Using Midrash to Pasken Halacha: A case study in Esther.

(7) He was foster father to Hadassah—that is, Esther—his uncle’s daughter, for she had neither father nor mother. The maiden was shapely and beautiful; and when her father and mother died, Mordecai adopted her as his own daughter.

(7) As a daughter - our sages explain this as a wife. (Megillah 13a).

The Gemara returns to its exposition of the Megilla. The verse states: “For Esther adhered to the words of Mordecai, as she did when she was brought up with him” (Esther 2:20). Rabbi Yirmeya said: This teaches that she would show discharges of her menstrual blood to the Sages to inquire whether she was pure or impure. The verse continues: “As she did when she was brought up with him” (Esther 2:20). Rabba bar Lima said in the name of Rav: This means that she maintained a relationship with Mordecai, as she would arise from the lap of Ahasuerus, immerse herself in a ritual bath, and sit in the lap of Mordecai.

Rabbi Abba said: It will not be according to my usual custom, for every day until now when I submitted myself to Ahasuerus it was under compulsion, but now I will be submitting myself to him of my own free will. And Esther further said: “And if I perish, I perish” (Esther 4:16). What she meant was: Just as I was lost to my father’s house ever since I was brought here, so too, shall I be lost to you, for after voluntarily having relations with Ahasuerus, I shall be forever forbidden to you.

Until now - I was forced to have sex.

And now - From here, I am doing it of my own volition.

I will be lost from you - I will be forbidden to you as any Jewish woman is permitted to her husband after a rape and forbidden to her husband after engaging in adultery willingly.

(7) One who saw his wife commit adultery, or one of his [the adulterer's] or her relatives told him, and he believes them or his judgment relies on their statement that he wife committed adultery, whether the speaker was a man or a woman, since his judgment relied on the truth of this matter, he is obligated to divorce her and is forbidden from having sex with her, and he pays her according to the marriage contract.

(6) If there are no witnesses that she committed adultery, but rather she herself says she has committed adultery, we are not concerned about this matter to forbid her [from her husband], as perhaps she [merely] set her eyes upon another. This is only if there is no reason to believe her, but if there is reason to believe her, she is trusted (Decisions of Mahara"i #222).

(1) D.V. Altona, Wednesday, I Adar 25, 5619 (1859).

(2) To the eminent etc. teacher and Rabbi Mendel Friedlander, head of the rabbinical court in Georgen, Hungary (Sfantu Gheorghe, Romania)

(3) Question: Not long ago, an incident came before me that will cause the ears of all who hear it to ring. In one of the villages in my domain live two Jews who regularly take business trips extending several days, leaving their wives alone in the house with their sons and daughters and servants. One day, when one of the men went as was his way on a business trip, another man came from Poland, with torn clothes, and asked the wife for a place to lodge. The woman, who had always been exceedingly modest but whose piety was her folly, took pity on him and gave him a place to sleep and also food and drink. Yet that guest did not eat from her anything that had been alive, and drank nothing but water, and engaged in similar ascetic practices, afflicting himself with mortifications. All day he sat shut in his room with a book in hand, and also each night until midnight, upon which he would grieve over the destruction of God’s Temple. When he slept, he did not lie on a bed or bench, but rather on the ground, with rocks beneath his head. Each day he would immerse himself in the cold waters of the river twice, at the chilliest times. He behaved this way in the woman’s house from Sunday of Parashat Terumah until Shabbat of Parashat Tetzaveh.

(4) But on Friday night, after the meal was over, the children and the house servants all left the table and went to sleep in the other room while that fraudulent man remained seated at the table, alone with the woman. He entered into conversation with her to the point that she asked “Who are you? Where do you come from? Where are you going?” He replied “I am an emissary of the Merciful One, and my name is Eliyahu the Prophet. I seek my brethren, to gather them from the four corners of the earth—but this can be told only to the discreet.” The woman, in her great foolishness believed him.

(5) She went to sleep on her bed in the adjacent room, while that menace still sat at his place. He studied a book until midnight, and after midnight he arose, tiptoed over to the bed where the woman was lying, woke her up from her sleep, and said to her:

(6) Behold I have traveled from one end of the earth to the other, and I have found no righteous woman to compare to you who is worthy to produce the Messiah. The obstacle is your husband, who is not suitable for such. To that end, I have been sent from heaven to sleep with you, and in nine months you will bear a son who will be the Messiah, son of David. He will redeem Israel. This is your sign that I am Eliyahu; this coming Tuesday, after I take leave of you, if you open the door to the closet that stands here in your bedroom, you will find there a great treasure of 400 golden ducats—but only on condition that you do not open the closet before the prescribed time.

(7) Thus spoke the adulterer to her, until he seduced her. He defiled her twice, on Friday night and Saturday night, and on Sunday before dawn the adulterer fled from there. His whereabouts are unknown.

(8) This foolish woman quickly wrote to her husband that he hurry home, as God had granted prosperity to his household via a great treasure. He listened to her and returned on Tuesday. The woman then opened the closet and found nothing of the treasure of which the adulterer spoke. When she saw that he had lied, she screamed and wept with a bitter soul. She told her husband all about the abomination that this evildoer had perpetrated, and she spoke to her husband’s heart saying: “I did not do this out of betrayal or sacrilege. With God as my witness, my intention was for the sake of heaven! Was not the adulterer a disgusting and ugly man? What could have lured me to commit infidelity with him?” But the husband was not assuaged by this. Instead, he came to me and told me everything, and asked me what to do about his wife. I sent for his wife and interrogated her in various ways, and she, too, recounted to me the above tale. I ordered them to separate until I could place the matter before your honor.

(9) This is the content of the question from the aforementioned rabbi and rabbinical court head, may his light shine.

(10) Response: I have reviewed all of the aspects, and it is very difficult to find a cure and a remedy for this plague of stupidity that would permit this woman to her husband. Her claim that she was unwitting, and that her intentions were for the sake of heaven, is not a claim that would permit her based on what Maharik wrote in §168, cited by Rema in Even Ha-ezer (§178), namely, that if a woman commits adultery thinking that it is permitted to commit adultery, she is considered to have sinned knowingly, and she is forbidden to her Jewish husband. This is in accordance with what you have noted yourself; we will discuss this further below.

(11) It first glance, it would seem possible to find grounds for leniency since there are no witnesses to the act and no rumors have been spread. It is her word alone that she committed adultery, and we rule in accordance with the later Mishna, as explained in Even Ha-ezer 115:6: “If there are no witnesses that she committed adultery, but she says she committed adultery, we do not express concern for her claim by forbidding her to her husband, for we suspect that she may have become attracted to someone else [and makes this claim so that her husband must divorce her].” This being the case, we should have the same suspicions about this woman.

(12) Yet she claims that she was unwitting and wishes to remain with her husband, so how can we say that perhaps she became attracted to someone else? Regarding the similar case in the writings of R. Yisrael Isserlein (Terumat Ha-deshen) §222, which states:

(13)

(14) Accordingly, we may posit that whenever she says “I am defiled,” she was attracted to someone else, and she later remembered, or was reminded or coached to say, that due to the great shame and taint caused to her and her family, she strengthened herself against her urges and her heart, and she shielded her eyes from the man who she had initially been attracted to, and she changed her claim.

(15) This case is irrelevant here, since in the present case she never changed her claim. In fact, immediately upon confessing her infidelity to her husband, she gave the excuse that she was unwitting and pled with him not to push her away. Thus, she was not attracted to someone else.

(16) Yet perhaps she is being deceitful, knowing that if she says that she knowingly committed adultery she will not achieve her goal of having him divorce her so she can marry the person to whom she has become attracted. She knows that he will suspect that she has become attracted to another, so she is apologetic toward him to make him believe that she committed adultery and divorces her. This reasoning is mentioned in Responsa Noda BiYehuda, Even Ha-ezer 1:71, and it is also implied by the language of Shulhan Arukh, which simply states “we do not express concern for her claim, for perhaps she has become attracted to someone else,” making no distinction between a case where she wishes to leave her husband and a case where she wishes to remain with him.

(17) Similarly, regarding what you wrote, namely, that they told him that on Shabbat morning, the servants came into the room in which the woman was lying and found the adulterer lying on the ground. In that case, there is substance to the claim, since the man was secluded with the woman, and when the claim has substantiation, we no longer say “perhaps she was attracted to someone else,” as Beit Shmuel 115:23 states: “If it is known that she was secluded with someone, and she says that she committed adultery, then it seems that she is believed.”

(18) Yet even for this reason she should not be forbidden, based on Helkat Mehokek states there in the name of Rosh, namely, that if there is a reason to permit, such as the fact that he would have hid himself (had infidelity truly taken place), we do not prohibit her, even if there is substance to the claim. If so, this reason applies here as well, because if he indeed committed adultery, how could he lie on the floor of the room where the woman slept until the servants entered and saw him, and not return to the room where he sat until midnight or to his bedroom? Even though Beit Shmuel disagrees with Helkat Mehokek and rules stringently, in accordance with Tosafot in the chapter “Af al Pi,” that a reason to permit is of no help when there is substantiation, it nevertheless hinges on two opinions within Tosafot. And Noda Bi-Yehuda §70 upheld Helkat Mehokek against Beit Shmuel. Moreover, even without this, we can contend, as you noted, that such seclusion is not considered substantiation since there is no evidence that they secluded themselves for the purpose of infidelity, and since the door was unlocked for anyone in the household to enter.

(19) It would have been possible to posit all of this if there were only the words of the woman to contend with. However, it seems, based on the text of the question, namely, from the fact that the husband screamed and wept over the act and his shame, that he believes her. It is clear from Shulhan Arukh §115 that if he believes her, and he relies upon her word, then he must divorce her. And even though Rema in §178 brings an opinion (yesh omrim) that nowadays, after the enactment of Rabbenu Gershom’s ban [on polygamy], he is not believed to say that he believes her, he nevertheless cites another opinion afterward, which maintains that he is believed even nowadays. It seems that he rules thus, since he cited this opinion last. Moreover, since he did not bring this view as a gloss in §115, where Shulhan Arukh ruled that he is required to divorce her, it implies that he agrees as a practical matter. All of the later authorities simply ruled that if the husband believes her, she is forbidden to him. I am astonished that you did not note this.

(20) Thus, there is no remedy for her on the grounds that we suspect that she became attracted to someone else.

(21) However, after seeing what R. Yisrael Isserlein in §222 of his rulings, that R. Meir [of Rothenburg] was very lenient in order to avoid forbidding a wife to her husband, even though he regularly, in all places, would practice stringently here and stringently there, we must follow in his footsteps. Thus, I too sought a way to find grounds for permitting, based on my own humble reasoning. I will therefore speak, so that I may find relief.

(22) In the aforementioned responsum of Maharik, regarding Maharil’s question about whether woman who willingly committed adultery against her husband without knowing that it is forbidden is considered unwitting (shogeg), he responded:

(23) In my opinion, it appears that she is not considered unwitting in order to be permitted to her husband, since she intended to betray her husband and cheat on him. After all, Scripture does not say “A man whose wife strays, and betrays God,” which would imply that the law applies only when she intends to violate a prohibition, but “and betrays him.”

(24) Later he writes:

(25) It also seems, in my humble opinion, that there is another proof that the matter does not depend on intent to violate a prohibition, for we learn in the first chapter of Megilla (15a): “‘If I am lost, I am lost’ (ka’asher avadeti avadeti; Esther 4:16): just as I lost my father’s house, so too I will lose you. Until now I have been compelled, but now I am willing.” We learn from this that from that time, she became forbidden to Mordechai. Now, it is clear that Esther did nothing prohibited, and there was not even a smidgen of transgression. Rather, she performed a great mitzva, for she saved all of Israel. Clearly that this is the case, for when she came before the king, the divine spirit rested upon her. But even so, she became forbidden to her husband, Mordechai, as a result of that willing act. Now we may reason a fortiori: if in that case, where there was not a smidgen of transgression, and, on the contrary, she did a mitzva, and yet she was still forbidden to her husband Mordechai, then certainly a woman who committed adultery against her husband, even if she does not know that this is prohibited, is forbidden to him because she nevertheless transgressed, and needs atonement, and is liable to bring an offering.

(26) For this reason, Beit Shmuel states in §178: “If she willingly committed adultery to save lives, as in the case of Esther with Ahasuerus, she is forbidden to her husband, as the intercourse was willing.”

(27) In my humble opinion, there is a rebuttal to this. Although Maharik offers sound reasoning—even if she did not betray God, but still betrayed her husband, she is forbidden to him—in my opinion this only applies when she willingly committed adultery and intended to enjoy it, but was not aware that it is forbidden, because the nevertheless had intention to betray her husband. However, if she committed adultery for the sake of a mitzva, and her intent was solely for the sake of heaven, how can this be considered a betrayal of her husband? This would be especially challenging for Mordechai’s case, since he himself ordered her, against her will, to go to the king. How can this be considered a betrayal of him?

(28) Additionally, Maharsha and Rif in Ein Ya’akov already pointed out a contradiction in Esther’s words: to Mordechai she says “now I am willing,” yet in Megilla ad loc. it is stated: “R. Levi said: When she reached the chamber of idols, the divine presence left her, and she said, ‘My God, my God, why have You forsaken me? (Tehilim 22:2) Do You judge unwitting acts as though they were done knowingly? Coerced acts as though they were done willingly?’” Rashi explains: “Although I go to him on my initiative, I am coerced.” Here, then, she called herself coerced!

(29) Therefore, it seems to me, in my humble opinion, that if her actions were definitely necessary to save Israel, then there is no greater compulsion than that. However, it seems from his words that Mordechai was uncertain about that, since he said: “If you are silent at this time, relief and deliverance will rise for the Jews from somewhere else… and who knows whether you became royalty for a time like this?” (Esther 4:14) The meaning of his words is that he was confident that God would send deliverance to the Jews, but he was uncertain whether it would come via Esther or from somewhere else. Thus he asks “Who knows” whether you became queen in order to save Israel—as Ibn Ezra explains.

(30) Thus, from the perspective of prohibited adultery of a married woman, despite the uncertainty, it was permitted, for we desecrate Shabbat even for the possibility of saving a life. But with regard to the question of whether she remains permitted to her husband, the uncertainty remains, since indeed, it may have been possible to save them another way, so perhaps she committed adultery willingly and unnecessarily. Thus, Esther said “If I am lost, I am lost,” that now she was going willingly, and due to the uncertainty, she would be forbidden to her husband. But when she reached the chamber of idols, and the divine presence left her, she asked, “Why have You forsaken me? Do You judge unwitting acts as though they were done knowingly? Coerced acts as though they were done willingly?” She was not really wondering about this, since the Torah is explicit that God does not judge coerced acts like those done willingly. Rather, she was wondering: “Are You thus, perhaps, telling me that I should not go? That I am not compelled? That You do not want to save Israel through me?” Therefore, when the divine presence returned to her, she knew that this came from God, and that He wished to rescue Israel only through her. And therefore, for this truly righteous woman, it indeed was not considered adultery—which would have made her forbidden to her husband—since she was entirely coerced.

(31) The upshot is that if we accept this, then if a woman committed adultery for God’s sake, it would not be considered a betrayal of her husband.

(32) I am indeed unworthy of disputing Maharik and Beit Shmuel, of contravening them to permit what they prohibit. However, I have seen Responsa Shvut Ya’akov 2:117. The question was about a man who went with his wife and with others through a forest. They were attacked by murderous men. The only way they knew of to save themselves was that the wife surrendered herself to them, with her husband’s willing consent. Is she permitted to her husband? He responded with the words of Maharik but then questioned what the difference is, in Esther’s case, between the situation up to that point, when she was coerced, and the new situation, after which she is considered willing even though she was acting only to deliver Israel. He answered with a sound rationale: if she is compelled to have intercourse, as it was when she was taken to Ahasuerus, then the adultery is considered under coercion, and she is permitted [to her husband]. However, if the coercion is not related to the intercourse, but instead, because of some external threat, she goes to him and willingly accedes to the intercourse in order to effect deliverance, then even though she did the right thing in saving herself and the masses, and she is considered to have been coerced, she is nevertheless forbidden to her husband because the intercourse itself was voluntary. With this, he also answers the contradiction about whether Esther considered herself willing or coerced.

(33) Thus, he made the following distinction: If the intercourse was not coerced, but she engaged in it in order to effect deliverance, she is forbidden to her husband. But if the intercourse itself was coerced, she is permitted to him.

(34) Now, in the present case, in which the adulterer, may his name be blotted out, told her that he is Eliyahu the prophet, and that he was sent from the heavens to sleep with her, and this foolish woman was so credulous that she summoned her husband to receive his wealth as though it was already in her hand, then according to her folly the intercourse itself was commanded by the heavens. There is no greater coercion than this. She did not intend, with this intercourse, to betray her husband. Rather, as she said, with God as her witness, that her intention was for the sake of heaven. As such, there are grounds to consider that even according to Maharik and latter-day authorities, this is a case of bona fide coercion, and she is permitted to her husband. This is indeed my humble opinion, but do not rely on my instruction unless two other decisors agree to this, in which case I will join them to permit this woman to her husband, especially since, as stated in the query, she has always been an upstanding woman, and they have children.

(35) This is my humble opinion,

(36) the insignificant Yaakov.