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There are passages in Maimonides' Mishneh Torah where it is said that having incestuous intercourse with a girl under the age of three does not entail punishment. The same goes for a boy under nine (homosexuals). See Sefer Kedusha, Hilchos Issurei Biah 1,13 and 14.

"When an adult male enters into relations with any of the women forbidden in connection with the above transgressions who is three years and one day old or more,40 he is liable for execution, kerait, or lashes and she is not liable unless she is past majority. If she is younger than this, both participants are not liable, for the act is not considered as sexual relations."

"When a man enters into relations with a male or has a male enter into relations with him, once the corona is inserted [into the anus] they should both be stoned if they are both adults. As [Leviticus 18:22] states: "Do not lie with a man," [holding one liable for the act, whether] he is the active or passive partner. If a minor of nine years and a day or more is involved, the man who enters into relations or has the minor enter into relations with him should be stoned and the minor is not liable. If the male [minor] was less than nine years old, they are both free of liability"

What caught my attention is the commentary on this passage from Rabbi Eliyahu Touger where he says: "For until that age, her signs of virginity will regenerate and hence, relations are not of consequence. Nevertheless, even when the girl is below that age, it is forbidden to enter into such relations (the Rambam's Commentary to the Mishnah, Sanhedrin 7:4)".

And again this: "For sexual relations with a male below the age of nine are not of consequence. Nevertheless, it is forbidden to enter into such relations (the Rambam's Commentary to the Mishnah, Sanhedrin 7:4)."

I looked up this commentary on Rambam's Mishneh unsuccessfully. So, this intercourse under this age (under tre year and under nine year), although it does not violate the law, is still punished. Where is it?

Can you please highlight the precise portion of the text, in Hebrew and if possible with an English translation?

Shalom.

Ootsutsuki
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    You have it backward. It violates the law but is not punished. – N.T. Apr 03 '23 at 03:08
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    וכל מי שהוא פחות מבן תשע שנים ויום אחד אין ביאתו ביאה וכאלו לא עשה דבר לענין העונש אבל הוא אסור בין שיבא על אחר או שיביא אחר עליו ואינו נענש בביאתו וכן פחותה מבת שלש שנים ויום אחד אין ביאתה ביאה בין לאדם בין לבהמה – N.T. Apr 03 '23 at 03:09
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    https://www.sefaria.org.il/Mishnah_Niddah.5.4?lang=he – kouty Apr 03 '23 at 04:18
  • I read: "Anyone under the age of nine and one day cannot have sexual intercourse. It is however forbidden to have relations with them. The same goes for girls under three years and one day, who cannot have sexual intercourse." I raise a contradiction... – Ootsutsuki Apr 03 '23 at 15:00
  • But if whoever enters into this type of relationship is not responsible, how can he be prohibited?! I think Touger used a misnomer to describe this commentary on the Mishnah. The term אסור (asur) can mean forbidden, it is true, but in this context I believe it means "to dissuade, to discourage, deter". Evidence of this is given by Yevamot 47b, where Naomi saw Ruth's resolve to convert, she desisted from her attempts to dissuade her. The term used there is אסור and is translated as to dissuade, and not as prohibited. www.sefaria.org/Yevamot.47b.7 In this case it takes on a different meaning. – Ootsutsuki Apr 03 '23 at 15:00
  • I will ask Rabbi Touger himself for confirmation. – Ootsutsuki Apr 03 '23 at 15:00
  • the talmudic statement of "asur" is a technical use of the word meaning "forbidden." On Yevamot 47b the form used is "asir" which also means "forbidden (Naomi told Ruth that women are forbidden to do certain things). The only "dissuade" I saw on the sefaria page was in the editor's explanation of Naomi's behavior. It is not connected to a-s-r. – rosends Apr 03 '23 at 15:31
  • It is forbidden for the adult, not the child. – N.T. Apr 04 '23 at 07:19

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