whom the prognosis is generally good and who may be con- sidered sane and competent when not cycling in the psychotic state.
3. Shoteh le-davar ehad (who is insane in only one domain, remaining sane and coherent in all others): as seen in the contemp- orary delusional disorder, in which there is a fixed manifestation of non-bizarre delusions involving situations that may occur in real life, such as being followed, poisoned, infected, deceived, diseased, etc. This individual, despite remaining psychotic in a specific area, may be adjudged competent to engage in certain other domains of responsibility and obligation which would otherwise remain off limits to other shotim[ms1].
This categorization is important since it determines various obligations expected of and permitted to the shoteh and designates potentially sanctioned roles.
Halachic Obligation and Responsibility
When reviewed in Talmudic and rabbinic discussions, the shoteh is frequently mentioned alongside the heresh (deaf mute) and the qatan (minor), the salient common feature apparently being that they are lav benei da’at (lacking understanding). Thus, the shoteh is deemed lacking the critical judgment necessary for basic tasks of daily living and social adaptation, and the ability to assess a situation correctly and to act appropriately. As such, a shoteh is exempt from mitsvot. This includes positive command- ments as well as negative ones, any transgression of which would be adjudged ones (performed under duress).
The shoteh is also exempt from certain forms of punishment. The Mechilta even extends this to exemption from responsibility for murder, under certain conditions. The Talmud details particular ex- amples of mitsvot from which he is exempted, including the reading of Megillat Ester and re’iya (pilgrimage on shalosh regalim). Furthermore, the shoteh is exempt from certain obligations of participation in communal activities, such as zimmun.
Interestingly, it should be noted that while a shoteh is exempt from mitsvot when he is psychotic, once he remits from this state he again becomes obligated. For example, as stated by Rambam and more recently by Rabbi Moshe Feinstein, a shoteh in remission is obligated to eat matsa for a second time had he eaten the first amount in a psychotic condition, a state in which he is patur (exempt) from the mitsva. Once he is no longer in a psychotic state and is able to understand, he is hayyav be-mitsvot (obligated) and he must repeat the act even if he had performed it while psychotic.
While it may be argued that the shoteh’s exemption from the obligation of mitsvot contains an element of discrimination, one can also view this halachic paradigm as demonstrating acute sensitivity. The functionally impaired shoteh is not unnecessarily burdened by obligations that in essence either add a further stress to an already challenged psychological state of mind, potentially exacerbating the clinical picture, or impede recovery from a current disabling psychotic illness.
The Position and Character of the Shoteh in Society
Halacha demonstrates exquisite sensitivity not just to the shoteh but to society as a whole as well, safeguarding the interests of both. Special care is taken in several areas of halacha to protect the shoteh from harm while simultaneously respecting his rightful place as a member of the community, as can be seen through the examples below.
1. Damages while Psychotic
In a state of profoundly impaired insight and even disconnec- tion from the world, a shoteh may be unable to distinguish the nature of cause and effect resulting from his actions. Consequently, he is exempt from responsibility for certain damages. The Mishna in Bava Qama informs us that the shoteh is absolved from account- ability if he injures another individual, but were others to injure him, they would be held accountable for any injury or damage that occurs. Furthermore, in a case of his animal goring the animal of a sane individual, the shoteh is absolved from restitution, but not so the reverse.
The shoteh is considered unaware of what is in his domain (reshut), therefore he is exempt from contributing teruma (tithes), a halachic and communal duty that requires a discernment of what belongs to him and of which possessions in his domain he has control.
If a shoteh finds an object, it would be considered stolen rather than lost property. This is because the shoteh lacks comprehension of what truly belongs to him and, consequently, there is a real possibility of his acquiring an object that does not actually belong to him. This halacha thus aids in safeguarding the property of others.
It is interesting to note that when the shoteh is psychotic and incompetent to manage his affairs, the beit din is permitted to take from his property in order to support his wife and children (even including the purchase of jewelry for his wife). The beit din’s unilateral action appears to be sanctioned by the assumption that the psychotic individual would surely want to support his wife and children. Essentially, the beit din is asserting that the shoteh has a responsibility to his dependents despite his ill state, and interjects itself into the process of carrying out this charge.
In a similar vein, there is an opinion that the beit din is permitted to make a contribution to tsedaqa from the shoteh’s property in his name, and he merits the reward of the mitsva even without his knowledge. The underlying assumption here is that had the shoteh been sane, he surely would have done the same. Hatam Sofer also discusses the matter of the shoteh and tsedaqa, stating that the meritorious act – even if done by others for his benefit – will “protect” him, despite his exemption from the mitsva of tsedaqa.
A shoteh is unable to take upon himself the responsibility for others’ well-being. This has particular relevance to fulfilling the role of intermediary or emissary (shelihut). Classic examples of this principle found in the Talmud and halacha include the inability to fulfill another person’s obligation in certain mitsvot, such as blowing the shofar, baking matsa, and functioning as a mess- enger for setting up an ‘eruv for Shabbat and delivering a get (bill of divorce). Interestingly, a shoteh is permitted to write a get for someone else with the proviso that he be in the company of one who would be able to vouch for the authenticity and accuracy of the get at the time it was written and the competency of the shoteh when he wrote it. It may be argued that, once again, halacha defends against the unnecessary exploitation and burdening of the shoteh, and protects sane individuals from the vagaries and idiosy- ncrasies of a psychotic individual who may not offer reliable agency in cases of need and potential dependency.
A shoteh is considered unqualified to engage in business neg- otiation (lav bar masa u-mattan). Therefore, transactions estab- lished by the shoteh are regarded as null and void (ein ma’asim qayyamim) and he is unable to retain ownership rights (ein lo zekhiyya). It should be noted, however, as cited by Rambam, that others are able to obtain possessions for the shoteh (zakhin adam she-lo be-fanav). The shoteh can also receive a salary and the benefits of any work he may have accomplished as an employed shoteh. While it may be suggested that the above laws of business concerns discriminate against the shoteh, they may also be seen as protecting him against irrational and incriminating financial trans- actions, with significant potential loss. Moreover, they safeguard the rights and interests of the community at large, which itself may incur significant loss from these transactions and which may be unable to claim back damages in such a situation. Thus particular care and discretion are required in any financial dealings with the shoteh. For example, loan repayments are waived for him even if he had been in remission at the time of the loan and there were witnesses verifying his competence at the time. It has therefore been suggested that extending a loan to a shoteh assumes that the loan is an aveda mi-da’at (accepted loss).
5. Marriage and Divorce
A shoteh is not completely in control of his mental faculties, which are required for marriage, and is therefore deemed incapable of adequate intention and commitment to marriage. Therefore, according to Tur, a shoteh is unable to get married (or divorced). This ruling is based on a Gemara in Yevamot 112b, which declares that Hazal did not ordain marital status for the shotim[ms2]. It should be duly noted that this is in contradistinction to the heresh (deaf mute), who is allowed to marry. Shulhan Arukh concurs with the opinion that the shoteh is not allowed to marry, but Rama is of the opinion that this only applies to the shoteh gamur and not to one who is lucid (da’ato tselula) despite a weak and otherwise impaired mental state (dala ve-qelusha harbeh).
The halacha becomes more complex in reference to yibbum (levirate marriage) and halitsa. A shoteh is considered able to act as a meyabbem and, accordingly, to enter a levirate marriage. How- ever, he is considered unable to perform halitsa since he does not possess adequate understanding (mi-shum de-lav benei da’at ninhu) and, therefore, cannot release his deceased brother’s wife from yibbum. According to Tosafot, the inability of the shoteh to perform halitsa is due to his lack of the intellectual faculties needed to make sense of all the regulations inherent in the process. Rambam gives as a reason for this prohibition that the shoteh lacks the intelligence to read and to comprehend. That the shoteh may perform yibbum but cannot marry is not related to any intrinsic ability to perform the act of yibbum, but rather from the fact that the woman was married to his sane brother. Similarly, the sane wife of a shoteh is not liable to yibbum or halitsa since their marriage had no legal standing in the first place (mi-pnei she-ein lahem ishut kelal). The subject of marriage occupies most of the responsa relating to the shoteh, so a brief report on the topic clearly cannot do it justice.
6. The Insane Wife
Arguably, one of the finest examples of halachic sensitivity to the shota is the prohibition against divorcing a woman who has become a shota (nishtatet). Such abandonment would be cruel, as she would lose the protection provided by the marriage.
Rambam clearly explains that this is a protective measure shielding her from abuse since she is unable to protect herself. The interests of the sane husband, however, are also protected in that he may be permitted to remarry with the provision of a hetter me’a rabbanim (approval of one hundred rabbis). He is nonetheless still obligated to provide her with food and drink from her own means, but not with she’er, kesut, and ona (food, clothing, and conjugal union) as one cannot expect a ben da’at (sane person) to live in the house of shotim. Furthermore, Rambam is of the opinion that he is not expected to provide medical treatment or redeem her if she is kidnapped. Tur and Ra’avad, however, assert that he is obliged to provide medical treatment, but Ra’avad states that this would be required only if a potential treatment was available.
Another example of sensitivity toward the psychotic female can be noted in the opinion of Seridei Eish, which maintains that one can be lenient and allow sterilization of a shota out of significant concern for her welfare and potential exploitation.
7. Psychosis as a Life-threatening Illness
Psychosis is a medical illness demanding emergency medical treatment. The suicide rate among schizophrenics, for example, approaches ten percent and in a state of acute psychosis, potentially violent acts to self and others are not uncommon. Management of psychotic disorders frequently requires pharmacological inter- vention in order to circumvent these problems. The laws of Shabbat, Yom Kippur, and other holidays may be set aside for the shoteh in a psychotic state since he is considered a holeh she-yesh bo sakkana. Thus we see that the sensitivity to mental illness even extends to preventing severe, potentially dangerous mental illness.
8. The Community’s Obligations to the Shoteh
There are special illustrations of the obligation of the community to assist a shoteh or shota. Specifically, the Mishna in Nidda 13b discusses how the daughter of a kohen, who happens to be a shota, is assisted by others with nidda preparation and cleansing so that she may participate in eating the teruma. Similarly, male shotim were assisted by others in the tahara (purification) process and observed in maintaining this purity so that they could participate in meals of the kohanim. In another example, the courts are obligated to appoint a guardian (apotropos) for a shoteh in order to protect his rights.
9. The Shoteh and the Beit Din
As explicitly stated a priori by Rambam, the role of deter- mining who is a shoteh is exclusively reserved for the dayyanim of the beit din. This process of determining a person’s ability to make a sound judgment – that is, to weigh, reason, and make sensible decisions – is termed “competence.” It is essential to realize that the shoteh principle is a legal rather than necessarily clinical concept, the evaluation of which can only be made by the beit din. One may view the shoteh concept as a continuum, on which the beit din’s sensitive and crucial diagnosis or categorization depends on the task at hand. While this is important, a clinician such as a psychiatrist, physician, or psychologist may give an opinion on the shoteh’s competence, and in fact may be encouraged to do so. This may especially assist in a more accurate classification with respect to the various halachic definitions of the shoteh.
Halacha demonstrates exceptional sensitivity to the phenom- enon of psychosis. This manifests both with respect to the shoteh as well as to the community with which he may interact. No assump- tion as to the etiology of the shoteh’s illness is presumed, con- sidering the symptom-oriented nature of the description of a shoteh in halacha, in contrast to one based upon an unobservable and subjective patient account. In fact, it is a truism that the deter- mining features of a shoteh affirm that the term is a phenom- enological one as opposed to a diagnosis rooted in pathophysiology or neurocognitive dysfunction. The determination of who is a shoteh is made by the beit din based on these observable symptoms.
Over the past few decades, the field of psychiatry has made great progress. These across-the-board advances have contributed significantly not only to the understanding of the brain both in its normal and aberrant functioning but, most importantly, to the successful treatment and relief of many mental disorders, including some of the most severe and previously treatment-resistant psy- chotic illnesses. It is imperative to communicate this progress with the Torah community and to consider its relevance to the appropriate application of talmudic and halachic concepts. The assumption as expressed in the Talmud, “shoteh la samei be-yadan” (essentially, “once insane, always insane,” since we have no cure) may no longer necessarily apply in light of current clinical practice.
From the example of the spirit of halacha, it behooves us at all times to maintain sensitivity to the shoteh. The Talmud in Berachot cites Rava’s instruction that the ultimate purpose of Torah wisdom encompasses beneficence toward others. Not only will the shoteh benefit from this, but extending sensitivity and discretion toward those less fortunate, and afflicted by disabling illness, is in and of itself fulfilling.
Source: ASSIA – Jewish Medical Ethics,
Vol. IV, No. 1, February 2001, pp. 30-34
1. Tosefta, Terumot 3:1.
2. Hagiga 4a.
3. Harold I. Kaplan, Benjamin J. Sadock, Jack A. Grebb, Synopsis of Psychiatry, Behavioral Sciences, Clinical Psychiatry, 7th ed. (Baltimore, Md.: 1994).
4. Rambam, Hilchot Eidut 9:9-10.
5. Rama, Even ha-Ezer 44; Ahi’ezer, Even ha-Ezer 1:10.
6. Ketubbot 20a; Yevamot 113b; Nedarim 36a; Gittin 5a, 23a; Rosh ha-Shana 28a; Palestinian Talmud, Ketubbot 1:25b; Palestinian Talmud, Gittin 2:44a. Note that the Yerushalmi appears to differentiate between halim (incomplete remission) and shafui (full remission; see Responsa Rashba 4:201). See also Rambam, Mechira 29:5
7. For more in-depth analysis, see the discussion of the get of Cleve in Or ha-Yashar and Or ha-Yesharim.
8. For example, Yevamot 99b; Menahot 93a; Hullin 13a; Erchin 2a, 5b; Rashi, Hagiga 2a.
9. Hagiga 2b.
10. Peri Megadim, introduction to pt. 2, 2.
11. Rashi, Hagiga 3b, s.v. eizehu shoteh.
12. Mechilta, Mishpatim 4.
13. Megilla 19b.
14. Hagiga 2a.
15. Mishna Berura 199:29.
16. Rambam, Hilchot Hamets u-Matsa 6:3; Iggerot Moshe, Even ha-Ezer 2:18.
17. Bava Qama 87a.
18. For example, Bava Qama 39a, 42a; Palestinian Talmud, Bava Qama 5:5a.
19. Shabbat 153b.
20. Gittin 59b, 61a.
21. Ketubbot 48a; Rambam, Hilchot Ishut 13:7; Shulhan Arukh, Even ha-Ezer 70:6.
22. Rambam, Hilchot Nahalot 11:11; see also Kesef Mishna.
23. Hatam Sofer, Orah Hayyim 2.
24. Rambam, Hilchot Ishut 3:17, Hilchot Me’ila 7:1; Tur, Hoshen Mishpat 96, 188.
25. Rosh ha-Shana 29a; Palestinian Talmud 3:48c; Tur, Orah Hayyim 589.
26. Tur, Orah Hayyim 460.
27. Eruvin 31b; Palestinian Talmud, Eruvin 3:20c.
28. Gittin 9a, 23a; Palestinian Talmud, Gittin 2:44a.
29. Gittin 22b, Palestinian Talmud Gittin 2:44a.
30. Tur, Hoshen Mishpat 235.
31. Ibid. 243.
32. Rambam, Zekhiya u-Mattana 4:7. Rosh (Ketubbot 2:14) maintains that this applies only in the case of the cyclical shoteh (‘ittim halim ‘ittim shoteh).
33. Qetsot ha-Hoshen 243:6.
34. Tur, Hoshen Mishpat 96.
35. Sefer ha-Terumot 36:1 (cited in Mishpetei ha-Da’at).
36. Rambam, Hilchot Ishut 2:26, 4:9.
37. Tur, Even ha-Ezer 44:2.
38. Yevamot 112b.
39. Even ha-Ezer 44.
40. Rama, Even ha-Ezer 44.
41. Tosefta, Yevamot 2:6; Yevamot 104b.
42. Tosafot, Yevamot 104b.
43. Rambam, Yibbum ve-Halitsa 6:3, 6.
44. See note 4; Rambam, Yibbum ve-Halitsa 6:8.
45. Yevamot 112b.
46. Rambam, Gerushin 10:23.
47. Tur, Even ha-Ezer 119; Ra’avad on Rambam, Gerushin 10:23; see halachic analysis in M. M. Brayer, “The Concept of Insanity in Rabbinic Law and in Psychiatry,” Proceedings of the Association of Orthodox Jewish Scientists 10 (1990): 11-66.
48. Responsa Seridei Eish 3:21.
49. Responsa Tsits Eli’ezer 8, 15:12, no. 5; Nishmat Avraham, vol. 3 (Even ha-Ezer), 145:3.
50. Tosefta, Nidda par. 2.
51. Rambam, Hilchot Mechira 29:4.
52. Rambam, Hilchot Eidut 9:9-10. Rambam also cites the halacha that a shoteh is pasul (unfit) for ‘eidut (giving testimony) since he is not bar mitsvot.
53. Gittin 70b.
54. Berachot 17a.