A person shall be put to death only on the testimony of two or more witnesses (17:6). Despite the admirable exhortation in this parashah to pursue justice (16:20), post-biblical Judaism restricted women’s participation in the judicial system. In response to the requirement of two witnesses for criminal cases in this verse and 19:15–17, Sifrei D’varim 190 asks, “Is a woman also qualified to give testimony?” Their answer is no, for they note that in 19:15 the Torah states “two witnesses” and further on, in 19:17, “two [men].” Reading these two biblical verses literally, the Rabbis reason: “As the meaning of ‘two’ in the one instance is men and not women, so the meaning of ‘two’ in the other instance is men and not women.” Even earlier, the Jewish historian Josephus (1st century C. E.) asserted that “by Jewish law women are disqualified as witnesses” (Jewish Antiquities 4.219).
However, the Mishnah (Y’vamot 15:1–5 and 16:5) permits a woman to serve as a sole witness in establishing a man’s death, thus allowing his widow to remarry. Since rabbinic courts accepted female testimony in this and some other situations, why were they excluded from most civil and criminal cases? The Rabbis did not give a reason for their general disqualification of women as legal witnesses. Perhaps women’s dependence on their husbands or fathers was understood to compromise their ability to serve as independent witnesses. They could testify only when the two-witness paradigm did not hold. This proved especially important when women might have more access than men to necessary information.
Is there anyone who has paid the bride-price for a wife? (20:7). The groom becomes betrothed (eiras) after he gives a betrothal gift, which is referred to here as a “bride-price.” This implies that the wife is an object acquired by her future husband. (For a different perspective on the institution of betrothal in the Bible, see at Genesis 29:18; Exodus 22:15–16; and Chayei Sanah, Another View.) The Rabbis’ use of the term kiddushin for “betrothal” might encourage us to think that women played a more active role in their own betrothals in rabbinic times. Kiddushin is connected to the Hebrew word for “holy,” and “holy” in this context could indicate a relationship recognizing the betrothed woman as more than property. However, rabbinic writings (Tosefta Kiddushin 1:1 and BT Kiddushin 5b) make it clear that a betrothal is legitimate only if a man “acquires” a woman, whether he uses the term m’onesset or m’kuddeshet to assert his claim. Betrothal is not considered valid if a woman speaks or acts as the one changing the couple’s status from single to betrothed.
Like the new house and newly planted vineyard (20:5–6), the betrothed woman (20:7) appears as a partially claimed property for whose full possession a man must take further action. Passages like this indicate that obligations accompanied betrothal (see also 22:23) and imply that some men may not have fulfilled them expeditiously. At any given time, significant numbers of betrothed women may have occupied a limbo state wherein they were already designated as “wife” but not entitled to that status. Although biblical sources are silent about mechanisms for canceling betrothals, the Rabbis insisted on divorce to terminate the betrothed couple’s connection (Mishnah Kiddushin 1:1, 3:7).
Similar views that betrothal was tantamount to marriage are also found in Roman law. The 2nd century historian Suetonius remarked, “[O]n finding that the spirit of the law was being evaded by betrothal with immature girls…[the Emperor Augustus] shortened the duration of betrothals” (Augustus 34:1–2). While Suetonius is discussing a binding betrothal that some elite men used to their advantage in order to avoid restrictions upon gifts and the higher taxes owed by unmarried men, the biblical example appears to establish the binding nature of betrothal intentionally. In both Jewish and Roman law and practice, a betrothal either led to a marriage or was terminated in some quiet manner.
In general, historians find references to betrothals only where problems have occurred or are envisioned. The present verse discusses one potential difficulty. A non-Jewish example appears in a legal ruling from Emperors Valerian and Gallienus (dated 259 C. E.) concerning a young woman who has been engaged for three years but her fiancé is abroad and unreachable. She would like to end the betrothal but cannot communicate this to him. This young woman’s lawsuit expresses concern that she would be liable to charges of bigamy were she to marry someone else (Judith Evans Grubbs, Law and Family in Late Antiquity, 1995, pp. 167–8). That such cases required resolution suggests that the interval between betrothal and marriage could be problematic in both Jewish and Roman societies. However, the rarity of references to these cases raises more questions than answers about how betrothals really functioned in ancient Judaism.
—Susan Marks