Sleep in the Tosefta I: KodashimApril 26, 2020
Considering sleep in Tosefta, Seder Kodashim has an almost word-for-word parallel to what we see in the Mishnah (mKeritot 2.6):
כל עריות אחד גדול ואחד קטן הקטן פטור אחד נוער ואחד ישן הישן פטור .אחד שוגג ואחד מזיד השוגג בחטאת והמזיד בהכרת1
All forbidden sexual encounters: whether one partner was an adult and the other a minor, the minor is exempt;
If one is awake and the other asleep, the one asleep is exempt;
If one is an inadvertent and the other intentional, the inadvertent one is liable to a sin-offering, the intentional one is liable for excision. (tKeritot 1.18)
The only slight difference in the text in the Mishnah and that of the Tosefta is the word for “awake”, which is ער in the Mishnah and נוער in the Tosefta. Aside from that, it’s the same as it is in the Mishnah.
Just as we saw in the Mishnah, this text demonstrates that the rabbis saw a sleeping person as exempt from culpability when having a forbidden sexual encounter. Curiously, they do not distinguish along gender lines, suggesting that regardless of one’s sex or gender, one who is awake is culpable, while the sleeper is exempt, as they did not have awareness of the situation.
However, that is it for sleep in this seder, as the other sleep texts in the Mishnah come from priests and levites sleeping in the Temple in mMiddot and mTamid, both of which are absent from the Tosefta.
1 ed. Zuckermandel, 562.