Chapter 13
Penalties for Sexual Crimes

Now we must consider sexual crimes, that is, those that are related most directly to the seventh commandment out of the ten commandments.

Principles involved in understanding Mosaic sexual law

God has designed the sexual bond to symbolize and express the deepest communion and complementarity between a man and a woman in marriage. On the most basic level, sexual crimes all involve violations of this purpose. Human sexuality is also important because it is the means for procreation, by which the earth is to be filled with people made in God's image (Gen. 1:26-28; 5:1-3). In one respect all reproductive capacities of living things are finite, created analogues of God's life-giving power, by which he produces a world revealing his character and human beings who image him in a special way. Human reproduction is exalted above animal and plant reproduction by the fact that it flows from personal communion between man and woman and by the fact that it results in new image-bearers of God.

Since the fall human sexuality is corrupted by sin. Those descended from Adam have sinful natures (see Rom. 5:12-21). Marriage and reproduction are corrupted by accusation (Gen. 3:12), strife (Gen. 3:16), and misuse of sexual intercourse. The bond between God and his people, which is like a marriage bond, is also corrupted by spiritual adultery on the part of Israel.

Christ as redeemer brought the definitive remedy for sexual sins as well as other sins. His own life on earth showed sexual purity coupled with the fullest love for both men and women. In contrast to Israel's spiritual adultery, Christ in his humanity was perfectly faithful to God the Father. In the crucifixion Christ was forsaken by the Father (Matt. 27:46), bearing the pain of a severed relation like that of a severed marriage bond. The new life of Christ's resurrection contains the power to purify the church and to present her to himself as a spotless bride (Eph. 5:25-27). Christ also presents a model for human husbands and wives to imitate (Eph. 5:21-33) and through the Holy Spirit provides the transforming power to conform Christian husbands and wives to his image, so that they display in their own marriages a reflection of his love (Eph. 5:17-21; Col. 3:15-19). The love now displayed in the church and in Christian marriages will be perfected at the second coming of Christ (1 Cor. 13:8-13).

The calling of Christians is a high one. If they are single, their bodies and their sexuality as well as all other aspects of their lives are to be wholly devoted to the Lord (1 Cor. 7:25-35). In particular, fornication is forbidden (1 Cor. 6:12-20). If Christians are married, they are to embody in their marriage the purity, the commitment, and the perfect love of Christ for his church. Mosaic regulations concerning divorce do not lower the standard for sexual purity, but involve a concession to human sinfulness (Matt. 19:3-9).

The Bible's standard for sexual behavior is clear. But what should the church do in cases where it is violated? Offenders must be counseled to repent and to pursue righteousness afresh. If offenders persist in not repenting, they must be excommunicated (1 Cor. 5:5). If they do repent, they are forgiven through the power of Christ's sacrifice. The church as a corporate holy community is also continually purified through Christ.

Repentant offenders must then be helped in practical ways to renew their love and their purity. But renewal is seldom easy. People's tangled lives present us with many hard issues concerning cases of adultery, divorce, and remarriage. Theologians disagree concerning the answers.¹ At least two routes are possible:

A. We could take as our main guide the permission to divorce laid out in Deut. 24:1-4. The church, like Old Testament Israel, is God's holy community. Perhaps, like Israel, it should officially permit divorce and remarriage in a wide range of cases even though it does not morally approve.

B. We could take Matt 19:3-9 as the main statement, and understand it as overriding or altering the provision of Deuteronomy. The church is a more exalted holy community than was Israel. We are united to the risen Christ. In view of this union, a return to the original standard of perfection is required, and the church can no longer permit divorce and remarriage except possibly in cases of adultery and fornication.

In fact, in all probability neither of these solutions represents a complete answer. Deut. 24:1-4 must be used cautiously, for three reasons: Jesus' teaching seriously qualifies it; possibly it is more relevant to the duties of the state than the church; and the new holiness and redemptive power associated with the New Testament church may influence the church's internal practices. On the other hand, Matt. 19:3-9 must also be used with caution. Jesus is not primarily laying down a basis for the operation of church courts, but articulating the perfect standard for marriage based on creation. He does not focus on the question of what to do when others have already violated the standard, but on what the standard in fact is. What is the goal toward which God renews us through the power of his kingdom? It is not easy to deduce the church's corporate duty concerning offenses, because the passages in question are not directly focused on this question. I must therefore refer readers to the extended discussions of divorce and remarriage elsewhere.²

As usual, the justice of Christ is embodied fully in the crucifixion, the resurrection, and his reign in heaven. His justice and purity ought also to be reflected progressively in the purity of the church (Eph. 5:25-26). We know also that Christ's justifice is partially and temporarily shadowed in the state's responsibility to execute earthly justice in the case of sexual crimes. To this earthly responsibility we now turn.

We confront unusual complexities when we consider the laws of Moses regarding sexual crimes. To begin with, for some types of sexual crimes Mosaic law treats men and women differently, because their situations and responsibilities in Israelite society differed. For example, if two engaged or married people have sexual intercourse, the man is guilty. The woman is not unless it can be shown that she willingly consented (Deut. 22:22-27). The Bible is realistic about the fact that men are almost always the offenders in violent sexual crimes, and that they can frequently succeed in overpowering women. Second, in the case of unmarried girls the girl's father is integrally involved in some of the processes (Exod. 22:17; Deut. 22:15-17, 21, 29), because in Israelite culture fathers had responsibilities for their daughters' marriages not fully equivalent to their responsibilities for their sons. To consider matters thoroughly we would have to engage in an extended discussion of the theology of man and woman, but we cannot do so here. Suffice it to say that in general just laws take into account the actual social setting, not a hypothetical setting.

In ancient Israel engagement was similar to marriage from the standpoint of penalties (Deut. 22:22-30; Lev. 20:10). In late twentieth century American society engagement may not have the same meaning, since engagements can be made and broken rather freely. Again, such differences must surely be taken into account, because social setting may affect the significance of some sexual acts. Marriage itself is a socially recognized institution. The exact sequence of social and ceremonial events leading to marriage as a socially recognized and sanctioned bond may differ from society to society. This social and not merely private side to sexual acts is foreign to the consciousness of much of modern Western society, but it is exceedingly important not only for understanding the significance of Mosaic law but for adapting its principles to our situation.

I am convinced that this area of sexual crimes is more difficult than most of the other areas in Mosaic penal law. Because of the relation of sexuality to larger society, and because social structures are subject to change in a way that human nature as such is not, more complex adaptations may be necessary to apply the principles to our situation. In addition, our knowledge of ancient Israelite society is quite imperfect. With our partial information we may incorrectly assess the significance of a particular injunction through misunderstanding its impact on society.

I intend to do the best I can with the available information, and to show how general principles of justice and recompense apply in the case of sexual crimes. But more tentativeness is necessary in this area.

Penalties for fornication

Let us first consider cases concerning the sexual intercourse of two unmarried, unengaged people. Deut. 22:28-29 and Exod. 22:16-17 indicate that the man is forced to marry the woman without possibility of divorce. If the father of the woman refuses to give her in marriage, the offender must nevertheless pay a marriage present. We cannot be absolutely certain, but Exod. 22:16 appears to have in view a case where the woman consents, whereas Deut. 22:28-29 has in view a case where the woman is forced into sexual intercourse. The penalty may possibly have been the same in both cases, but it is much more likely that the amount of fifty shekels in case of forced intercourse includes an extra penalty.³ Fifty shekels is a large amount for the times, not only in comparison with the wage of a laborer, but in comparison to the redemption price for a woman, specified at ten shekels for a woman under twenty years old and thirty shekels otherwise (Lev. 27:4-5). Usually women married before becoming twenty, so that lower figure of ten shekels gives some comparison.

How do these penalties manifest the principles of just recompense? We find out best by asking who is injured and who is paid back. The man and woman are not dealt with equally, partly because the woman may have been forced into intercourse, but also because the father's protection and authority over the woman has been violated, and the woman's position in Israelite society is far more compromised than the man's. Loss of virginity puts the woman socially under reproach, makes her a poor prospect for marriage, and opens the possibility of her becoming an unprotected spinster. In addition we must reckon with the issue of psychological and emotional pain to the woman. Some of the secondary effects of the man's crime are impossible to calculate.

In all the cases of penology that we have already discussed it appears to me that the basic principles of reciprocal recompense leave out of account secondary effects and emotional trauma, however serious these effects may be. For example, who can estimate the emotional trauma involved if a thief steals an heirloom whose value is mostly emotional? Precisely because no one but God can properly assess all these secondary effects, we must leave it to God to do so. The human powers of civil justice cannot extend this far, and so they must stop short with a kind of inevitable imperfection. Surely such must be the case with sexual crimes as well. Our longings for perfect justice and peace will not be satisfied until the Second Coming. Judicial restraint that refuses to right all wrongs but sticks to what it can do with reasonable consistency not only abides by the limits that God has given to human judicial authority but also speaks of the hope of something better.

Violation of sexual purity is a serious sin against God. But civil penalties do not rectify sins on this level. The penalty imposed on the man suggests that civil justice focuses on the more public, societal implications of the man's act. The man has forced the woman and her father into a situation of accomplished sexual union. Sexual union should to the surrounding society signify marriage. But the man has forcibly appropriated the sign of marriage rather than received it by consent and by giving a marriage present. He has stolen away a privilege with respect to the father's child. He must still pay the normal marriage present. So far we have singlefold recompense or restoration. The restoration does not, of course, bring the situation back to exactly what it was beforehand. Such an exact restoration would be impossible. Rather, the restoration has the effect of making the situation like a normal one in which the father gives his daughter in marriage.

But now there must be punishment in addition to restoration. Since the man has forced the father into the position of giving his daughter, the father in turn forces him not only to assume all the obligations of marriage but to continue in them. He cannot divorce her. Thus the forcing of the father's hand is reciprocated by the forcing of the offender's hand. In addition, the marriage payment in Deut. 22:29, in the case of forced intercourse, probably involves something like double the usual amount, so that like the thief the man has paid a monetary penalty for his evil use of violence against the woman.

The father has an additional option, namely to withhold his daughter. In this case the offender pays for the marriage without enjoying it, and thereby receives his penalty. Both restoration and punishment are involved. Restoration takes the form of returning the woman to her father's household. Then the offender must pay the marriage present as punishment for forcible appropriation of what was not his. Once again the monetary penalty would presumably be doubled in case the offender forced himself on the woman.

All the action is seen primarily from the standpoint of the father rather than the daughter. From the standpoint of modern American customs, such a viewpoint appears to be not only queer but demeaning to the daughter. But this appearance is illusory. We must take account of two cultural factors. (1) In ancient Israel daughters were customarily given in marriage at a young age.⁴ They would not have had the maturity to make an independent decision. (2) Marriages in Israel were primarily viewed--as they still are in many non-Western societies--as familial, social, and economic institutions. Moreover, decision-making by whole families, even extended families, was a more common practice than we as individualistic Westerners are accustomed to. Hence marriages arranged by parents seemed natural. Nevertheless, as de Vaux says, "parental authority was not such as to leave no room for the feelings of the young couple. There were love marriages in Israel."⁵

Since intercourse between unengaged, unmarried people still produces fundamentally the same social damage as it did in Israel, it would appear that the same principles of penology should apply now. In fact, since in this situation the Mosaic penalties appear to derive wholly from general principles of concerning justice, there is no reason why we should not consider having basically the same penalties today. We can in this case carry over the provisions of the Old Testament in considerable detail. Certain adjustments need to be made because of the altered social relations between fathers and daughters. The parents of the woman, in consultation with the woman, play the primary role if she is under age, while the woman herself, in consultation with her parents and/or elders of her church, plays the primary role if she is of age.

The remaining difficulty is that American society and many other modern societies have no custom of marriage presents given by the bridegroom and his family to the bride's family. How did the marriage present function in Israelite society? Some have suggested that it was purchase of the bride, but de Vaux argues persuasively that it was more like "a reward for . . . accepting the proposal of marriage."⁶ De Vaux also suggests that "it is probable that the father enjoyed only the usufruct of the mohar [marriage present], and that the latter reverted to the daughter at the time of succession, or if her husband's death reduced her to penury."⁷ Thus the marriage present was treated as part of the daughter's property rather than the father's. Gen. 31:14-16 tends to confirm this idea when it indicates that Leah and Rachel complained that Laban "has been using up the money given for us." Their complaint makes most sense if the marriage present was customarily in the father's control but was nevertheless understood to be for the daughter's benefit.

Among other things the marriage present would have been an incentive for husbands not to divorce their wives, and some financial protection for those who were divorced. The closest modern equivalent is alimony. General principles of justice do suggest the legitimacy of some form of alimony or a substitute for it. In marriage vows husbands commit themselves to care for their wives, and civil authorities may legitimately compel them to carry through this commitment.

In Israelite society the marriage present probably varied in amount depending on the social standing of the bride and groom.⁸ For example, marriage to the king's daughter was a special privilege that could rightly command a special present (1 Sam. 18:23-25).⁹ Such a practice makes sense because the economic standing of the two families would measure the relative economic well-being to which the woman would be accustomed, and hence would also influence the amount of support justly due in case of divorce. Similar factors would influence the amount of payment today (in fact they already do in the case of alimony).

We do not have enough data concerning Israelite society to draw confident conclusions. But if we are right about the economic functions of the marriage present, the equivalent penalty today should provide financial support for the woman for a time period that would be sufficient to enable a woman to obtain some vocational training or make a vocational adjustment. The equivalent of six month's or a year's income of the average full-time working person does not seem unreasonable. Jacob worked seven years for Rachel (Gen. 29:18), but his time of service was probably much longer than the usual equivalent of a marriage present.

In conclusion, in the case of fornication that we are contemplating, the woman's family should have two options. The man may be compelled to marry the woman, without the possibility of initiating divorce proceedings. In addition, he pays the woman's family a cash sum or deduction from his wages (cf. Gen. 29:15-30; Josh. 15:16). The payment becomes a trust representing a permanent source of money for the woman's benefit. The payment is to be doubled in case of forced intercourse. The exact amount of the payment would have to be fixed with reference to prices in modern society. If the woman and her family decide against the marriage, the man must still pay the same amount as a penalty (Exod. 22:16-17).

Some major difficulties remain because of the differences between Israelite society and some recent aspects of Western society. In Israelite society young unmarried women were either virgins or prostitutes. Great social stigma attached to the loss of virginity, and so families protected their daughters until the time of engagement and marriage, which was usually at a comparatively young age. Judges naturally had an obligation to redress sexual violation of virgin daughters. But they had no obligation with respect to prostitutes and no obligation to protect the sexual purity of unmarried, unengaged young men. Such a system made sense within Israel because only the virgin daughters presented the judges with a case of immediate, demonstrable social loss.

But recent trends in the West have moved some elements of Western societies decidedly away from the Israelite situation. In some quarters promiscuity among single people not only flourishes but has a large measure of social acceptance. Hence one could argue that loss of virginity does not represent a socially quantifiable form of damage, and if so no penalty is appropriate. Moreover, one could argue on the basis of the more egalitarian roles of men and women in recent years that equal penalties should attach to both men and women in cases of fornication.

Arguments like these must be carefully weighed, but in this case I do not agree with their conclusions. If any Christians live within a modern society or subculture, they will on their own part wish for their own families and their own children to remain faithful to God's standards for sexuality. The state has a responsibility to act justly in defense of Christian families and any other families who hold to a biblical standard of sexual morality. I believe this responsibility remains even if Christians and other advocates of nonpromiscuity are only a tiny fraction of the total population.

The state can still justly discriminate between the modern analogues of virgins and prostitutes in Israel. If a young woman is demonstrably promiscuous, neither she nor her family can claim special rights in a case of fornication. Her status is similar to that of the prostitute in Israel. She has suffered no demonstrable loss and so can claim no right to a penalty. But as in Israel, within a legal context a young woman is presumed to be chaste until proven otherwise.

What about the argument concerning the more egalitarian roles of men and women in recent times? Despite the social changes in recent times some things remain the same. Because of the creational differences between men and women, the two sexes are not at all interchangeable in the area of human sexuality itself. Their respective contributions to sins of fornication are not equal but complementary. Moreover, the analogy between the sexual act in the context of fornication and the full significance of sexuality in the context of marriage points in direction of understanding sexual responsibilities in a complementary rather than mechanically egalitarian way (see Eph. 5:22-33). In particular I believe that young men can never transfer their responsibilities to young women and complain that they deserve damages on account of loss of virginity. It is their own fault! On the other hand, young women have a right to the protection of their fathers and protection against unscrupulous men. These protections should not lightly be given up on the basis of abstract egalitarian overgeneralizations.

One final difficulty remains. We must consider whether modern cases involving rape of unmarried women are fundamentally different in character from the cases contemplated by Deut. 22:28-29. It is possible that Deut. 22:28-29 is not contemplating forced sexual intercourse between two strangers, but only the case of forced intercourse by a prospective suitor. In the common village setting of Israelite life, the young men and young women would know one another's names, unlike the anonymity of modern cities. Hence the typical offender might be a seducer who, failing to persuade his partner, forced himself on her. Moreover, the key verb used in Deut. 22:28 is different from the one in 22:25, suggesting to some interpreters that 22:28-29 is contemplating a case where the woman offers only token resistance.¹⁰ The man catches her but does not really "force" her.

By contrast, it might be argued that modern urban rape cases are tantamount to adulterous rape. The modern rapist typically intends to violate a woman without knowing or caring whether the woman is married or not. Hence it is arguable that the intent to commit adulterous rape ought receive the same penalty as adulterous rape.

The above argument has some merit, but I am not convinced that Deut. 22:28-29 has such a restricted sense. To begin with, there is no significant difference in meaning between the verbs used in verses 25 and 28.¹¹ The operative contrast between verses 25-27 and 28-29 is not between resistance and nonresistance but between a woman who is engaged and a woman who is not.¹²

Next, the story of Gen. 34:1-7 shows that cases of forced fornication involving virtual strangers would realistically have to be considered within Israelite society. In the absence of any clear-cut, overt restriction within the language of Deut. 22:28-29, it seems altogether likely that judges would have understood verses 28-29 as applying to cases with strangers as well as cases of genuine suitors. If so, the arguments become more complex. For instance, we must ask whether a stranger would know a woman's marital status merely from her style of dress. In many premodern societies, perhaps the great majority of such societies, some distinctions in appearance distinguish married and unmarried women. Probably the same was true for ancient Palestine, though we do not know for certain. The stories about Sarah in Gen. 12:10-20 and 20:1-7 indicate that confusion was possible. But perhaps Sarah dressed in a manner that confused or compromised normal dress codes, in order to comply with Abraham's duplicity. Even if dress codes did distinguish eligible women from others, cases of rape done at night would have potentially presented Israelite judges with difficulties similar to our modern urban cases. Biblical law as a whole does not seem to provide the kind of hints that would be necessary to restrict the scope of Deut. 22:28-29.

In addition, when we turn to our modern cases of urban rape, the situation is not completely clear-cut. Modern American society, for example, still customarily distinguishes married women, engaged women, and eligible single women by means of the engagement ring and wedding ring. In most cases it would be difficult to demonstrate legally that a rapist had no knowledge of the woman's marital status, and without provable absence of knowledge a more severe penalty would not be justified.

In sum, the situations presented to us by modern urban rapes are not entirely analogous to the situations in Israelite society, and we must be cautious about the extent to which the same general principles would apply to all cases. But in the absence of clearer evidence to the contrary, I tentatively advocate treating all cases of forced intercourse with a sexually eligible woman (unmarried and unengaged) on the same legal basis.

Of course, from the standpoint of the woman's family the difference between anonymous rape and an exploitive suitor would be monumental. If the offender were a suitor, the father and the daughter might decide that marriage was the wisest option. If the offender were an unknown rapist, they would naturally decline marriage and settle for the monetary payment. The legal statute nevertheless does not discuss the difference directly--not because it was not important to the family, but because it was not relevant to the governing authorities. By placing the decision wholly in the hands of the family the statutes leave the family with fullest control over all the questions relating to their future.