“Who’s Your Daddy?”

And Hashem spoke unto Moshe, saying: Speak unto the children of Israel, and say to them, “If any man's wife go aside, and act unfaithfully against him, and a man lie with her carnally, and it be hid from the eyes of her husband, she being defiled secretly, and there be no witness against her, neither she be taken by force in the act;“ (Sefer BeMidbar 5:11-13)

1. Introduction: The Torah’s definition of adultery

Some elements of the Torah seem strange and even unreasonable from our contemporary perspective. One of these elements is the Torah's definition of adultery. According to the Torah, adultery only occurs though the sexual intimacy of a married woman and a man other than her husband. A married man who has an affair with a single woman is not regarded as an adulterer. Marriage is a commitment between a man and a woman. They pledge to each other their fidelity and love. Why is a man's disregard for his marriage commitment treated more lightly than the wife's extramarital affair?

This is a multi-faceted issue. One of the difficulties that complicate any discussion of the questions is that it is associated with various aspects of Torah law that suggest gender inequality. In other words, the discussion of adultery becomes entangled with the larger issue of the Torah position on gender.

The following discussion does not deal with the larger issue of the Torah's outlook on gender. It is focused on one specific issue – the Torah's treatment of adultery.

2. The difficulty in enforcing a prohibition against adultery

Parshat Naso includes the mitzvah of sotah. The commandment has many unique aspects. The starting point in the study of this commandment is the prohibition against adultery. As noted above, the Torah defines adultery as sexual intimacy between a man and a married woman. When such a liaison takes place both the man and the woman have violated the prohibition and are subject to the same punishment. If the incident occurred in the presence of witnesses, the two participants may be subject to the death penalty.

By its very nature, this behavior is not easily regulated by the courts or even by society. Adultery is a private act. It takes place hidden from the public eye. A husband or wife may suspect a spouse of adultery yet not have definite knowledge that actual adultery has taken place.

The Torah's attitude toward adultery presents a dilemma. It condemns it in the strongest terms. It is one of the prohibitions that is included in the Decalogue. Yet, this behavior is extremely difficult to regulate. The prohibition cannot be enforced through normal judicial procedures.

The passages above explain that this issue is addressed by the mitzvah of sotah. Essentially, this mitzvah acknowledges that this is not a prohibition that can be enforced by the courts. Instead, it enlists Hashem in the enforcement of the prohibition.

And when he has made her drink the water, then it shall come to pass, if she be defiled, and has acted unfaithfully against her husband, that the water that causes the curse shall enter into her and become bitter, and her belly shall swell, and her thigh shall fall away; and the woman shall be a curse among her people. And if the woman be not defiled, but be clean; then she shall be cleared, and shall conceive. (Sefer BeMidbar 5:27-28)

3. The Torah’s solution

The mitzvah of sotah is the only instance in which the judgment of a crime is not performed by the court and punishment is not executed by the court. Instead, both the judgment and the punishment rely upon a miracle.

The parasha provides a description of the process through which the sotah and her suspected partner are judged and – if guilty – punished. In summary, it is the husband of the suspected wife who is charged with the duty of initiating the trial. He cannot do this with without warning. He must first express his concerns to his wife and share his suspicions. He can only proceed with acting against his wife if she ignores these concerns and continues to liaison in seclusion with the man with whom the husband suspects the wife is intimate. If these conditions are met, then the husband can place his wife into the hands of the kohanim – the priests – to be tried. The kohanim are not judges and they do not conduct a judicial proceeding.

The wife is not required to agree to these proceedings. However, at this point, clear evidence does exist that the wife and her suspected partner have at least entered into seclusion together. This seclusion took place after the husband had shared his suspicions with his wife. If the wife is not willing to resolve these suspicions and exonerate herself through these proceedings, then she and her husband must divorce.

The proceedings include elements of avodah – sacrificial service – and a non-judicial proceeding that determines the guilt or innocence of the woman and her suspected partner. This element incorporates the miracle that is the most unique element of this mitzvah. The kohen creates a mixture that combines water from the laver of the Tabernacle – the Mishcan, dirt from the floor of the Mishcan, and one more ingredient.

This last ingredient is complex. The kohen records the Torah portion of the mitzvah of sotah. He then scrapes the letters of the text into the mixture.

The woman drinks the mixture. If she is guilty, then the mixture is fatal. It is fatal not only for her. Her partner, even though he does not participate directly in the test, also dies.[1]

And Hashem spoke unto Moshe, saying: Speak unto the children of Israel, and say unto them, “I am HaShem your G-d. After the behaviors of the land of Egypt, wherein you dwelt, you shall not follow. And after the doings of the land of Cana’an, to where I bring you, you shall not follow. Neither shall you follow their statutes. You shall observe My ordinances and My statutes you shall keep, to walk therein. I am Hashem your G-d. You shall therefore keep My statutes, and Mine ordinances, which if a person does, he shall live by them. I am Hashem. None of you shall approach to any that is near of kin to him, to uncover their nakedness. I am Hashem.” (Sefer VaYikra 18:1-6)

4. The odd placement of the mitzvah of sotah within the books of the Torah

The placement of this discussion in the beginning of Sefer BeMidbar is very difficult to understand. Where should this discussion appear in the Torah? The parshiyot – Torah sections – of Kedoshim and Acharei Mot both focused on the Torah's sexual prohibitions. The above passages introduce that discussion. The prohibition against adultery is included in the presentation. Those sections would be a perfect context for discussion of the mitzvah of sotah. Furthermore, those sections are part of Sefer VaYikra. Sefer VaYikra deals extensively with the roles, duties, and responsibilities of the kohanim. The entire sotah proceeding is conducted by the kohen. Sefer VaYikra would be the appropriate context for this mitzvah. Why it this mitzvah presented at this point?

And Hashem spoke unto Moshe and unto Aharon, saying: The children of Israel shall pitch by their fathers' houses; every man by his own standard, according to the ensigns; a way off shall they pitch around the tent of meeting. (Sefer BeMidbar 2:1-2)

5. The purpose of the Sefer BeMidbar census

Sefer BeMidbar begins with a census of Bnai Yisrael. Based on this census each person was assigned a specific place to set up one’s tent and when the nation camped. This census also assigned to each person a specific place within the procession of the nation as it traveled through the wilderness. In other words, the census was the fundamental tool for the planning of Bnai Yisrael’s “neighborhoods” and communities.

Through the census, each person was assigned to a shevet – a tribe. Each tribe was assigned a place within a degel – a group of three tribes. Each degel was assigned a position with the camp surrounding the Mishcan and within the procession of the nation, when traveling.  As a result of this scheme, the members of each tribe camped together in an assigned place. Each tribe camped within a group of three specific tribes. When the camp traveled, the same scheme was implemented. Each person traveled within one's assigned tribe and each tribe traveled with the other tribes of its degel.\

An important outcome of this design is that it nurtured a strong community. Family members camped together and were surrounded by families from their own shevet. Each shevet was surrounded or adjacent to set, unchanging partners. The larger a community the more difficult to create a high degree of social cohesion. Bnai Yisrael was a community of over a million individuals. In other words, its population was larger than Seattle’s. Creating social cohesion in a group this size is difficult and perhaps impossible. But the Torah divided this multitude into smaller shevet-groups. In these groups the "degrees of separation" between families and individuals were reduced. Everyone could know or have a tangible sense of connection with those who surrounded him. The result is a supportive community.

If your brother be impoverished, and he sells some of his legacy, then shall his kinsman that is next unto him come, and shall redeem that which his brother hath sold. (Sefer VaYikra 25:25)

A poor person who is one's relative receives priority over all others. The poor of one's household receive priority over the poor of one's city. And the poor of one's city receive priority over the poor of another city, as [implied by Deuteronomy 15:11]: "[You shall surely open your hand to] your brother, the poor, and the destitute in your land." (Maimonides, Mishne Torah, Matanot Aniyim 7:13)

6. The importance of family and community

The importance of community and family is discussed in the ending sections of Sefer VaYikra. There, the responsibilities of family to come to the rescue of a member who is impoverished is repeatedly mentioned. The above passage is one example of this emphasis. This value is codified in the laws governing tzedakah – charity.  Maimonides discusses this issue in his laws governing tzedakah. We are required to give priority to helping our family members and members of our own community.

In short, the Torah's system of encampment reflects an outlook on social design. Family, shevet, and community are reinforced. A strong community is nurtured between these families and individuals. Members of the family and community are encouraged to render assistance to one another.

7. A person’s shevet is determined by one patrilineal descent

An important aspect of the system of encampment is the means by which individuals are assigned to their respective shevet. This is determined by patrilineal descent. One's shevet is determined by one's father. If the father was a member of Shevet Reuven then his children are members of this shevet.

Now, let us return to the discussion of sotah and the placement of this mitzvah in the context of the description of the camp of Bnai Yisrsel. Apparently, the discussion of the camp segues into the mitzvah of sotah. The organization of the camp is founded upon patrilineal descent. The mitzvah of sotah is designed to protect patrilineal integrity.

It is not difficult to determine the mother of a child. Determination of the father requires more than an empirical observation. The degree of certainty of fatherhood is a function of the fidelity between mother and husband. If this fidelity is in question, the child cannot be certain of his father's identity. The proper shevet of the child is in doubt and one’s place within the community is undermined.

The design of the encampment emphasizes the importance of strong family structure. The most basic unit of family is parents and their children. If the certain identity of the father is in doubt, the family unit is undermined. Father and child must struggle with the uncertainly underlying their relationship. The unit that is the very bedrock of the community is damaged.   The mitzvah of sotah is directly related to the importance of preserving the basic family unit – mother, father, and children.

8. Understanding the Torah’s definition of adultery

It follows that the infidelity of the wife and husband are treated differently. A husband's infidelity is a violation of the trust that is the foundation of marriage. However, it does not give his and his wife's children cause to doubt that he is their father.

The commentators offer a variety of views on the reasoning behind the Torah's severe attitude toward adultery. However, their opinions share a common thread – the importance of clear parental identification. The above analysis indicates that this view is reflected in the Torah’s presentation of the mitzvah of sotah.

 

[1] Rabbaynu Shlomo ben Yitzchak (Rashi), Commentary on Sefer BeMidbar 5:22.