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I am a little confused as to understanding this gemarah.

לא עשו בו קטן כגדול אמר רב לא עשו ביאת פחות מבן תשע שנים כבן תשע שנים ושמואל אמר לא עשו ביאת פחות מבן שלש שנים כבן שלש שנים The Gemara asks: What does it mean that the Torah does not deem a younger boy to be like an older boy? Rav says: It means that the Torah does not deem the intercourse of one who is less than nine years old to be like the intercourse of one who is at least nine years old, as for a male’s act of intercourse to have the legal status of full-fledged intercourse the minimum age is nine years. And Shmuel says: The Torah does not deem the intercourse of a child who is less than three years old to be like that of one who is three years old.

So from there I understand that once a man is 9 years old (or three years old according to Shmuel), if he performs homosexual acts he is liable to death. Fine. But the next verse states:

במאי קמיפלגי רב סבר כל דאיתיה בשוכב איתיה בנשכב וכל דליתיה בשוכב ליתיה בנשכב The Gemara asks: With regard to what principle do Rav and Shmuel disagree? The Gemara answers: Rav holds that any halakha that applies to one who engages in intercourse actively applies to one who engages in intercourse passively, and any halakha that does not apply to one who engages in intercourse actively does not apply to one who engages in intercourse passively. Therefore, just as one who engages in intercourse actively is not liable if he is less than nine years old, as the intercourse of such a child does not have the halakhic status of intercourse, so too, if a child who is less than nine years old engages in homosexual intercourse passively, the one who engages in intercourse with him is not liable.

Why is someone who is over the age of 9 not liable for death for these acts to someone less than 9? I see Rashi refernces Nidda 45a which says that intercourse with somone less than three is like a finger to the eye but I don't understand what that means, an explanation would help. Also, what is the punishment for the active person instead?

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    A 9 year old is never liable for anything. The gemara is discussing what age a boy would have to be for the active adult to be considered liable.
    – shmosel
    Jul 15, 2023 at 1:26
  • @shmosel Right, so I am asking why the the adult not be liable in this case?
    – HaLevi
    Jul 16, 2023 at 12:38
  • Which one? There are 5 cases.
    – shmosel
    Jul 16, 2023 at 13:28
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    I think he is referring to the case where an adult actively has intercourse with someone who is less than 9 - why would the adult not be liable.
    – Seeker
    Jul 17, 2023 at 19:09
  • Intercourse is not halachically possible for a male under 9 or a female under 3. The question is which rule applies to a passive male participant. Rav says it's the same as the active male. Shmuel equates it with the passive female.
    – shmosel
    Jul 18, 2023 at 2:13

2 Answers 2

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Recap of Gemara:

Technically the Gemara states that there is a child not treated like an adult regularly except when it comes to beastiality.

According to Rav a 9 year old is the demarcation where although not liable for his action if he did it to someone, passively above this age brings liability and below does not to the other adult, but Shmuel says the line is 3.

Rashi is explaining that a 9 year old (ie: older) although never liable, could cause an adult to become liable for the act. Below 9 years old it is not considered intercourse for him to do such an act and therefore receiving intercourse will also not make liable the pursuer.

Shmuel argues and states that being on the receiving end of a forbidden relation applies just like a woman which is possible from the age of 3.

Simplified Explanation

Legally Rav is deciding that the factor causing the change is the child (גברא), and so he is analyzed to know when he makes a determinant difference in other cases. ie: his ability to become liable when he commits the act.

Shmuel is analyzing the act (מעשה) in general, and since elsewhere it would cause liability to a 3 yr old, here it does too.

Philisophical Explanation

I think that a Beis Din can still kill the adult who sleeps with an 8 yr old or imprison him if they so choose, or if civil law exists they can use that.

In regard to the adult's lack of death penalty:

The death penalty by being administered is an act that helps or entirely cleanses the person of their sin. It is part of the atonement if done and accepted properly.

Perhaps this man who slept with a child so young is such a disgusting crime that Hashem does not want this person to have a redemptive punishment. It is so awful he does not have a way of fixing such an atrocity with the death penalty! (Hashem has other ways to still kill him btw, should the court not do so) instead he will be destroyed in the next world.

I am borrowing the logic of Rashba (שו׳׳ת ח׳׳ד סי׳ יח) where he discusses a father who gives his children to Molech - interestingly another incident with children.

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The Gmara holds that for holding juridically an intercourse, there is a minimum age. For a girl it is 3 years; for a boy it is "usually" (when he is active) 9 years. Hence the mah'loket if for this case it is 9 or 3 years.

You ask in commentary "the adult is still punished for doing the act, what is his punishment ?" Logically, he will have to pay the 5 things to pay for "civil" procedure: nezel - reimbursement of the damage caused, tsaar - the pain, ripouy - costs of the doctor, chevet - the loss of earnings during treatment and disability, bochet - the shame.

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