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David Resnick

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2021

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The Captive Woman at the Intersection of War and Family Laws

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https://thetorah.com/article/the-captive-woman-at-the-intersection-of-war-and-family-laws

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David Resnick

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The Captive Woman at the Intersection of War and Family Laws

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TheTorah.com

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2021

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https://thetorah.com/article/the-captive-woman-at-the-intersection-of-war-and-family-laws

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The Captive Woman at the Intersection of War and Family Laws

Deuteronomy’s law of the beautiful captive woman protects the non-Israelite woman taken in war from rape and from being re-enslaved after marriage. At the same time, it discourages the man from marrying her, in order to preserve the interests of the Israelite family.

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The Captive Woman at the Intersection of War and Family Laws

The Prisoner, Evelyn De Morgan ca. 1907 . Wikimedia

The division of the Torah into chapters and parashiyot is not embedded in the biblical text itself and reflects later interpretations of how to read it. Much of the Torah is a free-flowing text, without headings or subdivisions,[1] thus, it is often difficult to delineate where sections start and end, especially in law collections. In reference to the Deuteronomic Law Collection, Jeffrey Tigay writes:[2]

[T]he laws of Deuteronomy fall into several groups, some of which share a common theme while others do not. Digressions into relatively unrelated subjects are frequent and it is not always clear where one section ends and the next begins.

Determining how laws are grouped is not merely an academic exercise but can affect how we understand what a given law is trying to accomplish. The law of the beautiful captive is a case in point.

Laws of War

Deuteronomy chapter 20 lays out a long description of the laws of warfare, beginning with a warning not to fear the enemy (vv. 1–4). The war laws continue with exemptions who have just built a house, planted a vineyard, got married, or fear battle (20:5–9), capture of cities outside the land (20:10–15) and inside the land (20:16–18), and the prohibition to cut down fruit trees during a siege (20:16–18).

Deuteronomy then moves away from war to what happens if a dead body is found outside an Israelite city (21:1–9),[3] but then returns to warfare, with the law of the beautiful captive:

דברים כא:י כִּי תֵצֵא לַמִּלְחָמָה עַל אֹיְבֶיךָ וּנְתָנוֹ יְ־הוָה אֱלֹהֶיךָ בְּיָדֶךָ וְשָׁבִיתָ שִׁבְיוֹ. כא:יא וְרָאִיתָ בַּשִּׁבְיָה אֵשֶׁת יְפַת תֹּאַר וְחָשַׁקְתָּ בָהּ...
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…

This law modifies a verse in an earlier war law, which states that when a foreign city refuses to surrender, the males should all be killed, but women can be taken as booty,[4] bringing the question of sex and marriage to the fore.

In fact, this law begins with the same phrase that appears only in the opening of the war laws, thus functioning as a kind of bookend:

Deut 20:1

כִּי תֵצֵא לַמִּלְחָמָה עַל אֹיְבֶךָ וְרָאִיתָ סוּס וָרֶכֶב...
When you take the field against your enemies, and see horses and chariots…

Deut 21:10

כִּי תֵצֵא לַמִּלְחָמָה עַל אֹיְבֶיךָ וּנְתָנוֹ יְ־הוָה אֱלֹהֶיךָ בְּיָדֶךָ...
When you take the field against your enemies, and YHWH your God delivers them into your power…

Accordingly, as Alexander Rofé of Hebrew University argues, the law of the beautiful capture should be understood as part of the war laws.[5]

And yet, the laws in this section of the Deuteronomic Law Collection can be subdivided differently.

Family Law

Rabbinic tradition begins a new parashah, Ki Teitzei, with the law of the beautiful captive, separating this law from the other laws of war in the previous parashah, Shofetim.[6] This division highlights the relationship this law has with the next two laws: requiring the father to honor the rights of a firstborn son, even if his mother is unbeloved (21:15–17), and punishing a wayward son by stoning (21:18–21).

All three of these laws deal with issues that come up in a nuclear family. Rabbinic tradition even suggests a progression between the three laws, as the 10th century Tanna debei Eliyahu Zuta writes (§3, Ish-Shalom ed.):

ומנין לנושא אשה לשם זנות שמוציאין הימנו בן סורר ומורה, שנאמר וראית בשביה אשת יפת תאר, סוף שמרננין בו הבריות, ומתוך רננה שמרננין בו הבריות הולך ונושא אחרת, שנאמר כי תהיין לאיש שתי נשים וגו', ומתוך שנושא אשה אחרת הוא אוהב האחת ושונא האחת, שנאמר האחת אהובה והאחת שנואה, ומתוך שהוא אוהב האחת ושונא האחת סוף שמוציאין ממנו בן סורר ומורה.
How do we know that if a man marries a woman for the purpose of fornication that he will produce a wayward son? For it says (Deut 21:11): “and you see among the captives a beautiful woman.” In the end, people gossip about him, and because people gossip, he goes and marries another woman, as it says (v.15): “If a man has two wives, etc.” And since he marries another woman, he loves (the new) one and not the other (previous one), as it says (ibid.): “one loved and one unloved.” And since he loves one and not the other, in the end, he raises a wayward son.

While this connection may be an overreading of the text, it highlights the family-law nature of this unit, and the concern about proper treatment of family members—wife, son, parents—recognized by contemporary scholars as well. Adele Berlin, Professor (Emerita) of Bible at the University of Maryland, writes that all three family laws exemplify how Deuteronomy stabilized family relationships by depriving “the male head of household of ultimate power to punish his dependents, according that power to society as a whole, through the courts, the judges, or the elders.”[7]

Where does the law of the beautiful captive fit? Is it a war law or family law?[8] The answer to this question depends, somewhat, on how we understand the details of the law and its purpose, beginning with an ambiguous clause.

Taking Her as Wife: Protasis or Apodosis?

Beginning with the man seeing the beautiful woman, Deuteronomy continues with a series of verbs that are challenging to translate. Unlike English, which uses modals such as “may,” “can,” or “must” to delineate the protasis (“if…”) from the apodosis (“then…”) in a conditional sentence, in Hebrew, both use the same grammatical form.[9]

The following translation, which does not mark the divider between the protasis and the apodosis, highlights the problem:

דברים כא:יא וְרָאִיתָ בַּשִּׁבְיָה אֵשֶׁת יְפַת תֹּאַר וְחָשַׁקְתָּ בָהּ וְלָקַחְתָּ לְךָ לְאִשָּׁה. 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 21:11 And you see among the captives a beautiful woman and you desire her and you take her as wife 21:12 and you bring her into your house, and she trims her hair, pares her nails, 21:13 and discards her captive’s garb, and she spends a month’s time in your house mourning her father and mother, and after that, you have sex with her and (thereby) become her husband, and she shall be your wife.

There are three main options for where the shift from protasis to apodosis occurs:[10]

  1. Her Actions—“If you desire her, and marry her,[11] and take her home, then she shall trim her hair….[12]
  2. Bringing Her Home—“If you desire her and marry her, then you may bring her home…”
  3. Taking Her as Wife—“If you desire her, then you may take her as a wife” or even “then you must take her as a wife.”

The third translation adds the rule that a man may not have sex with captive women outside the confines of marriage. This is how Arnold Ehrlich (1848–1919), in his Mikra Ki-Pheshuto (ad loc.) reads the verse:

ולקחת לך לאשה—תשובת התנאי, כלומר לא תבעל בה בעילת זנות למלאות תאותך כי אם תנהג בה מנהג לקוחין לשם אישות.
“Take her as a wife”—this is the apodosis, meaning, do not have promiscuous sex with her to fulfill your lust, but you shall act towards her the way one does when taking a wife.

To put it another way, the “take her as a wife” rule comes to forbid Israelite soldiers to rape captive women.[13]

Captive Women as Sexual Chattel in the Ancient World

As we see in other biblical texts, the fate of women captured in war was often as sexual chattel. In fact, in the curses, Deuteronomy warns the Israelites that this will happen to their own women if they sin, and YHWH allows enemies to overrun the country:

דברים כח:ל אִשָּׁה תְאָרֵשׂ וְאִישׁ אַחֵר (ישגלנה) [יִשְׁכָּבֶנָּה] בַּיִת תִּבְנֶה וְלֹא תֵשֵׁב בּוֹ כֶּרֶם תִּטַּע וְלֹא תְחַלְּלֶנּוּ.
Deut 28:30 If you pay the bride-price for a wife, another man shall (have sex) [lie][14] with her. If you build a house, you shall not live in it. If you plant a vineyard, you shall not harvest it.[15]

Sisera’s mother, in the Song of Deborah, assumes he is going to divide the captive women up as sexual chattel among the soldiers:

שופטים ה:ל הֲלֹא יִמְצְאוּ יְחַלְּקוּ שָׁלָל רַחַם רַחֲמָתַיִם לְרֹאשׁ גֶּבֶר שְׁלַל צְבָעִים לְסִיסְרָא שְׁלַל צְבָעִים רִקְמָה צֶבַע רִקְמָתַיִם לְצַוְּארֵי שָׁלָל.
Judg 5:30 They must be dividing the spoil they have found: A damsel or two for each man, spoil of dyed cloths for Sisera, spoil of embroidered cloths, a couple of embroidered cloths round every neck as spoil.

Here the commoditized women are listed as booty together with pretty neck clothes that the soldiers can take home with them. Even the term, translated above as damsel, shows a kind of dehumanizing character, as it literally means “womb.” It is against this backdrop that we need to read the beautiful captive law.

Reflecting on this point, Robert Alter writes in his commentary:

Throughout the ancient Mediterranean world, captive women of vanquished peoples were assumed to be the due sexual prerogative of the victors (compare Briseus at the beginning of the Iliad). This law exceptionally seeks to provide for the human rights of the [non-Israelite!] woman who falls into this predicament.[16]

According to this approach, Deuteronomy is forbidding what was commonplace soldier behavior in the ancient Near East. This is clearly a war law.[17] Nevertheless, the details that follow later in this law, dealing with how he must treat her after he brings her home, may be family law. Once again, it depends on how the law is read.

The Mourning: For Her or For Him?

When the soldier brings this captive home, she removes her captive clothing, pares (or grows) her nails (the meaning of the text is uncertain), cuts her hair, and may (or must) mourn her relatives for thirty days. Commentators have long debated what this is for, and have offered varying suggestions:

Mourning—These are all mourning rituals, to give her time to process what happened to her.[18]

Transition—Giving the woman time to transition away from her past and facilitate her adoption of an Israelite identity.[19]

Disincentive—This is a cooling off period for the man, who has to wait thirty days, while his passions die down. All the while, he must allow her to cry and be mournful, while she wears unattractive clothes, and cuts her hair and nails short (or lets them grow long).

According to this latter interpretation, which is ubiquitous in traditional Jewish commentary, the goal is to encourage the man not to marry her at all. The suggestion makes further sense when we understand what happens if he chooses not to marry her.

Losing the Re-enslavement Option

The beautiful captive law ends with a final protective provision:

דברים כא:יד וְהָיָה אִם לֹא חָפַצְתָּ בָּהּ וְשִׁלַּחְתָּהּ לְנַפְשָׁהּ וּמָכֹר לֹא תִמְכְּרֶנָּה בַּכָּסֶף לֹא תִתְעַמֵּר בָּהּ תַּחַת אֲשֶׁר עִנִּיתָהּ.
Deut 21:14 But should you not want her, you must release her outright. You may not sell her for money. You cannot treat her as a commodity since you have debased her.

The final phrase, “that he debased her,” is connected to his having had sex with her.[20] While this verb is generally used for illicit sex, in this case, it seems to refer to the sex after marriage mentioned in the previous verse, as noted by Rashbam (R. Samuel ben Meir, ca. 1085–1158):

אשר עניתה – ביאת נישואין, לפי הפשט.
“You have debased her”—through marital sex, according to the simple meaning.[21]

Carolyn Pressler of United Theological Seminary notes the unusual nature of using this term for licit sex, and suggests:

It may be that the drafters of the law viewed the marriage as an imposition on the woman since she was a captive, or they may have regarded marriage by cohabitation rather than by contract as not quite valid.[22]

The provision, therefore, only applies to her once he has married her. Note that the language of וְשִׁלַּחְתָּהּ לְנַפְשָׁהּ, literally “you shall send her on her own,” is the same language Deuteronomy uses for an Israelite divorce:

דברים כד:א כִּי יִקַּח אִישׁ אִשָּׁה וּבְעָלָהּ וְהָיָה אִם לֹא תִמְצָא חֵן בְּעֵינָיו כִּי מָצָא בָהּ עֶרְוַת דָּבָר וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ וְשִׁלְּחָהּ מִבֵּיתוֹ.
Deut 24:1 A man takes a wife and possesses her. She fails to please him because he finds something obnoxious about her, and he writes her a bill of divorcement, hands it to her, and sends her away from his house.

In this reading, the verse is saying that if he marries her after the month is up, and then gets tired of her, he must divorce her as he would a free Israelite woman.[23]

This implies that if he does not marry her after the thirty days, then he hasn’t actually “debased her” and therefore he may keep her as a slave. If so, then the loss of the option to re-enslave the woman is part of Deuteronomy’s attempt to disincentivize the marriage. Don Isaac Abravanel (1437–1508), in his commentary on Deuteronomy (ad loc.), puts it this way:

הנה ו' הדברים האלה כלם הם דרכים להסיר חשקו מעליה ושלא יקחה לאשה. וגם הדין האחרון הוא מכוון לזה כי כשידע שאם יבא אליה שוב אינו יכול למכרה ולא להשתמש בה עבודת השפחות יפרוש ממנה כי יש כמה אנשים חביבין עליהם ממונן יותר מהשלמת תאותם... לפי שתאותם אל הממון היא הגוברת עליהם.
As for these six things, all of them are ways of removing his desire from her, so that he not take her as a wife. And the final law also is meant to have this effect, since when he realizes that once he has sex with her he can never sell her or treat her as one of his maidservants, he will separate from her, for it is the case with many men that their desire for wealth is more powerful than fulfilling their urges…[24]

According to this approach, Deuteronomy wishes to protect the woman from rape, and to make sure she is well-treated if he marries her, but it prefers that he keep her as a slave without her ever entering the Israelite family as his wife.

A Problematic Relationship

Deuteronomy is likely wary of this marriage for several reasons. First, Deuteronomy may not look favorably on the marriage of an Israelite to an outsider. Deuteronomy 7:3 prohibits intermarriage with Canaanites and Deuteronomy 23:4 prohibits marriage with Ammonites and Moabites. While Deuteronomy does not explicitly extend this to other groups of foreigners (though see Ezra 9:1 which does), it certainly would not see them as equivalent to Israelites.[25] Moreover, it may have been concerned about whether they would bring their foreign practices and gods to the Israelite home.

In addition, Deuteronomy’s concern that he will try to re-enslave her when he loses interest in being married to her implies a fear that the man, and perhaps his family, will always see the woman as a slave and never treat her like an Israelite wife.[26] Moreover, as a foreigner, she has no family in Israel to protect her from such treatment.[27]

To us, in the modern era, the alternative option, that he never marry her but keep her as a slave, is also entirely unpalatable, but for the Deuteronomist, this was the best option.

Balancing Soldier’s Prerogatives and Captive’s Rights

This brings us full circle to the opening question, whether this a war law or a family law. The answer is both. The Torah is concerned with the soldier’s integrity both at war and back home; at war he must not rape the captive women, and at home, once he marries the woman, he must treat her like an Israelite.

The text is not only interested in the male soldier, but in the female captive as well, since in both instances—the prohibition to rape and the prohibition to re-enslave her—she is given a level of humanity.[28] While the Torah is far from egalitarian, it does not see the woman here as chattel; it worries about her treatment both as a captive and as a wife.[29]

Published

August 19, 2021

|

Last Updated

September 26, 2021

Footnotes

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Dr. Rabbi David Resnick retired as Senior Lecturer in the School of Education of Bar Ilan University, where he specialized in Jewish and moral education. He received his Ph.D. in Developmental Psychology from Columbia University and rabbinic ordination from the Jewish Theological Seminary in New York. His recent book was Representing Education in Film (Palgrave Macmillan 2018).