Continuing the discussion of indirect or less intentional forms of murder, our Gemara examines a dispute regarding a case where one intends to kill one person but “accidentally” kills another. Rabbi Shimon holds that if a person intends to kill Reuven but ends up killing Shimon, he is not liable for the death penalty. This debate may center on whether such an act demonstrates sufficient intent to incur capital punishment.

Even according to Rabbi Shimon, the Gemara questions a slightly different case: What if the perpetrator intended to kill someone whom he mistakenly identified as Reuven, successfully killed that person, and later discovered it was actually Shimon? Here, since the killer succeeded in targeting the person he saw before him—albeit under a mistaken identity—this may be considered sufficient intent, rendering him liable for execution even according to Rabbi Shimon.

This distinction—where acting upon the body in front of you is considered an act of intention, even when misidentification occurs—is used to resolve a famous question about the circumstances of Reuven’s birth. Shulchan Aruch (O.C. 240:3), based on Gemara Nedarim (20b), rules that it is forbidden for a man to have relations with his wife while fantasizing about another woman. The Magen Avraham (ibid. 9) extends this prohibition even to cases where both women are his wives (in an era when polygamy was permitted). If so, he asks, how could Yaakov conceive Reuven on his wedding night with Leah while believing she was Rachel (see Bereishis Rabbah 98:4 and Rashi, Bereishis 49:3)? Wouldn’t this constitute a violation of this principle?

The Magen Avraham answers using the same distinction seen in our Gemara. Since Yaakov fully intended to be with the person physically before him—even if he mistakenly thought she was Rachel—his intent was directed toward the totality of the person in his presence, rather than toward a fantasy. This differs fundamentally from being with one woman while imagining another. Here, one is with Y and believes Y is X, but the focus remains on Y as a complete entity.

A similar, yet even more unusual, biblical story of mistaken identity in the bedroom appears in Tehillim (118:22), a verse recited in Hallel:

 "The stone that the builders rejected has become the chief cornerstone."

Midrash Yalkut Makiri (Tehillim 118:28) interprets this verse autobiographically regarding King David. His brothers rejected him, believing he was conceived illegitimately from their father Yishai and a maidservant. However, in truth, he was the offspring of Yishai and his rightful wife. The Midrash recounts the following episode:

Yishai had been estranged from his wife for three years. At some point, he was attracted to his maidservant and requested that she join him in intimacy. The maidservant, reluctant to commit a sin, confided in Yishai’s wife, who lamented, “What can I do? My husband has ignored me for three years.” The maidservant then proposed a daring plan: When the lights were out, she would secretly switch places with Yishai’s wife, allowing her to take her rightful place. The plan succeeded, and that night, King David was conceived.

This Midrash raises several fascinating questions:

Why was Yishai estranged from his wife for three years? Clearly, it was not her choice, as indicated by her words.
If both the wife and maidservant felt pressured, did they merely do the best they could under the circumstances? Is such deception ever permitted?
The similarity to the Magen Avraham’s case is striking. Though the situation involved intentional subterfuge, Yishai still believed he was with the person before him.
Could this Midrash subtly offer marital advice—suggesting that if a relationship deteriorates, some creative measures (even roleplay or deception) might be justified to maintain intimacy?

(Not all Midrashim are of the same authority as they were not written in the same era. This midrash was compiled in the 14th century, although likely contained oral traditions dating far earlier. However, a number of commentaries quote this Midrash, lending it veracity. For example see Rosh Dovid (Bamidbar 14) where he points out the acronym from the first three letters in the verse above, “even ma’asu habonim”- “The stone that the builders rejected” are aleph-mem-heh, which spells “Amah”, maidservant, hinting at the story. (Also see Shalah, Torah Shebksav, Vayeshev-Miketz-Vayigash, Torah Ohr 106, and Ben Yehoyada Pesachim 119a.)

Another Talmudic parallel appears in Kiddushin (81b) in the story of Rav Chiya bar Ashi and his wife:

Rav Chiya bar Ashi would regularly pray: "May the Merciful One save us from the evil inclination." His wife overheard him and wondered why he said this—after all, he had abstained from intimacy with her for years due to old age.

One day, while he was studying in his garden, his wife disguised herself as a prostitute named "Ḥaruta" and repeatedly passed by him. Attracted, he approached her and propositioned her. She demanded payment, asking for a pomegranate from a nearby tree. He eagerly climbed up, retrieved it, and they engaged in relations.

Upon returning home, he found his wife lighting the oven. He sat inside, distraught. When she asked why, he confessed that he had sinned with a prostitute. She revealed that it was actually her, but he remained unconvinced until she provided proof. Even so, he lamented: "I, in any event, intended to sin." He fasted for the rest of his life in atonement and ultimately died in misery.

Rashi explains that Rav Chiya bar Ashi had lost his physical desire due to age. This could explain Yishai’s estrangement from his wife as well. If so, both accounts serve as a warning about the subjectivity of desire—one may feel "past that stage of life," but when faced with a new temptation, desire can unexpectedly reawaken.

Both these aggadic narratives portray the men in an unflattering light—particularly Rav Chiya bar Ashi, who condemns himself for his sinful intent. Meanwhile, the women in both stories are depicted, at the very least, as victims of circumstance, and perhaps even as clever and resourceful in reclaiming their marital relationships.

What does this mean practically, halacha le-maaseh? As Rabbi Sruly Bornstein often says, This is above my pay grade!" Nevertheless, these aggados provide food for thought. When a marriage faces dysfunction, perhaps unconventional measures—though ethically complex.

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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Rabbi Simcha Feuerman, Rabbi Simcha Feuerman, LCSW-R, DHL is a psychotherapist who works with high conflict couples and families as well male sexual health. He can be reached via email at simchafeuerman@gmail.com