Premarital Relations or Rape: Case Law

Torah Teaching in Deuteronomy 22:13-29

A while ago I read an angry comment online claiming that in ancient Jewish law victims of rape were forced to marry the man who raped them. After studying the passage that contains the controversial case, it turns out to not involve rape after all.  However to really explain why the case is somewhat vague it helps to have a sense of how case law functions as opposed to say legislation today.

[The relevant case is the third of the three cases below.  There are 6 different legal cases that give rulings on sexual indiscretion between Deuteronomy 22:13-29. They lay out some general divisions in the law through case example. The final seven of those verses are below, divided into the three cases we will consider here.]

Case #1
If a damsel that is a virgin be betrothed unto an husband, and a man find her in the city, and lie with her; Then ye shall bring them both out unto the gate of that city, and ye shall stone them with stones that they die; the damsel, because she cried not, being in the city; and the man, because he hath humbled his neighbour’s wife: so thou shalt put away evil from among you.” (Deuteronomy 22:23,24 KJV)

Case #2
“But if a man find a betrothed damsel in the field, and the man force her, and lie with her: then the man only that lay with her shall die: But unto the damsel thou shalt do nothing; there is in the damsel no sin worthy of death: for as when a man riseth against his neighbour, and slayeth him, even so is this matter: For he found her in the field, and the betrothed damsel cried, and there was none to save her.” (Deuteronomy 22:25-27 KJV)

Case #3
“If a man find a damsel that is a virgin, which is not betrothed, and lay hold on her, and lie with her, and they be found; Then the man that lay with her shall give unto the damsel’s father fifty shekels of silver, and she shall be his wife; because he hath humbled her, he may not put her away all his days.” (Deuteronomy 22:28,29 KJV)

The first case is of a man who has humbled his neighbor’s wife by sleeping with her. Though she was only betrothed, she was considered a wife because betrothal in that world was one stage of marriage. So that first case is adultery and is punished by death. The second case is rape of a betrothed woman. The man is punished with death and the woman is considered innocent. The third case we will examine more closely, but I contend is simply consensual sex between two unattached people. The man is required to pay her bride price, marry her, and never divorce her.

Note that these labels (adultery, rape, consensual sex,) are not applied to the cases, but the facts of the case and the judgments rendered are given. Law students are trained in a similar way today in America. Potential lawyers learn a case and ask what laws might be relevant to it. Or, knowing the actual judgment in a case they try to discern the underlying principles of the law at work. My point is that lawyers do not only study the laws themselves, but rather cases and judgments. Likewise, God’s written law was not constructed as a totally abstract system which covers all possibilities. To a significant extent the judges “in Moses’ seat” had to participate with Torah in finding fair judgments just as they had to examine witnesses to grasp the facts. There is strategic economy to what cases are given. Therefore the vagueness of the third case is intentional and calls for reasoning by judges and the people.

So what are the facts of the third, “controversial” case? The NIV translates verse 28, “if a man happens to meet a virgin…and rapes her…” However the Hebrew verb does not necessarily imply such violence. It can be used to describe taking hold of a garment or playing the harp. The King James Version here translates the word as “lay hold”, while the New American Standard Bible has “seizes”. A few verses earlier, at Deuteronomy 22:25, in discussing rape, a different verb is used: חָזַק , which perhaps should be translated, “to force.” (KJV) Therefore we see intentional differentiation between these cases.  We will argue below that the second case, the rape case in the field, sufficiently describes what we would need to know about rape, and that moreover, if the third case also described rape then it would be contradictory and confounding.

The text shows in several ways, not least of which is common sense, that the woman in the third case was not raped. One way it shows this is by saying they were found out. Though this happened around a witness, she did not cry out; they were discovered.  A cry for help is given in the first two cases as a practical measurement which the court was recommended to take to discern whether or not the intercourse was rape or consensual.  The courts were bodies which used prudence to search for justice; the abstraction of law could not settle every problem.  Therefore the evidence of whether someone cried out should be taken as something the law indicates as a useful consideration, rather than a rigid absolute.  Consider, that some women are mute.  Some woman may have been able to bring good evidence, like her bruises, that she fought, though she did not cry out.  It is unthinkable, and against the spirit of the law, and its principles, that such a woman would be killed for adultery.  The courts were liberal and strived to protect the accused.  It is said that if a court executed one person in 70 years it was a bloody court.

So these two were discovered by a witness together, as people sometimes are.  Nor is it “he was found out”, but it describes both of them being found. Whatever he was doing wrong, she was also doing.

The first two cases involve betrothed women; the first case is consensual and the other is non-consensual. The law is that the woman’s resistance is necessary for her vindication if she is betrothed. But what if she is not betrothed? That is the third case. Can she be vindicated if she offered no resistance and was not betrothed?  Or someone could argue that the third case is simply trying to set forth what happens to a woman who is raped as in the second case, with the difference that here she is not betrothed.  We will look at this.

Why does scripture even need to explain that not only a betrothed woman is innocent who is raped but also a non-betrothed.  Indeed, the text does not even declare innocent but mandates marriage.  Can we tell from the second case, the rape case, how God regards rape?

“Unto the damsel thou shalt do nothing; there is in the damsel no sin worthy of death: for as when a man riseth against his neighbour, and slayeth him, even so is this matter: For he found her in the field, and the betrothed damsel cried, and there was none to save her.” – Deuteuronomy 22:26,27

God there characterizes rape so there doesn’t even need to be a new case law to cover an unattached woman being raped. When the betrothed woman is raped it is compared to murder; it is,

“as when a man riseth against his neighbour, and slayeth him, even so is this matter.” – Deuteronomy 22:26

If someone rises up to slay my betrothed daughter then the rapist is considered as a killer and is put to death, but if he does that to my unmarried daughter it is nothing? No, even if we are inconsistent God is not.

In one case we have an engaged woman raped compared to a murder victim whose attacker must be killed. In the second story, moments later, the rapist pays the father and must never divorce his daughter? Is there a way for the single woman to escape this fate by crying out during the act? How? Even if she were found out she would have to marry him. But if she were not found out then she might end up being killed after her marriage to another man as a loose woman without proofs of virginity. Obviously that would not be fair and she might pay severe consequences either way.

If the two who are “found out” and forced to marry is a rape case does it line up with the other laws? The supposed rapist in the country who had only one immediate witness is put to death, but the rapist who is caught, whether in city or country, marries the girl. Why? What is the difference? In the case where they marry she is not previously betrothed. Then the first rapist (in the country) is sentenced to death for having sex with an engaged woman, not for raping her. According to this reasoning, raping her is pretty much fine. According to this reasoning, if she had not been engaged when he raped her that could have been taking a step toward marriage.

That would seem strange when only a few verses previously we see the law come down and speak with emotion to talk about a sister, a wife, a mother with full compassion. ‘She is like a slain woman, do nothing to her.’ The law of the rapist in the country establishes protection for any woman by extension. If a woman betrothed, who has made vows of loyalty to another, is fully protected and her rapist killed if she cries out or it happens where no one would hear, then all women are protected. Humanly speaking, a betrothed woman is least protected because she is somewhere between two households and her value depends on her purity. Therefore both the girl fully in her father’s house would be protected and the wife must be protected a fortiori. They could have blamed the betrothed woman, and so perhaps God picks this case to teach protection of rape victims.

This series of cases is sufficient to interpret many other rape cases. It demands that the court establish by evidence if it was rape or consensual. It provides the principle of defending the victim, condemning the “adulteress” (betrothal was a form of marriage), and forcing a man to marry his lover if they are caught and not divorce her. This last law, the one someone said forced a woman to marry her rapist, would have been known to people, so that a woman knew the consequences of her affairs just as a man did, they neither of them would have had choice once caught, but then they both had a choice in beginning the affair.

Conclusion

Exodus states a related case with very similar language, but there is no reason to assume it is “the same” as Case #3. It is as follows,

“And if a man entice a maid that is not betrothed, and lie with her, he shall surely endow her to be his wife. If her father utterly refuse to give her unto him, he shall pay money according to the dowry of virgins.” – (Exodus 22:16-17)

One commentary on this passage said that where Deuteronomy describes a man “laying hold” of a woman this law describes a man enticing a woman in order to show a range of seductive behaviors. The case in Deuteronomy could have been more bold, but in my opinion, the real characterization of the use of that verb “lay hold” can be found in the fact the case is contrasted with the prior case of clear cut rape. No one comes to her defense to save her and avenge her because she did not cry out; rather it was consensual. Therefore the two who have begun to act as man and wife are expected to be married. The father can refuse the enticing man his daughter, though he has the right to the dowry. Commentary also says the father of the unbetrothed is all the more justified in rejecting the bold man for marriage from Deuteronomy 22.

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