[Avodah] kol isha question

[Chana Luntz]

>
>  RSZN writes:
>


> >are viewers/ listeners  who are meikel/don't hold from  kol isha  issues
> >bound  by the request of  performers  who don't want  their own psak of
> >kol isha issues violated?
>
> Well leaving aside dina d'malchusa dina issues (after all, there may be
copywrite issues if a performance is used in a way that the performer
specifically does not wish) there is a concept at the beginning of Baba
Basra as to whether hezek riya shmei hezek or lav shmei hezek, ie does
violation of a right to privacy constitute a form of damage or not?  That
is, if you can see into my courtyard does that damage me, and can I act to
prevent this.  However, I am not aware of this concept ever being used
beyond questions of physical property (except perhaps as a grounds for
divorce without kesuba, and even there, it would seem that it is the
attitude by the woman not the fact of inappropriate viewing, that is
problematic, as otherwise strictures would apply in cases of ones).

But this is part of the problem.  Tznius has taken on a life of its own, and
seems to be being treated as a halachic entity in its own right, a bit like
privacy, but aside from this one example in Baba Basra, and the grounds for
divorce in Kesubos, I personally can't think of a situation where mere
seeing is regarded in halachic terms as violating the rights of the one who
is seen (or their husband perhaps) - and certainly not of a case where one
is considered violating the rights of one who is merely heard.

Of course, if you understand prohibitions like kol isha operate vis a vis
women as a form of lifnei iver, then we can have a fruitful halachic
discussion.  Given that today a man is quite capable of finding many
opportunities to hear a woman sing on film, it would seem that the biblical
prohibition of lifnei iver, requiring two sides of the river, would not be
applicable here.  So the real discussion is about mesaye lei, the rabbinic
version of lifnei iver, and presumably it would need to centre on the
machlokus between the Shach (Yoreh Deah siman 151 si'if katan 6) and the
Magan Avraham (Orech Chaim siman 347 si'if katan 4) as to whether mesaye lei
applies to a mumar or somebody who is sinning b'mezid, the Shach holding
that it does not (see eg Iggeros Moshe Yoreh Deah chelek 1 siman 72 for the
understanding that when the Shach referred to a mumar, he was including
anyone sinning b'mazid) , whereas the Magan Avraham holds that it does.

If you hold like the Shach therefore, then if a man b'mazid, after having
been warned, goes to a film like this, then there should be no violation of
mesaye lei on the part of the women, even if they do hold that watching such
a film by a man is assur.  On the other hand, according to the Magen
Avraham, arguably were such a man to go, the women would end up being in
violation of mesaye lei according to their lights, if not according to his.
However, given that lifnei lifnei iver even at the d'orisa level is mutar, I
doubt that mesaya mesaya is assur, assuming that you hold that the ikar act
is mutar.  So while, if the women follow the Magen Avraham, they may feel
the need to go to great lengths to make sure that a man is not able to come
and see the film, because of mesaye lei, and by going a man might cause such
films to be even less available to women and girls in the future, so it
might be wise to desist, I can't see the halachic basis on which he would be
required to desist, if his position is, eg that recorded singing is mutar.

But this is part of the ironies that comes into play every time tznius comes
up - halachic thinking and its categories appear to go out of the window and
people stop thinking in halachic terms (probably because the people doing
most of the thinking, ie women, have generally not been trained to think in
halachic terms).  So you almost never see these kind of analyses.

Regards

Chana
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