A more extensive discussion of this topic by the author appears in Yeshivat Maharat’s Keren Journal, Volume 4 (2023), which can be found at https://www.yeshivatmaharat.org/keren-journal-volume-4.
Ask any yeshiva-educated child, or most adults, whether women are valid witnesses under Jewish law, and they will likely answer that women are “pasul l’eidut”—invalid to testify. However, the reality is more nuanced. While many statements in the Talmudic and halakhic literature indicate that women’s testimony is categorically inadmissible, there are also a number of instances where women’s testimony in civil cases has been accepted in Jewish courts.
Biblical and Talmudic Sources
The plain reading of the biblical verses about testimony (Devarim 19:15-17) does not differentiate between male and female witnesses. On its face, the Torah seems to require two witnesses whose gender is not specified; the only reference to men in these verses is in the context of litigants.
As early as the Sifre (an early book of midrash halakhah), the biblical verses regarding testimony were understood to exclude women from eligibility to serve as witnesses (Sifre Devarim, Parshat Shoftim, 190).
Notwithstanding the Sifre’s blanket statement, the Mishna’s treatment of women’s testimony is somewhat ambiguous. For example, the third chapter of Sanhedrin (3:3, 5) contains a list of persons who are not eligible to be witnesses because they lack credibility, either because they are engaged in disreputable practices or have a bias. The omission of women from this list would suggest that there is no inherent problem with their credibility. However, the list of individuals who are deemed not qualified to testify because they are relatives (3:4) consists only of men, suggesting that women were not considered eligible to testify for some other, unstated, reason.
By contrast, the Tosefta (roughly contemporaneous with the Mishna) is clear that there are at least some circumstances in which a woman’s testimony is accepted. It provides that all are believed to testify that a kohen’s wife who was taken captive was not raped—“even her son, even her daughter”—other than the woman herself and her husband, because a person doesn’t testify on their own behalf (Tosefta Ketubot 3:2). In another example, the Tosefta (Ketubot 3:3) expressly permits women’s testimony, but only when it is given immediately after the occurrence of the event.
The primary discussion in the Gemara regarding women’s ineligibility to testify is in Bavli Shevuot 30a. The Gemara asks for the source for a woman’s ineligibility to testify and provides three proofs. In each case, the Gemara acknowledges that it is not a strong proof and then provides as an alternate proof the biblical interpretation of the Sifre. This Gemara suggests that the disqualification of women as witnesses was a long standing tradition that the Gemara struggled to justify. While the justification appears weak, ultimately the conclusion is upheld.
Despite the apparent blanket rule against admitting testimony of women, the Gemara describes several instances in which the word of a woman is accepted and treated as credible when significant determinations are at stake. One example is in Kiddushin 73b, where Rav Ḥisda says a midwife is believed if at the moment of birth she identifies which twin emerged first (relevant for inheritance purposes) or which baby came from which mother (affecting personal status). The Gemara then says that if her statement is challenged by two witnesses, they are believed over her. This is reasonable since Jewish law generally requires two witnesses and generally does not even accept testimony of a single witness. However, if her statement is contradicted by a single witness, the Gemara provides two alternative views. Under the first view, the statement of the midwife is always upheld over that of a single challenger. Under the alternative view, her statement is upheld only if there is a ḥazakah (presumption) of the lineage of the baby, which can never be the case where the very issue is which baby belongs to which mother.
In Bavli Bava Kamma 114b the Gemara discusses another area in which women’s statements are believed for purposes of determining property ownership. The case involved a swarm of bees which were being pursued by their owner. A statement by a woman that “it was from here that the swarm emerged” was deemed credible for determining ownership of the bees. However, the Gemara clarified that this was not formal testimony and, in fact, was accepted only because it was made in an offhand manner.
Rishonim, Shulḥan Arukh, and Rema
The Sefardic poskim generally take a hard line against admitting women’s testimony, even when women are the only available witnesses. Rambam (1138-1204 Spain and Egypt) expressly states this as the rule in Hilkhot Nizkei Mamon (Laws of Monetary Damages) 8:13.
The Ashkenazic Rishonim are more willing to accept women’s testimony in certain limited situations. In a frequently-cited responsum (#353), the Trumat HaDeshen (R’ Israel Isserlein, 1390-1460 Austria) dealt with a case of disputed seats in the women’s section of a shul. One claimant, Leah, brought two women witnesses that the seats belonged to her. The second claimant, Rachel, brought a single male witness to support her claim. The Trumat HaDeshen sets the stage for his decision with a very strong statement regarding the acceptability of women’s testimony in appropriate circumstances: “Even though, as a general matter women’s testimony has no value, on this matter, where women are likely to be more attentive than men, it is better to believe them.” He cites the Gemara about the midwife as well as a prior case where women were believed to testify that a widow wore particular clothing while her husband was alive, since men do not typically look at women’s clothing. He states that, similar to these cases, men are not likely to know about ownership of seats in the women’s section.
He concludes that if Rachel had a presumption (ḥazakah) of ownership of the disputed seats, Leah could take the seats away from her based on the testimony of the two female witnesses, but if Rachel had a single male witness against Leah’s two female witnesses, the two sides would be considered of equal weight and the disputed seats would be awarded to Rachel based on the presumption of ownership.
This teshuvah takes the idea of women as witnesses to an entirely new level. Whereas the Gemara treats women as credible and relies on their statements for making important determinations, for the most part it does not recognize their statements as formal testimony. By contrast, the Trumat HaDeshen is willing to accept women’s testimony in a formal court setting as the basis for a plaintiff winning a monetary judgment. However, the scope of this decision is very limited. First, it is limited to matters in which women are likely to pay attention to the facts and men are not. Perhaps more important, in any case in which the testimony of two female witnesses is challenged by that of a single male witness, the testimonies will cancel each other out.
The Shulḥan Arukh (Ḥoshen Mishpat 35:14), following the Sefardic tradition, makes the blanket statement that women are ineligible to testify. However, the Rema (R’ Moshe Isserles, 1530-1572 Poland) disagrees. He refers to an ancient takanah (rabbinic enactment), which he elsewhere ascribes to the French Tosafist Rabbenu Tam (1100-1171), that women are believed in a place where men are not typically present, such as the women’s section of a shul, or with respect to matters that men typically don’t pay attention to. He then states that there is precedent that even a single woman is believed if there are no valid (i.e., male) witnesses to an incident, such as an assault, embarrassment of a talmid ḥakham, quarrels between two people, or informing to the secular authorities. In his earlier work, Darchei Moshe, he states that women should be believed in such matters because these incidents are also not common. The theory seems to be that if the only witnesses to an incident are women, the reasons to admit their testimony are the same as for cases involving “women’s matters.” However, he limits the admissibility of women’s testimony to cases where the plaintiff has made a “bari” claim (i.e., claims in which the plaintiff asserts he is certain).
The Rema takes as his premise that women’s testimony is inadmissible. In his view, the takanah does not change this formal exclusion of women’s testimony. He describes the takanah as providing that “we believe women” in the situations covered by the takanah, without expressly calling their statements testimony. As a result, the Rema creates a hybrid situation: women are not eligible to give formal “testimony,” but their statements are relied on to determine the outcome of certain court cases.
The disqualification of women as witnesses was a long-standing tradition that the Gemara struggled to justify.
Aḥaronim
Several Aḥaronim try to limit the scope of the Rema’s statement. The Me’irat Einayim (R’ Yehoshua Falk, 1555-1614 Poland) reiterates the Rambam’s position that only kosher witnesses can be relied on in cases involving monetary damages, and states that the takanah does not allow women to testify in such cases.
The Shakh (R’ Shabbetai Kohen, 1621-1662 Eastern Europe) states that a ḥazakah regarding ownership of disputed property for three years would outweigh any testimony by women to the contrary. He also states that, in any case, the testimony of a single male witness outweighs the testimony of two female witnesses.
The Nodah B’Yehudah (R’ Ezekiel Landau, 1713 Poland-1793 Prague) issued a responsum (Ḥoshen Mishpat #58) elaborating on the issue of women’s testimony. The case involved a situation where, several days after the occurrence of a theft, two women testified that they had seen the stolen items in a certain person’s home, and the accused person denied stealing them. The Nodah B’Yehudah noted that with respect to an occurrence in a place where women are typically found and men are not, women witnesses would be believed even without the takanah, based on the midwife case in the Gemara. However, since the theft occurred under circumstances where men and women were equally unlikely to be found, as is the case in most instances of assaults and quarrels, the only basis for admitting the women’s testimony was the takanah. Yet the takanah would permit using women’s testimony only where the plaintiff made a “bari” claim against the accused, and was therefore inapplicable since the plaintiff was not certain who the thief was.
However, the Nodah B’Yehudah cited an additional reason to reject the women’s testimony. The women did not testify that they saw the theft being committed, but only that they had seen the stolen items in the accused’s home; thus there could potentially be male witnesses who also saw the items in the accused’s possession. He concludes his teshuvah by clarifying that he was not deciding that the women’s testimony would be accepted if they had in fact witnessed the theft, but that there was room to reach such a decision in those circumstances.
The Arukh HaShulḥan (R’Yechiel Michel Epstein, 1829-1908 Lithuania) takes a more complex position. In his discussion of invalid witnesses (Ḥoshen Mishpat, siman 35) he begins by stating that we do not accept the testimony of invalid witnesses, even if there are no valid witnesses. He then refers to the takanah as well as the various limitations on admissibility of women’s testimony raised by other poskim. He also cites a position that, even under the takanah, women’s testimony needs some corroboration before it can be accepted.
However, in his discussion of Laws of Monetary Damages (Ḥoshen Mishpat, siman 408), the Arukh HaShulḥan takes a more expansive view of the admissibility of women’s testimony and does not mention any of the limitations he described in siman 35. Although he acknowledges the Rambam’s ruling that such damages are only payable based on the testimony of valid witnesses, he states that the Rema had already limited that ruling to the strict letter of the law, and had ruled based on the takanah that we accept women’s testimony in a place where there are no valid witnesses. He strongly objects to the position that women’s testimony is accepted only for uncommon occurrences, but not in cases of monetary injury, which are common. Such a position would deprive injured parties of the ability to obtain compensation for their loss. He speculates that testimony of invalid witnesses has been excluded out of a concern over their credibility. His solution is to give the beit din the power to reject testimony of invalid witnesses that it finds not credible and to admit testimony that it believes would lead to a correct judgment. He believes that this approach is necessary “because if you do not say so, the fields, gardens, and orchards will be destroyed and there will be nobody to respond.”
Conclusion
Although, on its face, the Torah does not expressly specify a gender requirement for testimony, from the time of the Mishna the Torah verses have been interpreted to exclude women as valid witnesses. Nevertheless, both the Mishna and the Gemara contain specific examples of situations where women’s statements were relied on, most notably the midwife’s statements as to which child was born first and which child was born to which mother, thus establishing a precedent that, in the absence of other witnesses, a woman’s “testimony” could determine both economic and personal status questions.
The Arukh HaShulḥan takes a more expansive view of the admissibility of women’s testimony
The Sefardic Rishonim, most notably the Rambam and the Shulḥan Arukh, follow the Talmudic general rule that women’s testimony is inadmissible, and do not include any of the contrary examples as normative halakhah. However, the Ashkenazic Rishonim not only rely on the Talmudic exceptions to the general rule, but expand them. The first expansion reflects a case law approach that extends the principle behind the midwife case to other situations where women were likely to be the only available witnesses, such
Over time, we have moved, very gradually, from categorical statements of the inadmissibility of women’s testimony … to a call by a major posek for judges to rely on women’s testimony whenever necessary to reach a correct judgment.
as regarding transactions in the women’s section of the synagogue. The second expansion is a legislative enactment (takanah) that accepts women’s statements in court proceedings regarding incidents such as assaults, that arose suddenly in places where men might possibly have been present but were not present at the time of the incident. Each of these expansions comes with its own limitations. Under the case law approach, women’s “testimony” could be nullified or outweighed by the contrary testimony of a single male witness. Under the takanah, women’s “testimony” was not admissible unless the plaintiff could make a definite (“bari”) claim. The Rema preserves both of these expansions, while seemingly taking pains to avoid referring to women’s statements as testimony.
The Aḥaronim try to limit the scope of the Rema’s rulings by focusing on the limitations on women’s testimony, but do not deny that there were some limited instances in which women’s statements would be admissible. The Nodah B’Yehuda, in his teshuvah, expressly acknowledges both the case law and takanah as bases for accepting women’s testimony (at times even referring to it as “testimony”), while finding that neither applied in the particular case. The Arukh HaShulḥan, in his discussion of valid and invalid witnesses, preserves both the expansions regarding the acceptance of women’s statements in court proceedings and the limitations on admitting such statements. However, he gives added legitimacy to such statements by referring to them as “testimony.” Moreover, in his discussion of the laws of monetary damages, he disagrees with poskim who limit the admissibility of women’s testimony and, in extremely strong language, urges judges to consider women’s testimony where it is necessary to reach a correct result.
Thus, over time, we have moved, very gradually, from categorical statements of the inadmissibility of women’s testimony to reliance on women’s statements in court proceedings in limited situations, to the labeling of such statements as testimony, and to the call by a major posek for judges to rely on women’s testimony whenever necessary to reach a correct judgment.