Moshe Ben-Chaim
Reader: I have a question about the statement in Sanhedrin, which troubles me, regarding child sex. It says that homosexual relations with a boy below 9 years is not considered homosexuality, and that there is no punishment and this implies no prohibition. Can you explain why this might be the case?
Mesora: The Talmud cites a dispute between Rav and Shmuel: Rav says that for one who engages in homosexual behavior with a child below 9, there is no punishment of the offender, while Shmuel says that once a boy reaches 3 years, homosexual relations are recognized.
What is their argument?
I believe Rav holds that until 9 years of age, there is no act of homosexuality; as the child cannot initiate a sexual act, he is also not viewed as a partner, so as to contribute to a homosexual relationship. See Rashi who states that although a full adult is not required, i.e., 13 years, some maturity is required to obligate the offender in a homosexual act. The Rabbis deemed a child of 9 as meeting this requirement. But below 9, the boy is no different than an inanimate object, as there lacks any “psychological partner”. Hence, there is no Torah prohibition of homosexuality. Shmuel differs, suggesting that homosexuality is not based on psychological maturity, but on the physical ability of intercourse. Shmuel says that since intercourse is derived from normal (female) intercourse, which commences at three when her body is fit, so too, homosexuality exists with a boy once he is three. Normal sexuality is derived from a man-woman union, and transposed onto males to obligate the violator in homosexuality.
Their argument is what determines sexual readiness: maturity (psychologically) according to Rav, or, according to Shmuel, simple, physical capability.
I would add that although no punishment exists, I would not say there are no violations for pedophiles, for the adult is certainly abusing the child physically and mentally, while also spilling his seed. He also partakes of corrupt emotions similar to recognized homosexual behavior.