All verses are in the NRSV unless otherwise noted. When I first started writing this I thought I had to admit that the Bible did not explicitly prohibit rape of an unmarried unbetrothed woman. However, I have now realized that the Bible does explicitly prohibit rape in Ex 21:16 and Deut 24:7 because it prohibits that capture/seizure of people which is part of rape. I argue that Deuteronomy 22:28-29 is connected with Exodus 22:16-17 and is about seduction not rape. I do think rape is explicitly against other laws–for instance it would at least be covered under the laws concerning damages to people and certainly against the law to love your neighbor. However, I will argue that just because it is not explicitly named that the Bible’s attitude should not be taken as lax towards it. In fact, I will argue that under the biblical law that rape requires the death penalty.
So why isn’t rape itself explicitly mentioned in the law? For a few reasons I suspect
1 The first one is pretty obvious: it was covered directly by other laws against capturing and indirectly by laws against slavery which came almost immediately in the giving of the law.
There was no reason to add specific cases to a good comprehensive general one. This comes by observing that the Tanakh is very much against capturing and slavery:
Whoever kidnaps h1589 a person, whether that person has been sold or is still held in possession, shall be put to death. (Exodus 21:16)
If someone is caught kidnaping h1589 another Israelite, enslaving or selling the Israelite, then that kidnaper shall die. So you shall purge the evil from your midst. (Deuteronomy 24:7)
You shall not steal. h1589 (Ex 20:15)
Notice it uses the same Hebrew word for “steal” in the 10 commandments. There are some translations that have “and” in-between each case here rather than “or” making it possible to argue that it only prohibited the combination of them: kidnapping, selling, and found in their possession. However, Keil and Delitzsch correct this misconception and note the severity with which this was treated:
Maltreatment of a father and mother through striking (Exodus 21:15), man-stealing (Exodus 21:16), and cursing parents (Exodus 21:17, cf. Leviticus 20:9), were all to be placed on a par with murder, and punished in the same way. By the “smiting” (הכּה) of parents we are not to understand smiting to death, for in that case ומת would be added as in Exodus 21:12, but any kind of maltreatment. . . . Man-stealing was also no less a crime, being a sin against the dignity of man, and a violation of the image of God. For אישׁ “a man,” we find in Deuteronomy 24:7, נפשׁ “a soul,” by which both man and woman are intended, and the still more definite limitation, “of his brethren of the children of Israel.” The crime remained the same whether he had sold him (the stolen man), or whether he was still found in his hand. (For ו – ו as a sign of an alternative in the linking together of short sentences, see Proverbs 29:9, and Ewald, 361.) This is the rendering adopted by most of the earlier translators, and we get no intelligent sense if we divide the clauses thus: “and sell him so that he is found in his hand.”https://biblehub.com/commentaries/kad/exodus/21.htm
This attitude is consistent with the Bible’s libertarian treatment of individual freedom and the prohibition against forced servitude:
15 Slaves who have escaped to you from their owners shall not be given back to them. 16 They shall reside with you, in your midst, in any place they choose in any one of your towns, wherever they please; you shall not oppress them. (Deuteronomy 23:15-16 )
It even says the type of slavery that happened in Egypt was wrong since it says that you shall not crush (H3905) the sojourners like has been done to you in Egypt:
You shall not wrong or oppress H3905 a resident alien, for you were aliens in the land of Egypt. (Exodus 22:21)
This is because the same word H3905 is used to describe the oppression of the Egyptians upon the Israelite:
The cry of the Israelites has now come to me; I have also seen how the Egyptians oppress H3905 them. (Exodus 3:9)
You shall not oppress H3905 a resident alien; you know the heart of an alien, for you were aliens in the land of Egypt. (Exodus 23:9)
we cried to the Lord, the God of our ancestors; the Lord heard our voice and saw our affliction, our toil, and our oppression. H3906 (Deu 26:7)
It in fact says that you should treat sojourners as natives:
The alien who resides with you shall be to you as the citizen among you; you shall love the alien as yourself, for you were aliens in the land of Egypt: I am the Lord your God. (Leviticus 19:34)
It says that you should never rule over anyone like the Egyptians did to the Israelites (the context in Ezekiel is criticizing their behavior):
The Egyptians became ruthless H6531 in imposing tasks on the Israelites, (Exo 1:13)
You have not strengthened the weak, you have not healed the sick, you have not bound up the injured, you have not brought back the strayed, you have not sought the lost, but with force and harshness you have ruled H6531 them. (Ez 34:4)
So if they couldn’t behave like the Egyptians and they couldn’t capture or force people to stay with them then what motivation could servants have for staying? I think this was a way for people who had gotten into debt (by committing a crime or otherwise) to get back on their feet by making an extended contract with someone. The servant could break that contract but if they broke it for no good reason then other people would be less likely to want to have them as a servant. It also says to provide them with resources when they went out, this may have been partially motivation for staying. In addition this may imply that they came in with nothing, hence were working to get back on their feet:
And when you send a male slave out from you a free person, you shall not send him out empty-handed. 14 Provide liberally out of your flock, your threshing floor, and your wine press, thus giving to him some of the bounty with which the Lord your God has blessed you. (Deuteronomy 15:13)
There are intricacies to these contracts that often escape our notice; servants could be given authority to manage the household and manage the marriage of a son (Genesis 24:2) and also may have been heirs automatically when no children were present (Genesis 15:3). They could own property (2 Samuel 19:17), and they, or a relation, could buy their freedom regardless of the master’s will to keep them (Lev 25:47–50).
And it seems to have had a positive connotation:
Then she said, “May I continue to find favor in your sight, my lord, for you have comforted me and spoken kindly to your servant, even though I am not one of your servants.” (Ruth 2:13)
You could replace “servant” with “daughter” and it would still make sense. Interestingly a son is said to serve the father and it uses the same word that means “servant” elsewhere:
They shall be mine, says the Lord of hosts, my special possession on the day when I act, and I will spare them as parents spare their children who serve H5647 them. (Mal 3:17)
Since you have to capture someone to rape them and you can’t capture people this would outlaw rape. Also raping a person is like taking them temporarily as a sex slave so the prohibition against forced servitude or slavery would indirectly outlaw rape as well.
2 The second reason it does not explicitly mention rape is because of the nature of ancient law which is not meant to be comprehensive:
Excursus: The Paradigmatic Nature of Biblical Law
Modern societies generally have opted for exhaustive law codes. That is, every action modern society wishes to regulate or prohibit must be specifically mentioned in a separate law. Under the expectations of this exhaustive law system, state and/or federal law codes run to thousands of pages and address thousands of individual actions by way of requirement or restriction or control or outright banning of those actions. By this approach, all actions are permitted that are not expressly forbidden or regulated. Thus it is not uncommon that criminals in modern Western societies evade prosecution because of a “technicality” or a “loophole” in the law—their undesirable actions are not exactly prohibited or regulated by a written law, so they cannot be convicted even though an objective observer may be convinced that what they did surely deserved punishment.
Ancient laws did not work this way. They were paradigmatic, giving models of behaviors and models of prohibitions/punishments relative to those behaviors, but they made no attempt to be exhaustive. Ancient laws gave guiding principles, or samples, rather than complete descriptions of all things regulated. Ancient people were expected to be able to extrapolate from what the sampling of laws did say to the general behavior the laws in their totality pointed toward. Ancient judges were expected to extrapolate from the wording provided in the laws that did exist to all other circumstances and not to be foiled in their jurisprudence by any such concepts as “technicalities” or “loopholes.” When common sense told judges that a crime had been committed, they reasoned their way from whatever the most nearly applicable law specified to a decision as to how to administer proper justice in the case before them. Citizens of ancient Israel, and especially its judges, had to learn to extrapolate from whatever laws they had received from Yahweh to whatever justice-challenging situation they were dealing with. The number of laws dealing with any given application of justice might be few, but that would not prevent justice from being applied. It would simply have been the case that all parties were expected to appeal for guidance to those laws that did exist, whether or not expressed specifically in terms that dealt with the case under consideration. In other words, the Israelites had to learn to see the underlying principles in any law and not let the specifics of the individual casuistic citation mislead them into applying the law too narrowly.
God’s revealed covenant law to Israel was paradigmatic. No Israelite could say: “The law says I must make restitution for stolen oxen or sheep (Exod. 22:1), but I stole your goat. I don’t have to pay you back,” or “The law says that anyone who attacks his father or mother must be put to death (Exod. 21:15), but I attacked my grandmother, so I shouldn’t be punished,” or “The law says that certain penalties apply for hitting someone with a fist or a stone (Exod. 21:18), but I kicked my neighbor with my foot and hit him with a piece of wood, so I shouldn’t be punished.” Such arguments would have insulted the intelligence of all concerned and made no impact on those rendering judgments. It is in connection with the paradigmatic nature of Israel’s covenant law that Jesus, following the established tradition in Judaism, could make so sweeping an assertion as that two laws sum up all the rest [Matt. 22:34-40]. Properly understood, two laws do indeed sum up everything in the entire legal corpus of the Old Testament. So do ten laws (the Ten Words/Commandments); so do all six hundred and thirteen. The numbers go no higher, nor would they need to. If a reasonable number of comprehensive and comprehensible laws (as few as two, as many as six hundred and thirteen) are provided to a people as paradigms for proper living, there is no excuse for that people to claim ignorance of how to behave or to claim innocence when their sins are found out.
. . .
A final implication of paradigmatic law: not all laws will be equally comprehensive in scope. That is, some will be very broad in their applicability (love Yahweh your God) and some much more narrow (do not bear false witness). One might ask, “Why not say ‘don’t be dishonest in any way,’ which would be broader and more comprehensive than ‘don’t bear false witness’?” But that would be missing the way paradigmatic law works: through a somewhat randomly presented admixture of rather specific examples of more general behaviors and very general regulations of broad categories of behavior, the reader/listener comes to understand that all sorts of situations not exactly specified (either because a law is so broad or so narrow) are also implicitly covered. In other words, when all the laws are considered together, one’s impression is that both the very narrow, precise issues and the very broad, general issues fall under the purview of God’s covenant. The wide variability of comprehensiveness is intended to help the person desiring to keep the covenant to say, “I now see that in the tiniest detail as well as in the widest, most general way, I am expected to try to keep this law—in all its implications, not just in terms of its exact wording.” Some commandments are thus less broad in scope in the way they are expressed than is necessary to cover all the intended actions; others are so broad in scope in the way they are expressed that one could never think up all the ways they might be applied. This is just as it should be. The narrow and the broad taken together suggest the overall comprehensiveness of God’s covenant will for his people. (p. 442-45)
https://www.rodneychrisman.com/2010/08/11/the-paradigmatic-nature-of-biblical-law/ see original source: https://books.google.com/books?id=8H9E00e5PSwC&pg=PA442#v=onepage&q&f=false
3 There was already a law mandating that servants not be held against their will. This can be combined with the rule of “light and heavy” to also outlaw holding anyone against their will which is a prerequisite for rape.
15 Slaves who have escaped to you from their owners shall not be given back to them. 16 They shall reside with you, in your midst, in any place they choose in any one of your towns, wherever they please; you shall not oppress them. (Deuteronomy 23:15-16 )
Essentially servants would have had the least rights in the society, so if people with the least rights couldn’t be held against their will then how much more the non-servants? Light and heavy is described below:
Kal Vahomer (Light and heavy)
The Kal vahomer rule says that what applies in a less important case will certainly apply in a more important case. A kal vahomer argument is often, but not always, signaled by a phrase like “how much more…”
The Rabbinical writers recognize two forms ok kal vahomer:
kal vahomer meforash – In this form the kal vahomer argument appears explicitly.
kal vahomer satum – In which the kal vahomer argument is only implied.
There are several examples of kal vahomer in the Tenach.
For example: Behold the righteous shall be recompensed in the earth: much more the wicked and the sinner. (Proverbs 11:31)
And: If you have run with footmen and they have wearied you, then how can you contend with horses? (Jerermiah 12:5a)
Other Tenach examples to look at: Deuteronomy 31:27; 1 Samuel 23:3; Jerermiah 12:5b; Ezekiel 15:5; Esther 9:12
There are several examples of kal vahomer in the New Testament. Y’shua often uses this form of argument.
For example: If a man receives circumcision on the Sabbath, so that the Law of Moses should not be broken, are you angry with me because I made a man completely well on the Sabbath? (Jn. 7:23)
And: What man is there among you who has one sheep, and if it falls into a pit on the Sabbath, will not lay hold of it and lift it out? Of how much more value then is a man than a sheep? Therefore it is lawful to do good on the Sabbath. (Mt. 12:11-12)
Other examples of Y’shua’s usage of kal vahomer are: Matthew 6:26, 30 = Luke 12:24, 28; Mathhew 7:11 = Luke 11:13; Matthew 10:25 & John 15:18-20; Matthew 12:12 & John 7:23
Paul especially used kal vahomer. Examples include: Romans 5:8-9, 10, 15, 17; 11:12, 24; 1 Corinthians 9:11-12; 12:22; 2 Corinthians 3:7-9, 11; Philippians 2:12; Philemon 1:16; Hebrews 2:2-3; 9:13-14; 10:28-29; 12:9, 25.http://www.yashanet.com/studies/revstudy/hillel.htm
4 The fourth reason rape may not have been mentioned is because of cultural differences that made it not as important to address directly.
Unlike the Greeks and Romans, the ANE was not very ‘into’ using slaves/captives for sexual purposes, even though scholars earlier taught this:
“During the pinnacle of Sumerian culture, female slaves outnumbered male. Their owners used them primarily for spinning and weaving. Saggs maintains that their owners also used them for sex, but there is little actual evidence to support such a claim” [OT:EML:69]http://christianthinktank.com/midian.html
There’s no case in that Bible where rape was taken lightly. The rape of the concubine in Judges was avenged by a national civil war. (Judges 19-21) The rape of Tamar by Amnon was avenged by Amnon’s death and possibly was the cause of another national civil war because David didn’t punish Amnon. (2 Sam. 13) What’s commonly called the rape of Dinah (Gen 34:2) (which may have even been consensual) was avenged by genocide. (Gen 34:25-31) Do we even take rape that seriously today? I think not. Another interesting difference is that women were protected from having their conjugal duty diminished “If he takes another wife to himself, he shall not diminish the food, clothing, or marital rights of the first wife.” (Ex 21:10) and Rachel and Leah were able to trade a night with Jacob for mandrakes Gen 30:14-18. Also note that it’s the less attractive Leah that tells Jacob: “‘You must come in to me; for I have hired you with my son’s mandrakes.’ So he lay with her that night.” God killed Onan for not having sex in a way that would cause pregnancy when he was supposed to perform the duty of the Levarite in Genesis 38:8-10. Hannah’s prayer was answered by God when she cried because she was not able to become pregnant and was ridiculed by her rival 1 Samuel 1:1-28. Part of one of the Jewish interpretations of Leviticus 19:29 in the Talmud is to not deny your daughter her right of marriage for too long:
Ein Yaakov (Glick Edition), Sanhedrin 9:1
(Fol. 76) You shall not profane your daugher (Lev. 19, 29). R. Eliezer says: “This refers to one who marries off his [young] daughter to an old man.” R. Akiba says: “This refers to one who leaves his daughter unmarried until she enters the age of womanhood.” R. Cahana in the name of R. Akiba said (Ib. b) Who is to be considered poor and shrewd-wicked? He who has left his daughter unmarried until she enters the age of womanhood.”
Rather than sex being an obligation of women, it seems that it was an obligation of men especially for the purpose of giving women children. This probably breaks a lot of the preconceptions most people have about the Biblical culture.
Here’s an interesting statement on how culture really determines what people are likely to do:
At the same time, many of the men who have violated a woman sexually do not meet clinical diagnostic criteria as either sociopaths, sexual deviants, or for that matter neurologically (or intellectually) impaired. While “stranger danger” stirs deep, easy dread (and is hence a useful trope for screenwriters and politicians), most sexual violence takes place among otherwise normative people who are familiar with each other and are involved in some type of relationship. This raises the possibility that to these perpetrators, the violence appears, in context, normative. By this argument, a sizable proportion of the men who attack women are following, rather than flaunting, social dictates.
The role of social dictates in shaping individual behavior is often overlooked because we are inclined to favor internal causes when explaining other people’s behavior. This tendency is so fundamental that it has a name: The Fundamental Attribution Error. (When evaluating our own, particularly negative behavior, however, we often rely on less damning external explanations. To wit: you’re late for work because you’re lazy. I’m late because of traffic. This is called the “actor-observer effect”).
It turns out, however, that social and situational variables often override individual characteristics in predicting one’s behavior and overall future. If I need to predict whether you’ll be dancing next Friday night, it’s better for me to inquire about where you’ll be that night than about your extraversion score on a personality test. If I want to know whether you’ll become wealthy, I’m better off basing my prediction on whether your parents are wealthy than on the conscientiousness score on your personality test. We are more beholden to our circumstances than we tend to believe. This is true in general; and it’s true for sexual violence in particular. For example, contextual and group factors (such as orders from the leadership, pre-conflict rates of sexual violence, intra-group dynamics, gender inequality) predict the prevalence of war rapes better than the personalities or characteristics of individual soldiers.
Circumstances matter in part because they set (or remove) certain hard parameters. Regardless of your personal characteristics, if you’re at your wedding, you’re going to dance. The fact also remains that if you are born in Afghanistan to poor parents, you have no access to capital. If you’re born in Manhattan to wealthy parents, you do. Circumstances, particularly social ones, also matter greatly because as herd animals, we are utterly dependent on the approval, acceptance, cooperation, and support of others. Thus, we are wired to notice, take into account, and align with the behavior of those around us.
If you’re still telling yourself that you are your own person, doing your thing, not giving a damn about what others think—then you need to grow up and face the (social) facts. Society gives you life. It is your main source of strength and identity. Without it you’re hopeless—an ant that has lost its colony. Society provides you with the tools and rules for living. It has fearsome powers of reward and retribution. In other words society, as the sociologist Randall Collins has argued brilliantly, is God.
We expect people back then to be like they are today. However, this isn’t always the case. The first difference we do know is that they were a polygynist society which is sometimes caused by a need to deal with the issue of lack of men (sometimes caused by war):
“Deal with the “problem” of surplus women.”
However this is speculation. I haven’t had any luck on finding what the actual gender ratio was in biblical times and when I have found articles there seem to be different opinions.
However, some things I can observe from the law and culture is that: 1 there is no premarital sex, a man who sleeps with a woman is supposed to marry her “he shall surely marry her” and “unless the father absolutely refuses” in Exodus 22:16 and Deuteronomy 22:29 (I argue that this is indeed a seduction but don’t have time to go into this now) Here’s something I wrote that touches on premarital sex: https://kingdomofgodcommunes.org/2019/02/03/gesenius-and-leviticus-1929/ This makes early sexual competition over mates virtually non-existent if followed correctly. 2 Marriage is arranged by the family at a young age which also prevents any rejection based on sexual prowess that seems to increase the risk of men becoming rapists. It is possible however that someone’s wife would reject them and that might increase risk of rape. However, based on my arguments on the Torah the consent of both the person being married and the guardian was required because the Torah gives the freedom to run away for any reason based on not holding servants against their will and the rule of light and heavy. Also the modern rise in narcissistic personality disorder may be a result of modern living and individualism all of which would be absent in the tribal society of the Bible: https://www.psychologytoday.com/us/blog/freedom-learn/201401/why-is-narcissism-increasing-among-young-americans
Heavy drinking, perceived pressure to have sex, a belief in “rape myths” — such as the idea that no means yes — are all risk factors among men who have committed sexual assault. A peer group that uses hostile language to describe women is another one.https://www.nytimes.com/2017/10/30/health/men-rape-sexual-assault.html
Yet there also seem to be personal attributes that have a mediating effect on these factors. Men who are highly aroused by rape porn — another risk factor — are less likely to attempt sexual assault if they score highly on measures of empathy, Dr. Malamuth has found. What about the idea that rape is about power over women? Some experts feel that research into hostile attitudes toward women supports this idea. In general, however, researchers say motives are varied and difficult to quantify. Dr. Malamuth has noticed that repeat offenders often tell similar stories of rejection in high school and of looking on as “jocks and the football players got all the attractive women.”As these once-unpopular, often narcissistic men become more successful, he suspects that “getting back at these women, having power over them, seems to have become a source of arousal.”
I should be clear when arguing this that I am not blaming women rejecting men for causing men to rape. I am saying based on science allowing men to freely compete and be rejected by women on an individual basis seems to increase the likelyhood that narcissistic men will rape. A family based method of choosing mates would redirect anger towards a rival family which could be bad as well, it’s just not likely to result in rejected narcissistic men blaming women. There’s a similar behavior in orangutans for those who find animal studies helpful in explaining human behavior:
One possible reason for the rapes, she said, is because it takes so long for males to mature in the rain forest. In zoos, captive male orangutans usually become mature at age 13 or 14. In the rain forest of Borneo, however, they do not become mature until age 20, only then developing the cheek pads and large throat sac of a male adult. Although they are capable of sexual activity before that, females in heat are not attracted to them, so their only sexual option becomes force.https://www.latimes.com/archives/la-xpm-1992-01-13-me-231-story.html
There’s a Biblical ethics paper I am working on that will address more misconceptions like this and fill in some details on how ancient Israelite law was supposed to work. I think there is a huge amount of bias in the way people interpret the Bible from chronological bigotry. Us moderns looking backwards/downwards like to feel good about ourselves and like we are making moral progress. We also just like to be able to feel outraged about something, whether it’s Harambe’s killing or ancient people mistreating their women. This seems to be the case irrespective of our level of knowledge on these topics. However, the bias that comes with interpreting the law through a lens that assumes things like “slave” (used by some translations of the Bible) meant the same thing back then as it does today is even worse. If we poison the well with misunderstandings as bad as that, it’s no wonder that we see other parts of the law as barbaric.