The Guilt of the Slanderer and the Sotah: From Certainty to Uncertainty

The Assumed Guilt of the מוציא שם רע (Slanderer)

Parashat Ki Tetze includes the famous law of the slandering husband (מוציא שם רע; Deuteronomy 22:13–21). Like its traditional title, the law’s introduction reflects a strange and seemingly out-of-place premise: the husband is a liar.

The law begins:

^כב:יג כִּֽי יִקַּ֥ח אִ֖ישׁ אִשָּׁ֑ה וּבָ֥א אֵלֶ֖יהָ וּשְׂנֵאָֽהּ: ^כב:ידa וְשָׂ֥ם לָהּ֙ עֲלִילֹ֣ת דְּבָרִ֔ים וְהוֹצִ֥א עָלֶ֖יהָ שֵׁ֣ם רָ֑ע…

^22:13 A man marries a woman and cohabits with her. ^22:14a Then he takes an aversion to her and makes up charges against her and defames her…”^[1]

The trumped-up charges are:

^כב:ידb וְאָמַ֗ר אֶת־הָאִשָּׁ֤ה הַזֹּאת֙ לָקַ֔חְתִּי וָאֶקְרַ֣ב אֵלֶ֔יהָ וְלֹא־מָצָ֥אתִי לָ֖הּ בְּתוּלִֽים:

^22:14b …and he says: I married this woman; but when I approached her, I found that she was not a virgin.

The slanderer is promptly dispatched:

^כב:טו וְלָקַ֛ח אֲבִ֥י הַֽנַּעֲרָ֖ וְאִמָּ֑הּ וְהוֹצִ֜יאוּ אֶת בְּתוּלֵ֧י הַֽנַּעֲרָ֛ אֶל זִקְנֵ֥י הָעִ֖יר הַשָּֽׁעְרָה: ^כב:טז וְאָמַ֛ר אֲבִ֥י הַֽנַּעֲרָ֖ אֶל הַזְּקֵנִ֑ים אֶת בִּתִּ֗י נָתַ֜תִּי לָאִ֥ישׁ הַזֶּ֛ה לְאִשָּׁ֖ה וַיִּשְׂנָאֶֽהָ: ^כב:יז וְהִנֵּה ה֡וּא שָׂם֩ עֲלִילֹ֨ת דְּבָרִ֜ים לֵאמֹ֗ר לֹֽא מָצָ֤אתִי לְבִתְּךָ֙ בְּתוּלִ֔ים וְאֵ֖לֶּה בְּתוּלֵ֣י בִתִּ֑י וּפָֽרְשׂוּ֙ הַשִּׂמְלָ֔ה לִפְנֵ֖י זִקְנֵ֥י הָעִֽיר: ^כב:יח וְלָֽקְח֛וּ זִקְנֵ֥י הָֽעִיר הַהִ֖וא אֶת הָאִ֑ישׁ וְיִסְּר֖וּ אֹתֽוֹ:^כב:יט וְעָנְשׁ֨וּ אֹת֜וֹ מֵ֣אָה כֶ֗סֶף וְנָתְנוּ֙ לַאֲבִ֣י הַֽנַּעֲרָ֔ה כִּ֤י הוֹצִיא֙ שֵׁ֣ם רָ֔ע עַ֖ל בְּתוּלַ֣ת יִשְׂרָאֵ֑ל וְלֽוֹ תִהְיֶ֣ה לְאִשָּׁ֔ה לֹא יוּכַ֥ל לְשַׁלְּחָ֖הּ כָּל יָמָֽיו:

^22:15 In such a case, the girl’s father and mother shall produce the evidence of the girl’s virginity before the elders of the town at the gate. ^22:16 And the girl’s father shall say to the elders, “I gave this man my daughter to wife, but he has taken an aversion to her; ^22:17 so he has made up charges, saying, ‘I did not find your daughter a virgin.’ But here is the evidence of my daughter’s virginity!” And they shall spread out the cloth before the elders of the town. ^22:18 The elders of that town shall then take the man and flog him,^22:19 and they shall fine him a hundred [shekels of] silver and give it to the girl’s father; for the man has defamed a virgin in Israel. Moreover, she shall remain his wife; he shall never have the right to divorce her.

Up to this point, the passage never expresses even the possibility that the husband’s claim might be true — the case is clear: the husband lies, the elders consider the incriminating evidence, and he is punished.

Sudden Ambivalence: Maybe He Isn’t Guilty!

We might have expected this conclusion of the slanderer’s judgment to mark the conclusion of the whole law — after all, this is the law of the slanderer. Instead, this subcase follows:

^כב:כ וְאִם אֱמֶ֣ת הָיָ֔ה הַדָּבָ֖ר הַזֶּ֑ה לֹא נִמְצְא֥וּ בְתוּלִ֖ים לַֽנַּעֲרָֽ: ^כב:כא וְהוֹצִ֨יאוּ אֶת הַֽנַּעֲרָ֜ אֶל פֶּ֣תַח בֵּית אָבִ֗יהָ וּסְקָלוּהָ֩ אַנְשֵׁ֨י עִירָ֤הּ בָּאֲבָנִים֙ וָמֵ֔תָה כִּֽי עָשְׂתָ֤ה נְבָלָה֙ בְּיִשְׂרָאֵ֔ל לִזְנ֖וֹת בֵּ֣ית אָבִ֑יהָ וּבִֽעַרְתָּ֥ הָרָ֖ע מִקִּרְבֶּֽךָ:

^22:20 But if the charge proves true, the girl was found not to have been a virgin, ^22:21 then the girl shall be brought out to the entrance of her father’s house, and the men of her town 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.

This paragraph reflects a sudden change in perspective. No longer can we say that this is the law of the slandering husband, but it is rather the law of the suspected slanderer. With the introduction of the subcase, the passage has also become the law of the suspected premarital fornicator.

These two verses force us to read the entire law as though it were agnostic with regard to both the husband’s guilt and the wife’s innocence, in stark contrast to the simple sense of the first seven verses, which were written with a voice that considers only guilty husbands and innocent wives.

Had the law been written from a position of uncertainty regarding the legitimacy of the accusation, a more logical introduction would have been: “A man marries a woman and cohabits with her. Then he begins to spread rumors, saying…” The words “he takes an aversion to her and makes up charges against her” (22:14) do not comport with a guilt-agnostic law.

Two Stages in the Law’s Development

It is thus difficult to escape the impression that we have before us two stages in the evolution of this law. Initially, the law only dealt with husbands who circulated patently false rumors about their wives, despite the existence of compelling exculpating evidence. However, what came across as a presumption of the husband’s guilt troubled a later writer, and this individual proceeded to emend the law, adding an appendix to make it agnostic vis-à-vis the accuser’s culpability.

Bloodstains: Certainty in the Original Slanderer Law

But what made the original lawmaker decide to codify a law based on the presumption that the husband was a liar and that the woman was, in fact, a virgin at the time of marriage? Surely, this was not always the case. Perhaps the law was meant to apply only to cases in which a man slanders his wife and the community is certain of her “innocence.” In other words, this was not originally a law about what to do when a man spread rumors about his wife. Rather, this was a law about what to do when a man spread demonstrably false rumors about his wife — specifically, when a bloodied sheet was in evidence. If this understanding is correct, then we may paraphrase it as follows:

In the case of a woman whose virginity at the time of marriage was considered certain due to the presence of a bloodied cloth, and whose husband spreads false rumors about her, you should do the following…

In cases in which the woman’s virginity was not considered established, the law of the slanderer simply didn’t apply.^[2] This would explain how the lawmaker could state unequivocally: “And they shall spread out the cloth before the elders of the town,” rather than “should the family have proof to the contrary, they should bring it before the elders, etc.”

This reading, however, only underscores the incongruity of the final passage, which begins with: “But if the charge proves true.” If the law in verses 13–19 only deals with cases in which a woman’s virginity is considered established, then the possibility of her “guilt” is utterly moot — that’s a matter for a different law altogether.

Sotah: A Mirror-Image Law with Mirror-Image Redaction

Remarkably, this text and its apparent literary evolution has a perfect mirror-image in the law of the adulteress in Numbers 5:11–31. Several passages in that law appear to presume the truth of the husband’s charge, even though there were no witnesses to her alleged sin and, furthermore, her alleged assignation was explicitly “unbeknownst to her husband.”

^ה:יבb אִ֥ישׁ אִישׁ֙ כִּֽי תִשְׂטֶ֣ה אִשְׁתּ֔וֹ וּמָעֲלָ֥ה ב֖וֹ מָֽעַל: ^ה:יג וְשָׁכַ֨ב אִ֣ישׁ אֹתָהּ֘ שִׁכְבַת זֶרַע֒ וְנֶעְלַם֙ מֵעֵינֵ֣י אִישָׁ֔הּ וְנִסְתְּרָ֖ה וְהִ֣יא נִטְמָ֑אָה וְעֵד֙ אֵ֣ין בָּ֔הּ וְהִ֖וא לֹ֥א נִתְפָּֽשָׂה: ^ה:ידaוְעָבַ֨ר עָלָ֧יו רֽוּחַ־קִנְאָ֛ה וְקִנֵּ֥א אֶת אִשְׁתּ֖וֹ וְהִ֣וא נִטְמָ֑אָה…

^5:12b If any man’s wife has gone astray and broken faith with him, ^5:13 in that a man has had carnal relations with her unbeknown to her husband, and she keeps secret the fact that she has defiled herself without being forced, and there is no witness against her — ^5:14a but a fit of jealousy [perhaps better: zealotry] comes over him and he is wrought up about the wife who has defiled herself…

Like the law of the slanderer, this dictum begins with a clear-cut assessment of guilt and innocence, though this law’s point of departure is diametrically opposed to that of the slanderer: here, the husband’s allegation is self-evidently true, and it is the wife’s guilt that is taken for granted. Nothing in this introduction allows for the possibility that the husband might be mistaken, let alone dishonest, in his accusations. Rather, the woman has “gone astray,” “broken faith” with her husband,” “had carnal relations” with another, and willingly “defiled herself.” This is why the second half of verse 14 is so jarring:

^ה:ידb אוֹ עָבַ֨ר עָלָ֤יו רֽוּחַ קִנְאָה֙ וְקִנֵּ֣א אֶת אִשְׁתּ֔וֹ וְהִ֖יא לֹ֥א נִטְמָֽאָה:

^5:14b …or if a fit of jealousy/zealotry comes over one and he is wrought up about his wife although she has not defiled herself.

This half-verse appears to come out of the blue and reads more like a redactional supplement than a natural part of the introduction. Many other sections in this passage contribute to the sense that the woman’s guilt is never in question:

• The offering is described in verse 15 as a “remembrance of sin” (מַזְכֶּרֶת עָוֹן).
• The supernatural potion is referred to as “the cursing waters” (5:18, 19, 22, 24, 27.)
• The woman is shamed by having her hair exposed and/or disheveled (וּפָרַע אֶת רֹאשׁ הָאִשָּׁה), before any determination of guilt has been made (5:18).
• The priest administers curse of adjuration” (שְׁבֻעַת הָאָלָה) to the woman.
• The law concludes with a summary:

^ה:לb וְהֶעֱמִ֤יד אֶת הָֽאִשָּׁה֙ לִפְנֵ֣י יְ-הֹוָ֔ה וְעָ֤שָׂה לָהּ֙ הַכֹּהֵ֔ן אֵ֥ת כָּל הַתּוֹרָ֖ה הַזֹּֽאת:^ה:לא וְנִקָּ֥ה הָאִ֖ישׁ מֵעָוֹ֑ן וְהָאִשָּׁ֣ה הַהִ֔וא תִּשָּׂ֖א אֶת עֲוֹנָֽהּ:

^5:30b The woman shall be made to stand before Yhwh and the priest shall carry out all this ritual with her. ^5:31 The man shall be clear of guilt; but that woman shall suffer for her guilt.

Taken together, these passages give the distinct impression that they derive originally from a ritual punishment of a sinner, and not a ritual ascertainment of possible sin.^[3]

Signs of Redaction

In addition, this passage contains several telltale signs of literary stratification:

• The woman drinks twice, once in verse 24 and once in verse 27. (The end of verse 26 — “and afterward shall make the woman drink the water” — is likely an attempt to reconcile the difficult chronology.)
• The woman is adjured twice, once in verse 19 and once in verse 21.
• Making matters worse, the first adjuration lacks a conclusion and is impossibly intertwined with the second adjuration.^[4]

It seems as though the law of Numbers 5 in its original incarnation dealt with a case of a man who accuses his wife of adultery, despite the lack of witnesses, and his allegation is taken as fact. This is in contrast to the corresponding law from the Code of Hammurabi (§131), which seems tame by comparison:

If her husband accuses his own wife (of adultery), although she has not been seized lying with another male, she shall swear (to her innocence by) an oath by the god, and return to her house.

Is Pregnancy the Reason for the Certainty in the Original Sotah Law?

Why is the man’s claim in Numbers 5 considered implicitly true, despite the overt lack of evidence? Some have plausibly speculated that his claim was not merely that she had slept with another man, but that she was pregnant, and he claimed that the child could not be his. This sort of claim was considered a priori compelling, and inherently more reliable than a generic accusation of marital infidelity. This may also explain the description of the cursing water’s effect: “her belly shall distend and her thigh shall sag.”^[5]

Even so, it is easy to see why such a law might have been considered problematic by a later writer. After all, husbands are perfectly capable of lying about their wives, as illustrated so colorfully in Ki Tetze’s law of the slanderer.

Summary: Two Similar Redactions of Contrasting Laws

We have seen two cases of literary-legal evolution:

• In each case, what began as a description of a sin and its punishment evolved into a depiction of a legal determination of alleged sin.
• Both involve a man accusing his wife of fornication — premarital in one case and marital in the other.
• One originally presumed that the husband’s claims were truthful and correct, whereas the other initially didn’t address even the possibility of their truthfulness.
• Both may have been supported by weak evidence that was considered sufficient — pregnancy in the first and a bloodstained cloth in the other.
• Both laws in their canonical forms have morphed to become entirely impartial with regard to the husband’s claims, in stark contrast to their original respective forms. In Numbers 5, the law evolved from the case of the adulterous wife into the case of the suspected adulterous wife. By a similar token, the law of Deuteronomy 22 transformed from the case of the slanderer into the case of the suspected slanderer.
• In both cases, the later version reflects a more equitable point of departure, though in neither case can the outcome be said to be egalitarian.

The Remaining Lack of Equality

It is worth reflecting on this last point, especially the lack of symmetry — both aesthetic and ethical — between man and woman in the biblical text. The dishonest man in Deuteronomy 22 is flogged, fined and forced to keep his wife, and the lying husband in Numbers 5 is not punished at all — a far cry from the penalties looming over the heads of their wives. Furthermore, a married man who had relations with an unattached woman other than his wife was well within his rights, whereas his own wife would have been put to death for extramarital (heterosexual) relations of any description.

Post-Biblical Improvements

The lack of equity in the biblical Sotah law was not lost on its readers, motivating its continued metamorphosis in post-biblical Jewish law. For one, the rabbis promptly brought her paramour — conspicuously absent in Numbers 5 — into the picture, and he was said to suffer the same fate as she.^[6] In addition, the Sotah rite was only performed if the husband had previously cautioned his wife in front of witnesses against ensconcing herself with the object of his suspicions, after which she was seen doing just that.^[7] These and other interpretive developments did not suffice, and it wasn’t long before the rabbis abolished the law outright.^[8]

Meanwhile, the law of the slanderer evolved in Jewish interpretation to deal specifically with relations between a betrothed woman and another man, and not a mere case of premarital sex.^[9] Thus, the terrible punishment of stoning became reserved for adultery and not promiscuity.

We have now seen how two biblical laws involving allegations of uxorial sexual impropriety mutated and evolved in seeming lockstep — both before and after the canonization of the written Torah. Surely, these millennia-old processes of transformation have not yet reached their conclusion.