Detecting an Affair

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by R. Gidon Rothstein

Two Teshuvot from 25 Cheshvan: Tzitz Eliezer on Detecting an Affair

The desire to “win” a divorce leads some people to make every effort to twist and use the legal system however they can, and courts are not always as adept as we’d like them to be at catching on. Two responsa of Tzitz Eliezer with a 25 Cheshvan connection show him (writing for the appeals court on which he sat) correcting a Haifa court’s failure to protect women from their husbands’ insufficiently supported claims they had been unfaithful (which has significant financial consequences).

Shu”t Tzitz Eliezer 16;47, records some of the back and forth in a bitter divorce case in Haifa, brought to Tzitz Eliezer’s court for appeal. R. Waldenburg (and, in a brief note at the end, R. Ovadya Yosef, who sat on the same court) shows us the care judges need to take to avoid being pawns in someone else’s game.

Putting the Wife in the Bad

On the 25th of Nisan 5744 (the dates remind us of how slowly the wheels of justice, or of divorce court, can turn, a burden on one or both parties), a Haifa court set the terms of a divorce: the wife would have two and a half years to live in the couple’s jointly-owned apartment, after which they would sell it and split the proceeds.

Seven months later, on 25 Cheshvan (the date I have used to put this responsum in this slot), the husband filed an appeal, and convinced the court the wife had not been living morally (we’ll see what that means), and wanted her to be forced to accept a get. (We will see in a moment why they had not yet gotten divorced, despite the court’s previously calling for it). 

Were she to refuse, he wanted the court to grant him permission to marry anyway (he is moving aggressively, to gain the right to move on with his life while leaving her stuck in the marriage). He also wanted custody, due to her claimed promiscuity, as well as the right to all the proceeds from an immediate sale of the apartment. In his view, all the marital assets were his.

The court agreed with his characterization of her behavior, although it conceded there was not halachically sufficient proof (they believed it, but recognized they did not have enough evidence to rule on her conduct). They rejected his custody petition, because she was a fine mother. Were he to become observant and marry an observant woman, such that his home could be seen as better for the children, they would revisit the issue.

[I will not here delve into the can of worms of giving custody preference to observant parents; much as I hope all Jews will find their way to keeping the Torah, much as I agree an observant home—all other things being equal, which they never are—is better for Jewish children, making observance an incentive in divorce reeks of moral hazard, encouraging a less-scrupulous spouse to pretend to observance to secure the children].

The husband (a little cluelessly, as we will see) filed an appeal with Tzitz Eliezer’s court.

Evidence of Yichud Is Not Evidence of an Affair

R. Waldenburg precedes his ruling with what he calls important information, a first indication the husband has been warping the truth to his purposes. The wife pointed out she had asked the court to set a date for giving the get, had officially declared (on the 16th of Kislev, as the case dragged) she saw the marriage as irretrievably broken.

The holdup was the husband’s attempt to dispossess her, financially and of her children. As R. Waldenburg says, the news changes matters.

He then turns to the claims about her promiscuity. Even Ha-‘Ezer 178;6 says courts do not count yichud, a woman’s having been secluded with a man other than her husband, as sufficient evidence of an affair to require the couple to divorce. Beit Shemuel thinks Shulchan ‘Aruch means yichud proves so little, we would allow the woman to marry the man with whom she had been secluded (should her current marriage end; a woman may never marry the man with whom she had an affair).

In the case at hand, most of the witnesses testified only to her living in the same apartment as a man. She denies any affair, says he was there to help with the children.

The closest the husband got to validating his claim was the word of a detective who had gone with the husband to the apartment at 1:30 in the morning. The husband tried to open the door himself, could not (she had changed the locks, I think), pounded on the door for a long time, until she opened it, wearing a sheer nightgown. The husband ran in, and after a few minutes, the detective heard shouting, another man ran out of the apartment, shirtless, the husband chasing him.

A similar story in Nedarim 91b (the details would take too long to share) showed Tzitz Eliezer halachah does not require us to assume the two slept together even with all this circumstantial evidence. Rosh there assumed the woman in the Gemara’s case claimed to have had an affair [halachahoften ignores such claims, for fear she’s lying to force a divorce, and commentators on Shulchan ‘Aruch, Chelkat Mechokek and Beit Shemuel, disagree about how to rule].

Yichud Is Not an Affair; It Might Not Even Be Yichud

Where she denies infidelity, the circumstances described do not suffice for a court to rule she is lying. Here, she says the whole story is made up, the husband had brought the supposed adulterer into their home, and she had never been alone with him.

R. Waldenberg says the loose morality of the time helps her case. In some societies, finding a man shirtless late at night in a woman’s apartment would prove they had been physically intimate. In our times, when many people walk around that way casually, R. Waldenburg thinks it does not tell us anything. Further, Mahari Basson (an eighteenth century Italian rabbi, the teacher of R. Moshe Chaim Luzzatto) thought finding her without pants on (I think he means undergarments) is still not devar ki’ur, evidence of physical intimacy.

Later in the responsum, R. Waldenburg quotes Chazon Ish, who said the definition of devar ki’ur, acts which indicate the couple had consummated their affair, changed with the times. Going off to a remote, secluded place and locking the door is technically an act of ki’ur, but Chazon Ish thought the court needed to investigate the context, to b sure the couple in question had made clear they intended it to be for ki’ur (already in his times, it was reasonable to think they might have gone there without such intentions).

There also may not be yichud here at all, since the children were likely home all or almost all the times witnesses say this man was there. Rema had denied a woman her ketubbah if she regularly let herself be alone with non-Jews; even there, the rule only came into play if she had been warned, with witnesses.

Especially since the case focuses on the monetary elements of the divorce, the evidence does not nearly rise to the standard of dispossessing her.

Problems with the Witnesses

Nor are the witnesses as reliable as the responsum has let us believe until now. Many neighbors saw the man outside the apartment, running away, but only the detective saw him in the apartment.

The detective has obvious flaws as a witness. He has told the court he is not observant (and may have violated Shabbat as part of trailing her). Halachic authorities also question the qualifications of a paid detective, who has a financial stake in finding what the employer wants. Besides, there’s only one of him; rabbinic courts need two witnesses to establish facts.

Lie Detectors

A last short piece of the responsum explains why R. Waldenburg sees no reason to send her for a lie detector test. I could skip it without damage to his main concerns, but it’s a good example of one kind of halachic suspicion towards technology. It reminds us of questions to ask ourselves as we incorporate such technologies into our halachic lives.

First, such tests are not as accurate as they sound; non-Jewish courts also view them with a critical eye. Second, Pesachim 54b tells us seven matters are permanently hidden from people, one of which is what’s going on inside of someone else’s head. The Torah instead (and/or therefore) decreed we use the testimony of two witnesses to determine facts, which led Rosh HaShanah 21b to read Kohelet 12;10 as a rebuke of Shlomo HaMelech’s attempt to rule on court cases based on his ability to read people, because he should have followed the Biblical rule requiring two witnesses.

[The same is true for any challenging new technology. For some time, it’s not good enough to do what its proponents claim it does. Once the technology gets better, we still need to decide whether the end point was halachah’s sole concern].

In closing, R. Waldenburg sees no reason to accept the husband’s appeal, especially when it’s clear he does not have the children’s interests at heart.

She’s Not the Only One

Tzitz Eliezer 17;57 discusses a remarkably similar case which came before a Haifa court. The date on the appeal is 28 Tammuz 5742, which puts it two years earlier, unless there’s a mistake in transcription.  A few other details also are at odds, so it could be the early 1980s saw more than one such bitter divorce in Haifa.

The woman in this case apparently refused to appear before the court, sent word she had no witnesses or proof of her claims. The court therefore ruled she had been seen living with a non-Jew, required her to accept a get at the earliest possible point, and threatened to give the husband permission to remarry without a divorce should she refuse.

The woman says she had moved in with her supposed partner for fear of her husband. Like our first woman, she denied any affair, said she had a separate room, with her children and her mother. (Later in the responsum, we hear the non-Jew also denied they had ever had relations, and confirmed her version of the living arrangements. Non-Jews’ testimony is not officially admissible, but R. Waldenburg mentions it as support).

The Court Starts Off Ok

Tzitz Eliezer cannot understand how the court had decided she certainly had an affair. In his view, there were not witnesses to ki’ur, let alone a consummated act. One detective had not entered the apartment; the other saw the man wearing night clothing, the woman in the bath (in the bathroom), and had not checked to see if the children and grandmother were there. His testimony fails to establish yichud, seclusion, let alone ki’ur, physical acts indicating relations.

The Haifa court at first recognized the lack of evidence, and had instead ruled the couple should get back together [rabbinic courts have been accused of going too far in trying to keep couples together; were that to be true, this would be an example]. They had required her to sign an agreement to leave the non-Jew’s apartment and cease all contact with him, on penalty of forfeiting all her rights in the divorce. She signed on 19 Iyyar (from here on, the responsum uses shorthand I would have thought meant 5742, except the case started in Tammuz of 5742; the easiest explanation is that the case started in Tammuz of an earlier year, and the transcriber got mixed up with all the later references to 5742).

The Haifa Court Gets It Wrong, Twice

To Tzitz Eliezer’s surprise, the husband appealed, said he felt the current group of judges was biased against him. The court accepted his claim, and put together a different group. Four days later, the new court issued an injunction against her, based on the husband’s assertion she had admitted to ki’ur acts. The court gave him custody, and said she could only enter the marital apartment—which they said was his—to get her possessions.

The case first came to Tzitz Eliezer’s appeals court on 23 Kislev 5743, when his court expressed disbelief at the lower court’s having reached a conclusion after having the case for only four days, especially since he spotted disabling deficiencies in the detectives’ testimony immediately.

Almost a year later (again, watch the cases drag and think of the suffering of the people involved), on 25 Cheshvan 5744 (the same day as our first responsum), his appeals court returned the case to the lower court to reinvestigate and rule.

They did not. Instead, they took testimony from one man who said he had an affair with her, which she denied. (Later in the responsum, R. Waldenburg says the man cannot testify to activity which would disqualify him as a witness, such as committing adultery. More, there’s reason to believe he was doing his part of a plot he and the husband concocted together,). With the new piece of testimony, they sent the case back to Tzitz Eliezer’s court, without making the requested determination about what should happen [the only justification I can think of for the Haifa court would say they had become convinced she was getting away with brazen adultery, were frustrated by the insufficient evidence, and did what they could to be sure she got what she deserved. They may have experienced R. Waldenburg and his court as ruling too legalistically, letting the letter of the law protect a woman who had had multiple affairs. They’re still wrong, but we can at least see what might have been moving them].

A Man and Woman Living Together Doesn’t Necessarily…

R. Waldenburg senses some of what I suggested, because he starts with the evidence she had been living with an Arab. He understands the lower court thinks the consistency of living together makes it worse than yichud, with many more opportunities for untoward activity. Especially since Arabs have a looser sexual morality than halachah, her living with him seemed to the Haifa court enough to term her an adulteress.

They might be right in a different social context. In this woman’s world—R. Waldenburg uses a phrase I love, kalkalatah takkanatah, her deficiencies are what save her—living with another man when she’s afraid of her husband (she has testified he beat her, and is on anxiety medication because of it), does not mean they’re going to sleep together [we see this in our times: if a woman told us she had a male roommate, we would not assume they were sleeping together]. She further points out the husband had been the one to introduce this Arab, he had lived with them when the husband was still in the apartment. 

Nor is it as new as we might think—Chatam Sofer (early 1800s) discussed a similar case, where a woman whose husband was on a lengthy journey took on a male boarder, leading to gossip and rumors they were having an affair. For all his distaste for the arrangement, Chatam Sofer ruled as doesTzitz Eliezer, since people do not realize yichud is a problem even without sexual intentions, the fact of yichud cannot be evidence of sexual activity.

Tzitz Eliezer therefore nullifies the Haifa court’s ruling, puts the woman back on even legal footing with her soon to be ex, and says the two should divorce, with the husband required to agree to all of her reasonable claims.

R. Ovadya Yosef Concurs

I don’t have space here, but Tzitz Eliezer appends a beautiful concurrence by R. Ovadya Yosef, with his surprise/dismay at the actions of the lower court.

It took time, but in these cases, the mistreated women found rabbis willing to stand up for them, even though they certainly did not live as the rabbis would have wanted.

About Gidon Rothstein

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