THE TRIAL BEFORE GOD OF AN ACCUSED ADULTERESS
by Tikva Frymer-Kensky
Take from the Fall 1986 "Bible Review"
In the Book of Genesis, when Adam sees Eve, he immediately
says "This is now bone of my bones and flesh of my flesh"
(Genesis 2.23). The narrator adds, "Therefore shall a man leave
his father and his mother and shall cleave now his wife, and they
shall be one flesh" (Genesis 2:24). In this statement, Genesis
gives religious sanction to the monogamous nuclear family.
Although this form of family has endured to modem times, and
shows no sign of disappearing despite divorces, remarriages and
blended families, it is not the only possible form of marriage.
In fact, it is not the only kind of marriage known in the
biblical world, for both the patriarchs and the kings of Isiael
had more than one wife. The announcement of the monogamous family
in Genesis and the projection of its origin to the very beginning
of humanity, was a revolutionary rather than a conservative act.
Israel did not invent the monogamous family, but it did
consider it the central human mating form, and its laws of
marriage seek to preserve it. Prime among these laws are the laws
against adultery.
The anthropologist Yehudf Cohen has conducted a study to
determine which cultures (like ancient Ismel) prescribe the death
penalty for adultery. He found that societies he calls
"inchoate incorporative societies" regularly prescribe the death
penalty for adultery. Inchoate incorporadve societies are these
in the process of peacefully forming into larger social units -
for example, from tribes or local govemments into nation-states.
Such societies have a vested interest in protecting the nuclear
family. It is not hard to understand why they prescribe the death
penalty for adultery. If a state needs to weaken the extended
family structure of a tribal society, it needs to strengthen the
nuclear family, which is the natural enemy of the extended
family. As any mother-in-law will tell you, the stronger the bond
between husband and wife, the weaker their ties to their parents.
Similarly, if a state needs to weaken the local authorities,
it again needs to srengthen the nuclear family, which is mobile
and can be attracted to different areas, thus weakening local
affiliations. Since the nuclear family never comes into boundary
conflict with the emerging central state, it is also natural
ally, and the state will seek to preserve the nuclear family by
stringently forbidding adultery.
Israel'ss historical development from tribal units to a
unified monarchical state provides the natural background for
its harsh treatment of adulterers.
Although Israel prescribed the death penalty for adultery
(Lev.20:10); Deut. 22:22), it was IMPOSED ONLY for a couple found
in FRAGRANTE DELICTO, i.e., in the act. Most cases of adultery
are not discovered this way.
Moreover, people rarely engage in sexual intercourse in the
presence of two witnesses, yet Israel required the testimony of
two witnesses for conviction (Deut.19:15). Israel nevertheless
could not ignore adultery which was not susceptable to such
strict proof. The existence of the death penalty - whether or not
it is actually imposed - indicates how serious a crime Israel
considered adultery. An accusation or a suspicion of adultery
therefor raised a serious dilemma in Israelite society. You
couldnt ignore it, and you couldn't prove it. The legal system
would seem to have been stymied.
When a legal system runs up against this type of impasse, it
may resort to what can be called a suprarational trial, in which
the gods (or God) are asked to help resolve the issue. One
infamous example is the trial by ordeal in which people are
submitted to some fort of rest that has nothing to do with the
crime of which they are accused. The test can be physical: People
are required to plunge their hands into boiling water or are
thrown into a river or are required to touch hot iron or to walk
over coals or to swallow a potion. These examples are clearly
dangerous; but other tests, such as those involving floating in a
river or swallowing a mouthful of rice, do not involve a serious
risk to life. In all cases, however, the principle is the same:
The bodily reaction of the accused to the physical test is taken
as an indication of guilt or innocence.
Each culture that has used these trials by ordeal has had
its own favored form of test. In medieval Europe, the preferred
trial was by boiling water (although other forms were known). In
this test, called the "Kesselfang," the accused plunged his or
her hand into a kettle containing boiling water and withdrew
something. The hand was then bandaged.
If after three days, the hand was either unharmed or clearly on
the mend, the accused was declared innocent. In Africa, the
preferred trial was by drinking a potion. In some areas, you were
declared guilty if you vomited; in other areas, you were guilty
if you became seriously ill. In the ancient Near East, the
preferred form of trial by ordeal required the accused in jump
into a river. If innocent, he or she would float or swim (we are
not sure which); if guilty, he or she would sink. When the river
ordeal was used in medieval Eumpe, the guilty party was expected
to float and the innocent in sink.
In legal terms, the outcome of trials was determined by the
god's demonstrating the guilt or innocence of the accused. The
god was not the judge in our modem sense of the word in that the
god did not punish the accused, i.e., did not pronounce the
sentence. In the the "Kesselfang," for example, the burnt hand
was not the punishment for the crime; after seeing that the hand
was burnt, the human court would then decide the appropriate
punishment In the potion ordeal, the concoction drunk was rarely
fatal; in the few caws in which it was a potentially fatal potion
(when used to test capital crimes), the court would move to
execute the offender before the potion could kill. In ancient
Hatti, when an accused sank in the river, he was taken out and
brought to another city to be executed. In short, the trial was
not the sentence; that was imposed by the human judge. The ordeal
was the jury decided guilt or innocence, and, in fact, jury
trials were invented in order to replace trials by ordeal.
It is difficult to understand exactly why these ordeals
worked. Some of the tests, such as touching hot iron, would seem
to be impassable. And yet, we have a register of ordeals from the
town of Varad, Hungary, that recorded hot-iron trials in which
more people were acquitted than were convicted. Modern scholars
at first suspected fraud, blaming the priests for changing the
potion, etc. Now, however, we are beginning to think that ordeals
work by indirectly measuring fear. Fear can alter the surface
temperature of the skin, and it can certainly affect whether
people can vomit and whether they can float. In this, trials by
ordeal may resemble a polygraph (lie detector), which seeks to
assess truth or falsehood by measuring physical reactions on a
chart. In one respect, it did not if the tests were not 100%
accurate: The important task was to get a legal decision so that
the question of guilt or innocence could be resolved, and the
threat to the stability of the community removed.
Societies did not lightly impose trials by ordeal. They
could be used to settle serious property offenses in which large,
powerful groups were involved, or they could be used to settle
accusations of crime in which it would be intolerable for a
society not to have a decision. The most prominent of these
crimes were adultery and witchcraft. Witchcraft, like adultery,
was seen as a danger to all society. A witch could strike at
anyone at anytime because he or she (usually she) possessed
powers that were inherently dangerous. Just as you cannot allow
individual citizens to possess nuclear weapons, so you could not
allow someone to possess the powers of witchcraft. But, again,
like adultery, witchcraft is rarely committed publicly (as
opposed to state sanctioned "licensed" magic); furthermore, the
witch is dangerous not only because of what she has done, but
also because of what she is potentially able to do. Societies
that believe in witchcraft do not want to wait to prosecute until
after specific acts have been committed: Being a witch is itself
a crime. Witchcraft and adultery are thus the two major criminal
occasions for trial by ordeal.
In the biblical world, accusations of witchcraft and
adultery were often resolved by the river ordeal. The Laws of
Hammutabi specify that someone accused of witchcraft should jump
into the river (laws of Hammumbi [LH] 2). If the person was
convicted by the river (conceived of as a divine being), then the
accuser would inherit his estate; if acquitted, the accuser would
be put to death. Similarly, when a woman was publicly accused of
adultery, she jumped into the river (LH 132). These ordeals are
not unique in the Code of Hammurabi: Similar laws existed in the
laws of Ur Nammu and in the Middle Assyrian laws (however, only
for adultery and adulterous situations). The river ordeal was a
consistent element of Mesopotamian legal systems from the third
through the first millennium B.C. It was used at various periods
to settle property offenses as well, and in resolve accusations
of treason, murder and grievous theft.
The Bible does not provide for a river ordeal. Although
witchcraft was clearly forbidden on pain of death, we do not know
what form of trial was used to resolve accusations of witchcraft.
The procedure for trying the suspected adulteress, however,
is preserved in Numbers 5:11-31. This is not a legal passage, but
rather the description of a judicial ritual included in a
description of a group of priestly rituals. The passage is very
technical, full of terms that are not found elsewhere in the
Bible, and written in a dense, complicated manner. Earlier
generations of biblical scholars devoted their efforts in trying
to unravel what they believed to be two originally separate
strands that an editor later combined. Now, however, as a result
of our increasing familiarity with ancient scribal techniques, we
can see the structure of the passage as a unified whole.
The passage provides that when a husband becomes suspicious
of his wife, he can impose a judicial procedure on her. He is to
bring her tp the priest; the passage in Numbers informs the
priests as to precisely what they are to do in that event. The
husband is in bring the meal-offering; the woman must hold it
during the procedure, and the priest offers it to the Lord. At
the same time, the priest prepares a potion by putting dust from
the floor of the tabernacle into an earthenware bowl full of holy
water. The priest then holds this bowl, adjures the woman that if
she is innocent the water will not harm her, but if she is guilty
the water will cause grievous damage to her reproductive system
(causing "her belly to swell and her thigh to fall"). The priest
puts this adjuration into writing. He places the writing in the
holy water, where the adjuration is dissolved. He then gives this
dusty, holy water to the woman to drink. She may then go home.
That is end of the procedure.
What kind of procedure is prescribed here? The fact that the
woman drinks a potion has led many scholars to look for parallels
to the potion ordeals of Africa. However, if we look carefully,
there is no hint of an ordeal in this potion procedure in Israel.
The adjuration of the priest announces that the potion will try
her, but there is no provision given for ascertaining whether she
is in fact guilty. On the contrary, the passage ends the
description of the procedure with the drinking of the potion,
and signals that the procedure has reached its end by a closing
summation that this is the law of "jealousy" when a husband
suspects his wife.
The passage concludes with the statement, "The man shall be
free from punishment, and the woman will bear her punishment."
Even if the wife turns out to be innocent, the husband will not
be liable to charges of false accusation, for it is a husband's
right (and perhaps even duty) to accuse his wife and bring her to
trial if he suspects her of adultery. If, on the other hand, the
wife is not innocent, she is to "bear her punishment," a
technical term meaning that she will be punished in due time by
God and that she is not to be punished by society.
The divine punishment that the woman is to bear has been the
subject of much speculation. "Swelling of belly" and "dropping
of thigh" clearly refer to the reproductive organs. Since the
woman is told that she will bear seed if she is innocent. Guilt
must mean damage to the reproductive system, and perhaps the
most likely explanation for the term is that she will suffer a
prolapsed items in which the uterus falls through the pelvic
floor, either to lodge in the vagina, or actually to fall out,
when it would swell up like a balloon. This condition would mark
the end of a woman's s procreative life.
Such a result was not expected to be instantaneous. If it
were, we would expect a detailed descriptive ritual text like
this to include an instruction to the priest to bring her down
from the altar to deliver her to the people. We would also expect
some provision for her execution as an adulteress, or some ritual
for readmitting an acquitted woman to the community. However, the
text ends with the drinking of the potion, and the specification
of the ultimate alternative outcomes of pregnancy or of disaster
to the reproductive system. This indicates that the drinking of
the water did not immediately indicate guilt or innocence, which
would allow the offender to be punished by society as in the case
of true ordeals. In the biblical ritual, society has nothing to
do with the punishment, punishment is to be meted out by the
divine. The waters themselves, through th agencyof the divine
sanction, were to punish the guilty, society is to await divine
punishment, rather than to act itself.
The ritual procedure detailed in Numbers 5:11-31 is a solemn
judicial oath accompanied by a dramatic act of potion-drinking.
Like all oaths, it takes the case out of human hands and places
it in God's hands, in effect transferring it to a higher court,
thereby freeing society from the need to resolve the legal
dilemma. In terms of human action, this means that Israel was not
required to find out whether adultery had been committed. It
could bring the case before God and then go on with is business,
assured that Israel's legal system had done its job and
that society would not be held responsible for the adultery in
its midst. Israel could wait to find out what had actually
happened: full proof of innocence would come with the pregnancy
of the woman; full proof of guilt would come from the disaster,
possibly uterine prolapse. Judgment would be held in abeyance
until one thing or the other happened.
Speaking from our perspective, this oath procedure enabled
marriages to survive the suspicion of adultery, for in a
situation in which the woman could never prove herself innocent
by any rational means, she was given a divine way to clear the
charges against her. If she drank the potion while acceding to
the adjuration, she could then resume marital life, and society
would be expected to accept her willingness to drink as a sign of
innocence, or at the very least to withhold judgment until the
divine verdict manifested itself.
The Mishnah* (tractate Sotah 22 records that during the days
of the Second Temple (before 70 AD.), the priest poured water
from a laver and then took dust from underneath a slab that was
found to the right of the entrance to the sanctuary to use in the
potion.
According to this source, the biblical passage describing
the ritual was inscribed on a golden tablet that hung on the wall
of due sanctuary facing the outside, The golden tablet, we are
told, had been dedicated by Queen Helena of Adiabene. Such
details indicate that during Second Temple period the machinery
was in readiness to perform this trial. However, only one
recollection of such a trial is preserved in rabbinic sources,
and this in a confused transmission. The Mishnah added many
restrictions that had to be met before the trial could be held,
and if these in any way reflect Second Temple practice, the trial
was very rare.
In both the biblical passage and the Mishnaic recollection,
the trial is a priestly matter, it is closely tied to the Temple;
the Temple is the place where God's judgment is to be sought. It
is not surprising that the trial was abolished after the
destruction of the Second Temple when the sacrificial system and
other aspects of temple ritual came to an end. The demise of the
trial is recorded in the Mishnah (Sotah 9.9), which states that
Yohanan ben Zakkai abolished the trial when there were simply too
many adulteresses.
.......
The technical studies on which this arcile are based can be found
in Tikva Frymer-Kensky, "The Judicial Ordeal in the Ancient Near
East" (forthcoming) and "The Strange Case of the Suspected Sotah
(Numbers 5:11-31," Veus Testamentum 34 (1984), pp.11-26.
The Mishnah is the body Jewish oral law, specifically, the
collection of oral laws compiled by Rabbi Judah the Prince in the
second century A.D.
.....................
Entered on this Website April 2008
NOTE:
Many have not understood this law of ordeal as instituted in
Israel under Moses. This study and explanation makes it clear
that it was not a law that had some kind of instant answer of
either "good" or "bad" results. It shows that the jusgment was
given over to God, and His answering judgment would come in His
time. As the author states, Israel could them get on with life.
It is a law that had a much different application with God than
the pagan nations around that had a twisted and often openly
cruel administration of the law of ordeal.
Keith Hunt
