Cantor Tamara Wolfson
6 October 2018

“He said, she said”.

It’s an expression, a colloquialism, an anecdote. And recently it’s been plastered across the headlines in light of Dr. Christine Ford’s testimony in advance of Brett Kavanaugh’s impending Supreme Court appointment.

In this week’s parashah, Bereishit, we find one of our most famous “he said, she said” stories. The “he said” occurs in Genesis Chapter 3, verse 12. When Adam is confronted about eating the forbidden fruit from the Garden of Eden, he tells God: “The woman you put at my side, she gave me of the tree, and I ate.” In other words: “it wasn’t my fault”. One verse later, God confronts Eve and she says, “The serpent tricked me, and I ate.” In other words, “it wasn’t my fault”.

“He said, she said” is not just a famous Biblical myth. It is also a legal concept that emerged 500 years ago in the old English criminal justice system with regard to rape cases. It is especially dangerous because it is inherently flawed.

“Under old English law, rape prosecutions could not be brought to trial unless every material element of the victim’s story was corroborated by another witness or by evidence. Victims of any other type of crime could provide the sole testimony at a trial… but rape victims were uniquely excluded from the criminal justice system… This corroboration requirement lasted for hundreds of years, and became law in the United States. It blocked the prosecution of most rapes…” and New York State didn’t abolish this requirement until 1972 (Leotta, 2018).

For centuries, “he said, she said” served as a stark reminder that the scales of justice were tilted decisively against victims of sex crimes. Now that the corroboration requirement is no longer binding, this ubiquitous phrase has slightly changed its meaning — but its ethos is still the same. Nowadays, “…the phrase [“he said, she said”] most often [denotes] ‘’testimony in direct conflict,’’ with an implication that the ultimate truth is therefore undiscoverable” (Safire, 1998). Now, when we characterize a case of “he said, she said”, we are a few steps away from giving up on it altogether and deeming the case unresolvable for lack of ultimate truth.

Corroboration is extremely important in any trial, and the facts of a case are indispensable. I am by no means undermining the importance of evidence. But in addition to facts, there are overarching principles — ideas upon which our entire moral code rests. As Rabbi Larry Hoffman puts it: “[Facts and ideas] may sound the same, because their sentence structure is identical. But they are different. Ideas do not have to be true or false. They can just be intriguing, the way pictures can be beautiful, dance graceful, and music melodious. Ideas move us to become most fully human” (Hoffman, 2009).

I believe that we are in danger of losing our humanity. The fact is that we may not always have enough airtight, conclusive evidence to corroborate a victim’s story enough for a medieval “he said, she said” defense. But the bigger moral idea behind the facts is this: there is a clear victim, and that victim is in pain. We have become so preoccupied with asking who’s wrong and who’s right that we have neglected altogether the question of who’s hurting.

Walter Brueggemann said that “what we make of pain is perhaps the most telling factor for the question of life and the nature of our faith… It has to do with social valuing of the pained and pain-bearers— the poor, the useless, the sick, and the other marginal ones”.

How do we value our victims, our pain-bearers?

One way is to move beyond “he said, she said” and to instead arrive at a place of witnessing, by affirming to the person in pain: “I can see that you are suffering. I am listening to you. And I believe you.”

The Torah is filled with examples of God as a witness to suffering: with Hagar in Genesis 21, with Hannah in Samuel 1, and all throughout the Book of Psalms. In all these instances, God does not immediately fix things or remove the pain and suffering straight away. First, God witnesses, listens, and affirms. When we bear witness to others’ pain, when we validate and support others’ experiences, we walk that path with them so they are not alone.

We have just emerged from an absolute whirlwind of new year’s resolutions, fasting, soul-searching, and celebration — and frankly, I am exhausted. I’m sure some of you are too. It’s hard not to feel even more depleted by the headlines every morning. But I take solace in Shabbat, and in the opportunities we have to come together as a community and support one another, whatever we may be going through. May we all feel witnessed, listened to, and supported by one another as we continue building this Kehillah together.