[Avodah] kol isha question

[Chana Luntz]

I wrote:

> 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 

So I was thinking about this further over shabbasn and thought Ok, let's try
another tack.  The mishna in Baba Kama 90a-b discusses the damages category
of busha, including liability for taking off somebody's clothes or
uncovering the head of a woman.  And while the subsequent gemora makes clear
that as a damages category there needs to be an actual act, even humiliating
with words not being enough (and so one would have thought, kol sheken, if
all one is doing is merely seeing or hearing, that could not be enough to
give rise to damages) - the Shulchan Aruch brings in Choshen Mishpat siman
420 siman 39 that even though one who humiliated somebody with words is not
liable to pay it is a great sin (and then quotes that anybody who whitens
the face of somebody kosher from Israel does not have a chelek in olam
haba).

So, could we say something similar in such a case?  That is, if somebody (ie
a woman) would feel humiliated in being seen or heard by a man, and a man
goes out of his way to see or hear her (eg in a film) could this be
considered in the same category if it was reported back to her (because
surely humiliating somebody with words doesn't have to be to their face, if
somebody says something nasty behind their back and it is reported back, and
it embarrasses them, would it not be in the same category?) - and see also
the discussion there in Baba Kama about what if somebody was humiliated
while sleeping and then dies, where there is uncertainty whether in fact
they should be able to recover or not (with the Shulchan Aruch ruling that
the heirs cannot recover if they sue, but if they seize the property, we
cannot take it out of their hand).  How far does my right not to be
humiliated according to my lights extend?

On the other hand, a mandatory requirement vis a vis liability for
humiliation is intent - as the Mishna specifies in 86b for the category of
busha one is not liable unless there was intent (and as the Shulchan Aruch
rules in Choshen Mishpat siman 421 si'if 1).  So if one does not think
something is embarrassing,  but you know that the other person would be
embarrassed by it, does that characterise the necessary intent?  Or is the
question of intent objective? Especially if your intent was to enjoy a good
film, and incidentally you were doing something that caused embarrassment to
others.  On the other hand, people's faces can go white for things that
other people would consider to be completely innocuous, how careful do you
have to be?

Yet another aspect I thought about over shabbas was the ruling (from the
gemora in Baba Basra 56b and as brought down in the Shulchan Aruch Choshen
Mishpat siman 161 si'if 5) that the one thing that partners in a courtyard
cannot prevent the other partners from doing even though it is not usually
the way to do such things in such courtyards was to do the washing, because
sheain derech bnos yisroel l'hisbazos al gav hanahar - and as the Rashbam
explains there, in order to do the washing in the river, it was necessary
for the women to expose their legs.   And the nosei kelim there on the
Shulchan Aruch all comment that even though today it is indeed the custom in
most cities for women to do the wash by the river, still, if a woman insists
that she does not want to expose herself like that and hence wants to do the
wash in the courtyard of the partnership, the partner cannot prevent her,
with the Beis Yosef seeming to suggest that this is because the chachimim
made a gezera to allow this particular thing, but eg the Shach understands
it to be because the minhag to do the wash by the river is a minhag garua
and hence one can overrule a minhag garua like this and go back to "best
practice".

But while this would seem to allow a woman who wanted to be more tznius than
the minhag the right to insist on this even at the expense of somebody
else's partial property, it is not clear how far this extends - the Beis
Yosef's formulation would seem to limit it to the particular case in the
gemora, while the Shach's would seem to allow it to extend further.  I
wonder what the halacha would be if, say, there was not acourtyard
alternative to the river, and the woman insisted that since the options were
the river only, her husband had to do the wash, would her husband be
compelled to respect her additional level of tznius, one that is stated as
legitimate in the gemora, or would he be entitled to say that the minhag in
the city was that the women did the wash by the river and he was not
stepping into the breach (or paying for somebody else, eg a non Jew to do
it, most likely)?  It would seem to me that the Beis Yosef's formulation
would allow the husband to refuse, but that he Shach's might well not.

And if we go back to the next portion of the gemora, which then discusses a
man going on a route that takes him past women doing the wash in the river
(and calls him a rasha if there is a derech achrina, but treats him as an
onus if there is not a derech achrina, although he is praised if he closes
or averts his eyes), it is not clear that if there was a derech achrina, and
even if he was a rasha, if that makes him have any level of obligation to
the women rather than to Hashem.

So while the halacha clearly contains a "right not to be humiliated" I am
struggling to find anything that would really support including in that a
case of a right not to be seen or heard - other than the right to privacy in
one's own courtyard that I brought initially. 

It might as RZS says be derech eretz, but can one legitimately insist on it?

Shavuah tov

Chana