Marrying Your Daughter to Her Rapist
How Are We To Understand Torah?
Must the Torah’s laws be perfect as they are, or can they be understood as reflecting biblical society with the understanding that it can adapt as society develops? The Torah contains a number of laws that fly in the face of modern ethical notions. In certain ways, this is similar to the question of science and Torah, where many admit that the Torah expresses notions of the universe that contradict modern science. Although a significant number of people in the Orthodox world have made peace with the fact that the Torah speaks in the language of its times when it comes to science, the question is all the more pressing when it comes to ethics, especially for people who find themselves inhabiting both the Torah and modern worlds.
The following are a few examples of ethically problematic laws.
According to the Torah:
- Certain enemies of Israel, like the seven Canaanite nations or the Amalekites must be slaughtered, man, woman and child (Deut 20:16-18, 25:19). In other words, the Torah commands their genocide, an act that any ethical person today must abhor.
- A son who is a glutton and a drunk, and who speaks rudely to his parents should be stoned to death (Deut 21:18-21). No one nowadays could possibly advocate for such a punishment.
- Anyone who worships idols (Deut 13:7-12), or practices any form of witchcraft or sorcery (Exod 22:17; Lev 20:27) must be put to death. Entire cities that worship idols must be destroyed entirely (Deut 13:13-19). In modern times, freedom of religion is one of our most sacred principles, and witch hunting is synonymous with barbaric and primitive behavior. In the U.S., we remember the Salem witch trials with shame.
The above problems were dealt with by the Rabbis in a way that softens the moral problems. For example, the genocide laws are understood to be only relevant to the nations specified in the Torah, which no longer existed by the rabbinic period. Furthermore, the Rabbis claim that after King Sennacherib of Assyria conquered the Levant (in the late eighth century BCE), he mixed up all the nations so much that all discriminatory laws that once applied to any nation (including Moabites, Ammonites, Edomites, Egyptians, etc.) are now defunct (m. Yadayim 4:4; t. Kiddushin 5:4; b.Berachot 28a).
The rabbis make it impossible to execute a rebellious child by requiring the child to consume impossible amounts of food and drink in a short period in order to be defined as a glutton or drunk (m. Sanhedrin 8:2). As if that weren’t enough, they put the nail in the coffin by reading the words “our voice” (Deut 21:20), which is part of the parents’ accusation against their son (“he doesn’t listen to our voice”), to mean that the mother and father both have the exact same voice (b. Sanhedrin 71a).
The rabbis also make the issue of killing people for idolatry or witchcraft into a non-issue in a few ways. First, without a sanhedrin, there is no capital punishment. Second, the extremely strict rules surrounding witness testimony that the Rabbis invoke make a conviction virtually impossible. Finally, the Rabbis say that the desire to commit idolatry has been eradicated from the world (b. Sanhedrin 64a; b Yoma 69b; Song of Songs Rabbah 7:8).
While Chazal tempered the laws and used various maneuvers in avoiding any untoward consequences of the laws existing on the books, they don’t deal with the intent and the meaning of the laws that go to the heart of the ethical problems. In other words, Chazal avoided the problem by reinterpreting the laws and presenting their interpretation as the Torah’s original intent. This does not solve the problem for those of us who believe that laws developed over time, and that the rabbinic interpretation is anachronistic. Thus, we have little choice but to try to uncover the moral underpinnings of the Torah’s legislation and deal honestly with its limitations. How are we to do this?
The Wave Theory
Can the Torah be a source of morality, even one touched by the divine, while still containing laws that are decidedly unethical? Many great Torah scholars and ethicists have dealt with the above problem, and I surveyed some of the responses in part 4 of my TABS essay, “Torah Min HaShamayim: A Guide to the Four Questions.” One response that I found particularly meaningful, and has helped me begin to craft my own response comes from Professor Tamar Ross, who describes what she calls “cumulative revelation.”
In my understanding of Ross’ work, cumulative revelation means that God begins the revelation at the point where the people and prophets can understand it, but the ideas become refined and adapted over time as God “reveals Torah” to the Jews on a continuing basis. Furthermore, Ross’ concept of revelation is not an active communication process like speaking, but refers to a more abstract connection between the divine and human “minds.”
One essential point that undergirds Ross’ approach is that we cannot expect even a “revealed” text to reflect a perfect conception of morality. By its very nature, a meeting of minds is limited by the parameters of the minds involved. Thus, even a great person from the past must be understood in his or her historical context.
In thinking about these problems, I have tried to build on Ross’ work, using what I have dubbed “Wave Theory,” a preliminary version of which I describe in part 4 of my “Avraham Avinu is my Father” essay. In that piece, I argue that revelation derives from the channeling of the divine through human conduits, and that the revelation must be understood by placing it in the context of the historical reality of the ancient world that produced it.
In order to understand the message behind a given law and what it is trying to accomplish, we must understand how any given law or ideal functioned in any given society, in our case, ancient Israel. When we understand this, we can “subtract” the societal elements to see the ideas in their relative purity and reapply them to our times. In other words, the ideals of the Torah flow from biblical times to the present, but the application and context are continually shifting (hence the wave imagery).
Test Case: The Law of the Rapist
To illustrate this approach I would like to highlight one brief example: the law regarding a man who rapes a young maiden (Deut. 22:28-29):
כח כִּי יִמְצָא אִישׁ נער [נַעֲרָה] בְתוּלָה אֲשֶׁר לֹא אֹרָשָׂה וּתְפָשָׂהּ וְשָׁכַב עִמָּהּ וְנִמְצָאוּ. כט וְנָתַן הָאִישׁ הַשֹּׁכֵב עִמָּהּ לַאֲבִי הנער [הַנַּעֲרָה] 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 (NJPS).
The punishment of the rapist consists of paying the father 50 shekels and marrying the deflowered maiden with no option for divorce. The Torah does not discuss any other options for this girl’s future; she appears to have no independence and no voice in the matter. Nowhere does the Torah factor in the invasion of her intimacy, her privacy, and her sense of bodily integrity, nor does it discuss whether she would want to marry her rapist. The Torah seems mostly concerned about the financial loss to the father, and secondarily about the financial/marital future of the girl. From a modern point of view, this law seems to be premised on an objectification of girls/women and their sexuality.
Static or Evolving?
The above point highlights one of the most significant problems with the “dictation model” of the Torah, which comes with the implied corollary that if God said it the message must be static and timeless. In other words, if one posits that that the Torah is meant to be understood as God’s dictation to the prophet word for word, then it is very difficult to explain how a law that seems so limited in its ethical vision could have been enunciated by the divine lips (so to speak).
But if, as Ross and others have argued, we assume that prophecy is not meant to be understood as a verbal revelation from God to the prophet, but—to use my language—as a tapping into the divine flow, then understanding the historical and intellectual context of the author/prophet is vital. Once we admit that any divine message is refracted through a human perspective, then by definition, the divine message will be incomplete and subject to the perspectives and comprehension of the prophet. (In fact, even the direct dictation model can offer a cumulative revelation approach. God had to communicate with people where they were and based on their frame of reference and what was possible in their moral and religious imagination. The Torah does not outlaw slavery, but few of us would believe today that God would approve of the institution. This is similar to what Rambam says regarding sacrifices.)
Thus, as we attempt to understand the law of the rapist, we must factor historical context into the equation. Deuteronomy certainly understood that rape was a crime, but how it understood that crime differs from how we understand it; Deuteronomy cannot reasonably be expected to work towards correcting problems it did not perceive.
The Historical Context of the Rape Laws
Israelite/Judahite society in the biblical period was both patriarchal (I use the term descriptively) and agrarian, as were virtually all Levantine societies in this period. The economy was based on ownership of land, and the landowners were virtually all men. Women, unless they had no male relatives, were subordinate to the family patriarch, whether this was her husband or her father, and subject to his decisions. In such a society, a woman survived by being the wife of a landowner. Marriage would have been arranged by the girl’s father to a man who could pay the bride-price and, thus, had a good chance of being able to support his daughter. The father would have expected the payment, which was a hefty sum, but would only be paid if the father successfully guarded his daughter’s virginity, saving it for her future groom.
Thus, to turn to our case, having (forcefully) taken the young girl’s virginity, the rapist effectively leaves her without a future and puts her father in a complicated position of both losing the brideprice he expected and having to support his daughter for an unknown amount of time in the future, perhaps permanently, or marrying her off to a less financially stable man who may not be able to support her. If the father could not do this, or died before she could find a husband, depending on the wealth or generosity of her brothers, such a girl was at risk of future poverty or a life of prostitution. Understanding this, the Torah tries to solve the problems. The father receives the expected payment and the girl receives her husband with a guarantee of lifetime support.
The Middle Assyrian Laws
Deuteronomy’s solution to the problem is a variation on what seems to be the standard Ancient Near Eastern solution. For example, here is what the Middle Assyrian laws (late 2nd millennium BCE) say about the same case (#55):
If a man forcibly seizes and rapes a maiden who is residing in her father’s house, …the father of the maiden shall take the wife of the fornicator of the maiden and hand her over to be raped; he shall not return her to her husband, but he shall take (and keep?) her; the father shall give his daughter who is the victim of fornication into the protection of the household of her fornicator. If he (the fornicator) has no wife, the fornicator shall give “triple” the silver as the value of the maiden to her father; her fornicator shall marry her; he shall not (reject?) her. If the father does not desire it so, he shall receive “triple” silver for the maiden, and he shall give his daughter to whomever he chooses.
Admittedly there are a number of differences in the details of the punishment in MAL and in Deuteronomy, and important connections with a similar law in Exodus (the seduction of the unbetrothed maiden). I will not go into detailed comparisons here, as was done well by Eve Levavi Feinstein in her TABS essay, “The Rape of the Unbetrothed Virgin in Torah and Assyrian Law: A Comparative Analysis.” Nonetheless, the overall similarity between the Deuteronomic law and the Assyrian law show that they come from the same milieu. In the Ancient Near East, the daughter’s status was a financial asset for a father, and her rape is analyzed primarily from this perspective. Furthermore, in both societies, the primary problem posed by the rape was not the damage to the girl’s psyche or mental health, but the economic and social danger that the loss of virginity poses. Thus, both laws come up with the same “elegant solution”; she marries the rapist.
Note: The Comparative Fallacy
If the Torah’s solution is essentially the same as that of other Ancient Near Eastern laws, doesn’t that undo the claim that the Torah is something special or important, touched by the divine? I don’t think so. Most ethical codes forbid murder, forbid theft, assault, rape, etc., and we don’t ask why the Torah needed to reiterate them. Similarly, most ethical codes have rules about judges, evidence, witnesses, and penalties for wrongdoing. If a given Deuteronomic law is comparable to the best of the laws in ancient times, this is hardly a criticism.
The Rabbinic Understanding of the Law
If the law as it appears in Deuteronomy works only in a particular historical context (ancient Israelite agrarian culture) and from a particular social vantage point (patriarchy), is there anything that the law can teach us nowadays? Before trying to answer this question, it is worth taking a look at a historical midpoint between biblical and modern times, Rabbinic times.
The rabbis also lived in a patriarchal culture, but it was less agrarian and more heavily mercantile. There were more things that a woman could do to support herself and the social and financial danger posed by the rape was somewhat less. Whether this was the reason for the Rabbis’ adjustment to the law or whether the reason was more purely ethical in nature I can’t say, but the rabbis did add one crucial adjustment.
According to the rabbis, the girl only marries her rapist if she wishes to; in other words, the decision is up to her and not (only) her father (b. Ketubot39b). This fits in with Chazal’s marital ethic in general, since they forbade a father from marrying his daughter to anyone unless she says, “I want to marry that man” (b. Kiddushin 41a). The Rabbis also add a requirement for the rapist to pay her for the embarrassment (בושה), the damage to her reputation (פגם) and pain and suffering (צער), above and beyond the payment of the fine (קנס) of fifty shekels to her father (b. Ketubot 40b).
Thus the Rabbis dealt with the problems in their own way, by reinterpreting the law to include elements that temper what appears as callous treatment of the girl. The marriage is now up to her, and she receives a payment for her suffering and humiliation over and above the payment that will go to her father for what would have been a major financial setback.
What Can We Learn from this Law in Modern Times?
In our society, the mere suggestion that the girl marry her rapist is inconceivable. Our society’s concern for the woman is not about financial or social consequences but about the effect on her emotional health (a subject rarely, if ever, discussed in the Bible). The pain and fear that the girl/woman suffers at the time are only one element; there are long term emotional and psychological effects that last well past the time of the rape and its aftermath.
So, what can we learn from the law in Deuteronomy that might be relevant to our social context? One theme that undergirds the Torah’s message is protecting the vulnerable girl. Although it is true that the Torah emphasizes the father’s financial loss, taken in context, the Torah’s protection of the girl is quite strong. According to the Torah, the rapist must marry and, therefore, support the girl for his entire life with no option of divorce, taking away a prerogative that elsewhere seems to be the husband’s alone.
If we are to abstract the ethical notion of this rule, it is that society must protect its women from being victims of unwanted sexual activity, and try to correct any damage done to them if such a thing occurs. Sadly, even in our modern feminist society, rape and exploitation of women remains a serious and all too common occurrence.
Applying the Torah’s rule to a modern context, I would argue that the man must pay for whatever physical and psychological treatment the woman requires and that there should be no time limit for this punishment, just as there was no time when the rapist-husband was permitted to abandon his wife. In other words, translating the Torah’s legislation to our times: What does the rapist have to do/pay in order to make restitution for the crime? Whatever it takes.
I am not certain that the lessons I draw are the correct ones, and there are surely others to be learned. Nevertheless, I believe that approaching the Torah’s laws as cumulative revelation or divine flow—as opposed to a static and timeless divine dictation—go a long way towards helping us reclaim the ethical core of the biblical texts when confronted by morally problematic laws.
For those of us who wish to stay part of the world of meaningful Torah study and observance while remaining true to modern ethical sensibilities, contextualizing the moral message seems essential. Doing so allows us to bring the original message of the Torah into modern times, so that the divine voice can speak and inspire us today. This way, we can study the Torah using modern tools to uncover ethical and religious insights, without compromising either the integrity of our tradition or, worst of all, our moral integrity as human beings.
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September 4, 2014
November 12, 2019
Dr. Rabbi Zev Farber is a fellow at Project TABS and editor of TheTorah.com. He holds a Ph.D. from Emory University in Jewish Religious Cultures (Hebrew Bible focus) and an M.A. from Hebrew University in Jewish History (biblical period focus). In addition to academic training, Zev holds ordination (yoreh yoreh) and advanced ordination (yadin yadin) from Yeshivat Chovevei Torah (YCT) Rabbinical School. He is the author of Images of Joshua in the Bible and their Reception (De Gruyter, BZAW 457) and the editor of Halakhic Realities: Collected Essays on Brain Death (Maggid).
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