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Deuteronomy 22:21 in the Ancient Versions: Textual and Legal Considerations

Pages 253 - 274


Bet Shemesh

1 In addition to the essays addressed below, see A. Berlin, Sex and the Single Girl in Deuteronomy 22, in: N. Sacher Fox et al. (eds.), Mishneh Todah: Studies in Deuteronomy and its Cultural Environment in Honor of Tigay, Winona Lake, IN 2009, 95–112; A. Koller, Sex or Power? The Crime of the Bride in Deuteronomy 22, ZAR 16, 2010, 279–296; J. Pakkala, God's Word Omitted: Omissions in the Transmission of the Hebrew Bible, FRLANT 251, Göttingen et al. 2013, 129–130.

2 See, inter alios, C. Pressler, The View of Women Found in the Deuteronomic Family Laws, BZAW 216, Berlin et al. 1993, 23–24; J. Burnside, The Signs of Sin: Seriousness of Offence in Biblical Law, JSOT.S 364, Sheffield 2003, 147–150.

3 Contrast the NJPS rendering: “[…] for she did a shameful thing, committing fornication while under her father's authority […]”, Philadelphia, PA 1985). While not unreasonable, this translation leaves it unclear as to whether it allows for a scenario wherein the bride had sexual intercourse during the period of her betrothal, at which time she would have been, to some extent, under the authority of both her fiancé and her father. This has potentially significant implications for the ensuing discussion. Accordingly, I have employed herein a more inclusive translation, one that addresses the period before her betrothal as well as that during her betrothal period. Note, too, that NJPS's translation makes no mention of the shameful thing being committed “in Israel”; see the discussion below.

4 For discussion of this term and its implications for the present discussion, see below.

5 See Sipre Deut 235–240; y. Ket. 4:4 28c; b. Ket. 45b–46a; A. Rofé, Family and Sex Laws in Deuteronomy and the Book of the Covenant, Henoch 9, 1987, 131–159, and idem, Deuteronomy, OTS, London 2003, 173–181.

6 The question of whether the monetary payment required by Exod 22:15–16 and Deut 22:28–29 – as well as the requirement that the paramour marry his victim – constitutes compensation in sensu stricto, as opposed to constituting a legal fine / deterrent, is a subject of debate.

7 See, inter alios, M. Weinfeld (Deuteronomy and the Deuteronomic School, Oxford 1972, 284–288), who maintains that Deut 22:28–29 addresses makes no distinction between rape and seduction; cf. E. Otto, False Weights in the Scales of Biblical Justice? Different Views of Women from Patriarchal Hierarchy to Religious Equality in the Book of Deuteronomy, in: V.H. Matthews et al. (eds.), Gender and Law in the Hebrew Bible and the Ancient Near East, Sheffield 1998, 128–146, and G.P. Hugenberger, Marriage as a Covenant: Biblical Law and Ethics as Developed from Malachi, Leiden 1994, 255–259. For further discussion of this point, see below. Note that rabbinic tradents resolved this issue by positing that Deut 22:28–29 addresses only rape (Mekh dR Ishmael, Neziqin 17; Sipre Deut 244).

8 See the discussion of this issue in the analysis of Deut 22:21 as reflected in compositions from Qumran, below.

9 For present purposes it matters not whether the betrothed girl is culpable because her silence is construed as consent or, rather, because anything less than active opposition to her attacker is viewed as a form of acquiescence, rendering her punishable.

10 The severity of the offense in Deut 22:20–21 is also conveyed by the passage's use of the term “ne- balah”, which appears only four times in the Hebrew Bible – viz., in connection with Shechem's assault of Dinah (Gen 34:7), the assault and rape of the Levite's concubine by the men of Gibeah (Judg 19–20), and Amnon's rape of Tamar (2Sam 11) – and denotes a particularly heinous crime. More specifically, each of the other contexts concerns a matter involving sexual indecency of some sort. Indeed, one passage, Gen 34:7, is especially reminiscent of the formulation of Deut 22:21. In describing the heinous act perpetrated by Shechem it states that “he had committed an outrage in Israel (כי נבלה עשה בישראל) by lying with Jacob's daughter”. See A. Phillips, Nebalah – a term for serious disorderly and unruly conduct, VT 25, 1973, 237–242.

11 See Sipre Deut 235; b. Ket. 45a–b, and the commentary of Nahmanides ad Deut 22:13.17. For a recent discussion of various aspects of the rabbinic approach(es), see A. Shemesh, 4Q271.3: A Key to Sectarian Matrimonial Law, JJS 49, 1998, 244–263.

12 For additional verses that attest to a position differing from that of Deut 22:21, see A. Rofé, Deuteronomy: Issues and Interpretation, London et al. 2002, 173–178. See, also, idem, The Arrangement of the Laws in Deuteronomy, ETL 64, 1988, 265–287, where Rofé avers that the author responsible for this, and similar, deuteronomic laws may be described as a “moralist” rather than a “legist”. C. Locher has also acknowledged that death for premarital sex is sui generis in the ancient Near East; see Die Ehre einer Frau in Israel. Exegetische und rechtsvergleichende Studien zu Deuteronomium 22, 13–21, Freiburg (Schweiz) 1986, 384–386. See, also, L. Stulman, Sex and Familial Crimes in the D Code: A Witness to Mores in Transition, JSOT 53, 1992, 47–63, E. Otto, Town and Rural Countryside in Ancient Israelite Law: Reception and Redaction in Cuneiform and Israelite Law, JSOT 57, 1993, 3–22, and cf. C.J.H. Wright, The Israelite Household and the Decalogue: The Social Background of and Significance of Some Commandments,” TynBul 30, 1979, 101–124. For discussion of the notion that Deuteronomy's centralization of power (and cult) impacted negatively on women's status, see N. Steinberg, The Deuteronomic Law Code and the Politics of State Centralization, in: D. Jobling et al. (eds.), The Bible and the Politics of Exegesis: Essays in Honor of Norman Gottwald on His Sixty-Fifth Birthday, Cleveland, OH 1999, 161–170. Similar observations have been advanced by other scholars; see, inter alios, J.A. Hackett, In the Days of Jael: Reclaiming the History of Women in Ancient Israel, in: C.W. Atkinson et al. (eds.), Immaculate and Powerful: The Female in Sacred Image and Social Reality, Boston, MA 1985, 15–38. Any attempt to establish the socio-historical setting reflected in this passage — and Deuteronomy, in general – is further complicated by several recent studies positing a post-exilic setting for Deuteronomy or, at least, its central legal core, as well as those proffering a considerably earlier, pre-Josianic date. Concerning these issues, see, inter alios, J. Pakkala, The Date of the Oldest Edition of Deuteronomy, ZAW 121, 2009, 388–401, P.R. Davies, On the Origins of Judaism, London 2011, 70–80, and, especially, C.L. Crouch, Israel and Assyria: Deuteronomy, The Succession Treaty of Esarhaddon, and the Nature of Subversion, SBL Ancient Near East Monographs 8, Atlanta 2014, who presents a compelling case against the dominant view dating Deuteronomy to the reign of Josiah and – more generally, the Assyrian period – and bolsters the case for post-exilic provenance. Cf. J.A. Berman, CTH 133 and the Hittite Provenance of Deuteronomy 13, JBL 130, 2011, 25–44; idem, Histories Told Twice: Deuteronomy 1–3 and the Hittite Treaty Prologue Tradition, JBL 132, 2013, 229–250, and, albeit bearing different implications, S.L. Allen, Rearranging the Gods in Esarhaddon's Succession Treaty (SAA 2 6:414–465), WO 43, 2013, 1–23, esp. 22–23.

13 A. Rofé, Arrangement of the Laws (see above note 12) explains the law of the rebellious son (Deut 21:18–21), which shares some features with the law of the accused bride, along the same lines. (Note that Rofé does not propose an absolute date for the composition, or inclusion, of this law.) For an entirely different approach to the law of the rebellious son – one which views the seemingly harsh punishment meted out to the rebellious son as reasonable within the context of ancient Israelite society – see J. Fleishman, Parent and Child in Ancient Near East and the Bible, Jerusalem 1999, 244–282(Hebrew); cf. J. Burnside, Signs of Sin (see above note 2) 37–78.

14 View of Women (see above note 2) 30–31. Note that Pressler also concurs with Weinfeld's view that Deut 22:28–29 does not distinguish between rape and seduction, but rejects his explanation of Deuteronomy's position as informed by “humanitarian” interests (ibid, 37–40). See, also, C. Edenburg's discussion of the shame brought upon the family by the daughter's actions in Ideology and Social Context of the Deuteronomic Women's Sex Laws (Deuteronomy 22: 13–29), JBL 128, 2009, 43–60.

15 See, especially, E. Otto, Das Verbot der Wiederherstellung einer geschiedenen Ehe: Deuteronomium 24,1–4 im Kontext des israelitischen und judäischen Eherechts, UF 24, 1992, 309–310.

16 B. Wells, Sex, Lies, and Virginal Rape: The Slandered Bride and False Accusation in Deuteronomy, JBL 124, 2005, 41–72.

17 J. Burnside, Signs of Sin (see above note 2) 147–155. See, further, the discussion below.

18 J. Fleishman, The Delinquent Daughter and Legal Innovation in Deuteronomy xxii 20–21, VT 58, 2008, 191–210. See, also, M. Malul, What is the Nature of the Crime of the Delinquent Daughter in Deuteronomy 22:13–21? A Rejoinder to J. Fleishman's Suggestion, VT 59, 2009, 446–459.

19 See C. Pressler, View of Women (see above note 2) 31, n. 28, who fails to note that her explanation does not correspond to the wording of 22:21. While it is possible, of course / in theory, to distinguish between seduction – which involves an element of duress or psychological coercion – and willful participation on the part of the girl, such a distinction fails to convince / is insufficient, for the simple reason that there is no basis for determining what were the circumstances surrounding the bride's loss of virginity prior to her marriage.

20 See, inter alios, G.P. Hugenberger, Marriage as a Covenant (see above note 7) 315–316 (where the rabbinic sources which reflect a similar state of affairs are also cited), and for discussion of related issues, M.T. Roth, Age of Marriage and the Household: A Study of Neo-Babylonian and Neo-Assyrian Forms, Comparative Studies in Society and History 29, 1987, 715–747.

21 J. Fleishman has argued (The Age of Legal Maturity in Biblical Law, JANES 21, 1992, 35–48), on the basis of comparative ancient Near Eastern legal practice, that although full adulthood was not attained (in biblical law) until the age of twenty, the age of legal culpability for individual infractions was determined on a “by case” approach; i.e., the severity of the offense along with the maturity of the offender were taken into account in determining whether the offender was cognizant (or could be expected to be cognizant) of the nature of his / her actions. This would, of course, explain the acceptability of executing pubescent girls for their sexual conduct. At the same time, the question as to why it is the daughter who bears the brunt of the punishment for the “indiscretion” of Deut 22:13–21 remains.

22 See, inter alios, D.M. Carr, The Formation of the Hebrew Bible: A New Reconstruction, Oxford et al. 2011); J. Stackert, Rewriting the Torah: Literary Revision in Deuteronomy and the Holiness Legislation, FAT 52, Tübingen 2007, 1–29; N. MacDonald, Issues in the Dating of Deuteronomy: A Response to Juha Pakkala, ZAW 122, 2010, 431–435; J. Pakkala, The Dating of Deuteronomy: A Response to Nathan MacDonald, ZAW 123, 2011, 431–436, idem, God's Word (see above note 1) 118–154; E. Otto, Deuteronomium 1–11: Erster Teilband: 1,1–4,43; Zweiter Teilband: 4,44–11,32, HThKAT, Freiburg i. Br. 2012, 255–256, and C.L. Crouch, Israel and the Assyrians (see above note 12).

23 Note that Sipre Deut reflects awareness of the anomalous nature of another aspect of the biblical formulation, viz., for she has committed […] shameful in Israel”. In addressing this formulation, Sipre (pisqa 240) states: “Not only herself has she disgraced (or: made appear ugly [ניוולה]), but all virgins / unmarried women of Israel, as well.” This rabbinic observation highlights a parallel feature found in both sections of Deut 22:13–21. Thus, the first section, 22:13–19, states that the slandering husband has “defamed (הוציא שם רע) a virgin in Israel”; accordingly, the second section (vv. 20–21) then states that a maiden guilty of the offense of which she is accused is, herself, guilty of having “disgraced the virgins / girls of Israel”. The trenchant nature of this rabbinic comment notwithstanding, it remains unclear precisely how her conduct constitutes a defamation of other girls of Israel.

24 This reading is attested in the edition of A.F. von Gall, Der hebräische Pentateuch der Samaritaner, Giessen, 1914–1918 (reprint 1966), as well as that of A. Tal, The Samaritan Pentateuch: Edited according to the MS 6 (C) of the Shekhem Synagogue, Tel Aviv 1994 and A. Tal / M. Florentin, The Pentateuch: The Samaritan Version and the Masoretic Version, Tel Aviv 2010, 585 and 728. For recent discussion of the problems inherent in “reconstructing” the text of SP, see S. Schorch, A Critical editio maior of the Samaritan Pentateuch: State of Research, Principles, and Problems,” HeBAI 2, 2013, 1–21.

25 The only attestation of this usage appears at Lev 19:29, where its meaning is unmistakably “to allow / promote (one's daughter's) harlotry / promiscuity”.

26 See C. McCarthy, Deuteronomy: Introduction and Commentaries on Deuteronomy, Stuttgart 2007, 113–114; this is also Brenton's translation of LXX. M.K.H. Peters, however, renders “prostituting her father's house” (Deuteronomion, NETS, 163).

27 See the preceding note. Significantly, all mss of the Samaritan tafsir render “והזנו” at Exod 34:16 by means of the root dll, whose meaning is “go astray”. It is, therefore, noteworthy that none of the Arabic mss employs this root in connection with Deut 22:21.

28 See the discussion of the hif'il form below.

29 That is, the reading shared by SP and LXX does not indicate whether the cause for the “shame / legal entanglement” brought about by the daughter's conduct is the result of her concealment of her loss of virginity from her new husband (and, possibly, her family) or, rather, the very (presumed) act of pre-marital sex. If the latter is the case, the reading “להזנות” cannot be invoked as evidence of the attempt on the part of early scribes to reconcile Deut 22:21 with other biblical passages.

30 This reasoning applies equally to the case of Deut 22:23–24, wherein the bride is guilty of having had an affair / tryst during the period of her betrothal and cases wherein the premarital affair took place prior to her betrothal (Exod 22:15–16; Deut 22:28–29). Indeed, since there is no evidentiary basis to the contrary, the reading of SP and LXX would appear to apply to cases wherein the girl claims, following the filing of her husband's charge, to have been the victim of rape, rather than consensual intercourse, either during her the period of her betrothal or before. Moreover, the reading of SP and LXX allows for the possibility that the loss of virginity was the result of some trauma, such as a forceful blow to the genital area. Since, in the end, the girl is guilty of deceiving the groom by passing herself off as a virgin, the net result is the same.

31 The tendency towards harmonization, in both narrative and legal passages, is amply attested in both SP and LXX, as well as numerous scrolls uncovered at Qumran, and has been addressed in many studies; see, inter alios, E. Tov, Textual Criticism of the Hebrew Bible: An Introduction, Jerusalem 2014, 76–80(Hebrew).

32 The import of this reading, thus, differs also from the position espoused by Rofé in connection with the masoretic text. For, in contrast to Rofé's approach, the bride's offense lies in her embroilment of her father, not the “rebellious” act of pre-marital intercourse, per se.

33 See, e.g., Lev 19:29, 2Chr 21:11, 13.

34 See P. Joüon, A Grammar of Biblical Hebrew, Subsidia Biblica 14/1 (translated and revised by. T. Muraoka, Rome 1991, vol. 1, 163–164. This feature is equally — perhaps, even, more — common in Rabbinic Hebrew (e.g., הגדיל “grew up, came of age”; הגדיל;הלבין).

35 See BHS3, ad loc.; cf. the medieval commentary of Isaac Abarbanel (ad loc.), who parses this lexeme as a genuine causative. The role and meaning of harlotry imagery in Hosea has been the subject of much debate; see, inter alios, B.E. Kelle, Hosea 2: Metaphor and Rhetoric in Historical Perspective, Atlanta, GA 2005, 94–109.

36 At the same time, it is noteworthy that the hif'il forms attested in Hosea are all rendered in LXX as intransitive forms. Of course, given the fact that the Greek translation of Hosea was performed by a translator (or group of translators) working at a later date, one need not be surprised by this state of affairs. Still, the evidence of LXX Hosea does demonstrate that at least some of the translators responsible for LXX were familiar with this morphological feature.

37 That there exists a historical connection between Deuteronomy and Hosea is widely acknowledged, a position borne out by the presence of shared concerns and motifs as well as shared lexical features; see, inter alios, H.L. Ginsberg, The Israelian Heritage of Judaism, New York, NY 1982, 19–24, and M. Weinfeld, Deuteronomy 1–11, AB 5, New York, NY 1991, 44–50. Accordingly, the notion that Deut 22:21 may have employed the same morphological feature as that attested in Hosea should hardly occasion surprise.

38 It is possible, of course, that LXX's Vorlage was the same as that preserved in the masoretic text but that the translator(s) parsed the form as a pi'el. This is unlikely, however, inasmuch as the pi'el form is not otherwise attested in this sense in the Hebrew Bible. While the form is, indeed, attested in rabbinic usage, it bears therein an iterative (intransitive) meaning. In any event, even if this were to prove the case, it would not alter the exegetical import of LXX's formulation.

39 Similarly, the Samaritan Targum reflects the causative form of the biblical text (למזני ית בית אבוה) see A. Tal, The Samaritan Targum of the Pentateuch: A Critical Edition, Tel Aviv 1981, vol. 2, 364. See, however, especially, the remarks of Tal / Florentin (Pentateuch [see above note 24] 728), who note that one of the Samaritan targumic traditions renders the biblical text “liznot man,” the presumed meaning of which is “from (i.e., at) the time of her being in her father's house(hold)”. Significantly, this rendering may reflect a Vorlage that read either “להזנות” — parsed as an intransitive — or “לזנות”. More specifically, the Arabic translation is consonant with the reading “להזנות” as well as the reading “להזנות” (sans “את”), though the former is more likely to have been the Vorlage employed by the translator responsible for this rendering. The Samaritan (Arabic) tafsir preserves two distinct tendencies (see H. Shehadeh, The Arabic Translation of the Samaritan Pentateuch, Jerusalem 2002, vol. 2, 536–537). The primary text of tradition “א” (reflecting, primarily, the tradition of the Sechem ms), as published by Shehadeh, employs the Arabic form II, bi-tafsīq [ﯾﻳتفسﯿﻴق] bayt abīha)”. The form tafsīq means to “declare someone promiscuous (i.e., declare someone a ‘fāsiq’)”. Presumably, the intended meaning of this rendering is, accordingly, that the daughter's conduct sheds a pall of improper (or promiscuous) conduct upon her father's household; it may, moreover, suggest that legal responsibility for her misdeed lies with her father (and / or his household). This would seem to correspond to the Vorlage “להזנות”. At the same time, the alternative tradition (“B”) preserved in Shehadeh's edition, along with several variant readings noted in the critical apparatus, render the biblical locution“[while] in (في) her father's house”. This translation corresponds to the targumic rendering discussed by Tal / Florentin noted above and may reflect either the qal or hif'il form of the verb zny. The same dichotomy has been noted by Z. ben Haim in connection with the oral (i.e., lectionary) tradition of the Samaritan community; see below for further discussion of tafsir variants. For discussion of the importance of the Samaritan Aramaic and Arabic translations in reconstructing the consonantal and vocalized features of SP, se eS. Schorch, Critical editio maior (see above note 24) 19.

40 For discussion of linguistic features as criteria in the dating of SP, see, inter alios, E. Eshel / H. Eshel, Dating the Samaritan Pentateuch's Compilation in Light of the Qumran Biblical Scrolls, in: S. Paul et al. (eds.), Emanuel: Studies in Bible, Septuagint and Dead Sea Scrolls in Honor of Emanuel Tov, VT.S 94, Leiden et al. 2003, 215–240; S. Schorch, Spoken Hebrew of the Late Second Temple Period according to the Oral and the Written Samaritan Tradition, in: J. Joosten / J.S. Rey (eds.), Conservatism and Innovation in the Hebrew Language of the Hellenistic Period: Proceedings of a Fourth International Symposium on the Hebrew of the Dead Sea Scrolls and Ben Sira, StTDJ 73, Leiden et al. 2008, 175–190, and idem, Critical editio maior (see above note 24) 4.

41 The fact that LXX Hosea renders all instances of the hif'il therein as intransitive verbs would appear to argue against the likelihood that the Greek translators responsible for Deuteronomy were unfamiliar with this formulation; this, however, is not conclusive.

42 It is apposite at this juncture to address the position of Josephus (Jewish Antiquities, 4), who states laconically that the bride is executed because she “has not guarded her virginity”. He makes no mention of the element of shame brought about by her conduct, nor does he acknowledge the sui generis nature of this law. This notwithstanding, it would appear that Josephus bases his remarks on the masoretic text. This is significant because of the many cases wherein Josephus appears to have relied on a (Greek) biblical version similar to that reflected in LXX or SP; see E.C. Ulrich, Josephus' Biblical Text for the Books of Samuel, in: idem, The Dead Sea Scrolls and the Origins of the Hebrew Bible, Grand Rapids, MI et al. 1999, 184–201and V. Spottorno, Josephus' Text for 1–2 Kings (3–4 Kingdoms), in L. Greenspoon / O. Munnich (eds.), VIII Congress of the International Organization for Septuagint and Cognate Studies: Paris 1992, Society of Biblical Literature Septuagint and Cognate literature 41, Atlanta, GA 1995, 145–152. Cf. G. Sterling, The Invisible Presence: Josephus's Retelling of Ruth, in: S. Mason (ed.), Understanding Josephus: Seven Perspectives, Sheffield 1998, (104–171), 109 and L. Feldman, Josephs' Interpretation of the Bible, Berkeley, CA et al. 1998, (23–36), 30–31. In any event, Josephus's apparent use of the masoretic version of Deut 22:21 ought not occasion surprise, especially in light of the fact that Josephus followed the masoretic text in his formulation of a neighboring legal passage, Deut 22:1 (see Feldman, Josephus' Interpretation, 31). At the same time, it is conceivable that Josephus's Vorlage was identical to the text of SP and that reflected in LXX (though, in all probability, lacking the object marker, 'et), but, in contrast to LXX's translators, he understood the hif'il form, להזנות,” as expressing an intransitive action.

43 This same meaning could be conveyed by means of the qal “לזנות + את”. Moreover, it is possible that this understanding is essentially the same as that attested already in the medieval commentary of Rashi (ad loc.), who glosses the biblical formulation “בבית אביה”.

44 Indeed, it is interesting that some traditions of Samaritan tafsir cited by Shehahdeh (op. cit.) render Deut 22:21 “by fornicating with (مع / ma'a) her father's household”. This rendering almost certainly reflects the fact that the Arabic translator understood the hif'il form of zny as intransitive and the Hebrew lexeme 't (את) as the preposition “with”.

45 Sex, Lies (see above note 16).

46 Signs of Sin (see above note 2) 147–156.

47 The reading of SP and LXX's Vorlage bears on yet another issue. Scholars, including Burnside, have frequently drawn attention to Lev 21:9 and its relationship to Deut 22:21. The masoretic version of the former verse reads: “When the daughter of a priest defiles herself through harlotry, it is her father whom she defiles (את אביה היא מחללת), she shall be put to the fire.” Burnside, like many others, notes that both verses share a common theme, viz., the notion of bringing shame upon one's father (and his household) by acting promiscuously; the difference between the two passages simply reflects the difference in stature between priests and lay Israelite men. The precise nature of the relationship between the two verses depends, of course, on one's understanding of Deut 22:21. In the view of Burnside, for example, it is the mere act of pre-marital intercourse on the part of the priest's daughter in Lev 21:9 that constitutes a violation of the father's special stature and necessitates, thereby, her execution. By contrast, in the case of a non-priest pre-marital intercourse, per se, entails no such profanation; it is only when the daughter dupes her groom and prostitutes herself – perhaps during the period of her betrothal (and with her father's complicity) – that she brings calumny upon her father's household and incurs the death penalty (see ibid). This issue however is complicated by the numerous textual and exegetical approaches – especially those reflected in the ancient and medieval translations – to Lev 21:9, each of which must be viewed in concert with Deut 22:21. I plan to address this issue in a separate study; see, for now, D.A. Teeter, Scribal Laws. Exegetical Variation in the Textual Transmission of Biblical Law in the late Second Temple Period, FAT 92, Tübingen 2014.

48 E. Qimron, The Dead Sea Scrolls: The Hebrew Writings, Jerusalem 2010, vol. 1, 205.

49 This passage reads: “If a man seduces a virgin for whom the bride-price has not been paid, and lies with her, he must make her his wife by payment of a bride-price. If her father refuses to give her to him, he must still weight out silver in accordance with the bride-price for virgins”.

50 “If a man comes upon a virgin who is not engaged and he seizes her and lies with her, and they are (11QTa: ‘he is’) discovered, the man who lay with her shall pay the girl's father fifty [shekels of] silver, and she shall be his wife. Because he has violated her, he can never have the right to divorce her.”

51 This position, advanced by several modern students of the Hebrew Bible, is cogently explained against the backdrop of ancient Near Eastern norms by J.J. Finkelstein, Sex Offenses in Sumerian Laws, JAOS 96, 1966, 368–371. See, also, C. Pressler, View of Women (see above note 2) 23–24.

52 See 4Q271.3 (see above note 11).

53 Ibid, 250. Note, however, that the New Testament and rabbinic texts cited by Shemesh do not explicitly address all of the possible scenarios, viz., rape and seduction. At the same time, there is no indication that they limit the implications of sexual intercourse to either those involving consensual pre-marital intercourse or sexual congress between spouses. In addition, it ought be noted that the views found in Matthew, Corinthians, and other NT sources may not involve truly ontological notions of the marital bond, an issue which is beyond the scope of the present paper. See, inter alios, G. Beattie, Women and Marriage in Paul and His Early Interpreters, London 2005.

54 See P.J. Tomson, Paul and the Jewish Law. Halakha in the Letters of the Apostle to the Gentiles, Compendia rerum Iudaicarum ad Novum Testamentum: Section 3, Jewish traditions in early Christian literature 1, Assen et al. 1990, 103–122, and A. Shemesh, 4Q271.3 (see above note 11) especially 252–255.

55 See D. Rothstein, Sexual Union and Sexual Offenses in Jubilees, JSJ 35, 2004, 363–384, idem, Why was Shelah not Given to Tamar?: Jubilees 41: 20, Henoch 27, 2005, 115–126, and D. Dimant, Judah and Tamar in Jubilees 41, in: E.F. Mason et al. (eds.), A Teacher for all Generations: Essays in Honor of James C. VanderKam, vol. II, JSJ.S 153/2, Leiden et al. 2012, 783–797.

56 The question as to whether the incest prohibitions of Lev 18 and 20 address – and were understood as pertaining to – marriage, per se, or any sort of sexual contact, has been the subject of much discussion and need not be rehearsed here; see, inter alios, B.J. Schwartz, The Holiness Legislation: Studies in the Priestly Code, Jerusalem 1999, 167–174(Hebrew), and D. Rothstein, Sexual Union (see above note 55).

57 Similarly, Jubilees 41 may indicate that any case of (heterosexual) sexual intercourse renders the woman forbidden to the man's son, for this would involve the son having intercourse with his father's “wife”; this, despite the fact that Lev 18:8 and 20:11 (and, in all likelihood, Deut 23:1) proscribe intercourse / marriage with the wife of one's father, not with a woman who has engaged in extra-marital coitus with one's father. See D. Rothstein, Sexual Union (see above note 55).

58 While this is the simple meaning of Deut 23:1, rabbinic tradents differed regarding the interpretation of this passages; see ibid.

59 D. Rothstein, Sexual Union (see above note 55). It ought be recalled that 2Sam 20:3 may have served as the basis for the position(s) espoused at 1QapGen 2:8–10 and Jubilees 33:7–9, as suggested by the comments of the medieval exegete, Joseph Bekhor Shor (ad Gen 35:22). This passage, of course, relates the episode wherein David's concubines were rendered forbidden to him by dint of having been ravished by David's son, Absalom. This precedent was presumably understood by the author of 1QapGen (and, perhaps, the author of Jubilees) as clarifying, or exemplifying, the legal principle obtaining in Deut 24:4 which, of course, applies to all wives, not only those “shared” by father and son.

60 I say “possibly”, because it cannot be definitively established whether Bilhah's rape at the hands of Reuben – and her being rendered forbidden, thereby, to Jacob – indicates that the author of Jubilees believed that the only legal issue at hand revolved around the fact that Bilhah had been involved in coitus with a man and his son (thereby violating Lev 18:15 and 20:12) or, more generally, whether this narrative also bears on the status of a married woman who has been raped, as in 1QapGen 20:10–12. In point of fact, while the story line in Jubilees 33 addresses the former issue, it is likely that the author saw no legal distinction between the two issues. I hope to address additional aspects Jubilees 33 and 41 in a separate essay; see, for now, M. Segal, The Book of Jubilees: Rewritten Bible, Redaction, Ideology and Theology, JSJ.S 117, Atlanta, GA 2007, 74–81.

61 See D. Rothstein, Sexual Union (see above note 55). Indeed, rabbinic law differed on both points, i.e., allowing a raped woman to continue living with her husband and forbidding a divorced woman to return to her first husband only if she subsequently married another man (ibid.). This chasm between Qumran and rabbinic positions offers clear testimony to the legal significance attached to the act of sexual intercourse, per se, in the writings uncovered at Qumran.

62 Ibid. In other words, the act of intercourse does not result in a situation wherein the couple must live together as husband and wife; rather, it effects the essential aspect of the marital bond, resulting in the participants being forbidden to wed others. This point emerges more clearly in the discussion below, regarding 11QTa's understanding of Exod 22:15–16.

63 See J. Neubauer, The History of Marriage Laws in Bible and Talmud: Comparative Historical Study, Jerusalem 1999, 36–42(Hebrew). Cf. M. Malul, sillam patārum ‘To Unfasten the Cloth-Pin’: Copula Carnalis and the Formation of Marriage in Ancient Mesopotamia, JEOL 32, 1991/2, 66–86.

64 See, e.g., C. Werman The Rules of Consuming and Covering the Blood in Priestly and Rabbinic Law, RdQ 16, 1995, 621–636; D.R. Schwartz, Law and Truth: On Qumran-Sadducean and rabbinic Views of Law, in: D. Dimant / U. Rappaport (eds.), The Dead Sea Scrolls: Forty Years of Research, StTDJ 10, Leiden et al. 1992, 229–240; J.L. Rubenstein, Nominalism and Realism in Qumran and Rabbinic Law: A Reassessment, DSD 6, 1999, 157–183.

65 The caveat voiced by B.J. Schwartz in connection with the feasibility of applying all aspects of the law code in priestly sources of the Pentateuch is also apposite. Schwartz emphasizes, correctly, that the issue confronting the expositor of any text must be limited to clarification of the text and its content; whether a given practice or ritual was ever, in fact, likely to have been observed in daily life is beyond the purview of the expositor; see Holiness Legislation (see above note 56) 94–96.

66 The likelihood that the scroll's author interpreted the various legal formulae appearing in biblical sexual proscriptions as relating only to (forbidden) marriages, as argued by G. Brin, is unlikely in the extreme; the reverse scenario, however, is entirely plausible; see D. Rothstein, Sexual Union (see above note 55).

67 Note that in principle, at least, Shemesh's understanding of 11QTa's position regarding Deut 22:13–21 does not necessitate the equation of rape and seduction. That is, it is conceivable (if unlikely) that the scroll addresses only seduction and that rape is not addressed. (See, for example, the view advanced by G.P. Hugenberger, who maintains that rape constitutes a capital offense [Marriage as a Covenant (see above note 7) 257].) The notion that pre-marital sex resulting from seduction effects the marital bond would still allow for Shemesh's explanation of 11QTa 66:8–11. Nonetheless, Shemesh's approach would be weakened somewhat, were it to be shown that rape does not effect the marital bond. This is because the accused bride could then claim that the loss of her virginity was the result of rape and, hence, her present marriage does not constitute adultery vis-à-vis her rapist.

68 See T. Frymer-Kensky, Virginity in the Bible, in: V.H. Matthews et al. (eds.), Gender and Law in the Bible and the Ancient Near East, Sheffield: Sheffield 1998, 79–96; G.P. Hugenberger, Marriage as a Covenant (see above note 7); cf. C. Pressler, View of Women (see above note 2) 37–40. See, also, C. Edenburg (Ideology [see above note 14]), who argues that Deuteronomy / the laws regulating sexual offenses in Deut 22 evince the weakening of parental control over daughters' sexual conduct. (Note, however, that Edenburg's explanation is less than convincing in connection with the matter of rape and / or seduction. Specifically, Edenburg's approach does not explain why Deut 22:28–29, on her understanding of the passage, refers only to rape, contra Exod 22:15–16.) Indeed, a similar, if not identical, argument has been proffered by contemporary of students of Deuteronomy in connection with the law of the rebellious son. In contrast to rabbinic sources, which claim that the son's parents are not required to initiate legal proceedings against their son (see b. Sanh. 88a), recent studies have made a strong case for the view that parents are, in fact, legally obligated to bring file a complaint against their son. Here, too, the legal rationale reflects the priority of society's right to deal with (i.e., rid itself of) dangerous elements over the personal interests of the party immediately affected by the son's conduct, i.e., the parents; see J. Fleishman, Parent and Child (see above note 13) 245–282. At the same time, it bears mention that cuneiform law attests no instance requiring marriage between the rapist and his victim; see G.P. Hugenberger, Marriage as a Covenant (see above note 7) 257. Note that, in connection with a married woman, E. Otto has proffered a much more extreme view, viz., that Deut 22:22 requires her execution (along with the man) even in cases of rape, a position expressive of the notion of Erfolgshaftung (see False Weights [see above note 7] 134).

69 M. Malul, What is the Nature (see above note 18) 446–459.

70 A similar observation has been made regarding the punishment imposed on the husband (!) should his charge against his wife prove false. That is, while he is, indeed, punished by being prevented from ever divorcing his wife, it is hardly clear, or likely, that the exonerated wife will enjoy remaining permanently married to such an individual. This is particularly true if, as many scholars (as well as rabbinic sources) maintain, the husband's claim in Deut 22:14 is a legal one filed in court, such that his claim, were it to be accepted, would entail the execution of his wife. For discussion regarding the nature of the husband's complaint, see Sipre Deut 235 and B. Wells, Sex, Lies (see above note 16); cf. C. Pressler, View of Women (see above note 2) 22–29.

71 Indeed, it is possible that the scroll's position vis-à-vis the seduced / raped girl (and / or her father) is more “humane” than that ascribed by many contemporary scholars to the author Deuteronomy. For, in contrast to those that argue that Deut 22:28–29 mandates that the girl and her paramour / attacker be married, it is quite possible that 11QTa's position, as understood by Shemesh, actually allows the girl and / or her father to refuse to live with her paramour / attacker as his wife – this, despite the fact that legal efficacy of their sexual encounter would not allow her to remarry untile the demise of her paramour / attacker. That this may be the case is suggested by the following considerations. Exod 22 maintains that the girl's father may insist on receiving compensation for his daughter's seduction while simultaneously vetoing marriage between his daughter and the seducer; Deut 22, as noted above, appears to maintain – and, indeed, was understood by the author of 11QTa to mean – that the father has no say in the matter, and that the assailant must marry his victim (or, more precisely, the girl and her paramour / assailant are de facto married). The question thus arises: Does the formulation of 11QTa indicate that its author simply rejected the evidence of Exod 22, because of its (perceived) incompatibility with Deut 22:28–29? It is likely, I believe, that the author of 11QTa (and probably, those responsible for the Damascus Document) maintained that the two passages are not mutually contradictory. Thus, although the author maintained that the act of sexual congress effects the marital bond – requiring, thereby, the paramour to provide all his wife's needs (see Exod 21:7–11) – he would have granted, on the basis of Exod 22:16, that the father is entitled to prevent the paramour / assailant from living with his daughter, while retaining his parental right to receive financial compensation caused by the paramour's / assailant's actions; but, as noted, this prerogative has no substantive bearing on the (ontological) reality of the marital bond effected via the act of intercourse and, accordingly, the girl's father may not give his daughter to another man. Thus, in contrast to the view of many modern students of Deuteronomy, the seduced / raped girl (or her father) is at least given the prerogative to determine the extent and form of “marital” contact with her paramour / assailant; and, in any event, her paramour / assailant will have to provide for her and will not have the option of divorcing (i.e., denying financial support for) her. (By contrast, if 11QTa is understood along non-ontological lines – viz., as differing from the position reflected in the Damascus Document – one would, indeed, be forced to conclude that the author rejected Exodus's allowance for the father's right of veto; there simply is no other way to explain the scroll's deletion of the father's prerogative.) Admittedly, this state of affairs begs another question, to wit: Why does 11QTa not make any mention of the father's prerogative granted by Exod 22:16 along the very lines explicated herein? At least two explanations may be proffered. First, it is possible that the author of 11QTa simply elected to focus on (what he perceived to be) the central legal principle addressed by the passages in Exod 22 and Deut 22, viz., the (ontological) formation of the marital bond. In addition, it is likely that the author understood that the father's exercise of this right, resulting in the isolation of a girl / woman from any form of normal spousal interaction and family life, might itself lead to illicit sexual conduct on the girl's part; accordingly, the author sought – via his reticence regarding the father's legal prerogative – to discourage (though not necessarily proscribe) such a scenario. A similar position – though, with different ramifications – has been advanced by Burnside, who argues that the innovation of Deut 22:28–29 vis-à-vis Exod 22:16 stems from the very recognition on the part of Deuteronomy's author that the right granted the father by Exod 22:16 may itself lead to the state of affairs reflected in the law of the accused bride in Deut 22:13–21 (as understood by Burnside); accordingly, argues Burnside, the author of Deuteronomy elected to eliminate the father's prerogative granted by Exod 22:16 (Signs of Sin [see above note 2] 150–154). Finally it bears mention that E. Otto has pointed to Deut 22:22 as an instance involving the principle of Erfolgshaftung, such that the fact of the raped wife's absolute passivity in the commission of her rape is rendered legally irrelevant. She is punished, along with the rapist, simply because of her involvement in the crime; see E. Otto, False Weights (see above note 7) 134. Now, if it is the case that a (married) victim of rape is executed for involvement in an act over which she has no control, it ought occasion no surprise that a single girl that has been the victim of seduction / rape would viewed – even against her desires and those of her parents – as married to her paramour / assailant.

72 See L.H. Schiffman, The Septuagint and the Temple Scroll: Shared ‘Halakhic’ Variants, in: G.J. Brooke / B. Lindars (eds.), Septuagint, Scroll and Cognate Writings. Papers Presented to the International Symposium on the Septuagint and its Relation to the Dead Sea Scrolls and Other Writings (Manchester, 1990), Atlanta, GA 1992, 277–297; P.E. Dion, Early Evidence for the Ritual Significance of the ‘Base of the Altar’, JBL 106, 1987, 487–492, and D. Rothstein, The Laws of Animal Slaughter and Second-Tithe in 11QTa: A Reassessment, DSD 14, 2007, 334–353. Note, also, that the reading “ונמצא” in Deut 22:28 is reflected in both 11QTa and LXX, though it is not attested in SP. See, further, J. Maier, Das jüdische Gesetz zwischen Qumran und Septuaginta, in: H.J. Fabry / U. Offerhaus (eds.), Im Brennpunkt – die Septuaginta: zur Entstehung und bedeutung der Griechischen Bibel, BWANT 153, Stuttgart 2001, 155–165.

73 Tg. Ps.-Jon. to Deut 22:21 reflects a similar approach, rendering the verse “למפקא שום ביש דזנו על בית”. Of course, it is not known what Vorlage lay before its translator(s); it may have been that of LXX and SP, though it is entirely plausible that it was identical to that of the masoretic version. Even if the latter scenarios is correct, it is entirely possible that this targum reflects (i.e., constitutes a sort of Nachleben of) the textual and exegetical approaches reflected in SP and LXX.

74 Of course, the view proposed by contemporary scholars, according to which Deut 22:13–21 addresses a case of inchoate marriage presents no such problem; see the preceding section of this essay. Note, also, that like the position that views Deut 22:13–21 as addressing inchoate marriage, 11QTa's position also resolves another difficulty, viz., that concerning the sequence of sexual offenses in Deut 22. Deut 22:22–29 consists of a series of offenses of successively less severity: married woman, betrothed maiden, and, finally, rape and / or seduction of a girl in her father's household. This sequence becomes more problematic, however, when the first law, that of 22:13–21, is also considered. For, example, the rabbinic approach discussed above begs the question as to why the case of adultery on the part of a betrothed girl is placed before the law addressing adultery committed by a married woman. 11QTa's approach, wherein Deut 22:13–21 addresses adultery (towards the previous paramour), avoids this difficulty. For recent discussion of related issues in early Jewish texts, see J. Fleishman, The Husband's Sin and Punishment in Deuteronomy 22:18–19 in Early Jewish Law, JLA Studies 18, 2008, 70–87.

75 Of course, the position of 11QTa is not free of difficulty. Specifically, there remain the following issues. The law mandating execution of the bride presupposes that her paramour is still alive and, implicitly, that his identity is known. None of this, however, is spelled out in the biblical text. Thus, what if the wife were to claim that the paramour is no longer alive? Would her claim be deemed credible and, thereby, save her from execution? This issue, however, does not, in itself, undermine the basic validity of the understanding of the scroll adopted herein. After all, as noted above, the rabbinic interpretation, of 22:13–21 entails a similar difficulty, to wit, the pericope presupposes that witnesses are able to establish the fact that she engaged in intercourse with a man other than her fiancé. Why, then, does the biblical text make no mention of him or the punishment meted out to him?

76 Stated differently, the textual reading cannot be labeled “sectarian” despite the distinct interpretation reflected at Qumran; see E.C. Ulrich, The Absence of “Sectarian Variants” in the Jewish Scriptural Scrolls found at Qumran, in: E.D. Herbert / E. Tov (eds.), The Bible as Book: The Hebrew Bible and the Judaean Desert Discoveries, London 2002, 179–195.

77 The awareness of the interplay between scribal / textual features and authorial or exegetical motives has been, and remains, the subject of many studies; see, inter alios, M.A. Fishbane, Biblical Interpretation in Ancient Israel, Oxford 1985, 1–43; Z. Talshir, The Contribution of Diverging Traditions Preserved in the Septuagint to Literary Criticism of the Bible, in: L. Greenspoon / O. Munnich, (see above note 42) 21–41, G.J. Brooke, The Qumran Scrolls and the Demise of the Distinction between Higher and Lower Criticism, in: J.G. Campbell et al. (eds.), New Directions in Qumran Studies: Proceedings of the Bristol Colloquium on the Dead Sea Scrolls, 8–10 September 2003, London 2005, 26–42, and the recent discussion of T. Lim, who addresses the question as to whether it can be (convincingly) established that a textual form is the result of exegetical alteration rather than reflecting a “plurality of text types” (The Qumran Scrolls, Multilingualism, and Biblical Interpretation, in: J.J. Collins / R.A. Kugler (eds.), Religion in the Dead Sea Scrolls, Studies in the Dead Sea Scrolls and Related Literature, Grand Rapids, MI 2000, 65). See, further, idem, Deuteronomy in the Judaism of the Second Temple Period, in: M.J.J. Menken / S. Moyise (eds.), Deuteronomy in the New Testament: The New Testament and the Scriptures of Israel, Library of New Testament Studies, London 2007, 6–26; C. Martone, Torah, Legge e Sacre Scritture a Qumran: La Bibbia di una communità sacerdotale in polemica col sacerdozio, Ricerche Storico Bibliche 16, 2004, 219–230; P. Heger, Qumran Exegesis: “Rewritten Torah” or Interpretation?, RdQ 22, 2005, (61–87), 78–81; idem, Cult as Catalyst for Division: Cult Disputes as the Motive for Schism in the Pre-70 Pluralistic Environment, StTDJ 65, Leiden u.a. 2007, 278–281; M. Segal, The Text of the Hebrew Bible in Light of the Dead Sea Scrolls, MG 12, 2007, 5–20; P. Piovanelli, Rewritten Bible ou Bible in Progress?: La réécriture des traditions mémoriales bibliques dans le judaïsme et le christianisme anciens, RTP 139, 2007, 295–310; D.A. Teeter, Scribal Laws (see above note 47); B.W. Breed, Nomadic Text: A Theory of Biblical Reception History, Boomington, IN 2014 and E.L. Gallagher, Is the Samaritan Pentateuch a Sectarian Text?”, ZAW 127, 2015, 96–107.

78 Similarly, as explained in the first section of this investigation, it is uncertain whether the Vorlage that lay before these scribes contained the object marker, 'et, or whether the interpretation reflected in the position of 11QTa took place at a stage when – or on the basis of a Vorlage wherein – no object marker was found.


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