Good question…are the laws in the OT about rape and virginity indicative of a God who is either unfair to women (or maybe even just unrealistic/ignorant)?

 


Draft: May 19, 2001


 

There are a couple of ‘famous’ passages on rape and virginity that sometimes are mentioned as being unfavorable to women, and/or reflective of God’s “lower” valuation of women in the OT:

 

Questions about meaning and/or fairness can easily arise with these:

 

“Virginity too, seems all important for women yet for men not at all, perhaps because ‘proof’ of it can be demanded of women? (Though now we know that a woman doesn't always bleed when she loses her virginity- something God should have known about all along surely?). 

 

“Then there's the law, if a woman is raped in the fields punish the man but if they have sex in the city and she doesn't cry out punish them both.  That just seems stupid to me.  People react to fear in many different ways, some people are too frightened to make a sound.  There are other techniques a man may use to keep a woman quiet such as hands over her mouth, beating her unconscious or maybe everyone was just having a party and nobody heard her scream.  In any case it doesn't say much for God's intelligence if he passed that one!:)

 

and from another:

 

Deut.22:28-30  The NIV states that if a man meets a virgin, not pledged to be married and rapes her, he can fork over 50 shekels to the girl's father and marry her and they can never divorce.   The KJV leaves it a little more open ... I'm not sure if it's rape or maybe date rape, as the man "seizes" her.   My thoughts were that venereal disease ran rampant, therefore, it was best for the pair to stay united at that point.... but that wouldn't go over well with some of my friends.  Also, with such stringent laws on sexual morality, could VD have even been a problem with these people?

 

 

 

The passages in question are both from Deut 22:13-29:

 

If a man takes a wife and, after lying with her, dislikes her  14 and slanders her and gives her a bad name, saying, “I married this woman, but when I approached her, I did not find proof of her virginity,”  15 then the girl’s father and mother shall bring proof that she was a virgin to the town elders at the gate.  16 The girl’s father will say to the elders, “I gave my daughter in marriage to this man, but he dislikes her.  17 Now he has slandered her and said, ‘I did not find your daughter to be a virgin.’ But here is the proof of my daughter’s virginity.” Then her parents shall display the cloth before the elders of the town,  18 and the elders shall take the man and punish him.  19 They shall fine him a hundred shekels of silver and give them to the girl’s father, because this man has given an Israelite virgin a bad name. She shall continue to be his wife; he must not divorce her as long as he lives.  20 If, however, the charge is true and no proof of the girl’s virginity can be found,  21 she shall be brought to the door of her father’s house and there the men of her town shall stone her to death. She has done a disgraceful thing in Israel by being promiscuous while still in her father’s house. You must purge the evil from among you.

 

22 If a man is found sleeping with another man’s wife, both the man who slept with her and the woman must die. You must purge the evil from Israel.

 

23 If a man happens to meet in a town a virgin pledged to be married and he sleeps with her,  24 you shall take both of them to the gate of that town and stone them to death—the girl because she was in a town and did not scream for help, and the man because he violated another man’s wife. You must purge the evil from among you.  25 But if out in the country a man happens to meet a girl pledged to be married and rapes her, only the man who has done this shall die.  26 Do nothing to the girl; she has committed no sin deserving death. This case is like that of someone who attacks and murders his neighbor,  27 for the man found the girl out in the country, and though the betrothed girl screamed, there was no one to rescue her.

 

28 If a man happens to meet a virgin who is not pledged to be married and rapes her and they are discovered,  29 he shall pay the girl’s father fifty shekels of silver. He must marry the girl, for he has violated her. He can never divorce her as long as he lives.

 

 

 

There are two things we need to note about OT laws before we dig into these verses:

 

The biblical laws in the OT (as with the written law codes of the ANE neighbors) are not all the laws that Israel would have ‘lived by’ in ancient times. They are only a core set of laws, and there would have been many, many more laws needed, and many, many more details about the laws that we DO NOT have preserved in the OT:

 

 

“The biblical law collections, even when considered in toto, fall short of including all of the legal areas operative in ancient Israelite society. There are, first of all, categories which appear in the ANE laws but which are absent or unregulated in the OT law collections. Many of these categories are, however, alluded to in the Bible; thus, it is certain that they were operative in Israelite society. So, for example, robbery (tangentially mentioned in Lev 5:21–26—Eng 6:2–7; 19:13), hire of wet nurses, lease and rental of property, surety (cf. Gen 43:9; Prov 6:1; 20:16), hire of labor (cf. Lev 19:13; Job 7:2), bride-price and dowry (cf. Exod 22:16; 1 Sam 18:25), and sale (e.g., Isa 24:2; 2 Sam 24:24; etc.). In connection with sale, Jer 32:11 mentions the “sealed deed of purchase . . . and the open copy.” This custom finds parallels in the Dead Sea Scrolls (DJD 2: 244–46), the Elephantine papyri (Porten 1968: 198–99), and the Mishnah (B. Bat. 10:1). This type of document is ultimately derived from the practice of using an inscribed and sealed clay envelope to contain and protect a cuneiform document; the text written on the inner tablet was duplicated on the outside envelope.

 

Some of the other “missing laws” also appear in the Mishnah. While one cannot assert that all regulations of the Mishnah go back to the biblical period, some laws apparently do, at least to the extent that they can be shown to have ANE parallels. For example, the Babylonian laws treat the case of how to dispose of marital gifts and property in a situation where either the bride or groom-to-be has died before the wedding. This case appears in LE  17 and CH 163–64. The case is not discussed in the Bible but does appear in the Mishnah (B. Bat. 9:5). Another such case is “assault” upon the dignity of an individual by slapping his face. This case is considered in LE 42 and CH 202–4, and in the Mishnah (B. Qam. 8:6); this offensive act is also addressed by the NT (Matt 5:39, Luke 6:29).

 

“One can look again to the Mishnah for “preservation” of laws dealing with rental of houses and lease of fields (B. Mes\. 8:6–9, 10:1–10). These activities are highly visible both in the Laws of Hammurapi (CH 42–47, E–G) and the contemporary cuneiform documents. An arrangement modeled after a field lease may be reflected in Lev 25:15–16. Another such example is the special class of dowry property (Akk muluµgu; Heb meáloµg) and the type of property for which the user is responsible regardless of loss (Akk ul imuµtuµ, “they shall not have died,” said typically of livestock and thus described as s\oµn barzel, “iron sheep,” in the Mishnah; cf. Yebam. 7:1, B. Mes\. 5:6).

 

“The paucity of ancient Hebrew records limits real knowledge about the use of writing in Israelite legal practice. Scholars have noted the absence of writing; for example, in the description of Abraham’s purchase of the cave of Machpelah (Genesis 23) as well as in the redemption of Naomi’s family property in Ruth 4:1–12. But documents were written for the redemption of family property by Jeremiah (Jer 32:6–14) and were prescribed for divorce in Deut 24:1–3, Isa 50:1, and Jer 3:8. Some scholars have seen the use of written documents as a late development, perhaps reflecting increased foreign influences and sophistications (cf. further Job 31:35). The biblical law collections, however, are all represented as part of orally delivered addresses or sermons. The renewal or rereading of the law is similarly depicted; the laws are read out to the populace in Deut 31:10–13, 2 Kgs 23:1–3, and Neh 8:1–9:3. So it would seem that in ancient Israel, as for her Near Eastern neighbors, writing was not an indispensable feature of the legal tradition and practice but functioned, rather, as an aid to memory (cf. Deut 31:22–26; Josh 24:26). [ABD, s.v. “Law”)

 

and……….

 

“Israel was basically an agricultural people from the conquest of Canaan until the Babylonian captivity…, a study of their land laws may be of some interest. First, it is well to notice that no complete system of land laws can be built up from the Pentateuch alone; and yet no other codification of early Israelite laws is known, except for the Mishnah, which seems to preserve additional laws in force at the time of the destruction of Herod’s Temple. Obviously, Israel had more land laws than these two works contain; therefore it is only reasonable to assume that in this area (as doubtless in that of commerce and elsewhere) she simply used the common Semite law, supplementing it by specifically Israelite regulations where such were necessitated by Israel’s revelation of Yahweh. Only some such practice can account for the otherwise inexplicable ‘gaps’ in the Torah, here and elsewhere.” [ZPEB, s.v. “law”]

 

This essentially means that our few references to virginity and rape recorded in the bible are undoubtedly not the only laws about this in force in ancient Israel, so we had better not assume they were applied uniformly to all cases involving these topics.

 

 

Secondly, we need to understand that Israelite law was not applied ‘blindly’ and ‘superficially’ to cases that came up.

 

For example, take the “rape in the city” case.

 

We know from the rape of David’s daughter Tamar, by Amnon—which occurred in the city—that the ‘the girl must die’ rule was obviously not enforced (although the blood-avenger Absalom eventually executed the rapist).

 

This is paralleled in the Middle Assyrian Law (MAL A 12): “If a wife of a man should walk along the main thoroughfare and should a man seize her and say to her, ‘I want to have sex with you!’—she shall not consent but she shall protect herself; should he seize her by force and fornicate with her—whether they discover him upon the woman or witnesses later prove the charges against him that he fornicated with the woman—they shall kill the man; there is no punishment for the woman.” [LCMAM:157f]

 

 

Now take the case of the ‘virginity dispute’:

 

From the ANE we see that cases could involve character witness, self-testimony—and NOT just the ‘bloody sheet’ (a practice in most of the ANE):

 

“When virginity was disputed, the courts called on expert female witnesses to offer testimony. A letter from Mari described the situation of a betrothed girl: ‘The ‘wife’ of Sin-iddinam declared as follows: Before Sin-iddinam took me, I had agreed with [the wish of] father and son. When Sin-iddinam had departed from his house, the son of Asqudum sent me the message, ‘I want to take you.’ He kissed my lips, he touched my vagina—his penis did not enter my vagina. Thus I said, ‘I will not sin against Sin-iddinam.’” In an earlier trial in Nippur, a man denied physical penetration using the same words. Obviously, penetration was the criterion to establish whether a woman—virgin, betrothed, married or slave—was raped or seduced, in order to determine culpability.” [OT:DLAM:135f]

 

 

Although we don’t have any records of court cases going back to OT Israel, the rabbinic writers—often demonstrating significant continuity with ancient practice—certainly didn’t apply the ‘bloody sheet’ test in an unreasoning fashion:

 

“Several rabbinic sources shed light on the legal aspects of the problem of virginity. In various cases brides are accused of having already lost their virginity but the sages invalidate the accusation. All these cases appear in two collections of baraitot, one in the Palestinian Talmud and the other in the Babylonian Talmud, and the sages who appear in them, with the exception of R. Ishmael b. R. Yose, are all from the house of the nasi. In the first story, in which the protagonist dates from the Second Temple period, a man went before Rabban Gamaliel the Elder and claimed that he failed to find the signs of virginity in his wife, but Rabban Gamaliel believed the wife, who claimed that she came from the Dorkti family, which was a family in which women were known not to bleed when they lose their virginity (bKet. 10b). The same claim was twice brought before Rabbi, who accepted the wife’s explanation and rejected the husband’s complaint in both cases: in the first, the wife attributed her failure to bleed to years of famine (Ibid.), and in the second the wife maintained that her hymen fell from the rigor of climbing the steps of her father’s house (yKet. 1.1, 25a).R. Ishmael b. R. Yose, when he heard the case of the woman ‘whose signs of virginity were no larger than a mustard seed,’ ruled in her favor and even said a blessing over her…” [WS:JWGRP:98-99]

 

 

 

 

I wanted to point these two items out first, so we wouldn’t assume that God made ‘ignorant’ laws, or was somehow unfamiliar with the realities of biology or of city life…

 

 

 

Now, let’s look at the “logic” of the importance of virginity for women …

 

The first thing to recognize is that this is not evidence for some kind of ‘double standard’ in sexual ethics. I have discussed this elsewhere ( http://www.christian-thinktank.com/w2stds.html  ).

 

Secondly, ‘virginity’ as a condition is discussed as being applicable to both men and women in the New Testament (e.g., 1 Cor 7.25ff, according to most commentators), so this potential issue is only relevant to OT situations.

 

But the most important thing to understand about ANE virginity (and marital fidelity, also) is its socio-economic function, in inheritance-based cultures. This is a critical element to understanding some of these issues, so let me try to sketch out this background.

 

Most sedentary cultures that are land-based are built on a very fragile foundation of property boundaries and family ownership. When land begins to be considered the ‘property’ of a family (as an economic foundation for community life and survival), the issue of family-continuance rises to the forefront. Issues of proper ‘inheritance’ are carefully worked out in the law codes, and even enshrined in religion and theology:

 

“Both the people of Israel and their land are designated as the ‘inheritance of Yahweh.’ The terminology is also employed outside Israel. Thus, the Ugaritic texts mention Mount Zaphon as the ‘inheritance’ of Baal, the place Hkpt (Memphis?) as the ‘inheritance’ of the god Kothar (identified with Ptah?), and the netherworld as the inheritance of Mot, god of death. The idea of a divine allotment of territories to the various gods of the pantheon is implied in the reference to Moab as the land of Chemosh in the inscription of King Mesha. At the beginning of the common era the tradition was still known to Philo of Byblos; he wrote that Kronos gave the city of Byblos to Baaltis, Beirut to the god Poseidon, and Egypt to the god Thoth.” [CANE:2048]

 

The importance of inheritance and property-transference can also be seen by noting that in the Laws of Hammurapi, the largest section is on ‘Family Law’, and in this section some 59 of the 69 laws deal with inheritance and transfer cases (see [OT:EML:36]).

 

In the ancient world, death was a constant threat, to parents and children alike. The senior parent/couple who owned the family land (which the extended family typically shared) were essentially responsible for two things:

 

  1. enough “genetic” family members to ensure that the land was worked [a labor issue]; and
  2.  a legally-recognized heir, who would be respected by the community and who would ensure the survival of the remaining family, after the death of the senior parents.

 

The need for “genetic” labor, of course, was a procreation issue (although sometimes supplemented with semi-slave labor). The husband and wife needed to produce children who would survive to adulthood (always a tenuous situation, with child mortality and constant risk of death/illness), and this generally involved having as many kids as possible.

 

The community, of course, was critically dependent on their success, for the community relied on each family to be more-than-independent, and to contribute to the ‘surplus’ required to fund community life, protection, and activities. The community (as voiced in its leadership) tried to support both harmony in the family household, as well as procreational productivity.

 

The issue of a legally-recognized heir, was also related to the ‘genetic’ laborers, but the legal aspect of it made it critically important to be able to document conclusively an heir’s true paternity/genetic link to the parents. Proving paternity is one of the major assumptions of ANE law. This example shows how important it was:

 

“According to the patrilinear system, property was divided among sons or the surviving male line. The children of a dead brother also inherited. Nasty uncles were sometimes libelous in casting slurs on the paternity of a baby born posthumously. In the following case, the boy’s uncles questioned his paternity once he was old enough to lay claim to his inheritance:

 

Ninurta-ra’im-zerim, the son of Enlil-bani, approached the (court) and faced the court officials and judges of Nippur, (and testified): ‘When I was still in the womb of Sin-na’id, my mother, Enlil-bani my father, the son of Ahi-shagish, died. Before (my mother) gave birth Khabannatum, my paternal grandmother, informed Luga, the herdsman, and Sin-gamil, the judge, (and) she sent a midwife and (the midwife) deliver me. When I grew up, in 20th year of Samsu-iluna…(his uncles attempt to question his paternity)…’ The court officials and the judges investigated the case. They read the earlier tablet with the oath. They questioned their witnesses, and discussed their testimony…The witnesses who knew the paternity of Ninurta-ra’im-zerim, affirmed (it) by oath and they (the judges) ordered the case brought back to the assembly…(Witnesses testified:)‘Until she (Sin-nada) gave birth, they (the mother-in-law, the herdsman, the midwife, and the judge) looked after her. We know that Ninurta-ra’im-zerim is the offspring of Enlil-bani’”

 

“Such procedures suggested that the birth of important people was witnessed. There were also tablets with baby footprints, indicating their paternity, and the seal of the witness.” [OT:DLAM:148f]

 

Now, in a culture in which there could be absolutely no doubt/question about the heir’s legitimacy and paternity, the community law must strongly influence public behavior in support of ensuring that. This is for the community a critical function, needed to insure the orderly life and continuity of the always-fragile social order.

 

From a physical standpoint, of course, there is only one way to ensure that a specific child is indeed the ‘genetic’ heir of the household father: the mother must be a virgin at the time of marriage, and must be completely faithful to the husband until at least after the specific baby is born. There is no other way whatsoever—in the pre-DNA-testing ancient world—to be absolutely sure of this.

 

And the community must exert all its legal force on the populace to make sure these two items (i.e., virginity of a bride and fidelity of a wife) are protected by ‘high force’.

 

Practically speaking, what this means is that the legal system will ‘over-penalize’ violators of these. The ‘punishment will NOT fit the crime’ in such cases. And, since core survival values of a community are normally enshrined in capital punishments, looking at these can give an observer a quick-key to what is of critical importance to community continuity.

 

This means that we would expect that individuals who either violated an (1) engaged or (2) likely-to-be-engaged virgin to get the death penalty (or alternately, be forced to marry the woman—insuring the paternity of any subsequent children, obviously). And, we would expect that individuals who were responsible for adultery with a married woman (either the woman herself, or a rapist) would also get the death penalty.

 

Normally, rape is considered a serious crime, but is not considered a capital crime in most cultures. “Normal”, non-community-threatening crimes are generally assigned ‘matching severity’ punishments (a la lex talionis). [Just as law codes also distinguish between ‘misdemeanors’ and ‘felonies’]. When it is considered a capital crime, this tells you something important about the community’s survival needs.

 

A good example of this might be homosexual rape in the Middle Assyrian period. This was a crime, but not a community-threatening one, so the punishment was ‘matched’ to the crime:

 

 “If a man sodomizes his comrade and they prove the charges against him and find him guilty, they shall sodomize him and they shall turn him into a eunuch [that is, castrate him]” [MAL 20]

 

But, almost universally, adultery carries the death penalty in the ANE—because of the criticality of being able to prove paternity…it was a major foundation of community existence and stability.

 

Now, what this creates is an interesting socio-economic dynamic. The larger the household and landholdings, the more important to the community and to the family for the absolute certainty of paternity. This places a tremendous value on (1) demonstrable virgins and on (2) women with the ‘promise of fidelity’ (i.e., from a “good family”). The managing parents of a ‘rich’ household would diligently try to find a mate for a son that could satisfy these two criteria.

 

From the other side, the parents of a daughter would obviously seek the best possible future for her. This would generally mean trying to arrange a marriage into the most economically-stable family in the community, to provide the girl with every possible advantage for the future. This would primarily entail protecting her ‘demonstrable virginity’ to ensure that she would find a home in the highest-strata families. Needless to say, if the girl was deprived of her virginity via a rapist or seducer (and didn’t marry said individual), her probability of being sought out by families in desperate need for a demonstrable virgin (in other words, the families with the most inheritable property and land!) would drop to zero. This would make the task of providing for/ensuring the long-term welfare of the daughter that much more difficult.

 

What this means is that “Virginity was certainly a very important asset of a marriageable girl in the ancient Near East” [CANE:489]

 

[Notice, though, that this ‘use’ of virginity primarily is NOT an issue of ethics or morality to the community! It is first of all a practical matter of ensuring orderly continuity and succession of citizenship and protection of inter-community boundaries. Matters of “regular ethics” get assigned more ‘matching punishments’; matters of community survival get assigned ‘capital’ punishments. For the groom’s family it is a way to ensure orderly succession and continuity of care for the extended family. For the bride’s family it is a way to ensure the best possible future for the daughter. Virginity was more than simply a case of sexual purity; it had additional socio-economic impact, and this impact (common throughout the ANE) is likely the subject/dynamic of our OT verses.]

 

…………………………………………………..

Excursus: This, by the way, is where polygamy sometimes came in as ‘semi-acceptable’ in the wider ANE: the need for labor and the need for a demonstrable heir, in the case of a barren wife:

 

In the ANE, monogamy was the rule and standard. The exceptions made for polygamy in the law codes show how the normal standard of harmonious monogamy was subservient to having a community-recognized heir.

 

“Generally, marriage was monogamous, even among the gods.” [OT:DLAM:132]

 

“With rare exceptions, a man could not have more than one formally recognized wife at a time. Both Babylonian law codes and court proceedings indicated that only under exceptional circumstances was a man permitted to have more than one wife at the same time.” [OT:DLAM:136]

 

“Polygamy was probably an option for the rich although we have no instances of it (2400-2000BC)” [OT:LIANE:20]

 

Monogamy was the norm, and two or three children was average (2000-1800BC)…Kings and maybe other very rich people had polygynous families” [OT:LIANE34]

 

Monogamy continued to be the norm…Polygamy was possible, but sources do not envision more than two wives (2000-1600BC)” [OT:LIANE:51,52]

 

“The Middle Assyrian ‘laws’ from shortly before 1077 BCE in the north of Mesopotamia preserve older traditions, and they assume much the same monogamous marriage as we see in the Code of Hammurapi from the Old Babylonian period.” [OT:LIANE68]

 

“Polygamy occurred among kings, but much less among private persons (1600-1100bc)”

[OT:LIANE:74]

 

“From the collection of Hittite laws we can see that the family was monogamous, although kings had concubines whose children had lesser status.” [OT:LIANE:76]

 

“The structure of the family seems a continuation of earlier models. Rich men, and kings especially, could afford more than one wife, but most people were monogamous (1100-626bc).” [OT:LIANE:81]

 

“The rich, especially kings, had several wives, but otherwise monogamy was the norm (Israel, 1100-626BC)” [OT:LIANE:87]

 

“In Israel, as in most of the ancient world, monogamy was generally practiced. Polygamy was not contrary to law or morals, but was usually not economically feasible. The main occurrence of polygamy would be when the first wife was barren, but there are several other factors which encouraged the practice, including (1) an imbalance in the number of males and females, (2) the need to produce large numbers of children to work herds and/or fields, (3) the desire to increase the prestige and wealth of a household through multiple marriage contracts, and (4) the high rate of death for females in childbirth. Polygamy is most common among pastoral nomadic groups and in rural farming communities where it is important that every female be attached to a household and be productive. In the Bible most cases of polygamy among commoners occur prior to the period of the monarchy.” [OT:BBCall, at. 1 Sam 1.2]

 

“Most marriages were monogamous, but because of the importance of male heirs [in ancient Mesopotamia], fathers who lacked sons had the right to marry a second wife.” [CANE:478]

 

But, as is noted in the quotes above, polygamy was not used as an ‘heir making device’ very often, and instead, most cultures relied upon formal ‘adoption’ of people into the heir-position:

 

“If there were no children, adoption was a solution. A childless couple could also free a slave and adopt him as their son.” [CANE:494]

 

 

…………………………………………………………….

 

With this background in mind—of the socio-economic criticality of being able to demonstrate paternity—let’s make some observations about the passages in the OT, and see how they fit in with the background sketched out above.

 

If a man takes a wife and, after lying with her, dislikes her  14 and slanders her and gives her a bad name, saying, “I married this woman, but when I approached her, I did not find proof of her virginity,”  15 then the girl’s father and mother shall bring proof that she was a virgin to the town elders at the gate.  16 The girl’s father will say to the elders, “I gave my daughter in marriage to this man, but he dislikes her.  17 Now he has slandered her and said, ‘I did not find your daughter to be a virgin.’ But here is the proof of my daughter’s virginity.” Then her parents shall display the cloth before the elders of the town,  18 and the elders shall take the man and punish him.  19 They shall fine him a hundred shekels of silver and give them to the girl’s father, because this man has given an Israelite virgin a bad name. She shall continue to be his wife; he must not divorce her as long as he lives.  20 If, however, the charge is true and no proof of the girl’s virginity can be found,  21 she shall be brought to the door of her father’s house and there the men of her town shall stone her to death. She has done a disgraceful thing in Israel by being promiscuous while still in her father’s house. You must purge the evil from among you.

 

·         Here we see the death penalty for violation of the “virginity value” (in this case, by the girl)

·         We also see the over-penalty assigned in the case of slander—ten years wages are paid to the father (we don’t know if it went into the woman’s bride-fund or not, though—see below on the mohar).

·         He is restricted from divorcing her, because with his ‘giving the virgin a bad name’, she will NOT be able to re-marry into a ‘good house’ , with its needs for someone with a ‘predisposition to fidelity’. The slander has already removed that option of ‘upward mobility’ from the woman. The law now protects her by forcing him to provide full marital support for her for the rest of her life.

 

 

22 If a man is found sleeping with another man’s wife, both the man who slept with her and the woman must die. You must purge the evil from Israel.

 

·         Here we see that the ‘proven paternity through fidelity’ principle is compromised by the adultery, and the community ‘judges’ this as a capital crime (i.e., of highest importance).

·         We might also note that in some ANE cases, only the woman is killed, but the OT does not countenance such a double standard here.

 

23 If a man happens to meet in a town a virgin pledged to be married and he sleeps with her,  24 you shall take both of them to the gate of that town and stone them to death—the girl because she was in a town and did not scream for help, and the man because he violated another man’s wife. You must purge the evil from among you.

 

·         One of the more critical periods of time was the period between contracting the marriage (e.g., ‘getting engaged’) and consummating the marriage. For all intents and purposes, the engagement event was when ‘legal marriage’ began. Hence, the capital nature of this crime.

·         This crime is a type of ‘statutory’ rape, of sorts. There is nothing about force here, and it is essentially tantamount to regular adultery.

·         We have already seen that this law was not enforced ‘blindly’ or ‘uniformly’.

·         Under this scenario, proving paternity would be all but impossible in that day and age.

 

 

 25 But if out in the country a man happens to meet a girl pledged to be married and rapes her, only the man who has done this shall die.  26 Do nothing to the girl; she has committed no sin deserving death. This case is like that of someone who attacks and murders his neighbor,  27 for the man found the girl out in the country, and though the betrothed girl screamed, there was no one to rescue her.

 

·         This is a capital crime, because the man destroyed this woman’s ability to be a part of ‘normal’ community succession. Without her demonstrable virginity, she could not contribute to “unchallenged successions”. The rapist has stolen this from her, and the punishment (capital) is ‘greater than’ the crime.

·         This DOES involve force, and is given a very high “atrocity-rating” (i.e., like murder)

 

 

28 If a man happens to meet a virgin who is not pledged to be married and rapes her and they are discovered,  29 he shall pay the girl’s father fifty shekels of silver. He must marry the girl, for he has violated her. He can never divorce her as long as he lives.

 

·         Here is a clear case in which the rapist has (1) stolen the girl’s ability to guarantee paternity, and by doing so has greatly limited her future options; and (2) has limited her father’s options of arranging a good marriage for her.

·         The rapist is now forced to become what he has cheated the girl out of—a ‘well off’ husband. The fifty shekels bride-price (see below on the Exodus 22.16 passage) is five years worth of average wages, and is the price  paid by the Pharaoh Amenophis III for the women of Gezer destined for his harem [AI:1:26]!

·         The girl’s future is now assured—she has a guaranteed support source (he cannot divorce her)—and she has a ‘big’ bride-price on deposit. The law has protected someone who was attempting to help the community, by preserving her virginity.

 

 

A related passage is in Exodus 22.16, although its relationship with Deut is somewhat unclear:

 

“If a man seduces a virgin who is not pledged to be married and sleeps with her, he must pay the bride-price, and she shall be his wife.  17 If her father absolutely refuses to give her to him, he must still pay the bride-price for virgins.  (Ex 22.16)

 

·         This is not rape, but seduction (but it still costs the girl and the community her virginity)

·         The man must pay the bride-price (mohar) for virgins—which she WOULD HAVE gotten in an arranged marriage.

·         He has to marry her, unless the father thinks it’s a bad idea: “In case the girl’s father considered the match unsuitable for his daughter, as well he might under the circumstance, the man involved was still to pay as a penalty a sum equivalent to the marriage price for young women eligible to be married.” (WBC, in.loc.)

·         If she didn’t marry the guy, at least she had the mohar to help with her future. Plus, she would still likely marry, but not as “high-up” (i.e., as a non-virgin), and get an additional mohar (although much lower).

 

 

 

What was this mohar or bride-price all about?

 

It can be thought of as a ‘pension’ or ‘social security’ for the woman. It was kept by the father (out of the clutches of her husband!), but not ‘owned’ by him:

 

“Furthermore, it is probable that the father enjoyed only the usufruct of the mohar, and that the latter reverted to the daughter at the time of succession, or if her husband’s death reduced her to penury. This would explain the complaint of Rachel and Leah against their father, that he had ‘devoured their money’ after having ‘sold’ them (Gn 31:15)

 

“A parallel, though not identical, custom existed in ancient Babylonian law: the tirhatu, though not a necessary condition of the marriage, was usually paid over to the girl’s father, and sometimes to the girl herself. The amount varied greatly, from one to fifty shekels of silver. This sum was administered by the father, who enjoyed the usufruct of it; but he could not alienate it, and it reverted to the wife if she was widowed, or to her children after their mother’s death. In Assyrian law, the tirhatu was given to the girl herself. It was not a purchase price, but, according to two very probable theories, either a compensation to the girl for the loss of her virginity, or a dowry intended to assist the wife if she lost her husband.” [AI:27]

 

“Typical marriage customs would have included a payment made to the bride’s family by the groom or his family. This could provide a sort of trust fund to provide for the wife should the husband die, desert, or divorce her.” [OT:BBCALL, at Gen 29.18]

 

There is some evidence that this was a variable amount in Israel, and that it was negotiated by the parents. In some of these cases of rape and/or seduction, the price being paid is typically higher than what would normally have been paid, so this was both a disincentive for would-be rapists, and a compensation for ”lost opportunities” for the woman.

 

…………………………………………………

So, where does this leave us?

 

1.        There would have been other laws operating in Israel than just the few we have in the bible on rape and virginity issues.

  1. The laws we DO have would not have been enforced crudely, stupidly, or without ‘wisdom’ for the situation.
  2. These verses are not evidence for some kind of ethical double-standard, in either the Old or New Testaments.
  3. Orderly property succession is a survival issue for sedentary communities (in which property is held privately, of course).
  4. In the ANE, orderly property succession—for families with a wealth of property—was generally a critical matter of proven paternity of the heir.
  5. Female virginity and faithfulness in marriage was the only way to ensure proven paternity, and was thus critical to community orderliness and survival.
  6. Community legal codes created strong, over-penalties of a ‘capital’ and ‘very expensive’ nature to force community behavior into supporting the needed order and values.
  7. Actions that compromised these values (such as rape of a virgin and rape/seduction of a wife/virgin) were dealt with severely.
  8. The law codes also sought to protect the victims of violation, since the crime greatly reduced their ability to ‘help the community’ in this way, and greatly restricted their own individual future options for stability.
  9. [Some needs for heirs were met via allowable-on-an-exception-basis polygamy, but most were met by adoption of heirs into the family.]
  10. Thus, the law code treatments of rape/virginity (in the ANE) reflect more the socio-economic survival needs of the community (a high moral issue, of course), than the more general ethical and moral aspects of the crimes. (The ethical and moral aspects of the crime might not be visible in the codes at all.)
  11. The biblical verses we looked at seem to reflect more the socio-economic importance of virginity/rape than the broader ethical/moral issues (dealt with in the more ‘moral instruction’ side of Torah), and were similar to ANE codes in this regard.
  12. The biblical cases also show a concrete concern for the financial security of the woman, either violated or slandered, and implement specific protections for her (e.g., hefty mohar, guaranteed life-time financial support).

 

In these cases, I think it is clear that these verses on virginity are NOT primarily about ethics or morality, but rather  a practical matter of ensuring orderly continuity and succession of citizenship and protection of inter-community boundaries. As can be seen through the biblical (and ANE, by the way) data, matters of “regular ethics” get assigned more ‘matching punishments’ [cf. lex talionis]; matters of community survival get assigned ‘capital’ punishments. For the groom’s family it is a way to ensure orderly succession and continuity of care for the extended family. For the bride’s family it is a way to ensure the best possible future for the daughter. Virginity was more than simply a case of sexual purity; it had additional socio-economic impact, and this impact (common throughout the ANE) seems to be the subject/dynamic of our OT verses. [Note, though, that many/most ‘ethical issues’ also have important socio-economic consequences attached to them—it is almost always ‘better for the community’ for us to ‘do the right thing’]

 

Of course, in OT covenant law, since the Lord was the founder, ruler, and a member of the community of Israel, every socio-economic aspect of it carried ethical dimensions too, from inheritance laws to social justice laws. The list of ‘curses’ that the people were supposed to recite—as a community declaration of its highest values—include a major property law (i.e., moving a boundary stone as a capital/cursed crime-!-showing again the criticality of land laws to the culture), as well as prohibitions against abuse of the impaired and against violation of the socially helpless (Deut 27.11ff). Notice that ‘moving the boundary’ is right up there with murder and incest:

 

On the same day Moses commanded the people: When you have crossed the Jordan, these tribes shall stand on Mount Gerizim to bless the people: Simeon, Levi, Judah, Issachar, Joseph and Benjamin.  And these tribes shall stand on Mount Ebal to pronounce curses: Reuben, Gad, Asher, Zebulun, Dan and Naphtali.  The Levites shall recite to all the people of Israel in a loud voice: 

 

Cursed is the man who carves an image or casts an idol—a thing detestable to the LORD, the work of the craftsman’s hands—and sets it up in secret.” Then all the people shall say, “Amen!”

“Cursed is the man who dishonors his father or his mother.” Then all the people shall say, “Amen!”

“Cursed is the man who moves his neighbor’s boundary stone.”  Then all the people shall say, “Amen!”

“Cursed is the man who leads the blind astray on the road.”  Then all the people shall say, “Amen!”

“Cursed is the man who withholds justice from the alien, the fatherless or the widow.”  Then all the people shall say, “Amen!”

 “Cursed is the man who sleeps with his father’s wife, for he dishonors his father’s bed.”  Then all the people shall say, “Amen!”

 “Cursed is the man who has sexual relations with any animal.”  Then all the people shall say, “Amen!”

 “Cursed is the man who sleeps with his sister, the daughter of his father or the daughter of his mother.”  Then all the people shall say, “Amen!”

“Cursed is the man who sleeps with his mother-in-law.”  Then all the people shall say, “Amen!”

“Cursed is the man who kills his neighbor secretly.  Then all the people shall say, “Amen!”

 “Cursed is the man who accepts a bribe to kill an innocent person.”  Then all the people shall say, “Amen!”

 “Cursed is the man who does not uphold the words of this law by carrying them out.” Then all the people shall say, “Amen!” 

 

I hope this helps place these verses into context. They are meant for the protection of the woman (as a community member) and for the protection of the community (as needing stable succession processes for survival).

 

Glenn Miller

May 2001


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