A Mistaken Adulteress

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by R. Gidon Rothstein

25 Adar Aleph: Binyan Tziyon on a Mistaken Adulteress

The year after I graduated high school, I had the life-changing good fortune to attend Yeshivat Har Etzion. Aside from R. Lichtenstein and R. Amital, zt”l and my rebbeim (particularly R. Ezra Bick and R. Yaakov Meidan, they should be granted long and healthy lives, and R. Binyamin Tabory, Hashem should send him a full refuah), my experience was also positively shaped by older fellows in the Beit Midrash (R. Herschel Schachter recently spoke movingly about R. Lichtenstein this way, as the older fellow who set the example for him).

One of the most important of the older fellows for me was R. Herzl Hefter, whose warmth and welcome were hugely significant factors in easing my entry into the yeshiva’s Beit Midrash. I mention this because, to my sorrow, our hashkafot have diverged significantly in the intervening years, and his name has become linked to a segment of Orthodoxy that concerns me greatly.

Even as I recognize that, and feel the need to mention it, I also want to avoid being kefui tovah, letting later events lead to be so ungrateful as to dim my positive memories of the earlier events. I bring it up here because the teshuvah we are going to summarize this time is one he mentioned to me all the way back then (and Pirkei Avot teaches us to quote people when we can), Binyan Tziyon 154, written in on the 25th of Adar Aleph, 5619 (1859).

What Con Men Can Trick Us Into Doing

The answer is interesting and reminds us of valuable halachic principles, but the question is unforgettable. In a village in Hungary, while a man was on one of his frequent and lengthy business trips, another man came from Poland, with torn clothing, and asked for lodging. The wife, by all accounts a modest and righteous woman, took pity on him, gave him a place to sleep and food and drink.

The guest refrained from meat or chicken, drank only water, undertook various bodily mortifications and afflictions (a practice of some people striving for righteousness and to atone for their sins), and sat all day in his room, studying, until midnight, when he would cry over the destruction of the Temple and Jerusalem (tikkun hatzot, a well-known custom, usually only engaged in by those of extraordinary righteousness). When he slept it was on the floor, with stones under his head, and he would daily dip twice in the cold river.

He did this from the Sunday of his arrival to the second Friday night he was there. After that Shabbat meal, once the children and staff had left the table and gone to sleep, he revealed himself to the woman as Elijah the Prophet, sent to save the Jewish people.

She believed him, and went to sleep. He learned until midnight, then tiptoed into her room, woke her, and told her he had been sent to find the most righteous woman in the world, to impregnate her with the Mashiach. To convince her, he told her he had left something in a chest of drawers; if she waited to open it until the Tuesday after he left, she would find a fortune of money.

The poor woman believed him, they had relations that night and the next, and then he fled before dawn. She still didn’t realize what had happened, and sent excitedly for her husband, to tell him they were going to be rich. When she opened the drawers and found nothing, she was stunned, shocked, and distraught. She pointed out that the man had been physically disgusting, and the only possible reason she would do what she had done was that she believed him.

The rabbi to whom they turned asked the Binyan Tziyon (R. Ya’akov Ettlinger, 1798-1871) what to do [because, halachically, a woman who commits adultery cannot stay with her husband]. He has in the meanwhile had them separate, until they hear an answer.

Shogeget Doesn’t Help

R. Ettlinger starts off discouragingly, commenting on the difficulty of finding a solution. Her insistence that she did this unwittingly and that her intentions were positive doesn’t help, because Rema ruled (based on a responsum of Maharik) that a woman who thought adultery was permitted could still not stay married to her husband.

It’s not the intent to do evil that leads to this rule, just the knowledge that she is having relations with someone other than her husband.

Maybe We Don’t Believe Her

A real avenue to allowing them to stay together [one I think is used today, in cases of adultery] is to say that if she’s the only source of this information, we decide not to believe her. Where there are no rumors of an affair and no witnesses, Shulchan Aruch rules we don’t believe her claims, for fear she’s using this as an excuse to get out of the marriage.

In our case, we might think this doesn’t apply, since she’s begging for a way to stay, but Binyan Tziyon says we could still say this is all part of her plan, and therefore not believe her. Another reason we might be forced to believe her is that on the Shabbat morning after their encounter, the house staff found the man in her room (although on the floor, maintaining his charade of piety). In a similar case, Beit Shemuel had said that evidence of an affair, along with her admission, forces us to accept her claim.

However, Chelkat Mechokek noted that Rosh said we should take any avenue we can find to allow a couple to stay together; in this case, we can argue that had they actually committed adultery, he’d have left the room before anyone would find him. For all that that’s now a debate among acharonim, R. Ettlinger is prepared to follow Chelkat Mechokek’s lenient view, especially since Noda Bi-Yehuda agreed with him.

Unfortunately, as Binyan Tziyyon notes, Shulchan Aruch is clear that all this is only when the husband doesn’t believe her. In this case, the husband was visibly upset at what had happened, including the embarrassment it caused him. This clear belief seems to mean they must divorce.

Betraying the Marital Relationship, Even Without Evil Intent

R. Ettlinger notes that Terumat haDeshen, for all that he was generally stringent, was remarkably lenient in allowing wives to remain with their husbands; he takes that as a signal that he should do all he can in that direction as well. He starts by noting Maharik’s reason for saying that a woman who committed adultery voluntarily, thinking it was allowed, would still be prohibited to her husband.

Maharik had pointed out that the Torah refers to an adulteress as a woman who was ma’alah bo ma’al, committed a betrayal of her husband (not Hashem). It’s not her thinking it was prohibited that’s the key factor, it’s her entering a relationship with a man other than her husband. So, too, the Gemara read Esther as having recognized that once she lived with Achashverosh voluntarily, she would no longer be permitted to Mordechai [the Gemara assumed Mordechai and Esther were married]. A relationship with a man other than her husband meant she couldn’t stay with her husband.

That was despite the fact that Esther was doing so to save the Jewish people, and that Hashem ratified the validity of her act since (in the Gemara’s reading), she was visited by the Divine Presence as she entered Ahashverosh’s court. The rule that she can’t stay with her husband, then, is not a function of committing a sin or an otherwise unworthy act, it’s a function of voluntarily having relations with a man other than her husband. Agreeing with Maharik, Beit Shemuel wrote that if a woman did so to save many lives, she still would have to get divorced.

Sharpening the Definition

Binyan Tziyyon accepts only part of Maharik’s claim; he is comfortable with the idea that adultery for pleasure constitutes a ma’al against the husband even where she thought it was allowed, but where Mordechai told Esther to go (as he did) and where the woman believes she is fulfilling a mitzvah by acting this way, he doesn’t see it.

For support, he reminds us of the Gemara that refers to the Divine Presence leaving Esther when she arrived at Achashverosh’s court, and she complained that Hashem was treating an ones, being forced into something, as if it was voluntary. Esther accurately portrayed herself as coerced into what she was doing, yet was still going to have to separate from Mordechai.

Since involuntary acts generally do not produce consequences, R. Ettlinger suggests that Esther was unsure of the status of what she was doing. As Mordechai himself had reminded her, if she refused to go, Hashem would save the Jews some other way. If so, while she was allowed to do this, she could not be sure enough that this was the only way to save the Jews to consider her relations with Achashverosh so coerced as to let her stay with Mordechai. Binyon Tziyyon adds [a novel view, I believe] that the Gemara’s view that the Divine Presence returned to her when she asked about treating coerced and uncoerced the same way was confirmation that she did count as coerced and in fact was allowed to return to Mordechai after all this was over.

How It Helps This Woman

Shevut Ya’akov made a similar point. In the case he was dealing with, a group of Jews was set upon by highwaymen, who let them go only after a married woman in the group had relations with them. Shevut Ya’akov argued that coerced relations do not render her prohibited, if the idea of having relations was included in the coercion. Marriage assumes relations, so Achashverosh marrying Esther included coercion to have relations with him. When Esther went of her own volition, there was no current coercion regarding having relations, so that counted as adultery.

Translated to the forest case, if the murderers made an explicit issue of her giving herself to them, she was coerced and permitted to her husband. But if she offered it as a way to save the others, she would not be allowed to stay married (despite its’ having been appropriate and laudable on her part, a way to save many lives).

For the woman who thought she was conceiving Mashiach, her actions after the fact showed that she believed the man’s story, had thought she was commanded by Hashem to have relations with this man. There is no greater coercion than that, says Binyan Tziyyon, so much so that even Maharik might have allowed her to stay married.

Ending on a note of humility characteristic of poskim who offer radically new ideas, Binyan Tziyyon says he’s not an authority of sufficient weight to give this ruling on his own account. He urges the petitioning rabbi to consult with other decisors, to get their reactions to his suggestion, to see if indeed he had found a way to allow this husband wife to stay together, the strong preference of the halachic system.

About Gidon Rothstein

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