Types of sexual misconduct involved

In both Orthodox Judaism and Conservative Judaism,^[1] the types of sexual misconduct subject to Yehareg v'al ya'avor include those mentioned in Leviticus Chapter 18, which include adultery with a married woman,^[2] various types of incest, sexual relations with a woman in the Niddah state, bestiality, and penile-anal sex between men (violations of the prohibition "thou shall not lie with a man as with a woman, it is an abomination" as agreed on by many Orthodox and some Conservative Jewish authorities).

Prohibitions by Rabbinic decree are excluded. The Rabbis made a number of prohibitions in sexual matters beyond those of the Torah. Adultery with a married man, fornication, certain types of homosexual conduct (Orthodox authorities and traditionalists within Conservative Judaism consider a broader range of male-male sexual intimacy, including oral sex between men, as forbidden, but not included in the "die rather than transgress" prohibitions), and various aspects of modesty in dress and conduct are among these rabbinic prohibitions not specifically prohibited by Leviticus 18. Although Maimonides regards lesbian conduct as biblically prohibited on the basis of Sifra on Leviticus 18:3, he does not consider it sexual intercourse proper.^[3][4] Orthodox Judaism recognizes rabbinic prohibitions as being a lesser type of transgression overridden by the imperative to preserve life.

In 2006 the Conservative movement's Committee on Jewish Law and Standards, reflecting strong disagreement between liberals and traditionalists on the subject, approved two diametrically opposed responsa on the subject of homosexuality. One declared all rabbinic prohibitions on non–penile-anal sex between men to be formally lifted and no longer applicable to Conservative Jews. The other formally declared the necessity of their remaining in effect and instructed Conservative Jews to continue to observe them. Both agreed that a prohibition on male-male anal sex, and adultery with a married woman, retained a die-rather-than-transgress character, and instructed Conservative Jews to continue to observe rabbinic prohibitions on different-sex sexual relations outside of marriage (fornication), although the liberal responsum also found a variety of traditional rules of modesty including prohibitions on contact and seclusion, to be no longer applicable to Conservative Jews. Under the Conservative movement's philosophy of pluralism, local rabbis choose which among the approved alternatives to follow. (See Homosexuality and Conservative Judaism)

Many authorities hold that the requirement to sacrifice one's life does not apply to purely passive behavior, so that, for example, a married woman who is raped is not required to die resisting the rape. Rather, the requirement applies only to playing an initiating role in one of the forbidden sexual acts.^[5] See Judaism and homosexuality

Public martyrdom

According to Maimonides, one is required to give one's life to avoid desecrating God's name through the public transgression of His commandments. The desecration of God's name is considered the harshest violation of Jewish law, at least as far as heavenly forgiveness is concerned; therefore, if the sin is to be committed in public (for these purposes, in the presence of ten Jewish adults), and the sole purpose of the persecutor is to have the Jew transgress halakha, any prohibition would be considered a matter of yehareg v'al ya'avor. (Note: According to many Orthodox authorities, women count in the minyan of ten Jewish adults required to constitute a "public" for purposes of public martyrdom, one of a number of situations in which women count in a minyan in Orthodox Judaism^[9]).

If these two conditions are not present, there is no requirement to give one's life, since God's name will not be desecrated by the transgression. For example, if a Jew is being forced to transgress the Shabbat laws for the sake of the forcer's personal profit, he or she would not be required to give his or her life.^[10]

Resisting persecutions and crises

During a time of crisis for the Jewish faith—for example, if a government or any other power wants to force Jews not to be religious—every prohibition in Jewish law becomes yehareg ve'al ya'avor, and one is to have mesirat nefesh on every negative or positive commandment even when not in public. This is called "Sandal straps" and refers to the traditional Jewish manner of putting on footwear (Put on right, put on left, tie left, tie right). In this situation, one must die even for "Sandal straps".

However, if a government or any other power is not opposing the Jewish religion in itself but rather any religion, such as in Russia under the communist regime, then according to some opinions, the above does not apply.^[5]

It is also considered a crisis for the Jewish faith when a particular requirement within Jewish law is in danger of being outlawed by a government or other power.^[11]

There is a further qualification: Only the negative commandments could potentially be considered a matter of yehareg v'al ya'avor; one would never be required to sacrifice oneself for one of the positive commandments. Since refraining from the performance of a positive commandment involves no specific action, to do so would not be considered a desecration of God's name, so self-sacrifice would never be required.

According to Maimonides, in a situation where one is not required to sacrifice oneself rather than transgress, to do so would be considered suicide, which is strongly forbidden and condemned under Jewish law.

Following through and sacrificing one's life in accordance with the law of yehareg ve'al ya'avor is considered to be Kiddush Hashem (sanctification of God's name).