Commentary on Parshat Ki Tetze (Deuteronomy 21:10 – 25:19)
Laws concerning women’s sexual misconduct are grim testimonies to women’s experiences in cultures where the lion’s share of power and privilege goes to men. But before we can know what to do with these laws, we must clarify what they say and to whom they apply. Then we can ponder their implications.
In Ki Tetzei, Deut. 22:23-27, is a passage with unusual features for biblical legal texts. Its subject is sexual assault upon a me’urasah, a term often incorrectly translated as “engaged woman.” In ancient Israel, marriage occurred in two ceremonies, a year apart. In the first, erusin, the man acquired exclusive rights to the woman. In the second, nisuin, the marriage was consummated and the couple began to cohabit. During the medieval period, the two ceremonies were conflated.
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Zev Falk has termed erusin “inchoate marriage.” After erusin, even though the marriage was unconsummated, a get (divorce consent) would be necessary to dissolve it. The acquired woman is property, but of a peculiar kind: she is responsible for preventing her own misappropriation. How far does her responsibility extend? The answer depends on whether the woman can prove that she did not consent.
The case in verses 23-24 is a rape in the city. If the woman was heard screaming, she can prove non-consent. Even if the rapist completed the act, if screams are attested, she is not liable. But this is a severe standard! Many women freeze under attack and cannot scream or resist. Consequently, some self-defense courses teach screaming. Moreover, is expecting help optimistic? In modern America assault (and murder) cases occur in which the victim’s screams summoned no assistance.
The second case, verses 25-27, is a rape in open country. Here, oddly, biblical law, which is notoriously terse, expends three verses on its ruling. Verse 25 would suffice for a legal ruling: “But if the man comes upon the me’urasah in open country, and attacks her and rapes her, only the man who lay with her shall die.” But the text continues insisting for two more verses and four different clauses that the girl must not be put to death. Verse 26 harangues, “You shall do nothing to the girl. The girl did not incur the death penalty. This case is like that of one man attacking another to murder him.” Verse 27 continues analogizing to male-on-male assault: “He came upon her in the open; though the me’urasah screamed for help, there was no one to save her.”
Why must the text tell us repeatedly not to kill the girl? In the Near East, ancient and modern, and even into Pakistan and India, a custom called honor killing has not been eradicated to this day. A girl whose kin believe she has been sexually polluted is killed to preserve the family honor. Whether she resisted or consented is irrelevant. They dispose of her like a toothbrush misappropriated by someone not its owner. The unusual wordiness of our Deuteronomy text makes sense if it is prohibiting honor killing to people who were accustomed to practice it. The prohibition would be a hard sell. Deuteronomy must recast rape as a violent crime akin to violence against males. Also, redefining lack of chastity not as pollution but as moral choice requires Deuteronomy to regard women as moral actors and not spoiled toothbrushes.
This is the beginning of a moral revolution. It is hardly the end of the revolution. I have argued, following the legal theorist Robert Cover, that law flows from nomos, a moral universe constituted through stories. As we tell new stories, and hear stories that were previously silenced, we build a bridge from the known moral universe to the new moral universe we envision. Deuteronomy began the process. #MeToo stories and our responses to them drive the new vision. Our job is to get out there and work on that bridge.
Rabbi Rachel Adler, PhD, is the Ellenson Professor of Modern Jewish Thought at Hebrew Union College-Jewish Institute of Religion in Los Angeles. She has been one of the first scholars to integrate feminist concerns and perspectives into Jewish thought, law, and ethics.