Part of the A Gender Study: The Real Lives of Women and Men in the Bible series

Does God Really Command Women to Marry Their Rapists? A Study of Deuteronomic Law

In the never-ending quest for a television program that the entire family can watch without someone winding up with nightmares or an advanced education in human sexuality—my family recently landed upon Downton Abbey.1This paper was first presented on November 21, 2019 at the “Warfare and Violence in the Old Testament: Sexual Violence in the Old Testament and the Church” section of the Evangelical Theological Society in San Diego, CA. Many thanks to Brittany Kim and Ralph Hawkins for their work to create this section and topic, to Gordon Hugenberger for his insistence that I publish, and to Kathy Noftsinger for reading and editing early versions of the piece. A few weeks in, however, we reached season 4, episode 3. In this episode—to our horror—the lovely character we know as Anna is brutally raped by a visiting lord’s valet. The audience is privy only to the original confrontation in which Anna is overpowered by a man she has no physical capacity to combat, beaten into submission, and dragged out of view. We the audience are left behind with an empty screen while her desperate cries echo back at us through the warren of corridors and kitchens below the Abbey. The shocking scene provoked a public outcry when it aired in the UK. Many people felt that a show as typically tame as Downton (which of course was why we were watching it) should not journey down those dark paths. Some would say that in a show like the Bible, we also should not journey down those dark paths—that this topic should be silenced or sanitized out of existence. But if current statistics about sexual assault in our modern world have anything to say,2According to the American Rape and Incest National Network, a woman is sexually assaulted every seventy-three seconds. In America, less than 40% of all rapes are reported to police—less than 10% on the typical college campus. Here in our progressive and bureaucratic culture women are (at least legally) granted sexual agency, but only five in one thousand rapists will ever go to jail and violent, torturous, inconceivable crimes against women are daily fare on our news media. and if my well-worn Law Collections from Mesopotamia & Asia Minor3Martha Roth, Law Collections form Mesopotamia and Asia Minor, 2nd ed. (WAW 6; Atlanta: Scholars Press, 1997). The abbreviations for ANE laws utilized in this paper are standard: LU the Laws of Ur-Namma and/or Shulgi (ca. 2100 BCE); LE the Laws of Eshnunna (ca. 1770 BCE); CH the Code of Hammurabi (c. 1754 BCE); and MAL the Middle Assyrian Laws (11th century). offers any insight, this is a topic that desperately needs to be talked about.

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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.”4Merriam-Webster Dictionary, s.v. “rape,” https://www.merriam-webster.com/dictionary/rape. According to the legal dictionaries, lack of consent is pivotal to the definition of rape.5California Code, Penal Code – PEN § 261 reads as follows: “Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: (1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. (2) Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused.” Here “unconscious of the nature of the act” means “incapable of resisting.” The reasons for being “incapable of resisting” are too numerous to list here, but include fear of retaliation (https://codes.findlaw.com/ca/penal- code/pen-sect-261.html). In the US legal system, “a freely given agreement to have sexual intercourse or sexual contact” is the expectation for “consent.”6Kathleen C. Basile, Sharon G. Smith, Matthew J. Breiding, Michele C. Black, Reshma Mahendra, Sexual Violence Surveillance: Uniform Definitions and Recommended Data Elements, Version 2.0 (Atlanta: National Center for Injury Prevention and Disease Control, 2014), 11, https://www.cdc.gov/violenceprevention/pdf/sv_surveillance_definitionsl-2009-a.pdf). Note that among more radical feminist publications, the concept of “consent” is seen as largely irrelevant, as most sexual acts are understood as acts of coercion: “Rape is only the most dramatic epitome of the inequality of men and women and of the degradation and oppression of women by men” (Igor Primoratz, “Sexual Morality: Is Consent Enough?,” Ethical Theory and Moral Practice, Vol. 4.3 [Sept 2001], 208–9). Rape is primarily committed by males,7“Violence against women,” World Health Organization, https://www.who.int/news-room/fact- sheets/detail/violence-against-women. 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.”8Jeffrey H. Tigay, The JPS Torah Commentary: Deuteronomy (Philadelphia: The Jewish Publication Society, 1996), 204. Here five cases, all “populated by characters who act in response to particular situations” illustrate appropriate legal responses to sexual misconduct.9Caryn Reeder, “Deuteronomy 21.10–14 and/as Wartime Rape,” JSOT 41.3 (2017): 313–36. 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.10Raymond Westbrook, “Adultery in Ancient Near Eastern Law,” RB 97.4 (October 1990), 571. 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.11See Gordon McConville, Deuteronomy (Leister: Apollos/Downers Grove: InterVarsity Press, 2002), 336. Each clause shares the same structure: (1) the legal case is opened with an ʾim or clause; (2) the judgement and penalty are presented; and (3) the judgement is explained (cf. Ellen Van Wolde, “Does ‘innâ Denote Rape? A Semantic Analysis of a Controversial Word,” VT 52.4 [2002]: 528–44). Carolyn Pressler prefers to subdivide the unit into three sections: (1) vv. 13–21, a bride accused; (2) vv. 22–27, adultery involving a married or engaged women; and (3) vv. 28–29 the violation of an unbetrothed girl (The View of Women Found in the Deuteronomic Family Laws [BZAW 216; Berlin: de Gruyter, 1993], 21).

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.12See Carol Meyers, “The Family in Early Israel” Families in Ancient Israel (ed. Leo Perdue, Joseph Blenkinsopp, John J. Collins; Louisville, KY: Westminster John Know Press, 1997), 1–47. 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.13Raymond Westbrook and Bruce Wells, Everyday Law in Biblical Israel (Louisville, KY: Westminster and John Knox Press, 2009), 55–56. 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.”14McConville, Deuteronomy, 339; cf. Westbrook, “Adultery in Ancient Near Eastern Law,” 547–49. 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”).15See Sandra Richter, The Epic of Eden: A Christian Entry into the Old Testament for an accessible introduction to traditional cultures and the Israelite bêt ʾāb ([Downers Grove: InterVarsity Press, 2008], 25-46); cf. See Carol Meyers, Rediscovering Eve: Ancient Israelite Women in Context (New York: Oxford University Press, 2013), 200–201. 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.”16Westbrook and Wells, Everyday Law, 80–81. Although what we would deem adultery on the part of a married man was not litigable unless the woman herself was married, it was still sometimes “censured as immoral” (Westbrook, “Adultery in ANE Law,” 542–80 [543 n. 3]; cf. Raymond Westbrook, “The Enforcement of Morals in Mesopotamian Law,” JAOS 104 [1984]: 753–56). 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).17Westbrook, “Adultery in Ancient Near Eastern Law,” 566–70. 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).18The phrase “purge the evil from your midst” utilizing the verb בער “to burn” is unique to Deuteronomy. It always communicates capital punishment. Offenders so penalized include the false prophet (Deut 13:5), the heretic (Deut 17:7), the one usurping the power of the court (Deut 17:12), the murderer seeking refuge (Deut 19:13), the false witness (Deut 19:19), the promiscuous daughter (Deut 22:21), the adulterer (Deut 22:22, 24), and one guilty of kidnapping (Deut 24:7). In Deut 22:13–29 we are offered several representative cases of sexual misconduct.19McConville, Deuteronomy, 336. 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 ʿinnâ20HALOT, s.v. “ענה II,” piel meaning 2b, “to violate [justice].” his neighbor’s wife. Thus you shall purge the evil from your midst. (Deut 22:23–27)21Unless otherwise indicated, all biblical translations are the author’s own.

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.”22Merriam-Webster Dictionary, s.v. “rape,” https://www.merriam-webster.com/dictionary/rape. 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”2311QTemple Scrolla (11Q19 [11QTa]) 66:4–5; cf. Tigay, Deuteronomy, 207 n. 61 and Johann Maier, The Temple Scroll: An Introduction, Translation, and Commentary (JSOTSup 34; Sheffield: JSOT Press, 1985), 56, 135.—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.”24Tigay, Deuteronomy, 207; cf. Philo, Spec. 3:77–78; Josephus, Ant. 4.252; Sifrei 243; Ramban to v. 22; Maimonides, Hilkhot Na’arah Betulah 1:2. 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.25One reason for the distinction between male and female sex crimes in ancient Near Eastern law was the polygamous nature of marriage. In the ANE although a husband had exclusive rights to his wife, a wife shared her husband with other wives (Westbrook and Wells, Everyday Law, 56).

But should not this crime here be violating his neighbor, the woman? Not “his neighbor,” her husband? The verb in question here is ʿinnâ,26HALOT, s.v. “ענה II,” piel meaning 2b, “to violate [justice].” 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.”27ʿinnâ: “to treat someone improperly in a way that degrades or disgraces them by disregarding the proper treatment due people in each status” (Van Wolde, “Does ‘innâ Denote Rape?,” 536; cf. Tikva Frymer-Kensky, “Virginity in the Hebrew Bible” in Gender and Law in the Hebrew Bible and the Ancient Near East [ed. Victor H. Matthews, Bernard M. Levinson and Tikva Frymer-Kensky; JSOTSup 242; Sheffield: Sheffield Academic, 1998], 87; Harold C. Washington, ‘”Lest He Die in the Battle and Another Man Take Her’: Violence and the Construction of Gender in the Laws of Deuteronomy 20–22,” in Matthews, Levinson and Frymer-Kensky, Gender and Law in the Hebrew Bible, 208). 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.28Van Wolde, “Does ‘innâ Denote Rape?” 533–34. Cf. Moshe Weinfeld, Deuteronomy and the Deuteronomic School (New York: Oxford University Press, 1972), 286; Lyn M. Bechtel, “What If Dinah Is Not Raped (Genesis 34)?,” JSOT 62 (1994): 19–36, especially pp. 25–27; and Pressler, View of Women, 14, 38 n. 48. As Pressler points out, 22:24 reports that the man who has had consensual intercourse with a betrothed woman is still reported to have ʿinnâ the wife of his neighbor—obviously not a forced encounter. 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”;29HALOT, s.v. “חזק” hiphil with ְב . Similarly, in MAL A §55 ṣabātum is utilized for a forced sexual encounter “to seize, overcome a person” (CAD 16, s.v. “ṣabātu”). 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“This law is notable in the distinction it makes between consensual and nonconsensual sex; nowhere else in the Bible is the woman’s lack of consent a mitigating factor in her guilt” (Adele Berlin, “Sex and the Single Girl in Deuteronomy 22” in Mishneh Todah: Studies in Deuteronomy and Its Cultural Environment in Honor of Jeffrey H. Tigay [ed. Nili Sacher Fox, David A. Glatt-Gilad, and Michael J. Williams; Winona Lake: Eisenbrauns, 2008], 18). Joann Scurlock states that “in the parallel laws from other ancient Near Eastern societies, the question of the girl’s resistance seems similarly unimportant” (“But Was She Raped? A Verdict Through Comparison,” Journal of Gender Studies in Antiquity 4.1 [2003]: 75). She did not.31LU §6, LE §26 and CH §130 repeat the essential aspects of this law. MAL §12 affirms that a married woman forced into a sexual encounter is equally innocent as long as she resists: “she shall not consent but she shall [resist] . . . they shall kill the man; there is no punishment for the woman” (Roth, Law Collections, 17, 63, 106, 157–58). HL §197 offers a close parallel: “If a man seizes a woman in the mountains (and rapes her), it is the man’s offense, but if he seizes her in her house, it is the woman’s offense: the woman shall die.” But unlike Deuteronomy, “If the woman’s husband discovers them in the act, he may kill them without committing a crime” (Roth, Law Collections, 237; cf. Westbrook, “Adultery in Ancient Near Eastern Law,” 571). 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.32Five clauses clarify the young woman’s innocence: (1) the man alone will die; (2) to the girl you shall do nothing; (3) she has committed no capital crime; (4) for just as a man commits murder (רצח) so is this case; (5) when the girl cried out there was no one to save her (cf. Pressler, View of Women, 33 n. 33). 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.”33McConville, Deuteronomy, 343. 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”34HALOT, s.v. “תפשׂ,”“to lay hold of, seize.” תפשׂ may be utilized with things (musicians “lay hold” of their instruments [Gen 4:21]) or people (Saul attempts to “lay hold” of David to arrest him [1 Sam 23:26]) or even abstractly as wicked schemes might “lay hold” of their designer (Ps 10:2). and ʿinnâ, “to lower the social status of”35See the discussion above. “The widespread opinion that the verb ’innâ in the Pi’el refers to ‘rape’ or ‘sexual abuse’ is not acceptable” (Van Wolde, “Does ‘innâ Denote Rape?” 543). 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,36Tigay holds that ʾ ʾōraśâ communicates a girl who has never been engaged and therefore a father who has never received a mōhar (Deuteronomy, 208; cf. Pressler, View of Women, 33–34). 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.37As Allen Guenther states, “Marriage was as much a distribution of wealth as it was an instrument of personal and political alliances. All the parties stood to benefit from astutely and strategically arranged marriages” (Allen Guenther, A Typology of Israelite Marriage: Kinship, Socio-Economic, and Religious Factors,” JSOT 29 [June 2005]: 387–407 [388]). Hugenberger entertains the possibility that the sum was named in part to protect an impassioned suitor (and therefore seducer) from extortion (Marriage, 254). 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.38Tigay, Deuteronomy, 208.

In sum, this Deuteronomic law recognizes that the woman’s social status has been violated, but not necessarily her body.39Joann Scurlock’s detailed discussion of a similar scenario in Mesopotamian law suggests that this legal “loophole” allowed “true love” to conquer arranged marriage—a couple in love might overcome a father-in-law’s resistance to the union by forcing the issue (“But Was She Raped? 61–103). How do these laws compare with others from the ANE?40See Westbrook for the “scientific tradition” common to these ANE codes of law, in which long lists of interrelated cases are compiled to illustrate the array of legal variables involved in a particular infraction. According to Westbrook, only a “fraction of their discussion” was preserved in written form, but when properly compiled and compared they yield the “underlying law” that connects the whole (“Adultery in Ancient Near Eastern Law,” 547–49, 556). 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.41Meyers, “Family in Early Israel,” 27–35.

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.42This practice is well represented in surrounding law codes (e.g. MAL A §55), and continues in traditional cultures today (Pernilla Ouis “Honourable Traditions? Honour, Violence, Early Marriage and Sexual Abuse of Teenage Girls in Lebanon, the Occupied Palestinian Territories and Yemen,” International Journal of Children’s Rights 17 [2009], 467) 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.43Author’s translation (cf. Roth, Law Collections, 174–75; Scurlock, “But Was She Raped? 90, n. 118).

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.44See Joann Scurlock’s encyclopedic collection of rape and seduction laws in Mesopotamian law in “But Was She Raped?”, 61–103. Note as well MAL §20 in which a man guilty of sodomy is first raped, and then castrated for his crime. I am grieved to say that “revenge-rape,”45In Pakistan revenge rape is often utilized to end a feud or “even a score” (Parveen Azam Ali and Maria Irma Bustamante Gavino, “Violence against Women in Pakistan: A Framework for Analysis,” The Journal of the Pakistan Medical Association 58.4: 198–203 [https://jpma.org.pk/]). See as well, Asma Afsaruddin, Hermeneutics and Honor: Negotiating Female “Public” Space in Islamic/ate Societies (Cambridge, MA: Harvard University Press, 1999). Cf. Diaa Hadid, “Tribal Council Orders ‘Revenge Rape’ In Pakistan,” NPR https://www.npr.org/sections/goatsandsoda/2017/07/27/539765693/tribal-council-orders-revenge-rape-in- pakistan. “honor killings,”46Avraham Faust and Avi Shveka’s recent article “Premarital Sex in Biblical Law: A Cross-Cultural Perspective” marshals an array of ethnographic data from the Mediterranean basin illustrating the ongoing preponderance of “honor killings” in our contemporary world (VT [2020]: 1–24). Quoting Pernilla Ouis, the authors state: “’If a girl becomes a victim of sexual abuse and perhaps gets pregnant, she can be . . . killed in the name of honour’” (Faust and Shveksa, “Premarital Sex,” 14; cf. Ouis, “Honourable Traditions?” 445–74). In contrast, Berlin notes that in Israel punitive action within family law was “carried out by the residents of the town. Deuteronomy does not permit ‘honor killings’ by members of the woman’s family” (“Sex and the Single Girl,” 10). In contrast, the 2000 UN report clarifies that “As many as 5,000 women and girls are killed annually in so-called ‘honour killings’” (Nafis Sadik, The State of World Population 2000, Lives Together, Worlds Apart: Men and Women in a Time of Change, United Nations Population Fund, 2000, https://www.unfpa.org/sites/default/files/pub-pdf/swp2000_eng.pdf. See Afsaruddin, Hermeneutics and Honor. and compelling a woman to marry her rapist in order to expiate the shame she(!) has brought upon the household,47As Ouis demonstrates, in many traditional societies, even as late as the 20th century, it was common to cancel the punishment of the rapist if he married his victim (Shveka and Faust, “Premarital Sex,” 18; cf. Ouis, “Honourable Traditions?” 456–57). “What is important is the family’s honor, and if marriage can hide the shame, the family will opt for marriage. If not, the girl will be killed” (Shveka and Faust, “Premarital Sex” 19). Unfortunately, due to their lack of attention to semantic and linguistic detail Shveka and Faust render Deut 22:28–29 as a case of rape instead of one of seduction. 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.

Of great interest to me, is the fact 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.48As Tamar says to her brother, Amnon as he presses her for sex: “No, my brother, do not humiliate me [ʿinnâ], for such a thing is not done in Israel; do not do this disgraceful thing!” (2 Sam 13:12). 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.49E.g., Lev 18:1–23 and Lev 20:10–22, “so that the land to which I am bringing you to dwell will not spew [קיא] you out!”; and Deut 5:33 and 32:47 “that you may live long in the land!” 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,50Pressler, The View of Women; cf. C. Pressler, “Sexual Violence and Deuteronomic Law” in A Feminist Companion to Exodus to Deuteronomy (ed. Athalya Brenner; Sheffield: Sheffield Academic, 1994), 102–12. 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.51The bibliography on women’s well-being, empowerment, and autonomy is enormous. For an interesting introduction to the topic focused on the living communities of India (largely a tribal society) see Nripendra Kishre Mishra and Tulika Tripathi, “Conceptualising Women’s Agency, Autonomy and Empowerment,” Economic and Political Weekly 46, no. 11 (2011): 58–65. Pressler claims that because the husband has exclusive rights over his wife’s sexuality, and “the wife has no such reciprocal claim,”52Pressler, View of Women, 42–43. biblical marriage law is another vehicle of a society that “uses” women for the “procreation of legitimate children.”53Reeder, “Deuteronomy 21.10-14 and/as Wartime Rape,” 322.

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?54See Tikva Frymer-Kensky’s discussion of Genesis 34 in Reading the Women of the Bible (New York: Sehoeken Books, 2002), 179–83; and Pressler’s discussion of “rape” in Deuteronomic law versus “contemporary American legislation,” in View of Women, 37 n. 46; and Pressler, “Sexual Violence and Deuteronomic Law,” 102–12.

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?”55Robert S. Kawashima, “Could a Woman Say ‘No’ in Biblical Israel? The Genealogy of Legal Status in Biblical Law and Literature,” AJS Review 35:1 (April 2011), 1–22. 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 1948.56https://www.un.org/en/universal-declaration-human-rights/. See Kawashima, “Could a Woman Say ‘No’?” 5–6; cf. Alain Badiou, Ethics: An Essay on the Understanding of Evil (New York: Verso, 2001), 4–17. 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.57Islam continues to have a similar conversation in which current views of individual human rights crash into Qur’anic religion (particularly Qur’an 4:34). See Ziba Mir-Hosseinii, “Muslim Legal Tradition and the Challenge of Gender Equality,” in Men in Charge: Rethinking Authority in Muslim Legal Tradition (ed. Ziba Mir-Hosseini, Mulki Al-Sharmani, and Jana Rumminger; London: Oneworld, 2015), 13–43. This is why Susan Brooks Thistlewait states that “rape” is in most, if not all, of the Hebrew Bible “the theft of sexual property.”58Susan Brooks Thistlewaite, “‘You May Enjoy the Spoil of Your Enemies’: Rape as a Biblical Metaphor for War,” Semeia 61 (1993): 62. 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.59Autonomy may be defined as: “a person (in this case a woman) is autonomous when his/her behavior is experienced as willingly enacted and when the individual endorses the action in which he/she is engaged” (Nripendra Kishore Mishra and Tulika Tripathi, “Conceptualising Women’s Agency, Autonomy and Empowerment,Economic and Political Weekly 46.11 [March 12–18, 2011]: 60). Cf. Srilatha Batliwala, “The Meaning of Women’s Empowerment: New Concepts from Action,” in Population Policies Reconsidered: Health, Empowerment and Rights (ed. G. Sen, A Germain, and L С Chen; Cambridge: Harvard University Press, 1994). 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.’”60Kawashima, “Could a Woman Say ‘No’?,” 7. Among the many reference works on this topic, see Meyers, “Family in Early Israel,” 19 and Philip J. King and Lawrence Stager, Life in Biblical Israel (Westminster John Knox Press, 2002), 36–57. 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.61Kawashima, “Could a Woman Say ‘No’?,” 7. Rather, the land and resources of the bêt ʾāb were corporately owned, belonging to both past and future.62The inalienable land law of Lev 25:23–28 is illustrative. An individual patriarch does not have the right (or the agency) to sell off the patrimony of the clan. The patrimony forever belongs to the larger kinship circle and even the most legally authoritative member of the household, the pater familias, is not autonomous.

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.63Kawashima, “Could a Woman Say ‘No’?,” 18. 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“The age of majority is the legally defined age at which a person is considered an adult, with all the attendant rights and responsibilities of adulthood. The age of majority is defined by state laws, which vary by state, but is 18 in most states. Rights acquired upon reaching the age of majority include the rights to vote and consent to marriage, among others” (https://definitions.uslegal.com/a/age-of-majority/). “Statutory rape” refers to sexual relations with someone below the “age of consent.” “People who are underage cannot legally consent to having sex, so any form of sexual activity with them violates the law. This is true even in situations where they signal their agreement” (https://criminal.findlaw.com/criminal-charges/statutory-rape.html). 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”?65Kawashima, “Could a Woman Say ‘No’?,” 23. 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?66McConville, Deuteronomy, 344.

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.67See Mishra and Tripathi, “Conceptualising Women’s Agency” for definitions of these categories of well-being, empowerment, and agency. Examples of non-rational proof in the ANE include the judicial oath and infamous “River Ordeal” of Mesopotamia found in LU §13–14; CH §2, 132; MAL A §17, 22, 24–25 among others (Roth, Law Collections, 18, 81, 106, 159, 160, 161–63).

End Notes

1. This paper was first presented on November 21, 2019 at the “Warfare and Violence in the Old Testament: Sexual Violence in the Old Testament and the Church” section of the Evangelical Theological Society in San Diego, CA. Many thanks to Brittany Kim and Ralph Hawkins for their work to create this section and topic, to Gordon Hugenberger for his insistence that I publish, and to Kathy Noftsinger for reading and editing early versions of the piece.

2. According to the American Rape and Incest National Network, a woman is sexually assaulted every seventy-three seconds. In America, less than 40% of all rapes are reported to police—less than 10% on the typical college campus. Here in our progressive and bureaucratic culture women are (at least legally) granted sexual agency, but only five in one thousand rapists will ever go to jail and violent, torturous, inconceivable crimes against women are daily fare on our news media.

3. Martha Roth, Law Collections form Mesopotamia and Asia Minor, 2nd ed. (WAW 6; Atlanta: Scholars Press, 1997). The abbreviations for ANE laws utilized in this paper are standard: LU the Laws of Ur-Namma and/or Shulgi (ca. 2100 BCE); LE the Laws of Eshnunna (ca. 1770 BCE); CH the Code of Hammurabi (c. 1754 BCE); and MAL the Middle Assyrian Laws (11th century).

4. Merriam-Webster Dictionary, s.v. “rape,” https://www.merriam-webster.com/dictionary/rape.

5. California Code, Penal Code – PEN § 261 reads as follows: “Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: (1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. (2) Where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. (3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused.” Here “unconscious of the nature of the act” means “incapable of resisting.” The reasons for being “incapable of resisting” are too numerous to list here, but include fear of retaliation (https://codes.findlaw.com/ca/penal- code/pen-sect-261.html).

6. Kathleen C. Basile, Sharon G. Smith, Matthew J. Breiding, Michele C. Black, Reshma Mahendra, Sexual Violence Surveillance: Uniform Definitions and Recommended Data Elements, Version 2.0 (Atlanta: National Center for Injury Prevention and Disease Control, 2014), 11, https://www.cdc.gov/violenceprevention/pdf/sv_surveillance_definitionsl-2009-a.pdf). Note that among more radical feminist publications, the concept of “consent” is seen as largely irrelevant, as most sexual acts are understood as acts of coercion: “Rape is only the most dramatic epitome of the inequality of men and women and of the degradation and oppression of women by men” (Igor Primoratz, “Sexual Morality: Is Consent Enough?,” Ethical Theory and Moral Practice, Vol. 4.3 [Sept 2001], 208–9).

7. “Violence against women,” World Health Organization, https://www.who.int/news-room/fact- sheets/detail/violence-against-women.

8. Jeffrey H. Tigay, The JPS Torah Commentary: Deuteronomy (Philadelphia: The Jewish Publication Society, 1996), 204.

9. Caryn Reeder, “Deuteronomy 21.10–14 and/as Wartime Rape,” JSOT 41.3 (2017): 313–36.

10. Raymond Westbrook, “Adultery in Ancient Near Eastern Law,” RB 97.4 (October 1990), 571.

11. See Gordon McConville, Deuteronomy (Leister: Apollos/Downers Grove: InterVarsity Press, 2002), 336. Each clause shares the same structure: (1) the legal case is opened with an ʾim or clause; (2) the judgement and penalty are presented; and (3) the judgement is explained (cf. Ellen Van Wolde, “Does ‘innâ Denote Rape? A Semantic Analysis of a Controversial Word,” VT 52.4 [2002]: 528–44). Carolyn Pressler prefers to subdivide the unit into three sections: (1) vv. 13–21, a bride accused; (2) vv. 22–27, adultery involving a married or engaged women; and (3) vv. 28–29 the violation of an unbetrothed girl (The View of Women Found in the Deuteronomic Family Laws [BZAW 216; Berlin: de Gruyter, 1993], 21).

12. See Carol Meyers, “The Family in Early Israel” Families in Ancient Israel (ed. Leo Perdue, Joseph Blenkinsopp, John J. Collins; Louisville, KY: Westminster John Know Press, 1997), 1–47.

13. Raymond Westbrook and Bruce Wells, Everyday Law in Biblical Israel (Louisville, KY: Westminster and John Knox Press, 2009), 55–56.

14. McConville, Deuteronomy, 339; cf. Westbrook, “Adultery in Ancient Near Eastern Law,” 547–49.

15. See Sandra Richter, The Epic of Eden: A Christian Entry into the Old Testament for an accessible introduction to traditional cultures and the Israelite bêt ʾāb ([Downers Grove: InterVarsity Press, 2008], 25-46); cf. See Carol Meyers, Rediscovering Eve: Ancient Israelite Women in Context (New York: Oxford University Press, 2013), 200–201.

16. Westbrook and Wells, Everyday Law, 80–81. Although what we would deem adultery on the part of a married man was not litigable unless the woman herself was married, it was still sometimes “censured as immoral” (Westbrook, “Adultery in ANE Law,” 542–80 [543 n. 3]; cf. Raymond Westbrook, “The Enforcement of Morals in Mesopotamian Law,” JAOS 104 [1984]: 753–56).

17. Westbrook, “Adultery in Ancient Near Eastern Law,” 566–70.

18. The phrase “purge the evil from your midst” utilizing the verb בער “to burn” is unique to Deuteronomy. It always communicates capital punishment. Offenders so penalized include the false prophet (Deut 13:5), the heretic (Deut 17:7), the one usurping the power of the court (Deut 17:12), the murderer seeking refuge (Deut 19:13), the false witness (Deut 19:19), the promiscuous daughter (Deut 22:21), the adulterer (Deut 22:22, 24), and one guilty of kidnapping (Deut 24:7).

19. McConville, Deuteronomy, 336.

20. HALOT, s.v. “ענה II,” piel meaning 2b, “to violate [justice].”

21. Unless otherwise indicated, all biblical translations are the author’s own.

22. Merriam-Webster Dictionary, s.v. “rape,” https://www.merriam-webster.com/dictionary/rape.

23. 11QTemple Scrolla (11Q19 [11QTa]) 66:4–5; cf. Tigay, Deuteronomy, 207 n. 61 and Johann Maier, The Temple Scroll: An Introduction, Translation, and Commentary (JSOTSup 34; Sheffield: JSOT Press, 1985), 56, 135.

24. Tigay, Deuteronomy, 207; cf. Philo, Spec. 3:77–78; Josephus, Ant. 4.252; Sifrei 243; Ramban to v. 22; Maimonides, Hilkhot Na’arah Betulah 1:2.

25. One reason for the distinction between male and female sex crimes in ancient Near Eastern law was the polygamous nature of marriage. In the ANE although a husband had exclusive rights to his wife, a wife shared her husband with other wives (Westbrook and Wells, Everyday Law, 56).

26. HALOT, s.v. “ענה II,” piel meaning 2b, “to violate [justice].”

27. ʿinnâ: “to treat someone improperly in a way that degrades or disgraces them by disregarding the proper treatment due people in each status” (Van Wolde, “Does ‘innâ Denote Rape?,” 536; cf. Tikva Frymer-Kensky, “Virginity in the Hebrew Bible” in Gender and Law in the Hebrew Bible and the Ancient Near East [ed. Victor H. Matthews, Bernard M. Levinson and Tikva Frymer-Kensky; JSOTSup 242; Sheffield: Sheffield Academic, 1998], 87; Harold C. Washington, ‘”Lest He Die in the Battle and Another Man Take Her’: Violence and the Construction of Gender in the Laws of Deuteronomy 20–22,” in Matthews, Levinson and Frymer-Kensky, Gender and Law in the Hebrew Bible, 208).

28. Van Wolde, “Does ‘innâ Denote Rape?” 533–34. Cf. Moshe Weinfeld, Deuteronomy and the Deuteronomic School (New York: Oxford University Press, 1972), 286; Lyn M. Bechtel, “What If Dinah Is Not Raped (Genesis 34)?,” JSOT 62 (1994): 19–36, especially pp. 25–27; and Pressler, View of Women, 14, 38 n. 48. As Pressler points out, 22:24 reports that the man who has had consensual intercourse with a betrothed woman is still reported to have ʿinnâ the wife of his neighbor—obviously not a forced encounter.

29. HALOT, s.v. “חזק” hiphil with ְב . Similarly, in MAL A §55 ṣabātum is utilized for a forced sexual encounter “to seize, overcome a person” (CAD 16, s.v. “ṣabātu”).

30. “This law is notable in the distinction it makes between consensual and nonconsensual sex; nowhere else in the Bible is the woman’s lack of consent a mitigating factor in her guilt” (Adele Berlin, “Sex and the Single Girl in Deuteronomy 22” in Mishneh Todah: Studies in Deuteronomy and Its Cultural Environment in Honor of Jeffrey H. Tigay [ed. Nili Sacher Fox, David A. Glatt-Gilad, and Michael J. Williams; Winona Lake: Eisenbrauns, 2008], 18). Joann Scurlock states that “in the parallel laws from other ancient Near Eastern societies, the question of the girl’s resistance seems similarly unimportant” (“But Was She Raped? A Verdict Through Comparison,” Journal of Gender Studies in Antiquity 4.1 [2003]: 75).

31. LU §6, LE §26 and CH §130 repeat the essential aspects of this law. MAL §12 affirms that a married woman forced into a sexual encounter is equally innocent as long as she resists: “she shall not consent but she shall [resist] . . . they shall kill the man; there is no punishment for the woman” (Roth, Law Collections, 17, 63, 106, 157–58). HL §197 offers a close parallel: “If a man seizes a woman in the mountains (and rapes her), it is the man’s offense, but if he seizes her in her house, it is the woman’s offense: the woman shall die.” But unlike Deuteronomy, “If the woman’s husband discovers them in the act, he may kill them without committing a crime” (Roth, Law Collections, 237; cf. Westbrook, “Adultery in Ancient Near Eastern Law,” 571).

32. Five clauses clarify the young woman’s innocence: (1) the man alone will die; (2) to the girl you shall do nothing; (3) she has committed no capital crime; (4) for just as a man commits murder (רצח) so is this case; (5) when the girl cried out there was no one to save her (cf. Pressler, View of Women, 33 n. 33).

33. McConville, Deuteronomy, 343.

34. HALOT, s.v. “תפשׂ,”“to lay hold of, seize.” תפשׂ may be utilized with things (musicians “lay hold” of their instruments [Gen 4:21]) or people (Saul attempts to “lay hold” of David to arrest him [1 Sam 23:26]) or even abstractly as wicked schemes might “lay hold” of their designer (Ps 10:2).

35. See the discussion above. “The widespread opinion that the verb ’innâ in the Pi’el refers to ‘rape’ or ‘sexual abuse’ is not acceptable” (Van Wolde, “Does ‘innâ Denote Rape?” 543).

36. Tigay holds that ʾ ʾōraśâ communicates a girl who has never been engaged and therefore a father who has never received a mōhar (Deuteronomy, 208; cf. Pressler, View of Women, 33–34).

37. As Allen Guenther states, “Marriage was as much a distribution of wealth as it was an instrument of personal and political alliances. All the parties stood to benefit from astutely and strategically arranged marriages” (Allen Guenther, A Typology of Israelite Marriage: Kinship, Socio-Economic, and Religious Factors,” JSOT 29 [June 2005]: 387–407 [388]). Hugenberger entertains the possibility that the sum was named in part to protect an impassioned suitor (and therefore seducer) from extortion (Marriage, 254).

38. Tigay, Deuteronomy, 208.

39. Joann Scurlock’s detailed discussion of a similar scenario in Mesopotamian law suggests that this legal “loophole” allowed “true love” to conquer arranged marriage—a couple in love might overcome a father-in-law’s resistance to the union by forcing the issue (“But Was She Raped? 61–103).

40. See Westbrook for the “scientific tradition” common to these ANE codes of law, in which long lists of interrelated cases are compiled to illustrate the array of legal variables involved in a particular infraction. According to Westbrook, only a “fraction of their discussion” was preserved in written form, but when properly compiled and compared they yield the “underlying law” that connects the whole (“Adultery in Ancient Near Eastern Law,” 547–49, 556).

41. Meyers, “Family in Early Israel,” 27–35.

42. This practice is well represented in surrounding law codes (e.g. MAL A §55), and continues in traditional cultures today (Pernilla Ouis “Honourable Traditions? Honour, Violence, Early Marriage and Sexual Abuse of Teenage Girls in Lebanon, the Occupied Palestinian Territories and Yemen,” International Journal of Children’s Rights 17 [2009], 467)

43. Author’s translation (cf. Roth, Law Collections, 174–75; Scurlock, “But Was She Raped? 90, n. 118).

44. See Joann Scurlock’s encyclopedic collection of rape and seduction laws in Mesopotamian law in “But Was She Raped?”, 61–103. Note as well MAL §20 in which a man guilty of sodomy is first raped, and then castrated for his crime.

45. In Pakistan revenge rape is often utilized to end a feud or “even a score” (Parveen Azam Ali and Maria Irma Bustamante Gavino, “Violence against Women in Pakistan: A Framework for Analysis,” The Journal of the Pakistan Medical Association 58.4: 198–203 [https://jpma.org.pk/]). See as well, Asma Afsaruddin, Hermeneutics and Honor: Negotiating Female “Public” Space in Islamic/ate Societies (Cambridge, MA: Harvard University Press, 1999). Cf. Diaa Hadid, “Tribal Council Orders ‘Revenge Rape’ In Pakistan,” NPR https://www.npr.org/sections/goatsandsoda/2017/07/27/539765693/tribal-council-orders-revenge-rape-in- pakistan.

46. Avraham Faust and Avi Shveka’s recent article “Premarital Sex in Biblical Law: A Cross-Cultural Perspective” marshals an array of ethnographic data from the Mediterranean basin illustrating the ongoing preponderance of “honor killings” in our contemporary world (VT [2020]: 1–24). Quoting Pernilla Ouis, the authors state: “’If a girl becomes a victim of sexual abuse and perhaps gets pregnant, she can be . . . killed in the name of honour’” (Faust and Shveksa, “Premarital Sex,” 14; cf. Ouis, “Honourable Traditions?” 445–74). In contrast, Berlin notes that in Israel punitive action within family law was “carried out by the residents of the town. Deuteronomy does not permit ‘honor killings’ by members of the woman’s family” (“Sex and the Single Girl,” 10). In contrast, the 2000 UN report clarifies that “As many as 5,000 women and girls are killed annually in so-called ‘honour killings’” (Nafis Sadik, The State of World Population 2000, Lives Together, Worlds Apart: Men and Women in a Time of Change, United Nations Population Fund, 2000, https://www.unfpa.org/sites/default/files/pub-pdf/swp2000_eng.pdf. See Afsaruddin, Hermeneutics and Honor.

47. As Ouis demonstrates, in many traditional societies, even as late as the 20th century, it was common to cancel the punishment of the rapist if he married his victim (Shveka and Faust, “Premarital Sex,” 18; cf. Ouis, “Honourable Traditions?” 456–57). “What is important is the family’s honor, and if marriage can hide the shame, the family will opt for marriage. If not, the girl will be killed” (Shveka and Faust, “Premarital Sex” 19). Unfortunately, due to their lack of attention to semantic and linguistic detail Shveka and Faust render Deut 22:28–29 as a case of rape instead of one of seduction.

48. As Tamar says to her brother, Amnon as he presses her for sex: “No, my brother, do not humiliate me [ʿinnâ], for such a thing is not done in Israel; do not do this disgraceful thing!” (2 Sam 13:12).

49. E.g., Lev 18:1–23 and Lev 20:10–22, “so that the land to which I am bringing you to dwell will not spew [קיא] you out!”; and Deut 5:33 and 32:47 “that you may live long in the land!”

50. Pressler, The View of Women; cf. C. Pressler, “Sexual Violence and Deuteronomic Law” in A Feminist Companion to Exodus to Deuteronomy (ed. Athalya Brenner; Sheffield: Sheffield Academic, 1994), 102–12.

51. The bibliography on women’s well-being, empowerment, and autonomy is enormous. For an interesting introduction to the topic focused on the living communities of India (largely a tribal society) see Nripendra Kishre Mishra and Tulika Tripathi, “Conceptualising Women’s Agency, Autonomy and Empowerment,” Economic and Political Weekly 46, no. 11 (2011): 58–65.

52. Pressler, View of Women, 42–43.

53. Reeder, “Deuteronomy 21.10-14 and/as Wartime Rape,” 322.

54. See Tikva Frymer-Kensky’s discussion of Genesis 34 in Reading the Women of the Bible (New York: Sehoeken Books, 2002), 179–83; and Pressler’s discussion of “rape” in Deuteronomic law versus “contemporary American legislation,” in View of Women, 37 n. 46; and Pressler, “Sexual Violence and Deuteronomic Law,” 102–12.

55. Robert S. Kawashima, “Could a Woman Say ‘No’ in Biblical Israel? The Genealogy of Legal Status in Biblical Law and Literature,” AJS Review 35:1 (April 2011), 1–22.

56. https://www.un.org/en/universal-declaration-human-rights/. See Kawashima, “Could a Woman Say ‘No’?” 5–6; cf. Alain Badiou, Ethics: An Essay on the Understanding of Evil (New York: Verso, 2001), 4–17.

57. Islam continues to have a similar conversation in which current views of individual human rights crash into Qur’anic religion (particularly Qur’an 4:34). See Ziba Mir-Hosseinii, “Muslim Legal Tradition and the Challenge of Gender Equality,” in Men in Charge: Rethinking Authority in Muslim Legal Tradition (ed. Ziba Mir-Hosseini, Mulki Al-Sharmani, and Jana Rumminger; London: Oneworld, 2015), 13–43.

58. Susan Brooks Thistlewaite, “‘You May Enjoy the Spoil of Your Enemies’: Rape as a Biblical Metaphor for War,” Semeia 61 (1993): 62.

59. Autonomy may be defined as: “a person (in this case a woman) is autonomous when his/her behavior is experienced as willingly enacted and when the individual endorses the action in which he/she is engaged” (Nripendra Kishore Mishra and Tulika Tripathi, “Conceptualising Women’s Agency, Autonomy and Empowerment,Economic and Political Weekly 46.11 [March 12–18, 2011]: 60). Cf. Srilatha Batliwala, “The Meaning of Women’s Empowerment: New Concepts from Action,” in Population Policies Reconsidered: Health, Empowerment and Rights (ed. G. Sen, A Germain, and L С Chen; Cambridge: Harvard University Press, 1994).

60. Kawashima, “Could a Woman Say ‘No’?,” 7. Among the many reference works on this topic, see Meyers, “Family in Early Israel,” 19 and Philip J. King and Lawrence Stager, Life in Biblical Israel (Westminster John Knox Press, 2002), 36–57.

61. Kawashima, “Could a Woman Say ‘No’?,” 7.

62. The inalienable land law of Lev 25:23–28 is illustrative. An individual patriarch does not have the right (or the agency) to sell off the patrimony of the clan. The patrimony forever belongs to the larger kinship circle and even the most legally authoritative member of the household, the pater familias, is not autonomous.

63. Kawashima, “Could a Woman Say ‘No’?,” 18.

64. “The age of majority is the legally defined age at which a person is considered an adult, with all the attendant rights and responsibilities of adulthood. The age of majority is defined by state laws, which vary by state, but is 18 in most states. Rights acquired upon reaching the age of majority include the rights to vote and consent to marriage, among others” (https://definitions.uslegal.com/a/age-of-majority/). “Statutory rape” refers to sexual relations with someone below the “age of consent.” “People who are underage cannot legally consent to having sex, so any form of sexual activity with them violates the law. This is true even in situations where they signal their agreement” (https://criminal.findlaw.com/criminal-charges/statutory-rape.html).

65. Kawashima, “Could a Woman Say ‘No’?,” 23.

66. McConville, Deuteronomy, 344.

67. See Mishra and Tripathi, “Conceptualising Women’s Agency” for definitions of these categories of well-being, empowerment, and agency. Examples of non-rational proof in the ANE include the judicial oath and infamous “River Ordeal” of Mesopotamia found in LU §13–14; CH §2, 132; MAL A §17, 22, 24–25 among others (Roth, Law Collections, 18, 81, 106, 159, 160, 161–63).

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