How Torah Protects a Captive Woman in War
Captive Israeli girls held by Hamas
There have been wars since the beginning of the world. The first murder was committed by the firstborn in the world Kayin who killed his twin brother Havel. Since then, the killing of human beings by human beings has become a norm of war. Since the ancient times, another form of crime has become a norm of war: rape. Rape in time of war has been weaponized to spread fear in the invaded land and demoralize its population. Girls and women have been raped, abducted, and sold as sex-slaves in the markets or as concubines in harems to satisfy animalistic lust. Today’s world is no more different than the ancient one. The 7 October massacre, the brutal gang rape of Israeli girls and women, and the burning of babies alive, and since then the murderous operations of the tentacles of the octopus against the State of Israel, are gruesome evidence of present and existing evil. But the reader’s mind will settle when one reads what the Torah teaches concerning the matter of protecting women in time of war.
Before the children of Israel entered the Promised Land and started conquering it, the great statesman Mosheh bade the people not to be like this. He set high moral values in the hears of the Israeli soldiers, when they go out to war. The Torah portion in Deuteronomy 21:10-17 begins with the words of Mosheh, Ki Teitsei, “When you go out”. The laws that follow them mandate and regulate the proper moral conduct of Israeli soldiers in time of war, and specifically how to treat captive women. There is no more humane army in the world than the Israeli Defense Force (IDF), thanks to Mosheh who gave Torah to the nation.
The wars Israel is allowed to conduct
There are two types of war in the Torah that are distinctly explain: an obligatory war and an optional war. We will explain what they mean. The Elohim of Israel mandated the nation to conquer the land of Kana’an, which He promised to give to the patriarchs Avraham, Yitschak, and Ya’akov, and to their descendants. The Book of Deuteronomy and the Torah portion Ki Teitsei in particular address the nation stationed at the threshold of the Land concerning these matters. Obligatory war is the war the Almighty mandated Israel to conduct against the seven nations that were occupying Kana’an before Israel’s arrival. Because of the extreme wickedness of these nations, He commanded Israel to completely destroy them, that they should not allow anyone to live. We read thus,
Only, of the cities of these peoples which YHVH your Elohim gives you as an inheritance, you do not keep alive any that breathe, but you shall utterly destroy them: the Chittite and the Amorite and the Kena’anite and the Perizzite and the Chivite and the Yebusite, as YHVH your Elohim has commanded you, lest they teach you to do according to all their abominations which they have done for their gods, and you sin against YHVH your Elohim. (Deu 20:16-18)
The permission to kill women and children was applicable only when those idol worshippers would not respond to the offer of peace (see Deu 20:10-11). If they would, subject to the conditions, they might live, even if they were members of the seven Kana’anite nations as we know from Jos 11:19-20.
He also warned Israel that if they would leave some of them alive, they would be like a thorn in their side. Yehoshua, the disciple of Mosheh, did not destroy the Philistines, who continued to trouble Israel until King David. This obligatory war Israel was commanded to wage was a one-time war. However, once Israel settled in the land, the surrounding nations might attempt to wage war against the chosen people. In such a case, Israel is permitted to conduct defensive wars, which are known also as optional war. In defensive wars, Israel is allowed to take captives as a booty of war. This type of war was in Mosheh’s mind when he said, “When (also if) you will go out to war”. The words here are therefore referring to an optional war, i.e., non-obligatory. Hence, what is said here does not apply to the wars with the Kana’anites, but it was said as a continuation of Deuteronomy 20:1 clearly showing the defensive wars which Israel would carry on the other nations after the conquest of Kana’an. The reader who is acquainted with the Torah and Prophecy will succeed in finding these texts.
When you go out to battle against your enemies and shall see horses and chariots and people more numerous than you, do not be afraid of them, for YHVH your Elohim, who brought you up from the land of Egypt, is with you. (Deu 20:1)
With that said, we turn to our verses in the Torah portion.
When you go out to battle against your enemies, and YHVH your Elohim shall give them into your hands, and you shall take them captive, and shall see among the captives a woman of a beautiful figure, and shall desire her and take her for your wife, … (Deu 21:10-11)
In his address to the nation, Mosheh said, “When (also if) you will go out to war”. According to the plain meaning of the text, Mosheh advised the new generation that was about to conquer and occupy the land that they should preempt the enemy beyond their borders to avoid the destruction of their own land. This is known in today’s warfare as “preemptive strike”. The verse here is therefore referring to an optional war, because in reference to the mandated war, it would be inappropriate to say “and you shall take them captives”. However, being aware of the nature of war and the nature of man, he regulated the way soldiers can take captives, if he so desires. What purpose would be served in the Torah telling us that “you shall desire her and take her for your wife”? We will explain.
Very often in battle and among the captives, soldiers lay eyes on beautiful foreign women whom they may desire responding to their inflamed passion in battle. Torah recognizes this fact of uncontrollable desire of men but strictly regulates it in order to prevent the further risk of harm done to the women. The lengthy procedure described below sets the way a soldier may have a woman among the captives but only through strict rules that lead to a marriage. He cannot just desire her, cohabit with her once, and then leave her debased, for that would lead to even a greater sin: the sin of rape.
Consequently, in these defensive wars, the law protects captive women from rape or enslavement. If an Israelite sees among the captives a beautiful woman and comes to love her, and wants to take her as his wife, there are three main requirements, which the law lays out before the soldier:
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- If he desires her and wants to marry her, thenhe may bring her home…
- …, thenhe shall let her shave her hair and trim her nails…
- … , and thenshe must be given time to mourn her parents for no less than a month to give her time to accustom herself to the new reality before he marries her.
And only when all tree requirements are fulfilled by the soldier, then she can become his wife and the marriage can be consummated. This law implies that he is not allowed to take her in his house before the war is concluded, since there may be an exchange of prisoners, as it is the custom of wars. He is forbidden to coerce her to marry him, for any coerced marriage is forbidden in the Torah; the marriage must be voluntary, and her free will be considered. It is also implied in the law that the soldier is not to take two women — one for himself and one for his son, or one for his father. Now, a prohibition is derived from this law, namely, against taking a wife for his son, or for his father, if he has not taken one for himself.
… then you shall bring her home to your house, and she shall shave her head and trim her nails, and put aside the clothes of her captivity, and shall dwell in your house, and mourn her father and her mother a month of days. And after that you shall go in to her and be her husband, and she shall be your wife. (Deu 21:12-13)
Since the passage states: “she shall shave her head and trim her nails, etc.” and “she shall be your wife”, an association between the two statements is thus established. The requirement to shave off the hair of her head and trim her nails, and to remove her traditional clothes is meant by the Torah to make the woman less attractive to the man, so that he may lose his desire for her and set her free. Whatever can be removed from the prisoner while she was still a gentile must be removed before she can become a member of the nation, for the fact that she is an idol worshiper. In addition, the Torah orders the man to provide the woman with a period of time of no less than thirty days to let her mourn her father and mother, if they were killed in the war. If they are still alive, he is to let her mourn her separation from them. The tears of grief are catharsis that help the woman cope with her loss and make peace with her new life in a new country, in which she is given the opportunity to become an equal member of the chosen nation. That time is set aside for her to come to terms with the loss she has experienced.
This period of thirty days enables her to make the emotional transition, to adjust to her new husband, who must have saved her life by taking her under his care. This is why the Torah describes that her new husband must bring her into his house. This is a “cooling off” period for the man, who has to wait thirty days, during which his passions for the woman may die down. If she desires to marry him and convert to his husband’s faith, she is at liberty to do so without any coercion. With this Torah shows that the Elohim of Israel is concerned about the honoring of parents, whether Israelites or gentiles. Once this is all done, and he still desires her as his wife, he is permitted to marry her, according to the Torah, and the marriage can be consummated. It is implied in this law that no cohabitation is allowed before marriage.
But what happens if, during the thirty-day mourning period or after the marriage, the man does not desire her any longer? Mosheh continues,
And it shall be, if you are not pleased with her, then you shall let her go at her desire, but you do not sell her at all for silver. Do not make merchandise of her, because you have humbled her. (Deu 21:14)
What Mosheh our teacher is saying here is that if the man does not desire her, he must release her, as a compensation for the humiliation she has suffered, and he does not sell her for money. He is not to treat her like merchandise since he has debased her and caused her to suffer humiliation.
Now, what happens if, during the thirty-day period, he sleeps with her without commitment to marriage, and she becomes no longer desirable for him? In such a case, he must release her unconditionally. If he does not want to marry her, she goes out as a free woman, for either he has forced her to marry him, or he has had sex with her against her will (which constitutes a rape).
If her captor has coerced her to marry him or convert under pressure, in such a case, the marriage (if it has taken place) is not valid, and she is a free woman. If the marriage has taken place, and she has converted to the faith of her husband, but later it becomes known in the court that she was coerced to marry him, or her husband finds that he does not desire her any longer, she is entitled to divorce as the natives are, and she goes free, but she remains an Israelite, and as such she cannot renounce her new faith.
In either case, the Torah shields the woman. If he has had a change of mind during the thirty days, she goes free, and she is no longer a captive; her status changes from a captive to a free woman. In this case, her status is “permanent resident” or “stranger” in the land. But if the Israelite man has married her and then he does not desire her any longer, she has the right of divorce, like any native woman in Israel, and she retains her elevated status from a captive to a citizen.
The betrothal
A question presents itself before us: When exactly does the captive woman become wife? The ambiguity is in verse 11, “you shall desire her and take her for your wife”, and in verse 13, “And after that (the thirty-day mourning period) you shall go in to her and be her husband, and she shall be your wife”. The phrase in verse 11 seems to suggest that the man sees the woman among the captives, desires her, and she becomes his wife. But this cannot be, for this would suggest that the woman is treated like an object. To clarify this, verse 13 states explicitly that the cohabitation only takes place after the marriage. Thus, what verse 11 says is that it briefly explains the whole procedure in a concise language. Alternatively, verse 11 describes betrothal: the man desires the woman and “takes her for his wife” versus “she shall be her wife” in verse 13. The former suggests betrothal, while the latter shows the fact that she has become his wife. In this case, after a month of living in his house, the marriage has taken place according to the laws of the Torah.
What is “betrothal”, according to the Torah? There is no specific word in English to describe the Hebrew concept of betrothal. This leaves us at a loss for what English word to use in our explanation of the verse. In the Hebrew culture, when a man and a woman want to create a family, they go through a “betrothal” in which they exchange vows of faithfulness, after which they considered husband and wife. The woman returns to her father’s house and stays there for a year, during which time the husband builds a house and prepares home for the new family. When a year has elapsed, the wife unites with her husband and the marriage is consummated. The only difference between before and after is that the marriage is not consummated. The modern-day “engagement” has nothing to do with the Hebrew betrothal. In the case of a captive woman, if she so desires to get married, Torah shortens the period of betrothal from one year to one month. Why? In order to protect the desired woman from abuse during her captivity. For this reason it is said, “you shall bring her home to your house”, where she will be under the protection of her husband. With the above in mind, we may now understand the statement in Deuteronomy 21:11, “you shall desire her and take her for your wife”.
Protecting the vulnerable
After the victory in an [optional] war, the Torah addresses matters, when the soldiers return home and life goes on. If the soldier has desired in addition to his wife to take another woman among the captive as a wife (polygamy is something Torah does not endorse but tolerated) and has fulfilled all the Torah requires concerning her, then Torah sees fit to establish and regulate the personal relationships with the wives and the children he may have from them.
In the following verses, the Torah speaks of a hated wife, which could be either his first wife or the wife he took from the captives. The implication is that taking another wife may lead to frictions in the family and struggle for dominance between the wives but also between their children for the firstborn right. The most prominent example is the family feud in Ya’akov’s household, namely, between Leah and Rachel, his wives, and between their sons. But this is also the case of any two wives a man has, not only the case of a captive woman. For this reason, here Torah sees fit to regulate even this aspect of the personal relationships in the family. What is the relevance of these examples here? The reason why we find this important to emphasize will be made clear further on. In the words of Mosheh,
When a man has two wives, one loved and the other unloved, and they have borne him children, both the loved and the unloved, and the firstborn son is of her who is unloved, then it shall be, on the day he makes his sons to inherit his possessions, he is not allowed to treat the son of the beloved wife as firstborn in the face of the son of the unloved, who is truly the firstborn. But he is to acknowledge the son of the unloved wife as the firstborn by giving him a double portion of all that he has, for he is the beginning of his strength, the right of the firstborn is his. (Deu 21:15-17)
Torah wants to impress upon the reader that the inheritance law in verses 15-17 is closely related to the laws we already studied. Hence, the main purpose of the inheritance law in Deuteronomy 21 is the humane treatment of a vulnerable wife in the marriage after captivity, as her children may be mistreated seeing that she was a captive of war. But another case may also be present in which the first wife loses her favorite status in the family after the arrival of the second wife, who could be younger and or more beautiful. By taking the loved woman, the husband would have two wives and they would fight within the household and hate one another. At any rate, Deuteronomy 21 does have both cases in mind, namely, the case of any two wives a man has, but relates specifically to the captive woman case only. The law requires a man with two wives to recognize the birthright of his firstborn son, even if he is the son of the less favored or even hated wife. The sons of unloved wife, regardless of the marriage status whether she was first or second wife, would have been especially vulnerable to being mistreated, and the law takes their case. In the case of Leah vs Rachel, what the patriarch Ya’akov did with Reuven and Yoseph, the firstborn sons respectively of his unloved wife and loved wife, seemingly violated the inheritance law here in Deuteronomy, but this is hardly the case, for the Torah in its entirety and in details had not yet existed in the time of the patriarchs.
At the end of this study, let us return to our main subject. The laws in the Torah portion Ki Teitsei teach that a husband must not mistreat his wives regardless of the status in the family and must not permit birthrights and relationships to be disrupted by rivalry and even animosities between his wives. It is stated in the Torah that the firstborn son, who was born to the unloved or hated wife is entitled to his rights. But it is also implied in the law, if it is otherwise. Either way, the Torah teaches that YHVH shows compassion to the neglected wife and gives her firstborn child what is due to him: the double portion of the firstborn.
One final thought for reasoning.
Reuven was the firstborn son of Ya’akov, the son of the unloved wife; Yoseph was the eleventh son, the son of the loved wife of Ya’akov. The timeline is like this: Reuven was conceived and born first, then Yoseph was conceived and born. It is a clear cut who the firstborn is. Why Yoseph took the double portion due to the firstborn is not germane in this study.
Another case. Fraternal twins (dizygotic) develop from two separate fertilized eggs, while identical twins (monozygotic) come from a single egg (fertilized by a single sperm) that splits into two. The first woman Chavah gave birth to (assumed) identical twins: Kayin and Havel. Kayin was the firstborn human but being identical twins they were conceived at the same time.
Rivka, Yitschak’s wife, gave birth to fraternal twins: Esav and Ya’akov. In the case of Esav and Ya’akov, it is unknown who was conceived first but by the virtue of coming out of the womb first, Torah considers Esav as the firstborn. It is a clear Biblical text.
Now, we want to present to the studious reader a different scenario.
In vitro fertilization (IVF) is a complex fertility treatment that involves fertilizing an egg outside the body and implanting the embryo into the woman’s uterus. It does concern itself with the timing of conception. The legal case presented before us is this: two IVF embryos were fertilized in different times. The embryo that is fertilized second is implanted in the woman’s uterus. The woman gives birth to a son. A year later, the embryo that is fertilized first is implanted, and the woman gives birth to a second son; the second fertilized embryo is implanted first, and the first fertilized embryo is implanted second. What is the legal status of the firstborn son of the woman, who was fertilized second, if Torah is invoked? In other words, our legal case boils down to the question: Which event takes precedent: the order of conception, when life begins, or the order of birth? Torah accepts the theoretical possibility of such a case but takes no position on it. Such matters are not mentioned in Scripture, and we will leave them unexplained.
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