If a man meets a virgin who is not betrothed, and seizes her and lies with her, and they are found, then the man who lay with her shall give to the father of the young woman fifty shekels of silver, and she shall be his wife, because he has violated her. He may not divorce her all his days. (Deu 22:28-29)Even conceded by some Christians as a difficult passage, or even a harsh one, for those who have read the relevant sections of the Old Testament. The problem is, in part, not due to too much Bible but to too little.
It is worth reading a larger section of Deuteronomy, if not the entire book. Here is a slightly larger section. This comes within laws dealing with sexual crimes and immediately following the issue of sexual fraud.
If a man is found lying with the wife of another man, both of them shall die, the man who lay with the woman, and the woman. So you shall purge the evil from Israel.Adultery is forbidden and both participants are condemned to death.
If there is a betrothed virgin, and a man meets her in the city and lies with her, then you shall bring them both out to the gate of that city, and you shall stone them to death with stones, the young woman because she did not cry for help though she was in the city, and the man because he violated his neighbor's wife. So you shall purge the evil from your midst.
But if in the open country a man meets a young woman who is betrothed, and the man seizes her and lies with her, then only the man who lay with her shall die. But you shall do nothing to the young woman; she has committed no offense punishable by death. For this case is like that of a man attacking and murdering his neighbor, because he met her in the open country, and though the betrothed young woman cried for help there was no one to rescue her.
If a man meets a virgin who is not betrothed, and seizes her and lies with her, and they are found, then the man who lay with her shall give to the father of the young woman fifty shekels of silver, and she shall be his wife, because he has violated her. He may not divorce her all his days. (Deu 22:22-29)
Betrothal was a covenant to get married but the ceremony had not yet occurred and the marriage was not consummated. Thus coitus between a man and a woman betrothed to another was viewed as a violation of that covenant and a form of adultery. As such bath parties were to be executed. Both these situations describe consensual sex. But what if it is not consensual?
The next command states that if a betrothed woman does not consent but is taken by force then she is innocent. She is free but the rapist shall be executed.
Which brings us to the passage in question. There are several things to say about it because our culture is significantly different when it comes to issues of betrothal, marriage, provision, sexual consent.
The first thing to note is that the command is somewhat parallel to the previous commands. Each case reflecting further consideration. Consensual married, consensual betrothed, non-consensual betrothed, unbetrothed. The problem for the modern reader is that he is concerned about the consent but the law is concerned about the covenant. So sex with a person when they are covenanted to another is punishable by death, unless it turns out that it was non-consensual. The woman can not be punished when she was not breaking the covenant. So the last case is not so much discussing consent as it is discussing a case that does not involve transgressing a covenant. The woman is neither married nor betrothed.
So it is difficult to address the consent aspect in a command that is written for the covenant aspect. In the first 2 cases the man lies (shakab) with the woman. In the 3rd the man overpowers (chazaq) the woman and lies (shakab) with her. In the 4th the man seizes (taphas) the woman and lies (shakab) with her.
Now it may be that the man is doing this against the woman's will. The fact that the country or city is not mentioned in this case as it is in cases 2 and 3 means that this case covers both situations. Even so, if she were in the city she would be expected to call out. This means that the case is covering the situation where there may be consent. The term translated "seize" may cover both the concepts of seduction and subjugation.
The command is that the man in this position must take responsibility for his actions. That is he cannot have sex without responsibility. Such actions make the woman unmarriageable in this culture, or at least much less desirable as a wife. He is commanded to pay the bride-price and take her as a wife; that is provide for her. Further, he is forbidden to divorce her; that is his actions mean that he will be forced to provide for the woman for her entire life.
Note that this is not a command for the woman or her father, it is a command for the man. What if the father does not wish his daughter to be married to this man? In Exodus Moses gives this command for a man who seduces a woman and lies with her. This is parallel to the command in Deuteronomy except that the command in Deuteronomy may possibly be read to include both seduction and subjugation as mentioned. Moses writes,
If a man seduces a virgin who is not betrothed and lies with her, he shall give the bride-price for her and make her his wife. If her father utterly refuses to give her to him, he shall pay money equal to the bride-price for virgins. (Exo 22:16-17)
The Bible allows a father to refuse the marriage of his daughter but still demand the bride-price. The ongoing provision for the woman will be the father's responsibility unless the woman subsequently married. Thus Exodus allows an out for the woman via her father if they so wish. But both passages command the man to provide as a husband. He must marry and provide and is forbidden to divorce but the woman could refuse.
The modern Westerner asks who would marry a rapist but this assumes a much different culture. We have a culture of much greater food and wealth; one in which woman frequently provide for themselves. And people usually marry those that they fall in love with.
This was much less common the past. Although there were some women of means in times past, daughters (and sons) were provided for by their fathers until they cot married and then were provided for by their husbands. Famine an starvation were frequent risks faced by the majority of society. Marriages were often arranged. In a culture where food was scarce at times provision was vital. Being able to provide was important in a husband.
It is the view and expectation in all societies that the married couples will be sexually active. In most societies having children is also highly valued. A girl in such a society is concerned that she is provided for and that she will have a family. It is her expectation that she will be having sex with her husband, and that she may have little say (and sometimes no say) in who her husband will be.
That is not to say that romantic love was unheard of (consider Jacob and Rachel, also Canticles); nor that parents never asked their daughters about prospective grooms. It just means that our thoughts about love and consent were not the significance to them that they are to us.
Consider the example of David's daughter Tamar. When Amnon asked her to have sex with him she said,
“No, my brother, do not violate me, for such a thing is not done in Israel; do not do this outrageous thing. As for me, where could I carry my shame? And as for you, you would be as one of the outrageous fools in Israel. Now therefore, please speak to the king, for he will not withhold me from you.” (2Sa 13:12-13)She declined sex but was willing to become his wife if Amnon requested this from the king. Nevertheless Amnon overpowered Tamar and raped her. Then he told her to leave. Tamar viewed Amnon's shaming of her by refusing to marry her as worse than him raping her.
But she said to him, “No, my brother, for this wrong in sending me away is greater than the other that you did to me.” But he would not listen to her. He called the young man who served him and said, “Put this woman out of my presence and bolt the door after her.” Now she was wearing a long robe with sleeves, for thus were the virgin daughters of the king dressed. So his servant put her out and bolted the door after her. And Tamar put ashes on her head and tore the long robe that she wore. And she laid her hand on her head and went away, crying aloud as she went. (2Sa 13:16-19)It is right to see Amnon's behaviour as despicable. Yet moderns struggle to understand why Tamar thought Amnon's rejection of her the greater offence. You cannot assess how her culture viewed the situation from a 21st century Western perspective. In a culture with arranged marriages every women knows that she will have sex with the man who becomes her husband, not a man in the community who she happens to find appealing. This changes how they viewed sexual consent. We struggle because don't grasp the cultural issues. Moderns discuss the concept of marital rape whereas this would have made little sense to the ancients, they thought that married people have sex. Consent had to do with who you were married to, not who you wanted to do it with (though the latter is still a consensual issue). The much bigger issue is, Who is going to provide for me? not, Who am I going to have sex with? because it was assumed you would have sex with the man (husband) who was providing for you.