Was the Sotah Meant to be Innocent?

Print Friendly, PDF & Email

The Sotah ritual (Numbers 5:11-31) is among the more difficult passages in the Torah.[1] A husband who accuses his wife of marital infidelity in the absence of witnesses can bring her to a Kohen. After swearing an oath, she drinks a water-based concoction (mei ha-marim ha-me’aririm) consisting of dirt from the floor of the Mishkan and ink from a written curse containing God’s name that is wiped off in the waters. If innocent, she is absolved, but if guilty, God causes physical effects to occur—possibly, depending on how one interprets it—miscarriage, infertility, or even death.

This passage doesn’t sit well with modern readers. It sounds uncomfortably like trial by ordeal, evoking specters of barbaric medieval justice such as burning the accused’s hand with hot iron or dunking the accused in cold water to determine guilt or innocence.[2] One might recall the famous satirical treatment of trial by ordeal in Monty Python and the Holy Grail, in which the misguided townsfolk decide a woman is a witch when they find that she weighs more than a duck. This scene is anything but subtle, proclaiming trial by ordeal irrational and unpredictable—foolish at best and more likely deadly. No doubt these kinds of unpleasant associations led Rabbi Joseph Hertz in his Torah commentary to point out that at least Sotah is “the only explicit instance in scripture of trial by ordeal,” while other cultures, from antiquity to the Middle Ages, used it far more frequently.[3]

But what if we are viewing the Torah’s legislation backward? In the twentieth century, three Jewish interpreters from different religious backgrounds concluded that Sotah was not an ordeal at all in the traditional sense. R. Herbert Chanan Brichto, an academic Bible scholar and dean of the Reform Hebrew Union College, R. Emanuel Rackman, a Modern Orthodox thinker at Yeshiva University who later became president of Bar Ilan University in Israel, and R. Yaakov Kamenetsky, student of the famed Slobodka Yeshiva in Europe and Rosh Yeshiva of Torah Vodaath in Brooklyn, all independently argued that the point of the Sotah ritual was to find the woman innocent. Exploring their similar approaches as well as their points of departure sheds light on how counterintuitive readings can shift our perspective on difficult Torah passages and sharpen our understanding of the textual and extratextual motivations of the Torah’s interpreters.

Brichto suggests that the Torah legislated Sotah to curb the unreasonable way a husband might react to the situation.[4] He writes that in ancient Israel, “in general the condition of wives was subordinate if not subjugated” and “it requires no stretch of our imagination to evoke the kinds of mistreatment to which a man might have subjected his wife” should he imagine that she was unfaithful. The Sotah ritual was tailored to curb these excesses. “[T]he ritual for the suspected sota is a ploy in her favor—it proposes that the husband ‘put up or shut up.’”[5] In Brichto’s reading, it is all “a transparent charade … a ritual drama in which the tragic figure of the accused wife seems to hold center stage, whereas the cognoscenti in the audience have their attention fixed on the comic (unconsciously clownish) figure of the insanely jealous husband hovering near the wings.”[6] To Brichto, there is little doubt that the waters will find her innocent; it is, after all, merely a psychological test: “we today, for all our recognition of the psychic phenomenon of the power of suggestion, can appreciate that the effect of the conditional curse would be nil in the case of an innocent addressee and of a low order of probability even in the case of a guilty one.”[7] Thus, “A jealous husband, possessing not a scintilla of evidence against his wife, is asked to subject her to a test in which all the cards are stacked in her favor! Just so! That exactly is the intent and purport of the entire case.”[8] According to Brichto, the waters would do nothing. The point is that the people believed it would work and would accept the verdict when the woman was vindicated. So instead of a lynch mob, we end up with a procedure tempering the anger of a jealous husband and saving an innocent woman.

R. Yaakov Kamenetsky views the episode through a very similar lens. In Emet le-Yaakov, compiled by R. Yaakov’s student and grandson-in-law R. Doniel Neustadt, R. Yaakov is reported to have taught that the point of the unique procedure was to find the woman innocent. Like Brichto, Emet le-Yaakov suggests that the Torah was concerned about a jealous husband. If a man suspects his wife, Emet le-Yaakov surmises, “the doubt will never leave him unless God, so to speak, Himself promises that she is actually pure.”[9] Even two witnesses or a prophet, Emet le-Yaakov says, would not change his mind. For although we are commanded to obey the words of a prophet, “the nature of a man in these matters is that he will not be free of concern unless he is reassured by means of demonstration.”[10] Accordingly, “the purpose of the Sotah passage is not to punish the sinner, but to the contrary—to prove that she will be deemed innocent even in the eyes of her husband beyond a shadow of a doubt.”[11] He closes by noting that his thesis explains the Talmud’s statement (Hullin 141a): “So great is peace between a man and his wife that the Torah says that the Name of God, written in holiness, shall be erased by the water.” The question is obvious: if the woman will die when she drinks, what peace and harmony will there be? Rather, Emet le-Yaakov argues that the ritual is tailored to the innocent, and after the husband receives definitive proof of his wife’s innocence, the marriage will be strengthened.

In some ways, Brichto’s approach is easier to understand. He believes that the ritual operates on nothing more than the power of suggestion. If the wife drinks, she almost certainly will be found innocent. Emet le-Yaakov, however, presumably believed in the ritual’s efficacy. How, then, was he convinced that the woman would be vindicated? Moreover, although Emet le-Yaakov relies on one citation from Hazal that seems to support his thesis, the thrust of many other rabbinic statements suggest otherwise. The Mishnah and Talmud detail a humiliating procedure in which the woman is brought to the Mikdash, frightened with stories of biblical adulterers, then debased by having her hair uncovered, jewelry removed, and some of her clothing torn (Mishnah Sotah 1:4-6; Sotah 7b).[12] This procedure seems designed to produce a confession before she had to drink (Mishnah Sotah 1:5), a point Rambam emphasized (Hilkhot Sotah 3:2-3). If she’s guilty, according to the Mishnah, it seems as though she dies a gruesome death (Mishnah Sotah 1:7, 3:5). And the Mishnah says nothing about the possibility of her innocence.[13] Indeed, in the rabbinic view, even if the waters found her innocent, she still bears some measure of guilt, as she inappropriately secluded herself with another man after being warned not to do so (Mishnah Sotah 1:1-1:2).[14] After all this, innocence almost seems a side point: the rite was administered in a way that all but assumes the woman’s guilt.

Although Emanuel Rackman, our third thinker, does not acknowledge Emet le-Yaakov, his approach sheds some light on these issues.[15] Rackman analyzes the Sotah ritual as understood by the Sages. He suggests that there were two opposing views among the rabbis. “One group maintained that the ritual was an ordeal by which God’s intervention proved her guilt or innocence.”[16] But the other group of rabbis—and it is this group we are most interested in here—viewed the ritual as “a pseudo-judicial event designed to extract a confession from the accused if she was guilty, whereupon she would be divorced and would only forfeit her monetary rights under her ketubah. On the other hand, her innocence would be established if she was so, thus restoring her husband’s erstwhile love and confidence.”[17] According to this second group of rabbis, the harrowing procedure detailed there would all but force a guilty woman to confess.[18] Only an innocent woman would choose to drink. It seems likely that Emet le-Yaakov would agree: the frightening gauntlet of demeaning acts described in the Mishnah would weed out guilty women, leaving the waters test for the innocent.

All three thinkers reach the same basic conclusion: the waters were for the innocent, not the guilty. But there are stark differences as well. Brichto sees the ritual as a means of wresting control from a misguided husband who otherwise would always have the upper hand. The ritual administered by the Kohen will protect the woman from a false accusation. Brichto calls it “a record of one Scriptural attempt to redress in a small measure a sadly lopsided balance” between men and women.[19]

Emet le-Yaakov gives no indication that the Torah wanted to protect the woman. He suggests instead that the Torah wanted to appease the man and calm him down to salvage the couple’s relationship. Given the husband’s frenzy over his wife’s suspected infidelity, God must intervene. In Neustadt’s presentation of the piece, R. Yaakov doesn’t even criticize the man for the bitter jealousy that would cause him to ignore witnesses or prophets—he chalks it up to human nature.

Rackman is somewhere in between. On the one hand, he sounds like Emet le-Yaakov when he says that “many of the rabbis saw in the ritual a sophisticated psychological device—virtually a drama to reconcile a suspicious, jealous husband to his indiscreet, but innocent wife.[20] On the other hand, he also focuses on the fact that in the Sages’ approach, a guilty woman is not punished by the court, but urged to confess, after which she gets divorced, but is not punished beyond the loss of the money promised to her in her ketubah. Rackman also stresses that cases of such confessions would be “rare.”[21] So he too expresses concern regarding the woman’s wellbeing.

Another distinction between these commentators concerns their beliefs about the efficacy of the bitter waters in the ritual. Brichto is bothered by the idea that at first glance, the Sotah ritual appears to be an “unperturbed recourse to a rite which reeks of magic, a practice against which scripture generally sets its face.”[22] By denying the ritual’s efficacy and transforming it into a psychological one, Brichto is satisfied that it is no longer magical. R. Yaakov, however, surely believed that God could make such a miracle, and he says nothing about its “magical” aspect, even while focusing on the likelihood of her innocence. Rackman is again somewhere in between. He does not explicitly deny the possibility of a miracle, but he stresses lo bashamayim hi—that the Halakhah is not decided based on heavenly signs,[23] that the mixture she drinks “was medically harmless,”[24] and that Jewish law must be “rational and natural.”[25] These points influence his conclusion that the procedure was meant to be a psychological test resulting in either confession or vindication by a harmless drink. One gets the impression that although Rackman believed the waters theoretically could kill, it was never meant to happen in practice.

Finally, the three thinkers are working within different frameworks. Brichto is grounded in the biblical text, and he calls the Mishnah’s approach a “distortion of the text for its own purposes.”[26] But it’s clear that in addition to presenting what he believed to be the most plausible interpretation of the text, Brichto wanted Sotah to better conform to modern sensibilities. He suggests that with his interpretation, the Sotah ritual becomes one “which presents no ordeal, which is untainted by magic, and which achieves its design: a fair-mindedness deserving the plaudits of the most fastidious of hodiernal moralists.”[27]

Rackman reaches essentially the same conclusion as Brichto about the purpose of the ritual but does so from within the Sages’ reading of Sotah, not from the biblical text. Rackman marshals evidence from rabbinic texts, such as the Talmudic passage about the erasure of God’s name also cited by Emet le-Yaakov, the fact that oaths were often taken to clear the oath-taker, not punish them, and the fact that confession ends the ordeal without further punishment.[28] Despite operating in a different framework, Rackman clearly shares Brichto’s desire to conform Sotah to modern ideas about fairness, justice, and rationality.[29] In a sense, his approach typifies the Modern Orthodox attitude, which seeks to both fully accept tradition (hence his unwillingness to completely deny the waters’ efficacy) while also harmonizing it with contemporary mores.

Emet le-Yaakov is somewhat harder to pin down. It is a biblical commentary, but like Rackman, it emphasizes the rabbinic approach that places paramount importance on the couple reconciling. One might additionally suggest that as a student of the mussar yeshivot in Europe that focused on ethics and character development, Emet le-Yaakov endeavors to find a psychological explanation for the Torah’s deviation from typical judicial procedures. Here he proposes that the Torah delves into the man’s psyche and fashions an approach to counter the all-consuming jealousy of a husband who will be appeased by no other means. Also, Emet le-Yaakov is defined by its creativity, exploring topics often overlooked by others in the Yeshiva world, such as grammar, the Aramaic targumim, and the musical ta’amim.[30]

And yet, one suspects that even Emet le-Yaakov drew upon contemporary currents. Brichto published his article in an academic Bible journal, Rackman in a law journal, and R. Yaakov only orally presented his approach, which Neustadt later transcribed. There’s no evidence that any one of the three was influenced by either of the other two. That three thinkers writing for different audiences and operating in different religious and intellectual circles came to the same idea around the same time suggests that their approach solves something. Despite their differences, all three approaches seem particularly well-suited for the modern reader troubled by the notion of trial by ordeal, which as noted at the outset, reeks of a medieval backwardness, even if divinely determined. Although there is no conclusive evidence in the text of the Torah to support these thinkers’ suggestion—and it seems perhaps overly apologetic—by reconceptualizing Sotah as a means of vindication, not a way to determine guilt, it becomes more palatable to a modern audience.

This sentiment could explain the staying power of the approach. In the JPS Torah Commentary, Jacob Milgrom adopts Brichto’s approach and takes it further, focusing on the fact that by bringing the matter to a Kohen, an emissary of God, justice is taken out of the hands of the people. God’s justice, not flawed human justice, will thus prevail.[31] In an article for My Jewish Learning, R. Avi Shafran, a spokesman for Agudath Israel of America, adopts Emet le-Yaakov’s approach, although without citing him by name.

And maybe there’s more to this suggestion than mere apologetics. It’s particularly fascinating that in 2012, a similar thesis appeared in the scholarly literature about trial by ordeal writ large. Economist Peter Leeson argues (popularized here) that in general, medieval trial by ordeal was for the innocent. Because people believed in the ordeal’s efficacy, the guilty would confess in order to avoid injury. Only the innocent would put themselves to the test. The priests, knowing this, would rig ordeals so that they tended to vindicate the accused, such as by lowering the temperature of the boiling water so that the burn would heal faster and be interpreted as a sign of innocence from God.[32] According to Leeson, rituals that command belief can be a highly effective means of dispensing justice and separating the guilty from the innocent, maybe as much so as our criminal justice system with all its complexities, shortcomings, and costs. Leeson’s theory thus transforms medieval trial by ordeal into a psychodrama of its own using less apologetics and more economics.

Perhaps Leeson’s approach provides some support for that of our three thinkers. Or maybe not. In the end, God didn’t reveal in the Torah why Sotah is treated so differently from other legal proceedings. But whatever the peshat in the Sotah passage may be, it says something that three thinkers from very different backgrounds, in their quest to clarify this challenging text, hit upon the same fundamental idea: that a test which seems to unfairly single out a woman for an unproven crime might have really been fashioned by God proclaim her innocence beyond the shadow of a doubt.

[1] I would like to thank my fellow editor Yisroel Ben-Porat for sharing his substantial knowledge of the topic with me and improving the article considerably.

[2] See J.H. Baker, An Introduction to English Legal History 4th ed. (Oxford: Oxford University Press, 2007), 5.

[3] J. H. Hertz, ed., The Pentateuch and Haftorahs 2nd ed. (London: Soncino Press, 1960), 589.

[4] Herbert Chanan Brichto, “The Case of the Sota and a Reconsideration of Biblical Law’,” Hebrew Union College Annual 46 (1975): 55-70.

[5] Ibid., 67.

[6] Ibid.

[7] Ibid., 66.

[8] Ibid.

[9] Emet le-Yaakov, ed. Doniel Neustadt, 2nd edition (1996), 422.

[10] Ibid.

[11] Ibid., 423.

[12] Sifrei (Numbers 5:11) presents the dissenting opinion of R. Yohanan b. Berokah objecting to some of these practices and stating that “we don’t disgrace the daughters of Israel more than what is written in the Torah,” but his opinion is not recorded in the Mishnah.

[13] See Ishay Rosen-Zvi, The Mishnaic Sotah Ritual: Temple, Gender and Midrash (Brill, 2012), 3.

[14] Yerushalmi Sotah 3:5 records a rather extreme opinion that because the woman secluded herself inappropriately, she will die a painful death even if found innocent by the waters.

[15] Emanuel Rackman, “The Case of the Sotah in Jewish Law: Ordeal or Psychodrama?National Jewish Law Review 3 (1988): 49-64.

[16] Ibid., 49

[17] Ibid., 49-50.

[18] See ibid. at 63.

[19] Brichto, 68.

[20] Rackman, 60.

[21] Ibid.

[22] Brichto, 55. In Brichto’s aversion to magic, perhaps one can also see the influence of James George Frazer’s turn-of-the-century work The Golden Bough, a widely cited multi-volume anthropological study which theorized that belief in magic represented a primitive approach to the natural world that was later supplanted by religion and yet again by science.

[23] Rackman, 54.

[24] Ibid., 60.

[25] Ibid., 64.

[26] Brichto, 67.

[27] Ibid., 56.

[28] Rackman, 61-64.

[29] Lisa Grushcow, in her study of rabbinic approaches to Sotah, criticizes Rackman’s theory for its apologetics, particularly his convenient notion that the Sages could not publicly express their view that Sotah was meant to be a psychodrama for fear “that public criticism of the supernatural approach would have vitiated the value of the sotah ceremony as they perceived it” (Rackman, 49), which makes his theory largely dependent on an argument from silence and reading between the lines. Lisa Grushcow, Writing the Wayward Wife: Rabbinic Interpretations of Sotah (Brill, 2006), 23-24. Rackman was also criticized in the Yeshiva world for his view. In the Jewish Observer, rabbi and law professor Aaron Twerski wrote that Rackman’s suggestion that “the Torah prescribed a psychological hoax and the Talmudists engaged in a conspiracy of silence not to let the cat out of the bag” was “simply blatant kfira.” Aaron Twerski, “A Rejoinder to Dr. Norman Lamm,” Jewish Observer (Summer 1988), 21 n.6. So Rackman was attacked from both academic and religious perspectives. Twerski’s critique, however, is somewhat ironic given that R. Yaakov had been a mainstay of Agudath Israel of America, the publisher of the Jewish Observer, and R. Yaakov’s view on Sotah is quite close to Rackman’s. But R. Yaakov’s view first appeared in the second edition of Emet le-Yaakov, which was published in the 1990s, after Twerski’s article was published. I want to thank R. Michael Broyde for making me aware of Twerski’s critique.

[30] As an example of one of the atypical issues explored, see Emet le-Yaakov’s suggestion that God allowed black magic to flourish during the age of prophecy, zeh le-umat zeh, so that people had a choice what to believe in. If there was only true prophecy, humankind would have little choice but to follow God’s directives. Emet le-Yaakov, 263-64.

[31] The JPS Torah Commentary: Numbers, Jacob Milgrom, ed. (The Jewish Publication Society, 1989), 349-50. See also Jacob Milgrom, “The Case of the Suspected Adulteress, Numbers 5:11-31: Redaction and Meaning,” in The Creation of Sacred Literature: Composition and Redaction of the Biblical Text, Richard Elliot Friedman, ed. (University of California Publications: Near Eastern Studies 22, 1981), 69-75.

[32] Peter T. Leeson, “Ordeals,” Journal of Law and Economics 55 (University of Chicago, 2012): 691-714.

Yosef Lindell is one of the editors of the Lehrhaus and is a lawyer, writer, and lecturer living in Silver Spring, MD. He has an MA in Jewish history from Yeshiva University and a JD from NYU Law, where he was a Tikvah Scholar in 2011. His writing spans several genres, from science fiction to Jewish scholarship, and he’s been published in venues such as the Atlantic, the Forward, Modern Judaism, and Jewish Action. Check out more of his writing at