Daf TB Sanhedrin 27 discusses whether a
witness who is ineligible to testify in civil cases may testify in capital
cases. Rabbi Yosei argues a person who is ineligible to testify civil cases
still may testify in capital cases. Rabbi Meir disagrees. If a person is
ineligible to testify in civil cases he is also ineligible to testify in
capital cases. Although the halakha
generally follows Rabbi Yosei, in this instance the halakha follows Rabbi Meir. The Gemara explains the reason why.
There is a stam (unattributed) Mishna
that supports Rabbi Meir’s position.
“Rather,
the tanna taught us an unattributed mishna here, as we learned
in a mishna (Rosh HaShana 22a): These people are disqualified
from bearing witness, as they are considered wicked and guilty of monetary
transgressions: One who plays with dice, and those who lend money with
interest, and those who fly pigeons, and merchants who trade in produce of
the Sabbatical Year. And Canaanite slaves are also
disqualified. This is the principle: For any testimony for which a
woman is not fit, these too are not fit. Although in certain cases a
woman’s testimony is accepted, e.g., testimony concerning the death of
someone’s husband, in most cases her testimony is not valid.
“In
accordance with whose opinion is this mishna? If we say it is the
opinion of Rabbi Yosei, that is difficult: But isn’t there testimony
in cases of capital law, for which a woman is not fit but for which
those considered wicked due to having committed monetary transgressions are
fit? Rather, is it not the opinion of Rabbi Meir, who maintains
these people are disqualified from testifying in cases of capital law as well?
Apparently, this unspecified mishna follows the opinion of Rabbi Meir.
Therefore, the halakha is in accordance with his opinion.” (Sefaria.org
translation)
The topic of
women as witnesses is long and interesting. We can see the evolution of women
serving as witnesses.
“The Mishnah explicitly mentions women in court in
Tractate Shevuot 4:1 An oath of evidence applies to men but not to women, to
those who are not near of kin but not to such as are kinsfolk, to those who are
eligible but not to those who are not qualified. And it applies only to such as
are fit to give evidence. The Mishnah does not consider it necessary to provide
proof for this statement, but states it as a fact in a conversation about oaths
and court proceedings. That there is explanation offered in support of this
statement, affirms the argument that women already were ineligible to testify.
The Series II Issue Number 1i Fall 2018/5779 • 63 apparent shift could have
been the product of societal influences. Other ancient societies, such as
Assyrian, Greek, and Roman laws put restrictions on women witnesses, and Jews
in the Mishnaic adopted this practice.
“This Mishnah is particularly interesting in that it
explicitly mentions women, instead of grouping them with people who are “not
qualified”. This indicates that the rabbis felt it necessary to clearly mention
that women’s testimonies were not accepted, which suggests that these
testimonies may once have been permitted. Later we see that in some cases, the
testimony of a woman was admissible, so this Mishnah makes clear that Jews know
these cases are the exception and not the rule. From here we see that the
rabbis wanted to cement this practice of excluding women’s testimony. The
following verse from the Amoraim Mishnah greatly influenced women and courts
throughout Jewish history.
“In tractate Rosh Hashanah 1:8, the Mishnah states, These
are considered unfit (witnesses): gamblers with dice, those that lend interest,
pigeon racers, those who trade in the produce of the sabbatical year, and
slaves. This the general principle: all evidence that a woman is not eligible
to give, these (people mentioned above) also are not eligible to bring. This
mishnah implies that there are cases in which a woman can bring testimony and
some in which she cannot. However, the mishnah in Shevuot implies that a
woman’s testimony is always inadmissible. This may reflect a shift in the
perspective of the rabbis, and support the case that the rabbis slowly limited
the cases in which women could testify until there were almost none left.
Eventually they decreed in Shevuot that a woman’s testimony is never
admissible. Curiously, a tractate similar to the one in Rosh Hashanah appears
in Sanhedrin 3:3, with one main exception. The tractate in Sanhedrin lists the
“gamblers,” “usurers,” “pigeon flyers,” and “sellers of sabbatical goods,” as
people whose testimony is not admissible, but excludes the statement, “This the
general principle: all evidence that a woman is not eligible to give, these
(people mentioned above) also are not eligible to bring.”
“According to Tzvi Karl, the ruling in Rosh Hashanah came
after the one in Sanhedrin, which further supports the theory that as time went
on, the rabbis limited women’s roles in the court. There could be many reasons
for the opinions of the Tannaim to change over time, including external
societal influences. For example, in Rome, many women were afforded more rights
to participate in the public sphere, and in a reactionary fashion, the rabbis
attempted to create laws limiting women to the home (Fuchs, 2012).1 However,
Roman laws about women being witnesses are ambiguous, thus this cannot be the
only reason for this shift.
“Why would tractate Rosh Hashanah mention women along
with these groups of people? Among all of these categories, one thing that
connects them is their supposed dishonesty. Perhaps women were seen as
deceitful, which is why they cannot be trusted to testify in court. The
conception of women as untrustworthy is one that runs throughout history in
various societies. Since Eve, women have often been portrayed as crafty tricksters,
fooling innocent men. Christian theology especially promulgated this idea, as
it often portrayed women as seductive and deceiving. They based this conception
partially on the Christian interpretation of the Adam and Eve story, in which
Eve is the main deceiver in the story, not the snake. This idea even extended
to the idea of women being witches, fooling men with their powers and lies.
Perhaps the Jewish ban in the courts was a precursor to the Christian view, and
simply reflected popular sentiment that women could not be trusted, along with
gamblers and usurers.
“The change in the Mishnah indicates the following
evolution: at one point, women were accepted as witnesses, indicated in
Sanhedrin, then only in some situations, indicated in Rosh Hashanah, then not
at all, as seen in Shevuot. Gradually, rabbinic decrees stripped women of the
right to testify. This implies that this law was not originally from the Bible:
if women were prohibited from testifying in the bible, they would not be
permitted to testify in particular situations in other legal texts. The weak
proof using gezera shava (verbal analogy) and the non-direct examples from the
Bible further support the idea that women were originally able to testify.
Because the prohibition was made up with no sound Biblical basis, contemporary
rabbis have the freedom to allow women to serve as witnesses.
Amoraic Origins
“Although Mishnaic sources sometimes allow women to give
valid testimony, by the Amoraic period, women were categorically ineligible to
testify. This follows the general trend we have observed, in which Tannaitic
rabbis gradually restricted women’s testimony, so that by the time of the
Amoraim, women were not allowed to testify at all. While the Amoraic sources
depend on exegesis to prove that women cannot be witnesses, they do not provide
any explanation as to why this ruling exists.” (https://repository.upenn.edu/server/api/core/bitstreams/a6d3c2ed-7b51-4b8b-ba0d-47b19bead01c/content)
“Prof. Michael Helfand
researched the halachic evolution of the topic and saw that ever since the
Rishonim (around 1000 years ago), Chazal had come up with many exceptions to
the law that women couldn’t testify. “By the time you get to the 21st Century,
the exceptions are so broad and so significant, that it [women not testifying]
doesn’t come up in commercial cases and court.”
“Helfand explored the historical
ramifications of these exceptions, starting in ‘Talmudic Maternity Wards,’
where a midwife, moms who had just given birth, and a bunch of kids were
together, all without the identifying bracelets used today. “The Gemara says
‘you can trust the Midwife to know that this kid goes with this mom.’ Here, a
woman is testifying in an instance that has commercial applications.” Even if a
woman is not a supposed to be witness she is still allowed to testify. The
Gemara knows that men don’t pay attention to women’s clothing, but women do, so
they can testify as to possession. This also comes up in cases where a woman is
more likely to reveal information, such as abuse. “Rabbeinu Tam enacts a taken [decree] that in any circumstance
where something instantaneous happens, whoever you have on hand as a witness,
allows them to testify. This applies in a lot more cases.” (https://jewinthecity.com/2018/06/yes-women-can-be-witnesses-in-jewish-courts/)
In 2004 I am citing one of the CJLS (the Conservative Movement’s)
teshuvot allowing women serving as
witnesses. “I concur with Rabbi Susan Grossman’s judgment that women may serve
as witnesses in Jewish law. I believe that in principle, the acceptance of
women’s witnessing applies in all realms and to all documents. In practice, however,
special concerns arise from the rejection of women’s witnessing by some
Conservative and virtually all Orthodox rabbis. For marriage (ketubbot and
kiddushin) and conversion (giyur), women should only serve as witnesses with
the informed consent of the individual(s) directly affected, and following a
prudential judgment by the rabbi that the involvement of women witnesses would
not impose undue risks in the particular case. Because of practical concerns
for the well-being of individuals and of klal Yisrael, women should not at the
present time serve as witnesses for gittin.” (https://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/20052010/mackler_women_witnesses.pdf)
Personally I accept women as witnesses. I did not want to
live my life bifurcated where in my Jewish life women are unacceptable as
witnesses, but in secular matters women are acceptable. That was unacceptable
because I want to live a life where my Jewish side and my secular side are
integrated as one.
