JBL 128, no. 1 (2009): 43–60 Ideology and Social Context of the Deuteronomic Women’s Sex Laws (Deuteronomy 22:13–29) cynthia edenburg cynthia@oumail.openu.ac.il 108 Ravutski Street, Raanana 43107 Israel The Deuteronomic family laws in Deut 22:13–29 have received extensive treatment in previous studies, many of which have dealt with the literary and redaction history of the laws, their application in the legal practice of ancient Israel, and their relation to parallel laws in ancient Near Eastern law collections.1 Yet debate continues regarding the purpose, ideology, and compositional history of this section as a whole and its constituent parts.2 The conflicting views arise in part from prem1 E.g., Rosario Pius Merendino, Das Deuteronomische Gesetz (Bonn: P. Hanstein, 1969), 257–74; Anthony Phillips, “Some Aspects of Family Law in Pre-Exilic Israel,” VT 23 (1973): 349– 61; Raymond Westbrook, “Adultery in Ancient Near Eastern Law,” RB 97 (1990): 542–80; Louis Stulman, “Sex and Familial Crimes in the D Code: A Witness to Mores in Transition,” JSOT 53 (1992): 47–63. Studies on specific laws or aspects include Clemens Locher, Die Ehre einer Frau in Israel: Exegetische und rechtsvergleichende Studien zu Deuteronomium 22,12–21 (OBO 70; Göttingen: Vandenhoeck & Ruprecht, 1986); Bruce Wells, “Sex, Lies, and Virgin Rape: The Slandered Bride and False Accusation in Deuteronomy,” JBL 124 (2005): 41–72; Timothy M. Willis, The Elders of the City: A Study of the Elders-Laws in Deuteronomy (SBLMS 55; Atlanta: Society of Biblical Literature, 2001). 2 For example, Alexander Rofé finds that the laws in Deut 22:13–29 are utopian in intent and Deuteronomic in origin, while Carolyn Pressler and Eckart Otto view them as judicial rulings representative of Iron II society. Regarding purpose, Rofé and Pressler hold that the laws were intended to reinforce the authority of the paterfamilias, while Otto argues, in contrast, that they were concerned with restricting male authority. See Alexander Rofé, “Family and Sex Laws in Deuteronomy and the Book of Covenant,” Henoch 9 (1987): 131–59 (cf. in Hebrew in Beit Miqra 22 [1977]: 19–36); Carolyn Pressler, The View of Women Found in the Deuteronomic Family Laws (BZAW 216; Berlin: de Gruyter, 1993), 42, 96; Eckart Otto, “False Weights in the Scales of Biblical Justice? Different Views of Women from Patriarchal Hierarchy to Religious Equality in the 43 This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. 44 Journal of Biblical Literature 128, no. 1 (2009) ises regarding the redaction and literary prehistory of the laws in this section.3 But however the prior history of the material in this section may be construed, its ultimate significance is intrinsically bound to its structure and context. Examination of the structure of the section will demonstrate that Deut 22:13–29 is a carefully drafted, self-contained collection of laws, unlike the haphazard assortment of rulings in its immediate setting (Deut 21:22–25:12). I shall argue that this careful design is the result of editorial intent directed toward presenting an authoritative treatment of sexual offenses involving all categories of free women. Comparison with similar legislation from the ancient Near East will show that Deut 22:13–29 is the product of deliberate selection from a wide array of legal traditions. The choices the scribe made in constructing the specific cases and exigencies to be included in Deut 22:13–29 result in a one-sided view of women’s responsibility and culpability for safeguarding sexual exclusivity vis-à-vis an actual or future husband. Finally, I shall attempt to uncover the concerns that shaped this attitude toward women’s responsibility. I. Structure in Deuteronomy 22:13–29 Deuteronomy 22:13–29 is a tightly knit literary unit dealing with the regulation of women’s sexuality. The section is composed of four paragraphs, each opening with the conditional yk (vv. 13–21, 22, 23–27, 28–29). The first paragraph treats the case of a married woman who is charged with sexual misconduct prior to marriage. The second paragraph takes up the case of sexual relations between a woman and a man other than her husband after consummation of her marriage (v. 22). The third paragraph deals with the rape of a betrothed virgin (vv. 23–27). The final paragraph deals with the rape of an unbetrothed virgin (vv. 28–29). Hence, the cases have been arranged in descending order according to the marital status of the women, starting with cases dealing with women whose marriages have been Book of Deuteronomy,” in Gender and Law in the Hebrew Bible and the Ancient Near East (ed. Victor H. Matthews et al.; JSOTSup 262; Sheffield: Sheffield Academic Press, 1998), 140. 3 See, e.g., Rofé, “Family,” 131–57; idem, “The Arrangement of the Laws in Deuteronomy,” ETL 64 (1988): 273, 286–87; Clemens Locher, “Deuteronomium 22, 12–21: Vom Prozeßprotokoll zum kasuistischen Gesetz,” in Das Deuteronomium: Entstehung, Gestalt, und Botschaft (ed. Norbert Lohfink; Leuven: Leuven University Press, 1985), 301–3; idem, Die Ehre einer Frau, 83–109; Eckart Otto, “Soziale Verantwortung und Reinheit des Landes: Zur Redaktion der kasuistischen Rechtssätze in Deuteronomium 19–25,” in idem, Kontinuum und Proprium: Studien zur Sozial- und Rechtsgeschichte des Alten Orients und des Alten Testaments (Orientalia Biblica et Christiana 8; Wiesbaden: Harrassowitz, 1996), 125–38; repr. from Prophetie und geschichtliche Wirklichkeit im alten Israel: Festschrift für Siegfried Herrmann (ed. Rüdiger Liwak and Siegfried Wagner; Stuttgart: Kohlhammer, 1991), 290–306. This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. Edenburg: he Deuteronomic Women’s Sex Laws 45 consummated (vv. 13–22), and then progressing to betrothed virgins (vv. 23–27) and culminating with unbetrothed virgins (vv. 28–29). In addition, the initial and closing paragraphs (vv. 13–21, 28–29) appear to have been designed to frame the section and to mark it as a discrete and integral unit.4 Both paragraphs deal with loss of virginity prior to betrothal,5 and both the primary case in vv. 13–19 and the case in vv. 28–29 are resolved by financial arrangements and by guaranteeing the marital status of the young women. Moreover, only in the first and final cases does the collocation hr(n yb) (“the father of the young woman”) occur (vv. 15–16, 19, 29), and both conclude with similar wording (v. 29: lkwy )l [. . .] h#)l hyht wlw Psk My#mx hr(nh yb)l Psk #y)h Ntnw wymy lk hxl#l , “the man shall pay the girl’s father fifty [shekels] of silver, and she shall become his wife [. . .] he shall not divorce her as long as he lives” [cf. v. 19]). Only the first and third paragraphs include secondary cases introduced by the conditional M) (vv. 20–21, 25–27). This casts the section into two balanced parts, vv. 13–22 and vv. 23–29, each opening with an amplified paragraph containing both main (yk) and secondary (M)) cases, and followed by a simple paragraph comprising only a main (yk) case.6 Similar structuring is evident also in the second and fourth paragraphs in vv. 22, 28, both of which open with expressions including . . . M( bk# . . . #y) )cmy yk, “If a man is found lying with . . . .” Here it appears that v. 28 has been patterned on v. 22; although both employ the niphal of )cm to convey discovery of the act, in v. 28 the verb is awkwardly tacked onto the end of the sentence. In addition, the occurrence of the qal of )cm at the beginning of v. 28 appears superfluous, since the case could have been drafted along the lines of the 4 See Merendino, Gesetz, 258, 264. v. 17 the husband accuses the bride’s father of fraudulently giving the girl in marriage as a virgin. According to Wells (“Sex,” 48–49, 55), the element of fraud places the loss of virginity on the same footing as adultery, whether it occurred before or after betrothal. This is unlikely, however, since the counter case drops all interest in the charge of fraud. Others assume that the accusation was directed against the girl’s behavior following betrothal; see Otto, “False Weights,” 137; and Ralf Rothenbusch, “Die eherechtlichen Rechtssätze in Deuteronomium 22,13-29 im Kontext der altorientalischen Rechtsgeschichte,” in Das Deuteronomium (ed. Georg Braulik; Österreichische biblische Studien 23; Frankfurt a.M.: Peter Lang, 2003), 189–203. This, however, is neither explicitly stated nor implied by the text of Deut 22:13–21. 6 For a different treatment of the structure, see Eckart Otto, “Das Eherecht im Mittelassyrischen Kodex und im Deuteronomium,” in Mesopotamica – Ugaritica – Biblica (ed. Manfried Dietrich and Oswald Loretz; AOAT 232; Kevelaer: Butzon & Bercker, 1993), 275–79. Otto identifies a concentric structure in vv. 22–29, but his analysis depends on excluding vv. 13–21, which he thinks developed separately. However, the identification of concentric structures is rife with subjective criteria, particularly when it excludes material. See Rothenbusch, “Die eherechtlichen Rechtssätze,” 161 n. 17; and David Pearson Wright, “The Fallacies of Chiasmus: A Critique of Structures Proposed for the Covenant Collection (Exodus 20:23–23:19),” ZABR 10 (2004): 165–68. 5 In This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. 46 Journal of Biblical Literature 128, no. 1 (2009) related law in Exod 22:15 (Eng. 22:16) (e.g., h#r) )l r#) hlwtb r(n #y) #pty yk hm( bk#w, “If a man seduces a virgin who is not engaged to be married, and lies with her . . .”).7 Thus, the author of the section evidently endeavored to enhance the balanced two-part structure by means of the similar formulation in vv. 22, 28. Furthermore, I discern a corresponding order in both parts of Deut 22:13–29 in relation to the role that evidence plays in the rulings. The first pair of cases purport to base their rulings on evidence (vv. 13–19, 23–24). The role of evidence is straightforward in vv. 13–19, where the husband is found guilty of false accusation if his bride can produce evidence of her premarital virginity.8 The ruling in the case of assault in the city (vv. 23–24) is also concerned with evidence. The man’s initiative is implied by the verb sequence “he found her . . . and lay with her” (v. 23, hm( bk#w . . . h)cmw),9 and the second motive clause specifies that he raped her (v.24aδ, wh(r t#) t) hn( r#) rbd l(, “because he violated his neighbor’s wife”).10 But according to the first motive clause (v. 24aγ), she is held responsible for the rape since she did not call out, the assumption being that a rapist cannot complete 7 Alternatively, the scribe could have drafted v. 28 according to the model in v. 22: h#r) )l r#) hlwtb r(n M( bk# #y) )cmy yk (“If a man is found lying with a virgin who is not engaged . . .”); however, this formulation lacks the implication of coercion inherent in the verb sequence “happen upon” ()cm) “and seized” (h#ptw; cf. Deut 9:17; 21:19). That this case deals with coercion is made explicit in v. 29, “since he raped her” (hn( r#) txt). Rape is the plain meaning of hn( throughout Deut 22:13–29, as well as in Gen 34:2; Deut 21:14; Judg 19:24; 20:5; 2 Sam 13:12, 14, 22, 32; Ezek 22:10–11; Lam 5:11; see Sandra Lynne Gravett, “Reading ‘Rape’ in the Hebrew Bible: A Consideration of Language,” JSOT 28 (2004): 280–89; against the view advanced by Westbrook, “Adultery,” 570; Lyn M. Bechtel, “What If Dinah Is Not Raped? (Genesis 34),” JSOT 62 (1994): 19–36; Ellen J. van Wolde, “Does ‘ vinnâ’ Denote Rape? A Semantic Analysis of a Controversial Word,” VT 52 (2002): 528–44. Joseph Fleishman recently argued that, despite the coercion, the case is not rape, since the sexual relations “intended to create a legal bond between the man and the woman” (“Shechem and Dinah—in the Light of Non-Biblical and Biblical Sources,” ZAW 116 [2004]: 12–32). However, the law in Deut 22:28–29 presumes an assailant whose intentions are not honorable and who must be coerced to marry the young woman and provide for her all her life. 8 In Deuteronomy 22, hlwtb designates the young woman as a virgin. Mylwtb is the evidence of her virginity at marriage (vv. 14–15). The inability of the girl to show proof of Mylwtb indicates premarital promiscuity (v. 21); see, e.g., Rofé, “Family,” 136 n. 11; Locher, Die Ehre einer Frau, 176–92; Pressler, View of Women, 25–28; Richard D. Nelson, Deuteronomy: A Commentary (OTL; Louisville: Westminster John Knox: 2002), 265; Rothenbusch, “Die eherechtlichen Rechtssätze,” 163 n. 22; contra Gordon J. Wenham, “Betûlāh: ‘A Girl of Marriageable Age,’” VT 22 (1972): 326–48; Tikva Simone Frymer-Kensky, “Virginity in the Bible,” in Gender and Law, ed. Matthews et al., 79–96. 9 Nelson, Deuteronomy, 272. 10 The alternate readings that eliminate rape from the semantic field of hn( take vv. 23–24 to represent a case of consent, in contrast to the case of rape in vv. 25–27; see, e.g., Rofé, “Family,” 137; Wells, “Sex,” 68; Rothenbusch, “Die eherechtlichen Rechtssätze,” 160 n. 14. However, all these alternative readings overlook the element of coercion implied by the term hn(. This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. Edenburg: he Deuteronomic Women’s Sex Laws 47 the assault in a populated place if the victim cries out for help.11 Thus, the very fact that she was violated in the town is held as evidence of her tacit consent. Rabbinic legal tradition carried this view a step further and reinterpreted the motive clause, presuming that the purpose of the girl’s crying out was to ensure that witnesses could attest that she resisted her assailant even if the rape was not prevented.12 The second pair of cases establish rulings in the absence of evidence (vv. 20–21, 25–27). The absence of evidence in the case of the unchaste bride is plainly stated by the phrase Mylwtb w)cmn )l, “virginity was not found” (v. 20), and is expressed in the case of assault outside the town by the solitude of the field, where none can witness the act, hear the girl’s cry, and save her (v. 27). Finally, the third pair of cases in each part (vv. 22, 28–29) deal with discovery in flagrante delicto (v. 22: “if a man is found lying with a married woman,” l(b-tl(b h#)-M( bk# #y) )cmy yk; v. 28: “he seized her and lay with her and they are found,” w)cmnw hm( bk#w h#ptw). Otherwise, associative principles seem to have directed the placement of the cases.13 The three capital cases are adjacent to each other (vv. 20–24), and each is punctuated by the formula “expunge the evil” (vv. 21, 22, 24).14 Additionally, the apodoses of the first and third capital cases are formulated in a similar fashion; both the promiscuous girl and the betrothed girl assaulted in the town are to be taken out to the entrance of their dwelling place and there be stoned to death (v. 21: htmw Mynb) hry( y#n) hwlqsw [. . .] l) r(nh t) w)ycwh, “they shall bring the young woman out to [. . .] and the men of her city shall stone her to death” [cf. v. 24]).15 Furthermore, the adjacent cases in the second and third paragraphs rule that the man and the woman equally share the penalty, as emphasized by the recurrence of the term “both of them” (Mhyn#) in the apodoses (vv. 22, 24). Key phrases are repeated in the motive clauses, enhancing structural unity and highlighting the correlation between case and ruling. Thus, the case of the slandered bride (vv. 13–19) is framed by the recurrence of the phrase (r M# hyl( )ycwh in both the protasis (v. 14) and the motive clause (v. 19). In the counter-case, the 11 The converse of this assumption is explicitly spelled out in the final motive clause in v. 27; see Michael A. Fishbane, Biblical Interpretation in Ancient Israel (rev. ed.; Oxford: Oxford University Press, 1988), 218. 12 See Sipre Deut. 242 and Nachmanides. 13 On the editorial use of associative principles, see Rofé, “Arrangement,” 265–87. 14 On the formula “expunge the evil,” see, e.g., Jean L’Hour, “Une Législation Criminelle dans le Deutéronome,” Bib 44 (1963): 3–26; Merendino, Gezetz, 336–45; Paul-Eugène Dion, “ ‘Tu Feras Disparaitre le Mal du Milieu de Toi,’” RB 87 (1980): 321–49; Locher, Die Ehre einer Frau, 47–64. 15 In both cases, the judgment is carried out at the entrance of the place that, according to the motive clause, is implicated by the young woman’s act. For the promiscuous girl, see Pressler, View of Women, 97; Nelson, Deuteronomy, 271; cf. Willis, Elders, 226. The rape of the betrothed girl in the town ostensibly impugns the town’s honor. Had she called out, the townsmen could have saved her and the town’s reputation. This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. 48 Journal of Biblical Literature 128, no. 1 (2009) term hyb) tyb is repeated in both the ruling and its motive clause (v. 21), reflecting an attempt to formulate the ruling according to the principle of talion. Repetition also unites the laws of the second part of the section (vv. 23–29), where the similar motive clauses hn( r#) txt / hn( r#) rbd l( occur at the end of the opening and closing cases (vv. 24, 28). Finally, the entire section is united by recurring use of the stem )cm (vv. 14, 17, 20, 22–23, 25, 27–28), which has the force of “finding” or “producing” evidence in vv. 13–22, 27–28.16 The tightly knit structure of Deut 22:13–29 indicates, in my opinion, that this section of laws was conceived and composed as a whole. The laws included may have derived from a variety of sources, but they were carefully selected and compiled for their present context. The unified structure of the section reflects both the integrity of the section and the literary aesthetics of its author, but it also implies that the section as a whole was designed to convey signification beyond that of its constituent parts. In order to appreciate the full significance of the legal collection in Deut 22:13-29 it is necessary to understand the legal options that the scribe excluded from the collection, as well as the rationale that dictated the selection, and the manner in which the author shaped the materials that were adopted. II. Deuteronomy 22:13–29 in Relation to Ancient Near Eastern Laws The marked similarity between biblical and ancient Near Eastern casuistic laws has been subject to many in-depth studies, resulting in a consensus that biblical casuistic law stems from legal traditions common throughout the ancient Near East.17 Moreover, there is good reason to assume that biblical scribes, as part of their scribal training, gained familiarity with ancient Near Eastern law collections, such as the laws of Hammurabi.18 Thus, it is appropriate to compare the laws in Deut 22:13–29 with those in cuneiform collections to see if the latter shed light on the options that were available to the scribe who drafted this section of laws regulating women’s sexuality and marital relations. The specific cases and contingencies that the scribe selected from those belonging to the common legal tradition pre- 16 See Fishbane, Biblical Interpretation, 218. a recent and succinct overview, see Pamela Barmash, Homicide in the Biblical World (Cambridge/New York: Cambridge University Press, 2005), 2–3. 18 See, e.g., Raymond Westbrook, “Biblical and Cuneiform Law Codes,” RB 92 (1985): 257; David Pearson Wright, “The Laws of Hammurabi as a Source for the Covenant Collection (Exodus 21:23–23:19),” Maarav 10 (2003): 11–87; see also Eckart Otto, “Town and Rural Countryside in Ancient Israelite Law: Reception and Redaction in Cuneiform and Israelite Law,” JSOT 57 (1993): 19–22; Barmash, Homicide, 204. 17 For This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. Edenburg: he Deuteronomic Women’s Sex Laws 49 served in the cuneiform law collections—along with the alternatives that the scribe chose to disregard—may help indicate the purpose behind the composition of Deut 22:13–29.19 The Case of the Slandered Bride and False Accusation of Sexual Impropriety None of the ancient Near Eastern laws dealing with false accusation of sexual impropriety parallels the case of the slandered bride presented in Deut 22:13–19. The majority of the cuneiform laws deal with false allegations made by a third party, and only in LH §131 and Deut 22:13–19 does the husband instigate the accusation impugning his wife. However, LH §131 significantly differs from Deut 22:13–19 in ruling that, in the absence of evidence, the charges may be dismissed by means of the woman’s oath of innocence (cf. Num 5:19–23). An accusation of premarital sex is shared only by LL §33 and Deut 22:13–19, but the girl in LL §33 is neither married nor betrothed, and the slander mainly affects the girl’s future marriage prospects. The fact that the girl in Deut 22:13–19 was already married when the libelous accusation was made, adds a component that is missing from all the other cases, namely, the claim of fraud that the girl’s husband brought against her father. More basically, Deut 22:13–21 differs from the comparable ancient Near Eastern laws by including a separate counter-case dealing with the failure to refute the charges of sexual impropriety. In the cuneiform law collections, I have found only two instances in which counter-cases have been added to laws dealing with false accusation, and both are fully governed by the principle of talion (LH §§2, 9–11). If the principle of talion governed both the case and counter-case in Deut 22:13– 21, we would expect that the slandering husband should be subject to the death penalty, which would have been imposed on the girl had the accusation been proved true, or alternately, that the girl’s father should be liable to pay punitive damages for fraud according to the pecuniary penalty imposed on the husband for false accusation.20 Instead, the counter-case dealing with the promiscuous daugh19 The following abbreviations are used for the ancient Near Eastern law collections: HL = Hittite Laws; LE = Laws of Eshnunna; LH = Laws of Hammurabi; LL = Laws of Lipit-Ishtar; LU = Laws of Ur-Nammu; MAL = Middle Assyrian Laws; YOS = Yale Oriental Series. For all laws, see Martha T. Roth, Law Collections from Mesopotamia and Asia Minor (2nd ed.; SBLWAW 6; Atlanta: Scholars Press, 1997). 20 Rofé, “Family,” 136–37; Locher, Die Ehre einer Frau, 315–23; Rothenbusch, “Die eherechtlichen Rechtssätze,” 192 n. 130. According to Pressler (View of Women, 24–25), the husband is not condemned to death since he did not formally accuse his wife before the elders but only spread malicious rumors. Wells (“Sex,” 63–72), argues that both the case and counter-case are governed by the talionic principle, but his arguments depend on viewing the girl’s death as a financial loss This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. 50 Journal of Biblical Literature 128, no. 1 (2009) ter (vv. 20–21) neglects the charges of fraud leveled against her father (vv. 13–19), and places the full weight of the consequences on the young woman. As a result, the ruling in the counter-case has moved away from the premises governing the primary case in vv. 13–19. The counter-case is solely interested in the girl’s full responsibility for maintaining her virginity and gives no consideration to the possible collusion of the father who married her off as a supposed virgin. The inconsistency here in premises between the case of false accusation and its counter-case has led some to conclude that the Deuteronomist artificially attached vv. 20–21 to the paragraph.21 Why, then, did the Deuteronomist add the ruling against the promiscuous girl to the case of false accusation? His motivation may lie in a change in perspective regarding evidence and the burden of proof. Many of the ancient Near Eastern laws dealing with false accusation stress the importance of evidence to substantiate the accusation (LL §33; LH §§1, 3, 9–11, 127, 131–32; MAL A §§17–19), and, according to LH §127 and MAL A §§18–19, the burden of proof lies on the accuser.22 Other laws rule that the accused must swear a judicial oath or submit to trial by ordeal when evidence is lacking (e.g., LU §14; LH §§2, 131–32; MAL A §17).23 However, the Deuteronomic program for cult centralization precluded settling cases by judicial oath or ordeal at a local sanctuary.24 This may explain why the compiler of Deut 22:13–29 avoided recourse to judicial oath or ordeal in the fam- incurred by the father and on taking v. 21 as the maximal, but not mandatory, penalty. If financial considerations were at the core of the ruling, as Wells thinks, they surely would have been better furthered by stipulating restoration of the bride-price along with punitive damages. Wells’s interpretation attempts to harmonize the language of the law with legal practice, even though discretion in extracting the maximum penalty is not implied by the actual wording of vv. 20–21. However, Deut 22:13–21 is a literary artifact and does not necessarily represent actual legal practice. If 22:13–21 is based on the principle of talion, it is surprising that the scribe who drafted the law did not expound the principle in a clearer fashion, as in the cases in LH §§2, 9–11. 21 See, e.g., Anthony Phillips, Ancient Israel’s Criminal Law (Oxford: Blackwell 1970), 115– 16; Rofé, “Family,” 142–43; Otto, “False Weights,” 136. Indeed, the case of the promiscuous young woman might have been formulated as an independent ruling in the Deuteronomist’s sources, (e.g., Mylwtb hl w)cmn )lw hyl) )bw r(n #y) xqy yk, “If a man marries a girl and has sex with her but does not find her a virgin . . .”). In ancient Near Eastern law, however, the premises of the primary case do not always govern the secondary case; see Locher, Die Ehre einer Frau, 61, 110– 16. Merendino (Gesetz, 259) and Wells (“Sex,” 56–72) maintain the unity of vv. 13-21. Either way, the compiler of the collection in Deut 22:13–29 conceived of the case of the promiscuous girl (vv. 20–21) as part of the complete document. 22 See Rothenbusch, “Die eherechtlichen Rechtssätze,” 176–77, 192 n. 130. 23 It is possible that LH §3 and MAL A §18 represent attempts to revise the previous laws (LH §2; MAL A §17) by ruling that accusations must be substantiated by material evidence or witnesses, rather than by ordeal. 24 Bernard M. Levinson, Deuteronomy and the Hermeneutics of Legal Innovation (Oxford: Oxford University Press, 1997), 114–17, 127–30. This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. Edenburg: he Deuteronomic Women’s Sex Laws 51 ily law cases and instead built the collection around cases in which evidence played a crucial role. In combining the case of the promiscuous girl with that of the slandered bride, he established the importance of material evidence when impartial witnesses are lacking. But in this case, the burden of proof falls on the accused, and failure to refute the accusation is taken as “proof ” of guilt.25 By placing the complex scenario of the slandered bride and the promiscuous girl in the opening position of Deut 22:13–29, the Deuteronomist implies that women in general are held responsible for establishing their innocence in charges of sexual misconduct. Extramarital Intercourse of a Married Woman Three cuneiform collections share a common law that stipulates, like Deut 22:22, that if another man is caught in the act of lying with a married woman, both man and woman will be subject to the same consequences (LH §129; HL §§197– 98; MAL A §15). But, unlike Deut 22:22, they extend the rule of equal penalty to the situation in which the husband wishes to pardon his wife or is satisfied with a reduced sentence. This law, shared by LH, HL, and MAL A is concerned primarily with establishing the principle that partners in a criminal act bear equal responsibility and thus equally share the penalty. LH reflects the law’s oldest version, and the editor of the collection might have refrained from adding counter-cases dealing with mitigating circumstances (such as rape) since the variable ruling would detract from the effect of the new legal principle. However, the editors of the Hittite and Assyrian collections felt the need to revise the law by appending additional cases in HL §§197 and MAL A §§12–14,26 which distinguish between consensual inter25 Contrary to Otto, “False Weights,” 137: “in the case of suspected adultery during an inchoate marriage, the man had to prove the alleged offence in court.” See also Sipre Deut. 239: “(they produced) no witnesses to controvert the husband’s witnesses”; so also Rashi and Rashbam. Bruce Wells suggested to me in a private communication that the law might reflect a legal principle according to which the litigants with the best access to evidence are required to produce it in order to prove their case. However, I doubt that this principle governs the present case, since in comparable instances in ancient Near Eastern law the accuser is required to produce witnesses proving his case, e.g., LH §127; MAL A §18 (cf. also LH §1). Thus, in the matter of the slandered bride, the legislator could have required the accuser to produce witnesses to the woman’s premarital promiscuity, rather than requiring the accused to produce material evidence of innocence. 26 MAL A §§15–16 addresses the same matters as §§12–14, but the two sections do not correspond in their rulings, and it is likely that §§12–14 represents a revision of the earlier rulings in §§15–16. Thus, §12 revises §16B by releasing the woman from liability in the case of forced violation; §13 revises the law in §16A that releases the man from liability if the woman initiated the liaison; and §14 revises the ruling in §15 by limiting the man’s responsibility for adultery in consensual relations if he had no knowledge of the woman’s marital status. For a different view of the concentric structure and revision in §§12–16, see Otto, “Das Eherecht,” 265–73; idem, “Die Einschränkung des Privatstrafrechts durch öffentliches Strafrecht in der Redaktion der Para- This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. 52 Journal of Biblical Literature 128, no. 1 (2009) course, for which the woman is held liable, and rape, for which she is not subject to punishment. The guiding principle in these additional cases is based on where the intercourse took place: rape is restricted to acts that occur in the open (the mountains in HL §197a, or the street in MAL A §12), while adultery includes any intercourse that transpires in the privacy of an inn or one of the partners’ houses (HL §197b; MAL A §§13–14), the assumption being that the woman has demonstrated complicity in being secreted with the man in a private place.27 Deuteronomy 22:22, however, was drafted along the lines of the ruling shared by LH §129; HL §§197c–98; and MAL A §15, which does not consider mitigating circumstances nor make any distinction between consensual intercourse and forced violation.28 Deuteronomy 22:22 further shares with these laws the stipulation that the death penalty applies equally to both partners (Mhyn# Mg) when the man and the woman are caught in the act. The fact that they were found in flagrante delicto constitutes evidence of their joint guilt. It is significant that the Deuteronomist chose to base 22:22 on the model of LH §129; HL §§197c–198; and MAL A §15, although the revisions in HL §197a–b and MAL A §§12–14 indicate that alternative models were available, whether they were known through the transmission of an oral “common law” tradition or were studied as part of the scribal curriculum. Moreover, although the Deuteronomist adopted the model provided by LH §129, he dropped the dispensation that allowed the husband to determine the extent of the penalty according to his discretion.29 As a result, Deut 22:22, as formulated, singles out the married woman who has been possessed by her husband, demanding of her an uncompromising sexual exclusivity that admits no exception or extenuating cirgraphen 1–24, 50–59 des Mittelassyrischen Kodex der Tafel A (KAV 1),” in Biblische Welten: Festschrift für Martin Metzger (ed. Wolfgang Zwickel; OBO 123; Freiburg: Universitätsverlag, 1993), 141–42; idem, “Aspects of Legal Reforms and Reformulations in Ancient Cuneiform and Israelite Law,” in Theory and Method in Biblical and Cuneiform Law: Revision, Interpolation and Development (ed. Bernard M. Levinson; JSOTSup 181; Sheffield: Sheffield Academic Press, 1994), 167–68. 27 See J. J. Finkelstein, “Sex Offenses in Sumerian Laws,” JAOS 86 (1966): 362. 28 So also Otto, “Aspects of Legal Reforms,” 190; idem, “False Weights,” 134. Some of the recent readings assume that Deut 22:22 addresses only consensual intercourse, and that the rape of a married woman would have been judged according to the rulings applying to the betrothed girl; see Westbrook, “Adultery,” 549; Pressler, View of Women, 32. These readings employ gap-filling in an attempt to resolve the disparity inherent in the law and to reconcile it with conditions in which married women can fall victim to unprovoked sexual assault. 29 Rofé, “Family,” 147–49; Otto, “Aspects of Legal Reforms,” 191–92. Rofé thinks that the mandatory penalty had practical application and authority. Westbrook (“Adultery,” 545–46) and Willis (Elders, 211–12) take this as a maximum penalty to be applied at the husband’s discretion. Although spousal discretion was undoubtedly respected in legal practice, it is not implied by the language or intent of Deut 22:22; see Stulman, “Sex and Familial Crimes,” 59; Rothenbusch, “Die eherechtlichen Rechtssätze,” 180. If the scribe intended to take spousal discretion into account, he easily could have adopted a model similar to HL §198. This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. Edenburg: he Deuteronomic Women’s Sex Laws 53 cumstances. Thus, any intercourse between a married woman and a man other than her husband was taken to constitute adultery, whether the woman was a consenting partner or not. Violation of a Betrothed Virgin The infraction taken up by Deut 22:23–27, namely, the violation of a virgin for whom the bride-price has been paid but who has not yet been possessed by her husband, is addressed by three ancient Near Eastern laws (LU §6; LE §26; LH §130). Although forcible violation is indicated only in LE §26 and in LH §130, all three laws rule that the man alone is liable, and LH §130 further specifies that the girl is to be released and not held responsible. Unlike Deut 22:23–27, none of these cuneiform laws makes any distinction on the basis of where the act occurred, nor do they hold the girl accountable in any circumstance for her deflowering. On the whole, the paragraph dealing with the betrothed virgin in Deut 22:23–27 bears little similarity to these laws in either form or ruling. Nevertheless, there is an apparent parallel between 22:25–26a and LH §130; both mention the force used by the man in seizing or pinning down the girl, and both emphasize that the man alone shall pay the penalty, while the girl is free of culpability.30 Surprisingly, the distinction made in Deut 22:23–27 between the degree of culpability according to the place of occurrence—town or open country—is paralleled by HL §§197–98 and MAL A §55.31 However, the status of the women in these cuneiform laws differs from that of the betrothed virgin in Deut 22:23–27, since the Hittite law deals with the culpability of married women, while the Assyrian law deals with the rape of an unbetrothed virgin. If the Deuteronomist was familiar with 30 Verse 25: qyzxhw [. . .] )cmy (“he found [. . .] and seized”); cf. LH §130: ukabbilšima (“he pins her down”); v. 26: twm )+x hr(nl Ny) rbd h#(t )l hr(nlw (“Do not do anything to the young woman. She is not guilty of a capital crime”); cf. LH §130: sinništum šî ūtaššar (“that woman shall go free”). The literary parallels raise the question whether the Deuteronomistic scribe might have been familiar with LH as part of the curriculum of the scribal school and might have drawn on LH §§129–30 as a source for vv. 22, 25–26a. This possibility is further supported by the fact that LH §§127–30 vaguely parallel the order of cases in Deut 22:13–27: (a) false accusation (LH §127; Deut 22:13–19); (b) adultery (LH §129; Deut 22:22); (c) rape of betrothed girl (LH §130; Deut 22:23–27). 31 MAL A §55 lists a variety of places where the girl might be assaulted, opening with “whether within the city or in the countryside” (lu ina libbi āle lu ina s ēi re), which is echoed in Deut 22:23–27 in the opposition between “in the town” (ry(b) and “in the countryside” (hd#b). In light of the various literary affinities between Deut 22:13–29 and MAL A, it is tempting to surmise that the Assyrian collection was copied (perhaps in Aramaic translation?) in West Semitic scribal schools. Despite its earlier origin, there is evidence that MAL A was copied in Neo-Assyrian times; see Otto, “Das Eherecht,” 259–62; Roth, Law Collections, 153–54. This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. 54 Journal of Biblical Literature 128, no. 1 (2009) the legal tradition behind the Hittite law, then he chose to transfer the distinction between assault and complicity on the basis of place from the case of the married woman and applied the criterion of place to the case of the betrothed virgin instead. In contrast to Deut 22:23–27, the Assyrian law specifies different places and circumstances in order to affirm the principle that the same ruling holds regardless of the place or the time of the assault.32 The ruling itself penalizes only the man, who must provide for the girl and compensate her father for the loss of the virgin’s brideprice. Thus, MAL A §55 holds that the unbetrothed virgin is blameless if she is raped, regardless of circumstances, even if she was seized in the city. If the Deuteronomist was familiar with the legal tradition behind MAL A §55, then he chose to evoke the opposition between town and countryside in vv. 23–27 for an opposite end—to distinguish between circumstances in which the betrothed girl is held responsible and those in which she is not liable. In this case, the Deuteronomist is interacting with the legal tradition reflected in MAL A §55 in order to establish varying degrees of liability corresponding to the change in the virgin girl’s status, from unbetrothed to betrothed. Thus, the Deuteronomic law establishes an unparalleled distinction in the liability of betrothed and unbetrothed virgins and subjects the betrothed girl to conditional liability for maintaining her virginity even in the face of rape. The Deuteronomist was undoubtedly familiar with the body of legal literature and traditions that were part of the scribal curriculum, which mainly viewed the rape of a betrothed virgin as a violation of the husband’s rights to his wife’s virginity, and therefore limited the penalty to the girl’s assailant. The Deuteronomist’s departure from legal tradition in the case of the betrothed virgin indicates a unique outlook in which she bears unconditional responsibility for protecting her virginity from the time her husband pays her bride-price to the time he takes full possession of her. The tendencies reflected in the selection of materials from the legal tradition and the way they are applied to the betrothed girl are further borne out by the formulation of the laws. Verses 23–24 subject the girl assaulted in the town to the same sentence that is meted out to the promiscuous girl, execution by stoning (vv. 21, 23: Mynb)b lqs). The similar form of the ruling creates an analogy between the girls and implies that the betrothed girl who wanders about the town on her own and who does not resist her assailant by crying out is guilty of promiscuity.33 However, the assumption that the crime would have been averted had she only cried out does not necessarily hold (cf. Judg 19:23–26). The schematic formulation of the case 32 Finkelstein, “Sex Offenses,” 362. Sipre Deut. 242: “Had she not gone out about the town, he would not have assaulted her. But he happened upon her in the town and lay with her, just as a breach tempts a thief. And he lay with her: any intercourse (whether consensual or rape),” and so also Rashi. The formulation of the law furthers this view of the girl’s complicity, since both the protasis and the apodosis of vv. 23–24 are vague about the coercive nature of the act, which is made explicit only in the second motive clause (v. 24aδ). 33 Cf. This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. Edenburg: he Deuteronomic Women’s Sex Laws 55 leads to a vicious catch, for even if she did cry out or resist in any other fashion, the fact that the rapist succeeded in subduing her within the precincts of the town is taken as evidence of the girl’s complicity.34 Moreover, if it is presumed that the girl is held responsible for her rape in the town because she displayed free and easy behavior by roaming the city streets on her own, then why should she not be held accountable for the impropriety of being out alone in the country? On the other hand, if she is cleared of suspicion in the country, since she—like a murder victim—is helpless to withstand her assailant (v. 26b), then why should she be held accountable for being raped in the town?35 Violation of an Unbetrothed Virgin Deuteronomy 22:28–29 is closely related to the similarly drafted law in the Covenant Code (Exod 22:15–16), which has led some to suppose that the Deuteronomic law was intended to revise the law of the unbetrothed virgin in the Covenant Code. It seems more likely, however, that the two laws were conceived at the outset as complementary cases, one dealing with rape (Deut 22:28–29) and the other with seduction (Exod 22:15–16).36 Taken together, Deut 22:28–29 and Exod 22:15– 16 nicely parallel MAL A §§55–56. Both the biblical and the Assyrian laws distinguish between seduction and rape of the unbetrothed virgin; both stipulate that the man compensate the father for loss of the virgin’s bride-price; both assert the father’s right to marry the seduced virgin to whomever he wishes; and both provide a more severe ruling in the case of rape. However, the provisions of both the bibli34 Compare Gersonides’ attempt to reconcile this problem in his comments on v. 24: “she did not cry out in the city—indicating that she was not raped; for had she not given her consent, she could have cried out and people would intervene to rescue her. . . . For ‘in the town’ represents a case of seduction, while ‘in the countryside’ is an example of rape. But we should infer from this (these two cases) that wherever (the rape occurred, if) it was established that she (resisted, i.e.) cried out—even if none came to her rescue—she is exempt (from the penalty), since she committed no sin. (Conversely,) wherever she may be, if she willingly takes part in the act, then she shall be subject to stoning.” A similar approach is recently taken by Rothenbusch, “Die eherechtlichen Rechtssätze,” 158 n. 10, 160. 35 Fishbane (Biblical Interpretation, 217–20) argues that the motive clause comparing rape and murder victims is an interpretative gloss based on Deut 19:11, which was added to justify exonerating the girl in the absence of supporting evidence. See also Gottfried Seitz, Redaktionsgeschichtliche Studien zum Deuteronomium (BWANT 5/3; Stuttgart: Kohlhammer, 1971), 139. However, this overlooks the fact that the lack of exonerating evidence provided the basis for condemning the girl in the main case (vv. 23–24). 36 For the view that Deut 22:28–29 revises Exod 22:15–16, see, e.g., Stulman, “Sex and Familial Crime,” 60–61; Pressler, View of Women, 36–40; Willis, Elders, 214. For the view that Deut 22:28–29 and Exod 22:15–16 are complementary laws, see already Ibn Ezra, and also Rofé, “Family,” 134; Otto, “False Weights,” 131–32. This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. 56 Journal of Biblical Literature 128, no. 1 (2009) cal laws seem to exceed those of MAL A §§55–56. In the case of seduction, Exod 22:15-16 stipulates that the man must not only pay the girl’s bride-price but must also marry her unless the father refuses the match, while MAL A §56 limits the man’s liability to payment of the bride-price. In the case of rape, Deut 22:27–28 imposes marriage upon the rapist, who loses all rights to future divorce; no mention is made of the father’s prerogatives apart from the monetary compensation due him, contrary to MAL A §55, which affirms the father’s right to marry the girl to whomever he pleases. Here the principles behind the Deuteronomist’s selection of materials come into question. There is no doubt that the Deuteronomist was familiar with the law in the Covenant Code regarding seduction (Exod 22:15–16), but, unlike the twin laws in MAL A §§55–56 dealing with both rape and seduction, he chose not to include the case of seduction in the collection he drafted in Deuteronomy 22. Did he neglect the law because he had no intention of revising it? Or, did he deliberately omit it since it allows the father to determine his daughter’s future according to his interests and considerations?37 I think the second possibility more likely, since he also rejected the similar stipulation found in the law regarding the rape of the unbetrothed virgin in MAL A §55. Thus, the Deuteronomist’s selection appears to be motivated by an interest in limiting parental discretion in resolving matters of sexual violation. III. Implications and Conclusions The comparison carried out here demonstrates that the author of Deut 22:13– 29 selected his material from a variety of options available in the common legal tradition. His outlook is evident not only in the selections he made but also in the way he combined his selections, producing new syntheses, as in the case of the betrothed virgin. The material he adopted was worked into a complex, unified literary structure, and he added motive clauses in order to expound the rationale for his rulings. One of his sources was the Covenant Code, but he chose to omit the single law there dealing with sexual violation (Exod 22:15–16) and placed in its stead the complementary case of the raped unbetrothed virgin. In addition, he probably had access to an unofficial collection of actual rulings, similar in purpose to MAL A.38 Like the Assyrian laws, such a collection undoubtedly reflected contingencies arising in daily life and might have circulated for a considerable time as part of the scribal curriculum. The selective nature of the collection in Deut 22:13–29 implies that the author did not compose this assortment of laws in order to document rulings or to for37 See Otto, “False Weights,” 133. the purpose and source of MAL A, see Otto, “Die Einschränkung des Privatstrafrechts,” 132, 165–66; idem, “Aspects of Legal Reforms,” 163–68. 38 On This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. Edenburg: he Deuteronomic Women’s Sex Laws 57 malize them as authoritative and binding legislation to be followed in dispensing justice. Instead, I propose that this selection of women’s sex laws was drafted in order to expound ideology, that is, a specific value system stemming from a mindset that seeks to establish its views as normative for society. It is significant in this regard that the formula “expunge the evil” occurs three times in Deut 22:13–29 (vv. 21, 22, 24). Elsewhere, the formula occurs in the context of both social (17:12; 19:13, 19; 21:9, 21; 24:7; cf. 19:20) and religious (13:6; 17:7; cf. 13:12) violations. By stamping these laws with the injunction to “eradicate the evil from your midst,” the author implies that their purpose is to ensure the integrity of the social fabric, which may be blemished and undermined by the presence of wrongdoing. The threefold recurrence in Deut 22:13–29 of the formula, in its different variations in Deut 22:13–29, is nearly matched by the double recurrence in separate contexts dealing with apostasy (13:6; 17:7; cf. 13:12, “cease to do this evil thing in your midst”), as well as with homicide (19:13; 21:9). The concentration of the formula in the women’s sex laws implies that maintaining the proper relations between the sexes—particularly with regard to the uncompromising fidelity incumbent upon women to maintain toward their patron, be he father, present husband, or future spouse—is as critical to preserving the proper social order as maintaining exclusive fidelity to Yhwh. Leniency was conceivable only when the girl had not yet been promised in marriage (22:28–29) or when she had not yet been possessed by her husband, and no evidence—either of guilt or innocence—could be produced, owing to the lack of witnesses (vv. 25–27). Indeed, in concept and execution, the collection of women’s sex laws bears affinities to the laws against apostasy in Deut 13:2–18; 17:2–7.39 Like the collection of sex laws in Deut 22:13–29, the apostasy laws in ch. 13 are arranged in a graduated structure according to severity of case. Verses 2–6 deal with open incitement by one claiming to receive divine revelation, who is sentenced to death by unspecified means, as is the married woman discovered in flagrante delicto with another man in 22:22. Deutonomy 13:7–12 presents the case of covert incitement to apostasy by a member of the immediate family, who is to be stoned by the entire community, as is the promiscuous girl who presumably kept her loss of virginity secret (22:21); in both cases, the actions of the guilty party are liable to implicate the entire family. Finally, an entire community is implicated in the crime of submitting to incitement in the case stated in 13:13–18, which can only be amended by eradication of the offending community. Likewise, the law dealing with assault in the city (22:23–24) implies that, were rape to transpire in the town, the entire community 39 Rofé, “Family,” 142–43; see also Merendino, Gesetz, 259. In addition to the formula “expunge the evil,” both sex and apostasy laws share expressions that occur nowhere else in Deuteronomy: Mynb)b lqs (Deut 13:11; 17:5; 22:21, 24; cf. 21:21: Mynb)b Mgr); rbdh Nwkn tm) hnh / hzh rbdh hyh tm) M)w (13:15; 17:4; 22:21); hyb) tyb xtp / (ry(h) r(# l) )ycwh (17:5; 22:21, 24; cf. 21:19: wmwqm r(# l) )ycwh). This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. 58 Journal of Biblical Literature 128, no. 1 (2009) would be implicated in the crime; therefore, the failure of the woman to resist her assailant is considered tantamount to submission. In light of these similarities in outlook and language, it is likely that both the apostasy laws and the compilation of family laws in Deut 22:13–29 stem from the same source—whether a single author or a group of scribes sharing the same ideology and means of expression.40 The careful formulation of the family laws in Deuteronomy 22 is designed to demonstrate the idea that the integrity of the social structure is dependent on women’s exclusive fidelity to their patrons, just as the people as a whole are committed to exclusive fidelity to Yhwh. Thus, the scribe responsible for the collection of sex laws broke the tradition of talionic retribution in the ruling for the case countering that of false accusation (22:20–21), since his interest was to condemn premarital promiscuity and to affirm the principle of exclusive sexual fidelity, even toward a yet unknown, future husband. So also, the laws in 22:20–21, 23–24 rule that judgment is to be executed at the entrance to the place implicated by the girl’s act. Only thus is exoneration obtained for the group implicated by her misconduct. Furthermore, in drafting the law in 22:23–24, the scribe played down the element of rape implicit in the case, retaining it only in the clause explicating the man’s sentence, and all this in order to justify the severity of the sentence pronounced upon the young woman. Undoubtedly, the laws in Deut 22:13–29 contain elements of judicial reform. The Deuteronomistic scribe envisions the abolition of private law in favor of the authority of the local governing body (the town elders),41 and these laws do override the legal tradition that accorded the father or husband the right to determine the sentence in cases of family law. The scribe also avoids applying judicial oath or ordeal to family law cases that lack clear evidence, since cultic adjudication would necessitate referral to the central sanctuary. To this end, he elevates the role of evidence in determining rulings, but circumvents the problems arising from lack of evidence by placing the burden of proof upon the accused. Thus, in the family laws in Deut 22:13-29, lack of exonerating evidence is tantamount to evidence of guilt. These judicial reforms probably originated with the program of centralization carried out during the rule of Josiah as reflected in the Deuteronomistic narrative in Deut 1:13–17, in which Moses—Josiah’s alter-ego—acts the part of king in designating state-appointed judges.42 However, the uncompromising nature of the 40 See Rofé, “Family,” 142–43. ibid., 144–45; Stulman, “Sex and Familial Crimes,” 53–62; Frank Crüsemann, The Torah: Theology and Social History of Old Testament Law (trans. Allan W. Mahnke; Minneapolis: Fortress, 1996), 252–59; Otto, “Aspects of Legal Reforms,” 191. Rofé (“Family,” 132, 143) and Levinson (Deuteronomy, 125–26) hold that the elders were replaced by the state-appointed judiciary in the Deuteronomic edition (Deut 16:10–20), while others hold that the elders retained their authority over family law; see, e.g., Moshe Weinfeld, Deuteronomy and the Deuteronomic School (Oxford: Clarendon, 1972), 234; also Willis, Elders, 35–86. 42 See Levinson, Deuteronomy, 110–43. 41 See This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. Edenburg: he Deuteronomic Women’s Sex Laws 59 laws in Deut 22:13–29 mark them as part of a utopian program in which the demand for absolute fidelity replaces consideration of exigent circumstances and contingencies.43 This suggests that the laws presume an ideal and zealous lawgiver rather than a real political figure. In my view, the vacuum in leadership following the fall of Judah provides the most likely sociopolitical situation in which this ideal developed. Throughout the period of the monarchy, the idea of divine kingship provided the ideological basis for political authority, since the earthly king was viewed as the chosen regent of the divine king (2 Sam 7:6–16).44 With the collapse of the political structures and the loss of autonomy, the ideal of divine kingship emerged from the cover of cosmic myth to fill the place left vacant by the demise of political leadership. This ideal developed alongside a reevaluation of Israel and Judah’s political history, which now held that Yhwh was not merely the source of the earthly king’s authority but had actually been the true king of Israel all along (Judg 8:23; 1 Sam 8:7; 2 Kgs 17:15– 18).45 The Deuteronomic scribes had already begun to depict Yhwh’s kingship along the lines of an Assyrian sovereign whose demands of total allegiance by his subjects are expressed by the concepts of love and fidelity (e.g., 4:4; 10:20; 11:13, 22; 13:4–5; 30:20).46 Following the conquest of Judah, Deuteronomistic scribes reinterpreted the political history of Israel and Judah and explained the loss of independence as the result of infidelity to Yhwh, which the Deuteronomists depicted in both political and marital terms.47 43 Contrary to Rofé, “Family,” 151, who limits the utopian legislation to 21:18–21; 22:20–21. 44 See Frank Moore Cross, Canaanite Myth and Hebrew Epic: Essays in the History of the Religion of Israel (Cambridge, MA: Harvard University Press, 1973), 238–65. 45 See Steven L. McKenzie, “The Trouble with Kingship,” in Israel Constructs Its History: Deuteronomistic Historiography in Recent Research (ed. Albert de Pury et al.; JSOTSup 306; Sheffield: Sheffield Academic Press, 2000), 286–314 = Israël construit son histoire [Geneva: Labor et Fides, 1996]); idem, “The Divided Kingdom in the Deuteronomistic History and in Scholarship on It,” in The Future of the Deuteronomistic History (ed. Thomas Römer; BETL 147; Leuven: Leuven University Press, 2000), 135–45; Thomas Römer, The So-Called Deuteronomistic History: A Sociological, Historical and Literary Introduction (London/New York: T&T Clark, 2005),139–64. 46 See William L. Moran, “The Ancient Near Eastern Background of the Love of God in Deuteronomy,” CBQ 25 (1963): 77–87; Moshe Weinfeld, “Covenant Terminology in the Ancient Near East and Its Influence on the West,” JAOS 93 (1973): 190–99; idem, “The Loyalty Oath in the Ancient Near East,” UF 8 (1976): 379–414. 47 Timo Veijola, “Wahrheit und Intoleranz nach Deuteronomium 13,” ZTK 92 (1995): 287– 314; see also Paul-Eugène Dion, “Deuteronomy 13: The Suppression of Alien Religious Propaganda in Israel during the Late Monarchical Era,” in Law and Ideology in Monarchic Israel (ed. Baruch Halpern et al.; JSOTSup 124; Sheffield: Sheffield Academic Press, 1991), 147–216; Eckart Otto, “Treueid und Gesetz: Die Ursprünge des deuteronomiums in Horizont neuassyrischen Vertragsrects,” ZABR 2 (1996): 1–52. Deuteronomy 13:2–18 is variously viewed as an exilic composition (Veijola), a Josianic composition (Dion), or a Josianic composition (13:2–12) further expanded in the Babylonian period (Otto). This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org. 60 Journal of Biblical Literature 128, no. 1 (2009) While Deut 17:2–3 employs political metaphors to express deliberate transference of allegiance, for example, tyrb rwb(l (violate a treaty), db( (serve another sovereign), -l wxt#h (make obeisance to),48 13:2–19 envisions infidelity resulting from incitement or enticement to stray, in a fashion similar to seduction (v. 7: tysh [incite]; vv. 6, 14: xydh [entice to stray]). The Deuteronomist appears to draw a two-way analogy between marital fidelity and the fidelity due the sovereign, and he applies both to the nature of the relations Yhwh demanded of the people.49 The demand of total allegiance is shared by both marital and political metaphors, and infidelity can be conceived of as resulting only from deliberation (as in adultery) or from enticement (as in seduction). Yhwh himself is depicted as a “jealous god” ()nq l) [Deut 4:24; 5:9; 6:15; cf. Josh 24:19]); he is likened to a husband who entertains suspicions regarding his wife’s fidelity (see Num 5:14, 30). This outlook cannot admit the possibility that the subservient partner in an alliance may be coerced by a third party to breach the terms of the pact. In any event, even if he was subject to coercion, he alone is held responsible for violating the pact and must therefore bear the full consequences. Similarly, the consummation of marriage by means of sexual relations created bonds of exclusive intimacy. The Deuteronomist appears to have concluded that the subservient partner in the marriage pact was responsible for maintaining a total fidelity that admitted no exception, even in the face of coercion.50 I suggest that this stand on the part of the Deuteronomist stems from the analogy between the marital bond and the political alliance as applied to Yhwh’s relations with his people. Thus, the Deuteronomist held that the degree of fidelity a woman owed to her present or future husband was no less than that which the people owed to Yhwh; in neither case would coercion be considered a mitigating factor.51 48 For political contexts of db(, see, e.g., 1 Sam 11:1; 1 Kgs 12:4; 2 Kgs 17:3; 24:1; and for -l wxt#h, see, e.g., 1 Sam 24:8; 2 Sam 8:24; 1 Kgs 1:23. 49 See Ehud Ben-Zvi, “Observations on the Marital Metaphor of Yhwh and Israel in Its Ancient Israelite Context: General Considerations and Particular Images in Hosea 1.2,” JSOT 28 (2004): 370–71; Crüsemann, Torah, 258. 50 Westbrook, “Adultery,” 557; Otto, “False Weights,” 134; for a similar outlook in Assyrian law, see Martha T. Roth, “Gender and Law: A Case Study from Ancient Mesopotamia,” in Gender and Law, ed Matthews et al., 183. 51 See Rofé, “Family,” 149 n. 46; Otto, “False Weights,” 141. This article was published in JBL 128/1 (2009) 43–60, copyright © 2009 by the Society of Biblical Literature. To purchase copies of this issue or to subscribe to JBL, please contact SBL Customer Service by phone at 866-727-9955 [toll-free in North America] or 404-727-9498, by fax at 404-727-2419, or visit the online SBL Store at www.sbl-site.org.