Introduction
In our previous issue we began to discuss the permissibility of
semi-permanent make-up. This procedure essentially tattoos lipstick or
other cosmetics that will last approximately three years. Our
discussion has been focused on a number of Teshuvot that were written
on this topic, especially the rulings of the Teshuvot L’horot
Natan (Rav Gestetner) and Teshuvot Shraga Hameir (Rav Shneebalg). We
have been presenting their in-depth analysis of the prohibition of
K’tovet Ka’aka (tattooing) and exploring whether
this prohibition applies to semi-permanent make-up. If you missed last
week’s article, it is available on our website,
www.koltorah.org.
The
Order of the Process
The Mishnah (ad. loc.) states that one receives Malkot (flogging) only
if one both scratches the skin and inserts the dye. In cosmetic
tattooing, first a cut is made and then the dye is inserted. However,
the Rivan (ad. loc. s.v. K’tovet) describes the process of
Kitovet Kaaka as first writing and then making a tear in the skin. The
Rambam (ad. loc.), on the other hand, describes Kitovet Kaaka as first
tearing the skin and subsequently inserting the dye. Might the status
of cosmetic tattooing hinge on this dispute between the Rambam and
Rivan?
The Bach (Y.D. 180 s.v. V’hoo Sh’koteiv), however,
argues that there is no dispute here between Rashi and the Rivan. The
Rivan merely is following the order as it is found in the term Kitovet
Kaaka – writing and cutting – and the Rambam
describes the process as it is normally conducted – cutting
and then writing. Although the Shulchan Aruch (Y.D. 180:1) describes
Kitovet Kaaka as first cutting the skin and subsequently inserting the
dye, the Shach (Y.D. 180:1) indicates that one violates the biblical
prohibition even if the order is reversed (see the Minchat Chinuch
253:1, who interprets the Shach in this manner and cites authorities
who argue that the biblical prohibition applies only if one first cuts
and then inserts the dye). Rav Gestetner adds that one also violates
the biblical prohibition even if the writing and cutting occur
simultaneously (Rav Gestetner understands that this is what occurs
during cosmetic tattooing).
What
Must Be Written?
Teshuvot Me’il Tzedaka 31 (cited in the Pitchei Teshuva Y.D.
180:1) asks whether one must write letters in order to violate the
prohibition of Kitovet Kaaka or if any marking constitutes a violation.
He also suggests that one violates only a rabbinic prohibition by
creating a marking without writing. Acharonim (such as the Minchat
Chinuch and the contemporary Poskim who address the issue of cosmetic
tattooing) note that the Rishonim had already disputed this matter.
The Smak (72), Rabbeinu Peretz (cited in the Smak), Orchot Chaim (22:4)
and the Chinuch (253) seem to believe that one violates this
prohibition only if he tattoos letters into his skin. This approach
might be based on the reason offered by the Rishonim (Rambam, ad. loc.,
and Tur, Y.D. 180) for the prohibition of Kitovet Kaaka, that the
practice of idolaters was to tattoo the name of their god into their
skin. They wished to communicate that they are committed slaves to that
particular god. Interestingly, Rav Wosner suggests that Hashem hints at
this reason in the Torah by stating “I am Hashem”
after presenting the Kitovet Kaaka prohibition, thus suggesting that
Kitovet Kaaka contradicts one’s commitment to Hashem.
Accordingly, a number of Rishonim believe that one violates Kitovet
Kaaka only with writing, since one thereby expresses his commitment to
idolatry. Rav Basri asserts that the majority of Rishonim and classic
Acharonim believe that one does not violate Kitovet Kaaka if he does
not write letters.
On the other hand, the Minchat Chinuch (253:3) observes that the
majority of Rishonim believe that one violates Kitovet Kaaka even if he
does not write letters. Among the Rishonim who explicitly state that
writing is not necessary are the Raavad (Torat Kohanim, Kedoshim 76)
and the Rash Mishantz (ad. loc.). Rav Gestetner argues that the Rambam
(ad. loc.) and Shulchan Aruch (ad. loc.) appear to indicate that one
violates Kitovet Kaaka even if one does not inscribe letters, as these
authorities make no mention of this requirement.
Rav Shneebalg asserts that all the Rishonim would agree that one at
least violates a rabbinic prohibition even if one does not write
letters. A proof of this is the fact that the Gemara suggests that
placing stove ashes on a wound might be prohibited because the
resultant scab resembles a tattoo. The scab obviously does not appear
in the form of a letter. Nonetheless, the Me’il Tzedakah
suggests that the ashes constitute a problem because the scab appears
like a letter. According to this suggestion, there is not even a
rabbinic prohibition violated if no letters are written.
Rav Basri, Rav Gestetner and Rav Shneelbalg agree that according to the
strict opinion among the Rishonim and Acharonim, any form that is
imprinted on the body is included in the prohibition. Thus, imprinting
color onto one’s skin is included in the prohibition
according to the strict opinion either biblically or rabbinically.
However, Rav Avigdor Nebentzahl (the Rav of Jerusalem’s Old
City, cited in Techumin 18:113) seems to argue that the strict opinion
prohibits only imprinting a picture or figure on one’s body,
such as an anchor or a heart. By contrast, imprinting color is not
viewed by Halacha as writing and thus seems not to be Kitovet Kaaka.
Indeed, in the context of Hilchot Shabbat, writing letters and drawing
pictures are included in the same Av Melachah (one of the thirty-nine
categories of prohibited Shabbat activity, see Rambam Hilchot Shabbat
12:9-17). On the other hand, coloring a surface is defined as
Tzovei’a (coloring), which is an entirely separate and
distinct Av Melachah. The Torah prohibits Kitovet (writing) and not
coloring. Accordingly, Rav Nebentzahl is inclined to permit
semi-permanent cosmetics based on a combination of two lenient factors:
no writing is involved, and it is not permanent.
Accordingly, contemporary authorities argue as to whether inscribing
dye in one’s skin is included in the parameters of the
Kitovet Kaaka prohibition. A proof of the stricter opinion might be
drawn from the Rambam and Shulchan Aruch who not only do not mention a
requirement for writing letters to violate the prohibition, but also
make no mention of a requirement for a picture or figure to be drawn.
They simply mention that this prohibition is violated when one injects
dye beneath the skin. Another proof that the categories regarding
Shabbat are not relevant to the Halachot of Kitovet Kaaka, is the Sefer
HaChinuch’s ruling (ad. loc.) that Beit Din punishes someone
for tattooing even one letter, unlike Shabbat where Beit Din does not
punish for writing less than two letters. Accordingly, the distinction
between writing and coloring that is made in the context of Hilchot
Shabbat seems to be irrelevant to the prohibition of Kitovet Kaaka.
It seems interesting that Rav Wosner forbids cosmetic tattooing because
of “Srach Issur Kitovet Kaaka,” possibly translated
as “because it will habituate one to Kitovet Kaaka”
(see the term “Srach” used in Chullin 106a). Rav
Wosner might be implying that even if cosmetic tattooing is not exactly
like tattooing (perhaps because of Rav Nebentzahl’s
reasoning), it is nevertheless forbidden because it resembles Kitovet
Kaaka. Tosafot (Gittin 20b s.v. Bichtovet) teach that Chazal forbade
acts that resemble Kitovet Kaaka, such as making permanent markings on
the skin without cutting the skin. Thus, even were Rav
Nebentzahl’s argument to be correct, it still does not
suffice to permit cosmetic tattooing. However, it might bolster the
argument that it is only a violation of a rabbinic law.
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