Recently, I had the opportunity to listen to the first half of a debate on God's existence between the Conservative Rabbi David Wolpe and outspoken author Sam Harris. I will not discuss the specifics of their arguments in this post, although I reserve the right to do so in the future. For the time being, I would like to address the interpretation of a passage that Sam Harris cited during his attack on Biblical morality. I found it mildly but not altogether surprising that Wolpe failed to challenge Harris' take on these verses, inasmuch as Harris' description of their content did not accord with the traditional understanding at all. (I suppose, as a Conservative Rabbi, it could be that Wolpe himself does not accept the rabbinic interpretation of these verses.)
DISCLAIMER: In this post, I do not plan on dealing with moral issues related to the death penalty in general, nor do I plan on addressing the propriety of punishing adulterers with execution. This are interesting subjects for future posts.
In an attempt to criticize the moral principles of the Bible, Harris referred to the following passage in Deuteronomy:
When a man takes a wife, lives with her and comes to hate her; and he makes false accusations against her, ruining her reputation, and he says, "I married this woman and came close to her, and did not find her to be a virgin"...And if the matter is true - the young woman was not a virgin - then they shall take the young woman out to the door of her father's house. The people of her ciity shall stone her with stones till she dies, for she committed a despicable act in Israel, to behave immorally in the house of her father; and you shall eliminate the evil from your midst.
Harris did not quote these verses; instead, he cited Deuteronomy as teaching that premarital sex should be punished by death.
First of all, we should note that this is NOT the traditional interpretation or application of this passage. Let us clarify the Rabbinic conception of this law before proceeding to analyze the text more carefully.
I. The Traditional View
In Biblical - and subsequently, Talmudic - times, marriage was conducted in two stages, known as erusin or qiddushin and nissuin, respectively. Erusin, sometimes loosely translated as "betrothal", was a state of full marriage in every sense, except that the partners did not yet live together in one household. The transition to cohabitation as a married couple was marked with nissuin, the truly festive celebration now associated with standing under the huppah, the recitation of the seven marital blessings and the eventual consummation of the relationship.
According to the Rabbis, the Book of Deuteronomy quoted above is speaking of a case in which a woman is suspected of having committed adultery during the "erusin" period, while she was legally married but still dwelling in the house of her father. Premarital sexual relations, on the other hand, are not viewed by Jewish law as a capital crime.
Furthermore, the Oral Tradition teaches that the penalty mentioned at the conclusion of the passage in Deuteronomy would only be applied if two bona fide witnesses testified to the fact that a married woman indeed had relations with a man other than her husband. Circumstantial evidence related to her lack of the biological signs of virginity would never be a valid basis for punishment, because such evidence is never admissible in Jewish courts.
(Interestingly, Alexander Rofe, in his book on Deuteronomy, discusses this problem at length, commenting on how the simple meaning of this passages stands in obvious contradiction to several principles of law and morality expressed elsewhere in the Bible. He notes that the distinction between "betrothed" and "married" invoked by the Torah was widely recognized in the Ancient Near East, and discusses the Rabbinical approach to the difficulty we are discussing in this post. His book also - unintentionally and unfortunately - is an excellent example of how superficial, arbitrary and capricious the arguments of academic biblical scholars can be. His rush to attribute consecutive passages in a single text to multiple authors based on the slightest real or imagined stylistic discrepancy between them is noteworthy. So is the nonchalant manner in which he 'emends' texts whenever they conflict with his theory. But he provides nice resources in any case.)
So there are two key differences between Harris' caricature of the Torah's teaching and the traditional interpretation:
1) According to Harris, the Torah speaks of a woman who had premarital sexual relations, whereas according to the Oral Law it is speaking of a woman who was legally married and committed adultery.
2) According to Harris' reading, we mete out the death penalty based solely on the woman's lack of a hymen. However, the Rabbis insist that such a punishment can only be implemented when the testimony of two witnesses indicts the accused. Mere discovery that a woman is not a virgin is of no significance to us whatsoever.
A survey of some non-traditional commentaries reveals that they are divided in their interpretations of the exact "offense" being punished in the text. (Please note I do not have the JPS Commentary on Deuteronomy at my disposal, so I was not able to consult with it for this post).
II. Alter and Harris' View
Robert Alter seems to agree with Harris' hyperliteral approach that premarital sex is being condemned here. However, there are two serious problems with this explanation.
The first is that, if simply not being a virgin is worthy of the death penalty, then the husband who falsely accuses his wife of this "crime" should receive the selfsame punishment. This would be consistent with the general Biblical principle, established in Deuteronomy itself, that one who testifies falsely against another should be made to suffer the same consequence he tried to inflict upon his victim. Yet we see that, in fact, the husband is merely lashed and forced to offer financial compensation to the disgraced family. This suggests that his accusation, had it been confirmed, would not have led to anything more than financial consequences for the girl - which is exactly what we would have expected based on the Torah's treatment of similar cases in Deuteronomy and elsewhere. (Rofe takes note of this point in his book.)
The second and more fundamental problem with this is that we have clear sources in the Torah that demonstrate that premarital relations are not punishable by death. The most obvious is found in the Book of Exodus, where we read as follows:
When a man seduces a virgin girl who is not 'betrothed' and has relations with her; he shall pay the bride-price* and make her his wife. If the father of the girl refuses, then [the seducer] shall pay him silver according to the bride-price of a virgin.
* It was customary in the Ancient Near East that a groom would pay the father of his bride a fixed sum of money as 'compensation' for the loss the father sustained when his daughter left the household. This is called "mohar", loosely translated as "bride price".
We see that the one-night stand between the paramours in the verse is treated as a financial issue more than any kind of moral transgression (not that it is encouraged, but it certainly isn't seriously condemned either.) So the view that premarital relations alone would make a woman liable for the death penalty is not tenable.
III. Plaut's View
Another explanation is put forth in Gunther Plaut's commentary to the Torah. He argues that it is not the woman's lack of virginity that makes her worthy of death, but her misrepresentation of herself as a virgin that is seen as a heinous crime.
Aside from the moral difficulty involved in the notion that telling a rather trivial lie should make one worthy of death, there is a technical problem with this interpretation - it contradicts the verse itself:
For she committed a despicable act in Israel, to behave immorally in the house of her father.
Hence, the implication is that we are punishing this young woman not for the false advertising, but for the behavior she engaged in while in the house of her father. Whatever penalty she receives is due to immoral conduct that took place before the wedding and not to what she claimed or didn't claim to be when she consented to marriage.
Upon closer inspection, this verse raises many questions. First of all, how do we know she engaged in illicit relations in the house of her father? Simply finding that she is not a virgin might give us pause but does not prove this conclusively. And, as a rule, the Torah demands solid evidence in capital cases.
Moreover, why is the girl's activity in her father's house offered as the basis for her punishment? The husband is concerned with her lack of virginity, and apparently wants to divorce her without financial consequences because he was duped into wedding a non-virgin. The notion that the woman was living immorally in her father's home isn't even alluded to in the husband's speech. It is not a part of his "case".
IV. Substantiating the Rabbinical View
For these reasons, I believe the traditional interpretation is most compelling, even on the level of peshat (simple reading).
The woman in question was already an "arusah", betrothed, in her father's house, and when the man married her he discovered she was not a virgin. This created grounds for suspicion, and perhaps an investigation ensued.
It was subsequently determined, through the testimony of two witnesses, that she had been intimate with another man during the period of time when she was already legally wedded to her husband but was still living at home - i.e., that she had committed a despicable act in Israel, to behave immorally in the house of her father. And it was this fact, and not the claim of the husband per se, that causes her to receive capital punishment.
In fact, the term "liznot bet aviha", which we have translated "to act immorally in the house of her father), is reminiscent of the description of Tamar's behavior when her pregnancy is discovered.
As you may recall, the Book of Genesis recounts that Yehuda's son Er married Tamar, but died without children. In keeping with ancient custom of levirate marriage, Er's brother Onan married Tamar after his brother's death; however, he too died without any children. Tamar was promised as a wife to the third brother, Shelah, who would naturally assume the obligation to marry his childless brother's widow just as Onan did. Yehuda, though, fearing for the life of his youngest son, delays the union as long as he possibly can.
After a while, Tamar, living in her father's house awaiting another levirate marriage, becomes impatient and decides to take matters into her own hands. Her father-in-law, Yehuda, is in town, just now recovering emotionally from the recent death of his wife. (Keep in mind that before the giving of the Torah, the custom of levirate marriage was not restricted to brothers of the deceased husband; the husband's father could also stand in.)
Tamar disguises herself as a prostitute and waits by the roadside. Not recognizing her as his daughter-in-law, Yehuda propositions her and she accepts. Tamar, now pregnant from her secret encounter with Yehuda, returns to her father's home to bide her time. As her pregnancy progresses, it becomes noticeable to others and they inform Yehuda as follows:
"...Behold, your daughter-in-law Tamar acted immorally (zantah), and now she is pregnant as a result of her indiscretions (zenunim)."
(A more precise rendition of "zantah", "liznot", etc., would probably be "to stray", but it is quite often used in a sexual context so I am taking liberty with the translation to fit the context more smoothly.)
Because of the institution of levirate marriage, Tamar was already considered "betrothed" and was expected to remain faithful to her intended husband for as long as was necessary. She was accused of committing the legal equivalent of adultery in her father's house. And here too, the death penalty was recommended only until it was discovered that her affair was with Yehudah himself, making the union a fulfillment, rather than a violation, of her obligation.
Indeed, from this story it is obvious that premarital relations are not a death penalty offense in the Torah's eyes. If they were, then the fact that Tamar wound up with Yehuda should not have been a mitigating factor - after all, the bottom line is that they were not married at the time of their encounter, and they had relations and conceived children out of wedlock!
This proves, contra Sam Harris, that premarital intercourse is not, in and of itself, treated as a capital offense in the Bible. The presumed guilt of Tamar and her initial condemnation were based on her status as a "married woman in her father's house" who committed adultery, and had nothing to do with promiscuity per se. The same goes for the newly married woman in Deuteronomy.