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Penalties for adultery

Next let us consider the crime of adultery. Who is injured and what penalty is executed by whom? In the Israelite setting, it seems that the larger society is injured, because the death penalty is executed not by the husband of the adulteress or the wife of the adulterer, but by "you," a general pointer to the society and its representatives (Deut. 22:22-27). Moreover, in the case of an adulteress, if the husband alone were the offended person, we might expect that the husband would have the right to forgive his wife and release her from the penalty if he wished. But apparently no such option is contemplated within Israel. Of course if a husband caught his wife in the act of adultery, he could remain silent and no case would come to court.¹ But if other witnesses saw the adultery, they could bring the case before the courts on their own initiative. There is no explicit evidence for the possibility of the husband's forgiveness.

In addition, in a related case concerning promiscuity by an unmarried woman, the penalty is executed by the "men of her city" (Deut. 22:21), which may again indicate some injury to the larger society. One possibility is that the structure of society itself is being attacked through an attack on the integrity of its most basic institution, the family. Or does the primary violation consist in attacking public vows that the community as a whole supports? The idea that marriage vows are primarily in view is not convincing, because the explicit language of verse 24 mentions the guilt of "violating his neighbor's wife." If the emphasis had been on the vows, we would have expected reference to "violating the marriage vows" or some such language. Moreover, no explicit vows are involved in the case of promiscuity discussed in verse 21.

How does adultery attack the family? In one sense, the intention of adulterer or adulteress is to disrupt everything as little as possible socially, economically, and politically; they do not want to be caught. An attempt to destroy the state as a whole by rebellion or war might properly be met by destruction of the persons involved. But adultery involves a more subtle attack at a different level. We cannot be absolutely sure how the logic of justice operates. It may be that adultery represents simply a general attack on the structure of society, and hence that destruction of the people involved is the appropriate penalty in any society.

But there is another possibility, namely that the nature of the penalty for adultery is related to the special character of Israel. The family in Israel is the institution through which the commandments of God are passed on (Deut. 6:6-9), through which inheritance of the promised holy land is passed on, and through which genealogical descent reaches out to the Messianic offspring who will bring final redemption. Thus the family in Israel has a special significance beyond what it might have in other circumstances. Adultery constitutes disruption of the orderliness and purity of the line of inheritance.

Moreover, sexual acts in general must not be considered as merely a private affair. They are intimately connected with the concerns of the larger society. Disorderly sexual acts introduce a fundamental disorder into society as a whole. Such disorder is particularly dangerous within Israel, since Israel as the holy nation must reflect the orderliness appropriate to God's character and God's dwelling place. In addition, human marriage is symbolic of the relation between God and his people (Hosea, Ezek. 16). The symbolic dimensions of marriage may also have affected the penalties attached to these crimes.

Within the laws concerning holiness, we have observed a pervasive concern for the contrasts between life and death. This contrast may also provide a rationale for the penalties. Illicit sexual acts are an assault on the womb, which is the source of new human life. If the assault takes place on a woman who is unmarried and unengaged, it is remediable. But if not, the original assault on human life is punished by an parallel assault on the life of the offender. The larger society, and not just the victim, is involved in retribution because the holiness of Israel is compromised by this profanation of life within its midst.

Such observations provide an explanation for a number of otherwise puzzling facts. First, Mosaic law deals in a surprisingly different manner with a pair of analogous cases involving sexual intercourse, namely (1) intercourse between an unmarried man and a married woman, and (2) intercourse between a married man and an unmarried woman. In the first case both man and woman are subject to the death penalty (Deut. 22:22). For the second case, the Mosaic law does not provide any separate discussion. In the abstract it might be argued that we are invited to generalize from the first case, the reciprocal case of a married man and an unmarried woman. But such a conclusion is certainly mistaken. To begin with, the statutes in Exod. 22:16-17 and Deut. 22:28-29 concerning seduction of virgins do not indicate the man's marital status. Technically speaking, these statutes cover a total of three cases, the cases of a unmarried man and a virgin, a married man and a virgin, and an engaged man and a virgin. Within a polygamous society, it is perfectly natural to understand the passages as actual applying to all three. If the male offender were engaged or married, he could be forced to take the girl as a second wife. The girl's father would thus have the same options as in the case of fornication: a marriage present and/or forced marriage without the possibility of divorce.

Moreover, Israelite popular sentiment viewed sexual indiscretion by a man much more leniently than sexual indiscretion by a woman. Popular sentiment would not on its own initiative have seen a direct parallel between male and female offenses. It seems clear that the statutes in Exod. 22:16-17 and Deut. 22:28-29, involving obligatory marriage, were intended to apply to the case of a married man and a virgin, while no civil penalty was specified in the case of a married man and a prostitute.

If the concern of the law is partially with protecting the holy order of Israelite society and the integrity of inheritance, polygamous practice in Israel becomes intelligible. Polygamous practice may, of course, partly be a concession to human sinfulness, as was the case with divorce (Matt. 19:8). It also functioned to protect women's economic status, particularly in times when war decimated the male population. But in addition, at least sometimes polygamy functioned to protect the lines of inheritance and women's fuller participation in social religion. In the system of levirate marriage described in Deut. 25:5-10 a man was supposed to marry his deceased brother's wife. When the living brother was already married, the practice necessarily involved polygamy. This levirate practice was instituted specifically to assure the preservation of inheritance (Deut. 25:6; Ruth 4:5-6). Even apart from the levirate, the practice of polygamy assured that almost all women could enjoy marriage, not only for its economic and legal protection, but for the benefit of participating in the inheritance of the promised land. Women participated through their husbands and through sons who inherited from the husbands. The great reproach involved in childlessness thus becomes more intelligible (1 Sam. 1:1-16; 2:5).

Next, consider the case of intercourse between a married man and a prostitute. The Old Testament clearly indicates that prostitution is sinful (Prov. 6:26; cf. Hos. 4:14). Yet no civil penalty is attached to the act. Why not? The child produced from union with a prostitute would be illegitimate and would not confuse inheritance through the male line. Moreover, sexual looseness on the part of a man does not fundamentally disrupt the order of Israelite society in the same way as does adultery with a married woman. The order of Israelite society guarantees that each woman will be under the authority and protection of one man, whether the man is her husband, or her father if she is a virgin, or perhaps a brother, uncle, or other relative if her husband has died. Her social status is largely determined through the man who represents her. Illicit sexual intercourse with a woman disrupts her entire connection with society, and must necessarily be remedied. Prostitutes are the sole exception, because they themselves already inhabit the borders of society. On the other hand, a married man's relations to the surrounding society are not fundamentally altered or redefined by intercourse with a prostitute.

In addition, intercourse with a prostitute, unlike intercourse with an married woman, does not constitute a direct assault on the womb as the source of life. The prostitute voluntarily gives herself, whereas the married or engaged woman is under her husband's authority and is not free to do what she wishes.

These factors might also account for the penalty being the same for married women and engaged women.² The engaged woman would subsequently become married, and the child born would legally participate in the inheritance. Moreover, her womb is pledged to her fiance. Thus illicit intercourse with an engaged woman would confuse the order of Israelite society and assault the womb just as seriously as did intercourse with a married woman.

It also becomes clear why the death penalty is instituted in the case of the promiscuous girl in Deut. 22:20-21. The girl is not executed for adultery--she may have had intercourse only with unmarried men. Neither is the girl executed simply because she is a prostitute (no such penalty is discussed in the Bible), but because she acted promiscuously "in her father's house" (22:21). The penalty takes place at "the doorway of her father's house." She has confused the integrity of her father's line and introduced disorder into the father's claim of authority over her and her womb. In addition she threatens to confuse the integrity of the line into which she marries and to introduce disorder into its authority relations. By contrast, no penalty falls on foreign women who may come into Palestine and function as known prostitutes. The statute in Deut. 22:20-21 certainly would not apply to them, since Deut. 22:13-17 clearly pictures a situation where the woman becomes married (not at all typical of women known to be prostitutes) and where the husband expects her to be a virgin.

Adultery, then, corrupts the order of authority in Israelite society, corrupts the line of inheritance, and attacks the womb as the source as life. Let us reason in the abstract about what a fit recompense should be within Israel. Just recompense implies first a restoration to the original situation. The line is to be righted. Children born from the union should be regarded as illegitimate. The legitimate authority of the husband or father is reasserted. Second, a penalty of equal weight is inflicted on the offender for evil intent. His and/or her own authority relations, line of posterity, and life is to be destroyed. Death appears to be the necessary penalty.

In our day, the order of society and genealogical descent no longer function to ensure possession of the promised land and to look forward to the promised Messiah. Union with Christ makes us inherit the fulfillment of the promised land (1 Cor. 3:22). Faith and repentance result in the transfer of the pollution of our spiritual inheritance to the finished work of Christ. The death penalty is fulfilled in him. The life/death contrasts in the holiness law no longer function as a symbolic testimony to Israel's special holiness among the nations. Rather, holiness is found in union with Christ and his resurrection to new life. But adultery is still a sin against God. Adultery still damages society, inheritance, and the womb on an ordinary plane. It deeply disrupts the proper meaning of sexual union for the society as a whole. It is not easy to establish the full nature and extent of such disruption. Hence it is not easy to see what the most appropriate penalty might be. At least three main alternatives can be envisioned.

a. Conceivably, the death penalty might still be appropriate because of the depth of destructive forces inherent in the act of adultery.

b. Conceivably, the appropriate penalty might be disruption of the offender's own sexuality, in the form of castration, inflicted by representatives of the society as a whole. In addition a monetary penalty like the marriage present is the appropriate token of attempting to restore the offended party's violated sexuality.

c. Conceivably, a lesser penalty, perhaps only a monetary payment, might be all that was appropriate for social restitution, even though adultery is an exceedingly serious violation in the sight of God.

Is a monetary payment reasonable? In the case of two married persons, typically money would change hands between the two marriages involved, and the net result would be no change. Such a solution would seem to involve only a token penalty. What about forbidding the guilty parties from initiating divorce? This penalty would correspond to the fact that they have broken the marriage relationship on one level and they are forbidden the possibility of breaking it on another. But the penalty by itself does not seem to be very realistic, since often the offended spouse wants the divorce, and if not could be pressured into doing so by repeated acts of adultery. Should there be no penalty? But this option does not deal with the undeniable damage to the spouses of the adulterers.

At a minimum it would seem that the offended spouse should be able to receive a divorce and a payment in money and property. Let us call this view the divorce-and-property position. We could argue for such a conclusion in the following way. Adulterous spouses break the vows committing them to exclusive sexual loyalty and family support. In the act of adultery they renounce marriage and family. In return, the injured spouse may renounce them (divorce) and retain control of the family (children and all property). So far we have singlefold recompense. All these actions constitute simply a recognition of the logical consequences of the act of adultery and ratify the consequences of the act publicly. In my opinion there should also be a penalty for special evil intent. Adultery is worse than desertion or mere failure in positive responsibilities to support. The adulterer, unlike the deserter, tries by concealment to steal rights that he can no longer lawfully claim. Such a penalty should perhaps be paid by both parties involved in adultery, since both are responsible for the damage. More likely it should come wholly from the outside party, since the adulterous spouse has already paid financially. The penalty should at least amount to the value of the modern equivalent of the marriage present. If both offenders are married, two separate sets of penalties are involved. If there are two divorces, both offenders will become financially destitute and both will end up with a period of servitude to pay off their fine.

In considering this position I am assuming that the state may justly allow people to divorce under some conditions. Does this position contradict Jesus' teaching against divorce in Matt. 19:1-12? Actually, it is completely compatible with Jesus' teaching. To begin with, Deut. 24:1-4 indicates that Mosaic law did not legally forbid divorce, but regulated it and guarded against flagrant abuses. Some Pharisees of Jesus' day were using Deut. 24:1-4 to justify the moral legitimacy of divorce (Matt. 19:7). Jesus in reply indicates that according to God's design in creation, marriage is intended to be permanent (Matt. 19:4-8). Divorces take place because of hardness of heart (19:8). Jesus thus does not disagree with Moses or alter the law but reasserts the moral principle of permanency. When the state permits divorce, it does not thereby morally condone divorce but simply legally regulates a situation created by human sin. Its legal permission is in no way equivalent to moral approval. ³

This divorce-and-property position differs on a technical level from the Israelite case of intercourse between a married man and a prostitute, for which there was no civil penalty. Why did intercourse between a husband and a prostitute remain untouched in Israel? Such intercourse did not corrupt the lines of authority, inheritance, and protection of the womb, as we have already observed. Hence it did not threaten the special holiness of Israel and her special relation to inheritance of the promised land. We would therefore logically expect that such intercourse would receive only the "ordinary" penalty for adultery, not the "intensified" penalty due to the special holiness of Israelite inheritance. But instead of an ordinary penalty we find no penalty at all.

The discrepancy is accounted for once we realize that divorce initiated by a woman is not contemplated in the context of Israelite society. If the offended woman does not divorce her husband, what happens to the above penalties? No real penalty falls on the husband because as family head he remains in control of property and children. We might expect a payment to be levied against the prostitute. But of course the nature of prostitution makes it clear that the guilt attaches mainly to the husband for initiating the intercourse. The payment to the prostitute for her "services" tacitly includes acknowledgment of her release from the responsibilities of any penalty. Thus all of the penalties are dissolved and we end up with a situation in which no penalties are imposed, a situation exactly equivalent to the Israelite situation.⁴

Why do women not initiate divorce in Israel? Perhaps the law of Moses was simply adapting itself to the existing form of Israelite society without thereby endorsing that form as an ideal (compare the analogous reasoning in Matt. 19:7-8). More likely, this situation also arises because of the unique significance of family authority and inheritance within Israel. Inheritance is passed on through the male line, so that we do not normally find unmarried women in charge of Israelite property (Num. 27 is an exception, but note the concern that arises in 36:1-4 because of it). Divorce entails a loss against which women need to be protected, not a gain that they would seek.

The case of intercourse between a married man and a prostitute represents an interesting challenge for all interpreters. Those who advocate a more severe penalty for adultery, such as the death penalty, have difficulty explaining how justice is compatible with the lack of penalty for this particular case.

Tentatively, I think that the divorce-and-property position is best. But it is also possible that, even apart from the special holiness of Israel, the attack on the womb as the source of life still merits the death penalty in all cases where the attack is irremediable. I am aware of the difficulties and uncertainties concerning the significance of adultery. Therefore I would stress that we should remain open to a number of alternatives in this case. Many steps of inference are involved in drawing our conclusions.

Nevertheless, it does seem to me probable that the issues of family authority, inheritance, and the symbolic dimensions of human life and death have influenced the penalty system of the Mosaic law. If so, the penalties given there are influenced by matters pertaining to the special holiness of Israel. The violations merit more severe penalties, even the death penalty, because they have profaned Israel in her status of being a holy extended family. If so, modern cases must be dealt with on a different basis. We must reason out what should be just penalties on the basis of general principles of justice. Conceivably adultery is grievous enough as a civil crime, even outside the context of the holiness of Israel, to merit the death penalty. But we must work our way through the issues of recompense rather than simply assuming a pure continuity.

In a general way, adultery does unleash damage on the institution of the family. The family is such a central institution that it is arguable that such general damage to society ought to be recompensed by damage to the persons involved, in the form of the death penalty. Nevertheless, I am not at present persuaded of this view, partly because of the reasoning above about sexual intercourse between married men and prostitutes.⁵

The above reasoning with regard to adultery has assumed that both parties consented to the act of adultery. We still must consider the case of adulterous rape, that is, rape of a married woman or rape by a married man.⁶ The rapist has caused injury both to the woman and to her family. The violence he brought on the sexuality, family, womb, and inheritance of the injured party is to be punished by reciprocal violence against his own sexuality, potential or actual family, and potential descendants. Tentatively, I would suggest that castration seems to be the fit penalty. But it is possible to argue that the general damage done to the woman and the surrounding society is so severe as to merit the death penalty. Again, disagreements are possible, in view of the discontinuities between the Israelite situation and ours. The rapist must also be required to do an act of restoration for damage done. In analogy with the case of fornication, I suggest that he should pay a monetary amount equivalent to the marriage present to the offended family.

One serious objection remains. Why should the penalty for nonadulterous forced sexual intercourse, as in Deut. 22:28-29, be more lenient than the penalty for adulterous rape? In the latter case the act of rape is irremediable. In the former case subsequent marriage of the sexual partners represents a partial remedy restoring the injured person's sexuality, the lines of authority, and the inheritance.

The case of intercourse involving one or two engaged persons (not engaged to one another) still remains open. A solution to the question depends partly on our assessment of the type and degree of similarity between Israelite engagement and modern forms of engagement. Our information about Israelite society is imperfect. But when we operate in terms of general principles of justice, it seems that we can produce a tentative solution. Intercourse becomes irremediable only if engagement is "serious" and socially binding. In many non-Western societies there is some form of premarital arrangement of this type. In American society, engagement is ill-defined and does not seem clearly to have this value.

For the purpose of protecting engaged women against rape and untrustworthy suitors, it may of course be wise either to work for a social redefinition of engagement or, as would be much simpler, to provide in addition to the present loose form of engagement a more formal, legally recognized form, involving the knowledge and consent of the families and from which one party could withdraw only under penalty. Such an engagement would have a socially binding quality warranting the additional penalty in case of violation. In the situations created by the anonymity of modern cities, it would obviously also be wise to have a fixed form of sign connected with the engagement ring, signifying to potential attackers the risks they are taking. All these social details are of course a matter of general Christian wisdom rather than deduction from specific Old Testament directives.

I do not think anyone knows for sure why the penalties for sexual crimes in the Old Testament are exactly what they are. Perhaps the death penalty is the penalty for adultery merely because adultery is so serious a crime and merits the most serious penalty. Perhaps. But how and why is it so serious a crime? The seriousness of a sin before God merits hell, as we have observed. Christians naturally abhor adultery because of its attack against love and family. It is an attack on an institution symbolizing Christ's love for his church (Eph 5:22-33). But these facts by themselves do not enable us to determine what sort of penalty, if any, a sin deserves from civil authorities. The attack on society itself is a serious component in adultery, and certainly should be taken into account. But what exactly are the implications for the form of punishment? Unless we understand the Old Testament better than a minimum amount, we cannot tell for certain whether the special holiness of Israel has an influence on the nature and severity of the penalty. I believe that there is room for debate on this matter.

In any case, we must try to embody the general principles of God's justice in our laws today. The principle of "As you have done, it shall be done to you" is still valid as a guide to determining penalties for crimes today. We must reason on such a basis in trying to deal with the difficulties of sexual crimes.