Parshat Naso

The Ordeal of the "Bitter Waters"

Joel Cohen's Question:

If a man's wife strays, but there is no witness, the husband must bring his wife to the kohen. The kohen takes "sacred water" in an earthenware vessel. He tells the woman that if she did not stray she will be innocent of the bitter waters that possess cursing power; but if she strayed, she is cursed.

Compelled to drink from the bitter waters, if guilty she will die a very painful death. If innocent, the bitter waters will have no impact. Trial by Ordeal.

Does this passage mean to communicate that this seemingly barbaric "trial by ordeal" replaces a true trial to determine guilt or innocence of capital offense?
Was this procedure foolproof—only guilty women would die?
And, putting aside why straying men don't need to submit to the ordeal, should we understand that when the Temple is rebuilt, this "trial" will replace the criminal justice system for such offense?

Rabbi Adam Mintz Responds:

The case of the sotah, the suspected wife, is one of the most problematic sections of the Torah to the modern reader. Joel, you have identified the lawyer's problem with the Torah's description of this case. How can the miraculous drinking of the water substitute for the legal procedure that the Torah demands before punishing a suspected violator of the law?

Actually, the Talmud asks this question in a special tractate that is dedicated to the laws of the sotah. The Talmud concludes that while the ultimate test of the guilt of the woman is determined by the drinking of this special potion, the woman is only tried by the kohen if two witnesses testify that she secluded herself with a man other than her husband. The Talmud, as would be expected, is troubled by how the witnesses can give testimony to the fact that the woman is suspected of committing adultery without actually knowing what transpired. Is witnessing a wife and another man entering a hotel room alone enough evidence to convict them of adultery or does that case require her to drink of the special sotah potion to determine what really took place in that hotel room? This Talmud, Joel, is a lawyer's delight in the detailed way that it defines what constitutes witnessing an event.

Now, the question of whether this test is foolproof is an extension of the first question. The testimony of witnesses in cases of potential adultery is far from foolproof (at least in most cases). How often do two witnesses actually witness the act of adultery? This test was actually initiated to protect the woman against two witnesses who might be too quick to accuse a woman of committing adultery. While there were no blogs or gossip columns in the times of the Torah, it seems that there was a tendency for witnesses to err on the side of guilt in a case of potential adultery. This miraculous potion protected the innocent woman much as it punished the guilty one.

While this test is far from our twenty-first century sensitivities, it can be understood in light of our appreciation of the Torah's approach to law and to both punishing the guilty and protecting the innocent.

Eli Popack Responds:

Some skeptic we have here! You don't question the ability of water mixed with dried ink and a harmless bitter herb to cause someone's body to explode. This you apparently consider a natural outcome of drinking this mixture. You therefore deem this procedure to be a barbaric "Trial by Ordeal," in which only the lucky few are spared and survive.

I, on the other hand, can find no natural explanation why these waters would have any effect whatsoever. To me, someone being affected in such a bizarre and supernatural way would be the exception. If G‑d makes such an outlandish miracle, causing someone to explode upon drinking some bitter water, that would be a clear sign that all natural order is being suspended in order to punish someone who is quite guilty. So there's no reason for concern that these waters were not "foolproof" and could accidentally kill someone innocent.

As far as a criminal justice system, regular court proceedings were held, and the sotah waters were not used if there was even one witness who could definitively testify that the women had actually been unfaithful.

So what is the case of the sotah who drinks the bitter waters?

A husband asks his wife, in the presence of two witnesses, not to seclude herself with a particular man with whom he suspects she is carrying an affair. She ignores this warning. Two witnessed now testify that indeed she has secluded herself with this man—though they have no knowledge of what actually happened when the two were in seclusion.

In such a situation, where the preponderance of evidence is against the woman (and regardless of whether she was actually unfaithful or not, she certainly engaged in behavior that is unacceptable) halachah stipulates that the marriage cannot continue until the matter is cleared up.

And the woman is never compelled to drink the waters. If the women in question pleads guilty – or even if she pleads "not guilty" but merely choose to leave the marriage without suing her husband for alimony – she would not be forced to drink the sotah waters. If she chooses to leave, because there is no conclusive evidence of her misdeed, she suffers no penalty––besides the loss of alimony and perhaps a damaged reputation.

But if she wishes to remain married and prove her innocence, G‑d offers to supernaturally intervene to save this marriage. He creates a supernatural means which He promises to activate to determine whether the woman is innocent or guilty.

G‑d has His ways, and if He is already walking the miracle path, the options of the Infinite G‑d are endless, literally. But He wants to make a point:

We are warned in the Torah not to destroy anything that is associated with G‑d. Every synagogue has its "shaimos" collection where that torn page from an old prayerbook is deposited and eventually taken to be buried—rather than callously discarding an object upon which G‑d's name is inscribed. When writing a Torah scroll or a mezuzah, the G‑d-fearing scribe immerses himself in a mikvah (ritual pool) before inscribing G‑d's name. Even when we write His name in a foreign language, notice that we write "G‑d" with a dash to avoid the possibility that His name could be disrespectfully mishandled.

When a husband and wife seek to maintain their marriage despite momentary differences or fleeting urges to be disloyal, G‑d asks that His holy name be dissolved in the waters that the sotah drinks. As if saying: "I will break all the rules to keep you two together. I'll put everything aside for you, if you will do the same for each other."

In the light of the above, what other "more preferable" means do you suggest for settling this issue when the Temple is rebuilt?