Ki Tetze | “But If This Thing be True” (Devarim 22:20) What is This Thing and How is its Truth Clarified?
Text file
14: and lay wanton charges against her, and bring up an evil name upon her, and say: “I took this woman, and when I came near to her, I found not in her the tokens of virginity.”
15: Then shall the father of the damsel and her mother take and bring forth the tokens of the damsel's virginity to the elders of the city in the gate.
16: And the damsel's father shall say to the elders: “I gave my daughter to this man to wife, and he hates her;
17: and, lo, he has laid wanton charges, saying: I found not in your daughter the tokens of virginity; and yet these are the tokens of my daughter's virginity.” And they shall spread the garment before the elders of the city.
19: And they shall fine him a hundred shekels of silver, and give them to the father of the damsel, because he has brought up an evil name upon a virgin of Israel; and she shall be his wife; he may not put her away all his days.
21: then they shall bring out the damsel to the door of her father's house, and the men of her city shall stone her with stones that she die;
because she has wrought a wanton deed in Israel, to play the harlot in her father's house; so shall you put away the evil from the midst of you.
I. “And they shall spread the garment”
The background to the passage before us was well clarified by the Ramban in his commentary to v. 17 (s.v. u-farsu ha-simla):
This was the practice in ancient Israel: The bride and groom would be brought into the bridal chamber, and they would be examined [so that there be no concern of deception on the part of the bride or of the groom], and the witnesses would wait for them outside, these being those whom the Sages referred to as shoshvinin. After they [the bride and the groom] would separate, the witnesses would go in and take the garment upon which they had lain, and they would see the blood. This is well-known in the Talmud and in the books of Aggada, and this garment is called a "sudar."
Therefore, the verse states that the father and mother spread out the garment which they had taken from the witnesses, and said: "These are the tokens of my daughter's virginity" (v. 17).
These words of the Ramban are based on many sources in the words of Chazal, one of which – a baraita in Ketubot 12a – teaches that during the period of the Tan’naim in Eretz Yisrael this custom was practiced only in some places:
In Judea they would formerly put up two groomsmen (shoshvinin), one for him and one for her, in order to examine the bridegroom and the bride when they enter the bridal chamber, and in Galilee they did not do so.
In Judea, formerly, the groomsmen used to sleep in the house in which the bridegroom and the bride slept, and in Galilee they did not do so.
And one who did not act according to this custom could not raise the charge of non-virginity.
In places where this custom was not the common practice, it was necessary to interpret our passage not in accordance with its plain meaning, so that it would fit the circumstances of life in those places – circumstances that no longer accorded with the custom arising from Scripture. This seems to be the background to R. Yishmael's exposition of the verse, "And they shall spread the garment," as a figurative expression: "They must make the matter as white [i.e., as clear] as a sheet" (Sifrei Ki-Tetzei, 237). Or in the words of the baraita in Ketubot 46a:
"And they shall spread the garment" – This teaches that the witnesses of this one [the groom] and the witnesses of that one [the bride's father] come and clarify the matter like a new garment.
R. Eliezer ben Yaakov, on the other hand, disagrees with those who interpret the words of our passage not in accordance with their plain meaning, both with R. Yishmael in the Sifrei and with the Sages in the Baraita in the Gemara, arguing: "The words are to be understood in their literal sense."[1]
It should also be noted that this custom, described in the Bible and in the words of Chazal, continued to exist in various Jewish communities (such as in North Africa) until our times.[2]
II. The Great Difficulty in Interpreting Verses 20-21 in their Literal Sense
Our study will focus on verses 20-21, which conclude the section dealing with the groom who speaks slanderously about his bride (motzi shem ra) with a note of reservation:
20: But if this thing be true, that the tokens of virginity were not found in the damsel;
21: then they shall bring out the damsel to the door of her father's house, and the men of her city shall stone her with stones that she die;
because she has wrought a wanton deed in Israel, to play the harlot in her father's house; so shall you put away the evil from the midst of you.
Verse 20 requires explanation. What exactly is "this thing" whose truth has been clarified, and how has it been clarified?
These questions are ostensibly answered by the verse itself and by the broader context in which it is found. "This thing" which was clarified is "that the tokens of virginity were not found in the damsel" when the groom had relations with her on their wedding night, and it was clarified by way of the "garment" – the sheet upon which the two lay that night was not stained with the woman's hymenal blood.
This interpretation of v. 20 seems, however, to be impossible, for if this is what the verse means, the punishment imposed on the damsel for whom tokens of virginity were not found contradicts all legal logic and does not accord with the laws of the Torah, neither the laws of evidence nor the laws of punishments.
Let us start with the laws of evidence. This is what is stated in Parashat Shofetim:
19:15: One witness shall not rise up against a man for any iniquity or for any sin, in any sin that he sins; at the mouth of two witnesses or at the mouth of three witnesses shall a matter be established.
Rashi interprets the words "for any iniquity or for any sin" in their plain sense: "That his fellow should be punished on the basis of his testimony, whether a bodily punishment or a monetary punishment. In other words: 'For any punishment for iniquity or for any punishment for sin.'"[3]
Here, however, v. 20 in our parasha imposes the death penalty on the damsel with no witnesses at all, not even a single witness, but rather on the basis of weak circumstantial evidence – the absence of blood stains on the garment! Surely this fact does not prove in any way that the damsel "wrought a wanton deed in Israel, to play the harlot in her father's house." The absence of the blood may have many causes: It is possible that she was a virgin, and yet no blood was seen;[4] she may not have been a virgin, but not because she played the harlot, but for other reasons.[5] And in any case, even if this were conclusive proof of the girl's harlotry in her father's house, it is nothing but circumstantial proof, whereas the Torah requires the testimony of two witnesses who actually saw the sinful act.
Let us now turn to the laws of punishment in the Torah. For what is the damsel punished? For having played the harlot in her father's house. If she did this after her betrothal (the Biblical eirusin, or what Chazal refer to as kiddushin), she is treated like a married woman and liable for the death penalty for this act of adultery (if there are witnesses), as is stated in the direct continuation of our passage:
22:23: If there be a damsel that is a virgin betrothed to a man, and a man find her in the city, and lie with her;
24: then you shall bring them both out to the gate of that city, and you shall stone them with stones that they die….
But how can we know when the damsel lost her virginity and whether this happened before or after her betrothal? Regarding a damsel who is not betrothed, Scripture states in the continuation:
28: If a man find a damsel that is a virgin, who is not betrothed, and lay hold on her, and lie with her, and they be found;
29: then the man that lay with her shall give to the damsel's father fifty shekels of silver, and she shall be his wife, because he has humbled her….
This is a case of rape (as it is stated: "and lay hold on her "); it does not refer to a damsel who is not betrothed who played the harlot in her father's house. But a parallel law in Parashat Mishpatim deals with such a case:
22:15: And if a man seduces a virgin who is not betrothed and lies with her, he shall surely pay a dowry for her to be his wife.
16: If her father utterly refuses to give her to him, he shall pay money according to the dowry of virgins.
The case of "seduction" involves an act done with the consent of the seduced. What is the punishment imposed upon a damsel who was seduced? She is not punished at all! Even the seducer is not punished; rather, he pays the father of the seduced damsel for his loss – the dowry of virgins, which is equal in value to the fifty silver coins mentioned in the section dealing with the rapist.[6]
We see, then, that consensual sexual relations between a man and a virgin who is not betrothed, though certainly not proper from a moral perspective, is not a criminal offense. The Torah deals with the issue strictly from its monetary perspective.[7]
Is it possible, then, that an act that does not involve a criminal offense that bears punishment can become an act for which the damsel in our passage is executed?
III. Chazal’s Interpretation of Verses 20-21
According to Chazal, the meaning of v. 20 is so simple that they did not bother to explain it for itself. This is what is taught in a baraita in Ketubot 44b-45a:
Shila taught: There are three modes [of execution] in the case of a [betrothed] damsel [who played the harlot].
If witnesses appeared against her in the house of her father-in-law [after she was married] that she had played the harlot in her father's house [while betrothed], she is stoned at the door of her father's house, as if to say: See the plant that you have reared.
If witnesses came [to testify] against her in her father's house [before she was married] that she played the harlot in his house, she is stoned at the entrance of the gate of the city.[8]
This baraita distinguishes between two almost adjacent laws in our passage: the law governing the damsel in vv. 20-21: "Then they shall bring out the damsel to the door of her father's house, and the men of the city shall stone her," and the law governing the damsel in v. 23-24: "Then you shall bring them both out to the gate of that city, and you shall stone them." The difference between them, explains the gemara, is when the witnesses came to testify about the damsel that she had played the harlot in her father's house.
It was the common Jewish practice for many generations (and in certain communities almost to the present day) to separate between betrothal and marriage. While in her betrothed state, the woman remained in her father's house until she was married to her husband. If the witnesses to her adultery came after she was married ("in the house of her father-in-law"), she would be stoned at the door of her father's house. This is the case discussed in vv. 20-21, which deals with a woman who already entered her husband's house, for the husband's claim against her came after he had relations with her (as he says: "I came near to her"). If, however, the witnesses came while she was still in her father's house and testified that she played the harlot while she was betrothed, that is the case discussed in vv. 23-24, and there it is stated that she is stoned at the gate of the city.[9]
We see from here that the baraita understands the two laws in almost identical manner. In both cases, we are dealing with a damsel who is betrothed who plays the harlot in her father's house, and in both cases the matter is known through the testimony of two witnesses who testify to this effect.
Rashi explains v. 20 this way, in extreme brevity:
"But if this thing be true" – With witnesses and a warning, that she played the harlot after betrothal.
This interpretation needs completion. After all, the verse states: "But if this thing be true, that the tokens of virginity were not found in the damsel," and according to R. Eliezer ben Yaakov, whose position has been accepted, it is clear that the "tokens of virginity" that were not found are the signs of virginity that were not found on the garment, as in "the tokens of the damsel's virginity" (v. 15) and "the token's of my daughter's virginity" (v. 17). But if witnesses came and testified that she played the harlot after her betrothal, the garment ceases to be relevant to the discussion, and there was no need for v. 20 to mention it at all![10]
Therefore, the verse must be understood as follows: When the damsel's tokens of virginity are not found – that is to say, when it becomes clear that the garment confirms the husband's claim that he did not find his bride's tokens of virginity – the court clarifies the matter, and if two witnesses come and testify that she played the harlot in her father's house after her betrothal, the punishment mentioned in v. 22 is imposed.
In other words, what Rashi says in his commentary must serve as a mental complement between what is stated in v. 20 to what is stated in v. 21: "But if… the tokens of virginity were not found in the damsel – and it became clarified by way of witness and a warning that she played the harlot after her betrothal – then they shall bring out the damsel … and they shall stone her." The "garment" then becomes the factor that drives the further clarification of the court and leads to the appearance of the witnesses.[11]
This is also how Rashi interprets the first mishna in tractate Ketubot: "A virgin is married on the fourth day [of the week]… so that if he [the husband] had a claim as to the virginity [of his bride], he could go early [on the morning of the fifth day of the week] to the court":
Therefore, they enacted that she marry on the fourth day [of the week], so that if [the husband] had a claim as to her virginity, he could go early [on the morning of the fifth day of the week] to the court while he is still angry… And perhaps she played the harlot under him [while she was betrothed] and became forbidden to him… And since he comes to court, the matter will become clarified when the word gets out, and perhaps witnesses will come.
IV. Those who maintain that the accepted interpretation does not derive from the plain meaning of scripture
Can this interpretation of v. 20, which requires filling in the arrival of witnesses that the damsel had played the harlot after her betrothal, be considered the plain meaning of the text?
The Rambam in his introduction to the Mishna discusses "interpretations received from Moshe" to mitzvot in the Torah, regarding which there cannot be any disagreement. Here are the examples that he brings of such received interpretations:[12]
We have never found disagreement among the Sages, at any time from Moshe until R. Ashi, that one of them said that one who blinded another person, he too should be blinded, in accordance with God's statement, "an eye for an eye"; and another one said that he is liable only for money. We also haven't found disagreement regarding God's statement: "the fruit of a goodly tree," that one said that this is an etrog, and another said it is a quince or a pomegranate or something else… Nor have we found disagreement about what He said: "Then you shall cut off her hand" – that this is money; or about what He said: "And the daughter of any priest, if she profane herself by playing the harlot, she profanes her father: she shall be burnt with fire" – that this punishment applies only if she is a married woman; and similarly concerning the punishment imposed upon one regarding whom no tokens of virginity were found, that she is stoned, we have never heard that someone disagrees about this, from Moshe until now, that this applies only to a married woman, and there is testimony that after her betrothal she played the harlot with witnesses and a warning.
The common denominator of the examples that the Rambam brings for the interpretations received from Moshe is that these interpretations do not follow from the plain sense of the text; in most of the examples, they even appear to contradict it. The last example is the subject of the discussion in this study, and it seems that the Rambam viewed the halakhic interpretation of verses 20-21 in our parasha as an interpretation rooted a tradition ("received from Moshe"), and not exegetical considerations stemming from the plain meaning of Scripture.[13]
So too, R. D.Tz. Hoffman writes in his commentary to vv. 20-21:
The plain meaning of Scripture is that the damsel is stoned even if she played the harlot before she was betrothed, but our Rabbis received [by tradition] that the verse deals with a damsel who is betrothed who played the harlot.[14]
Other commentators and modern scholars have written in similar fashion.[15]
V. The interpretations of vv. 20-21 offered by the “moderns” and the difficulties with them
Defining an interpretation as "the plain meaning of the text" depends on several criteria that will be discussed later in this study. But first one must ask: Are there alternatives to the interpretation of the Halakha? Have any plausible interpretations been suggested that do not require that various elements be filled in that are not stated explicitly in Scripture?
Modern commentaries have suggested several such interpretations. Let us consider them in brief:
1. Several non-Jewish commentators (Keil, Delitzsch) have suggested understanding the severe punishment that is imposed upon the damsel as stemming from the fact that she deceived the groom when married as a presumed virgin.
R. Hoffman rightly argues against this interpretation:
It is inconceivable the because of such deception she is liable to the death penalty. Surely Scripture itself states that she is stoned "because she has wrought a wanton deed in Israel," that is to say, because of the wanton deed of harlotry.
2. Shadal concedes that "according to the Torah, she [the damsel who played the harlot in her father's house] is not liable to punishment, but in the eyes of the people of those generations, if she married as a presumed virgin, this is deceit that carries liability for the death penalty."
He explains the law stated in vv. 20-21 as what was accepted by "the people of those generations."
"To play the harlot in her father's house" – According to the simple meaning, she played the harlot in her father's house before she was betrothed, and after having done so she should have informed him [her groom] that she is not a virgin, but she deceived him in a matter that was so great in their eyes in those days that it carried the death penalty.
But how did the Torah agree to a death penalty that does not conform with its own outlook? Shadal offers a surprising answer:
"And they shall spread the garment" – … The Torah means to discourage a man from bringing up an evil name upon his wife, and it believes the proof of blood even if it is fake, in order to impose domestic peace and to save from execution the damsel who played the harlot while in her father's house [before she was betrothed], who according to Torah law is not liable for punishment… And the Torah sweetened this severe measure by commanding that we believe the blood [stains], even though that is questionable proof.
Put simply, the death penalty appearing in vv. 20-21 is only theoretical. What father or mother would allow their daughter to be put to death (having committed no real sin) and not fake a blood-stained dress in order to save her? The Torah itself invites them to utilize this option to save the damsel.
Our appreciation of Shadal's interpretations in general should not lessen our distress over the exceedingly strange and serious things that he writes here. Discussing his interpretation seems to be totally unnecessary.
3. Prof. Alexander Rofe devotes an extensive discussion to verses 20-21 in our passage in his book "Mavo Le-Sefer Devarim."[16] After demonstrating that the law emerging from the simple meaning of vv. 20-21 contradicts all the laws in the Torah relating to virgins, including the laws in this passage itself, he adds that even the legal codes of the ancient Near East distinguish between a virgin who is betrothed and one who is not; if the latter played the harlot, she is not liable to the death penalty, but only to a monetary punishment. "We stand then before an amazing phenomenon, that the law in Devarim 22:20-21 not only contradicts the rest of the laws of marriage in the Torah, but is also unique among the laws of the ancient Near East."
The reasonable reader is likely to conclude from his remarks that this exceptional law, which contradicts all Biblical convention and even what was accepted in the legal codes of the ancient peoples, must not have been properly understood and must be interpreted, even if the interpretation is somewhat forced, in a way that returns the law to the accepted norm and cancels its blatant exceptionality.[17]
This is not the case with the commentator who supports the assumptions of Biblical criticism. Such a person will not easily give up the opportunity afforded to him to use the difficulty that he located to dismantle and shatter the unity of the section. This, of course, is what Rofe does, as he concludes from the difficulties that he noted: "All this attests that this section (vv. 20-21) is a foreign element inserted into the collection of laws before us; by its nature it appears as a moralistic expansion of legal material. Whereas the other laws [in our passage] reflect the Israelite law of the 'elders,' this section expresses the extreme demands of the scribe, who more than being a jurist, was a preacher."
An interpretive solution of this kind is, of course, not a solution for one who does not accept the sharp critical assumptions underlying it, but seeks a clarification of the plain meaning of Scripture.
What is surprising about Rofe's remarks is his claim that even from a purely literary perspective, and even in terms of style – the vocabulary and expressions – vv. 20-21 do not belong to their immediate environment, but are manifestly an addition in the section into which they have been inserted. Surely, anyone who reads the passage in sequence – from verse 13 to verse 29 – gets the very opposite impression! But the pre-conceived critical solution is what dictates this biased "literary analysis." We will return to this matter later in our study.
The conclusion of our review is then that there is no reasonable alternative to the interpretation of Chazal and those who follow in their footsteps, that verses 20-21 deal with a betrothed damsel against whom witnesses testify that she played the harlot in the house of her father.
And still we ask: Can this this interpretation be considered the simple meaning of Scripture?
VI. The Ramban reconciles the interpretation of Chazal as the plain meaning of Scripture
The examination of the meaning of a verse must be conducted in several circles. First, we must examine whether the interpretation fits the words and syntax of the verse. In this respect, Halakha's interpretation of the verse is somewhat forced, because it adds elements that are not written in the text, and thus it is connected neither to the words nor to the syntax of the verse.
Second, we must examine whether the interpretation is appropriate to the context in which the verse is found. This context is first and foremost the immediate context – the connection of the verse to the verse or verses before and after it. However, the circles of the context in which a verse is found expand; the context is also the complete literary unit in which the verse is found, and an even broader context is fitting in the verse as it is being explained with the other places in Scripture that are related to it. The broadest of all is the overall Biblical context – fitting in the verse as it is being interpreted with the conventional conceptions of the entire Bible.[18]
Thus far, we have seen that the Halakha's interpretation of vv. 20-21 fits in with the broader Biblical context: the laws of evidence and the laws of punishment that appear in the Torah, and especially the laws governing a virgin damsel discussed in our passage and in Shemot 22.
The continuation of this section will be devoted to the clarification of the immediate context of these verses, which follow as a supplementary remark to the laws of motzi shem ra discussed in verses 13-19 that precede them; the next section will be devoted to the place of vv. 20-21 in the entire literary unit, the boundaries of which we are yet to delineate.
The Ramban, in his commentary to v. 13, with which the section dealing with motzi shem ra opens, clarifies the human-familial situation described in our passage:
"If any man take a wife, and goes in to her, and hates her" – this means, when a man betroths a woman with Torah-recognized betrothal, which is betrothal with money, and she is the betrothed woman mentioned [later in the passage, beginning in v. 23], and after some time[19] he goes in to her and hates her, he not having found her pleasant when he had relations with her, and he goes early the next morning to a court and claims that he did not find her to be a virgin.
Why does the groom go to court? After all, according to Torah law, he can divorce his wife and thereby put an end to the entire story. Let us continue reading the words of the Ramban:
And here he means to send her out without the dowry of virgins, which is the ketuba that he wrote for her.[20] And since he betrothed her on the presumption that she is a virgin, he claims that she played the harlot while under him [while she was betrothed to him].
This last point is very important. According to the Ramban, the husband does not content himself with the non-specific claim that the woman was not a virgin. It is possible that with such a claim the husband would not be exempt from paying her dowry, for even women who were not virgins would have had some kind of dowry.[21]
He wants to free himself entirely from paying out the dowry, and to that end he claims that she played the harlot while she was betrothed to him. This claim accords also with Scripture's description of his attitude toward the woman after that night: "and goes in to her, and hates her." According to his claim, he is obligated to divorce her – as she is forbidden to him – and the woman has forfeited her ketuba from this divorce.
On what does the husband base his claim? On the fact that he betrothed the woman, according to her claim, when she was a virgin, and therefore from her own words it follows that she lost her virginity while she was betrothed to him!
From where does the Ramban know that this is the husband's claim? The answer is very simple: Only when the husband puts forward such a claim does "he bring up an evil name upon" the woman. Were the husband to claim that the woman lost her virginity before the betrothal, this would not involve "bringing an evil name upon her," because then it would not have been a forbidden act of harlotry, and then the Torah would not have imposed the various punishments upon him as it does. Thus writes the Rambam (Hilkhot Na'ara Betula 3:11):
Similarly, if he says: "I discovered that she was not a virgin," but does not say that she committed adultery after he had betrothed her… he is not liable [for these penalties: flogging and the fine of a hundred shekels].
Now the Ramban continues to explain what is stated in our passage:
And therefore the verse states: "But if this thing be true" (v. 20) – in accordance with the words of the husband – "and they shall stone her" (v. 21). And the truth can only become known through two witnesses.
The law of stoning the damsel applies when it turns out that the evil name which the man brought up upon her was rightly brought upon her – that is to say, when his claim that she played the harlot while she was betrothed to him proved to be true. However, this cannot be verified by the fact that "I found not in her the tokens of virginity" – that the garment was not stained with blood. The garment, as stated in section III, is merely the starting point for searching for and finding witnesses, on the basis of whose testimony the truth of the husband's claim that she played the harlot while betrothed to him can be verified.
It turns out that the context in which vv. 20-21 appear, as a continuation of the section dealing with a motzi shem ra, necessitates that we connect the "truth" that is clarified in v. 20 to the husband's claim in the previous verses that she played the harlot while she was betrothed to him.
This reduces the difficulty of the need to fill in elements not appearing in the text between verse 20 and verse 21. Those elements are not written, but the need for them is already alluded to at the beginning of v. 20. This is the way the verse should be understood: "But if this thing be true" – the husband's claim that his bride played the harlot while she was betrothed to him; "that the tokens of virginity were not found in the damsel" – though this in itself does not prove the husband's claim, but in the wake of that claim, witnesses were found who testified accordingly, then: "they shall bring out the damsel to the door of her father's house… and they shall stone her."
Anyone who claims that "the explanation of Chazal [to vv. 20-21] does not accord with the plain meaning of the verses, which do not mention betrothal at all" (as argued by Rofe; see note 17), apparently does not understand the meaning of motzi shem ra in the main law.
The Ramban goes on to prove from the context that the intent of verse 20, "but if this thing be true," is that the damsel played the harlot in her father's house after her betrothal:
And since Scripture explains with regard to the harlotry of virgins that if she is betrothed, she is liable to stoning (vv. 23-24), and if she is not betrothed, she is exempt [Shemot 22:14 – the law of the seduced damsel], it was not necessary to spell out here: "But if this thing be true that she played the harlot while she was betrothed and that she did so of her own free will, they stone her" [for these two conditions are spelled out below: that she played the harlot while she was betrothed – vv. 23-24; that she played the harlot of her own free will – vv. 25-27].
If so, not only the context of verse 20 in relation to what precedes it – the law of motzi shem ra – proves the correct interpretation, but also the context in relation to the law that follows it – the law of a betrothed virgin damsel who played the harlot of her own free will or under coercion, proves this.
Finally, the Ramban proves that this is the correct interpretation of vv. 20-21 from the wording of these verses themselves:
And it says [in v. 21] by way of an allusion: "Because she has wrought a wanton deed in Israel, to play the harlot in her father's house," and the "wanton deed" indicates that she acted of her own free will; and "to play the harlot" indicates that the woman strayed while under her husband, because a damsel who is not betrothed is not called a harlot if she lies with a certain person, but she is designated for him.
With his last words, the Ramban alludes to the seduced woman in Shemot 22:15, who is not called a "harlot." On the contrary, she is naturally designated for him who lay with her (with her consent), as it is stated there: "He shall surely pay a dowry to her to be his wife."[22]
It seems that after reading the remarks of the Ramban cited in this section, there is no longer any doubt that Chazal's interpretation of vv. 20-21 is the plain meaning of the text by any criterion. What is left to us to do is to understand the connection between vv. 20-21 and the complete literary unit to which they belong.
VII. The literary structure of the passage and its influence on the interpretation of verses 20-21
In chapter 22 verse 13, there begins a literary unit that ends in verse 29 and includes several short halakhic sections that share a common theme: They deal with the laws governing a virgin damsel.[23] Here are the laws discussed in the complete unit:
- 13-19: the law of a motzi shem ra against a betrothed virgin damsel that she played the harlot during the period of her betrothal.
- 20-21: "But if this thing be true" – the law of a damsel – death by stoning.
- 3:22: Adultery with a married woman – "then they shall both of them die."
- 1 23:24: Adultery with a betrothed damsel – "and you shall stone them."
42 25-27: The rape of a betrothed damsel: "Then the man only that lay with her shall die."
- 28-29: The law of the rape of a virgin damsel that was not betrothed.
The third law – v. 23 – is exceptional in that it deals not with a virgin damsel, but rather with a married woman. Its place in the passage will be discussed below.
A collection of laws such as this, whose boundaries are clear and the issue discussed in it is also clear, constitutes a literary unit that usually has a characteristic structure, as we find in Scripture with all of its literary genres, including many halakhic sections.[24]
What, then, is the structure of this oration concerning mitzvot that deals with the laws governing a virgin damsel? The structure of this section was pointed out to me by my student and friend, R. Shaul Weingort, and I thank him for illuminating my eyes concerning this matter (as with other matters) and for the permission that he granted me to use the structure that he discovered.
As usual, the section is divided into two halves of similar length, when in our case a "central axis" separates between them – v. 22, which is clearly different from all that surrounds it. The first half, vv. 13-21, contains laws 1-2, and is made up of 129 words; the second half, vv. 23-29, contains laws 4-5, and is made up of 119 words.
The division of a Biblical literary unit into two halves is intended to lead the learner to set the two halves parallel to each other, so that he might reveal the inner connections between the various parts of the entire literary unit. Here is the entire literary unit, presented in such a way that emphasizes both the structure and the chiastic parallelism between the two halves:
First, let us clarify the place of the “central axis” – verse 22 – between the two halves of the section. This verse contains the basic law – the punishment meted out to adulterers, which is the basis for all the specific laws discussed around it. In all the laws pertaining to virgin damsels in our passage, the question arises: Was a sin of adultery, which is punishable by the death penalty, committed here, or was there no such transgression?[25] Thus, verse 22 is the source and the standard for examining the cases discussed in the entire section. Because v. 22 is of a general nature and constitutes the foundation of the entire section, it is stated therein: "So you shall put away the evil from Israel," and not: "So you shall put away the evil from the midst of you," as is stated in the two adjacent laws, before it and after it.
Here it should be noted that despite the role of v. 22 as serving as the foundation for the entire section, the punishment imposed upon adulterers – "they shall both of them die" – was understood by the Halakha as death by strangulation, which is considered less severe than stoning, with is imposed upon the other adulterers in the section – a damsel who played the harlot in the house of her father (v. 21) and the betrothed virgin and the man she lay with (v. 24). Stoning is the most severe form of judicial execution. What is the meaning of the severity of the "derivative" punishments in relation to the "principle" punishment?
The situation of the betrothed damsel is special and problematic. On the one hand, she was betrothed by her groom and is considered a married woman, but she continues to live in the house of her father. Her way of life has not changed, and perhaps even her outward appearance gives no indication of the critical change in her personal status.
This condition, which lasts for several months (usually about a year), is dangerous and requires special caution.[26] Both the betrothed damsel herself and the men around her may make light of her status as a married woman and commit adultery, and therefore the Torah imposed a more severe punishment for the adultery of a betrothed damsel than for the adultery of a married woman living with her husband.[27]
Let us now distinguish between the subject of the first half of the section and that of the second half. The first half deals with the laws of a virgin damsel that are clarified retroactively, after she has already entered her husband's house; the second half deals with the laws of a virgin damsel while she is still in the house of her father. This order of the two halves is the opposite of the chronological order; we must explain why this is so, but we will not do so at the present time.
Let us now consider the parallels between the two halves:
Laws 1 and 5: The similarity between the law of a slanderer (v. 19) and the law of one who rapes a virgin damsel who is not betrothed (v. 29) is readily apparent: Both of them must make a payment to the damsel's father, and both of them are obligated to marry the woman who suffered at their hands and are forbidden to divorce her. The second punishment is formulated with the very same words: "and she shall be his wife"; "he may not put her away all his days." The law of the slanderer is, however, more severe in two ways: He must pay "a hundred shekels of silver" – twice the amount paid by the rapist. Second, he is flogged: "And they shall chastise him."
The similarity between the punishments imposed upon the two attests to the essential common denominator between the transgressions that the two committed. What is this common denominator? Both of them wished to take the damsel's virginity without giving anything in return. The taking of a damsel's virginity is supposed to be done by her husband at the beginning of their married life, and with the husband's financial commitment to pay a virgin's dowry for the benefit of his wife (see note 20).
The motzi shem ra took the damsel's virginity, and now he wants to divorce her without paying the dowry. The same is true, of course, of the rapist, only that he acts in that manner because he is overcome by his impulses, while the motzi shem ra does this based on a vicious scheme and a false attack against the woman's good name. Therefore, his punishment is more severe; he is flogged for falsely assaulting the woman's good name, and he is made to pay a double dowry, similar to the thief (ganav), who pays twofold for the property that he stole.[28] The rapist is made to pay the value of the dowry, but is not required to make double payment, for his action is more similar to that of a robber (gazlan), about whom it is stated: "he shall restore that which he took by robbery" (Vayikra 5:23).
What is common to both of them is that they both must continue to live with the woman who was harmed by their actions and who was liable to miss out on a chance for marriage and would remain single because of the damage that they did to her, and they are also forbidden to divorce her all the days of her life (if that is what she wants).
Laws 2 and 4: The parallel between the law relating to a damsel regarding whom no tokens of virginity were found (v. 21) and that relating to a betrothed damsel and the man she lay with in the city (v. 24) is also manifestly evident. In both cases, the sinners are taken out to the "gate" or the "door" for execution by stoning, and in both cases, the laws conclude with the words: "You shall put away the evil from the midst of you."
Here too, the identical laws attest to the identity of the transgressions: In both cases, we are dealing with a virgin damsel who is betrothed who committed adultery out of her own free will. This interpretation of vv. 20-21 follows of necessity from the parallel in the second half, in vv. 23-25. This is true not only the interpretation that the damsel played the harlot in the house of her father during the period of her betrothal, for only in such a case is there capital punishment, whereas regarding a damsel who is not betrothed, we learn at the end of the section that this is merely a financial matter and not a capital matter, but also that only if she played the harlot of her own free will is she stoned, for the parallel law (4) emphasizes the difference between whether the man found her in the city or in the field.
The law of the damsel in vv. 20-21 is stated briefly and out of reliance on the law that parallels and explains it in vv. 23-25.
The literary structure of the section is what alludes to this reliance and enables the Torah to be brief about one law and rely on what is stated in the law that parallels it in the structure of the section, which is the fundamental law.[29]
This is essentially what the Ramban says in his remarks cited in the previous section, and we have only shown that an analysis of the literary structure of our section compels the words of the Ramban.
(Translated by David Strauss)
[1] We will not discuss here all sides of the controversy. We will only note that Rashi explains v. 17 in accordance with R. Yishmael: "This is a figurative expression; they must make the matter as white [as clear] as a sheet." R. Saadya Gaon in his commentary shifts from the plain-meaning explanation in accordance with R. Eliezer ben Yaakov to the explanation according to R. Yishmael: "'And they shall spread the garment' – And they shall spread the sheet or any other proof in its place," the reference at the end of his words being, of course, to witnesses. The Rashbam, on the other hand, emphasizes that the plain meaning is the literal one: "'And they shall bring forth the tokens of the damsel's virginity' – according to the plain meaning, the hymenal blood on the garment." So too explains the Ramban in his remarks cited above. He supports this explanation by noting that in our passage the Torah emphasizes the mother's presence in the court: "Then shall the father of the damsel and her mother take and bring forth the tokens of the damsel's virginity… and they shall spread the garment." He explains this phenomenon as follows: "[The Torah] includes the mother in the action, because the matter of the garment – the women deal with it, and they have expert knowledge about blood, and it is fitting that it be spread before the mother, and she will bring it to court… The mother is mentioned in the passage and she comes to court only for the matter of the garment, which is a literal garment, as I have explained."
[2] a. In Ketubot (10), there is a series of stories about grooms who appeared before various Sages of different generations of the Tan’naim, claiming they did not find blood on the sheet, and how it was clarified that the brides were nevertheless virgins. Here are the first and the last of those stories:
Someone came before Rabban Gamaliel the son of Rabbi [and] said to him: “My master, I have had intercourse [with my newly-wedded wife], and I have not found any blood.” She [the wife] said to him: “My master, I was a virgin.” He said to them: “Bring me that cloth.” They brought him the cloth, and he soaked it in water and he washed it and he found on it a good many drops of blood. [Rashi: The drops of blood had been covered with semen.] [Thereupon] he [Rabban Gamaliel] said to him [the husband]: “Go, be happy with your bargain”….
Someone came to Rabbi [Yehuda Ha-Nasi and] said: “My master, I have had intercourse [with my newly-wedded wife], and I have not found any blood.” She said: “My master, I was [and am] still a virgin.” And it was [a period of] years of dearth. Rabbi saw that their faces were black, and he commanded concerning them, and they brought them to a bath and gave them to eat and to drink and brought them to the bridal chamber, and he had intercourse with her and found blood. He [then] said to him: “Go, be happy with your bargain."
b. The custom under discussion is not unique to the Jewish People; it is practiced among many peoples all over the world. In some places, this custom still exists today.
c. Owing to the fact that today many women marry only in their twenties or at an even later age, and due to other changes in lifestyle in modern times, the "garment" test is no longer reliable, and using it is liable to cause unnecessary pain and distress. See Rav Yoezer Ariel, "Ta'anat Betulim Be-Zeman Ha-Zeh," http://www.medethics.org.il/articles/ASSIA/ASSIA57-58/R0571062.asp.
[3] See Ibn Ezra, Bereishit 4:13, s.v. gadol avoni mi-neso.
[4] In an earlier note, we referred to the series of stories in Ketubot 10 in which such cases are related.
[5] E.g., she was raped or she was mukat etz – she lost her tokens of virginity by way of an injury.
[6] See Rashi, Shemot 22:6, and its source in the Talmud, Ketubot 38b. The similarity and the difference between the seducer and the rapist are summarized by the Rambam in Hilkhot Na'ara Betula 1:1-4.
[7] In the cases of rape and seduction, there is a financial dimension in addition to the payment of dowry:
The fine of 50 silver pieces represents merely the payment for the pleasure of sexual relations. In addition, a seducer is obligated to pay for embarrassment and damages in addition to the fixed amount mentioned by the Torah. A rapist, moreover, also pays for the pain [he caused the girl]. (Rambam, Hilkhot Na'ara Betula 2:1)
[8] The third mode of execution does not pertain to the present discussion.
[9] The reason for this difference between the two cases will be discussed later in our study.
[10] a. Rashi himself does not interpret the section in its plain sense, in accordance with the view of R. Eliezer ben Yaakov, and therefore our remarks here do not pose a difficulty for him. Rashi explains the words, "I found not in her the tokens of virginity," not in their real sense, as relating to the garment, but as the gemara (Ketubot 46a) explains them, in accordance with the view of those who disagree with R. Eliezer ben Yaakov, “kesharei betulim,” which Rashi explains as: "witnesses… that can certify your daughter as a virgin."
b. A question may be raised against what we have said above: Even if the garment is stained with blood, this does not refute the testimony of the witnesses (the contradiction between their testimony and the testimony of the garment can be reconciled in various ways)! The Tosafot in tractate Ketubot 46a (s.v. bishlama le-Rabbi Eliezer ben Yaakov) ask this question. Our words in the following note are our own answer to this question, not that of the Tosafot.
[11] When the garment proves that the woman was a virgin at the time of intercourse, we do not continue ascertaining the husband's claim, but rather relate to it as slander, with all of the punishments that follow from that determination. It should be noted that our remarks here are in accordance with the view of R. Eliezer ben Yaakov, and not in accordance with the view that has been accepted as normative by the Rambam in the third chapter of Hilkhot Na'ara Betula.
[12] Hakdamat Ha-Rambam La-Mishna, ed. R. Y. Shilat, p. 38.
[13] Moreover, the Rambam writes in the continuation: "But even though they are transmitted and there is no dispute about them, we can – with the wisdom of the Torah that is given to us – extrapolate these explanations [from the Torah] by one of the ways of reasoning, or from the associations, proofs, or hints found in Scripture." He then brings examples of discussions in the Talmud that find hints and allusions to all the examples that he brought earlier of interpretations that were received from Moshe, except for two examples: "You shall cut off her hand" and the execution of a betrothed damsel regarding whom no tokens of virginity were found, In fact, there is no orderly discussion in the Talmud of v. 20 to prove the received interpretation, It is possible, however, that the absence of such a discussion is for the opposite reason: Chazal's interpretation was obvious to them.
[14] Later in his remarks, he demonstrates that the verse should not be interpreted in accordance with its simple meaning, and he explains "why the Torah did not explicitly state that she is stoned only if she played the harlot after her betrothal."
[15] See, for example, Chaim Tzernowitz (Rav Tza’ir), Toledot Ha-Halakha, part III, pp. 365-366.
[16] Akadamon Press, Jerusalem, 1948, pp. 144-151.
[17] This is how Chazal interpreted v. 20, and so too various medieval commentators. Rofe admires the interpretation of Chazal and writes: "The modern commentators did not see the contradiction between Devarim 22:20-21 and the rest of the laws of marriage, but not so Chazal. They could not have overlooked this, for they had to decide the matter and rule based on the Torah. Therefore, Chazal interpreted that the death penalty is imposed on the damsel only if there are witnesses that she played the harlot after her betrothal… Their interpretation does not accord with the plain meaning of the verses… which make no mention whatsoever of betrothal. They essentially completely eliminated the excessive severity toward a virgin that is not betrothed in the law in vv. 20-21… [Their objective was] to reconcile this exceptional law with the accepted laws relating to marriage…"
In note 24 he adds: "The sharpness of Chazal in identifying the contradictions and reconciling them in the way of the Midrash Halakha evokes great reverence. Not so the apologetics of those recent authorities who endeavored to prove that the Halakha follows the plain meaning of Scripture" (he directs his critique to R. D.Tz. Hoffman's interpretation of v. 21).
The praises that he showers on Chazal are "the kisses of a hater." Chazal did not occupy themselves with "identifying the contradictions and reconciling them in the way of the Midrash Halakha," as Rofe writes. They did not interpret the verse in a direct manner, nor did they "expound" it. Their opinion in its regard is learned indirectly from various statements made by them. The conclusion that follows from this is that they did not find the verse difficult in any way, and they saw it as so obvious that it need not even be mentioned that the verse deals with a betrothed damsel against whom witnesses testified that she played the harlot while in the house of her father.
The puzzling thing is that Rofe sees Chazal's interpretation as proof for his own position: "We see then that Devarim 22:20-21 contradicts the rest of the laws relating to marriage… and that it was completely eliminated by Chazal. All this attests that this section (vv. 20-21) is a foreign element inserted into the collection of laws before us." Attributing to Chazal a critical idea similar to his own is anachronistic.
[18] Of course, the need for a verse to fit in its context is greater the more we are dealing with a closer context. Nevertheless, when a particular interpretation turns the verse being interpreted into a blatant deviation from the broader Biblical context, that is reason to reject that interpretation.
[19] It seems that the Ramban is using the word yamim in the sense of "a year," as that was the usual length of the betrothal period, as is stated in Mishna Ketubot 5:2: "A virgin is given twelve months from the time [her intended] husband claimed her [in which to prepare for marriage]." See Rashi to Bereishit 24:55.
[20] In tractate Ketubot, there is a dispute as to whether the ketuba is Torah or Rabbinic law, and according to the Halakha, it is a Rabbinic enactment. The Ramban explains what he means here in his commentary to v. 19 below:
The practice of writing a dowry of fifty shekels of silver for a virgin… even the ketuba is by the words of the Rabbis… but it was customary to write a dowry for virgins, as it is stated regarding the fine imposed on the seducer: “according to the dowry of virgins” (Shemot 22:16), and most people did so. If this woman did not have a ketuba, why would he lay wanton charges against her because he came in to her and hated her? Let him write her a bill of divorce and be free of her!
Thus, in his opinion, the ketuba as an obligation is a Rabbinic enactment, but the ketuba as an accepted practice existed at the time of the giving of the Torah, and this is the fifty shekels of silver "dowry of virgins." It is also possible to understand the dowry of virgins as the payment made by the groom to the virgin's father prior to the marriage, and he comes to court to demand a refund of the dowry, for according to his claim the damsel was not a virgin.
[21] According to the mishnayot at the beginning of tractate Ketubot, the ketuba of a non-virgin is half the ketuba of a virgin. See, for example, 1:2: "A virgin – her ketuba is two hundred [zuz]; a widow – a maneh [one hundred zuz]."
[22] The root zayin-nun-heh in the Bible in the context of sexual relations always relates to forbidden relations (adultery) or to a woman who sets herself aside for intercourse with multiple men in exchange for payment. An unmarried woman who has relations on a one-time basis with a man who is not forbidden to her does not become a zona thereby, not in the first sense nor in the second sense.
This is the reason that Chazal interpret the verse: "And the daughter of any priest, if she profane herself by playing the harlot… she shall be burnt with fire," as referring to the daughter of a priest who is a man's wife (whether betrothed or married is a subject of dispute; see Sanhedrin 50b and on).
[23] Before v. 13, there are various laws unrelated to the laws of a virgin damsel: sending away the mother bird; building a roof railing; kil'ayim of the vineyard; the prohibition of plowing with an ox and a donkey; the prohibition of sha'atnez; tzitzit. After v. 29, in chapter 23, there appear various laws that are also unrelated to the laws of a virgin damsel: the prohibition of relations with one's father's wife, and the disqualification of various persons from entering the congregation of God.
[24] a. In our studies, we have frequently encounterd the elaborate literary structure of halakhic sections of various kinds.
b. In the book of Devarim, in the orations concerning the commandments in which we find ourselves, this phenomenon is even more pronounced than in the previous books of the Torah. The unit with which we are dealing can be defined, then, as an independent oration unit within the orations concerning the mitzvot.
[25] Sometimes the offense of adultery is one-sided, such as in the rape of a betrothed virgin, in which case "to the damsel you shall do nothing," and sometimes the offense is not adultery, but a transgression of a different type, e.g., motzi shem ra and the rape of a damsel who is not betrothed, who are liable to different punishments, but not to the death penalty.
[26] It is not surprising that in medieval Europe the gap between betrothal and marriage was abolished and the two were united in a single ceremony – betrothal under the marriage canopy. In this way, they were spared the dangerous period between the two.
[27] This severity can also be explained in another way: The damage done to the institution of "family" is more severe in the case of the adultery of a betrothed virgin, precisely because of the harm to the beginning of the family, in the "pure" state from which the family begins to develop.
[28] This is the reason for the payment of the fine imposed on the motzi shem ra that is given by the Rambam in his Guide for the Perplexed (III:49) and by the Ramban in his commentary to v. 19.
[29] a. This raises the question: Why didn't the Torah first present the fundamental law found in vv. 23-27 before the law that relies upon it in vv. 20-21? The stems from the fact that the law of motzi shem ra was placed at the beginning of the section, for vv. 20-21 are a sub-section of that law. The reason that the law of motzi shem ra was set at the beginning of the section is a worthy topic of discussion, but not for now.
b. The parallel under discussion is discussed in the baraita in Ketubot 44b-45a that was cited at the beginning of section III. This baraita notes also the difference between the two laws: In the first law, the damsel is stoned at the door of her father's house, while in the second law, at the gate of the city. This difference seems to depend on another difference between the laws: In the first law, the damsel alone is stoned, for we do not know with whom she had had relations, and only the witnesses testify that this is what happened to her (but since the incident took place a long time ago, he already left the city). But in the second case, both the damsel and the man with whom she had relations were caught. Therefore, in a place where only the damsel is stoned, she is punished for having played the harlot while she was in her father's house, and therefore this is done at the door of her father's house, When, however, the law applies to the two of them, the man who had relations with the damsel is not connected to the house of the damsel's father.
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