A Passage (not) About Rape

In the last several years I have shifted the focal point of my studies from broadly theological (including, but not limited to, Biblical studies), to specifically philosophical (through the avenue of philosophical theology). However, recently I was treated to a somewhat nostalgic experience: being called upon to act as an apologist for scripture. Although it is somewhat unfortunate that the question caught me unprepared, it did catalyze my interest in looking at the passage more carefully. In the end I found the problem to evaporate entirely upon closer inspection (as I have learnt from experience to expect). However, I also found that this verse is popularly used on the internet in an attempt to undermine the credibility of the claim that the Bible is a product of divine inspiration. So, I thought maybe I’d briefly address this alleged difficulty. This treatment will be a little more anecdotal and exploratory than academic, but whatever – it’s my blog and I’ll do whatever I want.

I was presented with a passage from Deuteronomy by two young women who had interpreted it as a justification for rape and a very peculiar kind of victim blaming. The passage read as follows:

“If a man happens to meet in a town a virgin pledged to be married and he sleeps with her, you shall take both of them to the gate of that town and stone them to death—the young woman because she was in a town and did not scream for help, and the man because he violated another man’s wife. You must purge the evil from among you.”
(Deuteronomy 22:23-24)

They had reasoned that because the term ‘violated’ had been used this was a description of a man who had raped a virgin pledged to be married. They inferred, therefore, that the young woman who had been raped would be put to death because she did not scream for help. They then argued that in actual rape cases one is not always able to call out, nor is it always acceptably safe to do so. The passage had scandalized them and they turned to me to see what I might say in its defense. Having felt pressed for time I decided to assure them that although a passage like this may look bad at first blush, I have always found that upon closer inspection one finds that understanding more of the historical, legal and literary context mitigates the scandal we originally feel. With my dinner growing cold as it sat on the table, I asked if I could get back to them after having looked at the passage more carefully for myself – and that’s when one of them accused me of sounding like a Jehovah’s Witness (I happened to know that she had grown up in that community and had a bad experience ending in her departure – in fact, it was in excommunication). Being unable to tolerate the slight, I gave them my full attention, leaving my dinner to get cold. As I tried to balance reading the passage (along with the surrounding context, etc.) with keeping up in conversation with them over the phone as they jumped from one related issue to another, I noticed that they were trying to enunciate a general view of religion in line with that of the new atheists like Sam Harris and Richard Dawkins; a view of religion particularly contagious to those who had a negative experience with a rather immature version of religion (usually found in cults like that of the Jehovah’s Witnesses).

Then, after several dozen minutes of discussion which began to trail further and further away from the original topic, I decided to read the passage again with fresh eyes, but this time my eyes seemed drawn to the very next verse:

“If a man happens to meet in a town a virgin pledged to be married and he sleeps with her, you shall take both of them to the gate of that town and stone them to death—the young woman because she was in a town and did not scream for help, and the man because he violated another man’s wife. You must purge the evil from among you.
But if out in the country a man happens to meet a young woman pledged to be married and rapes her, only the man who has done this shall die.”
(Deuteronomy 22:23-25).

Those words contextualized the passage in a way which I thought, and continue to think, makes it impervious to the objection that it engages in victim-blaming. Even though I was at the disadvantage of no longer having my preferred bible-study software (for my laptop had recently just died), I couldn’t help but notice that in the only clear instance of ‘rape’ here, not only was that term used in contrast to the term ‘violate,’ but the punishment was supposed to be meted out differently. There are, it seems, (at least) two ways to interpret this passage. Either it suggests that a woman who is raped in a city is at fault, while one raped in the country is not – or it suggests that the woman in the city is being put to death for being a willing participant in the crime of adultery (as indicated by the fact that she did not cry out for help in an urban area where she would presumably have been heard). The first reading seems pretty wild, even on the assumption that the text is merely an uninspired primitive catalogue of ancient near-eastern jurisprudence. On the second reading, however, the alleged problem just evaporates, for the woman, far from being a rape victim, is being punished for deciding to cheat. Now, while that doesn’t mollify us completely (and, as I will shortly argue, shouldn’t), it is quite a different thing from suggesting that being raped is a capital offense (or that being raped without crying for help is a capital offense).1 The passage states, instead, that cheating (here understood as adultery) is a capital offense – worthy of capital punishment. I have read (though I cannot strictly confirm) that the Talmud calls the sin of adultery ha’averah meaning something like ‘the paradigmatic sin.’2 Interestingly, however, the way adultery is used in the Torah, it is meant to indicate illicit sex between a woman married, or one pledged to be married, and some man other than her husband (or soon to be husband). It does not apply to sex between an unmarried woman (not pledged to be married) and any man, whether married or not.3

This is for at least two reasons, as far as I can make out; first, because the law was written in a time and place where culture was inexorably (and, importantly, incorrigibly) patriarchal. I have elsewhere written about the nature of law under less than ideal circumstances of justice, but to reiterate the idea briefly; I believe that some laws, even if good, would be unenforceable given the reality of less-than-ideal circumstances. To give a simple modern example, I believe that it should (ideally) be illegal to mistreat animals intended for consumption (where by mistreat I mean abuse, put into horrible conditions, made to live through a hellish existence, et cetera). I also believe that such a law would be literally unenforceable in our current society. We would need moral and cultural progress with respect to our understanding of animal rights for that law to be feasibly enforced. I am suggesting that something similar is true nearly across the board; realistically speaking, whether we like it or not, it seems as though reforming a patriarchal society in the blink of an eye by introducing laws which would, for them, completely reorganize their societal structure and be incomprehensible to them as a culture, is just infeasible. No appeal to omnipotence (omniscience and omnibenevolence) can help one circumambulate this problem unless some good argument is provided to think that God would either prefer, or be indifferent to, a culturally-coercive revelation, rather than a sort of ’embedded revelation’ designed to catalyze progress organically by working to reorient culture from within (note the parallel, here, to the doctrine of justification by infusion, rather than by imputation). I can think of no such argument. Moreover, given the destabilizing effects of changing culture too radically too suddenly (i.e., a sort of cultural whiplash), I just don’t see how it could be incumbent upon God to demand a people, as a culture, to live up to standards which would have been entirely incomprehensible to them (such that they would appear not just mysterious, but utterly baffling). Culture, after all, is largely a product of people’s collective free expression and (in my opinion) all noteworthy theodicies rightly presume that freedom is paramount.

Now, obviously this rationalization (a sort of attempt to harmonize primitive systems of justice with modernist temperaments and moral scruples) applies to civil rights more easily than it could to natural rights. However, if no natural rights are violated in principle by capital punishment (which, I maintain, is not a violation of natural rights in principle), and no natural rights are violated in principle by inequality under the law, rather than inequality of treatment under the same law (and, again, I maintain that no natural rights are violated by some inequality under the law, whether that’s ideal or not), then I think the difficulty here is largely emotional, rather than strictly intellectual.4

I also want to note that if I am right about the realistic constraints of less than ideal circumstances vis-à-vis justice, I would expect the law, were it inspired, to on the one hand navigate its way around violations of intrinsic natural human rights, and on the other hand set a trajectory towards the good society. I would expect to see the establishment of a jurisprudential tradition which would, given its initial conditions, aim naturally towards moral progress. Do we have any reason to think this is the case with Jewish law? Well, perhaps we do. For a start, I think there is good evidence that this Jewish law already set itself apart as morally outstanding in its own era. Consider the following observation from the analytic philosopher of religion Paul Copan:

Middle Assyrian laws punished not a rapist but a rapist’s wife and even allowed her to be gang-raped. In other ancient Near Eastern laws, men could freely whip their wives, pull out their hair, mutilate their ears, or strike them –a dramatic contrast to Israel’s laws, which gave no such permission.5

These laws were clearly steps in the right moral direction. I also cannot quite see how they would violate, strictly and in principle, natural rights. It is interesting to ponder whether these laws, though they appear primitive to us (their beneficiaries who have had several thousand years to build systems of law influenced by them), really do appear to lubricate the gears of progress insofar as they really do catalyze significant legal and moral progress. Notice that David Werner Amram, a reputed legal scholar in his time, argued that progress in the holistic interpretation, understanding and application of the Pentateuch’s law concerning adultery was already observable by the end of the first century (A.D.).

Under the Talmudic law the severity of the Mosaic code was in many instances modified, and the laws relating to Adultery came under the influence of a milder theory of the relation of crime and punishment. Indeed, the rabbis went so far as to declare that a woman could not be convicted of Adultery unless it had been affirmatively shown that she knew the law relating to it—a theory that resulted in the practical impossibility of convicting any adulteress. No harm was done by this new view, because the right of divorce which remained to the husband was sufficient to free him from the woman, who, although guilty of the crime, was not punishable by the law. Upon this mild view followed the entire abolition of the death penalty, in the year 40, before the destruction of the Second Temple (Sanh. 41a), when the Jewish courts, probably under pressure of the Roman authorities, relinquished their right to inflict capital punishment. Thereafter, the adulterer was scourged, and the husband of the adulteress was not allowed to condone her crime (Soṭah, vi. 1), but was compelled to divorce her, and she lost all her property rights under her marriage contract (Maimonides, “Yad ha-Ḥazaḳah, Ishut,” xxiv. 6); nor was the adulteress permitted to marry her paramour (Soṭah, v. 1); and if she married him, they were forced to separate.6

Perhaps the sample-size (of precisely one) and the viability of several alternative hypotheses for this apparent progress (conditioned on the implementation of this Jewish legal framework) makes such an argument appear overly ambitious. However, at least as far as the test-tube of history is concerned, the Pentateuch’s laws ostensibly showed themselves to be indisputably progressive, both for their time and in their orientation.

Second, I think the true tropological richness of the passage is filtered through its anagogical (i.e., eschatological) and allegorical senses. It is pretty clear that throughout their literature the Isrealites constantly return to one particularly popular way of conceptualizing their relationship with God, and this is in the form of a marriage covenant. For example:

For your Maker is your husband, the Lord of hosts is his name;
the Holy One of Israel is your Redeemer, the God of the whole earth he is called.”
(Isaiah 54:5)

Israel’s sin and rejection of God, then, was often couched in the language of adultery:

“I passed by you again and looked on you; you were at the age for love. I spread the edge of my cloak over you, and covered your nakedness: I pledged myself to you and entered into a covenant with you, says the Lord God, and you became mine… But you trusted in your beauty, and played the whore because of your fame, and lavished your whorings on any passer-by. You took some of your garments, and made for yourself colorful shrines, and on them played the whore; nothing like this has ever been or ever shall be. You also took your beautiful jewels of my gold and my silver that I had given you, and made for yourself male images, and with them played the whore… Therefore, O whore, hear the word of the Lord… I will judge you as women who commit adultery and shed blood are judged, and bring blood upon you in wrath and jealousy.”
(Ezekiel 16:8,15-17, 35, 38)

The New Testament obviously makes special use of this theme as well, in talking about the Church as the bride of Christ (the bridegroom); indeed, eschatology is ultimately expressed in the Bible using this imagery. So, with this allegorical trope in place, and the anagogical significance of adultery in place, one can see how the punishment for adultery may have been partially motivated by its archetypal significance for Israel within the context of its covenant relationship with God.

As an aside, it seems to me, at the risk of sounding a little cheeky, that the real injustice, if there is one, in the way this law was written seems to be that the man who sleeps with a woman pledged to be married is put to death, even if she seduced him and he had no knowledge that she was pledged to be married. There was obviously a presumption behind the law that men either were already aware of who was (pledged to be) married, or that they had a duty to verify that the person was not married or pledged to be married which it is reasonable to expect them to be able to do. However, just like all systems of law, this one allows for ambiguities, and this is why there are judges (and why jurisprudence develops in an organic way, much like tradition).

As a post-script, I want to acknowledge that there are, of course, other Biblical passages allegedly condoning or enjoining rape. Perhaps the most well known comes from Numbers:

“Now kill all the boys. And kill every woman who has slept with a man, but save for yourselves every girl who has never slept with a man.” (Numbers 31:17-18).

This is, I do not hesitate to say, a difficult passage, but it is largely difficult precisely because young women and girls are spared, while boys are all killed. I can understand the reasons for this; one would want to kill all the males because men are stronger than women, and they may grow up to not only resent the Israelites, but to rebel against them. The married women could be killed for the same reason, for even if they are the weaker sex (on average and in kind), their resentment and ability to rebel (by killing children, for instance, or poisoning men) cannot be ignored. Why, though, spare the young women? I think the idea was that they could be assimilated; in particular because they had obviously not participated in the immorality associated with Baal worship (due to their being demonstrably virginal). This is, however, apologetic speculation on my part. I raise the verse only to call attention to the fact that while Biblical passages can be difficult, no passages (no, not even this one) come close to enjoining rape. Although that seems a popular interpretation in the dark corners of the internet, a much more viable interpretation is that the passage recommends keeping every virgin girl alive and considering them eligible to marry the sons of Israel. In fact, I think that is the standard Jewish (and Christian) interpretation of this passage.

1 Although it is, of course, possible to be raped while being physically prevented from crying out, the law was obviously not written with this circumstance in mind. Rather, this just represents a more primitive standard for evidence establishing guilt ‘beyond a reasonable doubt.’

2 I cannot confirm that this traces back to the Talmud, since I have been unable to find any such reference in the Talmud, however, that may be due to my own incompetence or unfamiliarity with the Talmud. Where I read this about adultery, originally, was from Rabbi Ronald H. Isaacs, in an online article here: http://www.myjewishlearning.com/article/adultery/

3 Another interesting note: the law seems to apply even if the man were seduced by a woman pledged to be married and he had no knowledge that he was participating in adultery. Ironically, then, the law seems especially unjust, if it is unjust at all, to men. I would dispute, however, that this is genuinely unjust; it simply makes presumptions about the man involved in the crime (namely, that he did so with knowledge concerning the act’s adulterous nature, and that of this the judges could be sure beyond reasonable doubt).

4 Think here, for example, of the way the modern constitutional-democratic law treats children as ineligible voters, even though arguments could be made for allowing them to vote should they feel so inclined. Indeed, they arguably have a greater vested interest in politics than do senior citizens, but they are treated unequally under the law because we believe that most of them are unable to consent to the extent we reasonably expect voters to be able to consent. Consider, additionally, whether it intrinsically violates human rights to be able to forcefully conscript men into the military (in a time of desperation and war), but not forcefully conscript women into the military (perhaps allowing them to exercise freedom in joining the military under these conditions).

5 Paul Copan, Is God a Moral Monster?: Making Sense of the Old Testament God. Grand Rapids, MI: Baker, 2011. 140.

6 David Werner Amram, “Adultery” in The Jewish Encyclopedia. http://www.jewishencyclopedia.com/articles/865-adultery

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