by R. Gidon Rothstein
Parshat Toledot, 5784: Even HaEzer 11, When a Woman Might Have Committed Adultery
A Mishnah in Sotah 27a grounds Aruch HaShulchan, Even HaEzer 11, this week’s chapter. R. Akiva, R. Yehoshu’a in the name of Zechariah b. HaKatzav, and Rebbe all agree about the import of the word ve-nitme’ah, she shall be rendered impure, for a woman who committed adultery, Bamidbar 5;29. It teaches us an adulteress may not stay married to her current husband nor marry the man with whom she had the affair (they differ on the derivation, with no impact on the halachah).[This is an idea I think many today do not realize, if a Jewish woman has an affair, she may not stay married to him, nor he to her, if he knows about it—we will talk about what “knows” means—nor may she marry the man with whom she had the affair.]
Where It Is Intractably Unknowable
The siman starts with a case from the time of the Temple. A husband who worried about his wife’s relationship with a certain man would be mekanei, warn her in front of two witnesses not to put herself in a position where it would be possible to consummate an affair with the man in question. If she then did—I’m not sure why she would, but tradition found it plausible–she and her husband may not have marital relations until she undergoes the sotah ceremony.
Sometimes she can’t. The husband might decide he doesn’t want her to drink (perhaps because he fears she will die, as the Torah seems to predict for an actual adulteress, or out of more negative emotions towards her, wanting to deny her the chance to prove her innocence). Or, she might refuse, for a variety of reasons, she might admit it, or one witness might say he saw the adulterers in the act.
In all such situations, she cannot stay with her husband, by Torah law, and therefore also may not marry the other man.
AH knows it may put the woman in an impossible spot. She may be swearing nothing happened, but if the husband decides he doesn’t want her to drink, AH thinks it’s part of what the Torah intended when it established the sotah procedure. Once he has warned her, and she violated the warning in front of witnesses, she drinks only if both agree, as Beit Shemuel said. (In saying so, AH rejected some authorities’ claim that if she wanted to, a court would force the husband to let her drink.) AH also favors the view of Mishneh LeMelech, from Tosafot Yevamot 95, if the husband said he did not want her to drink, he may not change his mind.
Without a sotah ceremony as a possibility, only two witnesses to consummation prove an affair, absolutely requiring a divorce. AH in se’if fourteen records Shulchan Aruch’s ruling that we require derishah ve-chakirah, a high level of interrogation of the witnesses, to ensure they are not lying. He also thinks one relative or invalid witness ruins the testimony of a whole group of witnesses, as in other cases. In se’if 15, AH says the husband and wife must be present for the testimony, as interested parties; were these witnesses to come after the woman already married the suspected adulterer, the new husband, too, would be an interested party.
Trying to Protect the Children
Sometimes, if a couple marries wrongly but have children by the time a court is involved, the court will let them stay together to avoid casting aspersions on the children’s lineage. Not in our case; since this woman may not stay with her husband by law, she similarly may not marry the presumed adulterer.
For an example of where we would let them stay together if there are children, we must bring up the issue of ki’ur. Ki’ur refers to deeply inappropriate activity between a married woman and some other man; examples from se’if four include yichud, they were alone together for sufficient time to have had marital relations and then people walked in on them getting dressed; witnesses see them coming out of a dark place, helping each other out of a pit, see them kissing, or going somewhere and locking a door. Se’if seven points out yichud does not require divorce, but does count as ki’ur.
Maharshal said the couple lying on top of each other is not ki’ur as long as they are clothed. In all this, adds AH, a husband would be lauded for being more careful than the strict legal rule.
Given the multitude of possibilities, AH says the definition of ki’ur is up to each judge, an explicit example of a lack of an absolute standard– they show she has been more involved with him than she should have been, so if the first marriage ends, she may not marry the other man, either.
The Vilna Gaon held that ki’ur obligates divorce, others disagree, but AH thinks even if the husband chose to divorce her, of his own free will, because she was seen in ki’ur circumstances, she may not marry the bo’el, the bad guy. Here, however, were they to already have children, we would not force a divorce, for the sake of the children’s reputation. (In se’if twelve, though, AH says that if they were warned before the marriage not to, and did it anyway, that doesn’t count as bedi’avad, after the fact, and we would still coerce a divorce. However, some acharonim were willing to be lenient where the only reason for them not to marry was to avoid rumors.)[Ki’ur also allows us to notice the prohibition of the woman staying with her husband was only if she had actual marital relations with someone else. There are a variety of improper forms of intimate activity she might commit with someone else, and halachah would not require a divorce, although for many of them, the husband would be encouraged to separate from her.
Where She May Not Marry the Adulterer Even if If She Was Allowed to Stay With the Husband
A couple more interesting examples, without being comprehensive: in se’if three, AH claims a woman who committed adultery with two men would not be allowed to marry either, even though the second affair had no impact on her marriage (it already had to end after the first affair). Tosafot Ketubbot 9a said that a man who knows he committed adultery with a woman must not marry her, regardless of whether the husband ever found out. (They mean the prohibition to the adulterer is a question of fact, irrespective of legal proof or ramification. Similarly, if a husband knows his wife had an affair, even without court-accepted proof, he may not stay married).
In a different circumstance, AH understands Yerushalmi to say should the woman have been a shogeget, which technically means she was not aware of what she was doing but to AH is halachically equivalent to her being raped [the example that comes to my mind is where she honestly thinks this is her husband], she can stay with her husband, but would not be allowed to marry the adulterer, since he knew what he was doing. Reverse the circumstances, she knew what was going on and he didn’t [he didn’t know she was married, for example], she may not stay with her husband and therefore not later marry him, either.
This wasn’t the only way to read the Yerushalmi and, regardless, Rosh Yevamot 6;6 thought normative practice would never prohibit her to the adulterer if she was permitted to the husband. Beit Shmuel raises the possibility a court might prohibit them from marrying as a way to uphold proper marital conduct, but in such situations might not force a divorce if the second couple already had children.
Se’if three gives a very surprising example of Rosh’s idea. A married woman who was raped need not divorce, because she is an innocent victim (unless her husband is a kohen, for reasons specific to the priesthood I’m going to leave for another time). Tosafot Shabbat 56a concluded she would then also be permitted to marry the rapist, should the first marriage end. [They don’t discuss why she might want to marry him. Whatever the answer, it’s an example of an idea I think too many people reject out of hand: rape means different things in different cultures, and a woman didn’t always view her rapist as too heinous to consider marrying.]
Se’if eight has one last example, if the husband divorced her for ki’ur, the suspected adulterer should not marry her even if she married someone in between. While we know the suspected affair did not produce a child, ki’ur with a (non-mandated) divorce precludes marriage to the presumed adulterer. Unless they’ve already married and have children, where our concern for the children lets them stay together, even according to those stringent in other examples.
AH adds, however, that if witnesses to the consummated affair ever come forward, she will have to leave the marriage to the adulterer, even if they have children.
The Role of Rumor
Se’if four expands our understanding of ki’ur and divorce, because it needs to be combined with persistent rumors about this affair, for at least a day and a half, spread by people not enemies to either of them (enemies work to keep negative information alive; the day and a half standard appears in the Gemara, an idea ripe for reconsideration in new cultures). Without rumors, we would not intervene to force a divorce from the possible adulterer, even if they have not yet had children, even if we have one witness who says he saw them in their affair when she was still married.
Se’if five, which I am skipping, gives a range of opinions on the interplay between ki’ur, rumor, when and whether one or the other is enough to obligate or recommend divorce, and the qualifications of the witnesses to any of these (AH thinks they need not be qualified to be witnesses in court). I’m skipping it because there is no clinching evidence for any view; it is a dispute among authorities awaiting a further ruling by some authoritative body. Ditto for se’if six, the question of whether edut meyuchedet suffices, where two witnesses saw an act of ki’ur, but only one witness for each act.
For a bit of a financial wrinkle, se’if 9 tells us wherever a court would require a man to divorce his wife because of the suspicion of infidelity, he need not pay her ketubah. If he chose to divorce her (with evidence, but not clinching evidence), he also has to give her the money she is owed.
More Marriages That Should Not Happen
Se’if 10 moves us to other marriages. Although widely ignored today, when a Jewish man or woman was suspected of being involved with a non-Jew, the couple was not supposed to marry even if the non-Jew became Jewish. AH points out this is only to avoid rumors of their prior entanglement, and therefore is not enough of a violation for a court to intervene with a divorce. Couples who aren’t supposed to marry should also not live near each other, we learn in se’if eleven, nor have regular interactions.
In se’if thirteen, we learn another surprising idea, AH thinks it an avon pelili, a serious sin, for a man to divorce his wife so she can marry someone else. To his mind, it was why the Torah prohibited remarrying a wife who had married someone in between, to avoid wife-swapping arrangements. (Which happens…)
A siman reminding us of the significance of adultery in Judaism, its continuing ramifications for the original couple, the adulterous couple, and the children of the marriages involving the couple.