Women, protection, and the law

“If a young woman who is a virgin is betrothed to a husband, and a man finds 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 out in the city, and the man because he humbled his neighbor’s wife; so you shall put away the evil from among you.” – Deuteronomy 22:23-24.

Lately the news has had several stories from the Middle East and from India of what are called “honor killings.” They are all horrific stories of women who were raped and then killed for not being virgins anymore. Or they were stories of women who married an unapproved man from an inappropriate religion or caste and were killed. There are even more horrific stories around from those areas. There is no excuse from them.

But, if you look at some of the Old Testament laws regarding women, it must be admitted that some of them were also rather horrific by today’s standards. The verse from Deuteronomy quoted above says that the assumption is that if there was no clearly audible “cry” then it is assumed that there was no rape and the woman is killed along with the man because she was engaged to another man. That same chapter also goes on to say that if a woman is a virgin and NOT betrothed, then if she is raped, the man has to pay the father, and must marry the raped woman with no possibility of divorce, ever. This means that the rape victim must now live the rest of her life with the rapist. There are other such laws in Deuteronomy 22.

We hate to admit that some of the behavior that we see in the Middle East with regard to women are exaggerations of laws that actually exist in the Old Testament. But, sadly, some of the behavior actually conforms to Old Testament law. Sadly, some of these laws were adopted into the Christian Empire. Before Constantine, a woman in good standing who was raped was seen as being innocent. Thus, Diocletian, a persecutor of Christians, supported the legal stance that, “The laws punish the foul wickedness of those who prostitute their modesty to the lusts of others, but they do not attach blame to those who are compelled to illicit sexual intercourse by force, since it has, moreover, been quite properly decided that their reputations are unharmed and that they are not prohibited from marriage to others.” Therefore, a raped woman was held to be innocent, to the point that it did not prohibit her from entering into a chaste marriage nor ruin her reputation.

But, when Constantine won the Empire, he changed the Roman law to a more Old Testament model. Under Constantine, the rule was rather different. “If the girl consented, Constantine ordered that she be punished along with the male ‘abductor’ by being burnt alive. If she had not consented, she was still considered an accomplice, ‘on the grounds that she could have saved herself by screaming for help.’ As a participant to the rape, she was punished under law by being disinherited, regardless of the wishes of her family.” One can see the Old Testament law being adopted by the Christian Empire. Coming from that, one can see up until the 1960’s the classical defense position that a man could not be accused of rape if the woman had no injuries and could have possibly cried out. Beginning in the 1960’s, the laws were changed to give more credibility to women who charged a man with rape. While we can argue about how far some of the laws went, few would argue that we ought to return to the 1950’s model.

Sadly, what this means is that as far as legal protections against attack, women were better off under the pagan legal system than they were under the “Christian” legal system. Before Constantine, a man who divorced his wife without clear cause would have to give up the dowry. In fact, women had rights to property and ownership strong enough that basically all property had to be returned to both partners after a divorce. During Constantine’s rule, the result of an “unjustified” divorce could be the deportation of the woman and the man was refused the right to marry again. Uhm, do you see a problem here? The woman was deported!!!!! So, the man actually ends up with the better part of the divorce. That law did not last long after Constantine’s death.

I bring this up to say that we need to be careful about how we speak about women’s rights. Sometimes we speak as though we wish to return to the 1950’s or before. Recently, some political commentators were speaking as though it is a good thing that women earn less than men. But, when we do that, we give a message to any who know history that we are wanting to return to some rather unsavory laws. It should never again be true that a woman is better off under pagan law than under “Christian” law.

I am not in favor of an unqualified return to a supposed Christian golden age of the 1950’s. I am in favor of doing away with the separation of Church and State. But, the danger of adopting a “let’s return to how it was” view of the law is that how it was is not what Christians ought to support uncritically. In particular, I do not wish to return to a nation in which rape could be seen as partially (or totally) the fault of the woman, or in which a “shotgun marriage” could be seen as a good thing. Let me repeat, it should never again be true that a woman is better off under pagan law than under “Christian” law.