The Rape of the Unbetrothed Virgin in Torah and Assyrian Law

Comparison is essential to any interpretive endeavor and plays a critical role in academic biblical scholarship. By comparing texts within the Bible, scholars can discern stylistic and substantive differences between the writings of different authors. By comparing biblical texts to the writings of ancient Israel’s neighbors, they can illuminate the cultural context and historical development of biblical literature.

The law of the rape of the unbetrothed virgin in Deuteronomy 22:28–29 is an excellent example of a biblical text that is illuminated through comparison to other texts, both within and outside the Bible. Here I will examine the law in light of two related passages: the law of the seduction of the unbetrothed virgin in Exodus 22:15–16 and a passage from the Middle Assyrian Laws (MAL).^[1] I will begin by examining the law in Exodus, move on to the one in Deuteronomy, and finally consider the Middle Assyrian laws before discussing the relationship among the three.

Exodus and Deuteronomy –Seduction versus Rape

Exodus 22:15–16 reads:

:וְכִי יְפַתֶּה אִישׁ בְּתוּלָה אֲשֶׁר לֹא אֹרָשָׂה וְשָׁכַב עִמָּהּ מָהֹר יִמְהָרֶנָּה לּוֹ לְאִשָּׁה׃ אִם מָאֵן יְמָאֵן אָבִיהָ לְתִתָּהּ לוֹ כֶּסֶף יִשְׁקֹל כְּמֹהַר הַבְּתוּלֹת

If a man seduces a virgin for whom the bride-price has not been paid, and lies with her, he must make her his wife by payment of a bride-price. If her father refuses to give her to him, he must still weigh out silver in accordance with the bride-price for virgins.(NJPS)

This law deals with the ancient Near Eastern practice of betrothal, where a man would obtain a bride by giving her father a quantity of silver as a “bride-price” (sometimes also called “bride-wealth”). The bride-price was higher for virgins, so sleeping with a virgin out of wedlock would rob her family of the higher sum. Given the value placed on virginity, it would also severely reduce her chances of securing a husband, which would leave her socially and economically vulnerable. The law resolves these problems by requiring the seducer to pay the higher amount and take the girl as his wife. However, the girl’s father retains the right to refuse the match and keep the silver.

The parallel law in Deuteronomy 22:28–29 reads as follows:

כִּי יִמְצָא אִישׁ נַעַר [נַעֲרָה] בְתוּלָה אֲשֶׁר לֹא אֹרָשָׂה וּתְפָשָׂהּ וְשָׁכַב עִמָּהּ וְנִמְצָאוּ׃ וְנָתַן הָאִישׁ הַשֹּׁכֵב עִמָּהּ לַאֲבִי הַנַּעַר [הַ][נַּעֲרָה] חֲמִשִּׁים כָּסֶף וְלוֹ תִהְיֶה לְאִשָּׁה תַּחַת אֲשֶׁר עִנָּהּ לֹא יוּכַל שַׁלְּחָהּ כָּל יָמָיו

If a man comes upon a virgin who is not engaged and he seizes her and lies with her, and they are discovered, the man who lay with her shall pay the girl’s father fifty shekels of silver, and she shall be his wife. Because he has violated her, he can never have the right to divorce her.

This law deals with rape rather than seduction, but the penalty is similar: the man must marry the girl and pay her father.

Comparing the Two Laws

The differences between the penalties are matters of detail:

1. Exodus calls for the customary bride-price, which may have varied over time and from one community to another, while Deuteronomy gives a fixed sum.

2. Deuteronomy prohibits the man from divorcing his wife “because he violated her.”

3. Only Exodus allows the girl’s father to refuse the match.

On the surface, these laws are not redundant: Deuteronomy explains what to do when an unbetrothed virgin is raped, and Exodus explains what to do if the relationship appears consensual. But on examination, the differences between the laws’ penalties do not correlate with the distinction between rape and seduction:

1. The different formulations of the monetary penalty make it impossible to know which is higher. It may be that fifty shekels was higher than the typical bride-price and thus would serve as an added penalty for rape, but then we would expect Deuteronomy to give a relative sum—perhaps double the customary bride-price or the customary bride-price plus some fixed amount.

2. At first blush, Deuteronomy 22:29 appears to provide the girl with extra protection by prohibiting divorce because she has been raped (“because he violated her”). But the term ענה, “violated,” does not necessarily connote rape. Deuteronomy 22:23–24, which is closely related to the present law, uses ענה to describe a sexual act that is considered consensual. In this context, the term seems to refer to devaluing a girl by taking her virginity. Thus, while this law clearly deals with rape, the justification for prohibiting divorce is not that the girl failed to consent but that her virginity has been taken.

3. The provision in Exodus allowing the girl’s father to refuse the match would, if anything, be more appropriate for a case of rape than seduction: in spite of the protection offered by any marriage, a father might easily see his daughter’s remaining single a lesser evil when compared to marrying her rapist.

In addition to these difficulties, if the laws were intended to complement each other, we would expect them to appear side by side rather than at two entirely different points in the Torah.

Explaining the Differences

We can begin to make sense of these issues once we recognize that the laws belong to two different but related legal collections. The law of seduction belongs to what scholars call the “Covenant Code” or, more accurately, the “Covenant Collection” (CC),^[2] which comprises Exodus 20:19–23:33. The rape law belongs to the “Deuteronomic Code” or “Deuteronomic Collection” (DC), which corresponds to Deuteronomy 12–26. Because the Israelites attributed their laws to God’s communication with Moses, both collections were ultimately incorporated into the body of literature that coalesced into the Torah.

Although the precise dates of these legal collections are debated, most scholars agree that DC was written later than CC and in many cases duplicates or revises it. Some of the changes to this law may reflect a movement away from a system that placed authority in the hands of family patriarchs and local custom toward one that accorded more authority to officials and fixed regulations.^[3] Thus, the customary bride-price becomes a fixed sum and the girl’s father loses the right to decide her fate. The prohibition of divorce may be a similar limitation on the rights of individual men, but it also reflects an added concern for the girl’s well-being.

It is more difficult to explain why one law uses seduction as its example case while the other uses rape. Before returning to this question, we will consider a parallel passage in MAL.

Middle Assyrian Laws

The Middle Assyrian Laws were composed around 1076 BCE, probably earlier than either of the biblical collections. MAL tablet A contains two laws on sex with an unbetrothed virgin, one dealing with rape and another with consensual sex, and, unlike in the Torah, the two laws appear side by side.

• MAL A ¶55 deals with rape. The rapist must take the girl into his protection, and if he is unmarried, he must marry the girl for triple the bride-price, although her father retains the right to reject the match. If the rapist is married, however, his own wife is raped.

• MAL A ¶56 deals with an ostensibly consensual relationship. In this case, the man simply pays the monetary penalty, and the girl’s father “shall treat his daughter in whatever manner he chooses.”

Unlike the biblical laws, MAL A distinguishes rape from consensual sex by adding a penalty requiring the rape of the rapist’s wife. Because the biblical laws lack this provision, they do not allow for a meaningful distinction between the two scenarios, and each collection only needed one law. In most other respects, the laws in MAL A resemble the law in CC: they allow the father to reject the match, do not explicitly prohibit divorce, and base the monetary penalty on the customary bride-price, although in this case it is tripled.

Evaluating the Relationship between the Laws

Scholars differ in their assessments of the relationship among CC, DC, and MAL A, but there is a good argument for the view that MAL A influenced both biblical collections.^[4] If this is correct, it would seem that DC drew the rape scenario from MAL A ¶55, while CC drew the scenario of consensual sex from MAL A ¶56.

The reasons for these decisions are not clear, but there may be a clue in Deut 22:23–27, which spares a betrothed girl the death penalty for sex with a man not her fiancé if she has been raped. This indicates that the author of DC^[5] considered consent a potential factor in determining female culpability, and he may have been uncomfortable using the example of a consensual relationship in a law that aimed in part to protect the girl, even though consent has no legal impact in this case.

When the Torah laws are compared to the laws in MAL A, both similarities and differences come to light. All the laws emphasize the offense against the father and not the crime of aggression against the girl herself, although they show some consideration for the girl’s well-being in providing the possibility of marriage. The laws differ in their monetary penalties: CC simply requires restitution of the girl’s lost value, while MAL A calls for a higher sum, presumably as a punishment for circumventing the father’s authority to arrange a marriage for his daughter. (DC’s penalty is difficult to evaluate, as noted above.)

The most significant difference between the laws, however, is MAL A’s punishment of rape with the rape of the rapist’s wife. Similar vicarious measure-for-measure punishments appear in the Laws of Hammurapi (LH), but none appear in the biblical collections, which restrict punishment to the perpetrator.^[6] Deuteronomy 24: 16 expresses the principle behind this distinction: “Parents shall not be put to death for children, nor children be put to death for parents: a person shall be put to death only for his own crime.”