More on the Talmud and consent

POLITICS, SEX, AND THE TALMUD: What Michael Cohen Doesn't Understand About Rape — Or the Talmud (Melanie Landau, The Forward). Now let us be clear: PaleoJudaica does not regard American Presidential candidates or their lawyers to be part of its remit and it has no interest in commenting on them. Nevertheless, although Mr. Cohen did not himself mention the Talmud, this article includes another discussion of the issue of sexual consent in the Talmud, and this adds to the earlier discussion of the subject a while ago (here and links; note also here) raised by Dr. Ruth's comments. Eruvin 100b was already brought into that discussion but, as far as I can tell, the following was not:

However another Talmudic passage (Tractate Niddah 12a) raises serious questions at to whether the rabbis actually require married women to consent to sexual intercourse:

“The rabbis teach: Donkey drivers and workers and those who come from a mourning house and from a house of celebration - their women have a presumption of ritual purity. And they can come and be with them whether they are awake or asleep. What does this refer to? If he left them in a state of ritual purity, but if he left them in a state of ritual impurity then she is ritually impure until she says ‘I am ritually pure’.”

In this source we see that women’s ostensible personal consent is superseded by the category of her ritual purity and impurity. If he knows that she was ritually impure when he left then a husband assumes his wife is also in this state when he arrives home and that he can have sexual intercourse with her even while she is sleeping. She does not need to consent but she does need to have been ritually pure, at least when he left her. Later Talmudic commentators reconcile this source that seems to sanction sexual relations without consent with previous statements requiring of consent by developing the concept of “semi-sleeping” which still enables consent while not fully awake.

I am not a specialist in Talmud and will not try to offer an expert opinion on what the passage might mean, but I note it here as part of the discussion.