The Innocence of a Betrothed Woman Raped in the Field

In the case of man having sex with a betrothed young woman,^[1] Deuteronomy distinguishes between two cases, the first of which is treated as adultery and the second as rape:

Adultery in the Town—The first law describes the sex taking place in a town. It begins:

^{דברים כב:כג} כִּי יִהְיֶה נַעֲרָ בְתוּלָה מְאֹרָשָׂה לְאִישׁ וּמְצָאָהּ אִישׁ בָּעִיר וְשָׁכַב עִמָּהּ׃

^{Deut 22:23} In the case of a young woman who is betrothed to a man—if a man comes upon her in town and lies with her…^[2]

In this case, both the man and women are to be executed since it is presumed that the act was consensual; otherwise, people would have heard the woman cry out:

^{דברים כב:כד} וְהוֹצֵאתֶם אֶת שְׁנֵיהֶם אֶל שַׁעַר  הָעִיר הַהִוא וּסְקַלְתֶּם אֹתָם בָּאֲבָנִים וָמֵתוּ אֶת הַנַּעֲרָ עַל דְּבַר אֲשֶׁר לֹא צָעֲקָה בָעִיר וְאֶת הָאִישׁ עַל דְּבַר אֲשֶׁר עִנָּה אֶת אֵשֶׁת רֵעֵהוּ וּבִעַרְתָּ הָרָע מִקִּרְבֶּךָ׃

^{Deut 22:24} …you shall take the two of them out to the gate of that town and stone them to death: the woman because she did not cry for help in the town, and the man because he violated another man’s wife. Thus you will sweep away evil from your midst.^[3]

Rape in the Field—The second law applies when the sexual encounter occurs outside of any town:

^{דברים כב:כה} וְאִם־בַּשָּׂדֶה יִמְצָא הָאִישׁ אֶת־הַנַּעֲרָ הַמְאֹרָשָׂה וְהֶחֱזִיק־בָּהּ הָאִישׁ וְשָׁכַב עִמָּהּ...

^{Deut 22:25} But if the man comes upon the betrothed young woman in the open country, and the man lies with her by force…

In this case, only the man is to be executed since we assume the young woman did cry out, but no one was around to hear:

^{דברים כב:כה} ...וּמֵת הָאִישׁ אֲשֶׁר שָׁכַב עִמָּהּ לְבַדּוֹ׃ ^כב:כו וְלַנַּעֲרָ לֹא תַעֲשֶׂה דָבָר אֵין לַנַּעֲרָ חֵטְא מָוֶת כִּי כַּאֲשֶׁר יָקוּם אִישׁ עַל רֵעֵהוּ וּרְצָחוֹ נֶפֶשׁ כֵּן הַדָּבָר הַזֶּה׃ ^כב:כז כִּי בַשָּׂדֶה מְצָאָהּ צָעֲקָה הַנַּעֲרָ הַמְאֹרָשָׂה וְאֵין מוֹשִׁיעַ לָהּ׃

^{Deut 22:25} …only the man who lay with her shall die, ^22:26 but you shall do nothing to the woman. The woman did not incur the death penalty, for this case is like that of a man attacking another and murdering him. ^22:27 He came upon her in the open; though the betrothed woman cried for help, there was no one to save her.

The passage is repetitive, stating that only the man shall be executed, and then that the woman should not be punished and that she has not committed a capital offense.

A Rabbinic Midrash

A tannaitic midrash on Deuteronomy, Sifre Devarim (§243), offers a homiletic interpretation of the extra verbiage:

"ולנערה לא תעשה דבר"—מלמד שפטרה הכתוב מן המיתה.

“But you shall do nothing to the woman”—This teaches us that scripture exempts her from execution.

מנין אף מן הקרבן? תלמוד לומר "חטא."

From where do we know [that she is exempt] even from [bringing] a sacrifice? The teaching states, “[The woman did not incur a death] penalty.”

מנין אף מן המכות? תלמוד לומר "חטא מות."

From where do we know [that she is exempt] even from lashes? The teaching states, “[The woman did not incur a] death penalty.”^[4]

The rabbis use the repetitive nature of the verse to midrashically derive extra laws; but on a peshat level, it remains unclear why the biblical law is written in such a cumbersome way.

Comparing a Rape Victim to a Murder Victim

Stranger than the law’s repetitive nature is the further defense of the woman’s innocence by analogizing her to a murder victim. Again, Sifre Devarim takes the opportunity to derive a general legal principle from the equation of the rape victim with a murder victim, namely that we can save victims of attempted rape, female or male, and of attempted murder, by killing the assailant (§243):

"כי כאשר יקום איש על רעהו ורצחו נפש"—מלמד שכל אנוסים שבתורה פטורים ומצילים אותם בנפשם.

“For like when a man attacks his fellow and murders him”—This teaches us that all those who act under coercion are exempt from punishment and may be saved at the cost of their [i.e., the assailant’s] life.

אין לי אלא זה? מנין אף הרודף אחר חבירו להרגו ואחר הזכור? תלמוד לומר "כן הדבר הזה."

Do I know [that this applies] only of this case [i.e., the rape of a betrothed woman]? From where [do I know that this applies] also to one who is in pursuit of someone to kill him, or [in pursuit] of a male [to rape him]? The teaching states, “this is like that case.” ^[5]

In his commentary on the Torah, Rashi refers to this explanation as midrash and offers what he calls a peshat reading:

לפי פשוטו, זהו משמעו: כי אנוסה היא ובחזקה עמד עליה, כאדם העומד על חברו להורגו.

According to its peshat meaning, this is what it is saying: She was coerced, and he attacked her using force, like a person who attacks his fellow and kills him.

But as a way of highlighting the woman’s innocence, the analogy misses the mark: Shouldn’t the point here be that unlike the case in a town, where the woman’s failure to cry out indicates that she was complicit, in the case in the field we give her the benefit of the doubt and assume that she was coerced? How does using a murder analogy help make this distinction? Obviously, no one suspects a murder victim of being complicit in their own murder!

To better appreciate the phrasing and structure of this law, we need to look at a rhetorical device that more commonly makes its appearance in poetic parallelism.

Poetic Parallelism

Parallelism has long been recognized as a characteristic of much of biblical poetry. Adele Berlin defines parallelism as “a linguistic and stylistic device... in which two or more lines constitute a complete sentence and their elements correspond to each other semantically, grammatically, or even phonetically, with repetition and variation.”^[6] For example, in Psalm 145, traditionally known as Ashrei:

^{תהלים קמה:ו} וֶעֱזוּז נוֹרְאֹתֶיךָ יֹאמֵרוּ // וּגְדֻלָּתְךָ אֲסַפְּרֶנָּה׃

^{Ps 145:6} Of the might of Your awesome deeds men will talk, // and Your greatness I will recite.

The “might of [YHWH’s] awesome deeds” parallels YHWH’s “greatness,” and men talking of the first parallels the Psalmist’s reciting of the other.

Occasionally, the Masoretic division into verses can obscure the parallelism in biblical poetry. An instructive example is found in Psalm 113, part of the Hallel:

^{תהלים קיג:ה} מִי כַּי־הֹוָה אֱלֹהֵינוּ הַמַּגְבִּיהִי לָשָׁבֶת׃ ^קיג:ו הַמַּשְׁפִּילִי לִרְאוֹת בַּשָּׁמַיִם וּבָאָרֶץ׃

The NJPS translates these two verses:

^{Ps 113:5} Who is like YHWH our God, who, enthroned on high, ^113:6 sees what is below, in heaven and on earth?

It is hard to make sense of the long clause that begins “who, enthroned on high.” What is more, it distorts the meaning of the Hebrew which, translated more closely, reads: “^113:5 …who ascends to dwell, ^113:6 who descends to see in heaven and on earth.” And yet, if we look closely as this sequence, we can see that there is a parallel structure here—with an interesting, less common, feature also at play.

מִי כַּי־הֹוָה אֱלֹהֵינוּ

Who is like YHWH our God,

א. הַמַּגְבִּיהִי לָשָׁבֶת

A. who ascends to dwell

ב. הַמַּשְׁפִּילִי לִרְאוֹת

B. who descends to see

א'. בַּשָּׁמַיִם

A’. in heaven

ב'. וּבָאָרֶץ

B’. and on earth?

The first and second lines each start a clause, and the third and fourth lines, respectively complete those clauses:

1. Who ascends to dwell in heaven.
2. Who descends to see on earth.^[7]

Simeon Cheval of the University of Chicago has termed the device exemplified by these verses “alternation,” since the two clauses are intertwined and the text alternates between the first clause and the second (A then B, then the next part of A then the next part of B).^[8]

Parallelism and Alternation in Prose

While less common, parallelism appears occasionally in legal texts,^[9] sometimes with this alternation structure. One example noted already by Arnold Ehrlich (1848–1919) appears in the description of the priestly offerings:

^{שמות כט:כז} וְקִדַּשְׁתָּ

^{Exod 29:27} You shall consecrate

א. אֵת  חֲזֵה הַתְּנוּפָה

A. the breast of the elevation offering

ב. וְאֵת שׁוֹק הַתְּרוּמָה

B. and the thigh of the raised offering

א'. אֲשֶׁר הוּנַף

A’. that was elevated

ב'. וַאֲשֶׁר הוּרָם

B’. and that was raised

מֵאֵיל הַמִּלֻּאִים...

from the ram of ordination…

When we disentangle the alternation, the phrase “that was elevated” corresponds to “the breast of the elevation offering”; and “that was raised” corresponds to “the thigh of the raised offering.”^[10]

Explaining the Intent of the Murder Analogy

Returning to the law about the rape of the betrothed woman, we can see that here, too, we have parallelism with alternation, and that this explains the puzzling murder analogy:^[11]

^‏ וְאִם־בַּשָּׂדֶה יִמְצָא הָאִישׁ אֶת־הַנַּעֲרָ הַמְאֹרָשָׂה וְהֶחֱזִיק־בָּהּ הָאִישׁ וְשָׁכַב עִמָּהּ

But if the man comes upon the engaged woman in the open country, and the man lies with her by force,

א. וּמֵת הָאִישׁ אֲשֶׁר־שָׁכַב עִמָּהּ לְבַדּו

A. only the man who lay with her shall die

ב. וְלַנַּעֲרָ לֹא־תַעֲשֶׂה דָבָר אֵין לַנַּעֲרָ חֵטְא מָוֶת

B. and you shall do nothing to the woman; the woman did not incur the death penalty

א'. כִּי כַּאֲשֶׁר יָקוּם אִישׁ עַל־רֵעֵהוּ וּרְצָחוֹ נֶפֶשׁ כֵּן הַדָּבָר

A’. for this case is like that of a man attacking another and murdering him

ב'. כִּי בַשָּׂדֶה מְצָאָהּ צָעֲקָה הַנַּעֲרָ הַמְאֹרָשָׂה וְאֵין מוֹשִׁיעַ לָהּ

B’. for he came upon her in the open; though the engaged woman cried for help, there was no one to save her.

The A elements discuss the man and why he is punished, while the B elements discuss the woman and why she is not. When we disentangle the alternation, the two explanations fall into place:

1. Only the man who lay with the woman shall die, for this case is like that of a man attacking another and murdering him.
2. You shall do nothing to the woman. The woman did not incur the death penalty, for he came upon her in the open; though the engaged woman cried for help, there was no one to save her.

The somewhat cumbersome phrasing of the law masks the alternating parallel structure, which is why commentators struggled to explain the meaning of the comparison to murder. Seen in the intended structure, the analogy in verse 26 is now simple and clear: A man who rapes a betrothed woman in the field has committed an act as heinous as, and is subject to the same punishment as, one who attacks and murders another. This analogy is entirely unconnected to the issue of why the woman is not liable, as her exoneration is explained in the other half of the text: she cried out, but there was no one there to rescue her.