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Deuteronomy: The Second Law - Speech 6

A commentary on the sixth speech of Moses in Deuteronomy 21-23. The book of Deuteronomy is a series of 12 speeches that Moses gave just before his death at the end of Israel's wilderness journey.

Category - Bible Commentaries

Chapter 11

Defamation of Character

In Deut. 22:13-19 Moses addresses the problem of false accusation that a man might make against his wife.

13 If a man takes a wife and goes in to her and then turns against her, 14 and charges her with shameful deeds and publicly defames her, and says, “I took this woman, but when I came near her, I did not find her a virgin,”

Virginity was highly valued under Moses, as it was one of the foundations of a moral society. Today the enemies of the Kingdom have sought to break down morality and marriage by normalizing extra-marital sexual relations. Virginity has become valueless.

Moses first deals with the problem of a man making a false accusation against his wife, but he also instructs us what to do if the charge is true. The case was to be taken to the court, and the evidence was to be presented to the judges to see if the charges were true.

15 then the girl’s father and her mother shall take and bring out the evidence of the girl’s virginity to the elders of the city at the gate. 16 And the girl’s father shall say to the elders, “I gave my daughter to this man for a wife, but he turned against her; 17 and behold, he has charged her with shameful deeds, saying, ‘I did not find your daughter a virgin.’ But this is the evidence of my daughter’s virginity.” And they shall spread the garment before the elders of the city.

The rabbis differed in their explanation of the evidence of virginity. Taking this literally, the woman’s father (i.e., the redeemer of blood) was somehow supposed to have in his possession the blood-stained sheet from his daughter’s first night with her husband. Such evidence would have been difficult to obtain, especially if the husband wished to hide that evidence while making his false accusation.

The Burden of Proof

It should also be noted that the burden of proof fell on the disgruntled husband, not upon the woman’s father. She could not be presumed guilty just because her husband accused her. Deut. 19:15 says,

15 A single witness shall not rise up against a man on account of any iniquity or any sin which he has committed; on the evidence of two or three witnesses a matter shall be confirmed.

This law applies to “any sin,” and therefore includes a situation where a man might accuse his wife. Hence, the first thing the judges must ask for is the evidence that the woman’s husband has that proves she was not a virgin. He cannot simply accuse her without proof. If he brings forth proof, then the woman’s father must provide whatever evidence he might have in his possession to vindicate his daughter.

The Law of Jealousy

If the disgruntled husband has no proof, then he is not to take her to those judges—but he does have the option of taking her to the Divine Court on suspicion of adultery. This would then be covered by the law of jealousy in Num. 5:11-31. Needless to say, it could be difficult to prove such cases, and perhaps it is for this reason we see no examples in Scripture—nor even in the Talmud.

The closest we come to such a case is when Joseph discovered that Mary was pregnant during the time of their engagement (Matt. 1:18, 19). In that case we find Joseph deciding to forgive her and put her away privately. He did not act as a jealous husband, for we do not see him taking her to the judges, nor even to the priest who would have administered an oath of innocence. Yet he knew that as the victim, he had the right to forgive her for her presumed sin.

If the woman in question had engaged in sexual relations prior to her engagement, she was not to receive the death penalty, as many think. Instead, her lover was to pay the price of a dowry that would be expected if he had married her. Exodus 22:16, 17 says,

16 And if a man seduces a virgin who is not engaged, and lies with her, he must pay a dowry for her to be his wife. 17 If her father absolutely refuses to give her to him, he shall pay money equal to the dowry for virgins.

The price of the dowry was 50 shekels of silver, which in those days was payment for 100 days of common labor. (A fair wage for a laborer was a half shekel of silver per day.) According to John D. Davis in A Dictionary of the Bible, page 183, “The lowest legal amount seems to have been fifty shekels.”

The Penalty for False Accusation

The case in Deuteronomy 22 is set forth as a case of adultery, not merely premarital sexual relations. Presumably, when the two were first betrothed, it was known and accepted that the woman was a virgin. So if the husband accused his wife of not being a virgin at the time of their wedding, he was accusing her of adultery. In other words, he accused her of having sexual relations with another man after she was betrothed.

Such an accusation, if proven, would give him the clear right to divorce her according to the law in Deut. 24:1-4. Moses then gives the penalty for such false accusation in verses 18, 19,

18 So the elders of that city shall take the man and chastise him, 19 and they shall fine him a hundred shekels of silver and give it to the girl’s father, because he publicly defamed a virgin of Israel. And she shall remain his wife; he cannot divorce [shalach, “send her away”] her all his days.

It is presumed that the husband had already given a dowry of 50 shekels to the father of the bride at the time of betrothal. He was supposed to hold this dowry as a trust fund in case the marriage failed or if her husband died. It was the ancient form of alimony and child support, set up before the marriage began, so that as that fund grew through business investments, it would keep up with the woman’s need as she bore children.

So in the case above, if her husband falsely accused her of not being a virgin, the penalty was double restitution, that is, 100 shekels of silver, to be placed in her trust fund. Secondly, he lost the right to divorce her and send her away. Since his false accusation was presumed to be an excuse to divorce her, his right of divorce was taken away.

Of course, we should not lose sight of the fact that the law determines the rights of sinners and their victims. In no way does the judgment of the law become mandatory against the will of the victim. In this case, the husband lost the right of divorce, leaving this right to his wife alone. She could still leave him, but he could not divorce her. In fact, the extra fine of 100 shekels might give her opportunity to leave, rather than to be confined in a bad marriage for the rest of her life. How could she ever trust him? If she felt that her husband was unrepentant and may threaten her life, she had the right to divorce him.

Is There a Discrepancy in the Law?

There appears to be a discrepancy in the law’s judgment in this case. False accusation was punishable by the same judgment that would have been imposed upon the innocent victim. Deut. 19:19 says, “then you shall do to him just as he had intended to do to his brother.” Yet in the case of a husband accusing his wife of a capital crime (adultery), he is punished only by paying a double dowry as restitution, along with a possible beating (Deut. 22:18). This could be no more than 40 stripes (Deut. 25:1-3).

The basic principle of law is that the judgment must be in direct proportion to the offence. Such an accusation in this case might have gotten his wife stoned to death. So why is the false accuser in this case not executed? I believe it is because executing the man could bring further hardship on the wife, making her an even greater victim. A fine of 100 shekels was a very large sum in those days, and in many cases the man would have no way of paying it.

If he could not pay this double restitution, the law said he must be “sold” as a slave for whatever time it took to pay off the debt (Exodus 22:3). But if the husband were executed, how could he pay the fine? The law does not prescribe the death penalty for those who cannot pay their debts. Moreover, it is presumed—but not demanded—that the falsely accused wife would probably divorce such a husband.

So in this case, the victim (that is, the wife) might be doubly victimized if her husband were executed for false accusation. Where two principles of law appear to conflict, one solution must take precedence over the other. In this case the death penalty is set aside in favor of restitution.

We are given another example in Scripture where two principles of law appear to conflict. The Sabbath law, for instance, forbids work on the seventh day, but if an ox falls into a pit on the Sabbath, should we not labor to set him free? Jesus said as much in Matthew 12:11 and 12, concluding, “So then, it is lawful to do good on the Sabbath.” On the basis of that principle, Jesus saw nothing wrong with healing people on the Sabbath.

This is one of the finer points of biblical law. Not only should we know the law, but we should also know the mind of its Author, so that we know how to balance these laws when they appear to conflict.