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The Talmud [Sanhedrin 46a; Yevamot 90b] mentions a case in which a man was flogged for having intercourse with his wife in public, which is not forbidden by the Torah. The judges decreed that when "the hour requires it" (widespread laxity in observance), beyond-Torah punishment is warranted.

But there are laws on modesty ( צניעות -- tzniut) in halacha. Why does the Talmud say it's allowed by the Torah?

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    Who says it's allowed? "Allowed" and "not punishable" are two very different things. – Meir Jul 28 '20 at 19:54
  • "such conduct is not forbidden by the Torah" is a comment inserted in the Sefaria text. Must be from a commentator. – Maurice Mizrahi Jul 28 '20 at 19:57
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    Your question is premised on a contradiction between permission to engage in sexual activity in public and laws of modesty. But you don't tell us what these laws of modesty are or where they can be found, thus making it difficult for us to investigate if there is actually a contradiction here. – Alex Jul 29 '20 at 1:05
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    Rule of thumb is Sefaria's English Talmud is the Noe edition of the Koren Talmud, which is an English translation based off of Rav Steinzaltz commentary on Shas. Indeed, if you look at his commentary there (it's on their site), it says: ושוב מעשה באדם אחד שהטיח (בעל) באשתו שלו תחת התאנה בחוץ, והביאוהו לבית דין והלקוהו, לא מפני שראוי לכך שהרי אין איסור תורה אם הוא בועל את אשתו בכל מקום שירצה @Meir. I suggest the OP change the question to ask how could Rav Steinzaltz suggest there's no prohibition, assuming you can find one to contradict his commentary. – robev Jul 29 '20 at 2:10
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    @Maurice probably depends what you mean by "hard" "halacha" and "tzniut". If you conjure up contradictions using ill defined terms, don't be too surprised you have trouble finding answers – Double AA Jul 29 '20 at 2:39
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Rambam seems to refer to this incident in the gemara in two different places, with subtle differences.

In Hilchot Sanhedrin 24:4 he writes:

יֵשׁ לְבֵית דִּין לְהַלְקוֹת מִי שֶׁאֵינוֹ מְחֻיַּב מַלְקוֹת וְלַהֲרֹג מִי שֶׁאֵינוֹ מְחֻיַּב מִיתָה וְלֹא לַעֲבֹר עַל דִּבְרֵי תּוֹרָה אֶלָּא לַעֲשׂוֹת סְיָג לַתּוֹרָה. וְכֵיוָן שֶׁרוֹאִים בֵּית דִּין שֶׁפָּרְצוּ הָעָם בַּדָּבָר יֵשׁ לָהֶן לִגְדֹּר וּלְחַזֵּק הַדָּבָר כְּפִי מַה שֶּׁיֵּרָאֶה לָהֶם הַכּל הוֹרָאַת שָׁעָה לֹא שֶׁיִּקְבַּע הֲלָכָה לְדוֹרוֹת. מַעֲשֶׂה וְהִלְקוּ אָדָם שֶׁבָּעַל אִשְׁתּוֹ תַּחַת אִילָן.‏

A court has the authority to administer lashes to a person who is not required to receive lashes and to execute a person who is not liable to be executed. This license was not granted to overstep the words of the Torah, but rather to create a fence around the words of the Torah. When the court sees that the people have broken the accepted norms with regard to a matter, they may establish safeguards to strengthen the matter according to what appears necessary to them. All the above applies with regard to establishing directives for the immediate time, and not with regard to the establishment of halachah for all time. An incident occurred where they had a man lashed for engaging in relations with his wife under a tree.

(Touger translation)

This seems to imply that what the man did in this case is not ordinarily deserving of any punishment. He was punished exceptionally, as the court of that time and place saw fit.

In Hilchot Issurei Biah 21:14 he writes:

וְאָסוּר לְאָדָם לָבֹא עַל אִשְׁתּוֹ בַּשְּׁוָקִים וּבָרְחוֹבוֹת אוֹ בַּגַּנּוֹת וּבַפַּרְדֵּסִין אֶלָּא בְּבֵית דִּירָה. שֶׁלֹּא יֵרָאֶה כִּזְנוּת וְיַרְגִּילוּ עַצְמָם לִידֵי זְנוּת. וְהַבּוֹעֵל אֶת אִשְׁתּוֹ בִּמְקוֹמוֹת אֵלּוּ מַכִּין אוֹתוֹ מַכַּת מַרְדּוּת.‏

It is forbidden for a man to engage in relations with his wife in the marketplaces, streets, gardens, or orchards. Instead, [a couple should be physically intimate] only in a home, so that they will not appear as licentious relations and will not habituate themselves to licentious relations. When a man engages in relations with his wife in such places, he should be given stripes for rebellious conduct.

(Touger translation)

This seems to imply that any act of public intercourse is punished (rabinically) by lashes. It is not left to the discretion of the local court.

R. Yosef Rozin in Tzafenat Pa'aneach to Issurei Biah 21 resolves the contradiction as follows:

Intercourse in a public place (such as a marketplace or a main thoroughfare, or even a garden or orchard) is indeed always punished (rabbinically) with lashes. However, in the case under discussion in this question, the incident took place beneath a fig tree, which provided at least minimal seclusion.

That being the case, this act was not, strictly speaking, deserving of lashes at all, even rabbinically. However, the judges at the time exercised their prerogative to administer lashes in any event, in order to further the orderly running of society.

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  • Thanks, that's very helpful. The bottom line of what you wrote is that sexual intercourse with very fig-leaf-type (ha ha) "minimal seclusion" is permitted by halacha. Is that really the case? That was my question. – Maurice Mizrahi Jul 29 '20 at 12:00
  • @MauriceMizrahi That's a different question.... above you asked specifically why the Gemmara says it's ok Tora-wise. – Alaychem goes to Codidact Jul 29 '20 at 12:06
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    @MauriceMizrahi I'm not saying that it's permitted. Rambam is clear that it should only be done in a private residential setting (אָסוּר לְאָדָם לָבֹא עַל אִשְׁתּוֹ ... אֶלָּא בְּבֵית דִּירָה). A minimally secluded outdoor setting, while inappropriate / discouraged / not recommended / not allowed, would not ordinarily be punished by lashes (according to R. Rozin's interpretation), but the local court does have the discretion to do so if it feels it to be necessary. – Joel K Jul 29 '20 at 12:10
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Careful reading should be applied here. From Sefria:

ושוב מעשה באדם אחד שהטיח באשתו תחת התאנה והביאוהו לבית דין והלקוהו לא מפני שראוי לכך אלא שהשעה צריכה לכך מיגדר מילתא שאני:

And again, an incident occurred involving a certain person who cohabited with his own wife under a fig tree [in plain view], and they brought him to the court and flogged him, not because this punishment was fitting for him, [as it is not prohibited by the Torah for one to engage in relations with his wife wherever he chooses], but because the hour required it.

The words that are in parentheses are not part of the Gemmara text, but added text for more clarity. If we ignore those wording, it's easier to focus the matter, and it's obvious that the Gemmara simply tells us, that there is no flogging punishment in the written Tora for having intercourse relationships in plain view, yet he was flogged, due to Rabbnical law (as opposed to Tora law), "because the hour required it".

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  • But rabbinic law is always applied. You don't need to wait for "the hour to require it". So this was clearly an exceptional situation. – Maurice Mizrahi Jul 29 '20 at 10:21
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    @MauriceMizrahi Not all transgressing of Rabbinical law is punished by flogging. – Alaychem goes to Codidact Jul 29 '20 at 12:03

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