Adultery

Woman's Rights Enforced.

Sexual intercourse of a married woman with any man other than her husband. The crime can be committed only by and with a married woman; for the unlawful intercourse of a married man with an unmarried woman is not technically Adultery in the Jewish law. Under the Biblical law, the detection of actual sexual intercourse was necessary to establish the crime (Lev. xviii. 20 [A. V. 19]; Num. v. 12, 13, 19); but this rule was so far modified by the Talmudic law, that circumstantial evidence was sufficient to justify legal procedure if the wife had been cautioned by her husband against intimate association with the suspected man (Soṭah, i. 2). When the Adultery is committed with a married woman who is within the prohibited degrees of consanguinity or affinity, the crime becomes Incest. Although the common opinion of mankind is more inclined to condone the Adultery of the husband than that of the wife, modern law has ignored the distinction between the two crimes, and technically they are alike. But the ancient Jewish law, as well as other systems of law which grew out of a patriarchal state of society, does not recognize the husband's infidelity to his marriage vows as a crime, and it was not until comparatively recent times that the woman was legally entitled to enforce her husband's faithfulness, and was given the right to demand a bill of divorce for his sexual immorality (Isserles on "Eben ha-'Ezer," § 154, 1). The sin of concubinage is, however, already severely condemned in Leviticus Rabbah, xxv.

Site of the Ancient City of Adullam.(By permission of the Palestine Exploration Fund.)

Although in ancient society and law Adultery was regarded as a private wrong committed against the husband, public law later on exercised control of its investigation and punishment; for organized society was impossible unless it punished this crime, which saps the very root of the social life. "Thou shalt not commit adultery" is not merely a command not to tamper with the domestic affairs of another, but a warning to refrain from unsettling the foundations of society.

Sacredness of Marriage Relation.

The law, therefore, sought to guard the sacredness of the marriage relation by moral injunction and by legal restraints. In patriarchal times the purity of marriage was pictured as jealously guarded (see the cases of Sarah and Rebekah; Gen. xii. 18, 19, xx. 2-7, xxvi. 10, 11). The Biblical and Talmudical ideal of marriage had a strong influence in controlling those who were susceptible to purely moral influence and suasion. "Therefore shall a man leave his father and his mother and shall cleave unto his wife, and they shall be one flesh" (Gen. ii. 24). The woman is made sacred by the ceremony of ḳiddushin, and is thereby set apart for her husband alone (Ḳid. 2b). Idolatry, murder, andgilluy 'arayot (which comprises both incest and adultery) are three crimes never to be committed under any circumstances, and a man should sacrifice his life rather than commit them (Sanh. 74a). This was the decision of the rabbis at the meeting at Lydda, during the Hadrianic Revolt (see Graetz, "History of the Jews," ii. 422-424.) Thus law and morality went hand in hand to prevent the commission of the crime. For those, however, who were deaf to warnings of law and reason, the punishment of death was ordained. Both the guilty wife and her paramour were put to death (Deut. xxii. 22).

Unlawful intercourse with a woman betrothed to a man was adultery, because the betrothed woman was deemed as inviolable as the married woman. The punishment for this crime was stoning to death at the place of public execution (Deut. xxii. 24). The punishment for Adultery according to the Mishnah (Sanh. xi. 1) was strangulation; the rabbinical theory being that wherever the death penalty was mentioned in the Bible, without any specific statement of the manner of its infliction, strangulation was meant (Sifra, Ḳedoshim, 4, 9).

The priest's daughter who committed Adultery was burned to death, according to the rabbinical interpretation of the text in Lev. xxi. 9 (Sanh. 66b), and her paramour was strangled (Maimonides, "Yad ha-Ḥazaḳah, Issure Biah," iii. 3). When the crime is committed with a bondmaid betrothed to a man, it is not Adultery technically, because the woman is not free, and the death penalty is not inflicted, but as she has a quasi-marital status, she and her paramour are scourged (Lev. xix. 20). Ibn Ezra (ad loc.) takes the view that this case refers to the Hebrew maiden who has been sold by her father and who is intended to be the bride of her master or of his son, but who is not yet betrothed; for the betrothal would have made her free ipso facto.

Talmudic View.

Under the Talmudic law the severity of the Mosaic code was in many instances modified, and the laws relating to Adultery came under the influence of a milder theory of the relation of crime and punishment. Indeed, the rabbis went so far as to declare that a woman could not be convicted of Adultery unless it had been affirmatively shown that she knew the law relating to it—a theory that resulted in the practical impossibility of convicting any adulteress. No harm was done by this new view, because the right of divorce which remained to the husband was sufficient to free him from the woman, who, although guilty of the crime, was not punishable by the law. Upon this mild view followed the entire abolition of the death penalty, in the year 40, before the destruction of the Second Temple (Sanh. 41a), when the Jewish courts, probably under pressure of the Roman authorities, relinquished their right to inflict capital punishment. Thereafter, the adulterer was scourged, and the husband of the adulteress was not allowed to condone her crime (Soṭah, vi. 1), but was compelled to divorce her, and she lost all her property rights under her marriage contract (Maimonides, "Yad ha-Ḥazaḳah, Ishut," xxiv. 6); nor was the adulteress permitted to marry her paramour (Soṭah, v. 1); and if she married him, they were forced to separate.

Exceptions.

The right of the husband to divorce his wife at his pleasure was a sufficient protection for him in case his wife was guilty of the crime of Adultery, even if he had no proof of it, but merely suspicion founded on circumstantial facts. If the wife had committed unlawful intercourse against her will, or if she had mistaken the adulterer for her husband, she was not guilty of Adultery, because she did not act as a free agent. The usual punishments are not inflicted in such cases, and the legal consequences of Adultery do not follow (Ket. 51b). Such crime is no cause for divorce, except if the woman be the wife of a priest. The priest is not allowed to keep her because of the peculiar sanctity of his office, which requires the highest degree of domestic purity (Yeb. 56b).

Guilt Tested by Ordeal.

As "the eye of the adulterer waiteth for twilight, saying, No eye shall see me" (Job, xxiv. 15), Adultery is a crime usually difficult of proof, and the Biblical code contained provision for the case of the woman who was suspected of Adultery by her husband. Moved by the spirit of jealousy, he brought her before the priest in the sanctuary, and she was there obliged to undergo the severe "ordeal of the bitter waters." A full account of the details of this ordeal is given in Num. v. 11-31; these details may also be found amplified in the Mishnah. The suspected woman was taken to the local court by her husband and there his charge was made. The court assigned two doctors of the law to escort the parties to the Great Sanhedrin at Jerusalem. The purpose of the hearing before the Sanhedrin was to evoke a confession. The Sanhedrin appealed to the woman and suggested various causes that might have induced her to go astray, and finally asked her to confess. If she admitted her crime, she was divorced from her husband at once and lost her property rights under her Ketubah. But if she denied it, she was taken to the East Gate of the Temple, in front of the Nicanor Gate, and there was placed in charge of a priest, who performed the ceremony mentioned in the Book of Numbers. He rent her garment so that her breast was exposed, and loosened her hair; she was draped in black; all ornaments were removed from her person, and a rope was tied around her chest. Thus publicly exposed (only her servants being prevented from seeing her), the jealousy-offering was placed in her hands. It was a humble offering of barley meal, without oil or incense upon it, the feed of beasts, typifying the meanness of the crime that she was supposed to have committed. The priest then placed some of the dust of the Tabernacle in an earthen vessel full of water, and charged her with the solemn oath of purgation (Num. v. 19-22). After this the priest wrote the oath on parchment, blotted it out with the water, which he caused her to drink, and the jealousy-offering was then offered upon the altar (Soṭah, i. 4-6; ii. 1-3).

If the woman refused to submit to the ordeal, and there was circumstantial evidence of her criminality, she was obliged to separate from her husband (Soṭah, i. 5). Whatever may have been the actual significance of this ordeal when first established, within Talmudic times it had merely a moral meaning. It was simply a test under which the woman, if guilty, was likely to succumb and confess. R. Akiba says: "Only when the man is himself free from guilt, will the waters be an effective test of his wife's guilt or innocence; but if he has been guilty of illicit intercourse, the waters will have no effect"; and he based his opinion on a text in Hosea, iv. 14 (Sifre, Naso, 21; Soṭah, 47b). In the light of this rabbinical dictum, the saying of Jesus in the case of the woman taken in Adultery acquires a new meaning. To those asking for her punishment, he replied, "He that is without sin among you, let him first cast a stone at her" (John, viii. 7).

Ordeal Annulled.

This rabbinical interpretation of the law relating to the ordeal practically annulled it, and it soon fellinto disuse. During the Roman invasion of Palestine, and the last days of the commonwealth, the Sanhedrin, under the presidency of Johanan ben Zakkai, abolished the ordeal entirely; as the Mishnah states, "when adulterers became numerous, the 'ordeal of the bitter waters' ceased, and it was R. Johanan ben Zakkai who abolished it; as it is written (Hosea, iv. 14), 'I will not punish your daughters, when they commit whoredom, nor your spouses, when they commit adultery; for themselves are separated with whores, and they sacrifice with harlots'" (Soṭah, ix. 9). For it appears that under the Roman régime, immorality spread among the people, the judges became corrupt, the springs of justice were defiled, and general demoralization resulted (Graetz, "History of the Jews," ii. 237, 238). Probably for this very reason Queen Helena of Adiabene, the illustrious and munificent proselyte to Judaism, favored the ordeal; for she presented a golden tablet to the Temple with the chapter from the Law engraved on it, to be used for the rite of the ordeal (Tosef., Yoma, ii. 3; Mishnah Yoma, iii. 10; Gem. ib. 37b). But even if it had not been abolished, the rite would have sunk into abeyance with the fall of the Temple, because, according to the Law, the ceremony could not be performed elsewhere.

The Law in Patriarchal Days.

In the patriarchal days the Adultery of the wife required no proof, for whenever the head of the family suspected her, he could kill her. Thus Judah ordered his daughter-in-law, Tamar, to be burned because of her supposed Adultery (Gen. xxxviii. 24). Her crime consisted in unlawful intercourse with a man other than the brother of her deceased husband. For at first it was the custom, and afterward it became the law, for the widow of a man who had died without leaving issue, to marry his brother, so that the child of this union might be of the blood of the deceased and bear his name (Deut. xxv. 5, 6; see Levirate). In such cases the widow was really considered the betrothed of her brother-in-law, and her intercourse with another than himself was punishable as Adultery. When the punishment of the adulteress and her paramour was taken out of the hands of the husband and assumed by the civil law, this, like every other crime, had to be proved by two or more witnesses, before a conviction and sentence could follow (Deut. xix. 15; Maimonides, "Hilkot Ishut," xxiv. 18).

Under the theory of the Talmudists, which still further mitigated the severity of the law, the woman could not be convicted of Adultery until it was proved that she had been previously cautioned, in the presence of two witnesses, not to have any communication with the suspected man, and that, in spite of such caution, she had met him secretly under circumstances that would make the commission of the crime possible (Mishnah Soṭah, i. 1, 2; Gem. 2b). This caution was given to her because of the general tendency of the rabbinical law toward mercy, based in this case on a technical interpretation of the Biblical text (Num. v. 13). Practically, it worked an acquittal in nearly every case. If, however, the husband was not satisfied with the result, the right of divorce was left open to him, although, when divorced under such circumstances, the wife did not lose her property rights under the ḳetubah. If rumors of the wife's Adultery were circulated during the absence of the husband, the court had the right to summon and caution her with the same effect as though it had been done by her husband (Maimonides, "Hilkot Soṭah," i. 11).

Status of Adulterer.

The paramour was technically the adulterer (noef), and under the Biblical law suffered death together with the adulteress (noefet). His crime was held in the greatest abhorrence, and Raba and Rab voiced the general opinion when they said that nothing would excuse the wilful adulterer, nor would all his virtues save him from Gehenna (Soṭah, 4b). Even a lustful desire was deemed a moral crime, and the echo of "Thou shalt not covet thy neighbor's wife" rings throughout the Talmud and rabbinical writings, and is reechoed in the New Testament (Ex. xx. 17; Eben ha-'Ezer, 21; Matt. v. 27, 28). The adulterer's folly is condemned and makes him liable to the jealous wrath of the outraged husband (Prov. vi. 32-34; Job, xxxi. 9, 10). In Talmudic days, long after the abolition of the death penalty, the adulterer was punished by flagellation, and was forbidden to marry the faithless wife after she had been divorced. Even the mere suspicion of the crime was sufficient to prevent their marriage. A case, however, is suggested in the Talmud in which this restriction seems to have been removed. Here the woman having been suspected of Adultery was divorced, and having remarried was again divorced, and then married the man who had originally been suspected of having committed Adultery with her; the marriage was declared lawful, because it seems that the intervening marriage was considered in some degree a refutation of that suspicion, and acted as a limitation upon the original interdict (Yeb. 24b).

The child of an incestuous or adulterous connection was known as a Mamzer. It was not permitted to become a member of the Jewish body politic (Deut. xxiii. 3 [A. V. 2]), and could not intermarry with a Jew or Jewess (Ḳid. iii. 12), although it did not lose its right to inherit from the husband of its mother, who, while not the legitimate father, was for this purpose the putative father (Yeb. ii. 5; Maimonides, "Naḥalut," i. 7).

Bibliography:

  * J. Selden, Uxor Hebraica, 1646;
  * J. C. Wagenseil (translation of the Talmudic treatise Soṭah, with elaborate annotations), Altdorf, 1674;
  * Michaelis, Mosaisches Recht, 1785, v. passim;
  * Saalschütz, Das Mosaische Recht, 1853, 2d ed., ii. 570-575;
  * Z. Frankel, Grundlinien des Mosaisch-Talmudischen Eherechts, Breslau, 1860;
  * M. Duschak, Das Mosaisch-Talmudische Eherecht, Vienna, 1864;
  * M. Mielziner, Jewish Law of Marriage and Divorce, Cincinnati, 1884;
  * D. W. Amram, Jewish Law of Divorce, 1896;
  * Leopold Löw, Gesammelte Schriften, iii. 13 et seq.



D. W. A.