A little while ago I wrote a post criticising Michael Martin’s contention that the Bible commands a rape victim to marry her rapist, Does the Bible Teach that a Rape Victim has to Marry her Rapist? To summarise briefly, Martin cited Deuteronomy 22:28-29 and interpreted it as,
Here the victim of rape is as treated the property of the father. Since the rapist has despoiled the father’s property he must pay a bridal fee. The woman apparently has no say in the matter and is forced to marry the person who raped her. 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.
In the post I noted that the word translated rape is tapas which simply means “to grab” or “hold;” the term itself is neutral as to whether this involves force. It can be used in a context where it is clear that force is involved but it also can be used in a context where no force is involved. All the text states then is that a virgin is grabbed by a man. I went on to argue that the context provided reasons for thinking that what was envisaged was actually a seduction.
In discussing this I noted that a few verses prior to this one the text does envisage a rape. In the immediately preceding passage in Deuteronomy 22:23-27, the word chazak is used instead of tapas in reference to a bethrothed woman who screamed for help when a man attempted to have sex with her; chazak suggests a violent seizure.
In regards to this text, Martin contends that “when rape is condemned in the Old Testament the woman’s rights and her psychological welfare are ignored.” Martin argues
In the case of the rape of a betrothed virgin in a city, the Bible says that both the rapist and victim should be stoned to death: the rapist because he violated his neighbor’s wife and the victim because she did not cry for help (Deut. 22: 23-25). Again the assumption is that the rapist despoiled the property of another man and so must pay with his life. Concern for the welfare of the victim does not seem to matter. Moreover, it is assumed that in all cases that a rape victim could cry for help and if she did, she would be heard and rescued. Both of these assumptions are very dubious and sensitive to the contextual aspects of rape.
On the other hand, according to the Bible, the situation is completely different if the rape occurs in “open country.” Here the rapist should be killed, not the victim. The reason given is that if a woman cried for help in open country, she would not be heard. Consequently, she could not be blamed for allowing the rape to occur. No mention is made about the psychological harm to victim. No condemnation is made of a rapist in open country, let alone in a city, who does not get caught.
There are several points packed in here. First Martin contends that these passages teach that rape is an offence against a man’s property and do not condemn it out of concern for the woman’s welfare. Second, Martin suggests that the text does not condemn rapists who do not get caught. Third and perhaps most significantly, Martin suggests that the passage makes “dubious” assumptions about rape; it assumes, for example, “that in all cases that a rape victim could cry for help and if she did, she would be heard and rescued.” [Emphasis added] Martin states that this is something that fails to be sensitive to contextual factors of rape.
This last point in particular is often emphasised by sceptics. To take a common example, suppose a rapist puts a knife to a woman’s throat and commands her not to scream. If this happens in the city she will not cry out and the passage, so the sceptics allege, will hold the woman unjustly responsible for her own rape.
I think each of these points are mistaken.
Turning to the first point, Martin contends that the passage teaches that rape is merely a property offence against the husband and is not concerned with the welfare of the woman. To asses the claim it is worth looking at the passage he refers to,
If a man happens to meet in a town a virgin pledged to be married and he sleeps with her,24 you shall take both of them to the gate of that town and stone them to death–the girl because she was in a town and did not scream for help, and the man because he violated another man’s wife. You must purge the evil from among you.25 But if out in the country a man happens to meet a girl pledged to be married and rapes her, only the man who has done this shall die.26 Do nothing to the girl; she has committed no sin deserving death. This case is like that of someone who attacks and murders his neighbour, for the man found the girl out in the country, and though the betrothed girl screamed, there was no one to rescue her. (Deuteronomy 22:24-27 NIV)
Two points need to be noted here. First, the text states that people who rape should be executed (I have argued that capital sanctions like this were not always intended to be taken literally in Capital Punishment in the Old Testament). Martin suggests that the fact that adultery is a capital crime means that this is merely a property offence. He states the “assumption is that the rapist despoiled the property of another man and so must pay with this life.” Actually the converse is true; Christopher Wright notes this point,
The fact that the legal penalty for the wife who commits adultery is execution weighs strongly against the idea that wives in OT Israel are legally no more than the property of their husbands. If adultery is merely an offence against another man’s “property” why destroy the property as well as punishing the guilty man? Furthermore, it would be quite exceptional, in as much as no other property offence in the OT is punishable by death.
The second point to note is that Martin’s contention seems to be explicitly contradicted by the text in v 26. In this passage it states that rape is, “This case is like that of someone who attacks and murders his neighbour.” The text compares rape to a violent assault, a murder, not theft.
Martin’s second point fares no better. Martin seems to argue that the text ignores the “woman’s rights and her psychological welfare” because “no condemnation is made of a rapist in open country, let alone in a city, who does not get caught.” It is hard, however, to see the force of this; all legal codes will only punish people who commit crimes once they are caught. Current New Zealand law on rape, for example, does not punish or condemn people who are not caught, tried and proven guilty of rape. No one thinks that this practice of observing due process is contrary to the rights of rape victims and correctly so, the fact that a woman is the victim of a heinous crime does not automatically cancel out the due process rights of anyone accused of a crime. The same is true here, the law punishes only those caught; if a person has not been caught committing a crime then the state does not know who committed the crime. To call the failure to punish the perpetrator of an unsolved crime a violation of a woman’s rights is hard to take seriously.
Moreover even if one were to take this line of argument seriously, it proves too much. In Deuteronomy, for example, The Torah refers to a situation where a man has been murdered and the authorities, after careful investigation, cannot determine who committed the crime. The result is that the unknown perpetrator is not punished. Are we to infer from this that The Torah victimises men and treats them as property and expresses a sexist anti-male sentiment?
This brings us to the final and perhaps most significant point. Martin notes that the law assumes “that in all cases that a rape victim could cry for help and if she did, she would be heard and rescued. Both of these assumptions are very dubious and sensitive to the contextual aspects of rape.” A rhetorical question will more vividly express this point; what if a women could not cry out, what if the rapist in a city put a knife to a woman’s throat and ordered her not to scream, what if a woman was set upon suddenly and was unable to scream? In these situations the rape occurs in a city and the woman does not scream for help. The above law then seems to teach that she is should be treated as guilty of a serious crime. If this is the case then surely this is insensitive to the rape victim? To have a law that condemns a woman in this situation is to have a law that ignores the specifics of the situation; it, in Martin’s words, ignores the “contextual aspects of rape.”
I am inclined to agree that if the law condemned a woman in these kinds of contexts it would indeed be unjust. The question needs to be asked, however, is does it? Is it plausible to assume that the law is intended to be applied in such a rigid, a-contextual, fashion? I think the answer is no.
Deuteronomy is an Ancient Near Eastern Legal text; it therefore is part of a literary genre from that period of time. We are aware of other texts from the same genre such as the ancient Hittite Laws, Middle Assyrian Laws and Code of Hammurabi, and its important to note that legal codes written in this Genre differ significantly from modern legal codes. Hiller notes,
[T]here is no evidence that any collection of Near Eastern laws functioned as a written code that was applied by a strict method of exegesis to individual cases. As far as we can tell, these bodies of laws served educational purposes and gave expression to what was regarded as just in typical cases, but they left considerable latitude to local courts for determining the right in individual suits. They aided local courts without controlling them.
The same point is made by Raymond Westbrook in his comparative study of Ancient Near Eastern Legal Codes. He notes that such laws “reflect the scribal compilers’ concern for perfect symmetry and delicious irony rather than the pragmatic experience of the law courts.” The method used in legal texts was “to set out principles by the use of often extreme examples.” Christopher Wright calls this “paradigmatic law,” which he explains as “the detailing of specific circumstances with the view to giving judges basic principles and precedents on which to evaluate the great variety of individual cases that may come before them.”
Once the genre is understood it is not hard to see the flaw in Martin’s argument. Martin assumes that the law is a rigidly literal rule that inflexibly applies to all cases. In fact, the law probably did not function this way nor was it intended to. Instead it functioned as kind of paradigm illustrating a principle. The principle was this; women who have sex with a man are not to be considered adulterers or immoral if they do not consent. If it cannot be established whether a woman consented to a sexual act then she should be presumed innocent. Rape is not adultery, it is rather a serious assault or an attempted murder. At a more general level the case law vividly illustrates the principle that culpability entails consent.
 Michael Martin “Atheism, Christian Theism, and Rape” accessed 27 September 2009.
 Christopher Wright International Biblical Commentary: Deuteronomy, (Massachusetts: Hendrickson Publishers, 1996 ) 254.
 Delbert R Hillers Covenant: the History of a Biblical Idea (Baltimore: The John Hopkins Press, 1969).
 Raymond Westbrook “The Character of Ancient Near Eastern Law” in The History of Ancient Near Eastern Law Vol 1 ed Raymond Westbrook (Boston: Brill Academic Publishers, 2003) 74.
 Christopher Wright Deuteronomy 244.