Rape in a Modern World

What exactly is “rape”? Merriam-Webster defines rape as “unlawful sexual activity . . . carried out forcibly or under threat of injury against a person’s will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, deficiency, intoxication, unconsciousness, or deception.”⁴ According to the legal dictionaries, lack of consent is pivotal to the definition of rape.⁵ In the US legal system, “a freely given agreement to have sexual intercourse or sexual contact” is the expectation for “consent.”⁶ Rape is primarily committed by males,⁷ rape by strangers is less common than rape by people the victim knows, and rape can happen to anyone. Moreover, as informed “consent” is the demarcator of ancient and modern “rape,” the crime is notoriously difficult to prosecute.

Deuteronomic Law and Rape in Israel’s World

In Deut 22:13-29 rape is addressed as a subset of  “laws about marital and sexual misconduct.”⁸ Here five cases, all “populated by characters who act in response to particular situations,” illustrate appropriate legal responses to sexual misconduct.⁹ The core issue is the capital crime of adultery. As is standard for ancient Near Eastern (ANE) law codes, these cases are presented to us as exemplars, and assume that the audience has knowledge of intermediate and analogous cases.¹⁰ First is the case of a new husband accusing his bride of premarital promiscuity, second the case of consensual sex with a married woman, third consensual sex with an engaged virgin, fourth the rape of an engaged virgin, and fifth the seduction or possible rape of an unengaged virgin. The chapter has a clear and succinct structure: verses 13–22 deal with crimes involving a married woman; verses 23–29 involve crimes with an unmarried woman.¹¹

The structure of the larger passage has much to do with the centrality of marriage as an organizing institution in Israel’s traditional and tribal society.¹² Marriage in the ancient world was “essentially . . . an alliance between two families” and the “most important purpose of marriage was to provide legitimate heirs” to the household.¹³ Thus, “the expectation of virginity on the part of a bride” as well as her ongoing sexual fidelity as a wife “was universal in Israel and Mesopotamia.”¹⁴ This is true in part because of the patrilineal nature of ANE society. Offspring must be legitimate heirs of the bêt ʾāb (“father’s house”).¹⁵ Thus, any sexual contact between a married or engaged woman and a man other than her husband or fiancé constituted adultery. As Westbrook states: “Adultery was a complex offense, being at the same time a wrong by the wife against her husband, by the lover against the husband, and by both against the gods.”¹⁶ In Israel, adultery is also named a crime against the community—a crime that defiles its perpetrators, pollutes the land and leads to exile (Lev 18:20, 28–29; Num 5:13).¹⁷ Thus, in Israel adultery, like murder, was a capital crime. Stoning was the prescribed penalty—a penalty that physically communicated public outrage and required each citizen to take responsibility for “purging the evil from among you” (Deut 22:24).¹⁸ In Deut 22:13–29 we are offered several representative cases of sexual misconduct.¹⁹ Verses 13–19 discuss crimes involving a married woman: the accused bride—first innocent and damages due. Verses 20–21 describe the accused bride—guilty and executed by her community. Verse 22 describes a man and woman caught in consensual adultery—both executed by the community. The second section (vv. 23–29), which is our focus, offers parallel scenarios regarding an unmarried woman. Verses 23–24 speak to a consensual tryst with an unmarried woman that results in execution:

If there is a girl who is a virgin engaged to a man, and a man finds her (māṣā’) in the city and lies with her, ²⁴then you shall bring the two of them to the gate of that city and you shall stone them with stones until they are dead; the girl, because she did not cry out in the city, and the man, because he has ʿinnâ²⁰ his neighbor’s wife. Thus you shall purge the evil from your midst. (Deut 22:23–27)²¹

As with current rape law in the US, it seems that our writer is attempting to clarify whether or not this “unlawful sexual activity” was “carried out forcibly or under threat of injury against a person’s will.”²² The Qumran Temple Scroll (11QTa 66:4–5) clarifies that the intent here is not simply city versus countryside, but any “far-away place, hidden from the city”²³—in other words, the question is one of consent and force. Tigay states that Philo, Josephus, and halakhic sources further clarify that any “evidence that there was no one who could have saved her, that she resisted, or that her life was threatened if she resisted, would establish innocence; evidence to the contrary would establish guilt.”²⁴ So why is this woman guilty? Because she apparently did not attempt to stop this crime against her fiancé, her family and her community—she consented. Why is this man guilty? Because he has, according to most translations (ESV, NAS, NIV, NLT, RSV), “violated” his neighbor’s wife.²⁵

But should not this crime here be violating his neighbor, the woman? Not “his neighbor,” her husband? The verb in question here is ʿinnâ,²⁶ often present in descriptions of unlawful sexual conduct (e.g. the rape of Tamar in 2 Sam 13:22), and often translated as “rape.” Ellen Van Wolde’s very thorough semantic study, however, teaches us that the correct meaning here is neither violation nor force, but rather this man has “lowered the social status of his neighbor’s wife.”²⁷ Take as one of many examples Gen 31:50 where Laban demands that Jacob not mistreat his daughters by taking additional wives. Laban’s plea is based on the premise that taking additional wives would ʿinnâ Rachel and Leah.²⁸ Jacob has long since secured Laban’s permission to marry, paid the bride price, and consummated his union with both women—so forced or illicit sex cannot be the issue. But additional wives would indeed lower Rachel and Leah’s social ranking, diminish their power over the household, and cut into their children’s inheritance, thereby lowering their social status. When all the evidence is in, it is apparent that Deut 22:24, assumes that this was a consensual encounter, that the man found the woman and lay with her. He did not force her. The issue at hand is not her violation, but the violation of another family in the community. The mōhar (“bride price”) has been paid; the date has been set; another man is waiting to make this woman his wife. This man and woman have committed a crime against a neighbor and against both families and will pay with their lives.

The pericope now turns to a non-consensual encounter with an unmarried, but engaged woman, vv. 25–27:

²⁵But if in the field the man finds the engaged girl and the man seizes her (ḥāzaq), and the man lies with her, then the man who lay with her shall die, he alone. ²⁶To the girl you shall do nothing; she has committed no capital crime. For just as a man rises up against his neighbor and murders him, so is this case. ²⁷When he found her in the field, the engaged girl cried out, but there was no one to save her.

Note the introduction of a new verb here, ḥāzaq (חזק) “to seize”²⁹—the same collocation used in the rape of Tamar in 2 Sam 13:11–14 and the Levite’s concubine in Judg 19:25 and 29. Within his cultural framework, the biblical author is communicating what contemporary lawmakers would designate “consent.”³⁰ She did not.³¹ And rather than naming her guilty until proven innocent, this Deuteronomic law is declaring the young woman innocent unless proven guilty. Indeed, our ancient legal commentator goes to extreme lengths to clarify that this young woman is in no way culpable; she is the victim of a violent crime.³² Also of interest, this young woman is apparently expected to report the crime. A far cry from most rape cases in my world. These two laws do not cover every potential scenario, but in the words of Gordon McConville they “almost certainly operate together to establish parameters within which wise counsel might prevail.”³³ If this man is guilty, he will be executed. Deuteronomy has no expectation that a young woman should marry her rapist.

The final scenario is a case of seduction requiring damages paid:

²⁸If a man finds (māṣā’)a girl who is a virgin, who is not engaged, and lays hold of her (tāpaś) and lies with her and they are discovered, ²⁹then the man who lay with her shall pay the girl’s father fifty shekels of silver, and she shall be his wife; her whom he ʿinnâ, he can never divorce. (Deut 22:28–29)

The anticipation that the verbs tāpaś, “to seize or ensnare”³⁴ and ʿinnâ, “to lower the social status of”³⁵ do not communicate force is confirmed by a parallel expression of this Deuteronomic law in Exod 22:15–16:

And if a man pātâ a virgin who is not engaged,³⁶ and lies with her, he is required to pay a bride price for her to become his wife. If her father absolutely refuses to give her to him, he shall pay silver equal to the bride price for virgins.

This is a case of seduction, not of rape. Indeed, in this case of the young woman seduced, the Deuteronomic law serves to protect her from the economic and social fallout of the encounter. Her seducer is required to offer the security of the “bride price”and an irrevocable marriage contract.³⁷ The man, who hoped for an “uncomplicated” affair, is now saddled with all the standard responsibilities of marriage, as well as a marriage he cannot abandon if his interest wanes. He who ʿinnâ a virgin in Israel can never divorce. In all of this, the girl’s father retains the right of refusal, and according to the halakha, the girl shares that right.³⁸

In sum, this Deuteronomic law recognizes that the woman’s social status has been violated, but not necessarily her body.³⁹ How do these laws compare with others from the ANE?⁴⁰ There are similar expectations regarding virginity, engagement, and the sanctity of marriage throughout Israel’s world. The societal understanding that a woman’s fertility was a resource of her “father’s household,” to be stewarded and deployed for the benefit of the family, and that sexual access to a woman was the fiduciary responsibility of first her father and then her husband—these are universal as well.⁴¹

But whereas the penalties for violation of these norms in Israel focus upon “purging the evil” from the community, as MAL A §55 colorfully illustrates, the penalties in surrounding societies are much more focused on avenging the diminished honor of the household.⁴² Hence:

If a man seizes and rapes a young girl who is living in her father’s house, […] who is not engaged […] who is not married and against whose father’s house there is no outstanding claim— within the city or in the countryside, or at night whether in the main thoroughfare, or in a granary, or during the city festival—the father of the young girl shall take the wife of the perpetrator . . . and hand her over to be raped; he shall not return her to her husband, but he shall take her; the father shall give his daughter who is the victim of illicit sex into the protection of the household of her perpetrator. If he (the perpetrator) has no wife, the perpetrator shall give a third of silver as the value of the girl to her father; her perpetrator shall marry her; he shall not send her away. If the father does not desire it so, he shall receive a third of silver for the young girl, and he shall give his daughter in marriage to whomever he chooses.⁴³

Here we find that in Mesopotamia, in contrast to Israel, a girl raped was expected to marry her rapist, “slave-concubinage” for the rapist’s wife was a standard penalty for a man’s sexual misconduct, and “revenge-rape” directed at the wife of the perpetrator was a sanctioned penalty for the rape of another household’s daughter or wife.⁴⁴ I am grieved to say that “revenge-rape,”⁴⁵ “honor killings,”⁴⁶ and compelling a woman to marry her rapist in order to expiate the shame she(!) has brought upon the household,⁴⁷ are still prescribed in many traditional societies.The objective of these penalties is to rehabilitate the injured honor of the household in the eyes of their community. In comparison, Deuteronomy shows no interest in the victimization of an innocent party to rehabilitate anyone’s honor. In sum, Deuteronomic law does not approve or advocate “revenge rape” nor does it require a woman to marry her rapist. Deuteronomic law executes the rapist. Rather, in its world Deuteronomy communicates a more humane and dignified treatment of women than surrounding societies do.

Of great interest to me is that the focus of Deuteronomic law in this arena is restoring and maintaining the integrity of the covenant community. “Thus you shall purge/burn the evil from among you.” This phrase is repeated seven times verbatim in the book (Deut 13:6; 17:7; 19:19; 21:21; 22:21, 24; 24:7), ten times if we allow the variation of “from Israel” for “from among you” and “blood” for “evil” (Deut 17:12; 19:13). Here the crime of adultery and rape are seen as contagions, which, if left unchecked, will infect the entire community, and therefore must be eradicated.⁴⁸ Here we engage with a society that believed that sexual misconduct (rape, adultery, and incest) were crimes against God, so serious that they defile the land and lead to exile.⁴⁹ Crimes that, if allowed to continue, would unravel the very fabric of society. I must say that looking around my current world, and the impact of these same crimes on my communities, I would be inclined to agree.

Still many find Deuteronomic law on sex and marriage patriarchal, and therefore unjust. In her important book, The View of Women Found in Deuteronomic Family Law,⁵⁰ Carolyn Pressler concludes, as do many like her, that because biblical law curtails women’s sexual agency in deference to  the cultural norm of male-dominated family structures, these laws are by definition unjust.⁵¹ Pressler claims that because the husband has exclusive rights over his wife’s sexuality, and “the wife has no such reciprocal claim,”⁵² biblical marriage law is another vehicle of a society that “uses” women for the “procreation of legitimate children.”⁵³

The implication here is that because Israelite women lacked sexual agency, the Bible dehumanizes women. And as our modern definitions of rape depend on informed and cognizant consent, what do we do in a world that offers a woman no power to consent?⁵⁴

The first thing we must do is recognize that a great distance lies between this ancient configuration of society and our contemporary, democratic ideal of individual agency. Robert Kawashima offers a particularly insightful discussion in his article “Could a Woman say ‘No’ in Biblical Israel?”⁵⁵ He points out what should be obvious—in biblical Israel it was not the individual that constituted a legal entity, but rather the household. In Israel’s world an individual’s legal status did not derive from an abstract universal notion of personhood but rather from an individual’s particular position within the household. As a result, the Bible betrays little if any awareness of individual human rights. Rather, the mutual obligations, duties, and claims that characterize the kinship circle are the focus. In our world, the individual is variously endowed with power and privilege to act in the individual’s self-interest. This is the definition of “human rights” as articulated in the Universal Declaration of Human Rights, adopted by the United Nations in 1948.⁵⁶ Thus, our definition of “rape” assumes that a woman possesses the right to determine for herself who her sexual partners will be. “Rape” is when that right is taken from her by force or intimidation.

By contrast, in Israel’s world, a woman’s fertility (like a young man’s strength, see Deut 21:18–23) was the curated resource of the bêt ʾāb. And in Israel’s kinship-based, traditional society, it was the patriarch who stood responsible and bereft if that resource was despoiled in some fashion.⁵⁷ This is why Susan Brooks Thistlewait states that “rape” is in most, if not all, of the Hebrew Bible “the theft of sexual property.”⁵⁸ We find this foreign at best, offensive at worst. But to interpret ancient Deuteronomic law correctly, one must reconstruct the legal concepts and principles operating in the society in question. And in Israel, no one in the bêt ʾāb was fully autonomous.⁵⁹ Even the patriarch of the household was required to function within the corporate identity of the extended family. As Kawashima clarifies, “the household itself constituted but a moment in the larger life of the ‘lineage.’”⁶⁰ As a result, the family estate was a “continuous possession” that “linked generation to generation,” and no individual patriarch had to right to dispose of some portion of it for his own benefit.⁶¹ Rather, the land and resources of the bêt ʾāb were corporately owned, belonging to both past and future.⁶²

The point here is that in Israel’s traditional culture, no member of the bêt ʾāb was truly autonomous. Levels of relative autonomy were defined by gender, age, and birth order. And the fact that women were subject to the will of the household was not unique to their gender. As regards a woman’s sexual agency, Kawashima suggests an analogue that helps translate this traditional worldview into our own, that being current legal categories of “minor” versus “major” status.⁶³ In most western legal systems, a minor remains under the protection and control of her guardian until the age of majority, and one aspect of a minor status is that a child cannot legally choose or be chosen as a sexual partner.⁶⁴ As a result, a minor’s “sexual consent” would never hold up in a court of law. Neither would an Israelite woman’s.

So shall we condemn the Deuteronomic law as unjust or abusive because they emerge from a tribal and patriarchal, as opposed to a bureaucratic and democratic, culture? In Kawashima’s words, shall we criticize the past for not being more “modern,” and attempt to “remake it in our own image”?⁶⁵ Or shall we, as McConville encourages, seek first to understand what a Deuteronomic law essentially communicates, second, question our own assumptions, and then question the text?⁶⁶

Proceeding from the latter, what does Deuteronomic law on rape essentially communicate? In Israel, sexual boundaries were understood as the guardrails that kept society from careening off the highway of life into the abyss of delinquency, trauma, and economic ruin. A crime against another family’s daughter or a neighbor’s marriage was a crime against the community. As a result, victims of sexual misconduct were constitutionally protected from the social and economic consequences of assault and seduction. “Walk-away Joes” were required to “man up” as regards the woman they had compromised and the potential children they had created. Rape victims were assumed innocent. Women so abused were expected to report. Convicted rapists were executed. Although there is much more that can and must be said regarding Deut 22:13–29 and its catalogue of case law involving sexual misconduct, as involves rape, allow me to summarize. Here is a legal system that values the well-being of its female citizens, has empowered them with a voice in the courts (be these private or public tribunals), investigates “consent,” and bases its decisions upon civic authority and rational proof.⁶⁷

Footnotes

Then God said, “Let us make humanity [ʾādām] in our image [ṣelem], according to our likeness; so that they may rule [Hebrew rādâ]² over the fish of the sea and over the birds of the heavens and over the livestock and over all the earth and over every creeping thing that creeps on the earth.” (Gen 1:26)

Imago Dei and Environmental Stewardship

God blessed them; and God said to them, “Be fruitful, multiply, and fill the earth so that you may take possession of it [kābaš].⁴ Rule over the fish of the sea and the birds of the heavens and every living thing that moves on the earth.” (Gen 1:28)

When I consider your heavens, the work of your fingers, the moon, and the stars that you have fixed in place. What is humanity that you should remember him? Or the son of ʾādām that you should care for him? You have made them [humanity] a little lower than the angels and crowned them with glory and splendor, You have made them lord [Hebrew māšal]⁶ over the works of your hands, You have placed everything under their feet Flocks and oxen, all of them! Even the wild creatures of the field! The birds of the heavens, and the fish of the sea, whatever passes through the paths of the seas! O Yahweh, our Lord, how majestic is your name in all the earth. (Ps 8:3–9)

Then Yahweh Elohim took the human and put him into the garden of Eden to tend it [lĕʿobdâ]⁹and to guard it [lĕšomrâ].¹⁰

Caring for the Fallen Earth

For I consider that the sufferings of this present time are not worthy to be compared with the glory that is to be revealed to us.¹⁹ For the anxious longing of the creation waits eagerly for the revealing of the sons of God.²⁰ For the creation was subjected to futility, not willingly, but because of Him who subjected it, in hope²¹ that the creation itself also will be set free from its slavery to corruption into the freedom of the glory of the children of God.²² For we know that the whole creation groans and suffers the pains of childbirth together until now.²³ And not only this, but also we ourselves, having the first fruits of the Spirit, even we ourselves groan within ourselves, waiting eagerly for our adoption as sons, the redemption of our body. (Rom 8:18–23 NASB)

Footnotes