(Orah Hayyim 603 in Magen Avraham)
Question: If a Jew causes the accidental death of another person, what can he or she do in order to repent for that action?
Responsum: In Genesis, Chapter 4, Cain kills Abel in a fit of jealousy. God punishes him by sending him into exile (v. 12 ff). The punishment of exile was later used by the bible to punish accidental homicide. If Reuven killed Shimon by accident, Reuven had to flee to a city of refuge and stay there until the High Priest died. (1) The main purpose of this exile was not teshuvah or repentance, but to prevent the relatives of Shimon from killing Reuven (Numbers 35: 11-12; Deut. 4:42; Joshua 20:3 ff.).
The laws of the city of refuge are discussed at length in the Mishnah and Talmud (Tractate Makkot) and codified by Maimonides (Hilkhot Rotzeah, Chapters 5-8). (2)
Rabbi Ya’akov ben Asher stated in the 14th century (Tur Hoshen Mishpat 425) that we no longer send people into exile, since we no longer have cities of refuge. (3)
Nonetheless, Rabbi Elazar of Worms (d. 1236) and the Hassidei Ashkenaz (Pietists of Medieval Germany) developed sidrei teshuvah [=orders of repentance]; for each type of sin, they listed specific acts of penance. Dr. Yedidya Dinari and other scholars maintained that these sidrei teshuvah are not “foreign to Talmudic Judaism”. Indeed a few of the acts of teshuvah listed below appear in rabbinic literature e.g. that exile atones for sins (Berakhot 56a and Sanhedrin 37b). However, most of them do not. I therefore agree with Profs. Gershom Scholem, Yitzhak Baer, and Talya Fishman, that Hassidei Ashkenaz borrowed most of these elaborate forms of penance from the “penitentiary books” of the early medieval Church. (4)
Nonetheless, Rabbi Elazar’s list of acts of penance for murder had a huge impact on subsequent halakhah. This is what he wrote in his Laws of Teshuvah (Sefer Harokeah Hagadol, Jerusalem, 1960, paragraph 23, p. 31; also quoted by Rabbi Wilman, pp. 64-65): (5)
A murderer: A person beat his fellow and murdered him (based on Deut. 22:26), whether a man or a woman, or killed a minor, he should:
- go into exile for three years,
- and be lashed in every city and say “I am a murderer”,
- and not eat meat nor drink wine,
- and not shave or cut his hair,
- and not wash his clothes,
- and not wash himself but wash his beard once a month,
- and tie the hand which murdered with chains as well as his neck,
- and go barefoot,
- and cry about the murder,
- and fast every day until he finishes his exile,
- and afterwards fast on Monday and Thursday for another year…
- and do no evil to another person,
- and remain silent before every person,
- if they call him “murderer” he should not quarrel but remain silent,
- and he should not gamble during those three years,
- and when they leave the synagogue every day, he should lie on the ground and people should pass by him but not step on him,
- and he should honor his wife and every person,
- and he should confess his sins every day.
Even though Rabbi Elazar of Worms was discussing murder, all subsequent responsa on causing accidental death were influenced by his list of penitential acts. It is clear from the many responsa on this topic that this is because the people who caused an accidental death felt tremendous remorse and wanted to perform acts of teshuvah for killing another human being.
Rabbi Pinhass Hakohen Wilman and Prof. E. E. Urbach have respectively collected 28 and 16 responsa written between the 13th and 20th centuries regarding acts of penance for causing an accidental death. The responsa they quote deal with four types of accidents: (6)
- Causing accidental death by shooting or by passengers falling off a horse-driven coach or during the Holocaust when a young man fell asleep and forgot to wake his younger brother during a forced march or a passenger who was killed in a traffic accident (seven responsa; Wilman, pp. 65-84).
- Causing accidental death while trying to save another person from danger (four responsa; Wilman, pp. 84-88).
- Causing accidental death by sending a messenger or business associate on a trip during which that person dies (seven responsa; Wilman, pp. 88-102).
- Crib death or sudden infant death syndrome: We still do not know the cause of crib death, but we know today that parents are normally not responsible for these deaths. Our ancestors did not know this; hence there are many responsa in which the parents, usually the mother, want to do teshuvah for the death of a baby who died in a crib or in the mother’s bed (ten responsa quoted by Wilman, pp. 102-122; sixteen responsa quoted by Urbach, pp. 319-332; there is some overlap).
Rather than summarize a few dozen responsa, I will list the acts of penance that these many rabbis recommended to those who asked them:
- confession of sins,
- exile for a year,
- fasting every year on the yahrzeit of the person killed,
- refraining from meat and whiskey except on Shabbat and festivals,
- not sleeping on pillows on weekdays,
- bathing and washing hair only once a month,
- lying in front of the synagogue to be stepped on,
- begging forgiveness at the grave of the person who died,
- not attending feasts or joyous occasions for a full year,
- sitting behind the door of the synagogue for a full year,
- fasting for forty days in a row,
- giving tzedakah to support a poor boy and to teach him Torah,
- when that boy has a child, to name him for the deceased,
- paying ten scholars to study every day and recite kaddish derabanan,
- marrying off his daughters to young scholars and his sons to the daughters of scholars,
- not embarrassing anyone since that is considered like murder,
- raising an orphan in his house,
- giving tzedakah to the children of the deceased or to a hospital,
- fasting for a full year,
- not wearing silver and gold even on Shabbat and festivals;
- studying passages from the Zohar, the 613 commandments and Mishnah like at the Tikun on Shavuot;
- studying the book of Psalms twice and then blowing the shofar ten times,
- performing the ritual of kapparot with a chicken.
Many of those acts such as fasting are meant to physically punish the sinner. I personally do not see much point in these types of self-inflicted punishments. The person who caused the accidental death already feels terrible remorse; he doesn’t require further physical and psychological punishment. I believe it is more constructive to do positive acts of teshuvah which are related to what actually happened, such as:
- observing the yahrzeit and visiting the grave of the person who died,
- giving tzedakah to the children of the deceased,
- naming a child for the deceased,
- adopting an orphan,
- supporting a cause related to the accidental death such as gun control or traffic safety. (7)
Indeed, this was the recommendation of Rabbi Bezalel Shafran, rabbi of Bacau, Romania and the leading halakhic authority in Romania before the Holocaust (Responsa Rabaz, Orah Hayyim, No. 16; quoted by Urbach, p. 331 and Wilman, p. 120). In reply to a woman who held herself responsible for the death of her two-month-old son, he recommended that she fast every month on Erev Rosh Hodesh for the first year if she can. But he continues:
And I received from my rabbis z”l that the more correct teshuvah in such a case is that the depressed woman should raise an orphan in her home. In my humble opinion their source is Sanhedrin 19b where our Sages said that “whoever raises an orphan in his home is considered by Scripture as if he had given birth to the child”… And in this way her sin shall be atoned, for she is sustaining a life instead of a life…
Therefore, these are the types of teshuvah that should be done if someone, God forbid, causes the accidental death of another person. May we have the wisdom to follow the words of Tosafot (Bava Kamma 23a, s.v. v’lehayeiv) “and from this we can derive that a person should be more careful not to harm others than not to be harmed by others”; and the words of the Mishnah (Sanhedrin 4:5): “Whoever destroys one life is considered by Scripture as if he had destroyed the entire world; and whoever sustains one life is considered by Scripture as if he had sustained the entire world”.
7 Adar 5778
- See Exodus 21:13; Numbers 35; Deut. 4:41-49; Deut. 19:1-10; Joshua 20; Encyclopaedia Judaica, Vol. 5, cols. 591-594, s.v. City of Refuge.
- Rabbi Yohanan rules that a Kohen who kills someone may not bless the people with Birkat Kohanim, the priestly blessing (Berakhot 32b). The codes add: “even by accident, even if he did teshuvah” (Rambam, Hilkhot Tefillah 15:3; Shulhan Arukh Orah Hayyim 128:35; cf. Rabbi Ovadia Yosef, Responsa Yehaveh Da’at, Vol. 5, No. 16; Rabbi Ezra Batzri, Tehumin 3 (1982), pp. 250-254). Rabbi Moshe Isserles, on the other hand, allows a person who killed someone by accident to be the sheliah tzibbur if he did teshuvah (Orah Hayyim 53:5); this is based on Or Zarua, Part I, paragraph 112.
- Rabbi Yosef Karo ruled in the Shulhan Arukh (Yoreh Deah 336:1) that a doctor who kills a patient and knows that he erred must go into exile. This sentence is hard to fathom in light of the fact that the cities of refuge were abolished a few thousand years ago. See the literature about malpractice in note 6 below for attempts to explain this surprising ruling.
- See Yedidya Dinari, Hakhmei Ashkenaz B’shilhei Yemei Habeinayim, Jerusalem, 1984, pp. 85-86 and note 73 vs. Gershom Scholem, Major Trends in Jewish Mysticism, revised edition, New York, 1941, pp. 104-106; Yitzhak Baer, Mehkarim Umassot B’toldot Am Yisrael, Vol. 2, Jerusalem, 1986, pp. 192-194; Talya Fishman, “The Penitential System of Hasidei Ashkenaz and the Problem of Cultural Boundaries”, The Journal of Jewish Thought and Philosophy 8 (1999), pp. 201-229 and all of the literature cited there.
- The parallel list in the Darkei Teshuvah printed at the end the Responsa of the Maharam of Rotenburg, Prague edition, ed. Bloch, Budapest, 1895, fols. 160c-d; also quoted by Rabbi Wilman, pp. 64-65.
- I will not discuss malpractice here because there are five rabbinic legal sources on the subject along with a vast number of subsequent discussions and responsa. In other words, malpractice is a matter of Jewish law based on Talmudic sources, as opposed to the customs of penance we are discussing here, which arose in the 13th Regarding malpractice, see, for example, Rabbi Avraham Steinberg, Entziklopedia Hilkhatit Refuit, Vol. 6, cols, 241-286, s.v. rashlanut refu’it; Rabbi Eliezer Waldenberg, Responsa Tzitz Eliezer, Part 4, No. 13 and Ramat Rachel in Part 5, No. 23; Rabbi Joseph Ozarowski, “Malpractice”, Journal of Halakhah and Contemporary Society 14 (Fall 1987), pp. 111-127.
- Indeed, I have found similar phenomena in responsa that I have published regarding an apostate who wants to return to Judaism and regarding a person who accidentally drops a Sefer Torah. In the latter case, I recommended doing acts of teshuvah which have a direct educational connection to what occurred, such as: studying the Laws of the Sefer Torah or giving tzedakah to repair Sifrei Torah or buying a new Torah mantle or training people how to lift the Torah properly; rather than fasting or reciting Psalms which have no direct connection to what transpired.
Regarding apostates returning to Judaism, see my Hebrew responsum in Asher Maoz and Aviad Hacohen, eds., Zehut Yehudit, Tel Aviv, 2014, pp. 49-62 and in English in my book Responsa in a Moment, Vol. II, Jerusalem, 2011, No. 25 (also available at www.schechter.edu  under “Responsa in a Moment”, Vol. 1, No. 5, January 2007). Regarding dropping a Sefer Torah, see Teshuvot Va’ad Hahalakhah Shel Knesset Harabbanim B’yisrael 6 (5755-5758), pp. 23-32 (also available at www.responsafortoday.com ).
E.E. Urbach, “About causing death by negligence and crib death”, Assufot 1 (1987), pp. 319-332 (Hebrew; reprinted in E.E. Urbach, Mehkarim B’madaei Hayahadut, Vol. II, Jerusalem, 1998, pp. 533-546).
Rabbi Pinhass Hacohen Wilman, Hateshuvah B’sifrut Hashut, 1995, pp. 63-122.