Deuteronomy’s Uncompromising Demand for Women's Sexual Fidelity

At first glance, Deuteronomy 21–25 looks like a loose collection of rulings on miscellaneous topics, but a closer examination shows that much of the text is comprised of case law rulings dealing with family law.^[1]

These laws may derive from an independent law collection dealing with family law, which was split up into smaller sections when the family laws were inserted into Deuteronomy. It is all the more surprising, then, that the rulings dealing with sexual offences involving women have been kept together in a large, tightly knit section (22:13–29), in a fashion that is quite different from the editorial treatment of the legal material in chapters to follow. I will here only deal with the laws in this section. I will explore their meaning and connection to earlier ancient Near Eastern law, and will then show how the collection as a whole gains additional meaning within the broader context of Deuteronomy. ^[2]

Sexual Offenses Involving Women

This section of Deuteronomy 22 deals with cases of sexual offences in “descending order” of marital status of the women: married women (vv. 13–22), betrothed virgins (vv. 23–27), and unbetrothed virgins (vv. 28–29). The different rulings are linked together by means of reiterated catch-phrases, such as “to defame” (vv. 14, 19);^[3] “she shall remain his wife and he shall never divorce her” (vv. 19, 29);^[4] “you shall eradicate the evil from your midst” (vv. 21, 22, 24);^[5] “the two of them” (vv. 22, 24);^[6] and “because he violated her” (vv. 24, 29).^[7]

The tightly knit structure of this section indicates it was carefully drafted so that the section as a whole would convey a message greater than the individual rulings. In other words, they could be seen as paradigmatic. Such structures are frequent in ancient Near Eastern law, which did not express abstract legal principles, but used cases to make those principles evident. The laws in this section have counterparts in the legal literature of the ancient Near East, but the biblical author who composed Deuteronomy 22:13–29 carefully selected his material from a variety of options within the common legal tradition, and reworked it according to his particular outlook.

For example, Deuteronomy demands that all ritual activity be carried out at “the (one) place the Lord will choose” (e.g., Deut 12:10–28, 14:22–26, 15:19–23, 16:1–17). This means that the local judiciary had to be comprised of laymen, such as the town elders, and that any ritual connected with judgment had to be confined to the site of the Jerusalem temple.^[8]

Case 1 – The False Accusation

The section opens with a narrative about a case of false accusation, in which a husband seeks to divorce his recent wife (v. 13–19) and spreads the rumor that she was not a virgin when he consummated the marriage.^[9] The girl’s father brought the case before the elders, since he was defamed by the husband’s allegation that the father fraudulently passed off his daughter as a virgin and thereby received the full bride price customary for virgins.

Many of the Ancient Near Eastern law collections deal with cases of false accusation, and they stress that the burden of proof lies upon the accuser who must produce evidence to substantiate the accusation. For example, the laws of Hammurabi and the Middle Assyrian Laws prescribe that a man who makes an accusation against another man’s wife must provide proof or else be subject flogging (Hammurabi §127, Middle Assyrian Laws A §18).

In other Ancient Near Eastern laws, as well as in the book of Numbers, when evidence is lacking, the charges may be dismissed in some cases by means of a judicial oath of innocence, which one swears in the name of the god^[10] or by a sort of trial by ordeal (cf. Numbers 5:19–23.)^[11] Such procedures were a means to submit the case to divine judgment, and they presume the existence of local cultic centers for the administration of ritual acts in the presence of cult personnel.^[12]

The Book of Deuteronomy, however, advances a program for cult centralization that precludes settling cases by judicial oath or ordeal at a local sanctuary, and those involved may be too distant from Jerusalem to settle the matter there (see Deuteronomy 17:8–13). This may explain why the laws in Deuteronomy 22:13–29 avoid recourse to judicial oath or ordeal, and stress instead the crucial role of witnesses, or material evidence when witnesses are lacking.

But contrary to the principle established by the Ancient Near Eastern Law collections, the law in Deuteronomy 22:13–19 does not require the accuser to prove his claim! Instead, the burden of proof falls upon the accused—the bride and her father, who are expected to produce the bloodied sheet or something equivalent as proof that she was a virgin when the marriage was consummated. Only then is the libelous nature of the husband’s accusations established, after which the husband is punished according to the principles of talio (“equals,” or “measure for measure”—עין תחת עין ).

He must pay the father one hundred shekels (probably double the amount of the bride price he sought to recover, cf. vv. 28–29), and he is prohibited from any future attempt to divorce his bride. This is imagined as a strong disincentive that would discourage any husband from falsely accusing his wife in this manner.

Case 2 – The Non-Virgin Bride

This case of libel is immediately followed by a counter case (vv. 20–21), based on the premise that the husband’s allegation is true if the girl’s virginity cannot be established. According to the logic of the earlier case, we might expect that the girl’s father be penalized for fraud, and be required to repay the groom the bride price along with damages, and take back his daughter. Instead, the focus of the judgment moves to the daughter, who is executed by the people of her town for “bringing the charge of fornication upon her father’s house.”^[13]

The juxtaposition of these two cases—that of false accusation and that of the promiscuous girl—implies that in the latter case, failure to refute the husband’s accusation is tantamount to “proof” of guilt. By placing the complex scenario of the slandered bride and the promiscuous girl in the opening position of Deuteronomy 22:13–29, the author of this section implies that women in general are held responsible for establishing their innocence in charges of sexual misconduct. This conclusion follows from the fact that biblical and Ancient Near Eastern law collections generally place laws that establish important legal principles in the opening positions.

For example, the law “code” of Deuteronomy opens in chapter 12 with establishing the principle of cult centralization, which afterwards is carried out throughout the rest of Deuteronomy. So too, the Laws of Hammurabi (§1–4) opens with diverse cases of accusation in which evidence is not at hand. The opening position of these cases establishes the importance of evidence in ruling, as well as the general principle that burden of proof lies upon the accuser, who will bear serious consequences if the accusation is not substantiated. These principles regarding evidence and proof of accusation are then carried throughout the rest of Hammurabi’s laws.

The Rabbinic interpretation of Deuteronomy 22:20, however, could not accept the possibility that the Torah would dictate a guilty ruling due to lack of exonerating evidence, particularly since the case of the promiscuous girl is viewed as a capital offence. Accordingly, different commentators filled in gaps in Deuteronomy 22:20 so that the girl would be found guilty only after the husband produced witnesses to her premarital promiscuity. Thus, the Midrash interprets the sentence “the girl was not found to be a virgin” to mean that no witnesses were found to refute the witnesses produced by the husband (Sifre Deut 239), and Rashi, Rashbam and Gersonides all adopted this interpretation.

Case 3 – Adultery with a Married Woman

Further interpretative gaps are found in the law in Deuteronomy 22:22, which rules that if a married woman and a man who is not her husband are caught having sex, both man and woman will be subject to the same consequences. The biblical law has precursors in different cuneiform law collections from the second millennium B.C.E.^[14] But unlike Deuteronomy 22:22, these collections consider the possibility that the husband does not wish to impose the death penalty upon his wife, but wishes to pardon her or impose a reduced sentence. In such a case, the Ancient Near Eastern laws require that the same leniency be extended to the wife’s lover.

The point of these laws is not to establish the right of the husband to forgo punishing his wife, but to establish the important legal principle that partners in a criminal act bear equal responsibility and thus must share its penalty equally. In other words, when two or more persons commit a criminal act, the offended party cannot extract the full penalty from one of the partners, but not from the others. The earliest version of this law is found in the Laws of Hammurabi and, like the biblical law in Deuteronomy 22:22, it lacks counter-cases dealing with mitigating circumstances such as rape.

The editor of Hammurabi’s Laws might have felt that a variable ruling would detract from the new legal principle that partners in crime equally share its penalty. However, the editors of later Ancient Near Eastern collections felt the need to revise the law by appending additional cases that distinguish between consensual intercourse, for which the woman is held liable, and rape, for which she is not subject to punishment.

For example, the scribe who compiled the Hittite laws placed a case of mitigating circumstances before the case of “clear-cut” adultery. According to Hittite law § 197, rape is restricted to acts which occur in the open (“in the mountains”), while adultery includes any intercourse which transpires in privacy (“in her house”). This distinction is based on the assumption that the woman demonstrated complicity by being secreted with the man in a private place.

Deuteronomy 22:22, however, was drafted along the lines of the earliest version of the ruling, in which the guilt of the man and the woman is evident since they are caught in the act, and therefore the death penalty applies equally to both partners. There is considerable evidence that the biblical scribes were familiar with the wide range of Ancient Near Eastern legal traditions, therefore it appears that the author who drafted the women’s sex laws in Deuteronomy 22:22 chose to ignore the alternate models that distinguished between consensual intercourse and forced violation of a married woman.

The author of Deuteronomy 22:22 also dropped the clause found in cuneiform law that allows the husband to determine the extent of the penalty according to his discretion, even though other biblical sources imply that spousal discretion was respected in practice.^[15] According to rabbinic exegesis, the woman was exempt from the death sentence required by the law if she had been subject to “forced penetration (מעשה חידודים) in which a woman takes no pleasure.”^[16] Sifre Deuteronomy 243 further assumes that the law addresses only consensual intercourse, and that the rape of a married woman would have been judged according to the rulings applying to the betrothed girl.

All of these readings attempt to resolve the disparity inherent in the law and reconcile it with conditions obtaining in “the real world”, in which married women can fall victim to unprovoked sexual assault. Nevertheless, the law as formulated in Deuteronomy 22:22 singles out the married woman who has been possessed by her husband, and demands of her an uncompromising sexual exclusivity, which admits no exception or extenuating circumstances. Thus, any intercourse between a married woman and man other than her husband is taken to constitute adultery, whether the woman was a consenting partner or not.

Case 4 – Sex with a Betrothed Maiden

The tendency to hold women responsible to prove their innocence of sexual wrongdoing also appears throughout the second half of this collection of women’s sex laws (vv. 23–29). Verses 23–24 subjects the betrothed maiden assaulted in the town to the same sentence meted out against the promiscuous girl, execution by stoning (vv. 21, 23). The similar formulation of the ruling implies a comparison between both girls’ behavior, and begs the conclusion that the betrothed girl, who wanders about the town on her own and who does not resist her assailant by crying out, is guilty of promiscuity (Sifre Deut 242). However, the assumption does not necessarily hold that the crime would have been averted had she only cried out. The schematic formulation of the case leads to a vicious catch, for whether she did cry out or resisted in any other fashion, the fact that the rapist succeeded in subduing her within the precincts of the town is taken as evidence of the girl’s complicity. ^[17]

The secondary case (vv. 25–27) establishes extenuating circumstances to the rule established in vv. 23–24: if the girl is assaulted in the open field, the man alone is held responsible and suffers the death penalty. The extenuating nature of this case is explained by comparing the girl’s innocence to that of a murder victim (v. 26) since both are assumed to be helpless in the face of violent assault (Rashi, Ibn Ezra). Furthermore, since the act occurred in the open field, no one could heed her cries (v. 27).

However, there is an apparent lack of consistency in the premises ruling the two cases of the betrothed girl. On the one hand, if it is presumed that the girl is held responsible for her rape in the town because she displayed free and easy behavior by roaming the city streets on her own, then why should she not be held accountable for the impropriety of being out alone in the country? On the other hand, if she is cleared of suspicion in the country, since she—like a murder victim—is helpless to withstand her assailant (v. 26b), then why should she be held accountable for being raped in the town? Moreover, for the comparison between rape and murder victims to hold, it might be expected to apply equally, both in the town and in the open country, since the laws regarding homicide make no distinction on the basis of the place of the crime.

Case 5 – Sex with an Unbetrothed Maiden

The final paragraph deals with the rape of an unbetrothed virgin (vv. 28–29). Since she is not betrothed to another, it is possible to compel her assailant to marry her; the sum he is required to pay is considered the standard bride price, and he only forfeits his right of divorce. This ruling is similar to those found in cuneiform collections (e.g. Middle Assyrian Laws A §§ 55–56). Since the girl has not yet been promised in marriage, the rights to her virginity reside with her father. Thus, the case can be resolved by making restitution to the father for the loss of the expected bride price and by relieving the father of the burden of finding a husband willing to overlook the loss of her virginity. Deuteronomy 22:28–29 deals only with rape, but probably was drafted in order to complement the law in Exod 22:15-16 that discusses seduction of the unbethrothed maiden (Ibn Ezra).^[18]

The survey above dealt with but a few of the more numerous rulings and cases dealing with sexual offences involving women in the Ancient Near Eastern legal literature. It appears that the scribe who compiled the collection in Deuteronomy 22:13–29 carefully chose the cases and rulings from a large well of legal tradition. The choices this scribe made from the larger selection of options regarding circumstances and rulings imply that this selection of women’s sex laws was drafted in order to establish social norms that demand uncompromising fidelity of women towards their patron, be he father, present husband or future spouse. Leniency was only conceivable when the girl had not yet been promised in marriage (22:28–29), or prior to its consummation—and then, only when no evidence was available to exonerate the girl or prove her wrongdoing, due to the lack of witnesses (vv. 25–27).

Comparison with Apostasy Laws

The question arises, why did the scribe who drafted Deuteronomy 22:13–29 take such a stringent stand on the matter of sexual fidelity, when legal tradition provided more nuanced options that consider extenuating circumstances? The “patriarchal” basis of Israelite society is not a sufficient explanation, for Ancient Near Eastern society as a whole recognized the rights of the head of the family over the other family members, and throughout the Ancient Near East marriage was an economic transaction in which exclusive rights to the sexuality of virgin girls was transferred to the future husband upon payment of the bride price. I suggest that the reason might stem from the ideology propounded by the scribes of Deuteronomy.

The laws in chapter 22 contain the recurring injunction to “eradicate the evil from your midst” (ובערת הרע מקרבך, vv. 21, 22, 24), which similarly recurs in laws dealing with apostasy (Deuteronomy 13:6, 12, 17:7). Like the collection of sex laws in Deuteronomy 22:13–29, the apostasy laws in Deuteronomy 13 are arranged in a graduated structure according to the severity of the cases. It is thus likely that the two collections are connected, and may shed light on each other.

Deuteronomy 13:2–6 deals with open incitement by a person claiming to receive divine revelation, who is sentenced to death by unspecified means, as is the married woman discovered with another man (Deuteronomy 22:22). Deuteronomy 13:7–12 presents the case of covert incitement to apostasy by a member of the immediate family, who is to be stoned by the entire community, as is the promiscuous girl who presumably kept her loss of virginity secret (Deuteronomy 22:21). In both these cases, the actions of the guilty party are liable to implicate the entire family. Just as the case of the promiscuous girl raises the suspicion that the father colluded with the daughter to keep her secret in order to give her in marriage for the full price paid for virgins, so too incitement to apostasy within the family raises the question of their complicity.

Finally, in Deuteronomy 13:13–18, an entire community is implicated in the crime of submitting to incitement, which can only be amended by eradication of the offending community. That parallels the law dealing with rape of a betrothed virgin (Deuteronomy 22:23–24), which implies that were rape to transpire in the town and bystanders failed to intervene, notwithstanding the victim’s cries for help, the entire community would be implicated in the crime; therefore, the failure of the girl to resist her assailant is considered tantamount to submission.

Conclusion

In light of these similarities in outlook and language, it is likely that both the apostasy laws and the compilation of family laws in Deuteronomy 22:13–29 stem from the same source, either a single author or a group of scribes sharing the same ideology and means of expression. Thus, the careful formulation of the family laws in Deuteronomy 22 is designed to demonstrate the idea that the wholeness of the social structure is dependent upon women’s exclusive fidelity to their patron, just as the people as a whole are committed to exclusive fidelity to YHWH.

This explains why the laws in Deuteronomy 22:13–19 are so uncompromising. They may be ideal, utopian laws rather than legislation that was meant to be carried out; they are symbolic of the demand for absolute religious fidelity.^[19] The association between apostasy and sexual misconduct was facilitated by the usage of terms such as “ז-נ-ה” , “to fornicate” or “to go awhoring” as an expression for religious apostasy, as in Deuteronomy 31:16: “After you (die and) lie with your fathers, this people will go ‘whoring’ after the foreign gods of the land … and leave me and break my covenant that I made with them.”^[20]

In other words, the scribe who composed this section drew a two-way analogy between marital fidelity and the covenant fidelity due to a sovereign and he applied both to the nature of the relations YHWH demanded of his people. The demand of total allegiance is shared by both marital and political metaphors, and infidelity can only be conceived as resulting from deliberation (as in adultery) or from enticement (as in seduction). The laws of Deuteronomy 22 are thus symbolic and ideal, and we cannot be sure how the Deuteronomists would have dealt with the actual cases outlined here.