Question: Is there a prohibition of yichud where an under-bar-mitzvah-aged boy is secluded with an under-bas-mitzvah-aged girl?
Short Answer: There is a dispute amongst the contemporary poskim whether there is a prohibition of yichud between a boy and girl under the age of bar/bas mitzvah. While the Sheivet HaLevi, Rav Chaim Kanievsky shlita, and others rule stringently, Rav Yosef Shalom Elyashiv zt”l was lenient.
I. Girl Under Three and Boy Under Nine
The Gemara in Kiddushin (80b-82a), which discusses many laws pertaining to yichud, does not mention any minimum age of yichud.
The Rambam (Isurei Biah 22:10), however, writes that it is permitted for a person to have yichud with a girl under the age of three or a boy under the age of nine (the ages from when the Gemara rules that relations are physically possible). The Magid Mishneh cites the source of this Rambam as “obvious,” but adds that the Talmud Yerushalmi appears to rule this way, as well.
While the Magid Mishneh does not refer to a specific Yerushalmi, many Acharonim (including the Divrei Sofrim, Yichud, p. 132) understand that the Magid Mishneh is referring to the Yerushalmi in Kiddushin (4:11), which discusses the age where a child may not sleep naked with a parent. The Yerushalmi provides the same ages listed in the Rambam (three for a girl and nine for a boy). [Note that the Bavli, Kiddushin (81b) sets forth different ages].
The Divrei Sofrim (ibid) challenges this interpretation that the Yerushalmi is the source of the Rambam. If anything, he asks, this Yerushalmi proves the opposite. The only reason why a child is allowed to sleep naked with a parent when younger than these ages is because it is the parent’s own child. A person lying with an unclothed child not his own – aside from the legal, moral, and other problems – would also be a prohibition at any age. Thus, nothing can be gleaned from this Yerushalmi in terms of yichud.
The Divrei Sofrim thus suggests that the source of the Rambam is simply a “s’vara” (a logical reason) that the Chachamim only forbade yichud in scenarios that could lead to improper relations, even if that is not necessarily the reason for the prohibition. Thus, according to the Rambam, yichud is only prohibited with a girl above the age of three or a boy above the age of nine.
The Shulchan Aruch (Even HaEzer 22:11) appears to rule this way, as well. [Notably though, the Igros Moshe (Even HaEzer 4:65:12) suggests that perhaps nowadays there is no prohibition for girls that young, as three-year-old girls today are not the same as at the time of the Gemara. However, he stops short of making a ruling definitively on this issue].
II.The Babysitter Dilemma
From the above discussion, it appears that if the yichud is forbidden d’Oraisa, such as a married woman, yichud would be prohibited with the opposite gender at any age. In other words, the only reason why we allow yichud with a girl under three and a boy under nine is because the Chachamim did not enact yichud for these ages. However, yichud d’Oraisa would not be subject to such limitations and any age should be prohibited.
This is the opinion of the Aruch HaShulchan (Even HaEzer 22:20), who writes that a man may not have yichud with a girl of any age if the girl’s father married her off already (as was common in the times of the Gemara). While we do not marry off our daughters at such ages nowadays, the Divrei Sofrim (p. 131) suggests a practical ramification: whether a female, married babysitter may have yichud with a boy under the age of nine. Since a married woman is prohibited to have yichud d’Oraisa, according to the Aruch HaShulchan, she should be prohibited to have yichud with a boy of any age.
The Divrei Sofrim, recognizing the stringency in such a ruling, suggests that perhaps the stringency only applies by an older man with a married girl under three and not vice versa (married woman with boy under nine), as something improper is more likely to occur in this situation. Furthermore, the Divrei Sofrim cites the contemporary sefer D’var Halachah who is lenient in both cases, that there is a minimum age requirement even for yichud d’Oraisa.
Toras HaYichud (p. 37) likewise cites Rav Elyashiv zt”l who ruled that nowadays, because we mature later than in earlier times, there is no prohibition of yichud with a boy until age 11, unless the boy is “exposed to electronic devices” and has access to the outside world. He appears to apply this leniency even where the woman (having the yichud with the boy) is married. [But see Rav Doniel Neustadt, in an article on Torah.org, who writes that no other poskim agree with this leniency].
III. Children Having Yichud
with Each Other
But what about children of opposite genders, both under bar/bas mitzvah. May they have yichud with each other? For example, is it permitted for a ten-year-old girl and a 12-year-old boy to have yichud together?
The S’mag (Lo Saaseh 126) provides that yichud only applies for a boy above the age of 13 and a girl above the age of three. The Yam shel Shlomo (Kiddushin, 4:22) notes the oddity of the S’mag listing these ages. Either the S’mag should have ruled like the Rambam, that the appropriate age of yichud is nine and three for a boy and girl respectively, as this is the age where relations are possible, or the S’mag should have ruled that the appropriate ages of yichud are 13 and 12, as this is the age where the person is a halachic adult.
The Yam shel Shlomo thus interprets the S’mag as ruling that one of the genders in seclusion must be a halachic adult. In other words, a boy above bar mitzvah cannot have yichud with a girl above three, and a girl above 12 cannot have yichud with a boy above nine. However, a girl and boy who are under bas/bar mitzvah cannot violate yichud and are permitted to be in seclusion. This is a tremendous leniency in the laws of yichud.
This leniency is likewise found in the Bach (Even HaEzer 22:11, s.v. v’ha), who appears to interpret the Rambam this way, as well.
IV. Sheivet HaLevi’s Stringency
The Sheivet HaLevi (5:204:3) challenges the leniency of the Yam shel Shlomo and the Bach. Why is there no prohibition of yichud for a boy and girl under the age of bar/bas mitzvah because of chinuch, the concept that we must prepare our children to abide by all the laws of the Torah? The Sheivet HaLevi notes that chinuch applies to all prohibitions in the Torah, and we are obligated to prevent children from violating the Torah laws. This is especially true with respect to the laws of yichud, which are important and where getting accustomed to certain situations when young can have disastrous effects when older.
The Divrei Sofrim (p. 133) responds to the Sheivet HaLevi that perhaps there is no obligation of chinuch here because yichud, according to many poskim, is based on the fear that something improper will happen. Since this is unlikely to occur with children under the age of bar/bas mitzvah, there is no reason to be strict.
Similarly, the Nit’ei Gavriel (11:2:3) suggests that since the children are under the age of bar/bas mitzvah and do not get punished for their actions, there was no need for the Chachamim to enact yichud in such a scenario. On the other hand, the Nit’ei Gavriel (ibid) does note that it is odd that the Shulchan Aruch does not set forth this leniency, implying that perhaps it is forbidden, as long as the boy and girl are above nine and three respectively.
V. Practically Speaking
The Kovetz Hilchos Yichud (2:11) cites Rav S. Z. Braun, the author of the Sh’arim HaM’tzuyanim B’Halachah, who rules like the Sheivet HaLevi, that one should be stringent and that children under the age of bar/bas mitzvah should avoid yichud with each other. This was the ruling of Shraga L’Meir (8:126), as well.
On the other hand, the Chayei HaLevi (2:78), a relative of the Sheivet HaLevi, disagrees with his relative and rules that bish’as ha’d’chak – in extenuating circumstances – children may be lenient.
The Ohel Yaakov (Yichud, p. 142-143) and Toras HaYichud (p. 41) note further that Rav Elyashiv is lenient on this issue and allows children under the age of bar/bas mitzvah to have yichud.
The Ohel Yaakov (ibid) cites Rav Chaim Kanievsky shlita as ruling that one should be stringent in this issue.
Next Week’s Topic: Is there a prohibition of yichud when two frum men are secluded with one frum woman?