The Torah flip-flops when it comes to justice for an innocent bride (Ki Tetze)
In last week’s Torah reading, Parshat Shoftim, the Torah establishes a paradigm of justice when it declares:
וְדָרְשׁ֥וּ הַשֹּׁפְטִ֖ים הֵיטֵ֑ב וְהִנֵּ֤ה עֵֽד־שֶׁ֙קֶר֙ הָעֵ֔ד שֶׁ֖קֶר עָנָ֥ה בְאָחִֽיו׃
and (should) the judges investigate thoroughly and behold the one who testified is a false witness, having testified falsely against his brethren,
וַעֲשִׂ֣יתֶם ל֔וֹ כַּאֲשֶׁ֥ר זָמַ֖ם לַעֲשׂ֣וֹת לְאָחִ֑יו וּבִֽעַרְתָּ֥ הָרָ֖ע מִקִּרְבֶּֽךָ׃
You shall do to him as he had plotted to have done to his brethren. Thus you will eliminate evil from your midst;
Devarim/Deuteronomy 19:18-19
Hence, if an innocent defendant would have been punished by lashes, the perjuring witness gets a lashing. If the innocent defendant would have been executed, their accuser would be executed in an identical manner. This would indeed be a most effective deterrent to offering false testimony.
Who can argue with the appropriateness of consigning a perjuring witness to a fate identical to the one which the falsely accused would have met had the malicious testimony stood unchallenged?
But then we come to this week’s parsha, Ki Tetze, and we find a glaring example of the Torah violating this very principle in the case of a bridegroom who has buyer’s remorse and therefore accuses his newlywed bride of having been a non-virgin.
כִּֽי־יִקַּ֥ח אִ֖ישׁ אִשָּׁ֑ה וּבָ֥א אֵלֶ֖יהָ וּשְׂנֵאָֽהּ׃
A man takes a wife and cohabits with her, and dislikes her
וְשָׂ֥ם לָהּ֙ עֲלִילֹ֣ת דְּבָרִ֔ים וְהוֹצִ֥א עָלֶ֖יהָ שֵׁ֣ם רָ֑ע וְאָמַ֗ר אֶת־הָאִשָּׁ֤ה הַזֹּאת֙ לָקַ֔חְתִּי וָאֶקְרַ֣ב אֵלֶ֔יהָ וְלֹא־מָצָ֥אתִי לָ֖הּ בְּתוּלִֽים׃
and concocts charges against her and defames her, saying, “This is the woman I took as a wife; but when I approached her, I found that she was not a virgin.”
Devarim 22:13-14
In this situation, should the husband’s accusation prove true:
וְהוֹצִ֨יאוּ אֶת־הַֽנַּעֲרָ֜ אֶל־פֶּ֣תַח בֵּית־אָבִ֗יהָ וּסְקָל֩וּהָ֩ אַנְשֵׁ֨י עִירָ֤הּ בָּאֲבָנִים֙ וָמֵ֔תָה כִּֽי־עָשְׂתָ֤ה נְבָלָה֙ בְּיִשְׂרָאֵ֔ל לִזְנ֖וֹת בֵּ֣ית אָבִ֑יהָ וּבִֽעַרְתָּ֥ הָרָ֖ע מִקִּרְבֶּֽךָ
The young woman shall then be brought out to the entrance of her father’s house, and her townsfolk shall stone her to death; for she did a shameful thing in Israel, committing fornication while under her father’s authority. Thus you will sweep away evil from your midst. (19:21)
Based on what we learned in Parshat Shoftim, if the bride has been falsely accused then her husband should suffer the same fate, i.e. be stoned to death at the entrance to her father’s house.
And yet this is not the case at all. If the bride’s father and mother can produce evidence that their daughter had indeed been a virgin, and that the husband to whom they had married her off just did not like her in bed:
וְלָ֥קְח֛וּ זִקְנֵ֥י הָֽעִיר־הַהִ֖וא אֶת־הָאִ֑ישׁ וְיִסְּר֖וּ אֹתֽוֹ׃
The elders of that town shall then take that man and flog him,
וְעָנְשׁ֨וּ אֹת֜וֹ מֵ֣אָה כֶ֗סֶף וְנָתְנוּ֙ לַאֲבִ֣י הַֽנַּעֲרָ֔ה כִּ֤י הוֹצִיא֙ שֵׁ֣ם רָ֔ע עַ֖ל בְּתוּלַ֣ת יִשְׂרָאֵ֑ל וְלֽוֹ־תִהְיֶ֣ה לְאִשָּׁ֔ה לֹא־יוּכַ֥ל לְשַׁלְּחָ֖הּ כׇּל־יָמָֽיו׃
and they shall fine him a hundred [shekels of] silver and give it to the young woman’s father; for [that man] has defamed a virgin in Israel. Moreover, (the bride) shall remain his wife; he shall never have the right to divorce her. (22:18-19)
Remarkable! Instead of being stoned to death – as his bride would have been – the husband gets 39 lashes plus a hundred shekel fine, and must keep this wife forever. (We can only wonder why the bride would consider it a victory if she is now stuck in this marriage for life.)
One might wish to draw parallels between the injustice here and a seemingly similar situation regarding a Sotah, a wife whose husband suspects of infidelity (Bamidbar/Numbers 5).
In the case of Sotah, the suspected wife is given to drink a toxic beverage. If her huband’s suspicion is without merit, then this drink has no effect, her fertility is assured, and her husband must remain married to her forever.
In the case of Sotah we might fairly ask why the husband’s guts do not explode if his suspicion proves to have been without merit, and why the marriage not only resumes, but does so with no option ever of divorce.
On closer study, the case of the bride accused of having not been a virgin is very different from that of the Sotah.
Regarding Sotah, the wife is not forced to drink that beverage. She can simply refuse to do so. In such a case the marriage is terminated and her only punishment is that her husband does not pay the sum stipulated in her ketubah were this a normal divorce.
Hence it is clear that if the wife agrees – of her own free will – to drink that toxic water:
- She knows she is innocent
- She loves her suspicious husband and desires to remain married to him in perpetuity.
Unlike the case of the newlywed bride, the unchallenged suspicion of the Sotah’s husband is not false testimony. And his intention is not (necessarily) to see his wife die, but merely to allay his concerns regarding her behavior.
Moreover, it is clear from Sotah that any wife who wants to wriggle out of a marriage has only to give husband grounds to suspect her of infidelity, in which case he will bring her to the kohen. She will then simply reject the verification process and, voila, she gets to walk out of a bad marriage scot free, something a Jewish wife can never get to do on her own otherwise.
