Thoughts on Parashat Ki Tetze 5784
Menachem Mirski
Let me start our reflection with quoting some laws from our Torah portion:
In the case of a virgin who is engaged to someone —if another man comes upon her in town and lies with her, you shall take the two of them out to the gate of that town and stone them to death: the girl because she did not cry for help in the town, and the man because he violated his neighbor’s wife. Thus you will sweep away evil from your midst.
But if the man comes upon the engaged girl in the open country, and the man lies with her by force, only the party who lay with her shall die, but you shall do nothing to the girl. The girl did not incur the death penalty, for this case is like that of one party attacking and murdering another. (Deuteronomy 22:23-26)
Putting aside the brutality of punishment, there is one important principle underlying the laws above, some other laws in our parasha (which contains the greatest amount of laws from among all the Torah portions) as well as many other laws in the Torah. It is the presumption of innocence, known also as benefit of the doubt. And even though the principle as such is not explicitly stated in the Torah, it is clearly alluded to in some places in the Talmud (i.e. Bava Kamma 46b) and it is, in fact, an implicit but fundamental principle of the Jewish legal system. Throughout the Jewish legal code the requirements of proof of guilt are so stringent and rigorous, and the possibilities of establishing a valid defense so wide and flexible, that a conviction is much more difficult and an acquittal much easier to obtain than under a rebuttable presumption of innocence.
What does it mean for us, contemporary Jews, besides the fact that giving benefit of the doubt is simply the right thing to do and believe in? Despite the fact that the Jewish law is not enforced any more by Jewish religious courts, at least since the Enlightenment period, it still has a direct effect on our religious practice. Let me give you an example: your friend or other community member offers you food and says “it’s kosher”. While you are allowed not to eat this food if you have some doubts, you are not allowed to demand ‘proof’ that the food is indeed kosher. It’s not your friend’s responsibility to prove that the food is indeed kosher and that he is not lying to you. If you do demand the evidence, especially publicly, you become liable for one of the most serious sins in Judaism – motzi shem-ra (slander, baseless accusation resulting in ruining someone’s reputation).
The presumption of innocence influences many other areas of Jewish life. It’s a fundamental principle of every civilized community and a cornerstone of mutual trust, lack of which makes peaceful relationships between people very difficult to maintain. Imagine a community in which everyone looks suspiciously at each other all the time. Life in a community like that will quickly become unbearable. Thank God, we have this principle in our tradition and it is yet another reason to be grateful for the great wisdom of the Torah.
Shabbat shalom,
Rabbi Mirski
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