More on the Bible and rape. A reply to Matthew Flannagan.

In an earlier post, I replied to Copan’s argument in defense on some biblical passages. But now I’d like to address some of the passages in question in more detail, as well as other passages involving related manners. In particular, I will reply to Matthew Flannagan’s interpretation of them [1] – though my points will not be limited to a reply to his arguments.

I will quote from the World English Bible, but I will also consider some arguments involving the original Hebrew text.

Deuteronomy 22 says:

22. If a man is found lying with a woman married to a husband, then they shall both die, the man who lay with the woman and the woman. So you shall remove the evil from Israel. 23 If there is a young lady who is a virgin pledged to be married to a husband, and a man finds her in the city, and lies with her, 24 then you shall bring them both out to the gate of that city, and you shall stone them to death with stones; the lady, because she didn’t cry, being in the city; and the man, because he has humbled his neighbor’s wife. So you shall remove the evil from among you. 25 But if the man finds the lady who is pledged to be married in the field, and the man forces her and lies with her, then only the man who lay with her shall die; 26 but to the lady you shall do nothing. There is in the lady no sin worthy of death; for as when a man rises against his neighbor and kills him, even so is this matter; 27 for he found her in the field, the pledged to be married lady cried, and there was no one to save her. 28 If a man finds a lady who is a virgin, who is not pledged to be married, grabs her and lies with her, and they are found, 29 then the man who lay with her shall give to the lady’s father fifty shekels‡ of silver. She shall be his wife, because he has humbled her. He may not put her away all his days.

Matthew Flannagan’s argument is about Deuteronomy 22:28-29, and considers also the context of the verse, in particular the previous passages. He claims that Deuteronomy 22:28-29 is not about cases of rape, but about cases of seduction.

He gives the following main reasons for his assessment (in my words; you can read his own argument here).

1. The word used in the original (in Hebrew) is “tabas”, which does not indicate the use of force. While in some cases that word is used when there is force, in some cases, it’s used when there is no force. But in previous verses in the same context, when the case is clearly one of rape (i. e., in the case of the woman raped in the field), the word “chazak” is used.

2. Deuteronomy 22:28-29 repeats a law in Exodus 22:15 (probably a typo; it’s Exodus 22:16), as Deuteronomy repeats many of the commands in Exodus. In the Exodus case, it’s clear that it’s not about cases of rape: the word used in Exodus means “seduces”.

3. If the Bible commanded that the victim of rape marry her rapist, that would be a cruel command that would clash with strong moral intuitions. In absence of specific reasons, the interpretation of divine commands that is more in line with moral intuitions should be preferred.

I will reply to all 3 points, and make my own case supporting the assessments that:

a. It’s probable that the passage in Deuteronomy 22:28-29 was neither only about cases of rape nor about cases of consensual sex only, but included both. Else, it probably included only cases of rape. [2]

b. The commands surrounding it - like many others in the Bible on related matters – are cruel and morally heinous.

Let’s consider point 1. first.

Before we entertain other reasons, it seems that if the lawmaker had intended to talk about rape exclusively, it looks more likely that he would have used the word “chazak”. That word was used in immediately previous verses and in the same context (see the biblical passage quoted above), and would have been the command clearly about cases of rape.

On the other hand, if the lawmaker had intended to refer to cases of consensual sex either – just repeating the command in Exodus -, then it seems more likely he would have used a word that makes clear that it’s not about cases in which there is used of force – i. e., not about rape, in this context -, as the lawmaker of Exodus did.

The fact that the lawmaker used a different word – one that can be used both for cases of force and for cases in which there is no use of force – supports the hypothesis that the lawmaker gave a command applicable to both cases.

Let’s now go deeper, and consider the context. The previous passages consider a case of rape (Deuteronomy 22:25-27), but the evidence shows conclusively that the rapist is not at all punished for rape, for the following reasons:

In Deuteronomy 22:23-24, the lawmaker clearly believes that there is no rape, but consensual sex between a man and a woman pledged to be married to another man.

Now, her not crying is by not mean conclusive evidence that she was not raped. It may well be that – say – he put a knife to her throat and she was too afraid to cry – and with good reason -, so she did not cry. I guess it might be argued that other words clearly indicate consent, but in any event, the lawmaker assumes she had consensual sex with him, and the punishment for both of them is death by stoning. That is clearly not a punishment for rape, since she did not rape anyone, and the lawmaker believes he did not, either. It’s clearly a punishment for some sort of behavior going against the will of the father or the other man, or both, or their agreement, etc. (whatever the behavior the lawmaker thought was worthy of death by stoning), but not at all for rape.
Now, in the verses that follow those immediately (Deuteronomy 22:25-27), the lawmaker imposes exactly the same punishment to a rapist who rapes a woman pledged to be married to another man.

If the lawmaker had intended to punish a man for raping a woman, then it would make no sense to include the condition that she be pledged to another man. But the condition is there. And the punishment is, as I pointed out above, exactly the same as the punishment in the consensual sex case.

This is very strong evidence that the punishment in Deuteronomy 22:25-27 is not for rape, but as in the case above, for some sort of behavior going against the will of the father or the other man, or both, or their agreement, etc., but not for rape. Here, the behavior here that the lawmaker deems worthy of death by stoning is not rape, but whatever “offense” against the father/third party the lawmaker had in mind, and is the same punishment for the man regardless of whether the woman consents. As for the woman, she only incurs punishment if she also consents.

At this point, it might be suggested that death by stoning is imposed to the rapist both for the rape and for the action against the father, and that’s why the condition that she be pledged to another man is included in Deuteronomy 22:23-24. However, if that were the case and the lawmaker intended to impose death by stoning for rape, then he would have added another verse imposing death by stoning for the rape of a woman not pledged to another man. But this is not the case.

Alternatively, it might be suggested also that the lawmaker thought that raping a woman pledged to another man was worthy of death by stoning because of the rape – and regardless of the pledge -, but he thought the rape of a woman not pledged to another man was worthy of a lesser punishment. But that does not seem probable: if the pledge is not the key difference, why would the rape itself be worthy of death by stoning if she’s pledged to another man, but not if she isn’t? And where is the punishment for the rape of women not pledged to other men?

An alternative interpretation is that maybe the punishment for the rape of women not pledged to other men is precisely Deuteronomy 22:28-29. On this alternative, the Deuteronomy lawmaker did want to punish rape, but he thought that for rape, a smaller punishment was merited than for the other “offenses”. So, the punishment of death by stoning in Deuteronomy 22:25-27 is for some offense against the father and/or the other man as explained above, which would be in the lawmaker’s twisted mind far worse than rape, and there was not much point in adding some extra punishment for rape in Deuteronomy 22:25-27. This alternative hypothesis holds that the lawmaker in Deuteronomy left the case of consensual sex to Exodus 22:16, and wanted to consider only the case of rape in Deuteronomy 22:28-29. For that reason too, the lawmaker introduced a new condition, namely that “He may not put her away all his days.”. That is condition not present in Exodus, and the Deuteronomy lawmaker thought it would be in her interest – as part of his vast confusion about morality and human psychology.

While I don’t think we can rule out that alternative interpretation – or something like it - beyond a reasonable doubt, in context it seems more probable that Deuteronomy 22:28-29 included both cases of rape and cases of consensual sex, mainly for two reasons:

i. There would seem to be no reason for the lawmaker to use a word that is not limited to cases in which force is used if he meant to include only cases in which it is, especially given that in the preceding verses, he used a word that clearly indicated the use of force.

ii. In general, and considering other verses as well, the Deuteronomy lawmaker seems uninterested in punishing rape; in fact, in some cases, it allows it or even commands it (I’ll say more on this later).

So, it seems probable – in their cultural framework, strongly oppressive against women – that the monetary punishment in Deuteronomy 22:28-29 is a punishment for reducing her value as a potential bride, given that her hymen would very probably be broken. As for the command to marry her, it was probably a twisted way of thinking of her protection, without asking for her consent – by the way, even if the sex was consensual, she may well not consent to further sex or to marriage, but she was given no such choice. So, one way or another, she could be end up being forced to marry her rapist.

I will now address point 2.

It’s true that the book of Deuteronomy sometimes repeats some legal dispositions included in Exodus, but also, it adds new legal dispositions. In particular, the command in Deuteronomy 22:28-29 uses different language from the command in Exodus 22:16, and no longer uses a word that is exclusively about consensual cases.

Moreover, Deuteronomy 22:28-29 is clearly written in the context of the immediately previous verses - namely Deuteronomy 22:23-24 and 25-27 -, and should be interpreted in that context. And in that context, the hypothesis that Deuteronomy 22:28-29 was only about cases of consensual sex wouldn’t seen to make any sense:

In fact, if the lawmaker of Deuteronomy was willing to punish a man for reducing a virgin’s “value” by having consensual sex with her, why would he let the rapist who equally reduces her “value” get away with it unpunished?

It might be suggested that the reason for the monetary punishment in Deuteronomy 22:28-29 is not that her “value” was reduced, but – say – it was a punishment for “seducing” women not pledged to other men. Did the Deuteronomy lawmaker thought that seduction of women not pledged to other men merited punishment, but rape didn’t merit any? He was overall a very, very confused person, so I guess one might suspect so at first. But if so, why the money for the father? The punishment seems to be about her “value” as a virgin – at least, the part of the punishment consisting on the money for the father. But it would seem to make no sense not to also impose a punishment on the rapist who diminishes her “value” in a similar fashion.

Granted, Exodus also does not consider the case of rape, so it might be suggested the lawmaker in Deuteronomy also didn’t think of that possibility in Deuteronomy 22:28-29, either. But in this context, the lawmaker clearly has in mind the possibility of rape – considering the immediately previous verses -, so it’s improbable that he simply forgot about that possibility and decided to consider only cases of consensual sex, while at the same time changing the word with respect to Exodus, and picking a new word that could apply both to consensual cases and to rape, instead of using a word that would apply only to consensual cases as in Exodus. It seems far more probable that the change in the wording with respect to Exodus was precisely meant to include both cases of rape and cases of consensual sex.

Regarding point 3., my reply is that:

i. We actually do have specific reasons – which I have explained above -, on the basis of which we should reckon that it’s very probable that Deuteronomy 22:28-29 included cases of rape – and probably not exclusively cases of rape -, even if the proposed general principle of interpretation were true.

We may not have established beyond any reasonable doubt that it covered cases of rape, but we’ve established it’s very likely.

ii. The proposed principle is not true: the lawmakers of Deuteronomy and generally the Old Testament were very, very confused about many aspects of morality, and as a result, Old Testament Law is overall profoundly unjust - I have argued for that in more detail in my Moral Case against Christianity, and I will provide some examples below -. There is no good reason to consider, all other things equal, that an interpretation that renders a biblical command just – or even less unjust – is particularly more probable than a heinous one.

Instead, what we should consider is how an interpretation of a particular command coheres with its context – of course -, and also with other commands regarding similar matters, which may give us a clue as to what sort of framework the lawmaker/s was/were working with. Now, sometimes, all of that is not enough to settle the matter conclusively, but only to make assessments about which interpretations are more or less probable, in which case, we should acknowledge so.

In the particular case under consideration, a relevant factor – though we have very strong and more direct evidence already - is what the lawmaker of Deuteronomy – and, to a much lesser extent, the rest of the Old Testament since they may have influenced Deuteronomy – thought about women’s freedom to choose their sexual partners, rape, etc., and how he/they treated them.

As we shall see below, said lawmaker/s was/were particularly immoral when it came to dealing with such matters, regularly violating a woman’s freedom of choice, and either permitting – and implying moral permissibility – of rape in several cases, or even mandating sex regardless of a woman’s choice – which would be a command to rape her, when she fails to consent.

I will address the context and how biblical law – in particular, Deuteronomy – deals with women’s sexuality and sexual freedom below, but before I get to that, I’d like to point out that other commands in the immediate context of Deuteronomy 22:28-29 were also deeply unjust – heinous – even if one grants the very improbable interpretation that Deuteronomy 22:28-29 is only about cases of consensual sex. Part of the injustice is that in 22:25-27 a rapist is stoned to death for some sort of “offense” against the victim’s father – for which he surely doesn’t deserve death -, and is not punished for the rape at all – for which he deserves punishment, though probably not death by stoning.

However, the dispositions in Deuteronomy 22:24-27 are even much worse, since the victims of the injustice are not deserving of any significant punishment at all – or even not any punishment. The situation is as follows:

A man and a woman have consensual sex. She was pledged to another man. Deuteronomy 22:24-27 commands that they both be stoned to death. It should be apparent that that’s extremely unjust on its own, even assuming that she was required to consent to the pledge. There seems to be no good reason to think there was such requirement in the Bible, though. On the contrary, the biblical evidence mostly supports otherwise. Still, let’s assume for now that she was required to consent to the pledge. The fact remains that the commands in Deuteronomy 22:22 and Deuteronomy 22:23-24 are also in conflict with very strong moral intuitions. There is no good reason to put our sense of right and wrong aside and accept that such behavior is acceptable, let alone obligatory.

At this point, someone might say that given that God commanded it, it was obligatory. I would say that for that matter, if that reply were successful, it would also work in the case of Deuteronomy 22:28-29, when a woman is forced to marry her rapist. But of course, it’s not at all a successful reply.

Let’s consider a present-day analogy: a man is told that they should stone people to death - or hang, or otherwise execute - for behaviors such as adultery, apostasy, blasphemy, and so on. They are also told that an omnimax (i. e., omnipotent, omniscient, morally perfect) creator commanded so. It’s apparent that their behavior is morally appalling if they follow the commands willingly – leaving aside threats to their lives or their families, which would make the moral assessment of their behavior more complicated -, and that they ought not to believe that the commands were given by an omnimax creator. But the same applies to the people who lived in ancient Israel, and who were told that the commands in Deuteronomy were from an omnimax creator, or at least from an extremely powerful and good creator. They should not have believed that an extremely good and powerful creator had issued such commands. But what if Yahweh, the biblical creator, actually made a display of power? Should they not have believed that an omnimax creator gave the commands?

It’s obvious to me that that never happened – since Yahweh does not exist -, but assuming that those displays of power did happen, the answer remains no – of course not.

One point that one can make here is that if Yahweh made displays of power, the vast majority of the people who received the biblical commands did not see such displays – they were just told about them, as are people who presently engage in similarly atrocious behavior are told about putative displays of power. Even granting that Yahweh’s displays of power were real and those present-day people are told about were not, in both cases the people following the commands were just told about them.

However, there is a stronger and much more direct reply: even the people who saw those amazing displays of power should not have believed that the agent giving such atrocious commands was an omnimax creator. They should have believed of course that he (or maybe rather “it”?) was a very powerful agent, but they should not have believe that he was morally good, let alone morally perfect, or that his abhorrent commands were just.

Another objection might be that allegedly Israel would have been destroyed without those punishments, because keeping the bloodlines clear was very important to them. But for that matter, keeping the bloodlines clear is also very important in present-day social groups that have atrocious laws in those regards. If the laws were repelled, those groups would perhaps change significantly, but for the better, since those very immoral punishments would no longer be the law. The same applies to ancient Israel (besides, assuming a woman’s consent was required, there is no good reason to think a high percentage of women would be cheating on their fiancés; still, it should be clear that even that would not remotely justify the punishments).

Leaving aside the injustice in Deuteronomy 22:22-24, let’s go back now to the question of consent, how Deuteronomy – and biblical law in general – often treats a woman’s sexual freedom.

First, in general cases of marriage, the Bible does not say that a woman’s consent was required. Now, the Bible does not deny that it was, either, so it’s silent. But the following biblical examples support the conclusion that it wasn’t required:

Joshua 15:

15:13 To Caleb the son of Jephunneh he gave a portion among the children of Judah, according to the commandment of Yahweh to Joshua, even Kiriath Arba, which Arba was the father of Anak (the same is Hebron). 15:14 Caleb drove out there the three sons of Anak: Sheshai, and Ahiman, and Talmai, the children of Anak. 15:15 He went up there against the inhabitants of Debir: now the name of Debir before was Kiriath Sepher. 15:16 Caleb said, He who strikes Kiriath Sepher, and takes it, to him will I give Achsah my daughter as wife. 15:17 Othniel the son of Kenaz, the brother of Caleb, took it: and he gave him Achsah his daughter as wife.

Judges 1:

1:11 From there he went against the inhabitants of Debir. (Now the name of Debir before was Kiriath Sepher.) 1:12 Caleb said, He who strikes Kiriath Sepher, and takes it, to him will I give Achsah my daughter as wife. 1:13 Othniel the son of Kenaz, Caleb's younger brother, took it: and he gave him Achsah his daughter as wife.

Here, Caleb openly promises to give his daughter Achsah as wife to whoever strikes and takes Kiriath Sepher. There is no suggestion in the Bible that the promise was illegal, or that it was conditioned to Achsah’s agreement, or that Achsah had previously agreed. No one seems to have asked for clarification, either. The passage simply does not highlight that behavior as abnormal in any way. And when Othniel took Kiriath Sepher, Caleb gave him Achsah as wife – as Caleb had promised -, again without any suggestion of an illegal act, or that she had a say on the matter. Again, this is not to say that, in this particular case, that she was forced. Maybe she was not. But rather, that there was no legal requirement that she consented.

1 Samuel 17

17:22 David left his baggage in the hand of the keeper of the baggage, and ran to the army, and came and greeted his brothers. 17:23 As he talked with them, behold, there came up the champion, the Philistine of Gath, Goliath by name, out of the ranks of the Philistines, and spoke according to the same words: and David heard them. 17:24 All the men of Israel, when they saw the man, fled from him, and were sore afraid. 17:25 The men of Israel said, Have you seen this man who is come up? surely to defy Israel is he come up: and it shall be, that the man who kills him, the king will enrich him with great riches, and will give him his daughter, and make his father's house free in Israel.

Here, too, it seems that the king would give his daughter to whoever could defeat Goliath. It could be anyone. There is no suggestion of a condition that she had to consent.

2 Kings 14

14:5 It happened, as soon as the kingdom was established in his hand, that he killed his servants who had slain the king his father: 14:6 but the children of the murderers he didn't put to death; according to that which is written in the book of the law of Moses, as Yahweh commanded, saying, The fathers shall not be put to death for the children, nor the children be put to death for the fathers; but every man shall die for his own sin. 14:7 He killed of Edom in the Valley of Salt ten thousand, and took Sela by war, and called its name Joktheel, to this day. 14:8 Then Amaziah sent messengers to Jehoash, the son of Jehoahaz son of Jehu, king of Israel, saying, Come, let us look one another in the face. 14:9 Jehoash the king of Israel sent to Amaziah king of Judah, saying, The thistle that was in Lebanon sent to the cedar that was in Lebanon, saying, Give your daughter to my son as wife: and there passed by a wild animal that was in Lebanon, and trod down the thistle. 14:10 You have indeed struck Edom, and your heart has lifted you up: glory of it, and abide at home; for why should you meddle to your hurt, that you should fall, even you, and Judah with you? 14:11 But Amaziah would not hear.

So, Jehoash – the king of Israel – told Amaziah – the king of Judah – to give his daughter to Jehoash’s son as wife. While Amaziah did not accept, that seemed like a negotiation between two kings, with no suggestion that Amaziah’s daughter’s consent was legally required.

Given the passages above, the biblical evidence supports the conclusion that there was no requirement that a woman agree to be pledged. It’s not evidence beyond a reasonable doubt, but it’s enough to make it probable that consent was not required by those laws (other laws may have required consent, in some periods).

As I mentioned before, I’m not suggesting no fathers considered their daughters’ choices – either in the real ancient Israel or in the ancient Israel of the biblical story, but I’m assuming for the sake of the argument that the stories did happen. But the point is that the daughter’s consent was apparently not legally required in these stories. So, in particular, it seems a woman who was pledged to a man she did not want to get married to and had sex with someone else could be legally stoned to death for that (though as I pointed out before, the injustice of the punishment is huge even in the cases in which she consented).

But even if we leave those cases aside for whatever reason, there are others in which the injustices committed by the biblical lawmakers can be seen more clearly. I will comment on some of them:

Deuteronomy 25.

5 If brothers dwell together, and one of them dies and has no son, the wife of the dead shall not be married outside to a stranger. Her husband’s brother shall go in to her, and take her as his wife, and perform the duty of a husband’s brother to her. 6 It shall be that the firstborn whom she bears shall succeed in the name of his brother who is dead, that his name not be blotted out of Israel.

7 If the man doesn’t want to take his brother’s wife, then his brother’s wife shall go up to the gate to the elders, and say, “My husband’s brother refuses to raise up to his brother a name in Israel. He will not perform the duty of a husband’s brother to me.” 8 Then the elders of his city shall call him, and speak to him. If he stands and says, “I don’t want to take her,” 9 then his brother’s wife shall come to him in the presence of the elders, and loose his sandal from off his foot, and spit in his face. She shall answer and say, “So shall it be done to the man who does not build up his brother’s house.” 10 His name shall be called in Israel, “The house of him who had his sandal removed.”

In this case, sexual penetration is commanded, regardless of the choices of either the woman or the man. That would in particular include cases of rape, where she does not consent. And the rape would be not only legal, but legally obligatory. As for the man, he can refuse to have sex, though he would have to pay a price in terms of reputation it seems – and she’s mandated to demand that he “perform the duty of a husband’s brother” to her, which may well be an obligation to demand her own rape. What if she didn’t want him to perform the “duty”? The biblical lawmaker simply does not care. At all. He gives the command anyway.

Here’s another heinous case, also in Deuteronomy:

Deuteronomy 25:

10 When you go out to battle against your enemies, and Yahweh your God delivers them into your hands and you carry them away captive, 11 and see among the captives a beautiful woman, and you are attracted to her, and desire to take her as your wife, 12 then you shall bring her home to your house. She shall shave her head and trim her nails. 13 She shall take off the clothing of her captivity, and shall remain in your house, and bewail her father and her mother a full month. After that you shall go in to her and be her husband, and she shall be your wife. 14 It shall be, if you have no delight in her, then you shall let her go where she desires; but you shall not sell her at all for money. You shall not deal with her as a slave, because you have humbled her.

This passage does not command rape. However, it clearly allows rape. An ancient Israelite soldier is allowed to kidnap a woman, and after give her a month to mourn her parents – killed in the Israelite attack, which of course targeted civilians as well as combatants -, he is legally free to rape her. In context, the lawmaker implies – falsely and without justification, of course – that the soldier’s behavior – which would be grossly immoral – would be morally acceptable.

The following is from Numbers – so, this is another biblical lawmaker.

Exodus 21:

7 “If a man sells his daughter to be a female servant, she shall not go out as the male servants do. 8 If she doesn’t please her master, who has married her to himself, then he shall let her be redeemed. He shall have no right to sell her to a foreign people, since he has dealt deceitfully with her. 9 If he marries her to his son, he shall deal with her as a daughter. 10 If he takes another wife to himself, he shall not diminish her food, her clothing, and her marital rights. 11 If he doesn’t do these three things for her, she may go free without paying any money.

In this particular case, it’s apparent that her consent isn’t needed: a man is allowed to sell his daughter – that’s his prerogative, not her choice. Then, her master marries her to himself, or to his son. Again, that’s the master’s choice. There is no indication whatsoever that her choice was required. Now, these passages are concerned with providing a minimum amount of protection for her. But that’s from the perspective of a very, very twisted sense of morality, which fails to recognize how abhorrent the situation is and the laws are, where she can be raped legally by a man who made a deal with her father.

[1] I recently replied also on his blog. His original post is from 2009, but he posted a comment to the thread in April, 2017, so the discussion over there seems to be still active at the time I’m writing this.

[2] In an earlier version of this post, I gave less credence to the hypothesis that Deuteronomy 22:28-29 was only about rape. After further consideration, I introduced some modifications to consider a variant that raises the probability that it was only about rape – though I still consider it less probable than the alternative that it includes both cases of rape and cases of consensual sex.