Answering Michael Martin's
The Biblical Teaching on Rape
Concern for the Victim
Martins second objection to the Biblical teaching about rape is that in the Old Testament the womans rights and her psychological welfare are ignored. He quotes Deuteronomy 22:28-29, If a man finds a girl who is a virgin, who is not engaged, and seizes her and lies with her and they are discovered, then the man who lay with her shall give to the girls father fifty shekels of silver, and she shall become his wife because he has violated her; he cannot divorce her all his days. According to Martin, the victim of the rape here is treated as property of the father. He also thinks that the woman apparently has no say in the matter and is forced to marry the person who raped her. Finally, he adds if they are not discovered, no negative judgment is forthcoming. The implicit message seems to be that if you rape an unbetrothed virgin, be sure not to get caught.
This passage is more difficult, especially for someone like Martin who is not well acquainted with the nature of Biblical law. To begin with, Martin may be misled by the modern notion of law. The word law is probably not be the best translation for the Hebrew word torah, especially if modern readers take this to imply that what Moses wrote was something like what we think of as a civil law code. Moses is not writing a civil code per se, nor is the law of Moses written so that each law spells out all of the details that concern a particular case.
This means, among other things, that when we read what Moses wrote in Deuteronomy 22:28-29, we need to compare this passage with other passages in the torah to get the whole picture. Some of the things that Martin is concerned with are simply not addressed in this passage. Without comparing Deuteronomy 22:28-29 to other passages dealing with similar issues, ones interpretation can only be superficial and misconstrued. For example, the book of Numbers (36:6) addresses one of Martins objections when it refers to the right of the daughter to marry the man who is good in her eyes. Especially when understood in the larger context of the Bibles teaching about daughters and marriage, this passage clearly indicates that daughters had a say in whom they would marry. Nothing in the law anywhere suggests that a father can force his daughter to marry against her will. Presumably Martin has read this into the passage because he has certain presuppositions about what ancient patriarchal Israelites must have thought.
If his suggestion that a woman apparently had to marry the man her father chose is the expression of a bias, his comments about getting caught are just plain strange. To begin with, the Hebrew word translated found in Deuteronomy 22:28 is often used in legal contexts and implies that the crime can be proved. That this is the meaning here, too, is rather obvious. Which is to say that the importance of investigation and obtaining proof is what the law here refers to. But Martin misses the point and offers the bizarre comment, Notice also if they are not discovered, no negative judgment is forthcoming. The implicit message seems to be that if you rape an unbetrothed virgin, be sure not to get caught. If it were legitimate to conclude here that the implicit message is be sure not to get caught, we might say this is the implicit message of any criminal justice system that requires careful investigation before conviction.
Laws about murder also require careful investigation. Is the implicit message, Dont get caught? I suppose one might say that since modern courts require evidence to convict people of crime, the implicit message is, dont leave evidence behind. No doubt from the perspective of the criminal, that is the implicit message! However criminals may view things, their perversity may not be made into an indictment of our modern criminal justice system or of that of ancient Israel.
Martins notion that the daughter here is treated as property of her father is another example of misunderstanding the law, the place of a daughter in ancient Israel, and the role of social customs such as the dowry. The payment required here is rather large (cf. 2 Kings 15:20) and is a penalty, not simply a regular marriage present. Nothing in this passage implies that the daughter is the fathers property, as if she is here being sold for money.
Beyond the misinterpretation of these matters, Martin misses two of the most important points of the passage. First, the girl here has not been raped in the way that we think of rape. Ancient Israel was an agricultural society. People lived in villages in which everyone knew their neighbors. The case being described here is not analogous to our modern situation where a total stranger violently attacks a woman. Rather, it is like what has been called date rape. The young woman knows the man who forced himself on her. If the crime can be proved, she has the choice of forcing him to be hers (eye for eye justice), if she so wishes. She may also refuse, in which case the man would have to pay a heavy fine without obtaining a wife (cf. Ex. 22:16-17).
Second, if the girl does decide to marry the man, he cannot divorce her all his days. This is an important aspect of the punishment for the man. He must marry the woman, providing for her for the rest of his life. By saying that he cannot divorce her, de facto control of the family is put in her hands. She cannot be forced to submit to him after they are married. Even if she disobeys him, refuses to take care of the house, or even refuses to live with him, he has no right of divorce. Thus, he will have to win her affection and submission, or suffer her lordship. Again, the principle of eye for eye justice comes to play in the judgment.
This, then, is a law that takes date rape much more seriously than we take it in the modern world. This is not an example of the Old Testament showing light regard for the womans rights. On the contrary, her rights are protected and her future is guaranteed.
Another law in the same context discusses what Martin calls the raped of a betrothed virgin in a city. Martin has almost entirely misunderstood the passage. First, the passage is not referring to rape simply, but distinguishing rape from adultery. In a case in which a woman has cried out for help, the judges may assume it was rape and the offender is put to death. But in a case in which the woman did not cry out, it is assumed that it was not rape at all, but consensual sexual relations. In that case, it is adultery. The penalty is death for both offenders, if the victim so decides (It appears that in Biblical law the victim has the right to decide whether or not the death penalty should be executed on the offenders, but that is another topic. I will not get into it here).
Are there cases in which a woman cannot cry out? No doubt there may be. What about those cases? Is the woman guilty of adultery anyway? Not at all. It must be remembered that the laws of the Bible are not modern statutes that criminal lawyers can play games with. The law of Moses functioned more as instruction in righteousness and wisdom that provided ethical standards for the civil law of Israel than as a civil law itself. Judges, moreover, had far more discretion in applying the law than do judges in the modern world. What was clearly required was careful investigation and a just decision. It would not at all have been legally difficult for a judge in ancient Israel to decide that a rape had occurred, even though the victim had not cried out. He would only need good reasons for making the judgment, such as, for example, bruises on the victims face indicating that the man who violated her prevented her from screaming out, or evidence that he placed a knife at her throat, threatening more serious violence if she did cry out. Given the village structure of ancient Israel, the judges knowledge of the young woman and her family would often be sufficient basis for accepting her testimony -- not to mention that in most cases they would also know the perpetrator of the crime.
In the rather similar case of the woman in the open country, her testimony alone is apparently adequate to determine that the man has raped her. The language is significantly different, verse 25 speaking specifically of forcing her, language not found in the previous section dealing with the city. Here, in other words, Moses is not trying to distinguish between rape and adultery. Rape is assumed to be the case. No doubt proof of some sort would still be needed, since the importance of investigating a crime and obtaining adequate proof, one of the hallmarks of modern justice, is a repeated theme of the law of Moses. But the passage specifically makes provision for the womans situation. She does not have to offer proof of her innocence, like she does in the city. Moreover, the law indicates that the woman who is a victim of rape is like the man who is a victim of murder. She is encouraged not to feel guilty. There is no fault on her part. Certainly this has implications for her inward healing from the experience.
It is true, as Martin says, that the Bible does not specifically mention the psychological harm done to the victim. However, this is not only true in the case of rape, it is true in the case of every other crime that the Bible deals with. This is not to conclude that God doesnt care about the psychological harm done to victims. Martin himself notes that in an historical passage outside the law, the story of Amnons rape of Tamar, the psychological pain of the victim is described. In historical passages, in the Psalms, and in the books of the prophets, there is ample material addressing the suffering and pain of all sorts of people. In other words, the Bible does not deal with psychological pain in the law, but in a different and more appropriate context.
What we have seen, then, is that Martin has not adequately understood either the specific laws that he cites or the larger context of Biblical law. The interpretations he suggests involve gross neglect of the immediate passage in some cases and basic ignorance about the teaching of the law in general. Even more, Martin exhibits a profound and blinding prejudice. Ancient Israels law is not what Martin makes it out to be. On the contrary, Biblical law is sensitive not only to the situation of the raped woman -- publicly pronouncing her to be as innocent a victim as one who has been murdered -- but also to the great difference between date rape and violent rape. In the larger context of loving all our brethren and giving special care to the weak, the laws about rape are no less enlightened than the laws of any land in our day.
 Since the question of rape committed by a total stranger is not part of this law about date rape, we might ask how the law of Israel treats it. The answer is that rape of that sort is never spoken of directly. It seems to me most likely that violent rape by a stranger would have been dealt with according to the laws about kidnapping and assault, for which the maximum penalty would be death.
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