Killer Wife in Jewish Law and Lore
In Jewish law presumptions play an important role. In the context of our topic, the type of presumption which is relevant is unique in legal systems: the presumption is that if things happen in a certain manner they will continue to happen in the same manner. The following are four examples of such presumptions in the Talmud.
- There is a presumption that if an ox gored twice, or according to another view three times, it will continue to gore. Therefore there is a strict responsibility upon its owner to guard it and if it gores again the owner will be liable to a high rate of compensation—double the amount he would ordinarily have to pay the injured party before it became known that there is a presumption that this particular ox is prone to gore.
- If a woman begins to menstruate on the same day of the month for three consecutive months, there is a presumption that that is the day when she begins her period and all the detailed regulations concerning a menstruous woman begin at that date.
- If a woman is married ten years and has had no offspring, was divorced and remarried and has no offspring for another ten years, she is presumed to be sterile and she is now not permitted to marry a man who has no offspring and therefore has not yet fulfilled the commandment of procreation.
- If a woman had children who died as a result of circumcision, it is forbidden to circumcise her other sons for fear that they may also die as a result of circumcision. There is a presumption that the family is prone to dying as a result of circumcision, probably due to hemophilia or some other genetic illness.
In a similar vein to the aforementioned examples the Talmud brings and discusses the killer-wife presumption. According to a Talmudic sage if a woman was married to one husband who died and to a second one who also died, she is not permitted to marry a third husband for fear of his life. There is, however, another Talmudic sage who holds that only after the death of three husbands is she prohibited from marrying a fourth. Most post-Talmudic decisors of the law rule according to the more stringent view that the prohibition begins after only two deaths, not three. In any event, this is another example of a presumption that what occurred in the past is prone to repeat itself.
The Talmudic discussion does not end here but what follows is an attempt to explain the reason for the husbands’ deaths. Two possible reasons are given in the Talmud, both unclear and enigmatic. According to R. Huna her “well” is the cause. According to R. Ashi her bad luck is the cause. It seems that R. Huna’s explanation refers to her womb, meaning that for some reason sexual relations with her have an adverse effect on her partner—perhaps she has some malignant disease which is transferred by sexual intercourse. R. Ashi’s explanation too is unclear—what is meant by her bad luck?
The Talmud further enquires: do the different explanations posed by Rabbis Huna and Ashi respectively, lead to practical legal differences? The Talmud answers in the affirmative. “The difference between them is the case where the man only betrothed her and died or also when he fell off a palm-tree and died.” The explanation of the above is that where it is clear that the husband’s death was not caused by his contact with her “well”—her womb—according to R. Huna she may remarry. Both the examples which were given are situations where it is clear that coitus was not the cause of the husband’s death; the betrothed future husband and the man who was killed by the fall from a tree both died from circumstances which were not at all connected with having sexual relations with the woman. Hence R. Huna would allow a further marriage while R. Ashi would prohibit one since according to him she is an unlucky spouse.
Usually where there is a difference of opinion between R. Huna and R. Ashi the law is according to R. Ashi, who was both a later authority and the major redactor of the Babylonian Talmud. Thus in this case the more stringent view is to be accepted, that is, it makes no difference what the possible cause of death is: the woman is unlucky and in no circumstances should a third individual take the risk of marrying her.
This fear of dying as a result of marriage to a woman whose former husbands had died while married to her was taken very seriously. The Talmud relates a story about a very prominent rabbi, Abaye, who relied on the statement that the presumption takes effect only after three deaths, and married a woman whose two husbands had died. The Talmud relates that after the marriage Abaye too passed away. In a related Talmudic passage we are told about the wife of another sage who, fearing that Abaye’s widow was interested in her husband, chased her out of town yelling at her, “You have already killed three men and now you come to kill another man!”
Before we turn to our discussion of the killer-wife in post-Talmudic times, we can pause here to ask whether there is a source or at least a hint of this fear in pre-Talmudic Jewish sources. The answer to this question is a weak “maybe.” The only Biblical source which may be alluding to such a fear is the story in Genesis of Judah and Tamar: Tamar married Judah’s son Er who died while married to Tamar. Then Er’s brother Onan married her—probably an early example of a levirate marriage; he too died while married to her. The Bible then relates: “Then Judah said to his daughter-in-law Tamar, “Stay as a widow in your father’s house until my son Shelah grows up’—for he thought: He too might die like his brothers.” It seems from this passage that there was a fear for the life of someone who married a woman whose previous husbands had died while married to her. This is so in spite of the fact that the Bible relates that Judah’s sons died because of their sinful behavior.
In any event the Talmudic discussion was taken seriously in post-Talmudic times. As a result of what was said in the Talmud, many rabbis felt that there was a real danger in marrying such a woman and even if one could not be sure that the outcome of the marriage would be death, one could not take the possibility lightly. Therefore one must see to it that such marriages do not take place. In matters of life and death taking chances is forbidden. On the other hand, by adopting a stringent view, one could cause great harm to a young woman who had the misfortune of being twice widowed and could not now remarry. She is a de facto agunah—anchored woman—who is now relegated to the life of a spinster. Such a situation is clearly against the ideal of the Jewish religion.
These two competing diametrically opposed outlooks are the nexus of the halahkic-legal tug of war which emerged in post-Talmudic times. From the Talmudic sources it is clear that a marriage prohibition exists for the killer-wife. For the Talmud this is not a folkloristic superstition but a really serious problem.
Two schools of thought developed over the ages regarding the killer-wife. One was conservative, stringent in its interpretation of the Talmud, taking the Talmudic statement very seriously. The other, lenient school, includes a wide spectrum of views attempting to ameliorate, at least in some cases, the plight of the killer-wife. The range of views runs from minor inroads in the law to almost complete negation of the killer-wife rule. Some of the rabbis who took the killer-wife marriage prohibition seriously even extended the prohibition to situations not mentioned in the Talmud. These decisors saw themselves as life-savers, but they remained a minority.
It seems that one of the major causes for an upsurge in strictness was the appearance in the thirteenth century of the Zohar, the most influential and basic book in the Kabbalah. The Zohar looks askance at remarriage of widows in general. It speaks of the spirit of the deceased husband, which will return in order to harm the new husband.
The perceptions in the Zohar have parallels both in other sources of the Jewish cultural heritage and in the heritage of other civilizations. For example, in the Hindu religion marriage of a widow is not looked upon favorably. There too the spirit of the dead husband hovers above the new couple. In some cultures we find the spirit of the former husband and in others we find the belief that certain demons attend the wedding ceremony in order to harm the couple. In the apocryphal book of Tobit we read of Sarah, the daughter of Requel, the heroine of the book, having been widowed seven times, each husband dying in the wedding chamber. The cause of death is the demon Ashmedai (Asmodeus) who is in love with Sarah and slays every groom who approaches her.
It seems that not only the Zohar influenced the rabbis who held a more stringent view but that other extra-legal influences were present. In certain Jewish communities between the thirteenth and fifteenth centuries stringency appears to have become more prominent. One possible explanation of this phenomenon is that at that time there was a reaction against rationalism in all of Europe, including Jewish society.
However, it appears that a more lenient attitude was usually dominant. Before going into detail about the specific manner of interpretation used by these scholars of leniency, it is important to begin by emphasizing the general policy behind the lenient view: the attempt to alleviate the plight of women who would be left unwed as a result of their being branded killer wives. This situation is contrary to both the moral and religious attitude of Judaism. Therefore there was an urgency to find a solution to this problem, even if at times it could only be partial. (Some of the post-Talmudic rabbis felt uneasy with the killer-wife rule, seeing it as essentially based on superstition rather than on logic.)
Undoubtedly the watershed decision and the most influential on later generations was the ruling of Maimonides (Rambam) on this issue. His outlook is clearly and explicitly presented in two of his responsa. Only someone of his stature could be so daring in confronting a Talmudic text which is clearly not to the liking of such a rationalist. Thus, when asked—twice—about different specific cases by local scholars, who thought that they must not perform a marriage ceremony for a killer-wife, the Rambam expresses his amazement that scholars would fail to distinguish between different categories of prohibition: things that are forbidden by the Torah, things forbidden by the sages and things which are termed “reprehensible,” makruh—a term borrowed from Islamic legal nomenclature—but not forbidden. The remarriage of the twice-widowed woman is of the third category. According to Maimonides the fear for the third husband’s life is in fact tenuous and is based on what could be termed as close to superstition. There can be no comparison, he says, between fear of the killer-wife and fear of a possible death where two brothers already died as a result of circumcision. The latter case is based on a real substantiated threat to life, not on flimsy superstitious coincidence. Therefore Maimonides, who cannot completely nullify the Talmudic statement, advises the couple to betroth themselves privately in front of two witnesses. After their betrothal they should appear before the rabbi, who should now arrange the final stage of the marriage including drawing up a ketubbah (marriage contract). Maimonides says in his responsum that this is not an innovation of his but that the foremost rabbis who preceded him in Andalusia acted in such a manner and that since his arrival in Egypt he acts similarly. Besides Rambam’s reasoning based on his negative view of the Talmudic basis for the killer-wife prohibition, he also mentions more practical reasons for his decision. He hints at possible harsh consequences if the scholars take a stringent view—perhaps the fear that a woman (especially a young woman) who cannot remarry may convert to Islam or that she will live in sin with another man out of wedlock. Rambam specifically tells the scholars to turn a blind eye to the private betrothal and even to advise the man and woman how to act. The logical consequence of the above, according to Rambam, is that if the marriage is consummated the couple are not obligated to divorce as would be the case in other prohibited marriages. For all intents and purposes Maimonides abolished the Talmudic prohibition of marrying a killer-wife.
This groundbreaking decision of Maimonides was anticipated by a good number of scholars who antedated the Rambam, but not everyone would agree to the far reaching consequences of Maimonides. Therefore many scholars who felt themselves bound to what was said in the Talmud but wanted to take a more lenient view, had to find other paths, mainly through interpretation of the Talmud, paths which would lead to the desired results. But doing so through distinctions and liberal interpretations would never lead to the wholesale abandonment of the Talmudic prohibitions, which was the de facto, if not the de jure, Maimonidean position.
There are scholars who are unwilling to adopt Maimonides’ decisions lock, stock and barrel, but are influenced by him and agree with sections of his responsa. Others come to similar conclusions without referring to Maimonides. For example, a good many of the rabbis decided that if the couple nevertheless wed, they would not be forced to divorce. The Talmud says nothing about divorce in the context of the killer-wife so one can be lenient on this score. There are other examples in the Jewish legal system where one should not marry under certain circumstances but ex post facto, if one does marry, the law does not compel a divorce.
Others agree with the view that if the couple has already been betrothed, they may marry. Furthermore, a minority of scholars seem to go even further than Maimonides in rejecting the whole idea outright, stating that times have changed and what was perhaps true in Talmudic times is not relevant for later periods. Others, who do not go so far, are willing to take a lenient stand by explaining that there is no real danger to one’s life in marrying a killer-wife but only a remote possibility. Another line of thought goes on to say that one should have faith in God: He will protect the new husband as he protects us from danger in general. Others rely on Rambam’s fear that if not permitted to marry, the couple would live together anyway without having officially consummated a marriage; better to permit marriage than have them live in sin.
One cannot overemphasize the fact that the development of Jewish law throughout the ages was possible only by interpretation and reinterpretation and not by legislation as is the case in other legal systems. Since Jews could not and would not legislate—save exceptionally—interpretation was the tool of innovation. No better example of this axiom can be found than by studying closely the words of the rabbis when they discussed the killer-wife: since the undisputed conclusion in the Talmud was the recognition of the killer-wife and the prohibition against marrying her, and since Jewish legal tradition does not allow for disputing a clear-cut Talmudic decision, the only practical way of changing or amending the Talmudic source is through creative interpretation.
The most prominent logical-legal explanation of the lenient view is based on two interpretations of the Talmud. The first is that although it appears that the Talmud prohibits marriage after the death of the second husband, there is also another view which states that the prohibition applies only after three deaths as is the case concerning other presumptions which become valid only after three recurrences. Although it seems that the accepted opinion is the more extreme one of needing only two instances, due to the negative consequences of applying the killer-wife rule one should decide according to the view voiced in the Talmud that a presumption is established only after three deaths.
A second attempt at alleviating the woman’s predicament is also made by interpreting the Talmudic text and deciding what the law is, not according to the usual rules of decision-making. As mentioned above, R. Huna explained the reason behind the rule as based on contact with the woman’s womb (or “well” in Talmudic parlance) while R. Ashi was of the opinion that it is based on the fact that this particular woman is just an unlucky woman. Usually one would prefer the view of R. Ashi who was the most prominent of the redactors of the Talmud. His view would lead to a more stringent outcome since any death of a husband, no matter what its cause, is counted as a death in our context. According to R. Huna only death which seems to have some link with sexual intimacy of the couple is considered killer-wife death. Since the rabbis felt there was a need to be lenient with the killer-wife, many adopted the view presented by R. Huna, that only deaths linked physically to the woman are to be considered. As a result, many specific examples of death which R. Ashi would include as within the killer-wife rule, were excluded.
According to those scholars who took this legal path, specific example of causes of death which were not part of the killer-wife rule were martyrdom and suicide, plague, traumatic events such as a fall from a tall tree, etc. These examples are the logical outcome of R. Huna’s explanation of the killer-wife prohibition. But such examples were extended to include some less directly linked to this explanation, such as death from old age, death after a long period of matrimony or where the husband was extremely ill at the time of his marriage. There is even a view enunciated that if the husband died outside the Land of Israel but the new potential couple want to live in the Land of Israel, the marriage should be allowed. This is analogous to the rule in Jewish law that although a couple who have no children for a period of ten years should divorce, if they make aliyah to the Land of Israel, their presence in the Land may help and they can try again for another ten years.
The tendency toward leniency seems to be based not only on legal interpretations and judicial policy, but also on extra-legal factors, mainly of a historical nature, which influenced the decision making. The most salient of these outside determinants are part of the milieu of the Middle Ages, a period of extraordinary development of the Jewish legal system. What was decided by the medieval rabbis became precedents for later ages to this day.
The following undoubtedly influenced the attempt to find lenient solutions to the killer-wife rule:
- Many husbands went on long and dangerous business journeys and lost their lives, leaving behind them young widows.
- Very young women would marry elderly men in arranged marriages. Many times even children, little girls, were given in marriage. These men would die, leaving behind them young widows.
- Pogroms and expulsions, including martyrdoms, left many young women widowed.
- Plagues, especially the Black Death, decimated populations and left many young widows in the Jewish communities. These events brought to the fore the plight of many young widows who remarried and found themselves widowed once again.
- The rise of rationalism in the thirteenth century and the Jews’ special interest in rationalism led those influenced by rationalism to look askance on Talmudic passages such as the one concerning the killer-wife. The harshness of deciding according to a strict interpretation of the Talmud seemed excessive to many rabbis in all the above-mentioned circumstances.
In our times the responsa of two leading contemporary respondents deserve mention: R. Moses Feinstein (1895–1986), born in Russia but an American resident for most of his life, until his death close to the end of the twentieth century, and R. Ovadiah Yosef (b. 1920), who was born in Iraq, but has lived in Israel for almost all his life.
Ovadiah Yosef surveys the halakhic literature with his well-known
erudition. In the end it appears that he would be willing to adopt the responsa of Rambam without any need for further debate. He is especially influenced by Maimonides’s description of the killer-wife rule as based on superstition. Like Rambam, Ovadiah Yosef does not take the fear of death very seriously, following Rambam’s distinction between the real danger in the circumcision case and the very doubtful danger in the killer-wife situation.
The example from Moshe Feinstein is somewhat different. The case before him concerned a woman whose first husband had died a natural death in old age and whose second husband died as a result of a fall in a lumberyard. The woman wanted to marry a third time. This case was the springboard for the rabbi’s detailed discussion of the killer-wife issue. The main thrust of the responsum is a negation of many of the arguments put forward over the ages to substantiate a lenient attitude. One by one R. Feinstein refutes many of the leniency contentions. One is left with the clear impression that he sees through a good number of the leniency arguments and calls a spade a spade: Many are based on the flimsiest of reasoning, holding water on the basis of neither logic nor law. But in spite of the gist of his response, R. Feinstein too comes to the conclusion that at least in the case before him, the woman should be allowed to remarry. In the end he too adopts two of the leniency arguments, upon which he bases his judgment.
In conclusion, what seemed a more or less clear-cut Talmudic position which under ordinary circumstances would settle the law even unto our times, was rejected almost outright. This was done either by a broad stroke epitomized by Maimonides or through the universal legal process of distinguishing between cases until, as a result of public policy and purposeful interpretation, the law itself was in fact amended. This legal development was due to two major factors. Firstly, many scholars felt that the Talmudic presumption that there is a death pattern in connection with the specific woman was not logical and even superstitious. Secondly, the rabbis did not want to prohibit marriage, especially if the woman was young, on the basis of a questionable rule. However, we must not forget that throughout the ages there was always a school of thought which took the Talmudic precedent very seriously. These scholars felt that there was a real danger of death for the third husband and they did not want to take chances when life and death were at stake. However, in the end the lenient attitude prevailed, as seen from the contemporary responsa of the leading rabbinic scholars of our time, Rabbis Ovadiah Yosef and Moshe Feinstein. Israel’s highest rabbinical tribunal dealt with this question and on appeal from a district rabbinical court the Supreme Rabbinical Court decided unanimously that leniency is called for. This is not surprising, since one of the judges who sat on the panel was R. Ovadiah Yosef.