Adultery is voluntary sexual intercourse between a married woman, or one engaged by payment of the brideprice, and a man other than her husband.
- In the Biblical Period
- In Narrative, Prophectic & Wisdom Literature
- As a Metaphor for Idolatry
- In Jewish Law
- Adultery Due to Mistake of Fact
- Adultery Due to Ignorance of the Law
In the Biblical Period
The extramarital intercourse of a married man is not per se a crime in biblical or later Jewish law. This distinction stems from the economic aspect of Israelite marriage: the wife was the husband's possession, and adultery constituted a violation of the husband's exclusive right to her; the wife, as the husband's possession, had no such right to him. Adultery is prohibited in the Decalogue (Ex. 20:13; Deut. 5:17), where it is listed between murder and theft (cf. Jer. 7:9; Ezek. 16:38; Hos. 4:2; Ps. 50:18; Prov. 6:30 ff.; Job 24:14–15) among offenses against one's fellow. Like all sexual wrongs, it defiles those who commit it (Lev. 18:20; Num. 5:13). It is termed "(the) great sin" in Genesis 20:9 and in Egyptian and Ugaritic texts (cf. [ha]-ʿAverah, "[the] transgression," for sexual crimes in rabbinic texts, e.g., Av. Zar. 3a). Its gravity is underscored by its being punishable by the death penalty for both the man and the woman (Lev. 20:10; Deut. 22:22). Stoning by the public, a procedure often prescribed for crimes felt to threaten the well-being of the nation as a whole, among which were sexual crimes (Lev. 18:24–27; 20:22; Deut. 24:4; cf. Jer. 3:1–2), is mentioned in Deuteronomy 22:24; cf. Ezekiel 16:40; 23:46–47 (cf. John 8:3–7). Other punishments are reflected in non-legal texts. Burning is mentioned in Gen. 38:24 (cf. Lev. 21:9). Stripping, known in ancient Near Eastern divorce procedure, is reflected in the metaphor of Hos. 2:5 and mentioned in Ezekiel 16:37, 39; 23:26. The mutilation mentioned in Ezekiel 16:39; 23:25 does not seem to reflect Israelite practice, but rather the legal traditions of Mesopotamia, where Ezekiel lived (cf. 23:24: "[the nations] shall judge you according to their laws," and, cf. The Middle Assyrian Laws, 15 in Pritchard, Texts, 181; the same punishment for adulteresses in Egypt is attested by Diodorus Siculus, Bibliotheca, 1:18, according to G.A. Cooke, The Book of Ezekiel, 254).
Other ancient Near Eastern law collections also prescribe the death penalty for adulterers, but, treating adultery as an offense against the husband alone, permit the aggrieved husband to waive or mitigate the punishment (The Code of Hammurapi, 129, in: Pritchard, Texts, 171; The Middle Assyrian Laws, 14–16, in: Pritchard, Texts, 181; The Hittite Laws, 197–98, in: Pritchard, Texts, 196). Biblical law allows no such mitigation. Because the marriage bond is divinely sanctioned (cf. Mal. 2:14; Prov. 2:17) and the prohibition of adultery is of divine origin, God as well as the husband is offended by adultery (cf. Gen. 20:6; 39:8–9; Ps. 51:6), and an offense against God cannot be pardoned by man. Mesopotamian religious literature also views adultery as offensive to the gods, but, unlike the situation in Israel, this religious conception is not reflected in Mesopotamian legal literature.
Whether the severe provisions of the law were actually carried out in biblical times cannot be ascertained. Proverbs 6:23–35, warning of the harm and disgrace which will befall the adulterer, and Job. 31:11, which terms adultery "an assessable transgression" (E.A. Speiser, JBL, 82 (1963), pp. 301–306) seem to assume that the crime could be composed monetarily at the husband's discretion. But whether passages from the wisdom literature, with its strong international literary ties, reflect actual practice in Israel is a moot question.
As in other cases, here too, biblical law distinguishes between intentional and unintentional acts. In the Priestly Code, the final clause in Numbers 5:13 (lit. "she was not caught"; cf. the use of the word in Deut. 22:28) may mean that a woman who has had extramarital intercourse is guilty only if she was not forced. In the Deuteronomic Code (Deuteronomy 22:23–27), the presumption of consent on the part of the engaged girl is treated: If in the open country where no help would be available in response to a cry from the girl, she is presumed to have been forced and only her attacker is executed; if the crime occurred in the city, where help would presumably have been afforded her had she cried out, she is presumed to have consented, and is stoned with her paramour. No such presumptive distinction is made in this passage regarding the married woman: she and her lover must die in any case (Deut. 22:22; unlike The Hittite Laws, 197, in: Pritchard, Texts, 196, which makes this very distinction for married women). According to J.J. Finkelstein (JAOS, 86 (1966), 366 ff.; JCS, 22 (1968–9), 13), the absence of such a distinction may reflect reality: the experience of daily life may have shown that married women who had had extramarital intercourse were likely to have been seeking sexual experience. While payment of a brideprice established a marriage tie constitutive of adultery, the "designation" of a slave woman to marry a man (free women are engaged by brideprice while slave women are designated for marriage by their masters; cf. Ex. 21:8) does not establish such a tie before the woman has been redeemed or freed. Hence a designated slave woman and her paramour are not executed, but the paramour must pay an indemnity and bring a guilt offering (Lev. 19:20–22). The question of the slave woman's consent is not raised in the law, presumably because she is not a legal person and her consent is legally immaterial.
Evidence for prosecution of adultery is scant in the Bible. Some passages suggest the husband's initiative in prosecuting (Num. 5:11–31; cf. Prov. 6:32–35), while another might be construed as reflecting public initiative (Deut. 22:22; cf. Sus. 28–41, 60 ff.). None of these passages is decisive. If a husband in a fit of jealousy but without evidence suspects his wife of adultery, the case is turned over to God (by means of the "ritual for cases of jealousy," Num. 5:11–31; see Ordeal of Jealousy) for decision and, where the wife is guilty, for punishment.
In Narrative, Prophetic & Wisdom Literature
The theme of adultery appears in several biblical narratives. Abraham's and Isaac's wives were taken or nearly taken by foreigners who believed them to be the patriarchs' sisters (Gen. 12:10–20; 20:2 ff.; 26:6–11), but Genesis 20:4 and 26:10 deny that any sexual contact took place. It is noteworthy that these passages seem to assume that these foreigners would sooner commit murder than adultery, "the great sin." Tamar's fornication (Gen. 38) might be viewed as technically adulterous, since she had already been assigned for Shelah. Potiphar's wife attempted to seduce Joseph, who refused to sin against his master and against God (Gen. 39:7–12). David committed adultery with Bath-Sheba, wife of Uriah the Hittite (II Sam. 11). The narrative about Hosea's marriage (Hos. 1) describes Hosea's wife as adulterous, but this is probably a legendary motif of the sort typical in third-person prophetic narratives (see Hosea).
Adultery is one of the crimes with which the prophets, particularly Hosea (4:2; etc.) and Jeremiah (7:9; 23:10, 14; etc.), charged Israel. The adultery and ravishing of wives is mentioned among threatened punishments (Deut. 28:30; Amos 7:17).
The book of Proverbs warns extensively against the seductions of the adulterous woman (2:16–19; 5:1–14; 6:24–35; 7:5–27; cf. 30:20). She is a gadabout (a frequent description of promiscuous women in the ancient Near East: cf. Gen. 34:1; The Code of Hammurapi, 141, 143, in: Pritchard, Texts, 172; J.J. Finkelstein, JAOS, 86 (1966), 363, with nn. 28–29), rarely found in her own home (Prov. 7:11–12). She uses a smooth tongue to lure the foolish – like oxen to the slaughter – to her bed (2:16; 5:3; 6:24; 7:13 ff.). Adulterers seek the protection of darkness (7:9; cf. Job 24:15; Eccles. 23:18). The adulterer is more foolish than a thief, who will at least escape with his life (Prov. 6:30 ff.). Wisdom warns (6:20 ff.; 7:4 ff.) that traffic with the adulterous woman leads inevitably to loss of wealth (5:9–10) and life (2:18–19; 5:5; 6:32–35; 7:22–23, 26–27). One ought to "drink water from his own cistern" (5:15) and not from another's.
As a Metaphor for Idolatry
The exclusive loyalty which Israel must give God is analagous to the exclusive fidelity a wife owes her husband. Thus, Israelite religion seized upon the metaphor of marriage to express Israel's relationship with God and already in early texts employed language from the sphere of adultery to describe worship of other gods: Israel "goes a-whoring" (zanah) after other gods (Ex. 34:16; Num. 15:39–40) and YHWH, the "impassioned" or "jealous" (qanna) God, becomes "wrought up," or "jealous" (qanna) over Israel (Ex. 20:5; 34:14; Deut. 5:9; cf. Num. 5:14); idolatry, like adultery, was described as "great sin" (Ex. 32:21, 30–31; II Kings 17:21). Later prophets, especially the author of Hosea 1–3 and after him Jeremiah (2:23; 3:1 ff.) and Ezekiel (16:1 ff.; 23:1 ff.), gave the metaphor full and explicit expression.
In Jewish Law
It appears that originally it was the husband's right to punish his adulterous wife himself (cf. the story of Judah – ordering even his daughter-in-law to be burned: Gen. 38:24) and that he could take the law into his own hands even against the adulterer (cf. Prov 6:34). It was only when adultery was elevated to the rank of a grave offense against God as well that the husband was required to resort to the priests or to the courts. Yet, so far as the adulterer was concerned, it is probable that he could always buy himself off by paying to the husband a sum of money by way of compensation: compounding was not prohibited for adultery (cf. Prov. 6:35) as it was for murder (Num. 35:31). Where sufficient evidence was available both of the act of adultery (Mak. 7a) and of the adulterer and the adulteress having first each been duly warned (Sanh. 41a), both would be liable to the death penalty. The trial reported in the apocryphal book of Susannah (37–41) was held without any evidence being adduced of a previous warning having been administered, either because the book predates the mishnaic law to this effect, or because the warning appeared irrelevant to the point of the story. No particular mode of execution is prescribed in the Bible, but talmudical law (Sifra 9:11) prescribed strangulation as being the most humane mode of capital punishment (Sanh. 52b et al.). An older tradition appears to be that the punishment for adultery was stoning: the lighter offenses of the unvirginal bride (Deut. 22:21) and of the betrothed woman and her adulterer (Deut. 22:24) were punished by stoning, and the severer offense of adultery would certainly not have carried a lighter punishment. Stoning of adulteresses is moreover vouched for in prophetic allegories (e.g., Ezek. 6:38–40) and is described in the New Testament as commanded by the Law of Moses (John 8:5). In the aggravated case of adultery by a priest's daughter, the adulteress was burned (Lev. 21:9), while the adulterer remained liable to strangulation (Sif. 5:19). Burning is provided for another similar offense (Lev. 20:14) and is also found in prophetic allegory (e.g., Ezek. 23:25; Nah. 3:15). Where the woman was a slave "designated" for another man, the punishment was not death (Lev. 19:20), but he had to bring a sacrifice (ibid. 21:7), while she was flogged (Ker. 11a). Where insufficient evidence was available (the nature of the offense being such as usually took place in secret: cf. Job 24:15), a husband was entitled to have his wife, whom he suspected of adultery, subjected to the ordeal of the waters of bitterness (Num 5:12–31). If found guilty, her punishment was a kind of talio, she being made to suffer with those organs of her body with which she had sinned (Sot. 1:7). One of the features of the ordeal was that the woman's hair was "loosened" (Num. 5:18), that is, disarranged (except, according to R. Judah, if her hair was very beautiful: Sot. 1:5). This disarrangement of the hair (usually covered and concealed) may be the origin of the later punishment of shaving a woman's head – more particularly in cases where lesser misconduct, and not the act of adultery, could be proved against her. Other punishments meted out to adulteresses in post-talmudic times included death, both by strangulation (hanging) and by burning, imprisonment, and, commonly, public flogging.
Maimonides rules that "if a woman has, while married to her husband, committed adultery unwittingly or under duress, she is permitted to him…" (Yad Ishut 24:19). Adultery committed under duress is rape, and is dealt with at length in the relevant entry. The question is what defines "inadvertent adultery" in this context and how it is adapted to the modern legal categories of mistake of law and mistake of fact.
Adultery Due to Mistake of Fact
In a situation where a woman thought that the man with whom she engaged in sexual relations was her husband, but was in fact another man, the halakhah regards the act as "inadvertent" or, in contemporary terminology – a mistake of fact. The Mishnah (Yeb. 3:10) deals with a case in which two men betrothed two women and, at the time of marriage, they exchanged the women between themselves. The Mishnah rules that in such a case, where the parties acted unwittingly and unintentionally (see TB Yeb. 33b where it explains that the term "[they were] exchanged" indicates that the exchange was inadvertent), all four parties involved must bring sin offerings, because they unwittingly violated the prohibition against relations with a married woman. However, the original couples are permitted to continue living together as man and wife (following an initial separation of three months in order to enable determination of the biological father in the event of pregnancy). The halakhic ruling is that "at all events they are permitted to one another after three months, for they are considered to have acted under duress because they were mistakenly exchanged" (Yam shel Shlomo, to Yebamot, ch.3, §17).
Another source dealing with adultery as the result of a mistake of fact was based on an actual case, recorded in TB Nedarim 91a–b. A woman informed her husband that they had conducted sexual relations on the previous night. The husband expressed astonishment; denying that this had taken place. The woman responded that apparently she had sexual relations with one of the spice sellers, mistakenly assuming that it was her husband. R. Naḥman rules that the woman was not to be believed, for "perhaps she set her eyes on another" and made up the story, so that she could receive a divorce from her husband. He explains that this case concerned the wife of a kohen (priest) who would be forbidden to her husband even in the event of rape. Had the case involved the wife of an Israelite "since even according to her words she believed he was her husband, then there is no greater duress than that – and when there was duress regarding one of Israelite descent, she is permitted."
What follows from these sources is that adultery resulting from mistake of fact is governed by the law of duress, and therefore the law of adultery, including the prohibition of the woman to her husband, does not apply.
Adultery Resulting from Ignorance of the Law
The responsa literature contains a number of responsa discussing the question of how to view adultery when it resulted from a mistake in the law (i.e., ignorance of the law). One case dealt with by Rashba concerned a woman who had accepted a ring from a man to whom she had been introduced during a meal, and a few years later she married another man. Rashba ruled that she is considered an adulteress, and is prohibited to both of them. In his responsum, he discusses the claim that the woman was unaware that she was married to the first man, and that the adultery was therefore the result of a mistake. He wrote as follows: "Should it be claimed that she was under duress because she did not know that she was forbidden to marry – this is incorrect, for she ought to have verified the matter, and in any case where she did not examine, she is prohibited to both of them … But what kind of duress was there that she could rely upon in order to marry? For if so [were we to accept this claim], we would permit all women who had committed adultery, by saying: she believed that she had not become prohibited by this action. And the matter is clear" (Resp. Rashba, 1:1189).
When R. Joseph Colon (Maharik) was asked how to judge a woman "who had intentionally committed adultery while married to her husband, and did not know whether the act was forbidden: should it be regarded as an unintentional act?" His response was: "In my humble opinion, she cannot be permitted to her husband under the law applying to one who acted inadvertently, because she intended to betray her husband, and committed adultery while still married to him" (Resp. Maharik, 168). He based his position on Numbers 5:12: "If any man's wife go aside and commit a trespass against him" – in other words: the trespass is against the husband and not against the law (or, in Maharik's language, against God). There is no requirement that the woman actually intend to commit the sin of adultery; it is sufficient that she betrays her husband. Maharik offers the following explanation of the aforementioned passage from Maimonides – that the woman who commits adultery inadvertently is permitted to her husband – "this is only applicable where the mistake relates to the act of adultery, and was not a mistake regarding the prohibition itself, for the reason that her adultery is not considered to have been inadvertent is that she intended to commit adultery, but was unaware of the prohibition. What case would be deemed as inadvertent adultery? One in which she thought that it was her husband, as in the case mentioned in Nedarim 91."
These responsa were codified in later halakhic literature (see Beit Yosef on Tur EH 115, S.V. u-mishum hakhi; Rem'a, to Sh. Ar. EH 178.3; Yam shel Shlomo, Yeb. 3:17). The subject was the source of further discussion in subsequent responsa literature (see Leḥem Yehudah of R. Judah Eish, Hilkhot Ishut 24; Hida, Ḥayyim She'al, 2: 48).
In a judgment given in Israel, by the Ashkelon Regional Rabbinical Court (8 PDR 184) the aforementioned conception was accepted: namely, the distinction between a mistake of fact, which constitutes a defense with respect to adultery, and a legal-halakhic mistake – ignorance of the halakhah – which cannot exempt the woman from the consequences of the act of adultery. In the case in question, the Rabbinical Court ruled that the parties must divorce, and a few months later the get was given. It was proven to the court that the woman and another man had engaged in sexual relations after a divorce judgment had been given, believing that once a divorce judgment had been issued there was no longer any prohibition involved, even though they knew that the get had not yet been given. The Rabbinical Court based its ruling on the aforementioned responsa of Rashba and Maharik (as well as additional halakhic sources). The woman and the man, with whom she had become pregnant during the intermediate period between the divorce ruling and the get, were forbidden to marry each other, in accordance with the law that an adulterous woman is forbidden both to her husband and to her lover.
Summing up the position of Jewish law – which is also the positive law of the State of Israel in this area – adultery under duress is not considered adultery. As for adultery resulting from a mistake, a distinction is drawn between a mistake in fact, which is regarded as a case of duress, and hence not in the category of adultery, and a legal-halakhic mistake – i.e., ignorance of the prohibition on adultery, or of the law that only a get terminates the marriage; neither of the variants of the latter category will be regarded as duress. A woman engaging in sexual relations with another man under such circumstances is deemed an adulteress, and as such forbidden both to her husband and to her lover.
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BIBLE: M. Greenberg, in: Sefer Y. Kaufmann (1960), 5–28; idem. in: IDB, 1 (1962), 739; de Vaux, Anc Isr, 36–37; S. Loewenstamm, in: BM, 13 (1962), 55–59; 18–19 (1964), 77–78; M. Weinfeld, ibid., 17 (1964), 58–63; E. Neufeld, Ancient Hebrew Marriage Laws (1944), 163–75; L. Epstein, Sex Laws and Customs in Judaism (1948), 194–215; G. Cohen, in: The Samuel Freedland Lectures (1966), 1–21; H.L. Ginsberg, in: Sefer Y. Kaufmann (1960), 58–65; J.J. Finkelstein, in: JAOS, 86 (1966), 355–72. JWEISH LAW: Buechler, in: MGWJ, 5 (1911), 196–219; idem, in: WZKM, 19 (1905), 91–138; V. Aptowitzer, in: JQR, 15 (1924/25), 79–82; ET, 2 (1942), 290–3; 4 (1952), 759–64; Sh. M. Paul, Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law (Leiden, 1970), 96–98. ADD. BIBLIOGRAPHY: M. Drori: "Inadvertent Adultery (Shegagah) in Jewish Law: Mistake of Law and Mistake of Fact," in: H. Ben-Menahem and N.S. Hect (eds.), Authority, Process, and Method – Studies in Jewish Law (1998), 231–67; A. Enker: "The Claim of Ignorance of the Law in Jewish Criminal Law," in: Mishpatim, 25 (1995), 87–128 (Heb.); idem, "Mistake of Law and Ignorance of Law in Jewish Criminal Law," in: Jewish Law Association Studies, 7 (1994), 41–50.