Does Torah Mandate a Raped Girl to Marry Her Rapist?
Is it true that the Torah requires a raped girl to marry her rapist, and the only punishment to the rapist is a monetary fine?
In our modern society, the mere suggestion that a raped girl marry her rapist is inconceivable and repulsive to say at least. The emotional and physical pain and fear the girl has suffered at the time of the rape, however, have long term metal effects that may last for life.
The emotional and physical pain and fear the girl has suffered at the time of the rape have long term mental effects that may last for life.
In the past, women depended entirely on their fathers or husbands for protection and support. A rapist thus perpetrates a double crime against his victim: he has violated her dignity and compromised her future with the stigma of rape upon her.
But Torah is seemingly more concerned with the financial lost and not with the psychological aspect of the perpetration. As we will see below, the punishment of the rapist consists of paying the father fifty shekels of silver and marrying the defiled virgin with no option for divorce. Nowhere does the Torah concern itself about the invasion of her intimacy and privacy. Or does it?
It is the object of this work to seek the answers to this question.
Sexual immoralities according to the Torah
YHVH prohibits sexual immoralities such as incest, adultery, fornication, rape, homosexual relations, and bestiality, explicitly forbidden in His Torah.
Adultery and fornication are against the sacredness of marriage as the Creator’s given appointment for the propagation of the human race. And although it is addressed primarily to the man, it applies equally to the woman as to the man.
The family is the building block of human society, whereas the Torah is the foundation of it. The proper sexuality in the framework of the Torah is the source of life, and nothing is more intimate than the sexual act between a husband and a wife. When misused or even abused, nothing can be more degrading and destructive to the human soul, family, and society as a whole. Hence, when the family is broken by degrading a person in the abomination of sexual immorality, the society will break too, sooner or later. And we are witnessing it today.
Since this is an article, and not a thesis or essay, we have listed a few examples of the sexual offences and how Torah deals with them.
Rape as a sexual abomination
The moral laws in the Torah against the sexual immorality begin in Lev 18:2-5 with the prohibition of sexual abominations and with a straightforward warning to Israel not to walk in the laws of the Egyptians and Kana’anites, but to walk in the laws of YHVH by which they should live. These laws conclude in Deuteronomy and touch such a “minute” detail as to forbid cross dressing and behavior.
Hebrew does not have a word for “rape”, but the Scripture indeed indicates that women were sexually assaulted. Instead, the Hebrew language allows an alternative translation, which may make more sense when delicacy is sought. This is clear from the laws in Deuteronomy concerning the cases of adultery, fornication, wherein the term used in these cases is “to lay with a woman”, and of rape: “to grab hold of” and “lie with her”.
With that being said, we are asking the reader to consider what we intend to say, as we will explain the matter of rape in the following vein. For the purpose of this study, we will focus on four cases of sexual offense in Deuteronomy.
The rape of virgin Dinah
After Ya’akov had lived in the land of Charan twenty years, he settled in the city of Shechem, where he had bought a piece of land. Dinah, his daughter, went out one day to see the daughters of the land. When Shechem the prince saw her, he kidnapped her and raped her in the city. In all probability Dinah was 14 when she was abducted by Shechem (see Gen 30:20-21). We read thus about the rape of Dinah,
And Shechem the son of Chamor the Chivite, the prince of the land, saw her; and he took her, and lay with her and defiled her. (Gen 34:2)
The Torah says, “and lay with her, and defiled her”. This phrase is commonly understood to mean “and he seduced her and had sex with her”. It is thus implied, specifically in the Rabbinic commentaries, that there was some kind of love affair, or consensual sex between Shechem and Dinah, i.e., fornication.
According to the medieval Tanak commentator Rashi (Shlomo Yitzchaki, 1040– 105), the Hebrew word behind “lay with her” וַיִּשְׁכַּב (from שָׁכַב shakav) describes normal intercourse — naturally (vaginally), while the word behind “defiled her” וַיְעַנֶּהָ (from עָנָה anah) describes a more perverted method of sexual intercourse — unnaturally (anally). Ibn Ezra understands the word “defiled her” as describing the pain involved in her having intercourse as she had been a virgin. Hence, the word עָנָה anah denotes something hurtful to the woman.
However, Nachmanides writes that any intercourse in which the woman was raped is described in the Bible as rape, i.e., that is the meaning of the word וַיְעַנֶּהָ “defiled her”.
Although biblical Hebrew has no exact word for “rape”, it delicately does use a term which means “to grab hold of” coupled with a verb of sex שָׁכַב shakav. In support of this reasoning, we find the same words in 2Sa 13:14 concerning the rape of the virgin Tamar by her half-brother Amnon, both children of King David. In this case, another Hebrew word is used in the context of rape: חָזַק chazak, which means “to fasten upon”; hence to seize, be strong. Later in this study we will come back to these words to support our stance on the case of rape, but for now we will return to the subject of our study.
The case of adultery
If a man is found lying with a woman married to a husband, then both of them shall die, both the man that lay with the woman, and the woman. Thus, you shall purge the evil from Israel. (Deu 22:22)
This is the case in which a man is found fornicating with a married woman. If they were both witnessed in the act, both of them must be tried by the court and put to death, the man as well as the woman, for they have fornicated.
But according to the Sages, the capital punishment must be done so only if they engaged in actual coitus, for only in this way are both parties equally guilty of the fornication. The court must have them executed and thus this evil will be eliminated from Israel.
The case of adultery with engaged woman
If a virgin girl who is engaged to a husband, and a man finds her in the city and lies with her, then you shall bring them both out to the gate of that city, and shall stone them to death with stones, the girl because she did not cry out in the city, and the man because he has humbled his neighbor’s wife. Thus, you shall purge the evil from your midst. (Deu 22:23-24)
The law also holds the case of a virgin girl who is engaged to a husband and lies with another man, which case too is to be regarded as consenting to the deed. This case is a variant of the previous case, since does not distinguish between married woman and engaged woman, and therefore the treatment is the same.
In such a case, both the man and the woman are to be taken to the gate (the court is meant) of that city, and if it can be proven that they were witnessed, and the court convicts them, they must be put to death by stoning: she, because she did not cry out for help, for since the crime occurred in the city, she would have been heard had she cried out, and therefore it must be interpreted that she had consented to the fornication, and the man, because he humbled his neighbor’s wife. Thus, this evil will be eliminated from Israel.
The case of rape of engaged girl
But if a man finds the engaged girl in the field, and the man takes hold of her and lies with her, then only the man who lay with her shall die. (Deu 22:25)
This is a case in which a man finds an engaged girl in the field, and the man overpowers (forces, prevails upon) her and fornicates with her. Then, if it can be proven in court that the crime was witnessed, and the court convicts him, the man who raped her must be put to death (for this is a sin deserving of death). In this case, no punitive action must be taken against the girl. The girl presumably did not commit adultery for he found her in the field, she cried but there was none to save her (Deu 22:26-27).
Verse 26 gives the justification for the judgment: “for just as a man rises up against his fellow and murders him, so is this case”. Rashi explains that according to the simple meaning, she was coerced, and the man overpowered her, just like the case of someone who overpowers another person to kill him. The case of the murderer in the verse is cited therefore in order to teach us something about the case of the betrothed girl who was raped, namely, that just as the murdered person was overpowered, so was this girl overpowered and coerced to sex.
With further examination, we learn something new from the case of raped girl, which can be applied to the case of the murderer, and that is: just as in the case of murderer who has overpowered someone with the intent to kill him, it is permitted to kill the assailant to save the life of the victim, so is it in the case of raped girl: the girl can be saved by killing her assailant.
In other words, the cases of murder and rape teach something new by the means of sharing similarities. We derive both cases that it is permissible to prevent future crimes by the means of capital punishment. With this we are coming to the law in question in our opening.
The case of rape of unengaged virgin
If a man finds a damsel that is a virgin, that is not betrothed, and lay hold on her, and lie with her, and they be found; then the man that lay with her shall give unto the damsel’s father fifty shekels of silver, and she shall be his wife, because he hath humbled her; he may not put her away all his days. (Deu 22:28-29 JPS)
Some details of the language employed here suggest that the terminology carries an emotional charge. What should give us pause is that this law seemingly legislates injustice for the victim.
According to the Rabbinic interpretation, which is not well established however, this is a case of rape. Having (forcefully) taken the young girl’s virginity, the rapist effectively leaves her without a future and puts her father in a complicated position if he could not find (with all probability) a good party for an eventual marriage. In such a case, the girl remains at risk of future poverty or destitute, as it would now be exceedingly difficult for her to marry.
To compensate her rapist, who derided and humiliated the girl, must give fifty shekels of silver to her father. And if she and her father agree on the terms of the settlement, he must marry her: she must become his wife because he raped her, because she could not marry other man. The law also requires that he may not divorce her without cause as long as he lives.
According to Kiddushin 41a, the girl only marries her rapist if she wishes so. In other words, the decision is up to her and not (only) to her father. The marriage is now up to her, as a solution to her suffering and humiliation. Understanding the possible, the laws solve these problems: the father receives the expected payment, and the girl receives her husband with a guarantee of lifetime support.
Thus, Rabbinic interpretation of this law further argues that the rapist is required to financially secure the victim for the humiliation she suffered, the pain she endured, and the financial loss she incurred: a stiff price for the rapist. In addition, the rapist is required to marry his victim, and is not permitted to divorce her (without her consent) all his life. She is under no obligation to marry him. Thus, the Talmud explains that the obligation to the marriage rests on the rapist, not the victim.
This whole interpretation, however, is problematic. A closer examination of the text, however, shows that the Torah is not merely being repetitive of the case of rape of engaged girl, but that “lay hold on her, and lie with her” refers to the case of fornication by the means of seduction, not to rape.
Questioning the Rabbinic interpretation
Below we will dare to question the Rabbis and specifically their translation and interpretation of the last case. The simple logic and intuition will convince even the doubter that there is no justice for the raped girl, who is offered to marry her rapist. For this reason, we will try to show that the question of “rape” of virgin is far from being conclusive and hope to provide a simple answer below.
Seemingly, the Torah does not force any further obligations upon the man other than to pay the monetary punishment for the rape, marry his victim, and not divorce her all his life. Case closed. That is all? Fine and marriage?
It seems that the Torah does not concern itself with delivering justice as it was concern with the case of rape of an engaged girl in the field. Why is the difference? The rapist of an unengaged girl gets a better deal that the one who raped an engaged girl?
But what if the girl refuses to marry? And how would the stiff monetary fine and the obligation to marry her compensate the victim of rape her emotional suffering and public humiliation? Without finding for herself prospects for marriage, the young girl becomes very vulnerable in her grim future.
And is such a compensation possible at all? Can the open wound in the woman’s psyche and stigma of rape be erased in her memory? Can a woman in such a dire condition marry her rapist and raise her child of rape? It seems that this is a good deal for the rapist, but is this justice for the raped girl?
Can we rethink all this, because many questions remain unanswered? Because this seems unfair. All this is obvious, for it is illogical and counter intuitive, and it should not occur to us that the Torah establishes injustice.
With these questions asked, we are coming to the only possible question that remains in our trouble and perplexed consciousness: is this a rape case at all? Because if the Torah judges the crime of kidnapping and rape of engaged girl with capital punishment, why is it unfair to an unengaged girl?
Summary of the cases of sexual offenses
Case 1. Adultery.
Offense: Extramarital sex that willfully and maliciously interferes with marriage relations (Deu 22:22).
Penalty: Capital punishment for both, the man and the woman.
Case 2. Adultery with engaged virgin.
Offense: Extramarital sex that willfully and maliciously interferes with engagement (Deu 22:23-24).
Penalty: Capital punishment for both, the man and the woman.
Case 3. Rape of engaged girl.
Offense: Crime of forcing a person to submit to sexual intercourse against her will (Deu 22:25-27).
Penalty: Capital punishment for the man.
Case 3.1. Rape of married woman.
Offense: Crime of forcing a person to submit to sexual intercourse against her will. Treated as Case 3.
Penalty: Capital punishment for the man.
Case 3.2. Rape of unengaged woman.
Offense: Crime of forcing a person to submit to sexual intercourse against her will. Treated as Case 3.
Penalty: Capital punishment for the man.
The case of seduction of unmarried girl
This case in Deu 22:28-29 is similar to the one in Exo 22:16-17 of seduction of maiden who is not engaged, not rape; the penalty in both cases is very similar: the man must marry the girl and pay her father the bride-price. Thus far the similarities.
In Deuteronomy, Mosheh however included stricter penalty for the man, as it explains what to do when an unengaged virgin is seduced and the father agrees on the terms of marriage, while Exodus explains what to do if the relationship appears consensual and the father refuses the marriage.
The seduction of a young girl is regarded as an attack upon the family as a whole. Whoever seduces a girl to let him lie with her, is to obtain her for a wife by the payment of a dowry, and if her father refuses to give her to him, he is to pay a fine equivalent to the disgrace brought upon the girl, as maidens would receive for a dowry upon their marriage. For the purpose of comparison, the seduction of a girl who is betrothed, is punished much more strictly (see Case 2 above). Let us compare both laws,
And if a man seduces a maiden who is not engaged, and lies with her, he shall certainly pay the bride-price for her to be his wife. If her father absolutely refuses to give her to him, he pays according to the bride-price of maidens. (Exo 22:16-17)
If a man finds a girl who is a maiden, who is not engaged, and he seizes her and lies with her, and they are found out, then the man who lay with her shall give to the girl’s father fifty pieces of silver, and she is to be his wife because he has humbled her. He is not allowed to put her away all his days. (Deu 22:28-29)
The phrase in Exodus “If a man seduces” Rashi explains to mean “he speaks to her heart until she yields to him”. “And so is its Aramaic translation”, continues Rashi, “both signify persuasion”. Thus far Rashi.
The omission in Deuteronomy of the possibility of the father refusing to give him his daughter for a wife, makes no essential difference here. It is assumed as self-evident that the father has such a right. The law is not forced upon the daughter or the father to accept the arrangement it offers to both sides to solve the issue.
We should note here that the victim in both laws is a virgin young girl who is taken advantage of even though the sex in both laws seems to be consensual. Thus, the law of the Torah protects the immature and vulnerable victims of sex offense by the means of seduction pretty much like how the law today protects the victims of “sex with under-aged girl”. The perpetrator has not forced himself upon the under-aged girl but through seduction he has taken advantage of the naive young girl to have sex with her.
For this reason, Mosheh deemed the protection of a vulnerable young girl to be self-evident and with this intent in mind he set stricter rules for the seducer evident from the words he used in Deuteronomy. In other words, the young girl receives more protection by law.
In the extension of the law in Deuteronomy, the legislator added for clarity the word תָּפַשׂ taphas, which means to manipulate, that is, to seize, to capture, and the word which we already know (see above) עָנָה anah that describes a more offensive method of sexual intercourse, something hurtful to the woman.
As we argued in the article How Hebrew addresses delicate matters Part 1&2, a common Hebrew word, i.e., anah, “affliction”, and other can be used as homonyms which have different meanings to denote severe afflictions such as rapes. Because, in the case of seduction of a virgin by the means of deceptive words that lead to sexual act, even though the actual act is consensual, the young girl is in vulnerable position to be taken advantage of. Considering this and to justify stricter penalty for the perpetrator, Mosheh deemed necessary to use such words in the law.
If our line of reasoning is correct and this explanation is accepted, then, the case of seduction of unmarried virgin will look like this,
Case 4. Fornication with unmarried virgin.
Offense: Voluntary sexual intercourse between man and woman not married to each other. Seduction. (Deu 22:28-29).
Penalty: Mandatory marriage with the girl’s consent. The man pays monetary fine. No possibility of divorce for life.
Another thing to bear in mind is the deterrent aspect of this law: the fact that a man knew that if he seduces a woman or a virgin, he must not only pay a stiff price but also to marry her and support her for the rest of his life without the ability to ever divorce her, should be a strong deterrence against fornication and seduction.
Having now completed our exposition in detail, what we can learn from the laws in Deuteronomy that might be relevant to our social context today is the Torah protects the society as a whole, the family, and the vulnerable women in particular.
And by laying out these considerations, we hope the reader will become more skeptical of translations and interpretations that lead confusion.
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May we merit seeing the coming of our Mashiach speedily in our days!
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