Jewish Law and “The English Patient”
As the Pentagon struggles with the issue of adultery in the military, Americans feast on the photography and melodrama of the film The English Patient. Never have our moral fault lines been so discomforting. Garlanded in Academy Awards, the the film is a straightforward story of adultery in the army, albeit the British in North Africa in World War Two. Ironically, it ends up making a case for the Pentagon’s view that adultery can endanger the security of the military (with Count Amalfi desperately bartering his maps of desert paths for a German place to rescue his injured lover Katherine Clifton), though only after a long, glossy tale of passionate romance.
Jewish law treats adultery with utmost severity, but defines it more narrowly than either Canon or American law. Adultery occurs only when the woman involved is married, as in The English Patient, which means that First Lieut. Kelly Flinn was not guilty of adultery. If the male alone is married, the extramarital affair is reprehensible, but not classified as adultery. The Ten Commandments include a prohibition against adultery (Exodus 20:15), defined later in the book of Leviticus (20:10), along with the stipulation that both “the adulterer and the adulteress shall be put to death.” In rabbinic law, with its pronounced aversion to capital punishment, a woman condemned for an adulterous liaison, was forbidden to return to her husband or to marry her consort.
Maimonides, in his majestic twelfth–century codification of Jewish law, argues that the institution of formal marriage sanctified by God at Mount Sinai represents one of the great advances of human civilization. “Prior to the giving of the Torah, a man might chance to meet a woman in the market place. If they agree to marry, he would take her home and have relations with her in private and she would become his wife. From the moment the Torah was given, Israel was commanded that if a man wished to marry a woman, he had to acquire her first before witnesses and only then would she become his wife as it is written: ‘A man marries (yikah – i.e. will take formally) a woman and cohabits with her (Deuteronomy 22:13).'”
But the Torah goes beyond the proper ordering of marital ties. Like Shabbat, the holiness of matrimony is derived by the Torah from the time of Creation itself. Human life begins with a single couple, a man and a woman joined by God to fill the earth and tend it. After Adam recognizes Eve as “flesh of my flesh,” the Torah declares for all ages: “Hence a man leaves his father and mother and clings to his wife, so that they become one flesh (Genesis 2:24).” However, despite this cosmological mooring, marriage never evolved in Judaism into an indissoluble bond.
I offer the above by way of framing my discussion of the suspected adulteress and the ordeal to which she is subjected, which we read this Shabbat (Numbers 5:12–31). How arbitrary, primitive and repugnant! A woman suspected of infidelity by her husband can be brought to the Tabernacle and forced to drink a potion administered by the priest that will render her deformed and infertile if guilty. No death penalty is imposed, only public disgrace. The Torah records no other instance of punishment by ordeal. We bristle at the vulnerability of the woman.
Yet in all ancient societies where polygamy prevailed, adultery is limited to the case of a married woman. In Israel it becomes a public rather than merely a private offense because it is classified as one of the forbidden sexual unions that pollute the land and for which death is punishment and expulsion the collective one. From the Torah’s perspective, adultery is a sin against the social order dictated by God. The ordeal, in the absence of hard evidence, is not intended to restore matrimonial harmony but to offset the defilement of the camp and community which is cumulative. And it is for this reason that the ceremony follows directly upon other injunctions in Scripture dealing with sacrilege and pollution (Numbers 5:1–10). Our difficulty in comprehending much of the priestly material in the Torah is that for us impurity is no longer a source of existential angst, just a matter of physical disgust.
But Judaism is not static. The Rabbis of the Mishna and Talmud reworked those sections of the Torah that time had rendered inoperable or repulsive. They found the ordeal for the suspected adulteress as problematic as we do, and softened it through reinterpretation. Thus the tractate of Sotah (the suspected adulteress) in the Mishna opens with a procedural requirement unmentioned in the Torah that greatly impedes the enactment of the ordeal. Before the husband can compel his wife to be tested, he must have warned her in the presence of two witnesses not to meet secretly with a specific paramour. Indeed, R. Yehoshua (whose view becomes the law) demands another set of two witnesses to testify that they actually saw his wife rendezvous with the man in question. Only then will the unpalatable potion be administered. In short, no longer can a husband expose his wife to public disgrace impulsively. The ordeal now comes to confirm that for which there is already a lot of circumstantial evidence.
Most interesting of all, the Mishna goes out of its way to inform us why the procedure was eventually terminated. Since the ordeal was Temple–bound, it would have ended in any case with the destruction of the Temple in the year 70 C.E. Hence I do not regard the explanation given as historical fact as much as a statement of moral condemnation. We are told that Rabban Yohanan ben Zakkai, who consolidated Pharisaic Judaism after the year 70, halted the procedure because adulterers increased beyond number. Only if the husband came without any taint of sin would the ordeal reveal the culpability of his wife. As promiscuity spread and the social order unraveled, Rabban Yohanan felt the injustice of singling out women as solely responsible.
Still, I find little comfort in the allegedly historical reason for the collapse of the ordeal. A judicial inequity may have been eliminated. But a society that pays mere lip service to the sanctity of marriage and the centrality of the family cannot long endure. Other social institutions more basic to the well–being of society will also sink into oblivion. Adultery as a way of life is surely more than a matter of private concern.
Shabbat shalom u–mevorach,