Marrying a Beautiful Captive Woman

Upon laying siege to a city that refuses to surrender, Deuteronomy states:

^{דברים כ:יג} וּנְתָנָהּ יְ־הוָה אֱלֹהֶיךָ בְּיָדֶךָ וְהִכִּיתָ אֶת כָּל זְכוּרָהּ לְפִי חָרֶב. ^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 20:13} When YHWH your God delivers it into your hand, you shall put all its males to the sword. ^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.

Deuteronomy here gives the Israelites permission to keep the women and children of defeated enemies as slaves, a standard practice in the ancient world.

Marrying a Captive Woman

Later, Deuteronomy clarifies that if a soldier wishes to take one of these captive women as a wife, he may do so:

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

^{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 and would take her to wife.^[1]

The text continues with instructions on how she is to be treated at the beginning:

^{דברים 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 21:12} You shall bring her into your house, and she shall trim her hair,^[2] pare her nails,^{[3] 12:13} and discard her captive’s garb. She shall spend a month’s time in your house lamenting her father and mother; after that you may come to her and possess her, and she shall be your wife.

As the gloss (ad loc.) of R. Joseph ibn Kaspi (1279–1340) correctly observes, these acts help transition her from a captured slave into an Israelite woman:

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.

Becoming a “free” woman, the wife of a free Israelite, may be a step up from being a captive slave, but it is still a painful erasure of her previous identity.^[4] Deuteronomy recognizes that a woman in such a situation needs time to mourn her past. As the 12^th century peshat commentator R. Joseph Bekhor Shor writes:

ואחר כן תבא אליה – אבל קודם לא, לפי שאין דבר זה הגון, שהיא תבכה ואתה תשחק עמה.

“Afterwards you may come to her”—but not before this, since it is not appropriate behavior that while she is crying you should get playful with her.

But what happens if, during the thirty-day mourning period, the man changes his mind?

She Cannot Be Returned to Slavery

Deuteronomy adds a legal protection for the woman:

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

^{Deut 21:14} And if you do not desire her, you shall release her to herself, but you may not sell her for money. You may not treat her like merchandise since you have debased her.

Once the woman has begun the process of transforming her identity from captive foreigner to a member of the Israelite polity, the man cannot sell her back into slavery. This would violate what Deuteronomy elsewhere describes as a terrible sin, i.e., selling a fellow Israelite like chattel:

^{דברים כד:ז} כִּי יִמָּצֵא אִישׁ גֹּנֵב נֶפֶשׁ מֵאֶחָיו מִבְּנֵי יִשְׂרָאֵל וְהִתְעַמֶּר בּוֹ וּמְכָרוֹ וּמֵת הַגַּנָּב הַהוּא וּבִעַרְתָּ הָרָע מִקִּרְבֶּךָ.

^{Deut 24:7} If a man is found to have kidnapped a fellow Israelite, treating him like merchandise and selling him, that kidnapper shall die; thus you will sweep out evil from your midst.

We see the same unusual Hebrew term here, the root ע.מ.ר in the hitpaʿel form, the same root used for a sheaf of grain (עֹמֶר) in Hebrew; these are the only two such occurrences. In Ugaritic, a noun form of this root, ġmr(m), refers to conscript laborers. Thus, these two Deuteronomic uses mean “to commodify” or “to use for commerce.”^[5] In our case, the law is saying that once she is removed from the status of slave woman, she cannot then be returned to it.

A Hebrew Maidservant

The law here is reminiscent of the Covenant Collection’s law of the Hebrew maidservant, a law that the Deuteronomist likely knew^[6]:

^{שמות כא:ז} וְכִי יִמְכֹּר אִישׁ אֶת בִּתּוֹ לְאָמָה לֹא תֵצֵא כְּצֵאת הָעֲבָדִים. ^כא:ח אִם רָעָה בְּעֵינֵי אֲדֹנֶיהָ אֲשֶׁר לא [לוֹ] יְעָדָהּ וְהֶפְדָּהּ לְעַם נָכְרִי לֹא יִמְשֹׁל לְמָכְרָהּ בְּבִגְדוֹ בָהּ.

^{Exod 21:7} When a man sells his daughter as a slave, she shall not be freed as male slaves are. ^21:8 If she proves to be displeasing to her master, who designated her for himself, he must let her be redeemed; he shall not have the right to sell her to outsiders, since he broke faith with her.

Apparently, designating a slave girl as a future wife and then breaking the promise was considered a form of humiliation and betrayal that required the man to make amends by freeing her.

Only Women in the Israelite Polity

The connection between these two laws highlights an important point: these protections are specifically for Israelite women or, at least, women who are part of the Israelite polity. The law in Exodus protects the daughter of an Israelite man who is destitute enough to have to sell his daughter to another man, who will marry her when she comes of age. The beautiful captive law specifically protects a captive foreigner whom an Israelite man wishes to marry—but only once she sheds her foreign identity.

Taking Her as a Wife Twice

When does the woman become his wife, before or after the ritual takes place? The ambiguity is inherent in the phrase וְלָקַחְתָּ לְךָ לְאִשָּׁה “and you would take her as a wife” that appears in verse 11, before the ritual, and וְהָיְתָה לְךָ לְאִשָּׁה “and she shall be to you for a wife” in verse 13, after the ritual.^[7]

This ambiguity is likely the source for the debate found in the Jerusalem Talmud, framed as a message from R. Yohanan to the rabbis of Babylon about a mistaken position taken by Rav^[8] (j. Makkot 2:6):

אתון אמרין בשם רב יפת תואר לא התירו בה אלא בעילה ראשונה בלבד ואני אומר ולא בעילה ראשונה ולא בעילה אחרונה אלא לאחר כל המעשים ואחר כן תבוא עליה ובעלתה אחר כל המעשים

You say in the name of Rav: “[Sex with] the beautiful captive is only permitted once [before he marries her], but I say that neither this act of sex or any other act of sex is permitted until after all the ritual acts [noted in the Deuteronomy] are performed, as it says ‘afterwards he may come to her and lie with her’—after all the ritual acts.”

According to Rabbi Yohanan, the Torah forbids any sexual contact between the man and the woman until after the month of mourning, while according to Rav, the Torah actually allows one act of sex—ostensibly upon her capture.

For You Have Debased Her

The question of whether or not the man has sex with the captive woman before the ritual is also related to how one understands the final clause “because he has ʿinna-ed her.” Although it is often understood as a rape term, it specifically refers to debasement, treating someone with an improper, lower status than they deserve.”^[9]

In Midrash Tannaim to Deuteronomy (21:14), the rabbis debate how exactly he debased her. R. Josiah argues that it is a reference to the rejection of her as a wife after the ritual was complete, while R. Jonathan argues that it is a reference to his having had sex with her already, before marrying her.^[10]

To prove his point, R. Jonathan notes that the term “debase” is used in the Dinah story Gen 34:2), and refers to how Shechem’s taking of Dinah debased her. A stronger indication that the debasement here refers to sex is found in the law concerning a man who rapes an unmarried Israelite virgin:

^{דברים כב:כט} וְנָתַן הָאִישׁ הַשֹּׁכֵב עִמָּהּ לַאֲבִי (הנער) [הַנַּעֲרָה] חֲמִשִּׁים כָּסֶף וְלוֹ תִהְיֶה לְאִשָּׁה תַּחַת אֲשֶׁר עִנָּהּ לֹא יוּכַל שַׁלְּחָהּ כָּל יָמָיו.

^{Deut 22:29} 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 debased her, he can never have the right to divorce her.^[11]

This law assumes what Deuteronomy notes elsewhere (24:1), that a husband has the right to divorce his wife,^[12] but it is curtailed here because he debased her by taking her without marrying her.^[13]

Whether the debasement of the beautiful captive is the sex or the rejection, the Torah attempts to shield her from the worst of its consequences because the Israelite man married her and thus elevated her status within the Israelite polity.

The Unspoken Reality of Captive Women

The rabbis are uncomfortable with this law and struggle to understand why the Torah would permit an Israelite man to take a wife in this manner. To deal with this problem, they offered a creative reinterpretation of the biblical passage (b. Qiddushin 21b–22a):

יפת תאר—לא דברה תורה אלא כנגד יצר הרע: מוטב שיאכלו ישראל בשר תמותות שחוטות ואל יאכלו בשר תמותות נבילות...

“Beautiful”—The Torah spoke only in response to the evil inclination.^[14] Better that Israelites eat the meat of sickly animals that have been properly slaughtered and not the meat of sickly animals that have died of their own accord.

In this metaphor, a beautiful war captive is akin to a sickly animal: ideally, she should be left alone. The Israelite warrior should not touch the beautiful captive any more than a law-abiding Israelite should consume the meat of a sickly animal, which is not absolutely unkosher, but borders on the unkosher.

If, however, he is intent on this woman anyway, better that he follow the prescribed rituals and minimize the prohibition rather than simply engaging in sex without marrying her, which is akin to his consuming meat that is undoubtedly not kosher. According to this, the Torah concedes that certain actions may take place even though ideally they should not.^[15]

Jesus on Divorce: Another Moral Compromise

The idea that a Torah law may not reflect the divine ideal but instead a human compromise has a close parallel in the gospels. The earliest version is the Gospel of Mark:

^{Mark 10:2} Some Pharisees came, and to test him (=Jesus) they asked, “Is it lawful for a man to divorce his wife?” ^10:3 He answered them, “What did Moses command you?” ^10:4 They said, “Moses allowed a man to write a certificate of dismissal and to divorce her.” ^10:5 But Jesus said to them, “Because of your hardness of heart he wrote this commandment for you. ^10:6 But from the beginning of creation, ‘God made them male and female.’ ^10:7 ‘For this reason a man shall leave his father and mother and be joined to his wife, ^10:8 and the two shall become one flesh.’ So they are no longer two, but one flesh. ^10:9 Therefore what God has joined together, let no one separate.”^[16] (NRSV)

In this story, retold in the Gospel of Matthew (19:3–8),^[17] Jesus claims that the Torah’s law permitting divorce is actually immoral. The only reason the Torah included it is because it is the lesser of two evils. In other words, men would divorce their wives anyway, so the Torah designed a form of legislation to accommodate this, but really, it would be best if people never divorced. Later in the story, as well as in Matthew’s Sermon on the Mount, Jesus takes this a step further and says that remarriage after divorce is akin to adultery, claiming that the Torah’s concession is no longer valid, at least for those righteous enough to see the truth.

Jesus’s claim that in an ideal world, the Torah would not permit divorce is conceptually similar to the Talmud’s claim that the Torah permitted marrying the captive woman to limit or avoid wartime rape. What the Talmud calls “the evil inclination,” Jesus calls “hardness of heart” (based on Ezekiel 2:4 and 3:7), but the logic is the same: The Torah permits an action which it would have preferred to prohibit.

Some early Christian interpreters understood this as a statement about the hardness of the Jewish heart. To them, not only this law^[18] but many of the Torah’s commandments were imposed by God in response to the hardness of the Israelite heart.^[19] Nevertheless, on a simple level, Jesus seems to be making the same point about human weakness as the rabbis: There are things the Torah would prefer people not do but, given the hardness of the human heart—the power of the evil inclination, in rabbinic terminology—the Torah felt the need to compromise.

Ethical Advancement – Rabbinic Law and Beyond

The Torah’s law of the beautiful captive protects the woman by allowing her to mourn her past and prohibiting her husband to return her to slavery. And, while Deuteronomy never takes up the question of consent, it seems to take for granted that a woman in such a position would prefer to be married to the Israelite than be his slave-woman.

Missing from the Torah’s discussion is the fate of all the captive women kept as slaves whom no Israelite captor wished to marry. The Torah never specifies how they should be treated. The only verse that mentions them—Deuteronomy 20:14 quoted above—refers to them as booty (שָׁלָל). Rabbinic law offers them further protection, as it explicitly forbids sex with them unless it comes as part of the process of marriage, but even this protection comes mostly out of an interest to limit exogamy and sex with non-Jewish women.

In modern times, when discrimination based on ethnicity is recognized as an inherent wrong, and women’s consent is of paramount importance, we can both be inspired by the strides Deuteronomy and the rabbis took to make the Israelites behave more ethically in their respective cultural contexts, while at the same time seeing the shortcomings in the tradition and striving to reach greater heights.