Burden of Proof Is On the Accuser

Parshat Ki Tetze

by Rabbi Avi Billet

Devarim Chapter 22:13-21 contains two related circumstances that are both very disturbing from a contemporary vantage point.

The first concerns a man who marries a woman and then claims she was not a virgin – spreading slander about her, and the lifestyle she has lived until her marriage. When his claims are disproven, he is fined and then required to maintain her as his wife for the rest of his life.

Leaving aside whether his claim, in and of itself, is disturbing – meaning, is she only good for him as a wife if she is a virgin? – the idea that if he’s proven to be wrong that he gets a seeming slap on the wrist (a fine!) seems to be a sham! Even if he must care for her for the rest of his life, she almost has no choice but to stay (even though she may decide to leave!), because he has destroyed her reputation through his slander.

The second element which is disturbing is that if his claim is proven to be true, she is taken out to the doorway of her father’s house to be stoned to death. We can argue all we want as to whether this passage is meant to be understood literally, whether it actually ever happened, etc. But the passage is there, and its language speaks for itself.

It should go without saying that nowadays we don’t do this, and I’d argue we have no interest in doing this. In fact, when certain cultures in other parts of the world uphold this kind of practice, we find it abhorrent, backwards, and not the kind of thing we ever want to see in our community. No matter how disapproving we are of pre-marital relations.

The Midrash claims the guilty young woman is charged and punished this way, because she destroys the reputation of all young women. Rabbi Ovadiah of Bartenura argued that she is killed at her parents’ doorstep, because she destroyed her father’s reputation. To my understanding, this perspective contradicts a different Torah rule, also in our parsha (24:16) that children are not punished for the sin of the parents, and that parents are not punished for the sins of the children. Does killing the daughter restore any reputation? Or does it punish the parents again?

As disturbing as the thought of putting the young maiden to death is, I haven’t seen any commentaries who argue – as they do for the wayward son (21:18-21) – that this never happened and we are meant to learn a lesson. It could, of course, be true that it never happened and that no young woman was every put to death for this violation of Torah rules. If that is true, how come no commentary raises it as a possibility (if you know of one, please contact me!)?

And so we’re left to try to make sense of it all.

I can’t answer for the facts on the ground. I certainly hope it never happened. Or that even if the girl was not a virgin at the time of marriage – for whatever reason – it was discussed before hand so there is no misunderstanding or opening to make any claim of impropriety. And even if the girl was wrong, the idea that someone would come to the court with this kind of claim – which could lead to her execution – rather than going a more civilized route of divorcing her, is something I find hard to stomach.

But one thing is clear to me. The idea that a false accusation can be made, either without evidence, or when the actual evidence stands to the contrary of what is being claimed, is so disturbing that a more serious punishment would seem to be in order.

False accusations are made all the time. In politics, things are taken out of context to paint a politician as an evil or stupid person. In relationships, innocent people are sometimes accused of rape. In schools, students have been found to make accusations of impropriety against teachers in order to get them fired. Of course I am not talking about cases where the accused is guilty of a crime – in those cases, the guilty should be prosecuted and punished. But it’s the FALSE accusation that should have no place in society, where the accused, who is innocent of wrongdoing, suffers financially and through destroyed reputation, simply because a finger was pointed.

The Torah places a life-long fiduciary responsibility on the accuser. Perhaps such a hefty fine should stand as a deterrent against false claims.

But even more so, society and communities must make clear that false accusations aimed at destroying a good name are in some cases more heinous than what is being accused, and that when the victim of slander is exonerated, he or she must be accepted in society with open arms, with reputation restored. We would only want that for ourselves if we are falsely accused. Doesn’t anyone falsely accused deserve the clean slate that is their true life lived? Of course they do.