Pre-Marital Sex or Rape?

Torah Teaching in Deuteronomy 22:13-29

There are 6 different legal cases that give rulings on sexual indiscretion between Deuteronomy 22:13-29. They lay out some general divisions in the law through case example. The final seven of those verses are below, divided into the three cases we will consider here.

Case #1

“If a damsel that is a virgin be betrothed unto an husband, and a man find her in the city, and lie with her; then ye shall bring them both out unto the gate of that city, and ye shall stone them with stones that they die; the damsel, because she cried not, being in the city; and the man, because he hath humbled his neighbour’s wife: so thou shalt put away evil from among you.” (Deuteronomy 22:23,24 KJV)

Case #2

“But if a man find a betrothed damsel in the field, and the man force her, and lie with her: then the man only that lay with her shall die: But unto the damsel thou shalt do nothing; there is in the damsel no sin worthy of death: for as when a man riseth against his neighbour, and slayeth him, even so is this matter: For he found her in the field, and the betrothed damsel cried, and there was none to save her.” (Deuteronomy 22:25-27 KJV)

Case #3

“If a man find a damsel that is a virgin, which 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.” (Deuteronomy 22:28,29 KJV)

The first case is of a man who has humbled his neighbor’s wife by sleeping with her. Though she was only betrothed, she was considered a wife because betrothal in that world was one stage of marriage. So that first case is adultery and is punished by death. The second case is rape of a betrothed woman. The man is punished with death and the woman is considered innocent. The third case we will examine more closely, but I contend is simply consensual sex between two unattached people. The man is required to pay her bride price, marry her, and never divorce her.

Law students do not only study the laws themselves, but rather cases and judgments. Likewise, God’s written law was not constructed as a totally abstract system which covers all possibilities. There is strategic economy to what cases are given. Thus the labels of the crime are not provided, but the judges are to study the principles in play.

So what are the facts of the third, “controversial” case, which some maintain is rape? The NIV translates verse 28, “if a man happens to meet a virgin…and rapes her…” However the Hebrew verb does not necessarily imply such violence. It can be used to describe taking hold of a garment or playing the harp. The King James Version here translates the word as “lay hold”, while the New American Standard Bible has “seizes”. A few verses earlier, at Deuteronomy 22:25, in discussing rape, a different verb is used: חָזַק , which perhaps should be translated, “to force.” (KJV) So we see intentional differentiation between these cases.

The rape case in the field, gives the law for rape, and it defies common sense to consider the third case as rape because it would be contradictory.

The text shows that the incident in case 3, happened around a witness, but she did not cry out. They were discovered. Nor is it “he was found out”, but it describes both of them being found. Whatever he was doing wrong, she was also doing.

Why would scripture even need to explain that not only a betrothed woman is innocent who is raped (case 2) but also a non-betrothed (if that is case 3)? But we see from case 2 how God regards rape.

If someone rises up to slay my betrothed daughter then the rapist is considered as a killer and is put to death, but if he does that to my unmarried daughter it is nothing? No, even if we are inconsistent God is not.

If this were rape, should she be found, she would be forced to marry her rapist. But if she kept the violence to herself and was not found, she could be killed later for lack of proofs of virginity. So there would be no justice either way.

If case 2 and 3 are both rape, then the first rapist (in the country) is sentenced to death for having sex with an engaged woman, not for raping her. According to this reasoning, raping her is pretty much fine. Then if she had not been engaged when he raped her that could have been taking a step toward marriage.

But God says the rape is akin to murder. (Deuteronomy 22:26) No, the difference here is not between a rape of a betrothed and unattached woman, but the difference in consensual sex with a betrothed (case 1) and unattached woman (case 3). In the first case, it is adultery, and in the second case, there is responsibility one bears in sexual behavior.

This series of cases is sufficient to interpret many other cases. It demands that the court establish by evidence if it was rape or consensual. It provides the principle of defending the victim, condemning the “adulteress”, (betrothal was a form of marriage), and forcing a man to marry his lover if they are caught and not divorce her. This last law for lovers caused both parties to consider the consequences of their affairs.