Scripture: Deuteronomy 22:28-29 and Exodus 22:16-17. Is the titled question true? Or are there circumstances that clarify what was really going on? A parallel case in colonial Philadelphia is also included here.

In culture of arranged marriages, boys and girls sometimes transgressed the norms and ran ahead of the negotiations between the two fathers. They had sex, whether the boy “came across” her and “took hold” of her or he gradually seduced her. How was their mistake resolved? The Torah steps in and guides the judges and her father.

If you would like to see many translations, please go to biblegateway.com. As usual, I write to learn.

Let’s begin.

Scripture

²⁸ Suppose a man comes across a virgin who is not engaged and takes hold of her and sleeps with her and they are discovered. ²⁹ The man who has slept with her must pay her father fifty shekels of silver and she must become his wife. Because he has humiliated her, he may never divorce her as long as he lives. (Deut. 22:28-29, NET)

Commentary

I like to number my main points, for clarity and conciseness.

(1) We must get the cultural context, first. The vast majority of people in ancient Israel lived in agrarian communities or small towns with a “cottage” industry or products made from their homes (a cottage of sorts), like weaving and growing a garden. The towns were tightly packed, house abutting house. The people knew each other.

Remember the noble woman of Proverbs 31? Here are some verses in the long passage that speak so highly of her:

Note that her husband is well known in the village. She also has her own “home business,” a “cottage industry.” Because of her business, she too is well known in her community. Now imagine that this hard-working, virtuous matron and her husband have a daughter who is marriageable but is not engaged because her father has not yet arranged a match with a neighboring father of a young man.

So, please, let’s not picture a huge modern city where a rapist goes from bar to bar looking for his next victim. The context is social intimacy in Scripture, as we will see below in other cases (points five and seven).

(2) Notice in v. 28: “If they are discovered.” That is, if they are found having sex. This fact directs the situation away from a forcible rape against her will. This looks like a seduction by a neighbor by a neighbor boy (or maybe mutual seduction?).

(3) The words “who is a virgin but not engaged to be married” mean that the offense is against a girl who is not contracted to marry someone. In the previous verses, cases are set out in which the girls are betrothed (a serious engagement with negotiations and a contract). They are treated as married, so the penalty for adultery will be irreversible. Here, in contrast, the girl is not yet engaged, so the penalty for misconduct will be different, indicating that the boy thinks she is available and can be seduced.

(4) However, the NET says: “Suppose a man comes across a virgin who is not engaged and takes hold of her” […]. The phrase “takes hold of her” is important. Does it mean forcible rape or just an expression for close contact during sex? The NET commentators say in note 52 that it is the Hebrew verb taphas, which means “seize” or “grab.” Then they refer to verses where it has the meaning of “to capture” or “to arrest” or “to attack.” Yet in other verses it means to “hold” or “handle,” as in an object, like a musical instrument, a weapon, or a scroll.

Also, this verse is the only case where it is used of a woman (as a direct object) in a sexual context. So the commentators carefully analyze the context and conclude, cautiously, that this may be the only time where taphas does not mean sexual assault, but the close physical contact of sex (“taking hold”).

The verb is also used in Gen. 39:12, where Potiphar’s wife grabs hold (taphas) of Joseph’s garment, but it is in the context of seduction, within a household. Please note that they knew each other really well. The context was intimate. They were not strangers.

(5) In Gen. 34:1-7, Dinah, a daughter of Jacob by his first wife Leah, is seduced and is forced to have sex with Shechem the Hivite (not of the circumcised Chosen People). The verb for assault here is anah (“humiliation by rape”), which has a narrower meaning than taphas. After the act, he fell in love with her and asked his father, Hamor, to arrange a marriage to her with Jacob. But it was not to be. Dinah’s brothers took revenge and killed the men of that community. The bottom line in this fifth point is that the verb taphas, in contrast to anah, may not mean rape in Deut. 22:28-29, but has an expanded meaning, “to take hold of.”

(6) When the verb taphas appears in contexts after the Law of Moses was written, it is not used of rape. Instead, the verb chazaq (pronounced khah-tsak) is used, and the word does indeed mean rape (HT: Katie McCoy). It is much narrower in scope, while the verb taphas has a broader meaning, depending on the context.

(7) Let’s look at another biblical case (2 Sam. 13). Amnon, son of David, raped (anah) his half-sister Tamar, yet she was not compelled to marry him because her father, David, was angry and of course would not allow it (2 Sam. 13:21). Yet she wanted to go through with it and marry him, anyway. But why? Because being childless and husbandless was a very serious social humiliation back then. She would rather be married to a lout (and half-brother) than be unmarried and childless. However, Tamar’s full brother took revenge for her and had Amnon killed (2 Sam. 13:32-33), so the story about any (unrealistic) marriage ends there.

And please note that the Bible does not endorse this sordid case; it merely reports it.

And so there is no case in the entire Bible that the girl had to marry her “rapist” against her will.

To highlight one main point in this case: The violation happened in an intimate social context. The parties knew each other. Likewise, we must not believe that in Deut. 22:28-29 the boy was an unknown serial rapist going from village to village looking for his next victim, as we see in the crime shows nowadays. Rather, it is much more probable that the boy, the girl, and their fathers lived near each other, came in close contact, and knew each other.

The same is also true of Shechem, who violated Dinah (point no. 5). Even though she did not live in the same vicinity, they were close enough so that Shechem’s men tried to arrange marriages with Israel’s daughters.

In both cases the fathers were involved (or Jacob / Israel was consulted), and the violated girls did not have to marry their rapists (see Exod. 22:16-17, below, under the fourteenth point).

(8) Now let’s return to Deut. 22. In v. 25, a man meets an engaged (or betrothed) woman and rapes her. The Hebrew verb is again chazaq, and it clearly means forced sex or sexual assault. The crime was committed in the countryside, and the woman’s screams could not be heard, so only the man is guilty. Now, back in our v. 28, the man and woman are “discovered,” but she did not yell for help, once again indicating consensual sex in the vicinity of the families, not out in the field away from people. In contrast to chazaq, the verb taphas may merely meaning “taking hold,” instead of sexual assault, and the author of Deuteronomy wants us to see the nuanced differences between the two verbs in those two verses.

(9) In v. 29, the penalty imposed on the man is lesser than the previous cases, where he is put to death, indicating again that the act in vv. 28-29 was consensual, so he is not put to death. Yet a counter to this answer is that the girl is not betrothed, so adultery was not done, but premarital sex was committed. Therefore the penalty is not death.

(10) The clause “they are discovered” at the end of v. 28 is also used in v. 22, and there the scenario is consensual sex. This is one more hint that in vv. 28-29 the “get together” was consensual.

(11) The penalty of not allowing the man to divorce her for his lifetime is the same as the man who slanders his wife as impure, without evidence (v. 19). The slanderer must take care of her and never divorce her. So also here in v. 29, the boy must not slander her by claiming she is no longer a virgin, because he is the one who took her virginity (!). The young man must marry the young woman and not be allowed to divorce her but must take care of her. This eliminates her severe social shame of childlessness and no marriage.

(12) It was the day of arranged marriages and bride-prices, which the man paid to the girl’s father. Fifty shekels of silver is a huge amount, so no doubt the young man will be working off his penalty for many years to come, within the girl’s father’s household. If the seducer did not really love the girl, but is now working in her father’s household, this will put a chilling effect on all other seducers in the village or farming community. Think twice before you act.

(13) Why does v. 29 say he “violated” her? This means that her virginity has been taken from her, and now she has a “reputation,” which will lower her bride price. He violated her entire household. More likely, though, she will not be able to get married, at all. For her entire life, she has been doomed to being an old maid without children. Being unmarried and childless at that time was a terrible social reproach. And this explains why the seducer must marry her and will never be able to divorce her.

(14) There is another important parallel passage that throws some light on this case, as follows:

¹⁶ “If a man seduces [pathah] a virgin who is not engaged to anyone and has sex with her, he must pay the customary bride price and marry her. ¹⁷ But if her father refuses to let him marry her, the man must still pay him an amount equal to the bride price of a virgin. (Exod. 22:16-17, NLT)

The important two points in those two verses are (a) it is a case of seduction and (b) the father has a say in the matter. He may not allow the man to marry his daughter, yet the seducer must still pay the bride price. It is not a stretch to believe that in Deut. 22:28-29, the father and the judges would also have the final say in whether it was a seduction or “taking hold of her” in the sense of force. Either way, the father may not allow the seducer (or rapist) to marry his daughter. But the man still has to pay a huge fine.

We saw in the cases of Dinah and Tamar that the violated women did not have to marry their rapists, and they were not seduced; they really were sexually assaulted. So this takes the scenario to a more serious level than what is seen in Deut. 22:28-29. Their fathers Jacob and David knew about the crime, so they were involved. Therefore, it is probable that the girl’s father in Deut. 22:28-29 was also involved and may enforce the law and require the man to marry his daughter and pay the fine, or he may insist that the seducer (or rapist) pay the fine by working for him without marrying his daughter. If the young man could pay the fine on the spot, then the father may send him away.

In short, it is impossible to believe that the girl’s father would not be involved in the case.

Comparative Case: The rape of Elizabeth Henbury in colonial Philadelphia

Dateline: Philadelphia, Oct. 11, 1700.

Elizabeth Henbury claims that William Smith “raped” her. Yet he eventually married her. Did she seduce him and claim he raped her (think of Joseph and Potiphar’s wife), so he would be compelled to marry her? Or did he commit sexual assault? It looks like a case of seduction because they got married, secretly, while he was sitting in jail. It may that a case of mutual seduction because she really liked him. Yet she claimed rape at first. 

Let’s look at the actual transcript. The blanks are original, but the second entry in December reveals their first names. William Penn himself presided over the Provincial Council, which heard the case. The local justice of the peace must have referred it to the Council, since the case may have been too difficult to resolve.

Modernized transcription begins:

_____ Smith, father to _____ Smith is in jail upon suspicion of a rape committed on ____ _____, desired his son might be bailed;

Whereupon the attorney being heard for the king [America was under the king of England, and this attorney represented the government], and David Lloyd for the said Smith [Lloyd was the attorney for the accused].

It was by the Governor and Council ordered that he continue prisoner till the Proprietor and Governor’s return from the Assembly at New Castle, to be held there the 14^th instant [1700].

Transcription ends.

So the boy has to remain in jail, for now.

Now we get some resolution, next.

19 December 1700

Wm Penn

Edward Shippen, John Moll, Thomas Story, Samuel Carpenter, Humphrey Murray, all Esquires

Modernized transcription begins:

Application being again made to this board by Wm. Smith, in pursuance of the petition formerly given in that his son Wm Smith, prisoner in the county jail of Philadelphia for a rape, might be admitted to bail, the rigor of the season and the length of time by his not being brought to trial in Sept. last, rendering his confinement extremely hard and scare supportable.

John Moore, Attorney General for the King and David Lloyd for the prisoner appeared.

It was pleaded by David Lloyd in behalf of the prisoner that felonies had often been bailed, though felony of death.

Objected by the King’s Attorney that this was only where the presumption of innocence was strong, which here was the contrary, but continued to say it was his opinion he might and ought to be bailed as the case now stood, for that it would scarce be possible to convict him for want of evidence, he having clandestinely married the woman in prison he committed the rape on, and as they are now one flesh, she could give no evidence against her husband.

Elizabeth Henbury, the woman herself, was sent for, and appearing she confessed her former evidence given before Edward Shippen;

As also that she was since married, to which she says she was persuaded to save the man’s life, and a certificate of their marriage under the hands of 13 persons was produced, which, though not legal, must invalidate the evidence or take off the force of it.

Ordered:

Thereupon that Edward Shippen take bail by recognizance of the father and son, in the sum of five hundred pounds, for the said prisoner’s appearance at the next provincial court at Philadelphia, etc.

Unfortunately, I have been unable to find the outcome, but the pair did get married, and it looks like he was released on bail. Let’s hope the marriage was successful.

The Rape of Elizabeth Henbury

The Torah provided similar guidance and a resolution, in its own ancient cultural context.

How does our knowledge of the Bible in its own context of the ancient Near East grow?

Though it is surprising to our modern ears, these verses are purposed to protect the girl, because no one would marry her after the act of unmarried sex. We can apply the general principle–protection.

Further, in the ancient Near East, people lived in close proximity, in communities. The boys and the girls saw each other working out in the fields or from their homes. They knew each other. Once in a while, a boy “took hold” of a girl and had sex. Whether it was seduction or a “rape” (like Miss Henbury claimed), now what? The Torah stepped in and clarified the options for the judges and father. No doubt both fathers knew each other. This was an arranged marriage, but this time, the law arranged it for them. The boy had to marry her. He had to pay a huge fine, which most likely required him to work for his new father-in-law for a long, long time. The boy had to take responsibility for his actions.

However, we saw in the cases of Dinah and Tamar that their fathers did not permit their daughters to marry their rapists, even before their brothers intervened and killed the rapists. It is likely that in Deut. 22:28-29, as we saw in the parallel verses in Exod. 22:16-17, the father had the final say. If the boy and the girl knew each other, which is very probable in ancient Israel because people lived in close-knit communities, then the father may have required the seducer (or violator) to marry her. Arranged marriages and bride prices happened back then. This would not have been seen as outlandish, culturally speaking. Or, per Exod. 22:16-17, he may have taken the fine and sent the boy away without demanding that the boy marry his daughter.

So the Torah provided a reasonable solution, for its own times. Let’s not be chronological snobs and sneer at this ancient book. It regulated people’s sins on its own terms and in its own culture.

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