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Sex and the Single Girl in Deuteronomy 22. Mishneh Todah: Studies in Deuteronomy
and Its Cultural Environment in Honor of Jeffrey H. Tigay. Edited by Nili Sacher
Fox, David A. Glatt-Gilad, and Michael J. Williams. Winona Lake: Eisenbrauns.
2008. Pp. 131-148.

SEX AND THE SINGLE GIRL IN DEUTERONOMY 22 1

Adele Berlin

University of Maryland

Like all ancient Near Eastern law collections, Deuteronomy has laws pertaining to

marriage, the family, and sexual relationships. In fact, it has more to say on these subjects

than other legal sections of the Bible. Many recent studies have asked what these laws

reveal about Deuteronomys attitude towards women. They have come to diverse, if not

contradictory, conclusions. Moshe Weinfeld sees Deuteronomy as espousing a

particularly humanistic attitude towards women, a position consistent with his

observation that Deuteronomy is generally more humanistic than other biblical books. 2

Carolyn Pressler, opposing Weinfeld, argues rather that the Deuteronomic family laws

presuppose and undergird male headed and male defined hierarchical family structures, in

which women hold subordinate and dependent statuses. 3 She does, however,

1
I am most happy to dedicate this essay to my dear colleague, Jeff Tigay, who has contributed so much to
the study of the Bible, especially to Deuteronomy.
An earlier version of this paper was presented at the International Meeting of the SBL in
Edinburgh, July 4, 2006. I had not had access to Hilary Lipkas book, Sexual Transgression in the Hebrew
Bible (Sheffield: Sheffield Phoenix Press, 2006), when the paper was written, but I have added references
to it in this version. Her views largely coincide with mine.
2
Moshe Weinfeld, Deuteronomy and the Deuteronomistic School (Oxford: Oxford University Press, 1972),
291.
3
Carolyn Pressler, The View of Women Found in the Deuteronomic Family Laws (Berlin and New York:
W. de Gruyter, 1993), 5. Cf. also pp. 96 and 111. Note the misrepresentation of Weinfeld in Pressler, The
View of Women, 5, where she paraphrases Weinfelds phrase a particularly humanistic attitude towards
women (Weinfeld, Deuteronomy and the Deuteronomic School, 291) as a peculiarly humane attitude
towards women. But Weinfeld never uses the term humane. Humane is not the same as humanistic,
which Weinfeld uses to define the emphasis on moral and ethical concerns rather than on cultic ones. To be
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acknowledge that Deuteronomic legislation also protects dependent family members.

Eckart Otto, much more forcefully than Weinfeld, insists that the laws of Deuteronomy

are progressive and protect the legal status of women, to the extent of making women

legal subjects of their own. 4 Taking the opposite position from Otto, in the same volume,

Harold Washington complains that Deuteronomy does nothing to prevent or punish

violence against women and that women are not independent legal persons. The laws,

says Washington, function as a discourse of male power. Far from ameliorating male

domination, they install it and circulate its force. 5

There is some truth in all these statements. Deuteronomy is indeed more

humanistic, more centered on human (secular) society and its moral values than

Exodus and Leviticus, and this humanistic attitude applies to women as well as to men.

At the same time, Deuteronomy maintains unquestioningly the patriarchal structure of

society, with the male head of household and dependent wives and children. However, it

deprives 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. In

sure, Weinfeld does have a positive view of Deuteronomys attitude towards women, but he does not make
the blanket statement ascribed to him by Pressler (5) that Deuteronomy espoused the equality of the
sexes. Weinfeld, 291, discusses the equality of the sexes as it refers to participation in covenant and
festival ceremonies (Deuteronomy includes women whereas Exodus speaks only of men). I doubt that
Weinfeld thinks that Deuteronomy makes men and women equal in all legal matters, but that is the
impression created by Pressler.
4
Eckart Otto, False weights in the scales of biblical justice? Different views of women from patriarchal
hierarchy to religious equality in the Book of Deuteronomy, in Gender and Law in the Hebrew Bible and
the Ancient Near East (Edited by Victor Matthews, et al.; JSOT Supplement Series 262; Sheffield:
Sheffield Academic Press, 1998), 128-146, esp. 137, 140-146. I find this position extreme and ultimately
unpersuasive.
5
Harold Washington, Lest He Die in Battle and Another Man Take Her: Violence and the Construction
of Gender in the Laws of Deuteronomy 20-22, in Gender and Law in the Hebrew Bible and the Ancient
Near East (Edited by Victor Matthews et al.; JSOT Supplement Series 262; Sheffield: Sheffield Academic
Press, 1998), 185-213, esp. 213.
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that sense, dependents have certain protections under the law. That may make

Deuteronomy seem progressive, although it falls short of making women full legal

entities in their own right or equal to men in all matters.

The point is, however, that Deuteronomy did not set out either to ameliorate or to

constrict the status of women, since women, in and of themselves, are not its primary

concern. The primary concern of Deuteronomy is to create a moral society. In this society,

certain types of sexual misconduct, by men and by women, have moral implications. But

not all types of sexual misconduct are condemned on moral grounds, although they may

be undesirable. The laws indicate when an action is immoral and when it is not. Immoral

sexual conduct is marked by a value judgment like you must sweep out evil from your

midst, and by the death penalty. Sexual behavior not so marked is not deemed immoral,

although it is discouraged and the law seeks to neutralize it. 6

I will focus here on three laws regarding premarital sex in Deuteronomy 22: false

and true accusations of unchastity, premarital sex and the unbetrothed woman, and

premarital sex and the betrothed woman. Many points in the interpretation of these laws

remain contested, but it is clear that the laws assume the social norm of premarital

chastity for women. These laws have been seen as punitive and inconsistent, legislating

the death penalty for the so-called unchaste bride (22:20-21) and for the adulterous

married woman (with no mention of her consent or lack of it) but not for the unbetrothed

woman or the unconsenting betrothed woman. I will argue that there is no inconsistency

6
In her recent book, Sexual Transgression in the Hebrew Bible, Hilary Lipka introduces the categories of
transgressions against religious boundaries (equivalent to what I call immoral), transgressions against
communal boundaries (what I call a social offense), and transgressions against personal boundaries.
Adultery is a transgression against both religious and communal boundaries. Premarital sex with an
unbetrothed woman is a transgression against communal boundaries.
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in these laws, and that taken together they reveal a stringent attitude towards adultery and

promiscuity but a more lenient attitude towards premarital sex if it was nonconsensual on

the part of the woman.

These laws strongly advocate sex only within legal marriage. Legal marriage

generally means marriage in the legal form preferred in the Bible contractual marriage

between the brides father and the groom. 7 While this type of marriage is not a

Deuteronomic invention any more than premarital chastity is, Deuteronomy sought to

preserve both under conditions that might potentially undermine them; namely, that legal

authority for the punishment of sexual offenses prior to or during marriage no longer

resides with the womans father or husband, but now resides with the state. I

understand Deuteronomys goal to be to preserve, even reinforce, certain old traditions

under the new social and religious conditions it envisions. These old traditions include

the parental authority (especially the fathers responsibility for his daughters sexual

behavior before marriage), female chastity, and contractual marriage. 8

Before I turn to an examination of the laws themselves, I will discuss several

general questions that have been raised about Deuteronomys laws in the scholarly

literature.

7
There are cases of legal marriages without contracts between the families of the bride and groom and
without payment of a bride-price. For instance, the captive woman married to the Israelite man (Deut
21:10-14) is legally married but there is no contract for there is no family member with whom to make the
contract. The marriage is effected by intercourse after a liminal period. Likewise, the levirate marriage is
effected by intercourse (Deut 25:5). The woman is already a member of the levirs family and no further
contract with her family is warranted.
8
I am in agreement with Alexander Rof (Family and Sex Laws in Deuteronomy and the Book of the
Covenant, in Deuteronomy. Issues and Interpretation [London and New York: T & T Clark, 2002; First
published in Hebrew in Henoch 9 (1987): 131-158] 169-192, esp. 181), who notes Deuteronomys attitude
of stringency towards the status quo and the desire to halt the erosion of family values such as chastity or
filial obedience. Rof is here discussing the accusation of premarital unchastity by the brides husband.
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1. Are the laws of Deuteronomy utopian? The laws of Deuteronomy are

designed to produce a just and moral society, and in that sense, they represent an ideal

society. Indeed, one can say the same for all laws. They are all meant for the betterment

of society and reflect an ideal to which society should aspire. Scholars are divided about

whether or not the deuteronomic laws were actually intended to be put into practice or

whether they represent an idealized encapsulation of the Josianic reform.

Utopian or not, it is possible that certain laws were intended mainly as deterrents,

and that the lawmakers did not expect many actual cases to occur. For example, many

scholars read the law of the incorrigible son (Deut 21:18-21) as a deterrent; note the

phrase all Israel will hear and be afraid in v. 21. Weinfeld thinks that all laws bearing

the death penalty were deterrents, to encourage obedience to the laws. 9 Nevertheless,

deterrents are not synonymous with utopian laws. 10

In any case, we cannot know if or how these laws were applied in real life. We

can only observe the type of society that the laws appear calculated to produce.

2. Given that the laws are incomplete and at times difficult to understand,

how much should we extrapolate from other biblical, ancient Near Eastern, and

Qumran laws? I assume that Deuteronomy inherited laws and legal concepts but that it

had its own agenda and its own reasons for articulating the laws as it does. Comparisons

with non-Deuteronomic legal passages, both within and outside the Bible, are

9
Deuteronomy and the Deuteronomic School, 243.
10
Bruce Wells (Sex, Lies, and Virginal Rape: The Slandered Bride and False Accusation in
Deuteronomy, JBL 124,1 [2005] 41-72, esp. 72 with notes 93 and 94) raises the issue of ideal laws vs.
laws to be used. He does not, however, differentiate between a set of totally utopian laws and specific laws
that may have been meant as deterrents.
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enlightening because they often address similar situations or issues, but they legislate

differently, for different reasons. They also use different means as proof; ancient Near

Eastern laws, in the absence of witnesses, may resort to an oath taken by the accused or a

River Ordeal, whereas these methods are absent in Deuteronomy. 11 My default position is

not, therefore, to automatically fill in gaps in Deuteronomic law from other ancient laws.

In this I differ from Bruce Wells, and from his teacher, Raymond Westbrook, who

extrapolate freely from one ancient legal system to another. 12

Take, for example, the levirate law in Deut 25: 5-10, which has echoes in the

Middle Assyrian Laws. 13 Middle Assyrian Law 25 discusses the case of brothers on an

undivided estate and the childless widow of a deceased brother (she is living in her

fathers house), but the purpose of the law is to ascertain who is entitled to the property

that the deceased husband had bestowed upon his wife. The surviving brothers get it.

Middle Assyrian Law 30 notes that a father should give the wife of his deceased son

into the protection of the household and that he may, if he chooses, marry her to his

second son. While the general situation of the levirate is the same in both Assyrian law

and Deuteronomy, only Deuteronomy is specifically concerned with family continuity

and its legislation is directed toward that end.

11
The woman accused of adultery by her husband in Numbers 5 (sotah) undergoes an ordeal administered
by a priest. Compare Laws of Hammurabi 131 where if a husband accuses his wife but they are not caught
in the act, the wife takes an oath and returns home. If a third party makes the accusation (132, a more
serious case), she submits to a River Ordeal.
12
Clemens Locher, who calls upon much legal material from Mesopotamia, deals with this issue in Die
Ehre einer Frau in Israel; exegetische und rechtsvergleichende Studien zu Deuteronomium 22, 13-21
(OBO 70; Gttingen: Vandenhoeck und Ruprecht, 1986).
13
Translations of Mesopotamian laws are taken from Martha Roth, Law Collections from Mesopotamia
and Asia Minor (Atlanta: Scholars Press; Second edition, 1997).
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More germane to our discussion: unlike other ancient Near Eastern laws, and

other biblical laws or practices, Deuteronomy does not permit the successful plaintiff to

choose among possible penalties for the convicted criminal. This position is consistent

with Deuteronomys assigning the rendering of justice into the hands of civil authorities,

judges and elders, and not in the hands of the plaintiff or his relatives. For example, the

father of an unbetrothed woman caught having sex can, in Exod 22:16, choose not to

marry her to her sexual partner but Deut 22:29 does not give the father that choice. 14

Similarly, there is no evidence that, in Deuteronomic law or elsewhere in the

Bible, a husband whose wife is guilty of adultery can choose a penalty less than the death

sentence, as is true in ancient Near Eastern law. 15 Bruce Wells, arguing from extrabiblical

ancient Near Eastern law, makes the case that the husband of the unchaste bride in

Deut 22:13-19 had the option of a punishment less severe than death, but I do not find his

argument persuasive. 16 Since Deuteronomy reserves the legal decision and carrying out

of the penalty for the civil authorities, not the injured party, it is doubtful that the husband

had any control over the penalty.

Some scholars see a historical development within the Bible from an earlier time

when the husband could decide on the penalty to a later time in Deuteronomy when that

14
Moshe Weinfeld (Deuteronomy 1-11 [Anchor Bible; New York: Doubleday, 1991], 20) explains that the
difference derives from Deuteronomys interest in the moral-social function of the laws, not in their
economic function, as in Exodus.
15
Laws of Hammurabi 129 and Middle Assyrian Laws 15 permits the husband of an adulterous wife to
spare her or give a lesser punishment, and in that case the fornicator gets the same punishment, but biblical
law makes no such provision.
16
Wells, Sex, Lies, 63-70.
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option had been discontinued. 17 These scholars seek support in Prov 6:34-35, a passage

warning upper-class young men against adulterous liaisons:

The fury of the husband will be passionate;

He will show no pity on his day of vengeance.

He will not have regard for any ransom;

He will refuse your bribe, however great.

Scholars who interpret the passage to mean that the husband of an adulterous wife might

be bought off with money conclude from this that in Israelite society there was also a way

to avoid the death penalty for adultery. But it is better to read the Proverbs passage as

saying that the womans husband will be so furious that no attempt to buy him off will

succeed in placating his anger. Michael Fox notes that the punishment which the bribe

will fail to prevent is not a judicial punishment but a physical outburst by the angry

husband against the adulterer. He aptly paraphrases the warning as Keep away from a

mans wife, or hell beat the hell out of you, maybe kill you. 18 Hilary Lipka adds that the

bribe would be intended to dissuade the husband from bringing a public accusation

against the young adulterer before a court of law, not that the husband had the legal

power to eliminate the punishment if the adulterer were found guilty. 19 Proverbs, then,

does not support the claim that a husband could decide on the punishment for an adulterer.

No such support is to be found in the Bible.

17
Rof, Family and Sex Laws, 183; Tikvah Frymer-Kensky, Law and Philosophy: The Case of Sex in
the Bible, Semeia 45 (1989): 89-102, esp. 94.
18
Michael V. Fox, Proverbs 1-9 (Anchor Bible; New York: Doubleday, 2000), 236-237.
19
Lipka, Sexual Transgression, 163.
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When is comes to post-biblical laws, those in Qumran and in rabbinic literature,

by which time the book of Deuteronomy was already canonical, we enter the world of

rewritten Bible and/or biblical interpretation. This later material, too, is useful, but in a

different way from pre-Deuteronomic ancient Near Eastern law collections. It does not

tell us the intent of the Deuteronomic authors, but rather how the laws were later

interpreted or applied.

What about interpreting one law in light of another within the same chapter?

Should we assume that a married woman who was forced to have sex with someone other

than her husband is, like the betrothed woman in the same situation, not guilty of adultery?

There is such a provision in the Middle Assyrian Laws 12; did biblical law have a

similar provision? The Bible views adultery involving a married woman (as opposed to a

betrothed woman) as such a heinous crime and an affront to morality that it nowhere

offers extenuating circumstances. We may say, as a number of scholars do, that the

biblical laws on adultery assume that adultery involving a married woman is always

consensual, by definition. 20 This may placates modern sensibilities, for to hold a non-

consenting married woman guilty, and thereby sentence her to death, seems unduly

severe, especially in light of the guiltlessness of the betrothed non-consenting woman.

However, we are then faced with the uncomfortable fact that Deuteronomy makes no

20
So, for example, Lipka (Sexual Transgression, 43), who defines adultery in the Bible as consensual
intercourse between a married . . . woman and a man other than her husband. See also Carolyn Pressler,
Sexual violence and Deuteronomic law, in A Feminist Companion to Exodus to Deuteronomy (Athalya
Brenner, ed.; Feminist Companion to the Bible 6; Sheffield: Sheffield Academic Press, 1994) 102-112, esp.
107. Jeffrey Tigay (Deuteronomy [The JPS Torah Commentary; Philadelphia: Jewish Publication Society,
1996] 207-208) explains that the ancient assumption was that young inexperienced women were unlikely to
give consent and were at the mercy of the male partner whereas adult married women were more inclined
to engage in consensual sex. Compare modern law where a minor woman is considered to be non-
consenting (statutory rape).
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provision for the non-consenting married woman. All we can say for sure is that

Deuteronomy views non-consent as a mitigating factor for unmarried women. 21

As for the case of the unconsenting betrothed virgin, who is exempted from guilt,

I take this to be an anomaly, an exception to Deuteronomys legislation on adultery (see

below).

3. Deuteronomy gives the authority for punishing family crimes to

officially recognized judges or elders. Whether or not this is a Deuteronomic innovation

is immaterial for our discussion. 22 The important point is that in Deuteronomy parents

and husbands do not make judicial decisions or carry out punishments for dependent

family members. For example, the incorrigible son (21:18-21) cannot be sentenced and

punished by his father; the sentencing must be done by a court of law, in this case, the

elders, and the penalty is carried out by the entire community. Likewise, in the case of the

bride who was found to have been unchaste before her marriage, which will be discussed

below at greater length, the execution is carried out by the residents of the town.

Deuteronomy does not permit honor killings by members of the womans family.

Concomitantly, Deuteronomy relies on rational proof of crimes rather than on

supra-rational proof (such as oracles, ordeals, etc.) that one finds in other legal

21
Middle Assyrian Laws 14 and 16 exempt the male fornicator from punishment if he did not know the
woman was married or if she coerced him into having sex. Deuteronomy never hints that a woman might
coerce a man; at the most, she might consent to a male overture.
22
Eckart Otto (Aspects of Legal Reformulations in Ancient Cuneiform and Israelite Law, in Theory and
Method in Biblical and Cuneiform Law [B. Levinson, ed.; JSOT Sup Series 18; Sheffield: Sheffield
Academic Press, 1994] 160-196, esp. 163-168) sees a development in the Middle Assyrian Laws from
private law to public law. A similar development may have occurred in the Bible.
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collections. 23 The producing of the evidence of virginity in 22:15, or the absence of it

in 22:20, is an example, as is the discovery (that is, witnessing) of the sexual encounter in

22:28. However, the laws do not always specify on what evidence the case is adjudicated.

In general, then, Deuteronomy has a legal system based on civic authority and

rational proof.

4. Are the laws of Deuteronomy exceptionally punitive? Deuteronomy may

levy a harsh punishment on certain crimes, but it then tries to limit the types and number

of cases that would warrant that punishment. I make this assumption about all benevolent

legal systems. It is not in the interest of society to find large numbers of people,

especially ordinary people in ordinary situations, guilty of capital crimes. While

Deuteronomy has strongly-held views on sexual moralityadultery is an evil that must be

swept awayit does not deem culpable the betrothed woman who was forced to have sex

with a man other than her fianc. The law recognizes that, even in the ideal society that

Deuteronomy envisions, cases of premarital sex may occur, and it excludes certain types

of cases from the category of immoral.

With these assumptions in mind, I now look at several passages in Deuteronomy

22 (translations are my own). Deuteronomy 22:22-29 presents three cases, from the most

to least serious: sex with a married woman, sex with a betrothed woman, and sex with an

unbetrothed woman. The text says little about the first; it is adultery, the death penalty for

both parties is stated in absolute terms with no mitigating circumstances. I will discuss

the other two cases in reverse order, first the unbetrothed woman and then the betrothed

23
I owe this point to a paper presented by Bruce Wells (What Do the Gods Know? Rational and Supra-
Rational Evidence in Israel and Mesopotamia,[SBL International Meeting, Edinburgh, July 5, 2006]).
12

woman. I will then examine the law about false and true accusations of unchastity found

in 22:13-21. 24

Premarital sex and the unbetrothed woman (Deut 22:28-29).

Deut 22:28-29: If a man comes upon a young woman, a

betulah, who is not betrothed, and he takes hold of her

(), and lies with her, and they are discovered, the man

who lay with her shall give to the womans father fifty

[shekels of] silver and she will become his wife. Because

he has degraded her (), he may never divorce her as long

as he lives.

The commonly accepted meaning of betulah is a young woman of marriageable

age. Her physical status of virgin or non-virgin is not specified (the text does not say

who has never known a man, as in Jud 11:39), although it may be assumed. Virginity is

not a legally relevant factor, as one sees from the difference in the treatment of betrothed

and unbetrothed woman, both of whom are assumed to be physically virgins. The critical

24
My discussion of these laws in indebted to the work of Tikva Frymer-Kensky (Virginity in the Bible.
In Gender and Law in the Hebrew Bible and the Ancient Near East. Victor Matthews, Bernard M.
Levinson, and Tikva Frymer-Kensky, eds. [Sheffield, Eng. : Sheffield Academic Press, 1998], Pp. 79-96).
reference?), Hilary Lipka (Sexual Trangression in the Hebrew Bible. [Sheffield: Sheffield Phoenix Press.
2006]).
reference?), Eckart Otto (Aspects of Legal Reformulations in Ancient Cuneiform and Israelite Law. In
Theory and Method in Biblical and Cuneiform Law. B. Levinson, ed. JSOT Sup Series 181. Sheffield:
Sheffield Academic Press, 1994. Pp. 160-196). reference?), Carolyn Pressler (The view of women found in
the Deuteronomic family laws. [Berlin and New York: W. de Gruyter, 1993]reference?), Alexander Rof
(Family and Sex Laws in Deuteronomy and the Book of the Covenant. In Deuteronomy. Issues and
Interpretation. London and New York: T & T Clark. 2002. Pp. 169-192 reference?), and a recent article by
Bruce Wells (Sex, Lies, and Virginal Rape; the Slandered Bride and False Accusation in Deuteronomy.
Journal of Biblical Literature 124,1 [2005] 41-72).
reference?). On broader issues in the study of Deuteronomy, see Moshe Weinfeld (reference?) and Jeffrey
Tigay (reference?) [CEP=If you are intending to highlight specific works by these people, could you
include specific references, since there will be no bibliography to your section?].
13

factor from the legal perspective is the womans marital status. The unbetrothed woman

belongs to no man and a marriage for her can be contracted with any man. Her

situation contrasts with that of the betrothed woman, also physically a virgin but already

bound by a contract of marriage.

Is this a case of nonconsensual sex? Apparently so, but it is not clear if this

determines the outcome. What would happen to the consenting non-betrothed woman?

Would Deuteronomy treat her case as Exod 22:15-16 does, where the case involves

seduction, not force? Since no adultery is involved here, as it is in the case of the

betrothed woman, no death penalty is warranted, and so the issue of the womans guilt

(based on her consent or its absence) is not at issue.

The verb is to be contrasted with the verb , to restrain, hold with

force, in 22:25, where force is clearly indicated. The word seems to signal a weaker

action, although some physical coercion is still involved. 25 Verse 28 assumes that the
24F

man took the initiative and applied some measure of force, which implies that the sex was

not consensual. My sense is that the same outcome would result whether or not the sex

was forced, but that Deuteronomy is loathe to envision this case of premarital sex as

consensual. The womans reputation is hereby preserved. (Good girls dont say yes.)

This case is thereby distinguished from the case of seduction in Exod 22:15-16 and also

from the case of the unchaste bride, which presumes consent on the part of the woman.

On the other hand, however, this law noticeably lacks the language of distinction between

25
The same verb is used to describe the action of the parents of the disobedient son, whom they take hold
of and bring to the court (21:19). For further discussion of this verb see Weinfeld, Deuteronomy and the
Deuteronomic School, 286; Pressler, The View of Women, 38, note 49; and Lipka, Sexual Transgression,
174-176.
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consensual and nonconsensual sex that figures so crucially in the case of the betrothed

woman. No mention is made here of town vs. countryside, the cipher for consensual

vs. nonconsensual sex belabored at length in the case of the betrothed woman. 26 I see this

as a case of pro forma non-consent; when a single woman is caught having sex, it is

legally assumed to be nonconsensual (just as the case of a married woman is assumed to

be consensual).

The verb may, but does not always, indicate a rape. When used in a sexual

context, it means to have sex with a woman outside of a legally contracted marriage,

with a resulting degradation or loss of status. 27 Modern readers tend to think of the

degradation as a personal psychological state, but it is better understood in the Bible as a

lowering of the womans social status or publicly shaming her. The woman in this case

has been degraded in that her status as a potential bride has been diminished and she has

been shamed socially. Notice that the nonconsensuality is indicated by the word , not

by the word , which occurs in the mans penalty clause, not in the description of the

sexual act. The same term, , is used in the mans penalty clause in the case of the

consenting betrothed woman (22:24), so clearly it does not indicate forced sex in these

laws.

26
Tikva Frymer-Kensky (Virginity in the Bible, in Gender and Law in the Hebrew Bible and the Ancient
Near East [Victor Matthews, Bernard M. Levinson, and Tikva Frymer-Kensky, eds.; Sheffield: Sheffield
Academic Press, 1998] 79-96, esp. 93) raised the possibility that this might be used for a form of
elopement, a way for a young woman to force her father to agree to a marriage not of his choosing. But
this goes against my view of what these laws are trying to accomplish, namely, the strengthening of the
institution of contract marriage.
27
Weinfeld, Deuteronomy and the Deuteronomic School, 286; Lyn M. Bechtel, What if Dinah is not
Raped (Genesis 34)? JSOT 62 (1994): 19-36, especially pp. 25-27; and Pressler, The View of Women, 14.
Bechtel does associate shame or humiliation with this verb. Cf. T. Kronholms entry for in TDOT XI,
237 and Lipka, Sexual Transgression, 253.
15

The fact that the man degraded the woman by having sex with her outside of a

legally contracted marriage, , is the reason that he may never divorce her. 28 Compare

the law of the captive wife (21:10-14), where the fact that the man had sex with the

woman outside of a legally contracted marriage ( )is the reason that he may never sell

her as a slave, although he may divorce her (21:14). These two cases are parallel in that

both require the husband to preserve the new, elevated status of the woman, now a

married woman, whose sexual status had been somehow compromised by that husband

before the marriage to him. In the case of the unbetrothed woman, because of the actions

of the man, the woman became a wife, and he may not reduce her status to that of non-

married woman again. In the case of the captive woman, the actions of her husband made

her the legal wife of an Israelite (albeit not through contractual marriage since there was

no one with whom to make a contract), and her husband cannot reduce her to the status of

foreign slave/captive again. 29 28F

28
With KJV, NJPS, NRSV, I read the because he degraded her (=had illicit sex with her) clause as
modifying the following clause, he may never divorce her. Other translations, including NAB, NEB,
REB, see that clause as modifying the preceding clause: he must marry her because he had sex with her
outside of a sanctioned marriage arrangement; in addition, he may never divorce her.
29
The statement in 21:14 is perplexing. In what sense did the Israelite the foreign captive? Pressler
explains: 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 (The View of Women, 14). The second reason seems to me more likely than the first; there was no
marriage contract, even though this was an alternate form of marriage in cases when there could be no
marriage contract.

Tikva Frymer-Kensky offered a different explanation: He put her in a position where she
expected to become his wife, and then has not carried through (Law and Philosophy, 100, note 9). This
explanation assumes that the marriage never took place, an assumption that most commentators do not
make.
A third possibility is that the man had already had sex with the captive woman before he decided
to initiate marriage proceedings. This would not have been prohibited but would have been outside of any
type of sanctioned marriage arrangement, even that provided by this law.
16

They are discovered in flagrante delicto. There is public knowledge of the

event, including the identity of the man responsible for it. This law does not address cases

of premarital sex that come to light later, like that of the unchaste bride in 22:20-21.

What is the law regarding the unbetrothed woman trying to accomplish? The

primary concern is to get the now non-virgin unmarried woman married as quickly as

possible. Preserving the economic interest of the father and providing security for the

woman are certainly accomplished, but beyond that is a broader social benefit: by

marrying off the woman in this shotgun wedding, the law minimizes the presence in

society of an unmarried non-virgin woman, whose status is anomalous and a potential

threat to accepted standards of behavior. Furthermore, by marrying her to her sexual

partner, the law avoids the very situation that 22:13-21 speaks toa postnuptial accusation

of unchastity that might obtain if she were permitted to marry someone else. Because this

case of premarital sex is a social offense, not a moral one, the law seeks to annul it, or

neutralize it, as it were, to normalize the womans situation by quickly marrying her off

to the man with whom she had sex. Contractual marriage is the solution in this situation,

albeit somewhat after the fact.

Premarital sex and the betrothed woman (Deut 22:23-27).

Deut 22:23-27. If there is a young woman, a betulah, who

is betrothed to a man, and a(nother) man comes upon her in

the town and lies with her, you shall take both of them to

the gate of that town and stone them with stones so they die;

the young woman because she did not cry out in the town

and the man because he degraded ( )the wife of his


17

fellowman; and you will sweep out evil from your midst.

But if the man came upon the young betrothed woman in

the countryside, and the man took her by force and lay with

her, only the man who lay with her shall die. To the young

woman you will do nothing; the young woman bears no

guilt of the death penalty, for this is like the case of a

person attacking another and murdering him. Because he

came upon her in the countryside, had the young betrothed

woman called out, no one would have heard.

The betrothed woman has the liminal status of being a legally married virgin; her

case, too, is liminal, partially resembling adultery (if she consented) and partially

resembling non-adulterous premarital sex (if she did not consent). The issue of her

consent is crucial in determining the guilt of the woman (but not of the man, who is in

either case guilty of adultery).

Since she is legally married, sex with anyone except her fianc is adultery, and

any other man who has sex with her receives the death penalty. She, too, is guilty of

adultery if she consented, and the mark of immorality, to sweep away evil, is

mentioned. 30 If, however, she was forced, the betrothed woman is not liable and only the

man is put to death. Presumably, her previously-contracted marriage is consummated as

planned.

30
Lipka (Sexual Transgression, 87-90) notes that the consenting betrothed woman is also guilty of flouting
parental authority, since she presumably is still living in her fathers house.
18

This law is notable in the distinction it makes between consensual and

nonconsensual sex; nowhere else in the Bible is the womans lack of consent a mitigating

factor in her guilt, although, to be sure, it is taken into account in other bodies of ancient

Near Eastern law, even for married women and for men. 31 Commentators puzzle over

why Deuteronomy specifies the case of nonconsensual sex for the betrothed woman but

not for the married woman.

I suggest that in this case alone Deuteronomy moderates its usual absolute stance

against adultery and permits an exception. Note how striking is the wordiness of the

justification of the woman, emphasizing her innocence and describing in detail her

helplessness, thereby giving the impression that the law is going out of its way to prove

her nonculpability. 32 Sex with a betrothed woman is adultery, and the man always

receives the death penalty, whether or not the woman consented. Yet the unconsenting

betrothed woman is innocent of adultery. Why? Because, I suggest, Deuteronomy wishes

to see a contracted marriage take place, if at all possible. A contracted unconsummated

marriage is mentioned two other times in Deuteronomy: it warrants a military deferment

in 20:5-7, and it is considered among the worst punishments of defeat and exile in 28:30.

A contracted but unconsummated marriage is one of the basic community-building

activities, like building a house and planting a vineyard, which, once undertaken, must be

completed. Deuteronomy is therefore willing to make special provisions in this case in

31
Middle Assyrian Law 12 assigns no penalty to the married woman if she was forced to have sex. Middle
Assyrian Law 16 exonerates the male partner if the married woman initiated sex. These are cases that the
Bible would consider adultery, without extenuating circumstances.
32
See Pressler, Sexual Violence, 108. Pressler notes that the phrase as when a man attacks another and
murders him that Frymer-Kensky takes as classifying rape as a crime of violence and the woman as the
victim of violence (see Tikva Frymer-Kensky, Sex and Sexuality, ABD 5:1144-1146, esp. 1145) is better
understood as an equation of the innocence of the violated woman with the innocence of the murder victim.
19

order that a contracted unconsummated marriage may take place. It does so even though

the woman has been technically, although not legally, defiled, used sexually by another

man before her husband, a situation that Deuteronomy tries to avoid. 33

The completion of the betrothed womans marriage, like the marriage of the

unbetrothed woman, neutralizes the status of the woman to whom no moral opprobrium

is imputed by having her quickly join the ranks of married Israelite women. The taint of

unchastity is eliminated and future accusations of premarital unchastity are diffused. Thus

does Deuteronomy eliminate from the category of immoral women two types of

presumably young and inexperienced women who were probably at highest risk for

premarital sex. At the same time, the message is conveyed that contractual marriage is the

desirable status for women and that premarital unchastity is frowned upon.

False and true accusations of premarital unchastity (Deut 22:13-21).

Deut 22:13-19: If a man marries a woman, has intercourse

with her, and takes an aversion to her; and he makes up

charges against her and defames her, saying, I married this

woman and consummated the marriage and I did not find

evidence of her virginity. The father and mother of the

young woman shall take the evidence of virginity and

submit it to the town elders at the gate. And the young

womans father shall say to the elders: I gave my daughter

33
For example, Deut 24:1-4 does not permit a husband to remarry his divorced wife if she has been married
to another man in the interim, because she has been defiled (). This principle may also be operative in
the case of the unchaste bride, although the term is not mentioned there (Lipka, Sexual Transgression,
101).
20

to this man in marriage and he took an aversion to her. And

look, he has made up charges saying, I did not find

evidence of your daughters virginity. But here is the

evidence of my daughters virginity. And they shall

spread out the cloth in front of the town elders. The elders

of that town shall take the husband and punish him. 34 And

they shall fine him 100 [shekels of] silver and give it to the

young womans father because he defamed a virgin in

Israel. She shall remain his wife; he may never divorce her

as long as he lives.

Deut 22:20-21: But if the charge is true, no evidence of the

young womans virginity having been found, they shall

bring out the young woman to the entrance of her fathers

house and the men of her town shall stone her to death, for

she committed a disgraceful act in Israel by prostituting

her fathers house. You must sweep out evil from your

midst.

Scholars agree that the law of the slandered bride (vv. 13-19), as it is often

called, is first and foremost a law intended to protect a woman and her family from false

accusations of premarital unchastity and to discourage such accusations. 35 It is not meant

34
NRSV: punish. Other translations: flog.
35
For more extensive discussions see Frymer-Kensky, Virginity, 93-95; Pressler, The View of Women,
22-31; Wells, Sex, Lies, 41-72; and Lipka, Sexual Transgression, 92-101.
21

to ferret out cases of premarital sex. The wording makes clear that the accusation is false

and that it was prompted by the husbands aversion for his wife and his desire to dissolve

the marriage. 36 A normal divorce would obligate the husband to pay the money for

support of his wife specified in the marriage contract, but if his accusation is successful,

he will be spared this expense, and in addition will see the return of his bride-price plus

damages paid by his father-in-law. There is a clear financial incentive for the husband.

There is also, as numerous medieval and modern commentators have noted, an easy way

to defeat this accusation. The proof of virginity could easily be falsified in the pre-

DNA era. The law in vv. 13-19 is obviously structured in favor of the woman and her

parents, and it is meant to discourage false claims of unchastity.

The case of the true accusation in vv. 20-21 reads very differently. It is

stylistically at odds with the preceding verses and appears to be legally incongruous with

other laws regarding premarital sex, and for these reasons many scholars think it is a later

addition to the preceding law. 37 Moreover, while there are ancient Near Eastern laws

against false accusations of this type, none addresses true accusations.

Most shocking is the death penalty for premarital unchastity, seeming to

contradict the law of the unbetrothed woman. It appears to makes sense only if the

accused bride had already been betrothed at the time of her sexual act, as the Rabbis and

36
Otto (False Weights, 135) notes that is the language of divorce. But that explanation falters in the
case of the unloved wife in Deut 21:15. Nevertheless, that the husbands intention was the dissolution of
the marriage is mentioned by Ramban and most modern interpreters.
37
See Rof, Family and Sex Laws, 173-179.
22

some modern interpreters read it; but most scholars assume the accused woman was

unbetrothed. 38

The silence of this law on what looks to be important data continues to puzzle

many readers. I argue, however, that the question of whether or not the woman was

betrothed is irrelevant and has no bearing on the case. Moreover, this law does not

contradict the law of the unbetrothed woman.

This law is, in fact, addressing a very different situation from the laws of the betrothed

and unbetrothed women. It is not about a one-time nonconsensual sexual encounter, as is

the case of the unbetrothed woman (as v. 28 describes it). The loss of virginity per se is

not the issue. The issue is promiscuous premarital sex; the woman is being called a slut.

Her consent, and her possible hiding of her experience, is assumed. The closest parallel in

Mesopotamian law is Middle Assyrian Law 18, which also describes an accusation of

female promiscuity:

If a man says to his comrade, either in private or in a public

quarrel, Everyone has had sex with your wife, and further,

I can prove the charges, but he is unable to prove the

charges and does not prove the charges, they shall strike

that man 40 blows with rods; he shall perform the kings

service for one full month; they shall cut off his hair;

moreover, he shall pay 3,600 shekels of silver.

38
Wells interprets the law as pertaining to a betrothed woman. Not only does rabbinic interpretation
eliminate the anomaly of the death penalty for an unmarried woman, but, as Moshe Halbertal has noted
([ Interpretive Revolutions in the Making; Jerusalem: Magnes Press/The Hebrew
University, 1997] 84-85), it is part of the rabbinic limitation of the authority of the father over his children
(I thank Moshe Bernstein for this reference.)
23

Here, too, an unproven and unprovable accusation is leveled against the reputation of a

woman and the false accuser is fined, flogged, and publicly shamed. 39

In Deuteronomy, if the accusation is false, the danger is that the womans reputation, and

her familys as well, might be ruined. The false accuser has defamed a virgin in Israel

(v. 19). If the accusation is true, a heavy dose of moral outrage is levied upon the woman

she committed a disgraceful act (nbl) in Israel by prostituting her fathers house.

You must sweep out evil from your midst. In both instances, the word in Israel puts

the emphasis on the public, or communal, nature of the offense. The husbands

defamation of a virgin in Israel has its counterpart in the womans committing a

disgraceful act in Israel.

Why such a severe penalty for premarital sex in this case, and why such virulent

castigation? The answer lies in the phrase , which introduces, in the term ,

the idea of illicit sex (sex outside of legal marriage), especially sex associated with

harlotry. 40 Her fathers house adds the element of parental authority. The father was
39F

responsible for his daughters sexual conduct, and her illicit sexual conduct damages the

family. Compare Lev 21:9: When the daughter of a priest defiles herself through

harlotry, she defiles her father; she shall be burned in a fire. Now Deuteronomy is not

concerned with priestly defilement, but it is concerned with promiscuous sex that affects
39
Laws about accusations of unchastity are found in other ancient Near Eastern law collections. Lipit-Ishtar
33 presents the case of a man claiming that another mans virgin daughter has had sexual relations but it is
proven that she has not; the accuser is fined. Laws of Hammurabi 131 and 132 deal with cases of the
accusation of a married woman by the husband or by a third party. In the absence of proof, the woman may
clear herself by taking an oath (in the first case) or by submitting to the River Ordeal (in the second case).
No mention is made about the penalty if the accusation is false. Middle Assyrian Laws 17 speaks of an
accusation against the virtue of another mans wife in which there are no witnesses. The husband and the
accuser make an agreement and undergo the River Ordeal to ascertain if the accusation is true.
40
Cf. Gen 34:31, , Shall our sister be treated like a whore, in which Dinahs brothers
equate sex outside of a legal marriage with promiscuity.
24

the status of the family. 41 The woman in Deuteronomy is guilty of both having defied the

authority of her father and of having engaged in promiscuous sex. 42 She is the female

equivalent of the incorrigible son in Deut 21:18-21.

Indeed, this case is often read as parallel to the incorrigible son, a correct reading

to my mind. In both cases the child fails to uphold family and societal standards and goes

against parental authority. In both cases it is the parents statement and/or evidence that

decides the outcome. In both cases the penalty for disobeying parental authority is death

by stoning, carried out by the towns residents, in order to sweep away evil. Sleeping

around by a daughter, is the equivalent of gluttony and drunkenness by a son. These

cases imply repeated and extreme forms of these behaviors by rebellious children who

are heedless of their parents. In other words, these children are juvenile delinquents. The

boys get drunk, join gangs, and engage in petty crime and sexual exploits (exactly what

Proverbs warns against); the girls sleep around and get pregnant. These laws are

concerned to promote the proper behavior of young men and women, adolescents, who

are at precisely the age when rebellion against parental authority and the norms of society

is most likely. The rebellion is gendered to meet the gendered norms of the society:

modesty and chastity for woman and decorous public deportment for men. 43 The death

41
Lipka (Sexual Transgression, 98) also considers the womans action to be promiscuous. She goes further,
however, and equates it with adultery.
42
Pressler (The View of Woman, 30-31) and Halbertal (Interpretive Revolutions, 85) discuss this phrase
primarily in terms of defying the fathers authority, engaging in sex without his knowledge or permission
(i.e., outside of marriage). I want to stress the promiscuous behavior of the woman. See also Lipka, Sexual
Transgression, 100-101. Joseph Fleishman (A Delinquent Daughters Sin and Punishment in
Deuteronomy 22:13-21, [SBL International Meeting. Edinburgh. July 5, 2006]) independently concluded
that this is a case of promiscuous sex that flouts parental authority. He equates the womans offense, and
that of the rebellious son, with cursing ones parents, a capital crime according to Exod 21:17 and Lev 21:9.
43
Bernard Jackson inquired orally as to why the father or parents do not bring their wayward daughter to
the court, as they do for their wayward son. My response is that the father might be more reluctant in the
25

penalty for both young men and women is meant as a deterrent of this type of behavior.

Seen in this light, there is no contradiction between the law of the unchaste bride and the

law of the unbetrothed woman. They are addressing totally different situations.

To conclude, when we look at the outcomes for a woman who has had sex outside

of marriage, we find an amazing polarization. Either the woman is married as quickly as

possible (the unbetrothed woman and the betrothed victim of forced sex = nonconsensual

sex), or she is put to death (the promiscuous young woman, the betrothed woman who

had consensual sex, and the adulterous married woman = consensual sex). There is no

permanent place in Deuteronomys world for sexually experienced never-married women,

be they one-time victims of premarital sex or professional prostitutes, for this is an

unstable status for women, inconsistent with Deuteronomys ideals. 44 On the other

hand, Deuteronomy does not declare immoral all categories of premarital sex. As

Deuteronomy construes it, immoral sex is consensual sex on the part of the woman. If the

woman does not consent, she is absolved of any moral or social guilt that might pertain.

Thus does Deuteronomy emphasize the value of premarital chastity while still protecting

women who were, in its view, forced to have sex.

Men, on their part, also bear a responsibility and a penalty for their sexual actions.

A man who has sex with another mans wife or fiance is put to death for adultery. A

case of a daughter because the shame that the father bears for the daughter is far greater than that for the
son, since the father is responsible for his daughters sexual behavior. Indeed, the fact that the daughter is
executed at the entrance to her fathers house shows that the father, too, is marked for some blame.
Moreover, the actions of a rebellious son are more overt and blatant than those of a rebellious daughter. I
would add that in failing to provide evidence of the brides virginity, so easily provided when desired, the
father is indirectly aiding in the accusation of his daughter.
44
Deut 23:18-19 forbids Israelites to be prostitutes, male or female, and forbids money derived from their
profession to be used to pay vows. The term qadesha is now accepted as referring to a common prostitute,
not to a cult prostitute. Cf. also Lev 19:29 which forbids Israelites from giving/selling their daughters into
prostitution. Yet by forbidding priests from marrying them (Lev 21:7), Leviticus acknowledges the
presence of Israelite prostitutes. Deuteronomy says nothing further about prostitutes.
26

man who has sex with an unbetrothed woman must pay the full bride-price, marry her,

and may never divorce her. Although chastity is a womens attribute, a mans

extramarital sexual activity is also constrained by it; for him, too, the outcome is death or

marriage. In this sense, Deuteronomy treats men and women equally.