The Captive Woman at the Intersection of War and Family Laws

Deuteronomy’s law of the beautiful captive woman protects the non-Israelite woman taken in war from rape and from being re-enslaved after marriage. At the same time, it discourages the man from marrying her, in order to preserve the interests of the Israelite family.

Dr. Rabbi

David Resnick

Dr. Rabbi

David Resnick

Categories:

Ki Teitzei

The Captive Woman at the Intersection of War and Family Laws

The division of the Torah into chapters and parashiyot is not embedded in the biblical text itself and reflects later interpretations of how to read it. Much of the Torah is a free-flowing text, without headings or subdivisions,^[1] thus, it is often difficult to delineate where sections start and end, especially in law collections. In reference to the Deuteronomic Law Collection, Jeffrey Tigay writes:^[2]

[T]he laws of Deuteronomy fall into several groups, some of which share a common theme while others do not. Digressions into relatively unrelated subjects are frequent and it is not always clear where one section ends and the next begins.

Determining how laws are grouped is not merely an academic exercise but can affect how we understand what a given law is trying to accomplish. The law of the beautiful captive is a case in point.

Laws of War

Deuteronomy chapter 20 lays out a long description of the laws of warfare, beginning with a warning not to fear the enemy (vv. 1–4). The war laws continue with exemptions who have just built a house, planted a vineyard, got married, or fear battle (20:5–9), capture of cities outside the land (20:10–15) and inside the land (20:16–18), and the prohibition to cut down fruit trees during a siege (20:16–18).

Deuteronomy then moves away from war to what happens if a dead body is found outside an Israelite city (21:1–9),^[3] but then returns to warfare, with the law of the beautiful captive:

^{דברים כא:י} כִּי תֵצֵא לַמִּלְחָמָה עַל אֹיְבֶיךָ וּנְתָנוֹ יְ־הוָה אֱלֹהֶיךָ בְּיָדֶךָ וְשָׁבִיתָ שִׁבְיוֹ. ^כא:יא וְרָאִיתָ בַּשִּׁבְיָה אֵשֶׁת יְפַת תֹּאַר וְחָשַׁקְתָּ בָהּ...

^{Deut 21:10} When you take the field against your enemies, and YHWH your God delivers them into your power and you take some of them captive, ^21:11 and you see among the captives a beautiful woman and you desire her…

This law modifies a verse in an earlier war law, which states that when a foreign city refuses to surrender, the males should all be killed, but women can be taken as booty,^[4] bringing the question of sex and marriage to the fore.

In fact, this law begins with the same phrase that appears only in the opening of the war laws, thus functioning as a kind of bookend:

Deut 20:1

כִּי תֵצֵא לַמִּלְחָמָה עַל אֹיְבֶךָ וְרָאִיתָ סוּס וָרֶכֶב...

When you take the field against your enemies, and see horses and chariots…

Deut 21:10

כִּי תֵצֵא לַמִּלְחָמָה עַל אֹיְבֶיךָ וּנְתָנוֹ יְ־הוָה אֱלֹהֶיךָ בְּיָדֶךָ...

When you take the field against your enemies, and YHWH your God delivers them into your power…

Accordingly, as Alexander Rofé of Hebrew University argues, the law of the beautiful capture should be understood as part of the war laws.^[5]

And yet, the laws in this section of the Deuteronomic Law Collection can be subdivided differently.

Family Law

Rabbinic tradition begins a new parashah, Ki Teitzei, with the law of the beautiful captive, separating this law from the other laws of war in the previous parashah, Shofetim.^[6] This division highlights the relationship this law has with the next two laws: requiring the father to honor the rights of a firstborn son, even if his mother is unbeloved (21:15–17), and punishing a wayward son by stoning (21:18–21).

All three of these laws deal with issues that come up in a nuclear family. Rabbinic tradition even suggests a progression between the three laws, as the 10^th century Tanna debei Eliyahu Zuta writes (§3, Ish-Shalom ed.):

ומנין לנושא אשה לשם זנות שמוציאין הימנו בן סורר ומורה, שנאמר וראית בשביה אשת יפת תאר, סוף שמרננין בו הבריות, ומתוך רננה שמרננין בו הבריות הולך ונושא אחרת, שנאמר כי תהיין לאיש שתי נשים וגו', ומתוך שנושא אשה אחרת הוא אוהב האחת ושונא האחת, שנאמר האחת אהובה והאחת שנואה, ומתוך שהוא אוהב האחת ושונא האחת סוף שמוציאין ממנו בן סורר ומורה.

How do we know that if a man marries a woman for the purpose of fornication that he will produce a wayward son? For it says (Deut 21:11): “and you see among the captives a beautiful woman.” In the end, people gossip about him, and because people gossip, he goes and marries another woman, as it says (v.15): “If a man has two wives, etc.” And since he marries another woman, he loves (the new) one and not the other (previous one), as it says (ibid.): “one loved and one unloved.” And since he loves one and not the other, in the end, he raises a wayward son.

While this connection may be an overreading of the text, it highlights the family-law nature of this unit, and the concern about proper treatment of family members—wife, son, parents—recognized by contemporary scholars as well. Adele Berlin, Professor (Emerita) of Bible at the University of Maryland, writes that all three family laws exemplify how Deuteronomy stabilized family relationships by depriving “the male head of household of ultimate power to punish his dependents, according that power to society as a whole, through the courts, the judges, or the elders.”^[7]

Where does the law of the beautiful captive fit? Is it a war law or family law?^[8] The answer to this question depends, somewhat, on how we understand the details of the law and its purpose, beginning with an ambiguous clause.

Taking Her as Wife: Protasis or Apodosis?

Beginning with the man seeing the beautiful woman, Deuteronomy continues with a series of verbs that are challenging to translate. Unlike English, which uses modals such as “may,” “can,” or “must” to delineate the protasis (“if…”) from the apodosis (“then…”) in a conditional sentence, in Hebrew, both use the same grammatical form.[9]

The following translation, which does not mark the divider between the protasis and the apodosis, highlights the problem:

^{דברים כא:יא} וְרָאִיתָ בַּשִּׁבְיָה אֵשֶׁת יְפַת תֹּאַר וְחָשַׁקְתָּ בָהּ וְלָקַחְתָּ לְךָ לְאִשָּׁה. ^כא:יב וַהֲבֵאתָהּ אֶל תּוֹךְ בֵּיתֶךָ וְגִלְּחָה אֶת רֹאשָׁהּ וְעָשְׂתָה אֶת צִפָּרְנֶיהָ. ^כא:יג וְהֵסִירָה אֶת שִׂמְלַת שִׁבְיָהּ מֵעָלֶיהָ וְיָשְׁבָה בְּבֵיתֶךָ וּבָכְתָה אֶת אָבִיהָ וְאֶת אִמָּהּ יֶרַח יָמִים וְאַחַר כֵּן תָּבוֹא אֵלֶיהָ וּבְעַלְתָּהּ וְהָיְתָה לְךָ לְאִשָּׁה.

^Deut^21:11 And you see among the captives a beautiful woman and you desire her and you take her as wife ^21:12 and you bring her into your house, and she trims her hair, pares her nails, ^21:13 and discards her captive’s garb, and she spends a month’s time in your house mourning her father and mother, and after that, you have sex with her and (thereby) become her husband, and she shall be your wife.

There are three main options for where the shift from protasis to apodosis occurs:^[10]

Her Actions—“If you desire her, and marry her,^[11] and take her home, then she shall trim her hair….^[12]
Bringing Her Home—“If you desire her and marry her, then you may bring her home…”
Taking Her as Wife—“If you desire her, then you may take her as a wife” or even “then you must take her as a wife.”

The third translation adds the rule that a man may not have sex with captive women outside the confines of marriage. This is how Arnold Ehrlich (1848–1919), in his Mikra Ki-Pheshuto (ad loc.) reads the verse:

ולקחת לך לאשה—תשובת התנאי, כלומר לא תבעל בה בעילת זנות למלאות תאותך כי אם תנהג בה מנהג לקוחין לשם אישות.

“Take her as a wife”—this is the apodosis, meaning, do not have promiscuous sex with her to fulfill your lust, but you shall act towards her the way one does when taking a wife.

To put it another way, the “take her as a wife” rule comes to forbid Israelite soldiers to rape captive women.^[13]

Captive Women as Sexual Chattel in the Ancient World

As we see in other biblical texts, the fate of women captured in war was often as sexual chattel. In fact, in the curses, Deuteronomy warns the Israelites that this will happen to their own women if they sin, and YHWH allows enemies to overrun the country:

^{דברים כח:ל} אִשָּׁה תְאָרֵשׂ וְאִישׁ אַחֵר (ישגלנה) [יִשְׁכָּבֶנָּה] בַּיִת תִּבְנֶה וְלֹא תֵשֵׁב בּוֹ כֶּרֶם תִּטַּע וְלֹא תְחַלְּלֶנּוּ.

^{Deut 28:30} If you pay the bride-price for a wife, another man shall (have sex) [lie]^[14] with her. If you build a house, you shall not live in it. If you plant a vineyard, you shall not harvest it.^[15]

Sisera’s mother, in the Song of Deborah, assumes he is going to divide the captive women up as sexual chattel among the soldiers:

^{שופטים ה:ל} הֲלֹא יִמְצְאוּ יְחַלְּקוּ שָׁלָל רַחַם רַחֲמָתַיִם לְרֹאשׁ גֶּבֶר שְׁלַל צְבָעִים לְסִיסְרָא שְׁלַל צְבָעִים רִקְמָה צֶבַע רִקְמָתַיִם לְצַוְּארֵי שָׁלָל.

^{Judg 5:30} They must be dividing the spoil they have found: A damsel or two for each man, spoil of dyed cloths for Sisera, spoil of embroidered cloths, a couple of embroidered cloths round every neck as spoil.

Here the commoditized women are listed as booty together with pretty neck clothes that the soldiers can take home with them. Even the term, translated above as damsel, shows a kind of dehumanizing character, as it literally means “womb.” It is against this backdrop that we need to read the beautiful captive law.

Reflecting on this point, Robert Alter writes in his commentary:

Throughout the ancient Mediterranean world, captive women of vanquished peoples were assumed to be the due sexual prerogative of the victors (compare Briseus at the beginning of the Iliad). This law exceptionally seeks to provide for the human rights of the [non-Israelite!] woman who falls into this predicament.^[16]

According to this approach, Deuteronomy is forbidding what was commonplace soldier behavior in the ancient Near East. This is clearly a war law.^[17] Nevertheless, the details that follow later in this law, dealing with how he must treat her after he brings her home, may be family law. Once again, it depends on how the law is read.

The Mourning: For Her or For Him?

When the soldier brings this captive home, she removes her captive clothing, pares (or grows) her nails (the meaning of the text is uncertain), cuts her hair, and may (or must) mourn her relatives for thirty days. Commentators have long debated what this is for, and have offered varying suggestions:

Mourning—These are all mourning rituals, to give her time to process what happened to her.^[18]

Transition—Giving the woman time to transition away from her past and facilitate her adoption of an Israelite identity.^[19]

Disincentive—This is a cooling off period for the man, who has to wait thirty days, while his passions die down. All the while, he must allow her to cry and be mournful, while she wears unattractive clothes, and cuts her hair and nails short (or lets them grow long).

According to this latter interpretation, which is ubiquitous in traditional Jewish commentary, the goal is to encourage the man not to marry her at all. The suggestion makes further sense when we understand what happens if he chooses not to marry her.

Losing the Re-enslavement Option

The beautiful captive law ends with a final protective provision:

^{דברים כא:יד} וְהָיָה אִם לֹא חָפַצְתָּ בָּהּ וְשִׁלַּחְתָּהּ לְנַפְשָׁהּ וּמָכֹר לֹא תִמְכְּרֶנָּה בַּכָּסֶף לֹא תִתְעַמֵּר בָּהּ תַּחַת אֲשֶׁר עִנִּיתָהּ.

^{Deut 21:14} But should you not want her, you must release her outright. You may not sell her for money. You cannot treat her as a commodity since you have debased her.

The final phrase, “that he debased her,” is connected to his having had sex with her.^[20] While this verb is generally used for illicit sex, in this case, it seems to refer to the sex after marriage mentioned in the previous verse, as noted by Rashbam (R. Samuel ben Meir, ca. 1085–1158):

אשר עניתה – ביאת נישואין, לפי הפשט.

“You have debased her”—through marital sex, according to the simple meaning.^[21]

Carolyn Pressler of United Theological Seminary notes the unusual nature of using this term for licit sex, and suggests:

It may be that the drafters of the law viewed the marriage as an imposition on the woman since she was a captive, or they may have regarded marriage by cohabitation rather than by contract as not quite valid.^[22]

The provision, therefore, only applies to her once he has married her. Note that the language of וְשִׁלַּחְתָּהּ לְנַפְשָׁהּ, literally “you shall send her on her own,” is the same language Deuteronomy uses for an Israelite divorce:

^{דברים כד:א} כִּי יִקַּח אִישׁ אִשָּׁה וּבְעָלָהּ וְהָיָה אִם לֹא תִמְצָא חֵן בְּעֵינָיו כִּי מָצָא בָהּ עֶרְוַת דָּבָר וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ וְשִׁלְּחָהּ מִבֵּיתוֹ.

^{Deut 24:1} A man takes a wife and possesses her. She fails to please him because he finds something obnoxious about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house.

In this reading, the verse is saying that if he marries her after the month is up, and then gets tired of her, he must divorce her as he would a free Israelite woman.^[23]

This implies that if he does not marry her after the thirty days, then he hasn’t actually “debased her” and therefore he may keep her as a slave. If so, then the loss of the option to re-enslave the woman is part of Deuteronomy’s attempt to disincentivize the marriage. Don Isaac Abravanel (1437–1508), in his commentary on Deuteronomy (ad loc.), puts it this way:

הנה ו' הדברים האלה כלם הם דרכים להסיר חשקו מעליה ושלא יקחה לאשה. וגם הדין האחרון הוא מכוון לזה כי כשידע שאם יבא אליה שוב אינו יכול למכרה ולא להשתמש בה עבודת השפחות יפרוש ממנה כי יש כמה אנשים חביבין עליהם ממונן יותר מהשלמת תאותם... לפי שתאותם אל הממון היא הגוברת עליהם.

As for these six things, all of them are ways of removing his desire from her, so that he not take her as a wife. And the final law also is meant to have this effect, since when he realizes that once he has sex with her he can never sell her or treat her as one of his maidservants, he will separate from her, for it is the case with many men that their desire for wealth is more powerful than fulfilling their urges…^[24]

According to this approach, Deuteronomy wishes to protect the woman from rape, and to make sure she is well-treated if he marries her, but it prefers that he keep her as a slave without her ever entering the Israelite family as his wife.

A Problematic Relationship

Deuteronomy is likely wary of this marriage for several reasons. First, Deuteronomy may not look favorably on the marriage of an Israelite to an outsider. Deuteronomy 7:3 prohibits intermarriage with Canaanites and Deuteronomy 23:4 prohibits marriage with Ammonites and Moabites. While Deuteronomy does not explicitly extend this to other groups of foreigners (though see Ezra 9:1 which does), it certainly would not see them as equivalent to Israelites.^[25] Moreover, it may have been concerned about whether they would bring their foreign practices and gods to the Israelite home.

In addition, Deuteronomy’s concern that he will try to re-enslave her when he loses interest in being married to her implies a fear that the man, and perhaps his family, will always see the woman as a slave and never treat her like an Israelite wife.^[26] Moreover, as a foreigner, she has no family in Israel to protect her from such treatment.^[27]

To us, in the modern era, the alternative option, that he never marry her but keep her as a slave, is also entirely unpalatable, but for the Deuteronomist, this was the best option.

Balancing Soldier’s Prerogatives and Captive’s Rights

This brings us full circle to the opening question, whether this a war law or a family law. The answer is both. The Torah is concerned with the soldier’s integrity both at war and back home; at war he must not rape the captive women, and at home, once he marries the woman, he must treat her like an Israelite.

The text is not only interested in the male soldier, but in the female captive as well, since in both instances—the prohibition to rape and the prohibition to re-enslave her—she is given a level of humanity.^[28] While the Torah is far from egalitarian, it does not see the woman here as chattel; it worries about her treatment both as a captive and as a wife.^[29]

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Published

August 19, 2021

Last Updated

October 22, 2024

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Footnotes

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Published

August 19, 2021

Last Updated

October 22, 2024

[1] A notable exception is Leviticus, whose laws are subdivided. See discussion in, Martha Himmelfarb, “Scribal Features that Helped the Priestly Text Survive,” TheTorah (2020).

[2] Jeffrey Tigay, Deuteronomy (Philadelphia: Jewish Publication Society, 2003), 446.

[3] This is dealt with by the eglah arufah “broken-neck heifer” ritual, involving the breaking of a calf’s neck near a stream, and the assertion by the city elders that they did not spill this innocent blood. Many scholars have tried to deal with why this law was placed here, interrupting the flow of the war laws. Notably, Alexander Rofé offers two different reasons in two different articles. The first is that originally the heifer law was originally connected to the murder laws in ch. 19 but that “due to an editorial mishap, the law of the expiatory heifer was shifted from its original locus to its present place between the war laws.” See, Alexander Rofé, “The Laws of Warfare in the Book of Deuteronomy: Their Origins, Intent and Positivity,” in Deuteronomy: Issues and Interpretation, Old Testament Studies (London T&T Clark, 2002), 149–167 [p. 153]. The second explanation is that blocks of laws originally connected by theme were redivided based on an associative connection, in this case, the term שדה, “the field,” and the imagery of the cutting down fruit trees in a siege, which does not use the root נ.פ.ל but calls it to mind (2 Kgs 3:25), and the fallen body in the law of the heifer. Alexander Rofé, סידורם של החוקים בספר דברים [“The Arrangement of the Laws in Deuteronomy,” in מבוא לספר דברים: חלק ראשון ופרקי המשך [Introduction to Deuteronomy: Part 1 and Further Chapters] (Jerusalem: Akademon, 1988), 159–177 [p. 165]. The latter argument seems shakier than the former. In any event, such interruptions are hardly unique to this set of laws or even to Deuteronomy. For instance, Exodus 21:28–32 speaks of cases of ox goring. Then, in vv. 33–34, it turns to the case of digging a pit in a public place, and then in vv. 35–36, it returns to ox goring.

[4]

^{דברים כ:יד} רַק הַנָּשִׁים וְהַטַּף וְהַבְּהֵמָה וְכֹל אֲשֶׁר יִהְיֶה בָעִיר כָּל שְׁלָלָהּ תָּבֹז לָךְ וְאָכַלְתָּ אֶת שְׁלַל אֹיְבֶיךָ אֲשֶׁר נָתַן יְ־הוָה אֱלֹהֶיךָ לָךְ.

^{Deut 20:14} You may, however, take as your booty the women, the children, the livestock, and everything in the town—all its spoil—and enjoy the use of the spoil of your enemy, which YHWH your God gives you.

[5] Rofé actually sees four distinct units of war laws spread throughout the Deuteronomic law collection, ch. 20, 21:10–14, 23:9–15, 24:5, and writes “the marked similarity of D’s scattered laws of war, both in form and in content, demonstrates that they were initially conceived as one group. See, Rofé, “The Laws of Warfare in the Book of Deuteronomy,” 152–153.

[6] Parashiyot are named after the opening word of the parashah.

[7] Adele Berlin, “Sex and the Single Girl in Deuteronomy 22” in Mishneh Todah: Studies in Deuteronomy, eds., Nili Sacher Fox, David A. Glatt-Gilad, and Michael J. Williams (Winona Lake: Eisenbrauns, 2009), 95–112 [p. 96]. Tigay also sees the law of the beautiful captive as exclusively family law. See, Yaakov Chaim (Jeffrey) Tigay, דברים [Deuteronomy], Mikra LeYisrael (Tel Aviv/Jerusalem: Am Oved/Magnes, 2016), 2.530.

[8] While the Deuteronomic Law Collection does not appear to be working with clearly defined units in the modern sense, it does organize matters loosely by theme, and thus the question is relevant.

[9] When there are only two clauses, then it is easy to determine. For instance:

^{דברים כג:י} כִּי תֵצֵא מַחֲנֶה עַל אֹיְבֶיךָ וְנִשְׁמַרְתָּ מִכֹּל דָּבָר רָע.

^{Deut 23:10} When you go out as a troop against your enemies, you must be on your guard against anything untoward.

The phrase in bold is not found in the Hebrew as such, but the alternative translation “and you are on guard against anything untoward” is impossible, since it would leave the conditional sentence without an ending. Sentences with multiple verbs, like what we find in the beautiful captive law, are more difficult to translate, since there is more than one option of where the sentence shifts from protasis to apodosis. For a discussion of the problem of determining where an apodosis begins, see the appendix in Marc Zvi Brettler, “Is Israel’s Repentance a Foregone Conclusion,” TheTorah (2016). For another example of a text with an unclear transition from protasis to apodosis, see Reuven Kimelman, “The Shema’s Second Paragraph: Concern over Israel’s Affluence,” TheTorah (2018).

[10] It seems clear that the woman’s actions, trimming her hair and paring her nails, is part of the apodosis, i.e., these are things that she should do if the man takes her home.

[11] Alternatively, Avraham ibn Ezra suggests, “if he desires to marry her.”

[12] As Richard Nelson of Southern Methodist University explains his “translation begins the apodosis with the change in grammatical subject.” Richard D. Nelson, Deuteronomy, The Old Testament Library (Louisville, KY: Westminster John Knox Press, 2002), 253–254. This is also the reading preferred in Carolyn Pressler, The View of Women Found in the Deuteronomic Family Laws, BZAW 216 (Berlin: De Gruyter, 1993), 10–11.

[13] Rofé (“The Laws of Warfare,” 156) too reads the apodosis this way, and comments:

This law prohibits the rape of a female captive of war: the desirous captor is obliged to marry her.

This is a common and compelling reading of the text, but some scholars argue that this law is only about how a man treats a woman he wishes to marry, and that it says nothing about how captives whom one doesn’t wish to marry should be treated. See, for instance, Pressler, For a different reading of the text, see Pressler, The View of Women Found in the Deuteronomic Family Laws, 11, 13–14; Shaye J.D. Cohen and Zev Farber, “Marrying and Beautiful Captive Woman,” TheTorah (2020).

[14] The Hebrew contains a ketiv/qere. In this case, it is not because of alternative traditions about the text, but out of delicacy. The ketiv or written word, from the root (ש-ג-ל), is a crass term for sex. It is found, for instance, as a nominative term for a king’s paramour (Ps 45:10, Neh 2:6). To avoid having such a word recited aloud in a synagogue reading, the Masoretes included a euphemism as the qere, or read aloud term, from the root (ש-כ-ב) meaning “to lie with.” For more on this type of ketiv/qere, see Zev Farber, “Unspoken Hemorrhoids: Making the Torah Reading Polite,” TheTorah (2016).

[15] Isaiah uses this same description in its anti-Babylon prophecy:

^{ישעיה יג:טז} וְעֹלְלֵיהֶם יְרֻטְּשׁוּ לְעֵינֵיהֶם יִשַּׁסּוּ בָּתֵּיהֶם וּנְשֵׁיהֶם (תשגלנה) [תִּשָּׁכַבְנָה].

^{Isa 13:16} Their babes shall be dashed to pieces in their sight, their homes shall be plundered, and their wives they will (have sex) [lie] with.

The curse here is an inversion of the war rule allowing men with new homes, vineyards, and wives to remain behind. The list is in reverse order, following what scholars call Seidel’s Rule.

[16] Robert Alter, The Hebrew Bible (New York: Norton, 2019), 1.688. See also Richard Elliott Friedman, Commentary on the Torah: With a New English Translation and the Hebrew Text (San Francisco: Harper, 2001), 629:

[W]hat pervades the elements of the law is an extraordinary sensitivity to the humanity of the captured woman. Contrary to of the most common practices of war, the Israelite soldier is not permitted to rape her. He may take her as a wife.

See also the observation of the German Deuteronomy scholar, Eckart Otto:

The provision for a captive bride... exemplified [Deuteronomy’s] obligation to legal solidarity with the weak and poor... Her personal dignity has to be secured and this includes freedom for marriage and protection from sexual exploitation.

Eckhart Otto, “False Weights in the Scales of Biblical Justice? Different Views of Women from Patriarchal Hierarchy to Religious Equality in the Book of Deuteronomy,” in Gender and Law in the Hebrew Bible and the Ancient Near East, ed. Tikva S. Frymer-Kensky, Victor H. Matthews, and Bernard M. Levinson, JSOTsupp 262 (Sheffied: Sheffield Academic Press, 1998), 128–146 [p. 145].

[17] The political scientist, Michael Walzer writes that it is “the first attempt that I have found to regulate the wartime treatment of women” and claims that it is based on “a conception of the captive woman as a person who must be respected, despite her capture.” See Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (Basic Books, 1977), 134–135.

[18] This is the interpretation favored by David Cohen-Tzemah, in his introductory gloss on this law in the Olam HaTanakh Commentary on Deuteronomy (Tel Aviv: Divrei HaYamim, 1999), 161 [Hebrew]. In that sense, it bears some relationship to mourning rituals referenced elsewhere in the Torah such as tearing clothes (Gen 37:34, Esth 4:1), not wearing jewelry (Exod 33:4), and tonsuring (Lev 21:5, Ezek 44:20). As for the latter, cutting hair as a sign of mourning is also polemicized against in the Bible, showing that this practice was controversial. See discussion in, Zev Farber, “The Prohibition of Shaving in the Torah and Halakha,” TheTorah (2014).

[19] This view was taken by R. Joseph ibn Kaspi (1279–1340) in his commentary (ad loc.):

והכונה בזה כדי שיהיה רושם בנפשה שהיא כאשה אחרת, ותשכח כל בית אביה וקרוביה.

The intention here is for her to make an impression in her soul that she is now like a new woman, and she should forget her father’s house and her relatives.

This view is also adopted by Pressler, The View of Women Found in the Deuteronomic Family Laws, 12. Sandra Jacobs rejects this reading because “such makeovers are not attested in biblical narratives when Israelite men take foreign wives.” See, Sandra Jacobs, “Terms of Endearment? The Desirable Female Captive and Her Illicit Acquisition” in A Feminist Companion to Exodus and Deuteronomy, eds., Athalya Brenner and Gail A. Yee (Minneapolis: Fortress Press, 2012), 237–257 [p. 251]. Based on comparisons with contemporary Greek practices, Jacobs suggest that these were part of the wedding right.

[20] Debasement, ע.נ.ה/י, a term often used in the Bible in circumstances of rape (though the word itself doesn’t mean “rape”). For instance, in the story of Shechem and Dinah (Gen 34:2) and Amnon’s rape of Tamar (2 Sam 13:14). Perhaps the closest parallel is in Deuteronomy itself, in the law of what happens if a man rapes a young virgin:

^{דברים כב:כח}כִּי יִמְצָא אִישׁ (נער) [נַעֲרָה] בְתוּלָה אֲשֶׁר לֹא אֹרָשָׂה וּתְפָשָׂהּ וְשָׁכַב עִמָּהּ וְנִמְצָאוּ^.^כב:כטוְנָתַן הָאִישׁ הַשֹּׁכֵב עִמָּהּ לַאֲבִי (הנער) [הַנַּעֲרָה] חֲמִשִּׁים כָּסֶף וְלוֹ תִהְיֶה לְאִשָּׁה תַּחַת אֲשֶׁר עִנָּהּ לֹא יוּכַל שַׁלְּחָהּ כָּל יָמָיו.

^{Deut 22:28} If a man comes across a non-betrothed virgin and seizes her and lies with her, and they are found out, ^22:29 the man who laid with her pays the father 50 shekels, and she becomes his wife. Since he has debased her, he can never send her away.

[21] Rabbinic tradition records a debate about whether he is actually permitted to have sex with her once, once he decides to marry her, before bringing her back to his house (j. Makkot 2:1, 6b-7a, 31d; b. Kiddushin 21b). This, for instance, is how Gersonides (R. Levi ben Gershon [Ralbag] 1288–1344) understands the passage:

ולקחת לך לאשה—ידוע שאין זה לנשואין שהרי אמר אחר זה ואם לא חפצת בה ושלחתה לנפשה וגו' לא תתעמר בה תחת אשר עניתה מגיד שהוא בא עליה קודם שישאנה...

“And you shall take her to wife”—It is known that this does not refer to marriage, since it says afterwards “But should you not want her, you must release her outright…. You cannot treat her as a commodity since you have debased her.” This shows that he already had sex with her before he married her…

ואמנם הכונה באמרו ולקחת לך לאשה שיותר לבא עליה ורמז בזה שאין ראוי לו שיקחנה לזה הפעל המגונה אם לא לתכלית שישאנה אחר זה...

Indeed, the intention when it says “and you shall take her to wife” is that it is permitted to have sex with her, but it hints with this language that it is not appropriate to take her in this degrading way if his purpose is not to marry her after this…

The problem with this interpretation is that it does not acknowledge the force of the statement in v. 13: וְאַחַר כֵּן תָּבוֹא אֵלֶיהָ וּבְעַלְתָּהּ וְהָיְתָה לְךָ לְאִשָּׁה “after that you may have sex with her and (thereby) become her husband and she will be your wife.” This point is emphasized by R. Moses Nahmanides (Ramban, ca. 1194–1270):

ועל דרך הפשט: יראה שאסור לבעול אותה עד שיעשה לה כל התורה הזאת, וזה טעם: ואחר כן תבא אליה ובעלתה. ומה שאמר: וחשקת בה ולקחת לך לאשה – שיקחנה להיות לו לאשה אחר המעשים האלה אשר יצוה.

According to the simple meaning, it would appear that it is forbidden to have sex with her until she completes all these detailed stipulations. This is the evidence: “after that you may have sex with her and (thereby) become her husband.” And that which is said “and you desire her, take her as a wife”—that he should take her as a wife after these matters which are commanded take place.

[22] Pressler, The View of Women Found in the Deuteronomic Family Laws, 14.

[23] Capturing this foreign woman, taking her as a wife, and then discarding her when he loses interest is what debases her. For a very different interpretation, understanding this and the thirty-day period as detrimental to the woman’s interests, see M.I. Rey, “Reexamination of the Foreign Female Captive: Deuteronomy 21:10–14 as a Case of Genocidal Rape,” Journal of Feminist Studies in Religion 32.1 (2016): 37–53. This counterintuitive reading, however, seeing this as a way of discarding the woman as opposed to protecting her, does not do justice to the rhetoric of the text and is not persuasive. Instead, Rofé’s evaluation seems closer to the mark (“Laws of Warfare,” 157): “If the man subsequently decides to divorce her, she is to be considered a free person in every respect.”

[24] Tigay adopts this interpretation in his gloss on v. 14 in his Mikra LeYisrael commentary, 2.533.

[25] Notably, Rofé (“The Laws of Warfare,” 157) thinks that this law, unlike other laws in Deuteronomy, has no concern about marriage of foreigners, and that this text, as well as the text it modifies about taking female captives as booty, comes from an independent source, unaware of D’s animus to Canaanites. For more on the controversial nature of Israelites marrying out in the Bible, see Jacob L. Wright and Tamara Cohn Eskenazi, “Contrasting Pictures of Intermarriage in Ruth and Nehemiah,” TheTorah (2015); Naomi Graetz, “The Missed Opportunity for Intermarriage and Conversion in the Story of Dinah,” TheTorah (2015).

[26] R. Shlomo Suleiman Al-Sinjari, in his yotzrot poems, composed based on the Torah reading of the week, invokes Job 5:24, וְיָדַעְתָּ כִּי שָׁלוֹם אָהֳלֶךָ “and you will know that all is well in your tent,” in his rewriting of the beautiful captive law. His point seems to be if the laws are kept, and the woman treated well, there will be peace in their house. Al-Sinjari expresses what the man should strive for if he does marry the woman, implying that he knows that things can go very differently if the husband does not treat her with respect but as a low-status slave and foreigner. See Eden Hacohen, מחזור היוצרות של ר' שלמה סולימן אלסנג'ארי לפרשות השבוע [The Yoşerot of Rabbi Šelomo Suleiman Al-Sinjari for the Annual Cycle of Torah Reading] (Jerusalem: Mekize Nirdamim, 2019), 701.

[27] Even if the man follows the law and sends her out with a proper divorce when/if he no longer wishes to be with her, she will be in a difficult position without money or family in a foreign land.

[28] Rofé writes (“Laws of Warfare,” 157):

This humane ruling reflects a universal concern with limiting soldier’s unbridled brutality and demonstrates consideration for the feelings of the captives.

In sharp contrast, Jacobs’ (“Terms of Endearment,” 255) sees the law quite differently, arguing that “the deuteronomic law reflects a singularly cruel treatment of the captive, revealing also the quite intimate desires and intentions of its scribes, who have utilized the most brutal, available marriage rituals to legitimate an otherwise prohibited sexual relationship.” As noted above in reference to Rey’s reading, whatever one thinks of Deuteronomy’s solution, it is hard to see the text as consciously callous. Rather, the law is trying to treat the woman more humanly than the options it knows of (serial sexual slavery to multiple masters) and prohibits.

[29] To use a quote from Leon Kass about the Dinah story and apply it here, the type of sexual legislation we see in this law, as well as in other places in Deuteronomy, “is the opposite of the famous double standard, which winks at men sowing their wild oats but castigates female promiscuity.” Leon Kass, The Beginning of Wisdom: Reading Genesis (New York: Free Press, 2003), 499.