THE TOPIC OF WOMEN’S EXCLUSION from giving testimony is a sensitive one today. Since the time of the Talmud, women have been barred by Jewish law from serving as witnesses, both at courtroom trials, to establish the facts of the case, and at religious rituals, to witness a ceremony like marriage. When pondering this exclusion, we can hardly avoid thinking that for the rabbis to have deemed women untrustworthy witnesses, they must have severely devalued their intellectual capacities.1Judith Wegner (Chattel or Person? [New York: Oxford University Press, 1988], 120) writes that the Sages acknowledge a woman’s mental and moral capacities by allowing her to testify in a variety of cases and that they thus equate her mental capacities to those of a man. But Wegner does not address the vast number of cases in which a woman may not testify. Ilan (Jewish Women in Greco-Roman Palestine [Tübingen: J.C.B. Mohr, 1995], 163–165) writes that the Sages in general disqualify a woman from serving as a witness, but many exceptions arose because of actual custom and practice. She cites Josephus, writing in the first century C.E., who says that women were disqualified by Jewish law because of their light-headedness and brazenness. The one passage in the Dead Sea Scrolls that seems to say that women may give testimony is far from clear. See Eileen M. Schuller “Women in the Dead Sea Scrolls,” Annals of the New York Academy of Sciences, 1994, 123–124. To find out if this is so will not be easy. Since no Talmudic tractate deals solely with the subject of giving testimony, we will have to collect statements on the subject from many different tractates and then examine each one on its own and in relationship to the others.
That women may not testify in civil and criminal cases is axiomatic in the Mishnah. No statement explicitly prohibits them, but indirect statements abound, such as “whatever testimony a woman is unfit to give, they—for example, dice rollers and those who lend money on interest—are also unfit to give” (M Rosh Hashanah 1:8), and the complementary statement in Tosefta Sanhedrin 5:2, “but testimony that a woman is fit to give, they are fit to give.” Although two witnesses are generally required by Jewish law, in some cases only one is necessary and that one may be a woman. A number of these cases have critical consequences for the Jewish community. For example, in order to establish a man’s death and permit his wife to remarry, a woman’s testimony may be accepted. Also, in order to determine that a woman in captivity was not raped and could therefore return to her kohen husband,2As noted in Chapter 3, a lay Israelite is required to take back a wife who was raped. A kohen is forbidden to do so. a woman’s testimony may be accepted.
One popular explanation for women’s exclusion from giving testimony in civil and criminal cases is that summoning them to a courtroom for interrogation is an assault on their dignity. Women are, in fact, reliable, but a verse teaches that a woman’s dignity is best preserved in the recesses of her own home (Psalms 45:14).3In his Encyclopedia Judaica article “Witnesses” (16:586), Israel Supreme Court Justice Haim Cohen, when explaining why a woman is disqualified from testifying, cites the Talmudic statement that appearing in court would be an affront to her dignity. This means she is a private individual. Gershon Holzer (“Women’s Testimony in Jewish Law” [in Hebrew], Sinai 67 [1970]:94–112) writes that there are two principal reasons why a woman is disqualified from testifying: (1) that her special and highly regarded (my italics) [מכובד] social status expresses itself in modesty and discretion, so that she cannot appear in public places like a court of law; (2) that women are light-headed and lazy and therefore not likely to report things accurately. This explanation, as appealing as some may find it, is a distortion of the Talmud’s own statements on the subject. As we will see later, the Talmud implies that the need to give testimony in a courtroom overrides a woman’s need to stay at home—not a surprising conclusion for jurists to reach.
A second popular theory is that the Talmud considers women to be emotional and intellectually shallow, and hence unreliable.4See note 3. This theory, also, is problematic. If the rabbis thought these things about women, why would they allow them to testify in cases, such as those mentioned above, in which false testimony could, in the long run, ruin many innocent individuals? If a witness lies, the woman for whom he or she testifies may enter into, or resume, a sexual relationship forbidden by the Torah.
Based on a close reading of relevant texts, I have developed an alternative explanation that effectively accounts for the particular inclusions and exclusions: Women, although reliable in and of themselves, could not testify in most civil and criminal cases because, when married, they were beholden to their husbands and likely to be influenced by them in how they reported what they saw. That is, a woman could not testify because her subordinate status was likely to compromise her ability to tell the truth. Women as women were reliable. However, when they found themselves under the control of men, as wives necessarily would, they were not free to tell the truth. Another consequence of their subordinate status was that they could not testify in cases concerning men, their superiors, lest they compromise men’s dignity. If these arguments are correct, then why, in a limited set of cases, was their testimony acceptable? In those cases the rabbinical judges were attempting to resolve the indeterminate marital status of other women. In such circumstances, the rabbis accepted all available fit individuals as witnesses.
We will now see how this theory emerges from the words of the text themselves.
The theme of chapter 15 of M Yevamot is the testimony of women. The first several mishnahs describe a woman testifying about her own marital status. The focus then shifts to cases in which other women testify on her behalf.
If a woman and her husband went abroad, and there was peace between them and peace in the world, and she came back [alone] and said, “My husband died,” she is permitted to get remarried. Even to her levir [if she had produced no children].
If there was peace between them but war in the world, or conflict between them but peace in the world, and she came and said, “My husband died,” she is not believed [for if the world was at war, she could be mistaken about his death; and if they were at war, she had reason to fabricate a report of his death so that she could marry someone else].
R. Judah says: She is not to be believed unless she showed up weeping and wearing torn clothing [as a sign of mourning]. They [the Sages] retorted: The same holds for both women [either weeping or not weeping]; they may remarry. (M Yevamot 15:1)
According to this passage, a woman who reports her own husband’s death is believed and permitted to remarry, as long as there is no obvious reason for her to have fabricated the report or to have been mistaken. That is, a woman’s testimony about her own husband’s death is accepted by the majority of the Sages, even though her lying could lead to an adulterous relationship and the production of children of impaired lineage.
R. Judah is more skeptical than the others. The only women he will believe are those who show up emotionally distraught and wearing torn clothing, clear evidence that they are mourning their husband’s death. Note, however, that although he is less trusting of women, he still accepts their testimony if certain behaviors support it.
The next two mishnahs show that the issue of accepting a woman’s testimony was debated even by the earliest schools of rabbis, Bet Shammai and Bet Hillel:
[The rabbis of] Bet Hillel say: We only heard this to be so [that her testimony is accepted about the death of her husband] if she had just come in from the harvest, in that same province [i.e., not from abroad], and it is like what once happened.
Said to them Bet Shammai: The same is true for a woman who just came in from the harvest [of grain], or of olives or of grapes, or [even] from somewhere else. The Sages [in an earlier case] spoke of the harvest [of grain] because of an incident that actually occurred [but they were not limiting their ruling to such circumstances].
[Upon hearing this, the rabbis of] Bet Hillel changed their minds and ruled like Bet Shammai. (M 15:2)
[The rabbis of] Bet Shammai say: She may remarry and collect her ketubah [from the estate of the first husband on the basis of her own testimony]. [The rabbis of] Bet Hillel say: She may remarry but may not collect her ketubah.
Said to them Bet Shammai: Since you permit the sexual liaison [i.e., remarriage], which is a more stringent matter, why do you not permit [the collection] of money, which is a more lenient matter?
…
[Upon hearing this, the rabbis of] Bet Hillel changed their minds and ruled like Bet Shammai. (M 15:3)
The rabbis of Bet Shammai, despite the general rule that a woman may not testify, accept her testimony as to her husband’s death, initially in a much wider set of circumstances than do the rabbis of Bet Hillel. That is, they establish the acceptance of her testimony as a principle, not just an exceptional case. They similarly accept her testimony for the purpose of the monetary aspects of the marriage settlement. Although Bet Hillel at first objects to this logical implication, Bet Shammai convinces them that the ability to remarry and the right to her ketubah money must go hand in hand. Usually considered the stricter of the two schools, Bet Shammai in this case rules more leniently, and also in general, in legislation affecting women.5The Literature of the Sages, pt. 1, ed. Shmuel Safrai (Philadelphia: Fortress Press, 1987), 194–195.
Since mishnahs 2 and 3 come from an earlier period of time than does mishnah 1, mishnah 1 must already assume Bet Shammai’s rule that a woman is believed even if she comes from abroad. But the rabbis of mishnah 1 circumscribe it by eliminating a number of cases from consideration. They impose the restriction of “did she have reason to lie?” According to them, the restriction would take effect if she and her husband were at war with each other or if there were any reason to think that she was mistaken. R. Judah goes even further by requiring evidence of mourning on her part. But his colleagues reject his proposed stringency, as Bet Shammai rejected Bet Hillel, viewing it as an unreasonable limitation on the acceptability of women’s testimony. We thus see that women’s testimony was established early in the tannaitic period, over the opposition of Bet Hillel, and reestablished later in a slightly restricted form.
In mishnah 4, the rabbis go on to allow all to testify that her husband died, the “all” including other women but excluding those who, the rabbis say, are not to be trusted to give testimony regarding her: her mother-in-law, her mother-in-law’s daughter (i.e., her sister-in-law), her co-wife, the woman married to her husband’s brother, and her husband’s daughter (from another wife). The rabbis assume all these women to be inimically disposed toward her and likely to fabricate a death report for the purpose of wreaking havoc on her life. Unfortunately, we have no way of knowing if these observations corresponded to the social realities of the time.6Note that these first four mishnahs all assume, without saying so explicitly, that in this case only one witness is necessary and that the one witness may be a woman, even the wife herself.
The rules stated by the last mishnah of the chapter point to some general principles:
…
For a woman is not believed when she says, “my levir died,” so that she would be allowed to remarry [without levirate release]; nor [is she believed] if she says, “my sister died,” so that she would be allowed to enter into his house [i.e., marry her sister’s husband]. A man is not believed when he says, “my brother died,” so that he would be allowed to marry his brother’s wife, nor “my wife died,” so that he would be allowed to marry his wife’s sister. (M Yevamot 15:10)
The reason these claims are not accepted is that in each of these cases the person who is making the claim has a reason to lie—to be able to marry a particular person to whom he or she has taken a fancy. In the first case, a woman is not believed as to her levir’s death because women were suspected of trying to avoid levirate marriage. She would be believed, however, in reporting on her husband’s death.
Since the rabbis single out only these people as being predisposed to lie, they must assume that other claimants, whom they declare believable, have no reason to lie. To state this more generally: These exceptions imply that the underlying issue for this entire chapter is reliability. People are considered reliable, men and women alike, when they testify to someone’s death. Only when they have clear reason to lie are they not considered reliable. Without the motivation to marry someone in particular or, in the case of a bad marriage, to get remarried to anyone, people are considered truthful. Corroboration of the fact that the rabbis considered women truthful will be found in the next chapter of Yevamot.
The very last mishnah of the entire tractate presents the halakhic history of the rule of allowing one witness to establish the fact of a man’s death and, moreover, allowing that one witness to be a woman.
Said R. Akiva: When I went down to Nehardea to intercalate the year [i.e., to add an extra month7The Jewish calendar is both lunar and solar. Every two or three years an extra month is inserted in order to align it with the solar calendar and to make sure that the festivals are celebrated in due season, Pesah in the spring, and so on.] I met Nehemiah, Ish [a resident of] Bet Dli, who said to me, “I have heard it is only R. Judah b. Bava who permits a woman in Palestine to remarry on the evidence of one witness.”
I [Akiva] said to him: “That is right.”
He [then] said to me: “Tell them, in my name, [for] you know how hard it is to travel in these dangerous times, that I have a tradition from R. Gamliel the Elder that one may permit a woman to remarry on the evidence of one witness.”
And when I, [Akiva], came and told this to R. Gamliel, he rejoiced at [hearing] this and said, we now have a colleague for R. Judah b. Bava [i.e., someone who rules as he does].
As a result [of this interchange], R. Gamliel remembered that [several] men had been killed at Tel Arza and R. Gamliel the Elder had permitted their wives to remarry on the evidence of one witness.
And it became standard practice [החזקו] to permit a woman to remarry on the evidence of hearsay testimony, of a male slave, of a woman, of a female slave.
[But] R. Eliezer and R. Joshua say: One may not permit a woman to remarry on the evidence of [only] one witness.
R. Akiva says: Not on the evidence of a woman, a male slave, a female slave, or relatives.… (M Yevamot 16:7)
This mishnah is rather unusual in that it gives a detailed, even dramatic report of how a particular change in law came about. Although this is the closing mishnah of the entire tractate, it is the basis for much that is presented earlier in chapters 15 and 16. Its first, larger message is that the motivation for the change in Halakhah was the dilemma of women whose husbands had been killed but whose deaths had not and could not be legally established by two witnesses. The predicament of these women moved the rabbis to relax standards of testimony, to require only one witness instead of two. Note the unusual use of “rejoice” to describe R. Gamliel’s response to hearing the report that a second rabbi, his own grandfather, had relaxed the rules of testimony. Note also that the tractate ends on a positive note, showcasing a mishnah of great depth and sensitivity. By placing this passage at the end, rather than somewhere in the middle, the redactor indicates the special value he attaches to it. As noted in Chapter 5, tractates often conclude with inspirational homilies.
The second message is that the halakhic change came about slowly, through the building of consensus. A good reason was not enough to make this change; there also needed to be a critical mass of rabbis who were willing to adopt it. The younger Rabban Gamliel was interested in this change but reluctant to act without the support of at least two colleagues. Nehemiah Ish Bet Dli was also interested in this change and took action to see it implemented. By the time the new rule became standard practice, it had become more liberal—hearsay testimony, as well as the testimony of male and female slaves and women, were acceptable.
Why does the Mishnah give such a detailed description of the evolution of this rule? Probably so that it could not be challenged, given its radical nature. As things stand, five rabbis—Nehemiah Ish Bet Dli, R. Akiva, R. Judah b. Bava, Rabban Gamliel the Elder, and Rabban Gamliel—all hold that one may permit a woman to remarry on the basis of only one witness. Two object, R. Joshua and R. Eliezer, and one, R. Akiva, who helped to establish the new practice, places restrictions on it that no one else places. This wide variety of views, together with the report of a historical triggering event, would make it impossible for anyone to claim later that this rule was adopted without proper deliberation.
We should further note that the redactor of the Mishnah has already incorporated this rule in a number of the paragraphs of chapters 15 and 16, as has the redactor of the parallel material in the Tosefta.8M Yevamot 15:1–5, 16:5; Tosefta Yevamot 14:1, 7. If we read the rest of the chapter, we see that there is a tendency on the part of the rabbis to accept the weakest possible evidence, even a disembodied voice (M 16:6), in order to release a woman from the grip of her dead husband.
One could argue, at this point, that relaxing the rules of testimony in this case is a function of rabbinic compassion, not belief in women’s reliability. In order to extricate a woman from an indeterminate marital state, which meant living without a husband and not being allowed to find another, and to protect women from unsolicited and unwanted sexual advances by men, the rabbis relaxed the rules of testimony in a number of cases and required only one male witness instead of two. Furthermore, one could suggest, the rabbis invited women and also slaves to testify only after they had broken the two-witness paradigm. The logic of the halakhic change would run as follows: Although one man is less reliable than two, and women and slaves are not reliable at all, in certain situations that would lead to solving women’s marital difficulties, their testimony is deemed acceptable.
I would respond that in this case and in others that we will look at shortly, the rabbis unquestionably relaxed the standards of testimony because of their desire to help women. But that is true only insofar as the testimony of one male witness is concerned, because one male witness is still considered a fit witness, although not as reliable as two. It is virtually inconceivable to me that if the rabbis held women and slaves to be generally unreliable, they would have permitted them to testify in this case and others. If so, the compassion of the present would be outweighed by the difficulties of the future. If the female witness were to lie or make a mistake and the man were not dead, the rabbis would be permitting a woman to remarry even though she is still married to her first husband, a consequence that they fear and that they take measures to avoid. It therefore makes much more sense to say that they allowed the one required witness to be even a woman because they knew women were reliable, just like men. However, because of differences in social status, they allowed women to testify only for other women, such as those in marital straits. As we will see shortly, there are no instances in which a woman may testify on behalf of a man.
Non-Jewish slaves were also considered reliable by the rabbis but also could not testify because of secondary social status. The lack of distinction between a male and a female slave makes clear that “slave” status, not gender, was the issue that could either disqualify or qualify them, depending on the case.9See M Yevamot 16:7, M Ketubot 2:9, M Sotah 6:2. Just as the rabbis would have considered it wrong to send a man to be executed on the basis of testimony given by a slave, so would they have considered it wrong to execute or even punish a man on the basis of testimony given by a woman, who had greater social standing than a slave but was still not a full-fledged member of society. Children, another low status group, are not allowed to testify in any of these cases because of immaturity. A child’s word is accepted only when offered spontaneously, as in M Yevamot 16:5.
The following mishnahs provide additional instances in which women testify on behalf of, or against, other women. These passages, together with the fact that there are no instances in which women testify for or against men, support the theory that social status plays a role in setting qualifying standards for witnesses.
… All are fit to bring a get [from abroad to Palestine and testify that in their presence it was written and signed], except for a deaf-mute, mentally impaired person, minor, blind person, and non-Jew. (M Gittin 2:5)
… As long as when he [i.e., the messenger] accepted the get and when he delivered it his faculties were normal, he is a fit bearer. (M 2:6)
Even the women who are not trusted when they say, “Her husband died,” [such as her mother-in-law] are trusted to bring her a get [from abroad].… What is the difference between [testifying about] a get and about [a man’s] death? The document proves [the truth of their claim].
[Even] the wife herself may bring her own get from abroad, provided she says, “In my presence it was written and signed.” (M 2:7)
These mishnahs assign the bearer of the get a legal function above and beyond delivering the get: He or she must testify that it was written and signed in his presence. The reason is clear: Should there later be questions about the validity of the get, it need not be sent abroad to be validated. The Mishnah allows women as well as men, and even the woman with whom and to whom the get was sent, to serve as bearers of the get and hence as its witnesses. The criterion for serving as a bearer is reliability. People of sound mind and lacking an incentive to lie, be they male or female,10Even those who may have reason to lie, such as the female relatives listed in M Yevamot 15:4, will not do so in a case in which the get would prove them wrong. See “Women’s General Reliability.” are reliable. Again, these mishnahs imply that women are essentially reliable when they offer testimony in a court of law.
If one witness says that she was defiled [i.e., was unfaithful to her husband] and one witness says she was not, or if one woman says she was defiled and one woman says she was not, she would have to drink [the bitter waters, because the witnesses cancel each other out and her guilt remains in doubt].
If one says she was defiled and two say she was not, she would have to drink [because two cancel out one and her guilt remains in doubt].
If two say she was defiled and one says she was not, she would not have to drink [because the testimony of two is accepted and a woman who is known to have been unfaithful may not be tested by the waters]. (M Sotah 6:4)
If one witness says, “I saw the killer,” and another says, “No, you didn’t,” or if a woman says, “you saw the killer,” and another [woman] says, “No, you didn’t,” they would break the neck of the calf [because the witnesses cancel each other out and the murderer’s identity remains in doubt; see Deuteronomy 21:1–9 and Chapter 1, “Abolishing the Ordeal”].
If one witness says, “I saw [the killer],” and two say, “You did not,” they would break its neck.
If two say, “We saw [him],” and one says to them, “You did not,” they would not break the calf’s neck [because the ritual is only implemented if the murderer’s identity is in doubt]. (9:8)
These mishnahs imply that if only one witness, male or female, testifies that the woman was defiled or who the murderer of the unidentified corpse is, this one witness cancels the ordeal of the bitter waters or the ritual of breaking the calf’s neck. Considered with other statements the rabbis made on these subjects (some of which we saw in Chapter 1), which indicate that they were interested in avoiding implementation of both of these rituals, these relaxed standards of testimony are not surprising. As for the woman suspected of infidelity, in the mishnah’s final case of two witnesses versus one, in which she does not drink, it was to her benefit not to endure public humiliation. However, it was not to her benefit to be dismissed without a ketubah, a prerogative given to the husband in such a case (M Sotah 6:2).
Given these limitations on women’s ability to serve as witnesses, it is remarkable that the Mishnah mentions women as testifying in a case of eglah arufah, a religious ritual, but one that is associated with a capital case. To prevent a calf from having its neck broken unnecessarily and the entire ritual from being performed unnecessarily, the rabbis accept a woman’s testimony. Note that there is no man on trial.
If two women were taken captive and one says, “I was taken captive but was not defiled” [i.e., raped], and the other also says, “I was taken captive but not defiled,” they are not believed [because each has a reason to lie, i.e., the desire to resume life with her husband, a kohen]. But if they testify about each other, they are believed [i.e., they are not thought to be in collusion, with each one agreeing to testify or lie for the other]. (M Ketubot 2:6)
For the passage to be consistent with the rules of the preceding mishnah, one has to assume that the first part of this mishnah presents a case in which there is independent knowledge of the women’s captivity.11Albeck, 94. Therefore, because each woman has a reason to lie, neither is believed as to her own state of purity. In the second part, there is no independent knowledge of their captivity. Each woman testifies that the other was taken captive but that she was not defiled. Because of the principle “the same mouth that forbade [her to return to her kohen husband] is the mouth that permits her [to return to her kohen husband],” both halves of her testimony—that the other woman was taken captive and that she was not raped—are accepted. This passage teaches us that in a case of alleged rape during captivity only one witness is necessary to clear a woman and that the one witness may be a woman.
Note that all of these mishnahs conform to what I have said: Women’s testimony is accepted when they testify on behalf of (or against) other women. One could again suggest that the rabbis introduced this leniency out of sympathy for women in various predicaments, not out of the belief that women are reliable. The anonymous voice of the Talmud says exactly that in reference to women returned from captivity—that the rabbis were lenient because of the sympathy they felt for them (BT Ketubot 27b). I would once again respond that if women were known to fabricate testimony, in the long run they could seriously harm the woman on behalf of whom they were testifying. I do not think that the rabbis would help a woman at one time only to hurt her later. Rather, they were trying to help women in various difficult circumstances and found it easy to do so in this case because one woman was testifying about another woman, a person with similar subordinate status. There is no reason not to accept her testimony. A woman is a reliable witness. Here the issue of one male witness does not arise for historical reasons: A woman in captivity, it seems, was held with other women and only they would know if she had been defiled. In one poignant instance, though, a kohen, R. Zechariah b. Hakazzav, attempted to testify on behalf of a woman, his wife, saying that she had not been defiled, because “he had held her hand in his the entire time that enemy forces occupied Jerusalem.” If his testimony were accepted, the two of them could resume normal marital life. It was not accepted, however, on the grounds that a person may not testify for his own benefit (M Ketubot 2:9).
All these passages suggest that the rabbis consider women to be reliable but accept them as witnesses only for other women. I know of no case in the Talmud in which a woman testifies about a man, such as to establish his priestly lineage, a matter that, according to some rabbis, requires only one witness (M Ketubot 2:7, 8). The word eid, meaning witness, as it is used in the Mishnah (see M Sotah 6:4 and 9:8), refers only to a male witness. The one exception to this rule is found in Tosefta Ketubot (2:3), in which R. Simon b. Gamliel, after stating in the name of R. Simon b. Hasegan the requirement of only one witness to establish priestly lineage, goes on to permit even a woman to offer such testimony about a man.12His statement ends: “And not that a woman should come to court but that she should say ‘give it [priestly lineage, terumah (priestly dues)] to him.’” Lieberman (Tosefta Ketubot, 62) comments that this means that she need not testify in court. Rather, one may rely on her just as one does in matters of forbidden food. One manuscript does not include the words “and not that a woman should come to court but,” which suggests, perhaps, that this phrase is a later addition. This statement appears nowhere else in rabbinic literature. Although the redactor of the Mishnah included the first part of R. Simon b. Gamliel’s statement in the Mishnah (M Ketubot 2:8), it seems that he deliberately decided not to include the second part, in which a woman is allowed to testify about a man.
The strongest and clearest statement of the rule that social status played a role in setting reliability standards for witnesses appears in the following complicated set of passages. We will see that even when women’s testimony is accepted in a court of law, should one man testify to the contrary, the rabbis value the women’s statements less than the man’s. The most reasonable explanation of this distinction is the higher social status of men.
1. If one witness says that he [i.e., her husband] died, and she remarried, and then [another] one comes and says that he did not die, she need not leave [her second husband].
2. If one witness says that he died, and then two say he did not, even if she had [already] remarried, she must leave [her second husband].
3. If two say, “he died,” and one says, “he did not die,”—even if she had not yet remarried, she may go [ahead and do so]. (M Yevamot 15:4)
If one woman says that he died and one woman says that he did not die …
If one [male] witness says that he died and one says that he did not die, or if one woman says that he died and one woman says that he did not die, she may not remarry. (15:5)
These mishnahs deal with contradictory testimony, before the fact of remarriage and even after. Women are mentioned only in M 15:5 and once again are not included in the word eid (witness). The formulation of the last part of this mishnah—two separate clauses, one dealing with male witnesses and one with female—leads the reader to believe that although women may testify about a man’s death, they may not testify in the same hearing as men and their testimony may not cancel a man’s. However, the rabbis of the Yerushalmi (Yevamot 15:6; 15b) state the contrary, claiming that they have a tannaitic source that explicitly indicates that a man and a woman may testify against each other in the same case, and if they contradict each other, the testimonies cancel each other out.
The Bavli develops the issue of female witnesses versus male witnesses. It attempts to explicate the novel point made by the second section of M 15:4, repeated herein.
“If one witness says that he died and then two say he did not,… she must leave [her second husband].”
==But this is obvious! [It is a well-known principle] that the testimony of one cannot stand up against the testimony of two! [And the mishnah need not have reiterated this rule!]
==No, what [the mishnah] is discussing here is unfit witnesses [פסולי עדות], and it is in accord with the teaching of R. Nehemiah.
As was taught in a baraita: R. Nehemiah says, Wherever the Torah13See the textual emendation recommended by Shamma Friedman, “A Critical Study of Yevamot X with a Methodological Introduction,” in Texts and Studies, ed. H. Z. Dimitrovsky (New York: JTSA, 1977), 338–339. He points out that the words “the Torah accepted the testimony” [האמינה תורה] are not likely to be correct, because the Torah never made such a statement about one witness. The correct version is in the Tosefta, which says that “the rabbis declared fit” [הכשירו חכמים]. accepted the testimony of [only] one witness [instead of two], [we] decide the case according to the majority [of the witnesses]. [We] regard two women [whose testimony contradicts that of] one man as two men [who contradict] one man [and decide the case according to the two women]. (BT Yevamot 117b)
The principle stated here is that once a woman is allowed to testify, the rules that apply to her are the same as those that apply to a man. According to R. Nehemiah, and the mishnah that, the Gemara claims, incorporates his view, a male witness does not count more than a female one. Since this rule was not obvious, it needed to be stated explicitly by the mishnah. Therefore, two women, both of whom in general are unfit witnesses, are believed in a case where they contradict the testimony of one male witness. Since they are regarded as if they were two men who testified, the two women override the one man. If the man testifies that a certain man died and they testify that he is still alive, the woman in question must leave her second husband.
The parallel source in the Tosefta is worded somewhat differently, enough to make one wonder if the Bavli had an agenda of its own and for that reason, when citing this baraita, deliberately changed its formulation. We will first compare the Bavli’s and Tosefta’s versions of this baraita and then return to the Bavli to see yet another version of this same source.
… If one woman says that he died and two women say that he did not die, the two women are like one man [and they cancel each other out]. (Tosefta Yevamot 14:1)
According to the above statement, women who testify are not treated like men. Two women versus one woman are regarded as one person versus one person, and if the woman in question had already remarried by the time that the contradictory set of witnesses appeared, she need not leave her second husband, unlike the mishnah that says that she must. However, if she had not yet remarried, she no longer has permission to do so.
R. Nehemiah says: Wherever the rabbis declared a woman’s testimony fit, it is like a man’s; all goes according to the majority of witnesses. Two women [who contradict the testimony] of one woman are like two men [who contradict the testimony] of one man [and we decide according to the majority]. (14:1)
If we read the baraita as is, even though Lieberman notes that the text is garbled,14Lieberman, Tosefta Yevamot, 168. we see that R. Nehemiah is disagreeing with the previous view. He says that if two female witnesses later contradict one female witness, they override her, and the woman in question must leave her second husband. But note the critical change in wording: Instead of two women testifying contrary to what one man said, as in the baraita in the Gemara, the Tosefta speaks of two women testifying contrary to what another woman said. By implication, if two women testify against one man, their testimony does not override his but only cancels it. The woman in question need not leave her second husband. If they overrode it, the woman in question would have to leave her second husband.
We may now ask: Which version is correct or original? Is R. Nehemiah’s “go according to the majority” principle saying that two women supersede one man, or only that two women supersede one woman? The text of the baraita in the Tosefta supports only the weaker of these two conclusions. The first version of the baraita in the Bavli supports the stronger one, but the second version, as we will now see, supports only the weaker conclusion—that women can supersede women but not men.
== … If a fit witness [i.e., a man] came first [and said her husband died], then, even if 100 women come and contradict him, they add up to only one witness, [and so she may stay married]. The [above] mishnah, however, deals with a case in which a woman [i.e., a generally unfit witness] came first [and testified that the man died, and his wife remarried, and then two women came and testified that he was still alive. In such a case she must leave her second husband.]
==And [we] explain R. Nehemiah thus:
R. Nehemiah says: Wherever the Torah accepted the testimony of [only] one witness, we decide [the case] according to the majority of the witnesses. They regarded two women against one woman like two men against one man.
==But two women against one man, it is like one versus one. (BT Yevamot 117b)
This passage makes distinctions between men and women as witnesses even in cases in which the standard rules of testimony are suspended and women’s testimony is accepted. Note that women’s testimony is accepted either to permit a woman to remarry or to dissolve her second marriage. The testimony of one or more women can also cancel a man’s testimony. But two or more women cannot overturn what one man has said and send a woman out of her second marriage, even though two men can! Note that the second version of R. Nehemiah’s statement replaces the word “man” with “woman,” so that there is no case in which women’s testimony overrides a man’s.
The Yerushalmi sugya (PT Yevamot 15:6; 15d) also cites and interprets R. Nehemiah’s statement. It concludes that when one woman testifies and then several women contradict her, the several women override her. But, it adds, even if one hundred women were to contradict one male witness, they could not override him, only cancel him. The Yerushalmi, therefore, like the second view of the Bavli, understands R. Nehemiah to be limiting his majority principle to instances in which women testify against other women. When many women contradict one man, R. Nehemiah would count it only as one versus one, as does the concluding anonymous note in the Bavli.
We thus see that the issue underlying R. Nehemiah’s statement, whichever version we accept, is not women’s reliability, because in these cases their testimony is acceptable. If so, for what reason may two women not override the testimony of one man and, for instance, dissolve a second marriage, given that they can override the testimony of one woman and also cancel the testimony of one man.15Similarly, if two women say he died and then one man says he did not die, if she had not yet married, she may go ahead and do so. These are the circumstances of the last part of M 15:4. The explanation that seems to be most reasonable is a social one: Some rabbis could not accept the notion that women’s testimony could override men’s. They could accept women contradicting men and, as a result, canceling men’s testimony; but they could not tolerate the idea that women could supersede men and replace men’s testimony with their own, even if there were two women to one man. That would be compromising a man’s dignity. It is remarkable that even when the two-witness paradigm is broken and women’s testimony is accepted, a vestige of men’s superiority survives intact. Many scholars of the Talmud who study this section fail to note this point.16It has been my experience that when I tell knowledgeable people about this distinction, they tell me I have misunderstood the text; when I show it to them “in the words,” they concede the point.
If this concern for men’s dignity is at the root of R. Nehemiah’s statement, or even is only the concern of the Yerushalmi and Bavli in their interpretations of his statement, then a social basis for the general exclusion of women from giving testimony is possible and even likely. This passage strongly suggests that the rabbis valued women’s testimony less because women’s status is lower, not because they are less reliable. It follows that what disqualifies women from giving testimony in most civil and criminal cases is their social inferiority in comparison to men.17Women could not testify in civil cases, even if the litigants were women. For a possible reason, see “A Second Rationale for Women’s Exclusion.”
A final note: The significance of the first version of R. Nehemiah’s statement in the Bavli in which two women do override one man should not be downplayed. Although the second version ultimately took precedence and is supported by the version of the baraita in the Tosefta and the Yerushalmi, the existence of the first indicates that some rabbis subscribed to the notion that women’s and men’s testimony should be valued equally in those cases in which women may testify. It is tempting to speculate that the existence of variant readings is a function not simply of faulty transmission but of the prejudices of the transmitter.18See, for example, BT Kiddushin 80b, Tosafot, s.v. ki hahee.
There is one more text in the Talmud that suggests why a woman may not, in general, offer testimony in a court of law. The reason is related to the social status argument we have discussed, but it is worded much more starkly.
One who saves [something] from a river [that washed it away], or from troops, or from robbers: If the owners despaired [of getting it back], the one who saved it may keep it.
And similarly a swarm of bees [that left one field and moved to another], if the owners despaired [of retrieving them], the bees belong to the one [who owns the field where they landed and relocated].
Said R. Yohanan b. Baroka: Women and children are believed when they say, “The swarm originated over there [and the new owner must return them].” (M Baba Kama 10:2)
The subject under discussion is movement of property out of the owner’s possession by forces beyond his control, such as a flood, a robber, or self-propulsion. To what extent is the finder obligated to return the property to the original owner? So long as the owner did not despair, the Mishnah obligates the finder to return it. But R. Yohanan b. Baroka suggests an additional criterion of return: If there is evidence as to where the property originated, then even if this information comes from women or children, it is accepted, and the new owner must give back the property that “arrived on his doorstep.”
This is the only case in the Mishnah in which a woman or a child may testify regarding a monetary matter.19M Keubot 2:10 lists instances in which an adult may testify about what he saw as a child. See next paragraph in text. In this instance the woman or child is not taking away from someone something that he owns but rather not allowing him to take possession of a windfall, making sure that the original owner gets his property back, even if he has already despaired. Why R. Yohanan b. Baroka accepts women’s testimony in this case is hard to know. Perhaps he does not regard it as testimony, as suggested by the Bavli (BK 114b). In order to make this rule consistent with the rest of the Mishnah, the possibiliiy is raised that the information provided by the women or children was not testimony but only spontaneous remarks and hence acceptable. Such remarks have special status in Jewish law.
T Ketubot, when discussing the kinds of testimony accepted from an adult about things he saw when he was a child, cites R. Yohanan b. Baroka’s statement and then qualifies it.
When is this so [that one may accept the testimony of women and children]? If they gave their testimony on the spot. But if they left and came back, they are not believed; perhaps they gave [this testimony] because they were seduced or frightened into doing so, [ומתוך היראה מתוך הפתוי]. (Tosefta Ketubot 3:3)
Women (and children) are not here considered trustworthy witnesses because others may seduce or even almost force them into saying something other than what they know to be true. That is, their dependent status makes them vulnerable to persuasion and intimidation. A woman’s reliability is compromised, not by her mental or emotional faculties or weakness, as so many have argued for so long, but by her subordinate status, by her being open to pressure because of her need to rely on others for sustenance and protection. She is beholden to the men in her life. They may push her to testify to their benefit. The rabbis of the Yerushalmi, when commenting on the associated mishnah in Ketubot, quote this passage from the Tosefta. They thus imply their agreement with its rationale (PT Ketubot 2:10; 27a). This is clear evidence of a social status argument for not accepting women’s testimony.
Even with this restriction, R. Yohanan b. Baroka still allows a woman to give testimony in a monetary matter. However, he is the only one to do so. According to the other views in the mishnah, the swarm belongs to the new owner even if a woman knows to whom it originally belonged. This is an instance in which suppression of evidence leads to monetary loss, if the evidence is reliable. However, these other rabbis apparently think that a man cannot be deprived of a windfall on the basis of what a woman says. As suggested in the Tosefta, although a woman on the spot can be assumed to be telling the truth, once she leaves and returns, it is possible that someone, most likely the man to whom she is subordinate, will influence her to report it differently. Therefore, according to these rabbis, the monetary loss would not be on the part of the original owner but on the part of the new owner.
Why did R. Yohanan b. Baroka view this case so differently from other monetary matters? As already mentioned, possibly because he does not consider the woman’s statement to be testimony. Possibly because his view of women and children is somewhat different from that of the others. Note that he alone, in the Mishnah, holds that women are obligated to the mitzvah of procreation, as are men (M Yevamot 6:6).
Two more cases of women giving testimony are of special interest.
We learned in a baraita: A midwife is believed when she says [in delivering twins], “this one came out first, this one came out second.”
In what circumstances? That she did not leave and come back. For if she left and came back, she is not believed.…
We learned in a baraita: A midwife is believed when she says [upon assisting at two births at the same time in the same place], this one is a kohen and this one a levite.… In what circumstances? That no one challenged her. But if someone challenged her, she is not believed. (BT Kiddushin 73b)
It is obvious that in these cases no man is present and thus a woman must act as witness. Various restrictions independent of gender are added: She needs to have been continuously present at the births, and there cannot be another person present at the births who challenges her. She is not believed if these conditions are not met.
The underlying assumption here seems to be that a woman can be relied upon to testify truthfully in a situation of this sort. Once again the case is a woman testifying about another woman (and the children to whom she gave birth). And once again we can conclude that women must have been considered fit witnesses, or they would not have been allowed to testify in this important case. Her testimony here has far-reaching implications in terms of the ritual of redemption of the firstborn, the firstborn’s right to a double portion of his father’s estate, and priestly privileges.20See Tosefta Kiddushin 5:8; Tosefta Niddah 6:8; Tosefta BB 7:2 (the basis for the citation from BT Kiddushin 73b above).
The second text (BT Ketubot 85a) appears in a series of anecdotes about the imposition of oaths in the courtroom. It is both the latest text presented here and one of the very few that relates an actual event on the topic of women and testimony.
The Gemara reports that Rava ordered that an oath be administered to a certain female litigant who was appearing before him in court. Rava’s wife, identified in the text as the daughter of R. Hisda,21See another anecdote involving this woman at the end of Chapter 6. told him that the woman was not to be trusted to take an oath. Rava accepted his wife’s testimony22That her statement about the female litigant is to be taken as testimony is made clear later in the text when Rava refers to it as such. about the woman and instead asked the other litigant to take an oath. The legal consequences of this transfer of an oath, according to Rashi,23S.v. le-shevuah ashekenegdah. are that the male claimant would be authorized to collect the money from the suspect woman. If this woman had taken an oath, she would not have had to surrender the money. The testimony of Rava’s wife, therefore, had immediate practical results. A second anecdote follows in which R. Pappa, like Rava’s wife, seeks to discredit someone else, a man, but Rava does not accept R. Pappa’s testimony, because, Rava says, the words of only one witness are not valid. R. Adda bar Mattanah, also present at the time, asks Rava, if that is so, why did he accept his wife’s testimony but not R. Pappa’s? Rava answers that he knows his wife to be reliable [קים לי בגווה], whereas he cannot say the same for R. Pappa.
Here, again, a woman is believed regarding another woman. Would Rava have accepted his wife’s report had she given him information about a man? It is hard to say. What is the redactor telling us by juxtaposing these two anecdotes and, in particular, by reporting that Rava trusted a woman but not a man, at that time a junior colleague but later on a prominent sage? Is this a veiled critique of women’s exclusion from testifying in Jewish law or just a jab at R. Pappa? Note that Rava is the rabbi who permitted women to initiate betrothal and participate in the ceremony.24See Chapter 3, “Women’s Initiation of Betrothal.”
Having marshaled evidence in support of the social status argument for women’s exclusion from giving testimony, I want now to show that the privacy argument, mentioned in the opening statement of this chapter, is based on a misreading of the Talmud.
The following passage is famous today because many use it to promote the view that women belong at home and for that reason may not testify in civil and criminal cases. But those who do so are not paying close attention to the logic of the text. When understood properly, it does just the opposite: It rejects the privacy argument as the basis for women’s exclusion from giving testimony. It fails to supply any other, however.
The oath of adjuration may be administered to men but not to women, to persons not related [to the litigants] but not to relatives, to those fit and not to those unfit to give testimony [because of a history of civil violations]. (M Shevuot 4:1)
Administering an oath of adjuration to potential witnesses is a strategy developed by the rabbis, based on a verse in the Torah (Leviticus 5:1), to force those who have information about a case to come forward and give it. The oath affirms that the man who takes it is not concealing any information. If he did know something, it is assumed that he would rather testify than lie under oath. The oath was intended for use in monetary claims cases only.
There are three categories of people in this mishnah who may not take this oath because they are unfit to testify: relatives, because they presumably love (or hate) the litigant; those who are suspect regarding money; and women. This grouping implies that women, like the others, cannot be relied upon to tell the truth. But the reason is not evident. The Gemara tries to find one, or at least to provide a scriptural basis for women’s exclusion. The following passage is long, somewhat repetitive, and difficult. But it is necessary to work our way through it in order to be in a position to interpret the last part, dealing with women’s privacy needs, accurately.
From where [in Scripture] do we learn that women may not serve as witnesses?
It was taught in a baraita: “And the two men [who are engaged in a dispute] shall stand [before God, the kohanim, the judges, and so on” (Deuteronomy 19:17)]—this verse speaks of witnesses [and teaches that they must be male].25The plain sense meaning of v. 17 is that if two men seek justice in a court of law and a false witness testifies against one of them (v. 16), his ploy will be uncovered by the judges. The two men referred to are litigants, not witnesses. V. 15 states the rule that two witnesses—not just one—are necessary in order to establish factual truth in a court of law. But perhaps it speaks of litigants, not witnesses, [and, if so, does not exclude women from giving testimony]. When it continues and says “who are engaged in a dispute,” it refers to the litigants. Therefore, the preceding words “and the two men shall stand” must refer to the witnesses.
If you wish [I will provide an alternative prooftext that limits testimony to men]; here (Deuteronomy 19:17) it says “two” and there (Deuteronomy 19:15) it says “two”; just as there it refers to witnesses, so too here, the word “two” refers to witnesses [and the word “men” in this verse further teaches that they must be male].
==Why does the baraita give an alternate derivation? [What is wrong with the first?]
==Should you claim that since it does not say “and the ones who are engaged in a dispute” [and without the word “and” it is possible that] the entire phrase refers to the litigants [and thus teaches nothing about women’s exclusion from giving testimony, therefore the baraita provides a second proof, based on a textual analogy, that women may not serve as witnesses.] …
It was taught in another baraita: “And the two men shall stand”—this verse speaks of witnesses [and teaches that they must be male]. But perhaps it speaks of litigants, and not witnesses? [Not so.] Do you think that only men come [to court] as litigants, and not women? [Since women also come to court as litigants, the words “the two men” most likely refer to witnesses and teach that they must be male.]
If you wish [I will provide an alternative prooftext that limits testimony to men]; here (Deuteronomy 19:17) it says “two” and there (Deuteronomy 19:15) it says “two”; just as there it refers to witnesses, so too here, the word “two” refers to witnesses [and the word “men” in this verse further teaches that they must be male].
==Why does the baraita give an alternate derivation? [What is wrong with the first?]
==Should you claim [that the words “and the two men shall stand” reasonably refer to litigants being male, and not to witnesses being male, because men come to court to litigate and] women do not, [because to maintain their dignity they stay at home,] as it says, “The glory of the princess is in the recesses of her home” (Psalms 45:14), [then one cannot learn from this verse that women are not fit to serve as witnesses. Therefore the baraita provides an alternative derivation]. … (BT Shevuot 30a)
This lengthy passage attempts to derive women’s exclusion from testimony three times over (only two have been cited), in three separate but similar tannaitic teachings. Each of the three teachings presents a derivation of the restriction, a critique of the derivation, and then an alternative derivation. The three alternative derivations are identical. Such interpretive abundance is not common in the Talmud. That the rabbis work so hard to find a derivation leads one to suspect that there is no clear scriptural basis for this ruling.26The Yerushalmi also derives from Scripture that women may not serve as witnesses (Shevuot 4:1; 35a). It first learns from a textual analogy of two verses (Deut. 19:17 and Num. 11:26) that women and children may not serve as judges. Several Amoraim, R. Yossi b. R. Bon and R. Huna in the name of R. Yossi, then deduce from the same two verses as the baraitas in the Bavli that women may not serve as witnesses.
The last paragraph of the passage is of particular interest. If it is true, the argument goes, that women, in order to protect their dignity, do not come to court as litigants, then the entire statement “and the two men who are engaged in a dispute shall stand” refers to litigants only. It thus contains no superfluous expression that could refer to witnesses and from which we could derive that women are disqualified. The baraita goes on to find a different verse to teach that women may not testify.
The first thing to notice about this section is that the verse about privacy, “The glory of the princess …,” is not introduced in order to explain why women cannot testify but why women may choose not to appear as litigants, why they may send a man in their place. The second thing to notice is that if maintaining a woman’s privacy and dignity were, in fact, also a reason not to testify, then the Gemara would have said so and would not go on to find a different verse to exclude women from testifying. But since the baraita, as understood by the Gemara, continues with an alternate scriptural derivation of the rule that women may not testify, it clearly does not think that privacy considerations, and the verse from Psalms, restrict a woman from giving testimony. We must also keep in mind that testimony can only be given in person, not as hearsay or secondhand, whereas a female litigant, at least in a monetary matter, need not appear in court but can be represented by someone else.27See Tosafot s.v. kol kevudah. By not invoking the privacy argument in conjunction with testimony, the Gemara is saying that the requirement to testify in court supersedes the societal need to protect a woman’s privacy—an observation that most people who read this passage fail to make.28See PT Yoma (1:1; 38d) for a story in which a women’s modest dress leads to the outstanding accomplishments of her sons. Ps. 45:14 is quoted there to indicate that women should dress modestly, both in public and in private. It does not imply that a modest woman should stay at home.
It is ironic that although the anonymous voice of the text says, regarding litigancy, that women may or should stay home and be represented by someone else,29The anonymous speaker perhaps bases his statement on BT Ketubot 97b, “R. Yohanan says: No man wants his wife to be degraded in a court of law.” This can be taken to mean that men want women to be represented by others. we find many instances in the Talmud in which women did come to court to press their claims. The notion of women’s privacy that appears in this passage is thus not consistent with life as lived by women in the amoraic period.30The notion of women not litigating in court appears to have been fabricated by the anonymous voice of the text in order to explain why a second prooftext had to be brought. The anonymous speaker provides an explanation that is possible, but is not necessarily the general case.
The parallel passage in the Midrash Halakhah sheds further light on this matter.
“The two men” (v. 17): I can only learn from here that men may come to court as litigants. What about a man and a woman, a woman and a man, and two women with each other? “That are engaged in a dispute”—in whatever way [meaning any pair of litigants, regardless of gender, may face each other in court].
Could it be that a woman is fit to give testimony? It says here “two” (v. 17) and it says there “two” (v. 15); just as here [in reference to litigants] it [i.e., “two”] implies men but not women [because to include women as litigants it was necessary to utilize an additional phrase], so too there [in reference to witnesses, v. 15] it means men but not women [and no superfluous phrase comes to include them]. (Sifrei Devarim 19031Finkelstein ed., 230.)
The midrash makes a clear distinction between the permissibility of women’s serving as litigants and women’s serving as witnesses. A woman can serve as a litigant even when the other litigant is a man. Gender does not seem to be an issue when it comes to seeking redress in the courts as a litigant. Does this not suggest that gender is an issue regarding testimony, that the rabbis felt it inappropriate for a woman to testify against a male witness, and either against or for a male defendant?
A review of all of these passages on testimony highlights the difficulty of the issue. Had the rabbis excluded women totally, we would have much more easily understood their motivations. The mix of inclusions and exclusions, however, perplexes the reader and demands a far more nuanced explanation than simply saying that the rabbis did not consider women trustworthy. The theory presented here—that social status issues play a role in rabbinic thinking about women and testimony—seems to offer the most reasonable reading of all the sources on the subject.
We may be tempted to credit the rabbis with a fundamental concern for women’s welfare. For this reason they allowed women to testify in certain cases. However, we must keep in mind that as real as their concern for women’s welfare may have been, they were able to express it in those cases without great difficulty because the testimony they accepted from women was offered on behalf of other women only. No men were involved. It is not surprising that social structures, patriarchy in this case, should play a role in developing the rules of fit witnesses. In fact, it would be surprising if men in a dominant position regarded those whom they controlled, women and slaves, as equal to them in rights and privileges and in a position to be immune to pressure.
Having said all this, I still think that credit is due the rabbis, not so much for making the exceptions to women’s exclusion from giving testimony, but for openly admitting that they relaxed standards. It is true that the Talmud asks about the wisdom of lowering standards of testimony if, in the long run, fabricated testimony will create even greater difficulties for the woman of indeterminate marital status. It gives three answers to its own question. (1) Because the rabbis deal so harshly with a woman who remarried on the basis of a false death report, they treat her leniently at the outset, when the report is first heard, easing the criteria for its reliability (BT Yevamot 88a). (2) They say that women are known to substantiate matters before they remarry and only marry if they are sure they are no longer tied to the first husband (BT Yevamot 93b). (3) The rabbis say that since people know that the truth will eventually emerge, they are not likely to lie (BT Yevamot 93b).
I find these answers unsatisfactory. It makes no sense to me to treat a woman leniently at the outset if what awaits her later is a harsh punishment. No woman wants to think that she is subject to a game of chance: Some women who remarry on the basis of the testimony of “unreliable” witnesses will regain stability in their lives, but others will be condemned to ongoing suffering. In addition, the notion that a woman is expected to be the final arbiter of her own fate, to go beyond what the judges require and somehow determine if the witnesses are lying or not, is a concept foreign to good jurisprudence. It seems to me that the Gemara offered these explanations as its best defense against the inherent immorality of the Mishnah’s rulings in these matters, which punish her for a crime she did not commit. By shifting the burden to the woman herself, the Gemara removes all blame from the courtroom judges and from its own authors, the legislators.32See Friedman’s insightful discussion of all these issues, “A Critical Study,” in particular 277–282.
Precisely because these explanations for the relaxation of standards make so little sense, we have to look once again at all the relevant materials to see if some other explanation would fit the texts better. The notion that women and slaves in and of themselves are reliable goes a long way to resolve the difficulties. Since they testify truthfully, just like men, the likelihood of their leading a woman astray is very small. Therefore, when the rabbis deviated from the general rule of a woman’s being socially unfit to testify, and permitted her to do so on behalf of other women, they did not lower the standards of testimony any more than when they decided to allow only one man to testify.
I think that the lower social status of women is the only explanation that reasonably accounts for the mix of inclusions and exclusions. Had R. Nehemiah not made his statement about the inability of women to override men, and had R. Yohanan b. Baroka not made his statement about women’s vulnerability to persuasion, we would have made plausible proposals but not had proof positive of the difference between men and women on the witness stand. Given all the texts, we see that the rabbis value women’s testimony but, at the same time, because of their patriarchal mind set, could not treat women’s testimony in the same way as men’s.