Family Offences in Biblical Law

Jubilee Centre, December 2005

In the last issue of Engage we addressed the three dominant themes in the recent reform of sexual offences legislation: consent, equality and protection. In this article we will consider how these themes are treated in biblical law as well as additional categories that inform the approach of Biblical law to sexual offences.

Before doing so, it is necessary to mention the formation of marriage in early Israel. Westbrook identifies four stages. [1] First, parents commence negotiations with the family of the bride, even in cases where the son chooses his own bride (e.g. Genesis 34:4; Judges 14:1–5). Second, as soon as the groom has brought the marriage present to the bride’s father, and this has been accepted, the bride is betrothed to the groom. Unlike engagement today, betrothal was a kind of ‘inchoate’ marriage which changed the woman’s legal status and conferred the protection of a fully married woman. Third, the groom claims the bride. Finally, the marriage was completed when the father-in-law provided a banquet before delivering his daughter to the groom (e.g. Genesis 29:22).

Consent

THE ‘RAPE’ OF DINAH This story in Genesis 34 is often referred to as the ‘rape’ of Dinah, on the grounds of v. 2: ‘he seized her and lay with her and humbled her’. Later in the narrative, however, her brothers rhetorically ask their father: ‘ Should he [Shechem] treat our sister as a harlot?’ Because prostitutes provide consensual intercourse, this question might imply there is consent on the part of Dinah. On this view, Shechem’s offence is not simply one of rape but that he does not follow the customary steps in the formation of marriage as noted above. He reverses the normal procedure by having intercourse with Dinah before opening negotiations via his father.

At this point in the biblical period, intercourse is not regarded as inherently creating betrothal although it is an act that should lead to very serious negotiations. This is the reason why ‘ Hamor the father of Shechem went out to Jacob to speak with him’. The reader expects negotiations between the house of Jacob and the house of Hamor, leading to settlement and damages. Dinah herself would not have been the subject of the damages because it is Jacob’s lack of consent that is at the heart of the offence. However, instead of reaching a settlement the sons of Jacob embark upon a course of vengeance.

THE RAPE OF TAMAR Unlike Genesis 34, the story of the rape of Tamar by her step-brother, Amnon, in 2 Samuel 13 makes absolutely clear that the intercourse is non-consensual. In the light of this, Tamar’s initial response to Amnon’s advance is interesting. She asks him to regularise the intercourse: ‘Now therefore, I pray you, speak to the king; for he will not withhold me from you.’ She is afraid that Amnon will have intercourse with her without first opening negotiations with David. She pleads with Amnon to enable a marriage to be formed and consummated in the customary manner. Amnon refuses, but even after the rape, Tamar hopes that the intercourse might subsequently lead to a full agreement to betrothal . Amnon’s refusal to countenance such a possibility, and hence to regularise the intercourse, is seen by Tamar as a worse offence than the rape itself.

All of this seems to be confirmed when we consider the law in Exodus 22:16–17: ‘If a man seduces a virgin who is not betrothed, and lies with her, he shall give the marriage present for her, and make her his wife. If her father utterly refuses to give her to him, he shall pay money equivalent to the marriage present for virgins.’ Again, this is not a ‘rape’ case, rather, it is a case of an unconventional marriage.

Unlike modern law, then, biblical law looks beyond individual consent to include the consent of the father and, by extension, other family members who may have an interest in negotiating terms of marriage.

Equality

As applied to sexual offences reform, ‘equality’ means identifying classes of sexual behaviour within which it is not possible to make distinctions for the purpose of applying criminal sanctions.

We can see that, in this sense, there is a concept of equality in biblical law that contributes to the structuring of sexual offences. Unmarried and unbetrothed women (or men who have relations with them) are treated equally in the sense that no formal sanction attaches to them personally for their sexual behaviour. By contrast, women who are married or betrothed (or men who have relations with them) will be punished for sexual wrongdoing.

Protection

Unlike modern law, which relies on legal sanction where an individual (a child or a mentally disordered person in particular) does not have the capacity to give consent, one of the main ways in which biblical law sought to protect the vulnerable from sexual exploitation was by conferring the status of marriage. The typical threat to marriage was adultery.

ADULTERY It is noteworthy that the typical case of adultery in biblical law is committed by a married man with a married woman; ‘adultery’ per se does not appear to be committed by a married man with an unmarried woman because, presumably, no male interest is threatened thereby. It follows that the married woman enjoys a more elevated status and to this extent greater protection in ancient Israel, compared to the unmarried woman, because sexual relations with her are treated more seriously. Her increased status brings increased responsibility and consequently she (along with the male offender) is liable for a capital crime whereas the unmarried woman (as well as the man with whom she has relations) is not.

PATERNITY NOT VIRGINITY This is consistent with the relative lack of concern in biblical law with virginity. It is usually claimed that Deuteronomy 22:13–21 shows that a high value was placed on virginity and that the absence of premarital virginity was a capital matter. But the literary structure of Deuteronomy 22:13–29 suggests that the primary concern of vv.13–21 is whether or not the girl had intercourse during the period of betrothal, which would make her offence one of quasi-adultery. The so-called ‘proof of virginity’ (as in e.g. the NIV) may, rather, be understood as ‘evidence of menstruation’ – in short, a pregnancy test. On this reading, Deuteronomy 22:13–21 is concerned to clarify the paternity of a child born shortly after marriage. In addition to its concern for vulnerable individuals, biblical law thus demonstrates a wider concern to protect marriage and family as social institutions.

Lessons from Leviticus 20

IDOLATRY AND COMMUNITY The structure of Leviticus 20, which mirrors the Decalogue, indicates that it recognises sexual disorder as essentially symptomatic of idolatry. In contrast to the rather sterile and individualistic category of consent, there is also a community aspect to sexual ethics in the Bible.

I n the prohibition of child-sacrifice to Molech (20:2–5) there is a clear responsibility upon the community to purge the land of wickedness. Where they fail through ‘closing their eyes’ to duly punish, God will ‘set his face’ against that man and his family. The community as a whole risked punishment if it failed to punish such offenders. This reflects the concern for marriage and family as institutions and the wellbeing of the nation as a whole, including its vocation (20:24) and covenant relationship with YHWH (20:26).

HONOURING PARENTS It is hugely significant that the list of sexual offences in 20:9–21 is presented as a literary whole and is preceded by a negative reiteration of the command to ‘honour your father and mother’. This indicates that the sexual offences which follow are prototypical of what it means to ‘curse’ father or mother, that is, to reject their authority. In other words, sexual offences are defined explicitly in terms of the family and, conversely, the boundaries of the family in terms of sexual offences. 20:19, for example, is unique in the chapter because it does not carry a penalty. This is because it is a hard case that stands at the edge of what constitutes ‘near kin’ or ‘family’ in early Israel as far as sexual ethics is concerned. Using the categories of biblical law, therefore, it is more appropriate to speak in terms of ‘family offences’ than ‘sexual offences’.

FORMS OF ADULTERY Just as the prohibition of Molech worship relates to the first commandment and ‘cursing parents’ to the fifth, so the prohibition of adultery evokes the Decalogue and in 20:10 heads the list of family offences. Adultery, or forms of adultery, therefore is the frame within which family offences are conceived. A similar approach to classification may be found in the New Testament. What we nowadays refer to as ‘sexual fantasy’ may perhaps be regarded by Jesus not as a distinct category but as another form of adultery (Matthew 5:27–28). This form of classification challenges our tendency to over- or underrate certain sexual sins.

At the same time 20:9–16 presents the following behaviours as progressively distant from the norm: (1) homosexual relations, (2) marriage between a man, a woman and her daughter and (3) relations between humans and animals. It is striking how this sequence mirrors modern social trends

Conclusion

Biblical law, like modern law, operates with concepts of consent, equality and protection. However, it employs additional categories such as: idolatry; community protection; honouring parents; adultery; ‘forms of adultery’ as well as a general concern for the order of creation and the institutions of marriage and family. Marriage is the central image of a good sexual relationship and everything else is defined in relation to it.

The structural similarity of Leviticus 20 to the Decalogue indicates that the primary issue is idolatry and the secondary issue is the offender’s relationship with his father and mother. This order of priorities sees sexual misbehaviour as raising two key questions: what does it suggest about the offender’s relationship with YHWH and, second, what does it suggest about the offender’s relationship with his or her father and mother? By setting limits to sexual expression and suggesting that sexual deviancy is an expression of spiritual and familial dysfunction and a threat to the wider community, Leviticus 20 is a world apart from the modern tendency to affirm sexual minorities in the name of cultural liberty.

This article is based on a forthcoming report by Dr Jonathan Burnside for the Jubilee Centre.

[1] Raymond Westbrook, ‘Biblical Law’, in N. S. Hecht, et al. (eds.), An Introduction to the History and Sources of Jewish Law , Clarendon Press, 1996, pp.1–13.

 

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Category: News and Reviews

December, 2005

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