Legal-Religious Status of the Suspected Adulteress (Sotah)
Perhaps one of the most embarrassing and humiliating situations for a man, particularly in the Middle East, is infidelity on the part of his wife. Suspicion of infidelity creates a similar dynamics in the Jewish legal system but is moderated by issues of doubt. A man’s suspicion of infidelity on the part of his wife is one of the most prejudicial legal situations for women, clearly demonstrating inequality in the marriage relationship. When a man acquires a woman as his wife, he acquires exclusive rights to her sexuality. The reverse, of course, is not true, since a man (until the decree of Rabbenu Gershom [c. 960–1028] for Ashkenazic Jews and the rise of the State of Israel also for Sephardic Jews, with some anomalous situations still existing) is permitted to have more than one wife as well as concubines, and his legal status is unprejudiced by fornication. If, for some unspecified reason, a man suspects his wife of becoming too close to another man (even her father, brother, a boy more than nine years and one day old, a Gentile, a slave or a man who cannot have an erection, or even two people at once), he becomes “jealous” (kinei). This topic is found in Shulhan Arukh E.H. 178 and in Maimonides (Rambam) in Hilkhot Sotah, who holds the following opinions. By giving her a verbal warning in the presence of two kosher witnesses (adult, male and observant of the mitzvot) that she may not be alone with the specified person, he establishes her suspect state (Rambam, Hilkhot Sotah 1:1,3). If she subsequently secluded herself with that man in a private place for a long enough period to have had sexual relations (the time it takes to roast an egg and eat it—BT Sotah 4a), she is forbidden to her husband until she undergoes the trial of the bitter waters and if there are no bitter waters (e.g. post-Temple destruction), she is forbidden forever and must be divorced without a ketubbah (ibid.1:2). The man may revoke his jealous warning or divorce his wife and remarry her, making her subsequent seclusion with the warned party non-binding concerning the trial of bitter waters (ibid. 1:7). If after the appropriate warning before witnesses, the husband himself sees that she secluded herself with the forbidden man or he heard the rumors of “the women who weave by the moonlight” concerning her forbidden seclusion, he must divorce her and give her the ketubbah because he cannot force her to undergo the trial if he himself is the witness (ibid. 1:8). When, after the proper warning, a single witness gives testimony that the woman had secluded herself with the prohibited man, if the husband relies on him, he must divorce her and she claims her ketubbah but if he does not rely on the witness, she is permitted to him (ibid. 1:9). The court itself can give the jealous warning on behalf of the husband if he is deaf, mentally ill, out of the country or incarcerated, but not for the sake of enabling the trial of bitter waters, which is only the husband’s prerogative. If the court, after warning her, subsequently hears that she had secluded herself with the forbidden party, they forbid her to her husband, tear up her ketubbah, and obligate her husband to divorce her when he is in a state to do so, e.g., when he is no longer mentally ill (ibid. 1:10–11). If after the proper warning and witnesses to her seclusion with the prohibited man, a witness (even one of those who witnessed her seclusion) testifies that she had intercourse with the prohibited man, she does not undergo the trial but is divorced without a ketubbah (ibid. 1:14). Actual evidence of defilement is sufficient to enforce the divorce and the forfeit of her ketubbah, but without the formal warning of two valid witnesses she does not fall into the legal category of an adulteress who is subject to capital punishment.
One who is merely betrothed to a man or the widow of a childless man waiting to perform halizah or yibbum (shomeret yavam) is also subject to suspicion due to jealousy. She, however, does not undergo the trial if she is secluded with the man after the warning but the betrothed woman is divorced and the yavam (brother of the deceased childless man) performs halizah and she also loses her ketubbah. Such women do not drink the bitter water because they are not actually married. If they secluded themselves with the prohibited man after the marriage or yibbum has been consummated, they are subject to the trial of bitter waters (ibid. 2:5). Women in prohibited marriages such as a widow to the High Priest, a divorcée or woman who has undergone halizah to a priest, or a bastard woman or Nethinah (descendant of the Gibeonites [BT Yevamot 78b–79a]) married to a Jewish man or a Jewish woman married to a bastard or to a Nethin, are not subject to the trial of bitter water but if the husband/yavam (levir) has expressed his “jealousy” before two witnesses and the woman has secluded herself with the prohibited man, she is divorced and loses her ketubbah (ibid. 2:9, Mishnah Sotah 4:1). This is due to the fact that such women have caused themselves to become prohibited to their husbands. Several other women are prohibited from drinking the bitter waters but are divorced without a ketubbah. These include a minor, a woman married to a minor, a woman married to a hermaphrodite, a woman married to a blind man, a woman with a congenital malformation causing her to limp, a woman without a hand or with a severely deformed or withered hand that cannot hold her meal offering, or a woman married to such a man, a mute woman or woman married to a mute man, a deaf woman or woman married to a deaf man (Rambam, ibid. 2:2–3). These are forbidden to undergo the trial because of legal hermeneutics on the verses which specify as part of the trial certain actions such as speaking, hearing, standing and holding which their physical disabilities prevent. A minor girl married off by her father (i.e. marriage of biblical validity) is subject to the jealous warning and if she subsequently had sexual relations with the prohibited person does not undergo the trial but is divorced and disqualified from her ketubbah. A minor married off by her guardian (i.e. marriage of rabbinic validity) is not subject to the jealous warning (ibid. 2:4). Women with certain status disadvantages who are nevertheless permitted to their husbands, such as the convert or one married to a convert, a freed slave woman or one married to a freed slave, a bastard or woman married to a bastard, and a woman married to a eunuch, are nevertheless obligated to undergo the trial (ibid. 2:6). A pregnant or nursing woman is subject to the trial, including if the man transgressed the rabbinic prohibition and married a woman pregnant by another man or nursing another man’s child (ibid. 2:7, 9). The woman who was set to undergo the trial but whose husband died prior to her drinking the bitter water is exempt from the trial but loses her ketubbah—a clear example of presumption of guilt without possibility of disproving it through the trial of bitter waters. A man who is married to a woman who cannot give birth (an infertile woman, a menopausal woman or woman who has not sprouted two pubic hairs by the age of twenty [ailonit]) and has no children of his own cannot subject her to the trial of bitter waters: rather, she is divorced without her ketubbah. If he is married to an infertile woman but does have children from another wife or has another wife who is or was capable of giving birth, the infertile woman is subject to the trial (ibid. 2:10). If a woman had been warned about a particular man and was secluded with him but did not undergo the trial, she is forbidden to marry the prohibited man after her divorce but if they transgress and marry, even if they have several children, the court can force them to divorce (ibid. 2:12). If she had not been warned about a particular man but witnesses testified that she was secluded with someone and was found in a state of disarray suggesting sexual activity causing her husband to divorce her, she is forbidden to marry that person but if she does so she must be divorced unless she had children with him (ibid. 2:13). This holds if there had been a sustained rumor concerning her defilement with that man. This is an extension of the rabbinic rule that the adulteress is forbidden to marry the adulterer, even though only doubt is involved here. The status of their children is, however, unaffected by their supposed adultery.
No woman who has been warned and secluded herself is actually obligated to drink the bitter waters. The court in Jerusalem exhorts her to confess her guilt rather than undergo the trial. This is similar to the treatment of witnesses in capital cases to prevent them from giving false testimony. If she confesses that she is guilty of adultery or if she refuses to undergo the trial, the court forces the man to divorce her and she loses her ketubbah. If her husband refuses to have her undergo the trial or if he had intercourse with her after the warning and seclusion, he must divorce her and she is permanently prohibited to him but she is entitled to her ketubbah (ibid. 2:1). This demonstrates that his actions are of primary importance in determining her status and her ability to claim her ketubbah.
The laws concerning testimony are very lenient in reference to a woman after her warning by kosher witnesses. Relying on the validity of the first testimony (which in rabbinic eyes is completely valid because the witnesses were religiously observant adult males), a woman, a slave (male or female), one who is disqualified from testimony by rabbinic disqualification, a relative and the five women who are considered to hate her (her mother-in-law, her sister-in-law, her co-wife, her husband’s daughter and her husband’s brother’s wife according to Gittin 2:7) may all give testimony that she had intercourse with the prohibited person, thereby making her forbidden forever to her husband (ibid. 1:15). This interaction between valid testimony and testimony by witnesses who are normally disqualified and who may have a stake in the issue is a matter of balance: she is forbidden to her husband, who must divorce her (a matter of religious significance, issur), but is allowed to claim her ketubbah (a matter of money, mamon). If one kosher witness testifies that she had intercourse with the prohibited man and subsequently another kosher witness contradicts him, the stricter position is followed and she is divorced without a ketubbah, again to the disadvantage of the woman. If the contradicting witnesses came to the court at the same time or if two witnesses contradicted the testimony of the first, the woman must undergo the trial (ibid. 1:17). If the first witness who claims she had intercourse is contradicted by many women or other unqualified witnesses, she must undergo the trial because they are considered of equal weight (ibid. 1:18). If all the witnesses of her seclusion were women or other unqualified witnesses, the court follows the majority of the testimony. If the weight of the contradicting witnesses was equal, the woman must undergo the trial (ibid. 1: 18, 19). These leniencies concerning testimony clearly indicate the sotah’s legal disadvantage.
The husband must take her to the local court with the witnesses in front of whom he warned her and with the witnesses of her subsequent seclusion with that man (ibid. 3:1). It must be emphasized that this is a case of absolute doubt: the man may have no particular reason for warning his wife against secluding herself with a particular man and there are no witnesses to actual wrongdoing, only witnesses to her disobedience to her husband’s prohibition to the seclusion. This doubtful situation is treated as definite “impurity,” making her forbidden to him. This became the model for stringency in reference to a case of doubtful ritual impurity in a private domain which the rabbinic sages considered as definite impurity (BT Niddah 3a, 56a). His jealous feelings, which may be similar to the warning signs of an abusive husband, are given legal validation by the sages. The local court appoints two rabbinic sages to accompany the couple to the court of seventy-one judges in Jerusalem (Sotah 1:4). Their task is to prevent the husband from having sexual relations with his wife prior to a successful conclusion to the trial of the bitter waters, because his suspicion has made her forbidden to him.
The trial is described in Mishnah Sotah chapters 2–3 and in Rambam (ibid.) chapter 3 with some variations in the order. The entire process leading up to the trial is one of humiliation and degradation of the woman and attempts to frighten her into admitting her guilt: her garments are ripped by the priest to expose her breasts; her hair is unbound, in contrast to the norm of married women; if she is wearing white she is forced to change into black clothing and remove all ornaments and jewelry; her torn clothing is bound to her by Egyptian rope above her breasts (to emphasize her adherence to the abominations of Egypt); many women are gathered and any men who wish to observe the trial (except her own male and female slaves and servants) are allowed to witness her humiliation, apparently as a means to deter such acts among spectators; she is walked to distant sections of the Temple area in order to tire her out; her sacrifice is a barley meal offering, considered to be animal food, and it is unaccompanied by oil or incense; she is forced to hold the meal offering given to her by her husband in an Egyptian basket in an effort to exhaust her (and only later is the meal offering transferred to a Temple vessel); water from the Temple laver is placed in a new ceramic bowl to which was added dust found underneath a particular flagstone on the tabernacle floor as well as a bitter-tasting substance; the curses concerning the sotah must be written explicitly for her in the daytime and are written with a particular ink which will dissolve on a parchment suitable for writing a Torah scroll; the priest makes her swear an oath in a language which she understands and the woman answers, “Amen, amen” to the curse and to the oath that she did not commit adultery from her betrothal to her marriage and after her marriage. The doubled statement, “Amen, amen,” is understood to mean that the oath is “rolled” to any situation of adultery even if she had not specifically been warned against the man, including into the future (gilgul shevu’ah) (ibid.4:17). Interestingly, the oath cannot be applied to her sexual behavior before her betrothal or after her divorce, i.e. when her sexual relations would not prohibit her to him. This undisputed rule is similar to modern rulings which prevent people’s sexual history from being used against them in court. The parchment is placed in the water until all the writing is dissolved. After her offering is transferred to a Temple vessel, it is returned to her and the priest places his hands beneath hers and waves it. The priest then removes a handful and burns it and is entitled to the remainder of the meal-offering unless the sotah is the wife of a priest, in which case after the handful is removed, he burns the remainder on the ash pile. This makes the meal offering of a priest’s wife different from a priest’s meal offering in that no part of his is offered. The meal offering of a priest’s daughter married to Israel is treated normally, i.e. as if she were from the class of Israel, and it is consumed by the priests after the handful is removed. The woman is then forced to drink the bitter waters. If, prior to the dissolving of the writing on the scroll, the woman refuses to drink the bitter waters, the scroll is buried, the meal offering is scattered on the ash heap and she is divorced. If the writing has already dissolved and she has declared her guilt, she is still forced to drink against her will.
The beliefs concerning the efficacy of the waters were very strong. There were those who believed that the woman immediately showed signs upon her body if she were guilty (ibid. 3:16): her face turned green, her eyes bulged and the curse moved within her throughout her body. In that case she would be removed immediately from the women’s courtyard of the Temple lest she defile it by becoming ritually impure due to menstruation which they believed might be precipitated by the shock of the curse. It was believed that when she died due to the bitter waters, the adulterer would also die at the same time wherever he was, by suffering a similar fate of swelling belly and falling thigh. If she were innocent, her face was thought to radiate. Rabbi Akiva (Mishnah Sotah 3:5) and others believe that previous meritorious acts on the part of the woman (e.g. bringing her male children to school to learn Torah and waiting for her husband who studied Torah away from home) suspended the effects of the curse for a certain period of time. Rabbi Simeon bar Yohai held that merit would not suspend the effects of the curse and Rabbi Judah ha-Nasi (the Patriarch) held that she would ultimately die from the effects of the curse and would remain childless with no improvement in her behavior. It is in this context that Simeon Ben Azzai said a man should teach his daughter Torah “so that she would know that merit would suspend the punishment” and therefore remain faithful in her absolute belief in the Torah. Rabbi Eliezer ben Hyrcanus claimed that when a man taught his daughter Torah, it was as if he taught her lewdness because she would rely on merit to suspend the punishment and be drawn into adultery (Mishnah Sotah 3:4). His statement has been misused by those who would deny women access to Torah study despite the fact that it was said only in the limited context of sotah. The rabbinic sages have no qualms about men learning such details, including any which would let them circumvent the law, because of their belief in the inherent differences between males and females in their ability to control their desires. Here they seem to disregard the fact that a male also must participate in the adulterous act. Ultimately, during the tannaitic period, ideas of the efficacy of the trial were abandoned because male behavior was considered to be insufficiently virtuous to make the trial of bitter waters effective. Rambam held that the trial by bitter water was ineffective for the wife of any man who had had forbidden intercourse, even with his betrothed in the house of his father-in-law or with a woman prohibited to him. Moreover, he added to his own guilt because he caused the trial to be ineffective, reducing its efficacy as a deterrent, and causing God’s name to be erased due to his own fornication. The woman prohibited to him is to be divorced without her ketubbah (ibid. 2:8). The supposed effects of the curse are interpreted to mean that as she began her sin with her thigh, i.e. had illicit sexual relations, and finished with her swelling belly (presumably indicating a bastard pregnancy), the punishment would begin with the withering of the thigh and swelling of the belly and culminate in her death.
In the event that the woman is exonerated after the trial of bitter water, her husband can no longer give her the jealous warning concerning the same man. Rather if she secludes herself with him, she becomes forbidden to her husband permanently and he must divorce her without her ketubbah. He may, however, warn her concerning other men and force her to undergo the trial each time if she secluded herself with the prohibited person(s) and was exonerated (ibid. 1:12). If the first husband warned her against a particular man and caused her to undergo the trial and then divorced her, subsequent husband(s) are allowed to warn her against that same man and cause her to undergo the trial because of him (ibid. 1:13). The woman who was exonerated by the trial was “blessed”: if previously she had been barren but capable of pregnancy, she conceived and gave birth; if she had previously had difficult births, she now had easy births; if she had previously had female children, she now had male children (ibid. 2:11, 3:22). If she survives the test, even though the curse has begun slowly in her body, she is permitted to her husband (ibid.3:21). If she survives the test, even if a witness subsequently testifies that she had intercourse with the prohibited man, she is permitted to her husband (ibid. 3:23). Both situations seem to emphasize that surviving the test even temporarily carries more weight that her actual culpability. If the woman had been raped by the prohibited man, had unintentional intercourse with the prohibited man or he had non-coital relations with her, the waters would not test her (ibid. 3:24).
Although men were adjured not to give the jealous warning to their wives frivolously, or as a result of argument or as a threat, such warnings in front of kosher witnesses were nevertheless binding and a “pure spirit” entered him as a result. The sages expected him to speak to his wife privately, comfortably, in a mode of purity and caution, in order to guide the woman along the correct path, since that was the duty of the morally superior husband. It is considered a positive mitzvah to perform the jealous warning when warranted. The idea of moral superiority attributed to males had to be mitigated by the moral failure of men who fornicated and caused the trial of bitter waters to be ineffective. Jealousy, suspicion and rumor play a much more significant role in determining the status of the sotah than would be expected in a rational legal system. The woman was always disadvantaged by this classification, which may have been founded in fact or based upon the irrational jealousy of her husband and supported by rumors and the testimony of questionable witnesses. It forced her to undergo the traumatic trial of bitter waters with its positive or negative results or to be divorced, sometimes with the loss of her ketubbah. It should be noted that the husband could derive monetary benefit from his jealousy because an innocent woman might be frightened by the idea of undergoing the trial of bitter waters which had legendary powers and potentially gruesome results and would forgo the trial, thereby forfeiting her ketubbah. A married woman had neither parallel tools for moral suasion nor an ability to penalize a sexually wayward husband. The trial of the suspected adulteress is mentioned in the New Testament.
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Meacham (leBeit Yoreh), Tirzah. "Legal-Religious Status of the Suspected Adulteress (Sotah)." Jewish Women: A Comprehensive Historical Encyclopedia. 1 March 2009. Jewish Women's Archive. (Viewed on October 21, 2016) <http://jwa.org/encyclopedia/article/legal-religious-status-of-suspected-adulteress-sotah>.