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A woman accused of being a Sotah (had intentional seclusion with a man she was warned against), is now forbidden to her husband until she drinks the Sotah waters. If she committed adultery, she'll die after drinking.

Let's say the woman was raped while in seclusion, would she die if she drank the waters?

This question is motivated by the Maharal to Esther 4:16 and Penei Yehoshua to Kesubos 51b who both say a woman who had intentional seclusion with a man, and was raped, is forever forbidden to her husband. They prove this from Esther, who intentionally secluded herself with Achashverosh, and was thus forbidden to Mordechai, even though relations with him weren't with intent. If we take their opinion into account, the question would then be how far to take what they're saying.

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I subsequently discovered that the answer to my question is basically addressed in the Gemarra in Sotah 26a (and 32b, see below):

במתנוונה דרך אברים מהו דתימא הא זנויי זנאי והא דלא בדקוה מיא כי אורחיה משום דבאונס זנאי ולגבי כהן אסירא קא משמע לן

The Gemarra says that the Mishnah (on 24a) is discussing the case where a woman, after drinking the sotah waters, starts to deteriorate in an unusual manner (unlike a normal sotah), she is permitted to her husband who is a Kohen (and obviously then a woman married to a regular Jew as well). What's the chiddush (novelty)?

I would have thought that since she's deteriorating abnormally, even though she wasn't intentionally adulterous, we can say that she was raped while in seclusion with this other man. Since a raped woman is forbidden to her Kohen husband, this woman should be forbidden to him. The Mishnah teaches us that this is not true. But in what way is this not true?

According to the Mishneh LaMelech (Sotah 3:24), there are two ways to understand it:

  1. If she was raped she would have died like any other sotah. Since she didn't, she must not have been raped, and is permitted if her husband is a Kohen.

  2. The sotah water doesn't test for the case of rape. While it's possible that that's what happened, we aren't concerned for such a possibility.

The Toras HaKinaos gives a third explanation, that if she was raped she would deserve to deteriorate in an abnormal way. Since that's what happened, maybe it's proof that she was raped (and would thus be forbidden to her Kohen husband)...comes the Mishnah to teach us that this is not a proof, as it could just be a coincidence.

So you see from here that the default position of the Gemarra is that a sotah would not die if she was raped, and would be permitted to her non-Kohen husband. According to explanation #1 of the MLM, she would actually die (seemingly like the Maharal and Penei Yehoshua). According to explanation #2, she would not die, as the sotah waters don't test for this case. This is also the opinion of the Yerushalmi (Sotah 4:4), codified by the Rambam (Hilchos Sotah 3:24). It's also Rashi's understanding of the Bavli (32b). I didn't check if others understand differently. According to the explanation of Toras HaKinaos, she also would not die if she was raped.

In fact, the Toras HaKinaos, asks from this Gemarra on the Penei Yehoshua, that if she is treated as an intentional adulteress, why doesn't she die when she drinks the sotah waters? You see from his question that he doesn't see room to differentiate between the two (See also Yad HaMelech Sotah 3:24).

He answers that the case of the Penei Yehoshua is where she intentionally went into seclusion, and was subsequently raped. However, the Gemarra is discussing a case where she was coerced into the seclusion as well 1 (my guess is the witnesses aren't aware of the coercion, but I may be wrong). This would mean then that he holds that in the Penei Yehoshua's case, she would indeed die if she drank the sotah waters.

See also Tosafos Shantz to Sotah 6a, who says as a blanket statement that if a woman had consensual seclusion with a man, any resulting activity is considered consensual as well.

Sources culled from Oz VeHadar's Mesivta Shas.


1 This is how the Oz VeHadar Mesivta summarizes his words, but looking at them myself I'm not sure if this is what he is saying, I'll have to go over this again.

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In light of my lack of knowledge on this subject i have tried my best to provide a source for the Maharal and Pnei Yehoshua's opinion:

Kesubos 51b:

אמר רב יהודה הני נשי דגנבו גנבי שריין לגוברייהו אמרי ליה רבנן לרב יהודה והא קא ממטיאן להו נהמא מחמת יראה והא קא משלחן להו גירי מחמת יראה ודאי שבקינהו ואזלן מנפשייהו אסירן

Rav Yehuda said "Woman which are kidnapped from their husbands are permitted." The rabbis asked him "surely they bring food to their captors and give them arrows to fight their enemies?
He replied: "They do so out of fear, but if they are abandoned and go back willfully to be with their captors they are forbidden to their husbands."

This seems to imply the actual going voluntarily to someone for adulterous relations makes her forbidden to her husband (with testimony of intent and seclusion) regardless what happens afterwards as we cannot be sure, makes her forbidden to her Husband.

The proof from Esther proves that even though we are 100% sure through Nevua of Mordechai she was Oneis the very going still forbids her.

All this being said if she gets raped, even though she put herself in seclusion and is forbidden to her husband, she won't die from the sotah waters as the actual Biah she does not want and is oneis at that time so Hashem (who know everyone's true intentions) does not punish her as clearly indicated in by Bava Kamma 28b (and other places as well)

ואונס רחמנא פטריה דכתיב ולנער [ולנערה] לא תעשה דבר אין לנער [לנערה] חטא מות...(צעקה הנער [הנערה] המארשה ואין מושיע לה

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The only reason Esther was prohibited to Mordecai at the time of seclusion was because sex (consensual or otherwise) was assumed. The Sota Waters are only given to a woman who wants to prove her innocence. Her husband told her not to seclude herself with with a certain man, and a witness tells Bis Din that he saw her seclude herself with that very man; because she denied having sexual relations with him. She is Assur to her husband from the time he tells her not to be alone with that man, because he has doubts. Now the sota waters will either clear her name and make her permissible to him or will kill her. But if the husband never told her not to be secluded with a certain man, then even if she's secluded with him she's permitted to her husband. The Gemara that you alluded to (in kesubos 51 B תניא כוותיה דרבא (במדבר ה, יג) 'והיא ל'(()) אסור...' הא נתפשה מותרת. ויש לך אחרת שאע"פ שלא נתפשה מותרת. ואיזו זו? כל שתחלתה באונס .וסופה ברצון and the other Amara says no even in such a case where should were she enjoyed that at the end of the rape it's okay he can take her back. because it was a momentary lapse in judgement.) Is not relevent to the Sota water case in that even if she was raped, she Would die. The reason being that she was warned not to be with that man.

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    While you made a series of statements, some of which are true some of which are half true, nothing you wrote answers my question. Read it again and you'll see some of your claims are not in line with what I wrote – robev Mar 5 '18 at 13:31

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