Injury to Bystanders and the Meaning of "יִהְיֶה אָסוֹן"
Introduction
A Brawl, Bystander, and Baby
Shemot 21:22-23 describes a scenario in which two men brawl and a pregnant woman is struck in the course of their skirmish. The Torah speaks of two possible cases – either no tragedy occurs ("וְלֹא יִהְיֶה אָסוֹן") or a tragedy does occur ("וְאִם אָסוֹן יִהְיֶה"):
(כב) וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה וְיָצְאוּ יְלָדֶיהָ וְלֹא יִהְיֶה אָסוֹן עָנוֹשׁ יֵעָנֵשׁ כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה וְנָתַן בִּפְלִלִים.
(כג) וְאִם אָסוֹן יִהְיֶה וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ.
(22) And if men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow, he shall be surely fined, according as the woman's husband shall lay upon him; and he shall pay as the judges determine.
(23) But if any harm follow, then thou shalt give life for life.
The verses abound with difficult and ambiguous terms, leaving both the two situations described and their accompanying legal consequences open to multiple interpretations:
- "וְכִי יִנָּצוּ אֲנָשִׁים" – What type of fight is this? Are the men trying to merely hurt each other, or are they attempting to kill?
- "וְנָגְפוּ אִשָּׁה הָרָה" – Was the the blow to the woman accidental and intended for one of the combatants, or was it intentionally aimed at her? Was the woman actively involved in the skirmish, or was she a completely innocent bystander?1 Additionally, was she directly hit by the blow, or did one of the men who was struck collide into her?
- "וְיָצְאוּ יְלָדֶיהָ" – This phrase is not found elsewhere in Tanakh. Does it refer to a miscarriage, or only a premature birth?
- "וְלֹא יִהְיֶה אָסוֹן" – What does the word "אָסוֹן" mean?2 This word appears in only two contexts in Tanakh (here and in Bereshit 42-44), making its precise definition difficult to ascertain. Though it clearly refers to a negative consequence, does the term include only death or also other types of harm or injury? Most critically, to which of the characters is there no "אָסוֹן" – the fighting men, the woman, or the fetus?
- "כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה" – This verse suggests that, in the first scenario described (when there is no "אָסוֹן"), the husband sets the terms of the monetary fine. Why is it his decision, and how does this relate to the following clause, "וְנָתַן בִּפְלִלִים", which suggests that the courts play a role?
- "וְאִם אָסוֹן יִהְיֶה" – Is the subject of the "אָסוֹן" in this verse the same as in the previous verse? What action incurs the punishment of "וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ", that the assailant must "give a soul for a soul"?
"וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ"
The Torah shares that when there is an "אָסוֹן", the combatant is punished and must pay "נֶפֶשׁ תַּחַת נָפֶשׁ" ("a soul for a soul"). Is this phrase meant to be understood literally, that the crime discussed is a capital offense? Or is it possible that the words are merely metaphorical, and refer to paying the value of a life? This question is reinforced by the context in which this verse appears:
(כג) וְאִם אָסוֹן יִהְיֶה וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ.
(כד) עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן יָד תַּחַת יָד רֶגֶל תַּחַת רָגֶל.
(כה) כְּוִיָּה תַּחַת כְּוִיָּה פֶּצַע תַּחַת פָּצַע חַבּוּרָה תַּחַת חַבּוּרָה.
(23) But if any harm follow, then thou shalt give life for life.
(24) eye for eye, tooth for tooth, hand for hand, foot for foot.
(25) burning for burning, wound for wound, stripe for stripe.
There is much debate as to whether the latter two verses speak of literal talion or merely monetary compensation,3 and this may also impact our reading of the first verse. Must all of the penalties be understood in the same manner, or is it possible that "נֶפֶשׁ תַּחַת נָפֶשׁ" should be interpreted literally, while the others are rendered metaphorically?4
Status of a Fetus
What does our case say about the status of a fetus according to the Torah? Is it considered its own independent entity, and does harming it incur the same penalties as for any human being? Or, is it considered to be only a part of its mother's body ("עובר ירך אמו"), leading to lesser culpability? If the fetus is killed, is it a capital offense, or is the culprit only liable for a monetary fine? The answers to these questions depend considerably on how one resolves the textual issues above, including whether or not the fetus is the subject of the word "אָסוֹן" and whether or not "נֶפֶשׁ תַּחַת נָפֶשׁ" should be understood literally.
"Intended to Kill One but Killed Another"
The Torah distinguishes between several types of murder, giving different penalties for a premeditated killing and an inadvertent one. Where on the spectrum should we place a case in which one intends to kill a certain person, but accidentally kills another person in his stead? In such a case, is the culprit liable for the death penalty as there was a certain level of intent, or is this closer to a case of accidental manslaughter, as the dead person was not actively targeted? What does the case of injury to the pregnant bystander or her fetus teach about this law?