Can Jews rely on gentile courts to dispense justice? The question arose in this week’s Daf Yomi reading, in the course of an extended discussion of the major subject of Tractate Ketubot so far: female chastity. And the rabbis’ answer speaks volumes about their experience with the Roman and Persian governments they lived under. Many moments in the Talmud make clear that Jews in Talmudic times—as in much, perhaps most, of Jewish history—saw non-Jews as potential persecutors. (In Tractate Eruvin, for instance, we learned that a Jew should never live alone among gentiles, for fear that they will murder him.) And the Talmud periodically refers to times when the laws cannot be enforced due to government persecution—as happened after the Bar Kochba revolt in the 2nd century C.E., not long before the Mishna was written down.
In Ketubot 26b, the Mishna raises the question of the status of a woman who has been held in prison “by gentiles.” Should the law presume that she was raped or coerced into sex, which would render her forbidden to her husband if he was a priest? (Ordinarily, a woman is not rendered forbidden to her husband if she is forced into sex, but the standard of sexual purity is higher for priests.) Or should the law presume that she was not violated? The very terms of the question suggest that, in Talmudic times (like today), prison rape was taken for granted.
But this was not true, the rabbis decide, in all circumstances. A woman who was imprisoned for debt—which would have meant, for her husband’s debt, since he was the financially responsible party—is assumed to go unviolated. This is because the object of putting her in prison is to get her husband to pay his debts, which he would be less likely to do if she was mistreated. If, on the other hand, the woman herself is convicted of a serious offense, the assumption is reversed: In that case her captors would have no reason to spare her from rape.
The Gemara, however, goes on to explain that this assumption only holds true “where the authority of the Jewish people is dominant over the nations of the world.” In such a case—for instance, in Judea during the days of the Hasmonean monarchy—the rabbis believe that the powers-that-be can be trusted to exercise justice and restraint, at least in cases of monetary offenses. (Even under Jewish courts, apparently, a woman in prison for a more serious crime is fair game for abuse.)
In a time and place where “the authority of the nations of the world is dominant,” however—and that is the world the rabbis of the Talmud lived in—there is no trusting the powers that be at all. In a gentile prison, then, we assume that even a woman imprisoned for debt is going to be violated, and so she becomes forbidden to her husband. Notably, however, not all later Jewish authorities agreed with this low opinion of non-Jewish governments. The Koren Talmud notes that the Meiri, an important 13th-century commentator, ruled that not all such governments were lawless; gentile judges who were known to obey their own laws could be trusted.
The case of the imprisoned woman is just one of a number of hypotheticals raised in this week’s reading, designed to test the presumption of female chastity. Together these examples create a grim picture of a Jewish society vulnerable to persecution and warfare. Take, for instance, the case imagined in the Mishna in Ketubot 27a. If a city is conquered by siege, the presumption is that all the women in it will be raped by soldiers, so all the priests’ wives are rendered forbidden to them. The only exception is if a woman can bring a witness to testify that she was not attacked. The rabbis strive to make this easier by accepting testimony from people who ordinarily aren’t allowed to appear before Jewish courts, such as slaves and servants. However, the woman herself is not allowed to testify on her own behalf, since the assumption is that she has too great an incentive to lie.
In a characteristic movement, the Gemara turns this all-too-real scenario into an occasion for theoretical speculation. Say that in the conquered city there is a “single hideaway,” a spot where just one woman can save herself from the rampaging soldiers. In this case, it is clear that not all the women in the city could have saved themselves. But what if all of them come before the court and swear that they were the one who took refuge in the hideaway? Each has an equally good claim to be believed, yet we know that only one is telling the truth. How should the court rule in this case?
As the Gemara points out, this is a version of a logical problem that occurs in several places in the Talmud. In Tractate Pesachim, we encountered the scenario of a mouse that brings chametz into one of 10 houses, but we don’t know which one. In Ketubot 27a, the Gemara brings up the case of two paths, one of which is ritually impure because it has a corpse buried under it. If one man walked on each path, then it is certain that one of them has become ritually impure, but there is no way to know which one. What happens, then, if each man comes before a court and wants to be declared pure? There is no way both can be pure, yet there is no presumption that allows the court to call either one impure.
In the case of the paths, the rabbis offer a compromise solution. If the two men come before the court at the same time, they are both deemed impure; but if they come sequentially, one after the other, then they are both deemed pure. This is the Talmud’s way of dealing with the Schrodinger’s-cat-like situation, where two states, tahor and tamei, both exist potentially at the same time. In the case of the women in the conquered city, since the court is considering all of them en masse, it is comparable to the situation where both men come to court at the same time, and so all the women must be considered to have been violated.
But the Gemara is not satisfied with this answer. In the case of the two paths, after all, there is a certainty that one of the two paths has a corpse under it, so one of the two men must be impure. In the case of the city, however, “who says any of the women was violated?” This is a case where we are dealing with a presumption, not a certainty, so perhaps each woman should be given the benefit of the doubt and be treated as if she were the one who saved herself in the hideaway. In the end, the Gemara doesn’t seem to offer a definite answer to this dilemma.
Earlier in this week’s reading, however, we learned a more general legal principle, one that has to do not just with female chastity but with any kind of testimony. This is the principle known as “the mouth that prohibited is the mouth that permitted.” It is a version of the idea we encountered last week, that testimony against interest should be presumed to be truthful. In other words, if a woman swears to something that disadvantages her, and then swears to something that benefits her, we should believe both items of testimony, since her willingness to admit the former establishes her credibility with the latter.
For instance, we learn in Ketubot 22a about a woman who comes before a court seeking to remarry. If the woman swears that she was once married but is now divorced, she should be believed on both counts, since she could have concealed her first marriage altogether. If, however, some other witness comes and establishes that she was indeed married but can’t swear to her being divorced, then she can no longer be believed—the principle of “the mouth that prohibited” is no longer applicable. Paradoxically, then, in some cases it is better to be an unsupported witness than to get corroborating testimony—one of many ways in which Talmudic law can run counter to modern legal intuitions.
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