So I thought I would make a whole post...
One of the big problems with looking at God's law is that we have a perverted and confused notion of what 'law' is. We have torn down all jurisdictions and authorities except for man's civil realm and the result is a perversion of our idea of what law is.
Biblically speaking there are three realms of jurisdiction: the family, the church, and the state. All three have authority, with the authority of the family being foundational to the other two.
And then, above all of these, there is God and His law. All other commandments, all other authorities, bow in submission to that law. Only that law is law. All other law is dependent on that law... commands outlining how that law is to be implemented among a given jurisdiction.
Fiat LawWhat we normally think of as 'law' is in fact unBiblical 'fiat law': law invented by man outside of any legitimate interpretation of God's law. It is no law at all and only represents God's law if it falls under Romans 13 as legitimate expressions of God's will for us via the rulers he has set up. To the extent it expands, limits, or contradicts God's actual law, it fails this test.
Case law vs Statute lawThe next problem we have in understanding God's law is the issue of statute vs case law. This is a confusing subject, but not an unfamiliar one. Even man's fiat law operates with the idea of statute and case law as two differing types of law, two different ways of telling man how he should live.
A 'statute' law is what we normally think of as a law. God, or a legislature, writes something down in clear black and white terms. Thou shalt do this, thou shalt not do that.
A case law, on the other hand, is law derived from a particular case. Or, as we find it in the Torah, it is a case which explains a statute law.
Thou shalt not commit AdulterySo let me explain how I see this playing out in the case of rape in the Scriptures.
The Statute: Thou shalt not commit adultery
That is, I believe, the statute that covers all of sexual expression. I could be wrong, Scripture doesn't label it as such, but I think the implication is clear. Thou shalt not commit adultery. Sexual expression has a place, and is forbidden outside of that place.
But what is that place? What happens if the law is violated? What exceptions are there? These issues, as I see is, are handled by the case law. Individual examples that give us the broad lines, that judges are then intended to work out.
The Scriptures had told the Israelites, "Honor the Sabbath". But it was up to Moses to decided exactly how to handle the case of the man who picked up sticks on the Sabbath.
The Case of RapeSo, when it comes to the question of rape, what do we find in the case laws? Well, most scholars agree that there are dozens of case law that control the issue of adultery (including incest and the like) but one of the clearest in the area of Rape is Deuteronomy 22:13-30
The problem in this text is that it deals with several different cases, none of which are exactly parallel. To the person looking for statute law, this is very confusing. Looked at from the standpoint of case law, however, I believe it all becomes clear.
Deuteronomy 22: 13-21 : The Case of the Hated WifeIssues: Hatred in marriage, deception in betrothal, adultery, fornication, the role of the father in marriage, penalty for adultery/deception regarding virginity, importance of virginity, false accusation, proper trial procedure, penalty for false accusation.
Deuteronomy 22:22: AdulteryIssues: Adultery, penalty for adultery
Deuteronomy 22:23-27: Adultery and the Betrothed womanIssues: Adultery, Betrothal, penalty for adultery, penalty for rape, evidence for rape, rape vs adultery
Deuteronomy 22: 28-29Issues: Fornication, betrothal, bride price, role of the father in marriage.
So the way I believe these case laws work together is by searching, between them, for the principles that apply to the issue that we have at hand. I don't believe that every case is specifically laid out here, but I believe that all of the principles that we need are here.
So how would I see, for example, the issue of a married woman being raped. Looked at as statute law one either has to say that it isn't covered, or that she is to be killed! But looked at as case laws we discover:
1) The penalty for adultery is death, thus the man must die.
2) The woman is presumed to have been raped, not to have committed adultery, if the event happens outside the city.
3) The principle behind 'outside the city' would also apply to other situations where the woman was unable to cry out/resist (for example, the date rape drug).
4) The woman is required to resist when possible; her resistance is even assumed when it cannot be witnessed.
5) The woman who could have resisted but did not implicitly consented.
By seeing that the various laws place the 'betrothed' and 'married' woman in the same class, it is a no brainer to apply the same 'rape' rules to a married woman. But what about the unmarried woman who is not even betrothed. What should be the rules for raping her?
This is a harder case, but I believe the law is clear there, too. First of all, I don't believe that the law of fornication covers this case. In the law of fornication it seems clear that both the man and woman are guilty. We learn from the law of the hated wife that the girl must confess this act. If she does not do so, and her later husband finds her not to be a virgin, she is to be killed at her father's doorstep.
Which means that, at the very least, fornication plus deception is a death penalty offense. Given that illicit sex via force already mandates the death penalty in the case of the betrothed woman, and by implication for the married woman, I believe the summary of the case laws thus implies that fornication plus force yields death.
The case gets stronger when you see that many other forms of illicit sex also yeild death, even where both parties are willing; namely Sodomy and several forms of incest (see Leviticus 20).
But there does seem to be at least one caveat implied in these and other texts. The only witness to the 'force' of the sexual encounter is the woman. And if she confesses to a voluntary sexual encounter, or refuses to testify against the man, it would seem that the other possibilities (bride price plus constrained marriage) would, instead, apply. Given the circumstances of the rape there might be (there historically have been) many girls who would choose marriage over the humiliation of admitting to having been raped.
ConclusionThis, then, is how I see the case laws as needing to be applied. Not as statutes which define law itself, but as cases which bring forward its principles. And I believe the best way to apply that principle in this case is by declaring that the forcible rape of an unmarried, unbetrothed, virgin girl can bring the death penalty, where the girl and her father insist on it.
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