Rabbinical courts' use of polygraphs in divorce proceedings ‘unnecessary’

A women's rights organization expressed concern regarding the use of polygraphs tests by the rabbinical courts in divorce proceedings.

THE RABBINICAL court of Tel Aviv. It has been said that rabbinical courts allow men to hold back consent to divorce their wives in order to extort the women into agreeing to unfair overall terms. (photo credit: MARC ISRAEL SELLEM)
THE RABBINICAL court of Tel Aviv. It has been said that rabbinical courts allow men to hold back consent to divorce their wives in order to extort the women into agreeing to unfair overall terms.
(photo credit: MARC ISRAEL SELLEM)
A prominent women’s rights group, the Center for Women’s Justice, has expressed concern and opposition to what it believes is the increasing use of polygraph tests by the state rabbinical courts in divorce proceedings.
The organization has dealt with three such cases in recent months, and argues that the tests are unnecessary given the weight of other evidence presented to the rabbinical court.
The requests for polygraph tests that CWJ has dealt with have all focused specifically on the sexual activity, or lack thereof, of the couple in question, and the organization says that sexual activity should not have a bearing on whether or not a husband is required to give a divorce.
Polygraph tests are not admissible in Israel’s criminal courts as evidence, although they are admissible under certain conditions in civil cases. Jewish law itself does not consider such tests to be valid evidence.
One recent case, in which CWJ is representing the woman, involves a husband who was physically and mentally abusive, and even pleaded guilty to a charge of threatening physical harm to the wife’s mother.
According to CWJ’s attorney, the husband even physically assaulted her, as she and the wife were waiting in the hallway of the rabbinical court, and when the wife had told her husband “don’t touch me,” he grabbed her backside.
Despite this behavior, as well as other suspected criminal activity, the husband has refused to give his wife a divorce for the last three years, and claims that they had sex in recent months and that he wanted to reconcile with her. In a hearing in December in the Tel Aviv district rabbinical courts, the husband claimed that they had done so several months prior, after a dinner date at a restaurant.
The wife denied that they had sex and told the rabbinical judges, however, that she and her husband had lived separately for three and a half years, had not had sex even for several months before the split, and described the abuse she had suffered by her husband.
“I suffered mental, verbal, economic and physical abuse at his hands. It started when I was pregnant... It started with him cursing me in front of others, humiliating me, he would give me a nicknames such as ‘daughter of a sl**,’ ‘piece of s***’ and so on. He would hit me everywhere, drag me by the hair, because he felt like it,” the wife told the rabbinical judges.
The woman made clear that she had no interest in returning to the husband and attempting reconciliation.
Despite her complaints about her husband, his criminal record and the insistence of the wife that she did not want to reconcile with him, the rabbinical court judges Rabbis Tzvi Birenboim, Arieh Uriel, and Naftali Hizler, asked the couple if they were willing to take a polygraph test to determine whether or not the couple had sex since they separated.
CWJ’s attorney Nitzan Shiloni Caspi insists however that there was no need to request the polygraph at all, since the evidence of the husband’s behavior toward his wife and his wife’s request to divorce were sufficient for the rabbinical court to rule that the husband give his wife a divorce.
In another case which came before rabbinical judge Rabbi Shneior Pardes of the Netanya rabbinical court in 2018, a woman told the rabbinical court that her husband “repulsed her,” that they had stopped having conversations for two years, continuing, “I don’t love him anymore, I don’t want reconciliation with him,” and saying “there is nothing between us anymore, this marriage has finished.”
She said that although they lived in the same home for financial reasons, they slept in different rooms and had not had marital relations for three years.
The husband said, however, that he was still in love with his wife and wanted to reconcile. He noted that on a couple of occasions when he had got home late from work and she had gone to sleep in his bed, and he had got into the same bed and she had not told him to leave.
He also claimed that they had sexual involvement several months before the rabbinical court hearing.
Upon hearing this claim, the rabbinical judges suggested the couple undergo polygraph tests to ascertain who was telling the truth about sexual activity between them, and said that the results “will determine” whether or not the rabbinical court orders the husband to give a bill of divorce or not.
In another case heard by Rabbis Yosef Yagoda, Sinai Levy, and Yaakov Sharabi of the Haifa rabbinical court earlier this month, a woman was requesting that she be paid the value of her marriage contract as part of the divorce agreement, since the couple had no assets to divide.
It is very rare that a marriage contract is paid out, since usually the division of assets is seen as a replacement for this measure.
The rabbinical court nevertheless weighed the woman’s request, and in response her husband claimed that she had cheated on him by sending sex videos of herself to another man.
According to CWJ, the husband proceeded to show the rabbinical judges the video in question on his smartphone during the court hearing while his wife was in the room.
The woman herself claimed that she had sent the video to her husband and not anyone else, and the rabbinical judges then asked the couple to do polygraph tests to determine who was telling the truth.
A spokeswoman for CWJ told The Jerusalem Post that the requests by the rabbinical courts are unnecessary and in several cases the judges could have issued a ruling on the basis of the available evidence. She also said that the tests constitute “degrading violations” of the privacy of the women involved, and argued that even though the rabbinical courts have only requested, and not ordered individuals to undergo the tests, refusing to do so would be seen very negatively by the judges.
“If they refuse the polygraph, the rabbinic court infers that they must have something to hide, are deceiving the court in some way and are not being cooperative. These tests are offered as a ‘suggestion’ that women cannot safely refuse,” said the spokeswoman.
“There is no reason why women should be subjected to what is essentially a sexual inquisition in order to be entitled to a divorce hearing. Their sexual behavior should have no bearing on whether they should be allowed to divorce, nor the conditions of that divorce.”
The spokeswoman also argued that polygraph tests within the framework of Jewish law were discriminatory, since there is no sanction for extra-marital sex by men within Jewish law, whereas women can face severe consequences for it.
In response to questions from the Post, the Rabbinical Courts Administration acknowledged that although litigants are at liberty to refuse the tests, doing so could negatively impact their case.
“Avoiding [such tests] can in some situations constitute ‘extra’ assistance which together with other evidence testifies as to the falsity of their claims,” the administration said.
Asked whether polygraphs constitute evidence admissible by Jewish law, the administration said that “polygraphs only constitute evidence if the litigants agree that the accuracy of their claims can be clarified by the results of a polygraph, and therefore through their agreement the polygraph does have an [evidentiary] basis.”
The Rabbinical Courts Administration said that the use of polygraphs in the rabbinical courts had begun “several years ago,” but said it did not know when the practice had begun. It also had no records as to how many times the rabbinical courts have requested litigants undergo polygraph tests.