The Trial Before God of an Accused Adulteress

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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 unto 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 modern 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 Israel 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 Yehudi Cohen has conducted a study to determine which cultures (like ancient Israel) prescribe the death penalty for adultery.¹ He found that societies he calls “inchoate incorporative societies” regularly prescribe the death penalty for adultery. Inchoate incorporative societies are those in the process of peacefully forming into larger social units—for example, from tribes or local governments 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 strengthen 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 its natural ally, and the state will seek to preserve the nuclear family by stringently forbidding adultery.

Israel’s 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 (Leviticus 20:10; Deuteronomy 22:22), it was imposed only for a couple found in flagrante delicto, i.e., in the act. Most cases of adultery are not discovered in this way.

Moreover, people rarely engage in sexual 047intercourse in the presence of two witnesses, yet Israel required the testimony of two witnesses for conviction (Deuteronomy 19:15). Israel nevertheless could not ignore adultery which was not susceptible 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 therefore raised a serious dilemma in Israelite society: You couldn’t 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 impasse, it may resort to what can be called 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 submitted to some form of test 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 to 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 Europe, the guilty party was expected to float and the innocent to 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 modern sense of the word in that the god did not punish the accused, i.e., did not pronounce the sentence. In 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 cases 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 048the jury that 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 unpassable. 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 matter 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 of 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 Hammurabi specify that someone accused of witchcraft should jump into the river (Laws of Hammurabi [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 to 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 to 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 to 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 to the priest; the passage in Numbers informs the priests as to precisely what they are to do in that event. The husband is to 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 the 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 049signals 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 uterus 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 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 the agency of 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 its 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^a (tractate Sotah 2.2) records that during the days of the Second Temple (before 70 A.D.), 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 the 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 article 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),” Vetus Testamentum 34 (1984), pp. 11–26.

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 unto 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 modern 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 […]