Legal technicalities

16 “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. 17 If her father utterly refuses to give her to him, he shall pay money equal to the bride-price for virgins (Exod 22:16-17). 

23 “If there is a betrothed virgin, and a man meets her in the city and lies with her, 24 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. 

25 “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. 26 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, 27 because he met her in the open country, and though the betrothed young woman cried for help there was no one to rescue her. 

28 “If a man meets a virgin who is not betrothed, and seizes her and lies with her, and they are found, 29 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 (Deut 22:23-29).

i) I'm going to comment on a controversial OT law (Deut 22:28-29). Atheists routinely take this to mean a rape victim is required to marry her rapist. Atheists don't bother to exegete the offending text. Rather, you have atheists quoting other atheists quoting other atheists. This is a polemical tradition, handed down without question.

ii) As I've often noted, atheists have no basis to attack OT ethics inasmuch as atheism can't justify objective moral norms. And many secular philosophers admit it.

iii) We need to consider the legal rules of evidence. The Mosaic law must address the challenge of potential crimes for which there's no direct evidence. Take the comparison with murder in Deut 22:26b. Often, there are only two witnesses to a murder: the murderer and the murder victim. The murderer won't incriminate himself while the victim can't incriminate his killer.

So the Mosaic law sometimes resorts to circumstantial evidence. The burden of proof. The Mosaic law will sometimes assign a technical presumption of guilt or innocence depending on the circumstances. That's different from actual guilt or innocence. 

Take the case of a sexual encounter in the countryside, where there are no third-party witnesses. It could be consensual or coercive, seduction or rape. There's no direct evidence. In that setting, the law simply gives the woman the benefit of the doubt. Both parties could be guilty, but that can't be determined as a matter of fact. 

iv) Penalties have a deterrent value. If a single man can engage in sexual activity with no strings attached, then he has no incentive to refrain from so doing. If, however, premarital sex obligates him to pay a fine or provide for the woman, then that's a disincentive. So that protects the woman.

However, deterrents may carry a tradeoffs. When the deterrent works, that's better for the innocent party. It prevents the crime. The innocent party is never victimized in the first place. But when the deterrent fails, it may worsen the situation for the innocent party (i.e. the accused). Laws are often a compromise. 

Take the case, alluded to in v16, where the law infers criminal intent (cf. Deut 19:4-13). That has deterrent value. That's better for the potential victim. But if in fact the belligerent neighbor is innocent, that's far worse for him.  

v) Deut 22:28-29 is ambiguous in several respects. It isn't clear that this is a case of rape. It uses a different word (tapas), and a weaker word ("handle," "take hold of") than the word (hazaq) in v25. Although this might be a synonym, if both cases refer to rape, it's odd that the second case uses a different word and a weaker word. Scholars differ on the connotations of the word.  

vi) Keep in mind that Deut 22:28-29 is a hypothetical case. For hypothetical purposes, the man is presumptively guilty. But that's abstract. 

In a real-life situation, the man may be innocent. The law doesn't specify how the couple were "discovered." Does the woman cry out? Does someone happen to walk in on them? If they were "caught in the act," a witness doesn't know how that was initiated. Is it consensual or coercive? 

So we're dealing with an allegation. Even assuming this law refers to rape, this is an accused rapist. But that doesn't mean the defendant is guilty. 

vii) Moreover, the law may be addressing a question of seduction rather than rape. If so, who seduced whom? How should the law deal with he said/she said allegations?

In either case, the onus is technically on the accused. That's potentially unfair to the defendant, if in fact he's innocent. But because the law must deal with uncertain situations, it sometimes resorts to technicalities. Balancing one potential injustice against another potential injustice. 

viii) There's also the question of whether Exod 22:16-17 deals with the same situation, or a similar situation. Scholars disagree. Even if Exod 22:16-17 only deals with a similar case, that may still have interpretive value in how we construe the details of Deut 22:28-29.

ix) The details may be fuzzy in part because case law is illustrative. It gives a judge general guidelines for adjudicating certain kinds of situations. But the law doesn't address every conceivable situation. So case law often leaves loose ends. OT Judges must exercise discretion. 

x) Assuming that Exod 22:16-17 parallels Deut 22:28-29, the woman is not obliged to marry the accused. But the man is required to pay the equivalent of a fine. Financial compensation. In ancient Israel, deflowering a virgin outside of marriage greatly reduced her eligibility. So whether or not it was consensual, it is still a crime. And the penalty also has deterrent value, reducing the incidence in the first place.