The first Mishnah in messechet Keritut gives a list of the various sins which incur the punishment of karet - a spiritual punishment which also relates in some way to premature death. Karet is only incurred if the sin was deliberate and was committed without a warning or the presence of witnesses. If the sin was committed in the presence of two proper witnesses who gave a proper warning then the perpetrator is punishable by the Beit Din, in most cases with capital punishment or malkut (lashes) and karet is avoided (Makkot 3:15). Why does the same sin have a different punishment merely because of the presence of witnesses and a warning?
Perhaps we can shed some light on this question by analysing the distinction between a ganav (a thief who steal clandestinely) and a gazlan (a robber who takes openly and with force). The ganav has to pay back double to the victim and in some instances also has to pay a four of five-fold penalty. The gazlan only has to return the object or its equivalent in cash. This is difficult to understand – in the secular legal system, a robbery (which is often more violent) is punished more harshly than a theft. The Gemara (Baba Kama 79b) explains the difference: fear of Hashem must be above everything else. A gazlan, by acting openly, steals without fear or shame, his attitude to Hashem is the same as his attitude to his fellow man. The ganav hides himself from his fellow man but not from Hashem – thus demonstrating that he fears man more than he fears Hashem.
The same analysis might apply in the case of keritut. The transgressor who sins brazenly in public – in front of two witnesses after receiving a clear warning, demonstrates that his fear of man and his fear of Hashem is the same. The transgressor, who sins surreptitiously and out of the public eye, demonstrates that his fear of man is greater than his fear of Hashem.
This analysis suggests that the one who sins in private should be treated more harshly than the one who sins in public. This is in fact the case for those sins that are punishable with malkut. The one who sins in public receives the far less severe punishment of lashes and manages to avoid karet. However how can we explain those sins that are punishable by the Beit Din with capital punishment? One who sins in public is put to death whereas one who sins in private is allowed to live – and therefore has a chance to do teshuva and gain forgiveness. It seems that the one who sins in public is treated more harshly - the opposite to the conclusion that we reached above. How can we reconcile the two?
We can understand this by looking at the case of Arei Miklat – the cities of refuge to which an inadvertent killer would be exiled. There are actually three cases of inadvertent killing (Makkot 8a):
A killing which is totally unforeseeable – there is no culpability
and the killer does not need to go into exile;
A killing due to negligence – there is some degree of culpability,
the killer would need to go into exile; and
A killing due to gross negligence with a high degree of culpability
– this killer would not go into exile and also would escape punishment from the Beit Din due to the lack of witnesses and warning.
The second category of killer has some degree of culpability and needs atonement for that. The mere fact of going through exile provides some form of atonement for this killer. The third category of killer is so culpable that they do not deserve the opportunity of obtaining atonement through exile. It may seem as though they have avoided punishment but their punishment will come in Olam Haba. The third category of killer can do teshuva but this is much more difficult to do without the atonement that is obtained through going into exile. Such a person may spend the rest of their life wondering if they have done sufficient teshuva.
We can now explain those sins that are punishable by capital punishment. One who sins in public is put to death and this death penalty provides a form of atonement for their sin. This seems counter-intuitive from our perspective. However this person’s neshama will experience the spiritual benefit of this atonement in Olam Haba. One who sins in private is allowed to live. It may seem as though he has avoided punishment however this is not the case – he does not have the opportunity to gain the atonement that results from the death penalty. Such a person does have a chance to do teshuva for his sin and avoid the punishment of karet (Rambam Hilchot Teshuva 1:4). However it is much more difficult to do teshuva without the atonement that is obtained through the death penalty. We therefore see that the one who sins in private is in fact treated more harshly than the one who sins in public.
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