In Genesis 26, one of the so-called wife–sister stories, Abimelech King of Gerar catches Isaac “playing” with the woman he had introduced as his sister, namely, Rebekah his wife. He immediately confronts the trickster, rebuking him for presenting his wife as a single and therefore sexually available woman: “What is this you have done to us? One of the people could easily have lain with your wife, and you would have brought guilt upon us” (Genesis 26:10). Abimelech's remarks ought to give one pause. He apparently suggests that sexual contact with this Hebrew woman is as easy as brushing elbows with a stranger in a crowded street, which is to say, he fails to consider or even acknowledge the possibility that Rebekah might have just said “No!” Furthermore, the narrowly avoided “guilt” he refers to consists not of this woman's rape by some local sexual predator—in which case her secret identity as Isaac's wife would be irrelevant—but of an otherwise innocent man's unwitting violation, consensual or nonconsensual, it matters not, of her treacherously concealed marital obligations. In other words, the underlying legal reasoning here conceives of Rebekah not as an autonomous subject whose rights (i.e., the right to refuse a sexual advance) must be protected, but as an object within the domain of her husband, whose prior claims—namely, to sexual exclusivity—must be respected. Abimelech's at-first puzzling remarks, then, provide us with a glimpse into a wholly foreign legal episteme or discursive formation.

To interpret ancient laws correctly, as well as the narratives presupposing them, one must reconstruct this episteme, that is, the legal concepts and principles operating in biblical Israel. The failure to do so has led to the unwitting imposition of modern ideas and ideals onto biblical (and other ancient) texts. One particularly striking example of this problem is the concept of “legal status.” Who is endowed with what rights, duties, and so forth? Can one speak, in particular, of “women's rights”—or “human rights” in general, for that matter—in biblical law and literature? As various Priestly and Deuteronomic laws attest—apropos of inheritance and property (Numbers 27 and 36), vows (Numbers 30), sexual crimes (Deuteronomy 22:13–29), and others—women did not constitute autonomous entities before the law in biblical Israel, not to mention the ancient world at large (in fact, neither exactly did men, as we will see). As a result, women possessed, for lack of a better term, few if any “rights.” As Tikva Frymer-Kensky recognized—while failing to draw out the ultimate consequences of her insight—they specifically lacked the power of “sexual consent,” which resided in the father and then the husband.Footnote ¹ To follow this premise to its logical conclusion: If the modern concept of forcible rape is defined as a nonconsensual sexual encounter in which the “object” of the encounter is also its “victim”—the one whose rights have been violated—then there was no such thing as forcible rape in biblical Israel's legal system.Footnote ² Biblical law, inasmuch as one might posit a coherent view on this matter, does recognize the possibility of a forcible sexual encounter, but it defines it as a particular case of the more general crime of illicit sex, and identifies the “victim” of this crime as the father or husband whose claims over the “object” of the crimeFootnote ³—daughter or wife—have been “violated” (‘innah).Footnote ⁴ The underlying system becomes particularly visible in the case of a sexually available female, namely, an unmarried, unengaged virgin, for the legal (Deuteronomy 22:13–29) and literary (2 Samuel 13) evidence suggests that she could not effectively refuse a sexual advance. That is, she might refuse and even resist said advance, but since she was not a fully endowed legal entity, her refusal did not carry legally binding force—hence Rebekah's precarious position, as an apparently single woman, among the men of Gerar.

Before proceeding, I must make three related caveats regarding the approach taken in this study. First, the concept of legal status underlying biblical traditions is most clearly discerned within the broad perspective of a comparative analysis, and so I will not only discuss a variety of legal and literary texts from the Bible, but will also occasionally touch upon examples drawn from other ancient Near Eastern legal collections—although I will generally relegate the latter to the notes, in order to maintain the forward momentum of my central argument.Footnote ⁵ That these diverse sources may disagree on various surface issues will only serve to emphasize their common base. For this reason, even Carolyn Pressler's important work on Deuteronomic “family law,” which anticipates the present study at certain crucial points, fails to articulate clearly the overarching logic of biblical law, wrongly dismissing what she calls “composite pictures of the status of women in the Israelite family” on the grounds that they distort reality.Footnote ⁶ Indeed, it is precisely the large “composite” view that enables one to discern the logical relation between gender and legal status. Second, one must recognize that the norms officially prescribed by law do not necessarily correspond to the de facto practices of “everyday life.” This is especially true of biblical law, which, as has frequently been noted, may have served a largely “symbolic” or “utopian” function.Footnote ⁷ Similarly, while the verisimilitude of biblical narrative justifies drawing certain inferences about ancient Israelite legal conventions from its more or less fictionalized episodes, one cannot simply take them at face value as the undistorted reflection of historical “reality.” It is for this reason that I generally refer in this study to biblical, not ancient, Israel. Far from reflecting any skepticism on my part regarding the latter's historical existence, I merely acknowledge as an open question the extent to which the practices described and/or implied in biblical law and literature correspond to a lived “reality.” Finally, as a philosophical realist, I crucially maintain the existence, external to any discourse (e.g., biblical law and literature), of “the real”—in the Lacanian sense—contrary to that famous poststructuralist slogan, il n'y a pas de hors-texte.Footnote ⁸ Thus, even though the laws and narratives examined here imagine and represent various acts of threatened and/or realized sexual violence against women (and occasionally men) through a particular lens—“patriarchal,” as we all know—there arguably exists, independent of this discursive representation, “the real” of such violence and, in particular, of the experience of those who are subjected to it.Footnote ⁹ One might, then, posit forcible rape as “a real” within the external world of human interactions, even if, as I shall argue, biblical law and literature failed to perceive it.Footnote ¹⁰ The failure to distinguish between “the imaginary” (discursive representation) and “the real” contributes to Hillary B. Lipka's mistaken insistence on the presence of the concept of rape in both the Bible and ancient Israel.Footnote ¹¹ Moreover, one could imagine projects other than what I will attempt here—for example, recovering the “voice” of the crime's “object,” lodged like a foreign body within biblical tradition. Such an analysis would be akin to Ilana Pardes's study of what she calls biblical “counter-traditions.”Footnote ¹² In the meantime, however, I have the more modest aim of reconstructing a small number of crucial legal concepts and principles as described in certain laws and presupposed in various narratives, especially as they pertain to the legal status of women in the Bible.

On the Genealogy of Legal Status

What is needed is a “genealogy” of the legal entity and legal status, which, it must be emphasized, are not immediately and definitively given to human thought.Footnote ¹³ If, as Marcel Mauss famously observed, the very “notion of person” or “self” is not a natural fact but a “concept” that has “slowly been elaborated,” it follows that this same notion, specifically as a subject of law, must similarly have a history.Footnote ¹⁴ For the purposes of framing this study, then, let us merely pose the basic question for ourselves: What is the modern legal subject and how does it differ from the entity found in biblical tradition?

Modern liberalism, broadly defined, begins with an idealization. Let us call it the “liberal subject,” that is, the autonomous individual, stripped, at least in theory, of the distinguishing qualities of individuality and reduced thereby to a bare and abstract unit of equality—an instance of what Deleuze called le quelconque (the anything whatsoever).Footnote ¹⁵ Variously endowed with the will, power, and right to act in its self-interest, the liberal subject constitutes the primitive concept on the basis of which are constructed the various contracts, social and legal, of modern political thought, from the Hobbesian man, whose “natural right” would lead the human species into that famous state of war, “of every man, against every man,” to the Rousseauan man, “born free” and yet “everywhere in chains.” It was articulated most explicitly in the Universal Declaration of Human Rights, adopted by the United Nations in 1948, and it currently animates what Alain Badiou disparagingly calls “the ethic of human rights.”Footnote ¹⁶

In biblical Israel, however, it was not the individual but the patriarchal household or extended family—namely, the “house of the father/husband” (beit 'av / 'ish); cf. Akkadian bit abi—that was thought to constitute a legal entity.Footnote ¹⁷ An individual's legal status, then, far from deriving from an abstract universal notion of personhood, was rather a function of one's concrete particular position or role within the household.Footnote ¹⁸ For this reason, the biblical category of the poor and the helpless—those who must be defended from injustice—specifically consists of widows, orphans, and aliens (Exodus 22:20–21; Deuteronomy 10:18, 14:29; Jeremiah 7:6; Ezekiel 22:7; etc.), that is, those not belonging to a legitimate household and thus without status, without recourse to normal protections, legal, social, material, and so on. Similarly, divorce, according to the biblical Hebrew idiom, consisted of “sending” (sh-l-ḥ) the wife away from the husband's house (Deuteronomy 24:1).Footnote ¹⁹ Conversely, “confirmed bachelors” and “spinsters” have left few if any traces in the Bible, since they effectively constituted structural impossibilities, it being well nigh unthinkable that a boy or girl should not marry at the proper age and thus assume his or her rightful place within a house.Footnote ²⁰ Not even the patriarch should be thought of as an autonomous individual. He may have represented the household as its head, but his legal status was still a function of his position relative to this corporate legal entity. In fact, thanks to the principle of patrilineal succession, the household itself constituted but a moment in the larger life of the “lineage” (toledot), whence the importance of the family estate or patrimony—“inheritance, possession” (yerushah, naḥalah) or “holding” (’aḥuzzah)Footnote ²¹ —the continuous possession of which linked generation to generation. What we would now call “private property” was not fully at the patriarch's disposal, since his house was beholden both to its past and future: Witness the restrictions placed upon the selling of family property in Leviticus 25.Footnote ²² Ultimately, the very nation of Israel was an extension of these tribal realities. The census in Numbers 1–3, for example, neatly spells out the Priestly system for defining and relating these entities: tribe (matteh), clans (mishpeḥot), patriarchal households (beit 'avot), and names of adult males (shemot).Footnote ²³ Any household claiming membership in the “congregation” (‘edah) of Israel needed in principle to trace its lineage back to this genealogical structure.

As a result, the Bible betrays little if any awareness of human rights as such, and these must be extricated from biblical interpretation with the same care and rigor with which Foucault, for example, banished the notion of repression from the history of sexuality.Footnote ²⁴ Biblical law concerns itself rather with the mutual obligations, duties, and claimsFootnote ²⁵ —mishpat, ẓedakah, miẓwah, etc.Footnote ²⁶ —that characterize kinship and by extension society: Honoring one's parents, respecting the property of one's neighbor, and so forth. Consider, for example, the various practices and institutions gathered under the umbrella concept of “redemption” (g'l). Redeeming the blood of a slain kinsman does not uphold his right to justice, but restores the honor and integrity of the family bloodline through vengeance. The related institution of the cities of refuge (Exodus 21:12–14; Numbers 35:9–34; Deuteronomy 19:1–13; Joshua 20) does not guarantee the right of the accused to a fair trial, but guards society itself from the pollution of bloodshed by requiring it to determine whether he is a murderer who must be handed over to his victim's redeemer, or a perpetrator of manslaughter who must be granted sanctuary instead. Finally, redeeming one's enslaved kin and/or the latter's mortgaged land (Leviticus 25) does not maintain his right to freedom and to property, but restores the integrity or purity of the clan's relationship to the land of Israel, by returning its members to their rightful place.Footnote ²⁷ The covenant, in turn, generalizes such claims made by the kin group upon its members, by extending the metaphor and logic of kinship to broader relationships within and between societies. A “social contract” drawn up between parties without natural blood ties, it creates the obligations of kinship—“loving kindness” (ḥesed)—between adoptive relatives.Footnote ²⁸

The Legal Status of Women

The distinctive logic underlying the patriarchal household is brought into clearest relief in the legal status of its female members, which one can usefully approach through the idea of legal competence.Footnote ²⁹ By modern convention, on the one hand, legal competence—including the power of sexual consent—is generally granted to each individual adult, male or female, who by virtue of age and mental capacity has attained majority. Majors have, in effect, the authority to say “yes” or “no.” Conversely, minors cannot enter into legally binding contracts or engage in activities whose ramifications are deemed sufficiently grave. What is more, they can be shielded from exploitation through various special protections that effectively say “no” on their behalf—for example, laws dealing with child labor and statutory rape—which in some cases can even override the consent of legal guardians. If in biblical Israel, on the other hand, not even the patriarch could be said to possess “rights” as such, the father nonetheless spoke for the household from its symbolic center. That biblical narrative provides counterexamples of weak and ineffectual fathers does not call into question the general rule. Each son, in turn, could expect to assume that same position within his own household upon the father's death and the subsequent division of the estate among the male heirs. Such was not the case, however, for daughters: A girl lived under the legal guardianship or “house” of her father (beit 'av), until she was betrothed and eventually married, at which point she entered the guardianship or “house” of her husband (beit 'ish). In other words, a woman could never attain to the same legal status as her male counterpart, unless she were widowed or divorced—that is, detached from the houses of both father and husband.

That biblical Israel possessed some notion of legal majority is clear from Numbers 14. Here the Israelites, having tried God's patience one time too many, are condemned to die in the wilderness, illustrating the principle of “bearing one's guilt,” that is, dying for one's sins: “You will bear your guilt [tis'u ‘avonotekhem] for forty years” (Numbers 14:34), God declares.Footnote ³⁰ Not all of the Israelites, however, will suffer this fate, only those who have reached their twentieth year (Numbers 14:29)—the same age at which men were counted in the census (Numbers 1:2–3). At least according to the Priestly source, then, an Israelite reached adulthood at the age of twenty. The Deuteronomic account of this same event corroborates the general principle. According to Moses, it is the Israelites’ “little ones,” who “do not know good and evil” (lo' yad‘u … tov vara‘), that will enter the land and possess it (Deuteronomy 1:39). The “knowledge of good and evil” signifies not a fall from grace but an ascent to adulthood as a moral agent who is henceforth accountable for his or her actions. Thus, in the Garden of Eden, it is only when Adam and Eve assert their independence vis-à-vis God-as-father, seizing this knowledge for themselves, even at the ostensible risk of death itself, that they outgrow their lowly station of “living being” (nefesh ḥayyah), an ontological status shared with the animals (Genesis 2:7, 19), and become—indeed, make themselves into—fully human beings that are now “like God” (ke'lohim) (Genesis 3:5, 22).Footnote ³¹ Leviticus 27:2–7 further clarifies the Priestly view of age and status, by setting out the valuation of humans as the object of vows: Infant, from one month to five years; child, from five to twenty; adult, from twenty to sixty; and elderly, from one's sixtieth year on.Footnote ³²

At adulthood, then, both men and women acquired a minimal level of legal competence. This competence, however, amounted to nothing more than a basic moral agency: It merely maintained that all adult human beings should be held accountable for their actions; specifically, it made it possible for an individual to be considered guilty of a crime. In order to be treated as the victim of a crime, one had to be endowed with a legal status above and beyond basic competence: One had to possess, for lack of a better word, certain “rights.” But an individual's legal status, as I have already observed, was merely a function of his or her gendered position within the house, with the result that only the household's males in general and the patriarch in particular effectively attained full legal status—only they, technically speaking, could be victims. For this reason, legal cases involving more than the operation of basic moral agency differentiate between male and female entities.

The Priestly law in Numbers 30 dealing with the fulfillment of oaths crucially distinguishes between men and women as moral actors. If men must simply fulfill their oaths and vows without exception (Numbers 30:3), vows made by women are subject to some telling special provisions. Thus, as long as a girl lives in “her father's house,” the father has the power to nullify her vows, at least within a certain brief window of opportunity (Numbers 30:4–6). If he exercises his power of preemption, she shall disregard her vow with impunity. Note that the father's claims in this matter apparently do not extend over the sons living under his roof, who even as boys are treated as “men” with respect to their vows. The husband possesses an even greater authority with respect to his wife's vows. Not only can he nullify the vows his wife makes while living in his “house” (Numbers 30:11–16), but he can also cancel the vows she previously made while living with her father (Numbers 30:7–9). These lingering obligations from “her youth” (Numbers 30:4) are called “utterances of her lips [sefateiha]” (Numbers 30:7, 9) or “proceedings of her lips [sefateiha]” (Numbers 30:13), apparently in order to capture their relatively superficial or less binding nature, as opposed to “all that proceeds from [a man's] mouth [mippiv]” (Numbers 30:3). The law, in other words, enables the husband to receive a bride who is free of legal liabilities, a “clean slate,” as it were—not unlike the ideal of virginity itself. Furthermore, the law grants the husband an extended veto power, beyond that of the father: He can override her vows even sometime after he hears of them, but in this extreme case, he will “bear her guilt” (Numbers 30:15–16). Apparently, the law recognizes that a wife's obligations to her husband's house are greater than those of a daughter to her father's house. Widows and divorcees, bound to neither husband nor father, constitute the crucial exception: Their vows must stand, not unlike those of a man (Numbers 30:10).Footnote ³³ The structure of the passage reveals the symbolic space underlying this law:

The exceptional case in verse 10 interrupts what might otherwise have been interpreted as a chronological sequence, by assuming its liminal position between houses.

The crucial boundary between girlhood and womanhood—namely, the transfer from one house to another—is visible in other laws as well. Leviticus 21:1–4 forbids a priest, a son of Aaron, from defiling himself through exposure to corpse impurity, except for the sake of his immediate family members—mother, father, son, daughter, brother—but apparently not as a husband for his wife and in-laws (Leviticus 21:4), who are not “his close [karov] flesh-relations” (Leviticus 21:2). Crucially, he can mourn for his sister only if she is still a virgin, “close [kerovah] to him because she has not been married” (Leviticus 21:3).Footnote ³⁴ Consummation of marriage ushers her into a new house and a new set of relations and obligations.Footnote ³⁵ Similarly, Leviticus 22:10–13 stipulates that only those belonging to a priestly household—purchased slaves and those “born in his house” (Leviticus 22:11)—may eat of the priest's “sacred contributions.” Note the loose analogy between property (slaves) and familial dependents. Again, a priest's daughter is reckoned as part of his family only as long as she remains unmarried. If she marries a “strange man” (’ish zar)—that is, a nonpriest (Leviticus 22:12)—thus becoming part of a profane rather than sacred household, she may no longer partake of priestly fare. But should she, being childless, become divorced or widowed and return “to her father's house, as in her youth” (Leviticus 22:13), she may once again partake of her father's sacred food.

The patriarchal system governing women's oaths similarly limits the circumstances under which a woman might own property.Footnote ³⁶ In Numbers 27, the daughters of Zelophehad approach Moses and Eleazar in order to voice their concerns regarding their father's heritage, who died without leaving behind any sons to carry on his name. He was not a member of Korah's rebellious congregation, who disqualified themselves from receiving a patrimony in the land (Numbers 27:3), an extreme punishment that the redaction of Numbers 16 likens to the fate of Dathan and Abiram, upon whom God, for all intents and purposes, imposed karet, namely, having one's lineage altogether “cut off” from the people: “And they vanished from the midst of the assembly” (Numbers 16:33).Footnote ³⁷ Rather, as an adult member of the so-called wilderness generation, he was sentenced to the lesser penalty of “bearing one's guilt” (Numbers 14:34). As his daughters thus correctly argue, since he has already “died for his own sin” (Numbers 27:3), it would be unjust to impose, in effect, the harsher punishment of karet, simply because he had the misfortune of fathering only daughters: “Why should the name of our father be removed [yiggara‘] from the midst of his clan [mishpaḥto], because he had no son. Give us a holding [’aḥuzzah] amidst the brothers of our father” (Numbers 27:4). Moses consults with God, who agrees, leading to a special provision within standard inheritance procedure: in the absence of sons, a man's daughters will inherit; in the absence of daughters, his brothers; and in the absence of brothers, uncles. The ruling thus spells out a descending scale of kinship relations: son, daughter, brother, uncle. While it is noteworthy that women could own property in biblical Israel, they could do so only in the absence of an appropriate male household (beit 'ish). The fatherless, brotherless woman, then, found herself in a liminal position analogous to that of the widow and the divorcee. If it makes her more “modern” in our eyes, it does not make her situation more desirable.

The saga of Zelophehad's house continues in Numbers 36, when concerns surrounding his daughters' heirs arise. This time it is the tribal elders who approach Moses: “Now, if they marry one of the men from another Israelite tribe [shivtei benei yisra'el], their inheritance [naḥalatan] will be removed [wenigre‘ah] from the inheritance [minnaḥalat] of our fathers, and will be added to the inheritance of the tribe [naḥalat hammatteh] into which they marry” (Numbers 36:3). Their petition reflects the Priestly conception of Israel as being constituted through a divine land grant that projected its kinship structure onto the two-dimensional surface of the promised land. Within this spatialized kinship system, geographical proximity corresponded to familial proximity. As I have argued elsewhere, the Priests viewed the original distribution of tribal lands as the “pure” state of the nation.Footnote ³⁸ Allowing these property-owning daughters to marry into another tribe would therefore introduce chaos or entropy—a type of “geopolitical” impurity—into the nation's sacred spatial order. As a result, Moses, at God's behest, makes an addendum to his earlier ruling: The daughters of Zelophehad must marry “into a clan [lemishpaḥat] of their father's tribe … so that no inheritance of the Israelites may be transferred from tribe to tribe” (Numbers 36:6–7). Ultimately, a woman was only permitted to own property under certain circumstances and then merely as a concession to patriarchal necessity. For this ad hoc provision existed primarily to serve the interests of the father's “name” (Numbers 27:4) by preserving the continuity and integrity of patrilineal succession, concretized in the family estate—its “holding” (Numbers 27:4) or “inheritance” (Numbers 36:3).

Sexual Consent

The nature and extent of the patriarch's authority over his family is most fully revealed in his power of sexual consent over his daughters. Consider first of all the arranged marriage, which already entails the subordination of the interests of the individuals involved—bride, groom et al.—to the extent that they are even conceived of as autonomous subjects, to larger familial considerations. A family might choose to consult a daughter about her wishes—as does Rebekah's family regarding her betrothal to Isaac (Genesis 24:39, 51, 57–58), who, one might add, has less to say in the matter than she—but nothing, it would seem, requires them to do so. Thus, the Priestly injunction in Leviticus 19:29 against a father “profaning” his daughter by “prostituting her” (lehaznotah) indicates both the father's de facto authority over the daughter (in choosing a suitable mate for her) and its possible perversion by those who would profit from it. In fact, the Covenant Code expressly allows a man to sell his daughter into a form of slavery that included making the girl sexually available to either the purchaser or his son (Exodus 21:7–11). That she would be given to only one man and would enjoy the privileges of a wife seems to differentiate this conjugal transaction from prostitution, making it merely a financially desperate form of arranged marriage instead. The point remains, however, that her “consent” can count for but little under such circumstances. Finally, in the most extreme version of an “arranged” marriage, women and girls were sometimes taken as part of the spoils of war.Footnote ³⁹ The Deuteronomic law addressing this practice (Deuteronomy 21:10–14) neither condemns it as a version of rape nor punishes it as a crime at all.Footnote ⁴⁰ Rather, it merely insists that the captive bride be treated as a wife, not a slave. It thereby seeks to compensate for the fact that her husband has, in effect, “violated her [‘innitah]” (Deuteronomy 21:14) by failing to procure her father's approval, which in the present instance was precluded by the state of war.

This genealogical reconstruction helps clarify some rather infamous narratives. For example, contemporary readers often condemn Lot for offering up his daughters to the men of Sodom in Genesis 19—similarly, the Levite and his unnamed host in Judges 19—but this is a reaction born of modern sensibilities. Given the extreme circumstances, he arguably exercised his legitimate paternal power of consent over virgin daughters.Footnote ⁴¹ The story as a whole, after all, presents Lot as a righteous man, setting up two pointed parallels between him and his venerable uncle. First, just as Abraham shows his worth in graciously receiving the heavenly visitors into his tent (Genesis 18:1–8), so Lot, knowing the perils the two strangers will face in the city square, “presses” (Genesis 19:3) the reluctant guests to spend the night in his home instead, where he persists in protecting them, even when this means putting himself and his family in harm's way.Footnote ⁴² Second, just as Abraham bargains with God in an attempt to spare the wicked many on account of the righteous few (Genesis 18:23–32), so Lot bargains with God's angels to save Zoar from the general destruction (Genesis 19:18–23). Indeed, where Abraham's negotiated terms ultimately fail—through no fault of his own, there being not even ten righteous souls in all the cities of the plain—Lot's succeed. For if he and his family are too few in number to earn the general amnesty Abraham had aimed for, their presence nevertheless suffices to ransom a “small” (Genesis 19:20) town from fire and brimstone. Furthermore, one should recall that Abraham's negotiations do not appeal to the idea of unconditional mercy, but invoke the principle of “justice,” specifically, not slaying “the righteous with the wicked” (Genesis 18:25). The fact, then, that Lot is spared, that God refuses to rain down divine wrath until his escape is secured (Genesis 19:22), suggests that he earned his salvation and his family's through his righteous behavior, specifically his hospitality, epitomized by his willingness to sacrifice his daughters’ sexual integrity for the sake of his male guests.Footnote ⁴³ In light of this divine approval, it is unlikely that Lot's drunken incestuous encounters with his daughters should be interpreted as divine retribution—which is not to deny that this episode casts aspersions on Israel's rivals to the east. Rather, his daughters' brazen quest, as Frymer-Kensky rightly observes, “fits well into the biblical conception of women's actions,” namely, the “desire for motherhood.”Footnote ⁴⁴ One should compare their desperate attempt to “keep alive seed” (uneḥayyeh … zara‘) from their father (Genesis 19:34) to Noah's divine charge “to keep seed alive” (leḥayyot zera‘) in the face of the flood (Genesis 7:3), part of the allusion in Genesis 19 to J's flood story.

One also recalls the aftermath of Judges 19, when the decimated tribe of Benjamin is threatened with extinction—a type of man-made karet. The other tribes, having sworn never to give their own daughters in marriage to this anathematized tribe, must now rescue their brothers’ lineage by procuring them suitable wives, without violating their oath. First, they devote Jabesh-Gilead to “destruction” (ḥerem) for having failed to come to their aid against Benjamin in the first place (Judges 21:8–14): that is, they kill every male and every nonvirgin woman, but spare the virgin girls and give them to the Benjaminites as wives. Second, they kidnap virgins from Shiloh as they come out of the city, apparently unescorted, dancing in celebration of an annual religious festival (Judges 21:19–23). In neither case can these girls be said to consent to their abduction, and yet they are absorbed into what are represented as legitimate marriages. In the first instance, their fathers have been lawfully executed, and so their abduction constitutes no crime. The would-be “victims” have forfeited their rights, leaving their virgin daughters as the fair spoils of holy war. In the second, the Israelites show no interest in winning over the abducted girls themselves. Rather, they attempt to placate the actual “victims” of their crime, namely, the fathers and brothers who could justifiably retaliate. They therefore ask these men to “be gracious” (ḥannunu) in regard to their daughters' abduction, on the grounds that by foregoing their normal power of consent, they will provide wives to the Benjaminites without violating their oath, and they will thereby save a tribe of Israel (Judges 21:22).

Sexual Crimes

Deuteronomy 22:22–29 constitutes the principal textual witness regarding legal views on “sex crimes” in biblical Israel.Footnote ⁴⁵ These are presented in terms of four primary cases.

A) Deuteronomy 22:22: +married, −virgin; “he is found”; implied complicity; kill both

B) Deuteronomy 22:23–24: + engaged, + virgin; “he finds her in the town”; + complicity; kill both

B′) Deuteronomy 22:25–27: + engaged, + virgin; “he finds [her] in the field”; – complicity; kill him

A′) Deuteronomy 22:28–29: – engaged, + virgin; “they are found”; ? complicity; 50 shekels of silver to father

Adele Berlin has recently suggested that these cases appear in descending order of severity of the punishment—from the death of both the man and woman (A and B) to the death of the man alone (B′) to a mere fine (A′).Footnote ⁴⁶ It is unclear, however, on what grounds one should distinguish between the severity of A and B. The true organizing principle of the passage is the chiastic arrangement of the various combinations of two features: +/– virgin and +/– married.Footnote ⁴⁷ The verb “find” (mẓ') occurs in each case: niphal in A/A′, qal in B/B′. A and A′ deal with the opposite combination of features; B and B′ involve the same combination of features in two different crime scenes, town and field. As Pressler observes, these laws do not deal with “rape” in the modern sense: “the offense is seen first of all as a violation of the claims of the man who controls the woman's sexuality.”Footnote ⁴⁸ In A, B, and B′, the perpetrator is said to have “violated [‘innah] his neighbor's wife” (Deuteronomy 22:24); the victim, then, is the husband (or fiancé) of the crime's object (wife). The man's punishment is therefore identical in all three cases: death. In A′, the object of the crime is an unengaged girl, and so the victim is her father, who receives payment for the “damages” done.

On the surface, B and B′ seem to acknowledge the girl's power of consent. Frymer-Kensky goes so far as to infer from the comparison in B′ of a forcible sexual encounter with an assault-murder (Deuteronomy 22:26) that this law recognizes and treats “rape” as a violent crime.Footnote ⁴⁹ The comparison, however, points rather to one's vulnerability to assault in the open country, where no “deliverer” (moshia‘; Deuteronomy 22:27) is likely to be at hand. Thus, if the encounter took place in town, she must have been willing; if in the field, she was not.Footnote ⁵⁰ Furthermore, the girl's ostensible “consent” does not add to her attacker's guilt—does not enter, in other words, into the definition of the crime itself, which is identical in each case.Footnote ⁵¹ More accurately, then, the location of the crime (town or field) determines her “complicity”: Whether or not she, too, is guilty and worthy of death, alongside her unauthorized sexual partner. The distinction between basic moral agency and full legal status (mentioned earlier) thus comes into play again: The girl can be guilty of a crime, but not, technically speaking, a victim of a crime, for which reason her noncomplicity does not add to the perpetrator's guilt.Footnote ⁵² While one cannot simply combine Priestly and Deuteronomic laws into a coherent whole, Leviticus 19:20–22 nicely complements the Deuteronomic stipulations on “deflowering” a virgin engaged to another man. If the betrothed virgin is a slave who has neither been “ransomed” nor granted her “freedom,” her violation is no longer a capital offense. Apparently, her status as someone else's property impinges on the bridegroom's normal claims over his prospective bride. The law betrays no interest in her complicity, perhaps because neither she nor her partner will be executed in either case. And since Priestly law concerns itself primarily with offenses against God (rather than civil offenses against one's neighbor), it does not even stipulate a fine payable to the slave's owner, only a “guilt offering” to Yahweh.

While A does not specifically address the wife's “complicity,” I infer that it recognizes the possibility of her innocence, partly by invoking the principle of intellectual charity, partly by invoking the legal principle demonstrated in B and B′: If the wife is not complicitous, she is innocent and therefore not to be punished, as was the case in B′.Footnote ⁵³ Here one should also consider the Priestly Sotah ritual (Numbers 5:12–31), which complements the Deuteronomic ruling. The importance of determining her guilt, whether she has “gone astray” (tisteh) and been “unfaithful” (ma‘alah bo ma‘al, Numbers 5:13), using an oath cum magic potion, suggests that a wife who falls prey to a noncomplicitous encounter would be held innocent and treated as such. A more cynical, less charitable reading is possible, namely, that A demands the woman's death regardless of her complicity, since in either case she has been defiled by the extramarital encounter: “And so you will purge the evil from Israel” (Deuteronomy 22:22).Footnote ⁵⁴ However, while this reading would only further underscore the absence of the concept of rape in biblical law, it seems unlikely.

In contrast to A, the complicity of the unengaged virgin does not seem to enter consideration in A′.Footnote ⁵⁵ This is because it would have no legal consequences in this situation.Footnote ⁵⁶ It would neither change the nature of the crime as regards the male perpetrator—according, again, to the principle of B and B′, the punishment would be the same in either case. Nor would it change the treatment of the girl, since in neither case has she broken a vow to a groom.Footnote ⁵⁷ For this reason, the perpetrator is not put to death, as he would be had he “violated his neighbor's wife” (Deuteronomy 22:24). Rather, he must pay a fine of fifty shekels of silver to the girl's father, who is the victim in this instance. The same basic reasoning underlies the Covenant Code's version of this law in Exodus 22:15–16. If a man “entices” or “deceives” an unengaged girl, he must pay the “bride price for virgins” to her father, though here the father reserves the right to withhold her from marriage.Footnote ⁵⁸

I suggested earlier that A′ expresses the patriarchal nature of the underlying logic most clearly. This is because it most fully exposes the woman's vulnerability, her lack of options. For what could be more shocking, at least from our modern perspective, than that this girl, who might have been forcibly violated by this man, should be given to the guilty party in marriage? As I observed earlier, however, her refusal does not have legally binding force, and thus it does not add to or in any way alter her attacker's punishment. This law, then, exhibits no awareness of “rape,” no fear of trapping the girl in what we would now characterize as an “abusive” marriage. Rather, it cares for her (as a daughter of Israel) in the only way it knows how: Providing for her future, which has been compromised by this unauthorized sexual encounter, by giving her to a husband who cannot divorce her. In the case of her complicity, one might compare this crime to what we now call “statutory rape.” The perpetrator has “violated” her (Deuteronomy 22:29), inasmuch as she lacks the legal competence to enter into “consensual sex.” The point, however, is precisely that modern law defines statutory rape with reference to the legal distinction between minor and major, whereas this Israelite girl, in contrast to her modern counterpart, will never become an autonomous woman, save through the unenviable event of divorce or widowhood.Footnote ⁵⁹

Finally, as the careful reader will have already noticed, the chiasmus outlined above omits one combination of features: – married, – virgin. This is the burden of Deuteronomy 22:13–21: the “outrage” (nevalah) of a girl losing her virginity before consummation of marriage, “fornicating [liznot] while in her father's house [beit 'aviha]” (Deuteronomy 22:21).Footnote ⁶⁰ If the man's accusation that his bride was not a virgin is true, it bears witness, after the fact, to the bride's involvement in a previously undetected event: B, B′, or A′. If she was a willing sexual partner with a man while engaged to another (B), her reason for keeping the encounter a secret is obvious: She would have been put to death, and so she has at least managed to delay her exposure and execution. The lesson, of course, is not to commit an infidelity against one's fiancé. If she was forcibly violated while engaged to another man (B′), the law encourages her to report the incident; otherwise she may be held guilty at a later date (Deuteronomy 22:21).Footnote ⁶¹ Finally—and this seems to be the primary intent of the paragraph—if a sexual encounter takes place while she is unengaged (A′), the law encourages her to report the incident, so that proper marital arrangements can be made with this first sexual partner, thus salvaging her honor. Even if she did not willingly participate in the encounter itself, her subsequent silence makes her, in effect, an accomplice in this “outrage,” this act of “fornication” against her father's house. Even if she was the unwilling object of a crime, she is now treated as an “evil” to be “purged” from Israel (Deuteronomy 22:21). Conversely, if the husband is guilty of making a false accusation, he will be flogged and fined one hundred shekels of silver “because he has given a bad name to a virgin of Israel” (Deuteronomy 22:19). Again, the fine is payable to the victim, the bride's father. In fact, this act of slandering a virgin bride is structurally identical to “deflowering” her outside of marriage (as in A′): it retroactively transforms the consummation of marriage into a “violation” of the bride, inasmuch as the would-be groom attempts to “use” her sexually without the follow-through of marriage. For this reason, the same punishment is imposed in both cases: The guilty party must pay a fine, and he forfeits any right to divorce. Indeed, slander is the more serious offense, as reflected by the heavier fine and the addition of corporal punishment. This punitive supplement appears to answer to the crime of slander itself.Footnote ⁶²

While the Mesopotamian legal views on these matters fall beyond the limits of the present study, it is useful, for the sake of some comparative perspective, to make a few tentative remarks. Let us consider a case from MAL A, which might seem to provide evidence for the concept of rape: the violation of an unengaged virgin (paras. 55–56).Footnote ⁶³ Unlike Deuteronomy 22, MAL A differentiates between the violation of a girl who is willing as opposed to one who is unwilling, at least in terms of the perpetrator's punishment. But does this make her a fully constituted legal entity? And does it establish the existence of the concept of consent? In fact, in both cases the law still identifies the girl's father as the victim, in whose “house” she is said to reside.Footnote ⁶⁴ If the girl was the unwilling object of a sexual violation (maza'u), the wife of the offender is to be sexually violated (maza'u) as well and subsequently kept by the victim (the father), while the girl enters her attacker's house as his dependent.Footnote ⁶⁵ It may appear at first glance that the law, in “talionic” fashion, is inflicting the girl's suffering upon her assailant, thus treating her as the victim, but in fact, it is her father's losses that are being paid back in kind: It is not the guilty man who is violated, but rather his innocent wife, because this more accurately “mirrors” the crime against the patriarchal household; the two houses involved effectively exchange the wife and the girl; if the man is single, he must pay damages to the father and, at the latter's discretion, marry the girl as well. If the girl was willing, conversely, the wife is not touched, but the man must still pay damages to the father, who in turn punishes his complicitous daughter as he sees fit. The latter punishment (and therefore crime) may seem less severe, but in fact, it is identical to that of a single man who forcibly violates a girl, so the law does not treat this case as a genuinely lesser crime. What one really witnesses here, once again, is the precise calculation of the most appropriate mirror punishment: Since the victim's daughter was not forcibly violated, neither is the criminal's wife; and, given the elliptical nature of these laws, if the man is single, he most likely has to marry the girl as well, if the father so wishes. To the extent that the girl's suffering is taken into account by MAL A, it recognizes her personhood—certainly more so than Deuteronomy 22—but grants her neither autonomous legal status nor the power of consent.

As a final piece of evidence in support of my reading of Deuteronomy 22, let us turn to Amnon's violation of Tamar in 2 Samuel 13, an incident that would seem to constitute incontrovertible proof of the existence of the concept of rape and of female consent.Footnote ⁶⁶ The sexual crime in this episode plays out like A′ above (– engaged, + virgin). Amnon sets a trap for Tamar, tricking their father, King David, into sending his half-sister to his home in order to nurse him back to health. By clearing his inner chamber of those who might come to her aid, he effectively creates the situation of the “open field.” The crime that follows is unambiguously violent and forcible. Tamar clearly refuses Amnon's proposition: “No, my brother, do not violate me [te‘anneni]; for it is not done thus in Israel. Do not do this outrage [nevalah]” (2 Samuel 13:12). Amnon in no uncertain terms “overpowered [vayyeḥezak] her” (2 Samuel 13:14). But does the narrative itself actually conceive of it in anything resembling modern terms? The reasons Tamar offers for refusing her half-brother are instructive. She does not refer to her own volition—nor, for that matter, to the question of incest—which is irrelevant. That which is “not done in Israel,” it turns out, is failing to procure the consent of the father: “Speak, please, to the king; for he will not withhold me from you” (2 Samuel 13:13). True, one might interpret her remarkably articulate response as mere rhetoric, an attempt to forestall the impending assault, but the principle of verisimilitude still suggests that David, as patriarch of the house, is the legal entity who matters. More shocking still—at least from our modern point of view—is Tamar's reaction to the violation itself. She makes no attempt to escape her assailant and shows no interest in having him duly punished. Rather, what she wants and expects is to remain in Amnon's house as his wife. Indeed, she views his refusal to marry her as more despicable than his first crime (2 Samuel 13:16). As we have seen, however, in all of this she merely follows the legal conventions of the time (Deuteronomy 22:29). But then we must conclude that Tamar had no power of consent and that her violation did not constitute a forcible rape.