Jewish Witnesses: Who Qualifies?

Have you ever served as a witness in a legal matter? Was it as part of a criminal or civil legal case? Was it at a Jewish life-cycle ritual? What did it feel like to give testimony which was recognized?

We might not think the role of a witness is that important, but Judaism tells us otherwise. Parshat Shofetim more than any other portion centers on the legal system and how to create a just society. It begins by requiring the appointing of judges and officials, so important that the rabbis in Talmud Sanhedrin list it as one of the seven Noachide laws applying to non-Jews. However, the establishment of courts is not enough by itself to determine how to adjudicate justice. Parshat Shofetim goes on to state “A person should only die based on the testimony of two or three witnesses” (Deuteronomy 17:6) and later “A matter can only be valid by the testimony of two or three witnesses.” (Deuteronomy 19:15)

It makes sense why one witness is not enough, as s/he might see things incorrectly or purposefully give false testimony, both of which are harder to do when there are more witnesses involved.  In both cases, the Torah mandates that there be two or three witnesses. We know of examples where only two witnesses are required, such as the signing of a Ketubah (Jewish marriage contract) or a Get (Jewish bill of divorce). There are other examples when three witnesses are required, as three creates a Beit Din (court of Jewish law), used for a conversion or when giving out a Get. Tractate Makkot Chapter 1 Mishnah 7 it asks why does it say “two or three.” The answer given is that two are equated to three. Two witnesses can invalidate the testimony of three, and vice versa.

Why do we jump from a conversation about the number of witnesses to one where we have witnesses invalidating or discrediting the testimony of others? The Talmud is very interested in the concept of עדים זוממים, scheming witnesses. While this section of Talmud is fascinating, I have chosen instead to discuss the topic of witnesses in Judaism in general.

How are valid witnesses determined? Maimonides, a 12th century Spanish and Egyptian commentator, discusses who qualifies as a witness in his Mishneh Torah Laws of Edut (Testimony). He states that ten types of people are invalid from being witnesses: women, slaves, minors, the insane, those who are deaf and mute, the blind, the wicked, idlers, relatives and those who have bias. Some of these categories make sense-I would not want someone who is partial to one side or who is legally insane to be a witness. Others can be very challenging for us-for example, excluding half the population from being a witness in a court of Jewish law.

Why are women excluded? Maimonides states that it is because the bible uses the masculine form (עדים) when speaking about witnesses. Joseph Karo, author of the Shulchan Aruch, also includes women in his list yet he is bothered by Maimonides’ rationale, stating that “the whole Torah always uses the masculine form.” In fact, the Tur, the law code which preceded the Shulchan Aruch, omits women from his list entirely (Hoshen Mishpat 35)! The Talmud, in Shevuot 30a and Gittin 46a, states that a woman cannot be a witness because her place is at home and not in court. As a result, women were only used as witnesses in matters related to them (things involving their families or their bodies), for identification of people or for events regarding places frequented only by women.

How we handle women as witnesses in the Conservative movement is a topic which has been hotly debated. Rabbi Joel Roth, in his Responsa from 1984, which allowed for Conservative female rabbis, did so on condition that they not serve as witnesses. This position, while the norm for a number of years in the Conservative movement, created an awkward situation where a female rabbi could not sign a Ketubah, give a Get or finalize the conversion of her student. In 1992 the Rabbinical Assembly passed a paper entitled “Gender Equality in Halakhah” which allowed for women to participate as witnesses in all aspects of Jewish ritual.
The issue does not end there, however. While the State of Israel has allowed female witnesses in a civil court of law since the Equality of Women’s Rights Act of 1951, the Chief Rabbinate of Israel does not allow for female witnesses for ritual purposes. Therefore, anyone who gets married outside of Israel with female witnesses on their Ketubah and later moves to Israel will not have their marriage religiously recognized. Some try to get around this (including many of my classmates) by having four witnesses on their Ketubah: two men and two women. Others will have a woman sign as a Ketubah witness with the understanding that the couple will not move to Israel. I am in the later camp-in fact, Karina and my Ketubah is signed by one man and one woman.

Personally I am fully egalitarian. In this day and age, where we give females every opportunity to succeed in secular realms, I strongly believe that we need to do the same in the religious sphere. “Separate But Equal” was not equal, and it died with Brown vs. Board of Education. My personal beliefs, however, do not necessarily need to reflect the ruling of a synagogue-there is room to embrace multiple beliefs at our congregation. For those women who want to serve as Jewish witnesses, the opportunities must be presented so that they can, provided that we make clear at the outset that there are people who would not hold female witnesses as valid. For those who want to continue with the traditional approach, having only male witnesses, that is fine, as long as they do not impinge on other people’s rights to do differently.

What I propose is the following: that we give people the opportunity to tell their stories and share their opinions and that we listen with open ears. When someone says something with which we disagree, let us try to understand where the other is coming from and accommodate his or her perspective whenever possible. In doing such we will continue to function as one community, albeit a “community of communities,” where everyone can feel welcome and secure. Ken Y’hi Ratzon, may it be our will to do so.

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