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Civil penalties for sexual perversion

Next, consider the question of sexual union between close relatives.¹ The basic Mosaic statutes are found in Lev. 18:6-18 and 20:11-12, 14, 17-21. Mosaic law makes some distinction between different types of sexual relations between relatives. In Lev. 20:11-14 the death penalty is prescribed for various types of sexual union that confuse the relationship of parent and child. The statutes include all the cases involving relatives by marriage (a man with his daughter-in-law, mother-in-law, or stepmother). By contrast, sexual relations with a sister-in-law or father's brother's wife are punished with childlessness (20:20-21). In case of a half-sister or father's sister or mother's sister, the consequences are vague: the persons involved shall "bear their iniquity" (20:17, 19). For other cases of sexual union between relatives, such as are discussed in Lev. 18:6-18, no direct indication is given as to what penalty is appropriate. Lev. 18:29 makes the general statement that they "shall be cut off from among their people." If this general statement is intended to cover all the cases mentioned in 18:6-23, as seems probable, a penalty involving disqualification from the sacred acts of Israel and perhaps exile may be in view. More likely, the "cutting off" designates an act of God rather than an act of human beings, and no specific civil penalty can be deduced.

Abraham married his half-sister (Gen. 20:12), apparently without God's disapproval. Yet the same practice is clearly disapproved in Lev. 18:9 and 20:19. Perhaps we should understand the prohibition in Leviticus as a special provision intended to be observed only within Israel as a holy community. Yet in his own day Abraham and his family were the initial form of the holy community, and it seems odd that he should not be subject to the same requirements. Perhaps the provision in Leviticus is an additional restriction like the restriction of sacrificing only at a central altar (Lev. 17:8-9), a restriction clearly not applying in Abraham's day. Or perhaps we are to understand that the narrative of Genesis, though not explicitly disapproving of the nature of Abraham's marriage, drops hints of such disapproval through the troubles recorded in Gen. 12:10-20 and 20:1-18. Perhaps the situation here is similar to the absence in the Old Testament of explicit disapproval of polygamy, even though it is not ideal (Matt. 19:5-6). The evidence in this area is complex, and we cannot achieve firm conclusions.

The passage in Gen. 2:24 about leaving one's father and mother may be relevant here. This passage appears to me primarily to enjoin that one should break the earlier legal, social, and emotional attachment in becoming married, so that the integrity and intimacy of the marriage bond is adequately realized. It is dangerous to deduce too much from this passage by itself, in order to deduce a disapproval of marriages between close relatives. Nevertheless, it is still reasonable, particularly in the light of later revelation of God, to see here already a vague hint to the effect that as a general rule marriages should rearrange family lines. If so, the prohibitions in Lev. 18:6-18 can properly be viewed as spelling out general principles inherent in God's purpose in creation, rather than merely special restrictions due to the holiness of Israel. However, there are some exceptions to the principles in the case of marriage of a man to his sister or sister-in-law. For example, at the starting point of the human race, interchange of family lines was of course impossible. Seth would have married one of his sisters, and such a marriage would have been quite in accord with the purposes of God. The levirate marriage in Deut. 25:5-10 represents another exception, introduced in a fallen situation to protect posterity and the inheritance of the land, both of which foreshadow the coming of Christ. Though the case of Abraham's marriage to Sarai is ambiguous, it is possible that it is another exception. Just as the origin of the human race as a whole required an exception to a general principle, so the origin of the Israelite people as a distinctive people of God may have involved an exceptional kind of marrying within the spiritual family. According to Paul, Christians ought to marry only other Christians (1 Cor. 7:39; 2 Cor. 6:14-18). If the same principle applied to Abraham himself, he might have had little choice but to marry a close relative.

On the other hand, marriage of a man to his mother, daughter, mother-in-law, daughter-in-law, stepmother, grandmother, or granddaughter would seem to be a more direct overstepping of the principle of Gen. 2:24, and as such is prohibited in every case. Thus also the penalty articulated in Lev. 20:11-12, 14 is the maximum penalty.

Even if I am wrong about some of these details, we may assume that most of the kinds of sexual union between close relatives, such as are recorded in Lev. 18 and 20, are always sins against God. In conformity with this view, we may observe that almost all societies up to this day have disapproved of at least some types of incest. Social standards and definitions for incest or forbidden sexual relations have indeed varied from place to place but there have always been some such standards. Social standards are often imperfect and distorted, but they still manage partially to reflect God's standards.

Having decided that incestuous relations violate God's standards, we must also consider whether they deserve civil penalties. Let us first restrict ourselves to the "parent-child" form of incest discussed in Lev. 20:11-12, 14. If adulterous union is involved, incest becomes a special case of adultery, and the arguments above apply. If incest occurs between two unmarried people, we must ask who is injured. The people themselves, clearly. But such injury is not legally actionable. Do they injure society? In a general way they do, because society as a whole depends on the family and its lines of authority. But how do we weight the seriousness of this disruption? In Israel the disruption was all the more serious because Israel was supremely obligated to reflect God's holiness and order in her own orderly society. For Israelite society, the holiness of Israel was attacked by perversion in its midst. The statutes on incest contain the repeated phrase "their blood is upon them." They occur in the context of preceding statements concerning the fact that the LORD consecrates Israel (Lev. 20:7-8), a succeeding statement there being "no wickedness among you" (20:14) and at least one statute of a more clear-cut ceremonial order (20:18). All these elements suggest, though they do not make certain, a reference to the special holiness of Israel. The holiness of Israel involves the preservation of distinctions and separations at many levels, including not only separation from immorality generally, but distinctions between clean and unclean foods. Incest, bestiality, and homosexual acts ruin fundamental distinctions and thereby profane Israel's holiness. The penalty is the same as in the other cases of profanation of a fundamental kind. Only consecration to destruction cleanses Israel and imposes on the offenders a fit penalty, namely a further stage of profanation. However, in the cases of incest mentioned in 20:20-21 a lesser penalty is sufficient. When the familial distinctions are not disrupted in quite so fundamental a way, childlessness is a fit penalty, since such a penalty disrupts the family line of the offenders.

I appear, then, to have arrived at some insights concerning not only parent-child incest but homosexual practice and bestiality. All three properly and justly warrant the death penalty in the context of Israel's holiness. In the context of the church, subsequent to the resurrection of Christ, they warrant excommunication (when not repented of).²

But outside the context of Israel or the church as a holy community, the situation is fundamentally different. We still have to reckon with the fact that sexual perversion disrupts the general order of society. Perhaps this fact by itself is enough to warrant a severe reciprocal penalty. If a person disrupts the order of society, society ought in turn to disrupt the order of the offender, possibly even in the form of maximum disruption, namely the death penalty. How do we measure the severity of disruption here? I do not have clear answers, because the disruption involved is deep (pointing in the direction of a more severe penalty) and indirect (leaving us uncertain of the exact form of reciprocity that would be appropriate).

Because the nature of appropriate reciprocal penalties is difficult to assess, cases of incest and homosexual relations between consenting adults are among the most difficult to respond to. Homosexual rape should be dealt with on the same basis as rape against a married person. The remedy of natural marriage is not available, and so the crime falls into the irremediable category even if it is perpetrated against an unmarried person.

Alternatives to my position on sexual crimes

My results are somewhat tentative because of the complexity of the reasoning involved. But I am reassured when I consider the alternatives to my position. Any reasonable alternative must attempt to explain the data from Mosaic law in a consistent way, and must also deal with the issues of justice in modern social settings. There is no easy way to do both.

A rigid position stressing the uniqueness of Israel's holiness might claim simply that Old Testament penalties for sexual crimes are irrelevant. But sexual crimes still exist in modern society. What penalties are just? People in this rigid position can get no form of traction to start to deal with this question unless they are willing to reflect in depth on principles of justice. When they do so, Old Testament law will obviously be suggestive, and they may well arrive at the same practical conclusions as my own.

On the other hand, an opposite form of rigidity would argue that if God's laws are right for Israel they are right for us. People then attempt to apply Old Testament sexual penalties directly to modern society. But they must reckon with some difficulties. (1) In Israel the penalty for intercourse between a married man and an unengaged virgin was polygamous marriage. (2) There is no exact equivalent to a marriage present in modern Western society. (3) The significance of engagement and the relation of father to daughter in Exod. 22:17 seems different than in many modern societies. (4) In Israelite society there seem to be only two main categories of women who have never married, namely virgins and prostitutes. It is unclear how the law would apply to the promiscuous and other nonvirgin single women in modern society.

It is one thing to claim that Mosaic laws were just for Israelite society. It is quite another to claim that Mosaic law requires us to adjust modern society to conform exactly to the practices of Israel. The truth lies between the two extremes. At some points modern society needs reform. At other points ancient Israel society needs reform (remember that the prophets criticized existing society on the basis of God's word). At still other points societies may be structured in more than one way and still conform to God's standards.³

If, then, we cannot reasonably carry over Mosaic sexual law in a one-to-one way, we must assume the responsibility of trying to understand it. Only by discerning the principles of justice can we know what aspects are adjustments applying to particular features of Israelite society and what aspects represent permanent principles.

Once we take the step of trying to understand the law in detail, facts confront us that are difficult to account for. How do we deal with the intercourse between married man and virgin leading to polygamous marriage? How do we deal with the fact that Mosaic law is silent about intercourse between a married man and a prostitute, or between an unmarried man and a prostitute? Not only is it silent in a technical sense, but we can infer from cultural data that no civil penalty was contemplated.

Consider now some alternatives for modern society. We could specify the death penalty for all adultery. But how do we account for the fact that intercourse between a married man and a prostitute received no penalty in Mosaic law or in the Old Testament as a whole, and that intercourse between a married man and a virgin had a different solution?

We could specify the penalty of castration for all adultery. But outside of the context of modern medicine castration of females would be difficult. It seems wrong to claim that such a penalty represents a truly general principle of justice.

On the other extreme, we could specify no penalty for any sexual crime. But such an approach violates everyone's sense of justice. It does not address the questions of obvious injury to innocent spouses and sexual victims in cases of adultery and rape, and the more indirect injury to society as a whole from sexual deviations of various kinds.

We could specify imprisonment in the case of some types of sexual crimes. But the logic of just recompense never points in the direction of prison as a solution. How does such punishment really correspond to the nature of the crime? Moreover, prison is never used as punishment in the Mosaic law, even though the story of Joseph's imprisonment shows that it was a known alternative (Gen. 39:20).

We could specify monetary penalties for all sexual crimes injuring another person. Such a position is not so far away from mine, except in the case of penalties for rape. The case of rape is surely a difficult one, and my own view is therefore quite tentative. But it is at least arguable not only that my proposed punishment corresponds much more exactly to the form of the crime, but that my punishment acts as an effective future deterrent. A fine or even a beating would almost surely be ineffective.