Why does Israel permit(ted) incest???
The general prohibition against incest with one’s “near of kin” (Lev. 18:6) has been held to be limited to the following degrees of consanguinity: parents (18:7); mother-in-law (20:14); stepmother (18:8); sister and half sister (18:9) (but not a stepsister as the Karaites maintained); granddaughter (18:10); aunt (18:12–13); wife of father’s brother (18:14); daughter-in-law (18:15); brother’s wife (18:16); stepdaughter and step granddaughter (18:17); and wife’s sister during the lifetime of the former (18:18). This list is exhaustive and may not be added to by analogies (Sifra, Aḥarei-Mot 13:15), since creation of any criminal offense requires the express pronouncement both ofthe conduct prohibited and the resulting punishment (see *Penal Law; cf. Ker. 3a; Sanh. 74a). A list of another 20 degrees of consanguinity was later drawn up, however, by way of analogy – albeit not to create additional criminal offenses, but as additional prohibitions of intercourse and impediments to *marriage (Yev. 21a; Maim. Yad, Ishut 1:6).
The punishment for the various offenses of incest varies – while biblical law prescribed death by burning for incest with one’s mother-in-law (Lev. 20:14), it did not prescribe any particular mode of execution for other capital offenses of incest (Lev. 20:11, 12, 17, 19, 20, 21), some of which were clearly to be visited with *divine punishment (*karet; Lev. 20:17, 20, 21). In talmudic law, the offenses of incest were eventually classified as follows:
(1) those punishable with death by stoning – incest with mother, stepmother daughter-in-law (Sanh. 7:4);
(2) those punishable with death by burning – incest with stepdaughter, stepgranddaughter, mother-in-law, grandmother-in-law, daughter, and granddaughter (Sanh. 9:1); and
(3) all other offenses of incest to be punishable with karet or *flogging (Maim. Yad, Issurei Bi’ah 1:4–7). As several of the offenses are threatened with both judicial and divine punishment (e.g., incest with mother and stepmother; Ker. 1:1), the rule was evolved that capital punishment would be imposed judicially only where the offense had been committed after previous warning that it was punishable and in the presence of witnesses; while divine punishment was deemed to apply where the offense had been committed without such previous warning and without witnesses being available (Yad, Issurei Bi’ah 1:2–3). Flogging came to be administered not only by way of punishment for such incestuous acts as had been made criminal offenses, but also by way of admonition and rebuke (makkat mardut), for incestuous acts which were not criminal (Maim. ibid. 2:8). Occasionally, capital offenses were reduced to offenses punishable with flogging, as in the case of incest with one’s wife’s near relations after her death (ibid.)
Incest is a capital offense only where sexual intercourse has taken place (Shab. 13a), although complete penetration is not a required element (Maim. ibid. 1:10); but the prohibition to come near anyone of one’s “near of kin” was interpreted to render any bodily proximity, within the prohibited degrees of kinship, punishable with flogging (Maim. Yad, Issurei Bi’ah 21:1) – except kissing or embracing one’s mother, daughter, sister, or aunt, or such other relatives who do not normally arouse the sexual urge (ibid., 21:6; and see *Sexual Offenses). The offense of incest is committed by the female as well as by the male participant (Yev. 84b; TJ, Sanh. 7, 9, 25a; Ker. 2:4; Maim. Yad, Issurei Bi’ah 1:1); but where the offense is committed upon an infant or upon a person asleep or by a person unaware of the incestuous relationship, only the initiator of the act is punishable (Ker. 2:6).
Each single act of sexual intercourse amounts to a complete commission of the offense (Maim. ibid. 3:12). The turpitude of this kind of offense is stressed in the Bible by such epithets as “wickedness” (zimmah, Lev. 20:14; Ezek. 22, 11), “corruption” (tevel, Lev. 20:12), “shame” (ḥesed, Lev. 20:17), and “impurity” (niddah, Lev. 20:21). Incest is one of the three cardinal offenses (together with murder and idolatry) which a man may not commit even in order to save himself from certain death (Sanh. 74a; Yad, Yesodei ha-Torah 5:2); nor in order to save another person’s life (Tosef. Shab. 15:17); nor can there be any justification for its commission on any medical grounds (TJ, Shab. 14:4, 14d; Pes. 25a). Opinions are divided among medieval scholars as to whether a woman, as well as a man, must choose to die rather than commit incest. Some hold that a woman, being the passive partner, may submit to incest rather than be killed (Rashi to Yoma 82a; Isserles, YD 157:1 and cf. Tos. to Av. Zar. 54a), while others maintain that she should prefer death (ET, 6 (1954), 110). It is also maintained that the female’s enjoyment is tantamount to the male’s action (Tos. BK 32a), constituting “an overt act” for which her punishment is flogging.
In the State of Israel there is no statutory prohibition against incest as such, but it is an offense, punishable with five years’ imprisonment, for anyone to have sexual intercourse with an unmarried girl below the age of 21 who is his or his wife’s descendant, or his ward, or who has been entrusted to him for education or supervision (Section 155, Criminal Code Ordinance, 1936). Apart from this particular provision, it would seem that sexual intercourse within the prohibited degrees of consanguinity described above is, indeed, left to divine punishment.