Niddah 25

Berachot 60a ~ Gender Determination

In the time of the Talmud and for centuries beyond, it was very important for a couple to produce male children. To this end, some rabbis suggested a technique to ensure that a boy was produced. Here it is described in today’s page of Talmud:

ברכות ס, א

וא"ר יצחק אשה מזרעת תחלה יולדת זכר איש מזריע תחלה יולדת נקבה

Rabbi Yitzchak said that if the woman emits seed first she gives birth to a male, and if the man emits seed first she gives birth to a female.

Today we will explore the topic of gender determination in the Talmud.

How to conceive a boy or a girl

In the tractate Niddah the statement about “emitting seed first” comes up several times, and in the name of a few different rabbis. And, as if emphasize its importance, the Talmud offers no fewer than four different supporting proofs for the principal. The first is the one that we just read in the name of Rav Ami:

נדה לא, א

אמר רבי יצחק אמר רבי אמי אשה מזרעת תחילה יולדת זכר איש מזריע תחילה יולדת נקבה שנאמר (ויקרא יג, כט) אשה כי תזריע וילדה זכר 

Rabbi Yitzchak says that Rabbi Ami says:The sex of a fetus is determined at the moment of conception. If the woman emits seed first, she gives birth to a male, and if the man emits seed first, she gives birth to a female, as it is stated: “If a woman bears seed and gives birth to a male”(Leviticus 12:2). 

The suggestion from the verse is that “if a woman bears seed” first, then she will “give birth to a male.” A second proof text from the Torah is provided by Rabbi Tzadok, this time from the story of our matriarch Leah.

תנו רבנן בראשונה היו אומרים אשה מזרעת תחילה יולדת זכר איש מזריע תחלה יולדת נקבה ולא פירשו חכמים את הדבר עד שבא רבי צדוק ופירשו (בראשית מו, טו) אלה בני לאה אשר ילדה ליעקב בפדן ארם ואת דינה בתו תלה הזכרים בנקבות ונקבות בזכרים 

The Sages taught: At first, people would say that if the woman emits seed first she gives birth to a male, and if the man emits seed first, she gives birth to a female. But the Sages did not explain from which verse this matter is derived, until Rabbi Tzadok came and explained that it is derived from the following verse: “These are the sons of Leah, whom she bore to Jacob in Paddan Aram, with his daughter Dinah”(Genesis 46:15). From the fact that the verse attributes the males to the females, as the males are called: “The sons of Leah,” and it attributes the females to the males, in that Dinah is called: “His daughter,” it is derived that if the woman emits seed first she gives birth to a male, whereas if the man emits seed first, she bears a female.

בנדה לא ,א–ב

The Talmud brings a third proof text, this one from the Book of Chronicles:

ויהיו בני אולם אנשים גבורי חיל דורכי קשת ומרבים בנים ובני בנים וכי בידו של אדם להרבות בנים ובני בנים אלא מתוך שמשהין עצמן בבטן כדי שיזריעו נשותיהן תחלה שיהו בניהם זכרים מעלה עליהן הכתוב כאילו הם מרבים בנים ובני בנים והיינו דאמר רב קטינא יכולני לעשות כל בני זכרים 

“And the sons of Ulam were mighty men of valor, archers, and had many sons and sons’ sons”(I Chronicles 8:40). Is it in a person’s power to have many sons and sons’ sons? Rather, because they delay while lying on wives’ abdomen, initially refraining from emitting semen so that their wives will emit seed first, in order that their children will be male, the verse ascribes them credit as though they have many sons and sons’ sons. And this statement is the same as that which Rav Ketina said: I could have made all of my children males,by refraining from emitting seed until my wife emitted seed first. 

And finally, the fourth proof text. A later passage in Niddah (Niddah 70b-71a) cites a number of questions that the sages of Alexandria asked of Rabbi Yehoshua. One of them was how can a man ensure he has male children? Rabbi Yehoshua told them the man should do two things: marry a woman who is fit for him, and act modestly during sexual intercourse. Hold on, the sages of Alexandria replied. Many men have done that, and it didn’t help! Rabbi Yehoshua then qualified his answer, and explained that in addition to marrying an appropriate woman and being modest, a man needs to pray for a son. Rabbi Yehoshua then cited a proof text from Psalms (127:3):

הנה נחלת ה' בנים שכר פרי הבטן

Behold, children are a heritage of the Lord; the fruit of the womb is a reward

So far so good. To have male children a man needs to marry an appropriate wife, act modestly when he is intimate with her, and pray. But now the Talmud asks a question based on the proof text. What is the act for which the reward are children?

א"ר חמא ברבי חנינא בשכר שמשהין עצמן בבטן כדי שתזריע אשתו תחילה נותן לו הקב"ה שכר פרי הבטן

Rabbi Chama, son of Rabbi Chanina, says: In reward for men withholding their semen in their belly in order to allow their wives to emit seed first, the Holy One, Blessed be He, gives him the reward of the fruit of the womb, [that is, sons].

These are the four different proof texts from the Bible to support the claim that if a woman emits her seed first, she will give birth to a boy. Of course now we need to determine what, precisely, is meant by the phrase “if the woman emits seed first” (מזרעת תחילה).

Understanding THE PHRASE

(i) Ovulation

Perhaps it could refer to ovulation. This makes sense to us since we understand that fertilization requires two “seeds,” the egg, and sperm. But this would not have made sense to the rabbis of the Talmud. They, like everyone else at the time (and indeed until the beginning of the seventeenth century) had no concept of mammalian ovulation. In fact it was the blood that was lost at menstruation that was believed to be the mother’s contribution to her child’s formation, and not any eggs she may produce.

A classic example of this lack of understanding of ovulation is found in the early medieval commentary of Moses ben Nachman, known as Ramban (1194–1270) to Leviticus 12:2. Here is the key bit:

כי האשה אע"פ שיש לה ביצים כביצי זכר או שלא יעשה בהן זרע כלל או שאין הזרע ההוא נקפא ולא עושה דבר בעובר

For even though a woman has ovaries like the testes of a man, either they do not produce eggs at all, or else the egg jells and contributes nothing to the fetus.

(ii) Orgasm

The other possibility is that “emitting seed first” refers to orgasm. If you want to have a boy, the rabbis said, the husband should allow his wife to have an orgasm before himself. This interpretation is favored by the historian of all things medical and talmudic, Fred Rosner. Here is what he wrote in Medicine in the Bible and The Talmud (Ktav Publishing and Yeshiva University Press 1977, p175):

It seems obvious…that the meaning must be orgasm rather than ovulation, for otherwise it would not make sense to speak of the men restraining themselves during intercourse in order to allow their wives to “emit seed” first.

Theories of sex determination in Antiquity

In a fascinating paper in the Journal for the Study of Judaism, the scholar Pieter van Horst wrote “it is certain that ancient Greek concepts of embryogenesis influenced Jewish theories about the coming-into-being of a foetus.” So let’s look at some of those theories.

Aristotle (384–322 BCE) recorded the belief (with which he did not agree) that male offspring come from the right side of the male and females from the left side; an embryo that develops in the “right side” of the uterus (whatever that means) becomes male while that which develops in the left side becomes female. Aristotle himself believed that the mother’s contribution to the fetus was menstrual blood, and it had the same origin as male semen, although it was not as developed.

Another Greek, Empedocles (c. 494-434 BCE) thought that “heat” (whatever that means) gave rise to males and cold to females. But the view in the Talmud about editing seed first can be traced further back to another Greek, Democritus of Abdera (c. 460 - c. 370 BCE). Democritus believed that the gender depended on the parent whose semen predominated, “not the whole of the semen, but that which has come from the part by which male and female differ from one another.”

By the time we get to Galen, the Greek physician of the second century, there was an acknowledgement that the mother contributed her own seed, but, as van Horst notes the thought was that“…female sperm is by far less perfect, thinner, and colder than male sperm; it serves only as food for the male semen in its development into an embryo.

The material surveyed so far covers the period of roughly 500 B.C.E. to 200 C.E. It has shown us that throughout this period a theory about female semen had its place side by side with a theory that denied females a contribution to embryogenesis.
— Pieter W. van Horst. Bitenosh's Orgasm. Journal for the Study of Judaism 2012. 43: 613-628.

A new understanding of a Dead Sea Scroll

It is with this background that van Hort explains an enigmatic passage in one of the Dead Sea Scrolls (1QapGen2:9-15), known as the Genesis Apocryphon. It is one of the original Dead Sea Scrolls discovered by Bedouin shepherds in 1946 and now held at The Shrine of the Book in Jerusalem.The scroll recounts a discussion between Noah and his father Lemech, who was worried that Noah was not really his own progeny. “I thought in my heart” says Lemech, “that the conception was the work of the Watchers, and the pregnancy of the Holy Ones, and it belonged to the Nephilim.” He suspects that his wife Bitenosh has committed adultery.

Then Bitenosh, my wife, spoke to me very harshly... (9) and said: 'Oh my brother and lord, remember my sexual pleasure!... (10) in the heat of intercourse, and the gasping of my breath in my breast.'" …(14) Remember my sexual pleasure!... (15) that this seed comes from you, that this pregnancy comes from you…

How, asks van Horst, could Bitenosh think that a reference to the pleasure she experienced when being intimate with Lamech would allay his suspicion? And here is his fascinating solution:

That could only be a convincing argument if that pleasure entailed the conception of their child at the moment the two of them (and no one else) were together. Since the author implies that Bitenosh's argument did convince Lamech, he must have meant her reference to her pleasure to be a conclusive argument. So "pleasure" must here definitely be something much more specific than just the fact that Bitenosh had a pleasant time with Lamech when they begot Noab. That is to say, most probably Bitenosh here refers to her orgasm on that occasion. The fact that not only Lamech but also Bitenosh had an orgasm at that moment is taken as a proof that it is the two of them, together who begot the child. That can only be the case if the female orgasm is here regarded as the event during which she emitted her own seed into her womb where it mingled with Lamech's seed so as to form the beginning embryo. It is only a double-seed theory that can explain why Bitenosh here takes recourse to an appeal to her moment suprême (to which Lamech was witness!) as a cogent argument…

It is fascinating to see how an originally Greek scientific concept here serves to allay the anxious suspicions of a biblical hero.

Yes. It is.

It wasn’t until the invention of the microscope and the work of Antonie van Leeuwenhoek (1632-1723) and Reinier de Graaf (1641-1673), that we began to understand what was really going on. The former described seeing sperm in semen, and the latter dissected pregnant rabbits and described the development of the egg in the ovary. (Fun fact: in his honor, the structure within which the egg matures is known to this day as a Graafian follicle.)

Other ways to have a baby boy

The scholar Moses Gastner who died in 1939 was a lifelong collector of Hebrew manuscripts. These later became part of the collectionso of both the Rylands Library in Manchester and the British Library in London. Gastner also translated the siddur, wrote a history of the Bible, and led the Spanish and Portuguese Congregation in London. Among his many works was a little-known entry (“Birth, Jewish”) in the two-volume Encyclopædia of Religion and Ethics published in New York in 1908. In the entry Gastner included material from his the vast collection of medical and magical manuscripts. Here is one, which Gastner does not date: 

If a woman is anxious to get sons, she must ask a shepherd to get the after-birth of a cow, dry it, and pound it, and drink the powder in wine.

If dried cow after-birth did not suit your tastes, there was this: 

Make a decoration of bear’s or wolf’s meat as much as a bean. If the animal is male the child will be male, and if it is female, the woman will give birth to a daughter.

The Talmud (Niddah 31b) suggested another, perhaps more palatable method to guarantee a baby boy:

אמר רבא הרוצה לעשות כל בניו זכרים יבעול וישנה 

Rava said: One who wishes to make all of his children males should engage in intercourse with his wife and repeat the act.

It’s not a secret any more

At the conclusion of his article on sex determination in the Talmud, Rosner wrote that the Talmud 

emphatically states that if a woman emits her semen first, she will bear a male, and if the man emits his semen first, she will bear a female. We have yet to understand what the Talmud means. The secret of sex predetermination remains hidden.

But this is not correct. We certainly do understand what the Talmud meant, where that meaning came from and what became of it. What once was certainly a mystery (but not a secret) is now well understood. The gender of offspring is determined by chromosomes, and nothing else. 

What actually determines the gender of a fetus

A human egg or sperm each contain 23 chromosomes. All eggs carry an X chromosome; each sperm carries an X or a Y chromosome. If a sperm with an X chromosome fertilizes the egg, the fetus grows into an XX female. If a sperm with an Y chromosome fertilizes the egg, the fetus grows into an XY male. That’s it. Simple.

[Reprint from Niddah 28a].

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Niddah 28a ~ Gender Determination

In the time of the Talmud and for centuries beyond, it was very important for a couple to produce male children. To this end, some rabbis suggested a technique to ensure that a boy was produced. We first read about it a couple of days ago, and here it is described in today’s page of Talmud:

נדה כח, א

וא"ר יצחק אשה מזרעת תחלה יולדת זכר איש מזריע תחלה יולדת נקבה

Rabbi Yitzchak said that if the woman emits seed first she gives birth to a male, and if the man emits seed first she gives birth to a female.

Today we will explore the topic of gender determination in the Talmud.

How to conceive a boy or a girl

In this tractate the statement about “emitting seed first” comes up several times, and in the name of a few different rabbis. And, as if emphasize its importance, the Talmud offers no fewer than four different supporting proofs for the principal. Here is the first, in the name of Rav Ami:

נדה לא, א

אמר רבי יצחק אמר רבי אמי אשה מזרעת תחילה יולדת זכר איש מזריע תחילה יולדת נקבה שנאמר (ויקרא יג, כט) אשה כי תזריע וילדה זכר 

Rabbi Yitzchak says that Rabbi Ami says:The sex of a fetus is determined at the moment of conception. If the woman emits seed first, she gives birth to a male, and if the man emits seed first, she gives birth to a female, as it is stated: “If a woman bears seed and gives birth to a male”(Leviticus 12:2). 

The suggestion from the verse is that “if a woman bears seed” first, then she will “give birth to a male.” A second proof text from the Torah is provided by Rabbi Tzadok, this time from the story of our matriarch Leah.

תנו רבנן בראשונה היו אומרים אשה מזרעת תחילה יולדת זכר איש מזריע תחלה יולדת נקבה ולא פירשו חכמים את הדבר עד שבא רבי צדוק ופירשו (בראשית מו, טו) אלה בני לאה אשר ילדה ליעקב בפדן ארם ואת דינה בתו תלה הזכרים בנקבות ונקבות בזכרים 

The Sages taught: At first, people would say that if the woman emits seed first she gives birth to a male, and if the man emits seed first, she gives birth to a female. But the Sages did not explain from which verse this matter is derived, until Rabbi Tzadok came and explained that it is derived from the following verse: “These are the sons of Leah, whom she bore to Jacob in Paddan Aram, with his daughter Dinah”(Genesis 46:15). From the fact that the verse attributes the males to the females, as the males are called: “The sons of Leah,” and it attributes the females to the males, in that Dinah is called: “His daughter,” it is derived that if the woman emits seed first she gives birth to a male, whereas if the man emits seed first, she bears a female.

בנדה לא ,א–ב

The Talmud brings a third proof text, this one from the Book of Chronicles:

ויהיו בני אולם אנשים גבורי חיל דורכי קשת ומרבים בנים ובני בנים וכי בידו של אדם להרבות בנים ובני בנים אלא מתוך שמשהין עצמן בבטן כדי שיזריעו נשותיהן תחלה שיהו בניהם זכרים מעלה עליהן הכתוב כאילו הם מרבים בנים ובני בנים והיינו דאמר רב קטינא יכולני לעשות כל בני זכרים 

“And the sons of Ulam were mighty men of valor, archers, and had many sons and sons’ sons”(I Chronicles 8:40). Is it in a person’s power to have many sons and sons’ sons? Rather, because they delay while lying on wives’ abdomen, initially refraining from emitting semen so that their wives will emit seed first, in order that their children will be male, the verse ascribes them credit as though they have many sons and sons’ sons. And this statement is the same as that which Rav Ketina said: I could have made all of my children males,by refraining from emitting seed until my wife emitted seed first. 

And finally, the fourth proof text. A later passage in this tractate (Niddah 70b-71a) cites a number of questions that the sages of Alexandria asked of Rabbi Yehoshua. One of them was how can a man ensure he has male children? Rabbi Yehoshua told them the man should do two things: marry a woman who is fit for him, and act modestly during sexual intercourse. Hold on, the sages of Alexandria replied. Many men have done that, and it didn’t help! Rabbi Yehoshua then qualified his answer, and explained that in addition to marrying an appropriate woman and being modest, a man needs to pray for a son. Rabbi Yehoshua then cited a proof text from Psalms (127:3):

הנה נחלת ה' בנים שכר פרי הבטן

Behold, children are a heritage of the Lord; the fruit of the womb is a reward

So far so good. To have male children a man needs to marry an appropriate wife, act modestly when he is intimate with her, and pray. But now the Talmud asks a question based on the proof text. What is the act for which the reward are children?

א"ר חמא ברבי חנינא בשכר שמשהין עצמן בבטן כדי שתזריע אשתו תחילה נותן לו הקב"ה שכר פרי הבטן

Rabbi Chama, son of Rabbi Chanina, says: In reward for men withholding their semen in their belly in order to allow their wives to emit seed first, the Holy One, Blessed be He, gives him the reward of the fruit of the womb, [that is, sons].

These are the four different proof texts from the Bible to support the claim that if a woman emits her seed first, she will give birth to a boy. Of course now we need to determine what, precisely, is meant by the phrase “if the woman emits seed first” (מזרעת תחילה).

Understanding THE PHRASE

(i) Ovulation

Perhaps it could refer to ovulation. This makes sense to us since we understand that fertilization requires two “seeds,” the egg, and sperm. But this would not have made sense to the rabbis of the Talmud. They, like everyone else at the time (and indeed until the beginning of the seventeenth century) had no concept of mammalian ovulation. In fact it was the blood that was lost at menstruation that was believed to be the mother’s contribution to her child’s formation, and not any eggs she may produce.

A classic example of this lack of understanding of ovulation is found in the early medieval commentary of Moses ben Nachman, known as Ramban (1194–1270) to Leviticus 12:2. Here is the key bit:

כי האשה אע"פ שיש לה ביצים כביצי זכר או שלא יעשה בהן זרע כלל או שאין הזרע ההוא נקפא ולא עושה דבר בעובר

For even though a woman has ovaries like the testes of a man, either they do not produce eggs at all, or else the egg jells and contributes nothing to the fetus.

(ii) Orgasm

The other possibility is that “emitting seed first” refers to orgasm. If you want to have a boy, the rabbis said, the husband should allow his wife to have an orgasm before himself. This interpretation is favored by the historian of all things medical and talmudic, Fred Rosner. Here is what he wrote in Medicine in the Bible and The Talmud (Ktav Publishing and Yeshiva University Press 1977, p175):

It seems obvious…that the meaning must be orgasm rather than ovulation, for otherwise it would not make sense to speak of the men restraining themselves during intercourse in order to allow their wives to “emit seed” first.

Theories of sex determination in Antiquity

In a fascinating paper in the Journal for the Study of Judaism, the scholar Pieter van Horst wrote “it is certain that ancient Greek concepts of embryogenesis influenced Jewish theories about the coming-into-being of a foetus.” So let’s look at some of those theories.

Aristotle (384–322 BCE) recorded the belief (with which he did not agree) that male offspring come from the right side of the male and females from the left side; an embryo that develops in the “right side” of the uterus (whatever that means) becomes male while that which develops in the left side becomes female. Aristotle himself believed that the mother’s contribution to the fetus was menstrual blood, and it had the same origin as male semen, although it was not as developed.

Another Greek, Empedocles (c. 494-434 BCE) thought that “heat” (whatever that means) gave rise to males and cold to females. But the view in the Talmud about editing seed first can be traced further back to another Greek, Democritus of Abdera (c. 460 - c. 370 BCE). Democritus believed that the gender depended on the parent whose semen predominated, “not the whole of the semen, but that which has come from the part by which male and female differ from one another.”

By the time we get to Galen, the Greek physician of the second century, there was an acknowledgement that the mother contributed her own seed, but, as van Horst notes the thought was that“…female sperm is by far less perfect, thinner, and colder than male sperm; it serves only as food for the male semen in its development into an embryo.

The material surveyed so far covers the period of roughly 500 B.C.E. to 200 C.E. It has shown us that throughout this period a theory about female semen had its place side by side with a theory that denied females a contribution to embryogenesis.
— Pieter W. van Horst. Bitenosh's Orgasm. Journal for the Study of Judaism 2012. 43: 613-628.

A new understanding of a Dead Sea Scroll

It is with this background that van Hort explains an enigmatic passage in one of the Dead Sea Scrolls (1QapGen2:9-15), known as the Genesis Apocryphon. It is one of the original Dead Sea Scrolls discovered by Bedouin shepherds in 1946 and now held at The Shrine of the Book in Jerusalem.The scroll recounts a discussion between Noah and his father Lemech, who was worried that Noah was not really his own progeny. “I thought in my heart” says Lemech, “that the conception was the work of the Watchers, and the pregnancy of the Holy Ones, and it belonged to the Nephilim.” He suspects that his wife Bitenosh has committed adultery.

Then Bitenosh, my wife, spoke to me very harshly... (9) and said: 'Oh my brother and lord, remember my sexual pleasure!... (10) in the heat of intercourse, and the gasping of my breath in my breast.'" …(14) Remember my sexual pleasure!... (15) that this seed comes from you, that this pregnancy comes from you…

How, asks van Horst, could Bitenosh think that a reference to the pleasure she experienced when being intimate with Lamech would allay his suspicion? And here is his fascinating solution:

That could only be a convincing argument if that pleasure entailed the conception of their child at the moment the two of them (and no one else) were together. Since the author implies that Bitenosh's argument did convince Lamech, he must have meant her reference to her pleasure to be a conclusive argument. So "pleasure" must here definitely be something much more specific than just the fact that Bitenosh had a pleasant time with Lamech when they begot Noab. That is to say, most probably Bitenosh here refers to her orgasm on that occasion. The fact that not only Lamech but also Bitenosh had an orgasm at that moment is taken as a proof that it is the two of them, together who begot the child. That can only be the case if the female orgasm is here regarded as the event during which she emitted her own seed into her womb where it mingled with Lamech's seed so as to form the beginning embryo. It is only a double-seed theory that can explain why Bitenosh here takes recourse to an appeal to her moment suprême (to which Lamech was witness!) as a cogent argument…

It is fascinating to see how an originally Greek scientific concept here serves to allay the anxious suspicions of a biblical hero.

Yes. It is.

It wasn’t until the invention of the microscope and the work of Antonie van Leeuwenhoek (1632-1723) and Reinier de Graaf (1641-1673), that we began to understand what was really going on. The former described seeing sperm in semen, and the latter dissected pregnant rabbits and described the development of the egg in the ovary. (Fun fact: in his honor, the structure within which the egg matures is known to this day as a Graafian follicle.)

Other ways to have a baby boy

The scholar Moses Gastner who died in 1939 was a lifelong collector of Hebrew manuscripts. These later became part of the collectionso of both the Rylands Library in Manchester and the British Library in London. Gastner also translated the siddur, wrote a history of the Bible, and led the Spanish and Portuguese Congregation in London. Among his many works was a little-known entry (“Birth, Jewish”) in the two-volume Encyclopædia of Religion and Ethics published in New York in 1908. In the entry Gastner included material from his the vast collection of medical and magical manuscripts. Here is one, which Gastner does not date: 

If a woman is anxious to get sons, she must ask a shepherd to get the after-birth of a cow, dry it, and pound it, and drink the powder in wine.

If dried cow after-birth did not suit your tastes, there was this: 

Make a decoration of bear’s or wolf’s meat as much as a bean. If the animal is male the child will be male, and if it is female, the woman will give birth to a daughter.

The Talmud (Niddah 31b) suggested another, perhaps more palatable method to guarantee a baby boy:

אמר רבא הרוצה לעשות כל בניו זכרים יבעול וישנה 

Rava said: One who wishes to make all of his children males should engage in intercourse with his wife and repeat the act.

It’s not a secret any more

At the conclusion of his article on sex determination in the Talmud, Rosner wrote that the Talmud 

emphatically states that if a woman emits her semen first, she will bear a male, and if the man emits his semen first, she will bear a female. We have yet to understand what the Talmud means. The secret of sex predetermination remains hidden.

But this is not correct. We certainly do understand what the Talmud meant, where that meaning came from and what became of it. What once was certainly a mystery (but not a secret) is now well understood. The gender of offspring is determined by chromosomes, and nothing else. 

What actually determines the gender of a fetus

A human egg or sperm each contain 23 chromosomes. All eggs carry an X chromosome; each sperm carries an X or a Y chromosome. If a sperm with an X chromosome fertilizes the egg, the fetus grows into an XX female. If a sperm with an Y chromosome fertilizes the egg, the fetus grows into an XY male. That’s it. Simple.

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Niddah 25b ~ Four Cases of Torture & Coerced Testimony

In today’s page of Talmud there is a question about the ritual status of a gestational sac that was expelled by a woman who had a miscarriage. Mar Shmuel, (died circa 254CE) who was perhaps the most famous physician in the Talmud, issued a ruling that demonstrated his ability to date the age of a miscarriage to within a day.

נדה כה,ב

 והא ההוא שפירא דאתאי לקמיה דמר שמואל אמר הא בר ארבעין וחד יומא וחשיב מיומא דאזלא לטבילה עד ההוא יומא ולא הוה אלא ארבעין יומין ואמר להו האי בנדה בעל כפתיה ואודי שאני שמואל דרב גובריה

There was an incident involving a certain gestational sac that was brought before Mar Shmuel, and Shmuel said: This embryo is forty-one days old. And Shmuel subsequently calculated the amount of time that had passed from the day that the woman went to perform immersion in a ritual bath until that day, and it was only forty days.

And he said to the local court: This husband engaged in intercourse with his wife when she was a menstruating woman. They bound the husband and he confessed. Since Shmuel was so proficient in embryology, why was he unsure about the halakhic status of a gestational sac? The Gemara answers: Shmuel himself is different, as his strength, i.e., his proficiency, was great. His general ruling that the halakhic status of a gestational sac is uncertain applies to people who are not as proficient as he is. 

As a result of his calculation, Shmuel accused a man of having intercourse with his wife when she was ritually impure. He was bound and confessed, (though it is not clear who was ordering the binding).

Other cases of coerced Confessions

We have previously read of other examples in which torture (or according to some, the threat of torture) was used to obtain a confession of a crime. In the first two, Abaye suspected that bills of sale had been forged. "כפתיה ואודי" - Abaye  bound the suspects to a post, and they confessed. In the third case it was Rava who suspected that his own signature and that of the elderly Rav Acha bar Adda had been forged. Rava too, bound the suspect to a post, after which not only did the suspect confess to forging both signatures, but he went on to explain how he had forged that of the elderly Rav Acha, whose hands had a tremor. 

בבא בתרא קסז, א

 אנחי ידאי אמצרא ואמרי לה קם אזרנוקא וכתב

I placed my hands on the rope of a bridge while signing. Others say he stood on a skin bottle and signed.

Another case is found in the tractate Bava Metzia (24a). There, we read that Mar Zutra “The Pious”  had coerced a student to confess to his crime.

בבא מציעא כד, א

מר זוטרא חסידא אגניב ליה כסא דכספא מאושפיזא חזיא לההוא בר בי רב דמשי ידיה ונגיב בגלימא דחבריה אמר היינו האי דלא איכפת ליה אממונא דחבריה כפתיה ואודי

Mar Zutra the Pious was involved in an incident in which a silver cup was stolen from his host. Later, Mar Zutra saw a certain student wash his hands and dry them on his friend's garment. Mar Zutra said: "this is the one who stole the cup, for he has no consideration for his friend's property. Mar Zutra bound the student to a post and coerced him, and he confessed to the crime (Bava Metzia 24a).

He was bound and he confessed

Courtesy of Wikimedia.

Courtesy of Wikimedia.

The phrase that is used in all four cases is כפתיה ואודי "they bound him and he confessed." The root of the word to bind is כפת, which is used in rabbinic literature to mean to tie or to bind. Rabbi Asher ben Yechiel (Germany ~1250-1327), known as the Rosh, is certain that the suspect was tortured. In his commentary on the passage in Bava Metzia, he wrote וכפתיה בשוטי עד דאודי "he flogged him with rods until he confessed." (As in חושך שבטו שונא בנו ואהבו שחרו מוסר "spare the rod and spoil the child," from Proverbs 13:24.) Rabbi Betzalel ben Avraham Ashkenazi (Israel ~1520-1594) in his commentary to Bava Metzia called Shitah Mekubetzet agrees that coercion was used, although he is unsure if it was physical or psychological:

כפתוהו ואודי. יש מפרשים כפתוהו על העמוד והלקוהו בשוטים. ויש מפרשים כפתיה בדברים שנדוהו אם לא יודה האמת

Some explain that he was tied to post and flogged. Others explain that he was verbally coerced (and threatened with excommunication) until he confessed.

False Confessions

In a 2010 paper published in the Stanford Law Review, Brandon Garett notes that DNA testing has now exonerated over forty people who falsely confessed to rapes and murders. He wonders how an innocent person could convincingly confess to a crime he never committed. For example, in 1990  Jeffrey Deskovic a seventeen-year-old, was convicted of rape and murder. Deskovic was a classmate of the fifteen-year-old victim, had attended her wake, and was eager to help solve the crime. During one of several police interrogations he “supposedly drew an accurate diagram,” which depicted details concerning “three discrete crime scenes” which were not ever made public. "In his last statement, which ended with him in a fetal position and crying uncontrollably," wrote Garrett, "he reportedly told police that he had “hit her in the back of the head with a Gatoraid [sic] bottle that was lying on the path.” Police testified that, after hearing this, the next day they conducted a careful search and found a Gatorade bottle cap at the crime scene."

Scholars increasingly study the psychological techniques that can cause people to falsely confess and have documented how such techniques were used in instances of known false confessions.
— Garrett, B.L. The Substance of False Confessions. Stanford Law Review 2010. 62 (4): 1051-1119.

Deskovic was convicted of rape and murder and served more than fifteen years of a sentence of fifteen years to life. Then in 2006, new DNA testing not only excluded him, but also matched the profile of a murder convict who subsequently confessed and pleaded guilty. So how did Deskovic know all the details of the crime to which he confessed? Here is what the District Attorney noted in the post-exoneration inquiry:

...Given Deskovic’s innocence, two scenarios are possible: either the police (deliberately or inadvertently) communicated this information directly to Deskovic or their questioning at the high school and elsewhere caused this supposedly secret information to be widely known throughout the community.

Another paper, this time in the North Carolina Law Review, analyzed 125 cases of "proved interrogation-induced false confessions, which, the authors note with some pride, is "the largest cohort of interrogation-induces false confession cases ever identified and studied in the literature." It makes terrifying reading.  

It is of course really hard to study in the laboratory the psychological effects of torture and coercion and how they produce false confessions.  But scientists try anyway. For example, a very recent paper from a team from the New School for Sociological Research in New York and the University of California studied the effect of sleep deprivation on false confessions.  When compared to those who had rested, participants were over four times more likely to sign a false statement if they were deprived of one night's sleep.  In another recent peer-reviewed paper, (Constructing Rich False Memories of Committing Crime) psychologists used suggestive retrieval techniques on some rather nice Canadian undergraduates. They found that up to 70% of those interviewed 

were classified as having false memories of committing a crime (theft, assault, or assault with a weapon) that led to police contact in early adolescence and volunteered a detailed false account. These reported false memories of crime were similar to false memories of noncriminal events and to true memory accounts, having the same kinds of complex descriptive and multisensory components.

They continue: 

Our finding that young adults generated rich false memories of committing criminal acts during adolescence supports the notion that false confessions and gross confabulations can take place within interview settings. The Innocence Project has shown that about 25% of false convictions are attributable to faulty confession evidence...The kind of research presented here is essential in the quest to help prevent memory-related miscarriages of justice.

False Memories Become Real

In a recent article in The New Yorker, Rachel Aviv reported on the remarkable story of how DNA evidence exonerated six convicted killers. Despite this, two of them had detailed memories of the killing that they didn't commit. One was a woman named Ada Taylor who confessed to a woman’s murder in 1989 and for two decades believed that she was guilty.

She served more than nineteen years for the crime before she was pardoned. She was one of six people accused of the murder, five of whom took pleas; two had internalized their guilt so deeply that, even after being freed, they still had vivid memories of committing the crime. In no other case in the United States have false memories of guilt endured so long. The situation is a study in the malleability of memory: an implausible notion, doubted at first, grows into a firmly held belief that reshapes one’s autobiography and sense of identity.

Of course murder is not the same as forging a document, but the lesson for those in criminal justice is the same. People confess to all sorts of things - especially when they are coerced or tortured- and can even forge false memories of the crimes of which they were accused.  

Permitted Coercion in Jewish Law

In the Code of Jewish Law, the שולחן ערוך, the passage in Bava Basra is the basis for the legal right to extract a confession from a person suspected of forging business documents.

שולחן ערוך חושן משפט מב, ג

ואם צריך לכוף בעל השטר ולהכותו כדי שיודה יעשה כדי שיוציא הדין לאמיתו

If it is necessary, the owner of the document (who is suspected of forgery) may be beaten in order for him to confess and the truth to come out...

This certainly made me feel uncomfortable, but let's put this into some context. Torture has been a part of many judicial systems, and was a feature of  Roman law.  Perhaps most notoriously it was used by the Inquisition, after Pope Innocent IV issued a papal bill Ad extirpanda in 1252 which authorized its use by the Church.  Closer to home, the US has recently grappled with, and condemned cases in which the Central Intelligence Agency tortured prisoners, as the Senate Select Committee on Intelligence (partially) revealed in 2014. But among the thousands of legal decisions in the Babylonian Talmud, there are only four rabbis who are named as having tortured or coerced a suspect to confess. And that low number, though it is not zero, should provide us with some solace.  

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