1) WHAT IS "HISTAKLUS"?
OPINIONS: The Gemara quotes a Beraisa that relates that once, when Raban Shimon ben Gamliel saw an idolatrous woman who was beautiful, he exclaimed, "How abundant are Your works, Hash-m!" (Tehilim 104:24). The Gemara later asks how was he permitted to look at her? The Torah commands, "v'Nishmarta mi'Kol Davar Ra" -- "You shall guard yourself from any evil thing" (Devarim 23:10). This verse requires a person to protect himself from looking ("Mistakel") at something which later might cause him to have forbidden thoughts. The Gemara answers that the case of Raban Shimon ben Gamliel was different, because it was a case of "Keren Zavis," a corner. RASHI explains that when a person turns a corner to exit one alley and enter another, he might suddenly cross paths with another person (who is turning the opposite way) and he will not have time to close his eyes. Raban Shimon ben Gamliel did not see the woman approaching and did not have a chance to close his eyes.
What are the parameters of the prohibition against looking at a woman? (See also Insights to Shabbos 149:2, Bava Basra 168:1.)
(a) The S'MA (CM 154:14) explains that there is a difference between the act of "Histaklus" and the act of "Re'iyah." "Histaklus" refers to seeing by chance, without intention to look at the person or thing. "Re'iyah" refers to intentionally looking at a person or thing. Apparently, the S'ma maintains that one is prohibited even to briefly glance at a woman, and one should be careful to avoid situations in which he might need to glance at a woman.
(b) Many other Poskim dispute this view. The BEIS YOSEF (OC 229) writes that the definitions of "Histaklus" and "Re'iyah" are the opposite of what the S'ma writes. The Gemara in Chagigah (16a) explains, according to one opinion, that when the Mishnah there (11b) says that "anyone who does not have compassion for the honor of his Creator is better off having not been created," it refers to one who looks at a rainbow. The TUR (OC 229) rules that one is prohibited to "gaze profusely at a rainbow" ("Mistakel Bo Harbeh"). The Beis Yosef quotes the AVUDRAHAM who writes that the ROSH was asked that if one is not permitted to look at a rainbow, then how can he recite the special blessing instituted upon seeing a rainbow? The Rosh replied that "Ro'eh" (seeing) is not the same as "Mistakel" (gazing), which is prohibited. He describes "Mistakel" as an act of continuously and intently looking at the object. According to this explanation, the Gemara here as well prohibits only gazing ("Mistakel") at a woman, but not glancing or looking in passing.
The MAGEN AVRAHAM (OC 225:20) discusses a similar question regarding looking at an evildoer. The Gemara says that one is prohibited to gaze ("Mistakel") at the face of a Rasha. What does this mean? The Magen Avraham explains that this means that one is not allowed to take a long look, concentrating on his image and figure. One is allowed to "look" ("Ro'eh") in passing at a Rasha.
The SEDER YAKOV cites many Poskim who question the statement of the Magen Avraham from the Gemara here. If there is a fundamental difference between "Histaklus" and "Re'iyah," then why does the Gemara not answer its question by saying simply that Raban Shimon ben Gamliel merely "saw" ("Ro'eh") the woman and did not "gaze" ("Mistakel") at her? This is also a question on the Beis Yosef.
The NETZIV (in HA'EMEK SHE'EILAH 52) answers that Raban Shimon ben Gamliel clearly did not merely glance in passing at the woman. The fact that he praised Hash-m for the woman's beauty means that he concentrated on it. The Gemara answers that he did not purposely look at her; he merely encountered her suddenly at a "Keren Zavis." (See IGROS MOSHE OC 40 who also explains the Gemara in this manner.) The Netziv concludes that the premise of the Beis Yosef is correct with regard to the definition of "Histaklus." He describes the Mitzvah of "v'Nishmarta" as a command not to look in a way that causes one to have forbidden thoughts (as implied by the Gemara on 20b). Looking in a way that will not lead to such thoughts (such as to give praise to Hash-m) is permitted. However, it is appropriate to be stringent so that one should not end up looking with improper intentions.
(c) The BI'UR HALACHAH cites support for the Magen Avraham from the Gemara here. He writes that "Histaklus" sometimes refers to intent gazing, and sometimes to inadvertent seeing. He points out that the Gemara asks a question only from the Isur of looking at a woman. Why does it not ask from the Isur of looking at a Rasha, which would apply even if the idolatrous woman was not a woman at all but a man? It must be that looking at a Rasha is prohibited only when one gazes intently, as the Magen Avraham states. This is why the Gemara does not question Raban Shimon ben Gamliel's conduct from the Isur of looking at a Rasha. The Gemara instead questions his conduct from the Isur of looking at a woman, in which case even looking, without concentrated intent, is prohibited.
The Bi'ur Halachah clearly understands the Magen Avraham to be saying that the Isur of looking at a woman is more severe than the Isur of looking at a Rasha, even though the Gemara uses the term "Histaklus" with regard to both. Since the Bi'ur Halachah, later in the Shulchan Aruch (OC 239), does not discuss this distinction with regard to looking at a rainbow, presumably he applies there the same definition of "Histaklus" that he applies to the Isur of looking at a Rasha.
The Seder Yakov challenges the proof of the Bi'ur Halachah. Why should the Gemara question Raban Shimon ben Gamliel's conduct from the Isur against looking at a Rasha, which is only an Isur d'Rabanan, when it could question his conduct from an Isur d'Oraisa (gazing at a woman)? Moreover, perhaps the woman was not a Rasha and the Isur of looking at a Rasha did not apply.
Even though the Bi'ur Halachah seems to disagree with the other opinions, he still may agree that the definition of "Histaklus" in the case of a Rasha is, as the Magen Avraham writes, intense and constant gazing. When the Bi'ur Halachah writes that any "Histaklus" at women is forbidden, he means merely that looking intentionally even for a short period of time is also forbidden. This is apparent from the words of the MISHNAH BERURAH (OC 75:7), who writes that the prohibition of "Histaklus" involves "looking in order to have pleasure." This does not exclude looking for even the shortest period of time with such intent. He continues and says that simply looking without pleasure is permitted, although it is not proper to do so (it is not "mi'Tzad ha'Musar"). He adds that the MINCHAS SHMUEL writes that an Adam Chashuv, an important person whose conduct serves as an example for others, should be careful even in this case.
The Igros Moshe (OC 1:40, 4:15) also explains that the prohibition of "v'Nishmarta" refers to looking at a woman with intent to gaze at her and derive pleasure from viewing her, similar to the explanation of the Netziv. However, he writes that it still is imperative that every man look downwards as much as possible while he is walking in a public place. He qualifies this by adding that although a man should keep his eyes down, he should not be like one who never looks where he is going, colliding with objects or other people and causing injury to himself or others (see Sotah 22b). The Seder Yakov says that this is apparent from the conduct of Raban Shimon ben Gamliel, who was looking upwards when the woman passed in front of him. (Y. MONTROSE)
2) THE PROHIBITIONS OF "V'NISHMARTA" AND "V'LO SASURU"
QUESTION: The Beraisa derives from the verse, "v'Nishmarta mi'Kol Davar Ra" -- "You shall guard yourself from any evil thing" (Devarim 23:10), the prohibition against having sinful thoughts during the day which might lead to becoming Tamei at night.
The Gemara in Berachos (12b) teaches a similar precept. The Gemara there states that the reason why the Chachamim instituted that the Parshah of Tzitzis be recited as part of Keri'as Shema is that it contains five important themes. One of those themes is that a person must avoid from having sinful thoughts about women, which is expressed by the verse, "v'Lo Sasuru Acharei Levavchem v'Acharei Einechem" -- "You shall not turn away after your heart and after your eyes" (Bamidbar 15:39).
Both verses -- "v'Nishmarta" and "v'Lo Sasuru" -- seem to teach the same thing. Why are both verses necessary?
(a) The SEMAK (Lavin 30) answers that the Isur of "v'Lo Sasuru" is a prohibition against looking at women in a promiscuous manner ("Derech Z'nus"). The Isur of "v'Nishmarta," on the other hand, is a prohibition against looking even without any promiscuous intent, but only with intent to enjoy an attractive sight.
RAV MOSHE FEINSTEIN zt'l in IGROS MOSHE (EH 1:69) gives a similar explanation. The Gemara here prohibits looking at all types of things which might cause a person to have sinful thoughts (such as the colored clothing of a woman one knows, animals mating, etc.). The purpose of this prohibition is so that the man not experience Tum'ah later because of the thoughts he had earlier in the day. It follows that this prohibition applies even when one does not have promiscuous thoughts at the moment that he sees these things.
The Isur of "v'Lo Sasuru" is a different prohibition altogether. This Isur requires that a person not think of committing the sin of promiscuity. (It is reasonable to suggest that the Igros Moshe understands that when the Semak says that "v'Lo Sasuru" forbids looking at a woman with promiscuous intent, he means that the Isur of "Lo Sasuru" applies only when the man's thoughts would constitute a sin if they would be manifested in action. When, however, there would be no prohibition for him to have relations with the woman (for example, she is unmarried and Tahor), then this prohibition would not apply.)
According to this explanation, one practical difference between the Isur of "v'Lo Sasuru" and the Isur of "v'Nishmarta" is whether the Isur applies to thinking about a single woman who is not a Nidah. Since the Isur of "v'Lo Sasuru" prohibits thinking about having forbidden relationships, it apparently would not apply to a man who thinks about a single woman who is not a Nidah, since having relations with her is not Asur mid'Oraisa. However, "v'Nishmarta" forbids merely looking at a woman for pleasure, since doing so might cause him to become Tamei later. This Isur applies to looking at or thinking about a single, Tahor girl as well, as the Gemara teaches.
RAV TZVI PESACH FRANK (as cited in TZITZ ELIEZER 15:53) argues with this understanding. He comments on the Gemara's phraseology that a person "should not have sinful thoughts [about women] during the day and come to Tum'ah at night." Why does the Gemara need to add the last phrase about Tum'ah at night? It must be that since such sinful thoughts cause a person to transgress the Isur of becoming Tamei, one must take all possible precautions to avoid such thoughts which lead to Tum'ah. Rav Tzvi Pesach Frank suggests that if a person had sinful thoughts which, later, did not cause him to become Tamei, then he did not transgress the Isur d'Oraisa of "v'Nishmarta." The Torah gives a safeguard to prevent one from transgressing the Isur of becoming Tamei. The Chachamim therefore state that the Torah commands that one should not have sinful thoughts because they will bring him to Tum'ah.
RAV SHLOMO ZALMAN AUERBACH zt'l (as cited in Tzitz Eliezer ibid.) and the TZITZ ELIEZER himself argue that the suggestion of Rav Tzvi Pesach Frank is not correct. When the Chachamim stated that one is prohibited from having sinful thoughts, they made a blanket prohibition because of what might happen as a result of the thoughts, regardless of whether or not it actually ends up happening. Hence, even if the person does not end up becoming Tamei, he still transgresses "v'Nishmarta" (or at least the Isur d'Rabanan of "v'Nishmarta").
(b) The RAMBAN (in SEFER HA'MITZVOS, Shichechas ha'Lavin 11) says that the main point of the Mitzvah of "v'Nishmarta" is expressed by the context of the verse. The verse discusses the conduct of a soldier in an army encampment during a time of war. The Torah says that at such a time one must make extra effort to ensure that the Shechinah resides with the army encampment. One spiritual mishap by a single individual could cause the deaths of all of the soldiers in the army. Although the Ramban cites the Gemara here, he insists that the prohibition itself is not the main point of the verse. Apparently, he understands that the main prohibition against looking at women and having sinful thoughts is derived from the verse, "v'Lo Sasuru," and not from "v'Nishmarta."
The SIFRI D'VEI RAV, commenting on the Sifri (Devarim ibid.), expands on this thought. He says that the Torah is telling soldiers during wartime that they must be very careful, even with things which are not explicitly prohibited by the Torah (as the Gemara earlier (12a) mentions, such as drinking from the mouth of a fountain erected for Avodah Zarah). (See Tzitz Eliezer, who has great difficulty with the approach of the Sifri d'Vei Rav.) (Y. MONTROSE)