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© Styx/Koninklijke Brill NV, Leiden, 2005 NIN 4Also available online – www.brill.nl

1 This is an expanded excerpt from a paper, entitled: “Rape, Adultery, Abortion andProstitution: The Regulation of Female Sexuality in the ancient Near Eastern Laws,”read at the 103rd meeting of the American Historical Association in Cincinnati (1988).I wish to thank Richard H. Beal, Charles Gray, Rivkah Harris, Eve Levin, MichaelMurrin, Barbara N. Porter, John E. Scurlock, Margaret Schroeder, and the editors andanonymous reviewers of NIN for reading various drafts of this paper and making manyvaluable comments. Any mistakes which remain are, of course, my own.

BUT WAS SHE RAPED?: A VERDICT THROUGH COMPARISON1

JOANN SCURLOCK

Methodology

It is not generally the custom to draw conclusions from comparisonsmade on the basis of the illuminating insights which they are capableof providing, regardless of boundaries of genre (myth vs. law), of time(ancient vs. modern), of space (old vs. new world) and of religion(Christian, Muslim and pagan). The reason is that to disregard suchboundaries violates a taboo basic to the disciplines of anthropology andsociology against finding common ground between the “primitive” andthe “complex”. However, information drawn from any source may beprofitably compared with any other, provided that proper care is takento avoid decontextualization, and it must be said that overly rigid orimproperly drawn boundaries impede rather than aid scholarship.

Our knowledge of ancient Mesopotamia is based on fragmentarysources. If an unconscious “read in” from our own modern culturalprejudices is to be avoided, conscious comparisons and contrasts needto be drawn between ancient Mesopotamia and other, better known,societies. Those chosen for comparison were selected because they pro-vided source material suggestive of similarities with ancient Mesopotamiawhich were not incidental but which seemed to reveal hidden corre-spondences in underlying law or custom. The treatment of “rape” caseshere discussed was not, to be sure, a “human universal” but, as thedeliberate choice of widely dispersed examples demonstrates, an unsus-pected commonality broadly distributed in both time and space. Manyother choices could have been made; historians in disciplines not

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2 The myth was first translated by Samuel Noah Kramer in his Sumerian Mythology(Philadelphia, 1944), pp. 43–47. Thorkild Jacobsen, “Sumerian Mythology: A ReviewArticle,” JNES 5 (1946): 128–152 (especially pp. 132–134) clarified some of the key pas-sages, and these improvements were incorporated into Kramer’s retelling in S.N. Kramer,ed., Mythologies of the ancient World (New York, 1961), pp. 96–98. The myth was editedwith German translation by Hermann Behrens in his Enlil und Ninlil: Ein sumerischer Mythosaus Nippur, Studia Pohl: Series Maior 8 (Rome, 1978) (cf. An English translation fromBehren’s edition, with corrections and improvements appears in Jerrold S. Cooper’sreview of Behrens in JCS 32 (1980): 175–188, a French translation by S.N. Kramer inJean Bottéro and S.N. Kramer, eds., Lorsque les dieux faisaient l’homme (Paris, 1989), pp. 105–115 and a German translation by Willem. H.Ph. Römer, in Texte aus der Umweltdes Alten Testaments (TUAT ) III/1 (Gütersloh, 1993), pp. 421–434. In this age of com-puters, it is inevitable that the most up-to-date edition (with additional bibliography) isto be found on the World Wide Web. It is part of Jeremy A. Black, et al., The ElectronicText Corpus of Sumerian Literature (http://www-etcsl.orient.ox.ac.uk/#), Oxford 1998.My translation follows Cooper’s except where noted.

3 The original gives a rhapsodic description of the city.4 The traditional reading of this god’s name has been retained to avoid confusion; it

should, however, probably be rendered as Ellil.5 Black translates “holy”. However, KÙ in this context does not mean “holy” but

“pure” or “clean,” that is to say, not muddy.6 Literally: “bright-eyed”.7 He is described as “the master, the great mountain, father Enlil, the shepherd who

determines destinies.”8 This seems a rather peculiar order of events to most modern readers; we would

expect kissing to precede copulation. However, “missionary position” and standing orsitting face-to-face intercourse did not exhaust the possibilities for ancient Mesopotamians.A number of representations of sexual activity from ancient Mesopotamia also showintercourse in a back to front position (with the man standing and the woman bendingover) or a right angle position (with the woman on a bench and the man standing orthe man lying and the woman squatting over him—for details, see Jerry S. Cooper,“Heilige Hochzeit,” in RlA vol. 4/4–5 [Berlin, 1975], pp. 259–269]). It may be, there-fore, that kissing served a natural post-coital function similar to Hollywood’s ritual smok-ing of cigarettes. At least the Sumerians did believe in kissing (for references, see JerryS. Cooper, “Kuss” in RlA, vol. 6/5–6 [Berlin, 1983], pp. 375–379]); in pre-modern

covered in this paper are invited to make these further comparisons forthemselves.

Rape(?) in The Myth of Enlil and Ninlil

There is a Sumerian myth which, in modern colloquial rendering andomitting poetic repetitions, reads as follows:2

A long time ago in our city of Nippur,3 the god Enlil4 was an adolescent boy, thegoddess Ninlil was an adolescent girl, and Nunbarsegunu (Ninlil’s mother) was awise old woman. At that time, Nunbarsegunu gave advice to her daughter Ninlil: “Don’t bathe in the clear5 canal, Ninlil; don’t walk along the banks of theNunbirdu Canal! Handsome6 Enlil, who runs things,7 will see you and when hesees you, he will have sex with you and kiss you8 and when he has enjoyed you

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Japanese society this was considered an “outrageously exotic practice” employed only bytrained prostitutes (see Liza C. Dalby, Geisha [New York, 1985], p. 55).

9 See Römer, TUAT III/1, p. 425.10 See Römer, TUAT III/1, p. 425.11 See Römer, TUAT III/1, p. 425.12 Kramer, Les dieux, p. 107 translates this line: “Sa main toucha ce dont on a tant

envie.”13 These are: “the very fifty great gods, the very seven gods who determine destinies.”14 The term in question (Ú.ZUGX.GE = musukku) was usually used of women who

were in a state of impurity because they were menstruating or had just given birth (CADM/2:239–240). It could, however, be used to refer to a similar impurity resulting fromthe efflux of blood upon breach of the hymen. In the myth of Nergal and Ereskigal,the goddess, whose divine lover has abandoned her, protests that she is musukku’d andconsequently “unable to determine the verdicts of the great gods” (SB version v 7,23;with AHw 678 and against CAD M/2:317b s.v. mùtu mng. a, which attempts to emendthe passage). Ereskigal demands that Nergal be sent back to become her husband orelse she will send up the dead to devour the living (for a translation of the passage inquestion, see A. Kirk Grayson, “Akkadian Myths and Epics” in James B. Pritchard, ed.,A ncient Near Eastern Texts Relating to the Old Testament [ANET ], 3rd edition with supple-ment [Princeton, 1969], p. 511; Benjamin R. Foster, Before the Muses, An Anthology of Akkadian Literature [Baltimore, 1993] and Stephanie Dalley in William Hallo, ed., The Context of Scripture, vol. 1 Canonical Compositions from the Biblical World [Leiden, 1997],pp. 384–390). Presumably, the reference to musukku in our context is to Enlil’s being polluted with Ninlil’s virgin blood.

15 Black translates “in accordance with what had been decided”, following Römer,TUAT III/1, p. 427 (also Behrens, Kramer and Jacobsen). However, with Cooper, JCS32:182, 186, this is an impossible translation of dEn.líl níg.nam.sè nam.mu.un.tar.ra.ke›which is transitive and clearly marks Enlil as the subject.

16 It is interesting to note that, although Mesopotamian gods could make law, they

and gotten you pregnant, he will abandon you!” This was good advice that hermother gave her.

(However), Ninlil went and bathed in the clear canal and walked along thebanks of the Nunbirdu Canal. Handsome Enlil, who runs things, saw her there.He said to her, “Let me have sex with you,” but she wouldn’t agree to do it with him there; Enlil said to her, “Let me kiss you,” but she wouldn’t agree to do that there either, saying: “My vagina is young, and has never known preg-nancy.9 My lips are young, and have never known kissing. My mother and fatherwill find out, and I will be beaten and will no longer be allowed to talk to my girlfriend(s).”10

Enlil called to his servant, the god Nusku (who was eager to help) and said:“Has anyone ever had sex with and kissed a young woman as beautiful as Ninlil?”11

Nusku brought his master something in the way of a boat. If he sailed downstream,how could he fail to have sex with Ninlil and kiss her? Enlil found Ninlil aftersome searching and took her hand.12 How could he fail? At a spot(?) on a smallbeach he lay with her; there, he had sex with her and kissed her and, in so doing,impregnated her with the moon god Suen.

(Sometime later), when Enlil was passing through Kiour (Ninlil’s house), the othergods who run things13 seized him, saying: “That dirty14 Enlil must leave the city(of Nippur)!” Enlil, in accordance with the rule which he himself had made,15

went away.16

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were not above it. This concept of the legislator or legislative body being “above thelaw” is a natural outgrowth of societies, as ancient Greece and Rome, in which it ismen rather than gods who make the law and is, even in that context, an innovation ofthe Roman Empire (and an essential component of the new office of emperor createdby Augustus). Ancient Greek gods were not above the law in this sense. What they werewas lawless, that is, they did what they pleased, bound by no convention of their ownor any other’s making.

17 Untranslated in Cooper’s and Kramer’s editions. Literally: “It being the case thatyou have made a determination as to my mind and given heed to my word.” SeeBehrens, Enlil und Ninlil, pp. 218, 226 (line 130).

18 Untranslated in Cooper’s and Kramer’s editions. I follow the reading given in M. Green’s review of Behrens in BiOr 39 (1982): 341, but construe the passage as aquestion rather than a statement. Green (BiOr 39: 340–341) wishes to make Ninlil theinstigator of the intercourse, but, with Cooper, JCS 32:183, the rest of the conversationwould seem to argue against this interpretation.

19 Black translates: “Enlil got her (Ninlil) to lie down”, following Römer, TUAT III/1,p. 429 who follows Jacobsen’s squeamish insistence on missionary position for the lovers.With Cooper, JCS 32:187, 188 (also Behrens and Kramer), this is an implausible trans-lation for dEn-líl . . . ba.ná, which is clearly intransitive.

20 The choice of position suggests that Enlil intended for Ninlil to sit on him (see n.8).We would depict the woman as lying down or being laid on her back by the man,but then our views on the subject are probably more influenced than we would like bythe Christian notion that certain popular ancient Mesopotamian sexual positions are“unnatural”, the back to front position because it imitates animal intercourse, or (worse)makes the woman look like a passive homosexual, and the woman on top positionbecause it violates the “divinely ordained structure of the universe” by making the femaleseem to dominate the male (for a discussion of such beliefs, see Eve Levin, Sex and Societyin the World of the Orthodox Slavs 900–1700 [Ithaca, 1989], pp. 172–173, 199). These philo-sophical difficulties with sexual positions other than the “missionary” are not shared byMuslims: “Your women are a field for you (to cultivate), so go to your field howeveryou wish” (Koran 2:223). In any case, the choice of such a position for intercourseclearly indicates that, for this and the subsequent two couplings at least, Ninlil was notbeing coerced (see n. 37).

(However) wherever he went, Ninlil followed him. Enlil told the gatekeeper (of the netherworld): “Gatekeeper, your mistress Ninlil will be coming soon; if she asks you about me, you mustn’t tell her where I am.” Ninlil said to (him whom she thought to be) the gatekeeper: “Gatekeeper, where has your master Enlil gone?” but it was (really) Enlil in the guise of the gatekeeper to whom shewas speaking. Enlil answered her: “I’m sorry, beautiful one, but my master Enlil,who is lord of all the lands, wouldn’t tell me. But, allow me to make a sugges-tion.”17 “Must you fill my womb which needs emptying?18 Enlil, lord of the lands,has [had sex] with me. If Enlil is your master, then I’m your mistress.” “If you’remy mistress, let me touch your . . . !” “(But) I’m pregnant with the god Suen byyour master.” “Let my master’s semen go to heaven, let my semen go to thenetherworld. Let my semen go to the netherworld instead of my master’s semen.”Enlil lay down in the bed chamber19 in the guise of the gatekeeper.20 There, hehad sex with her and kissed her and, in so doing, impregnated her with Nergal(a netherworld god).

Wherever Enlil went, Ninlil followed him. Enlil went up to the man of thenetherworld river and said: “Riverman, your mistress Ninlil will be coming soon;if she asks you about me, you mustn’t tell her where I am.” Ninlil went up to(him whom she thought to be) the riverman and said: “Riverman, where has your

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21 The reading of the name is unsure; some scholars prefer to read it Silulima; seeRömer, TUAT III/1, p. 432 for previous bibliography.

22 See Cooper, JCS 32:188.23 This rule applied even to gods who chose voluntarily to go there—the classic exam-

ple of this is the myth of the descent of Istar into the netherworld and her subsequentredemption by her lover Dumuzi, who was sent to take her place. For a translation ofthis myth see S.N. Kramer, “Sumerian Myths and Epic Tales” in ANET, pp. 52–57and E.A. Speiser, “Akkadian Myths and Epics” in ANET, pp. 106–109 as well as Dalleyin Context of Scripture, pp. 381–384 and Foster, Before the Muses, pp. 403–409. For adiscussion, see Kramer, Mythologies, pp. 107–115.

master Enlil gone?” but it was (really) Enlil in the guise of the riverman to whomshe was speaking. Enlil answered her: “I’m sorry, beautiful one, but my masterEnlil, who is lord of all the lands, wouldn’t tell me. But, allow me to make a sug-gestion.” “Must you fill my womb which needs emptying? Enlil, lord of the lands,has had sex with me. If Enlil is your master, then I’m your mistress.” “If you’remy mistress, let me touch your. . . !” “(But) I’m pregnant with the god Suen byyour master.” “Let my master’s semen go to heaven, let my semen go to thenetherworld. Let my semen go to the netherworld instead of my master’s semen.”Enlil lay down in the bed chamber in the guise of the riverman. There, he hadsex with her and kissed her and, in so doing, impregnated her with Ninazu (anothernetherworld god).

Wherever Enlil went, Ninlil followed him. Enlil went up to Silusi,21 the ferry-man (of the netherworld) and said: “Silusi my ferryman, your mistress Ninlil willbe coming soon; if she asks you about me, you mustn’t tell her where I am.” Ninlilwent up to (him whom she thought to be) Silusi the ferryman and said: “Ferryman,where has your master Enlil gone?” but it was (really) Enlil in the guise of the fer-ryman to whom she was speaking. Enlil answered her: “I’m sorry, beautiful one,but my master Enlil, who is lord of all the lands, wouldn’t tell me. But, allow meto make a suggestion.” “Must you fill my womb which needs emptying? Enlil, lordof the lands, has had sex with me. If Enlil is your master, then I’m your mistress.”“If you’re my mistress, let me touch your. . . !” “(But) I’m pregnant with the godSuen by your master.” “Let my master’s semen go to heaven, let my semen go tothe netherworld. Let my semen go to the netherworld instead of my master’ssemen.” Enlil lay down in the bed chamber in the guise of Silusi the ferryman.There, he had sex with her and kissed her and, in so doing, impregnated her withEnbilulu (yet another netherworld god).

Enlil, you are lord and master; you are strong and mighty. You make the bar-ley and flax grow; you are lord of heaven and earth. What you have commanded,no one may alter. May you be praised for your attentive care22 for mother Ninlil!

The Sumerian myth breaks off rather abruptly, omitting the dénoue-ment. We know, from the mention of our protagonists’ passing by thegatekeeper (of the netherworld), the man of the netherworld river andferryman (of the netherworld), that Enlil and Ninlil went to what theancient Mesopotamians called the “land of no return,” with good rea-son, since it was impossible to come back from it alive without leavingbehind something or someone as ransom.23 ÆFN1Ø Since the threegods who were engendered by Enlil while he and Ninlil were on theway to the netherworld are known from other sources to be netherworld

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24 For details, see Kramer, Les dieux, pp. 111–113.25 In this context, Ninlil’s seeming willingness to jump into bed with various minions

of the netherworld becomes more comprehensible. In this way she could ensure that itwould not be Enlil’s children who would have to be given as substitutes for the twolovers and their child.

26 On this point, see also Jacobsen, JNES 5: 133–134; Kramer, Mythologies, p. 98;Cooper, JCS 32: 183 and Green, BiOr 39: 340.

27 It is, of course, perfectly conceivable that Ninlil recognized her lover and playedalong in a spirit of fun and/or to help him deceive the queen of the netherworld.

gods,24 it seems reasonable to suppose that these three children wereleft behind (as ransom)25 when Enlil, Ninlil, and Suen returned to theupper world.26 We may thus reconstruct the dénouement of the mythas follows: After a suitable interval, Ninlil gave birth to her four children;three of them remained in the netherworld to become gods otherwiseknown to the audience as netherworld figures. Ninlil, her lover, and herson the moon god, on the other hand, all went back up to heaven andlived happily ever after. Since, in Sumerian mythology, Ninlil is Enlil’swife, we may also presume that he made an honest goddess out of herin the end.

What is interesting to us in this myth of Enlil and Ninlil is the infor-mation on Sumerian social customs which is woven into the tale. Wemust, however, be careful to distinguish the sort of behavior whichmight have been acceptable in a real life situation from that demandedby the narrative. Although the first part of the myth was, as we shallsee, drawn from life, the same cannot be said for Ninlil’s three encoun-ters with the denizens of the netherworld; a young Sumerian womanwho engaged in willing sexual intercourse with men other than her lovercould hardly expect him to marry her afterwards. However, since Enliland Ninlil were the parents not only of the moongod Suen, but alsoof three netherworld divinities, the myth had to have Ninlil be impreg-nated three times in the netherworld. Since, moreover, these three chil-dren were apparently to be sacrificed to ransom Enlil and the alreadypregnant Ninlil from the netherworld, it was just as well that someoneother than Enlil fathered them. Despite the presence of such extenuat-ing circumstances, it is interesting to note that the myth does not goso far as to have Ninlil actually be unfaithful to her lover. Althoughshe appears to engage in willing intercourse with three strange youngmen, the myth is careful to save her virtue by having all of her sexualpartners turn out to be Enlil in disguise.27

What, then, of the first part of the myth? In view of the fact thatNinlil was, at least initially, somewhat resistant to Enlil’s advances, andthat the council of gods forced Enlil to leave Nippur because he had

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28 Jacobsen, JNES 5: 132–133; Cooper, JCS 32: 180; Green, BiOr 39: 340. Note espe-cially: “The violation he [Enlil] committed was having intercourse with a woman againsther will (and her mother’s)” (Cooper, JCS 32: 182). This interpretation has also beenpicked up by non-Sumerologists: Geoffrey S. Kirk, Myth: Its Meaning and Functions in ancientand Other Cultures, Sather Classical Lectures 40 (Cambridge, 1970), p. 99.

29 Cooper, JCS 32: 180.30 We have, apart from edicts such as that of Uruinimgina, the laws of Ur-Nammu

(UN), the laws of Lipit-Istar (LI), a miscellaneous collection of Sumerian laws (YBC2177), the laws of Esnunna (CE), the laws of Hammurapi (CH), the Middle Assyrianlaws (MAL), the Hittite laws (HL), the so-called Neo-Babylonian laws (NBL), and theBible. For references and bibliography to Mesopotamian texts, see R. Borger, Handbuchder Keilschriftliteratur, vol. 3 (Berlin, 1975): §§ 23, 139. For editions or translations of indi-vidual collections of legal pronouncements, see R. Borger, H. Lutzmann, W.H.Ph. Römer,and E. von Schuler, Rechts- und Wirtschaftsurkunden, Historisch-chronologische Texte, TUAT 1/1(Gütersloh, 1982); J.J. Finkelstein, Th. Meek, S.N. Kramer, and A. Goetze in J.B.Pritchard, ed., ANET£, pp. 159–198, 523–526; M.T. Roth, Law Collections from Mesopotamiaand Asia Minor, SBL Writings from the ancient World Series 6 (Atlanta, 1995; 2nd ed.1997); M.T. Roth and H.A. Hoffner in W.W. Hallo, ed., The Context of Scripture vol. 2(Leiden, 2000), pp. 332–361, 408–414; S.N. Kramer, The Sumerians (Chicago, 1963), pp. 317–322; F. Yildiz, “A Tablet of Codex Ur-Nammu from Sippar,” Orientalia N.S.50 (1981): 87–97; R. Yaron, The Laws of Eshnunna, 2nd ed. ( Jerusalem, 1988); G.R.Driver and J.C. Miles, The Babylonian Laws (Oxford, 1955); G.R. Driver and J.C. Miles,The Assyrian Laws (Oxford, 1935); G. Cardascia, Les Lois Assyriennes, Litteratures Anciennes du Proche-orient 2 (Paris, 1969); J. Friedrich, Die hethitischen Gesetze, Documenta etMonumenta Orientis Antiqui, 7 (Leiden, 1959), H.A. Hoffner, The Laws of the Hittites: ACritical Edition, Documenta et Monumenta Orientis Antiqui 23 (Leiden, 1997); E. Szlechter,“Les Lois Néo-Babyloniennes,” Revue Internationale du Droit Antique 18 (1971): 43–107, 19(1972): 43–126, 20 (1973): 43–50.

31 On this point, see also Tikva Frymer-Kensky, Reading the Women of the Bible (NewYork, 2002), pp. 182–197.

had sexual intercourse with her, it has become common amongSumerologists to apply the term “rape” to Enlil’s offense.28 This appli-cation has, in turn, led scholars to try to understand the behavior ofthe participants of the myth in terms of this crime: “The psychologicalportrait of Ninlil, who followed the man who raped her, yet had to betricked into repeated acts of intercourse with him, is an early attestationof the well-known ambivalence of the victim toward the oppressor, espe-cially in sexual contexts.”29

While I am certainly in favor of the use of comparative material totease meaning out of difficult texts, I believe that it is essential to chooseone’s analogies with great care. If Enlil’s offense is to be understood inlegal terms, it is, in my view, to be understood in terms of Sumerian(or at least ancient Near Eastern) law, and not the law of 20th centuryAmerica, unless, of course, the modern and the ancient law happen tocoincide. As we shall see, the peoples of the ancient Near East (includingIsraelites and Hittites as well as Babylonians and Assyrians)30 regardedsex offenses in a rather different light from our own.31

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32 For more information on these laws, and others relating to women in the ancientNear East, see Sophie Lafont, Femmes, droit et justice dans l’Antiquité orientale, Orbis Biblicuset Orientalis 165 (Göttingen, 1999). Lafont subdivides her discussion into a chapter on“rape” (pp. 133–171) and a chapter on “seduction” (pp. 93–131).

33 UN 6.34 UN 7.35 A woman was not expected to scream where she could not be heard; in such cir-

cumstances, resistance was presumed: “If a man seizes a woman in the mountains (it is)the man’s crime, and he shall be put to death” (HL 197); “If within the city a mancomes upon a maiden who is betrothed, and has relations with her, you shall . . . stonethem to death: the girl because she did not cry out for help though she was in thecity . . . Thus you shall purge the evil from your midst. If, however, it is in the openfields that a man comes upon such a betrothed maiden, seizes her and has relationswith her, the man alone shall die. You shall do nothing to the maiden, since she is notguilty of an offense for which the punishment is death. This case is like that of a manwho rises up against his neighbor and murders him: it was in the open fields that hecame upon her, and though the betrothed maiden may have cried out for help, therewas no one to come to her aid” (Deut. 22.23–27). According to CH 155–156, a woman(whether she was a virgin or not) was not considered at fault if she was taken advan-tage of by her father-in-law: “If a man chooses a daughter-in-law for his son and hisson gains (carnal) knowledge of her (and) he (the father-in-law) afterwards lies in her lapand they catch him, they bind that man and throw him in the water (to drown). If aman chooses a daughter-in-law for his son and his son does not gain (carnal) knowledgeof her and he (the father) lies in her lap, he pays her one half mana (thirty shekels) ofsilver and, in addition, he repays to her whatever she brought from her father’s houseso that a man of her choice may marry her.”

Rape(?) in ancient Near Eastern Collections of Laws

In modern times, rape is conceived of as a crime in which a man hasintercourse with a woman without her consent. If convicted, the rapistis subject to punishment; if acquitted, he is allowed to go free, but nopunishment (other than the loss of her case) is contemplated for thewoman. Up to a point, Sumerian pronouncements on the subject ofadulterous intercourse are analogous to this modern conceptualization.32

“If a man deflowers a young man’s virgin wife using violence, they killhim;”%UN6%33 however, “If a young man’s wife, on her own initia-tive, follows another man and he sleeps with her, they kill the woman,but the man shall be set free.”34

Moreover, as we shall see, parallel laws from the ancient Near Eastproject a concept of “violence” along lines familiar from more modernrape cases. If the incident occurred in a public place where the womanhad a perfect right to be, or in another woman’s house, or if she resistedher attacker, or if, having been caught in a place where nobody couldhear her screams,35 she complained immediately afterwards, then theman was killed and the woman was considered guiltless. From the laws

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36 CH 130.37 MAL A 12. In this and the preceding law, emphasis is placed on the man’s “pin-

ning down” his victim (CH 130) or being “caught on top of her” (MAL A 12). Notealso MAL A 55 (see n. 59), where the victim is “pressed down” (mazû, the D stem ofwhich is translated “rape” in CAD M/1 440a and “(Mädchen) vergewaltigen” in AHw637, actually means “to press” or “to squeeze out liquid” (AHw 637 “auspressen”), moreusually said in the G and N stems of ingredients being prepared for use in medicine[CAD M/1 439–440]). It would appear from these examples that the fact that the “mis-sionary position” had been employed helped to strengthen the married woman’s argu-ment that she had not agreed to the adulterous intercourse.

38 MAL A 23. As may be seen from this law, a married woman did not rouse anysuspicions as to her virtue by visiting another woman’s house alone, provided that shetook the proper steps if the woman she was visiting turned out to be a procuress (seebelow). It is interesting to note in this connection that MAL A 24, which punishes awoman running away from her husband, specifies that the culprit has spent three orfour nights in another woman’s house. It would seem from this that a woman mighteven spend one or two nights at a friend’s house without bringing down the wrath ofthe community on her head (see Cardascia, Lois, p. 146). No punishment is meted outin MAL A 22 to a woman who goes on a trip with her father or brother or son (seep.%MAL22%) and we may perhaps assume, on analogy with custom in (Amran in

of Hammurapi we have: “If a man pins down the wife of another manwho has not known a male and is living in her father’s house and thenlies in her lap and they catch him, that man is killed; that woman isreleased”%CH130%36 to which the Middle Assyrian laws add: “If aman’s wife passes through the squares (and) a man seizes her (and) saysto her: ‘I want to have intercourse with you,’ (and) she does not agree(and) defends herself continually (and) he takes her forcibly (and) hasintercourse with her (and) either they catch him on top of the man’swife or witnesses prove that he had intercourse with the woman, theykill the man (and) the woman has done nothing wrong”;37 and “If aman’s wife takes another man’s wife to her house (and) gives her to aman for intercourse and the man knows she is another man’s wife, theydo to him as they would do to one who had intercourse with anotherman’s wife and as the husband of the woman does to his slept-withwife, they do to the procuress. But if the husband of the woman doesnot do anything to his slept-with wife, they do not do anything to theman who had intercourse (with her) or to the procuress (and) they letthem go. And if the man’s wife did not know (what was going on) andthe woman who took her to her house made a man enter to her byforce and he had intercourse with her, if after she leaves the house shesays she was subjected to intercourse, the woman is released (and) cleared.They kill the man who had intercourse (with her) and the pro-curess.”%MAL23A%38

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Yemen (Susan Dorsky, Women of (Amran [Salt Lake City, 1986], pp. 141–143), in Egypt(Hani Fakhouri, Kafr el-Elow: An Egyptian Village in Transition, Case Studies in CulturalAnthropology [New York, 1972], p. 61), and in Palestine (Hilma Granquist, MarriageConditions in a Palestinian Village, vol. 2. SSF VI.8 [Helsinki, 1935], pp. 218–256), that theusual way a woman expressed her dissatisfaction with her marriage was by runninghome to her relatives. Similarly, medieval Russian law allowed a husband to divorce hiswife on suspicion of adultery if she travelled in the company of other men or slept out-side the home (Levin, Orthodox Slavs, pp. 115–116, 122) but “in seventeenth centuryRussia, dissatisfied wives could legitimately seek refuge with their natal families, as eccle-siastical court cases testify” (personal communication, E. Levin).

39 MAL A 13.40 MAL A 22.41 MAL A 16.42 MAL A 23.

If, on the contrary, the putative victim went to visit the “rapist” inhis house or invited him into her own house or went on a journey withhim, if she initially led him on and only tried to resist when it wasalready too late, or suspiciously failed to complain afterwards, or if she was loitering in places frequented by prostitutes, the man could bepunished to the same degree as the erring wife, required to pay dam-ages, or released, depending on the circumstances. The Middle Assyrianlaws have: “If a man’s wife leaves her house and goes to a man wherehe lives (and) he has intercourse with her (and) he knows that she isanother man’s wife, they kill the man and the woman too;”39 “If anotherman, not her father, her brother, or her son, takes a man’s wife on ajourney and does not know that she is another man’s wife, (if ) he swears(this), then he gives two talents of tin to the woman’s husband. If [hedid know], he gives damages [and swears]: ‘If I had intercourse withher, (may I be punished)!’ But if the man’s wife [says]: ‘He had inter-course with me,’ [after] the man gives damages to the man (whose wifehe took on a journey), he goes to the river ordeal. There are no con-tracts for him—if he turns back from the ordeal (i.e. cannot prove hisinnocence), they do to him as the husband of the woman did to hiswife”%MAL22%;40 “If a man [(is to) have intercourse with] anotherman’s wife at her invitation . . . (but then) he has intercourse with her by force, (if ) they prove it of him, his punishment is the same asthat of the man’s wife;”%MAL16%41 “But if the woman does not say (anything), the man imposes what punishment he pleases on hiswife; they kill the man who had intercourse (with her) and the pro-curess;”%MAL23%42 and “If a man has intercourse with another man’swife in a tavern/brothel or in the square . . . If he does not know she

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43 MAL A 14. For the rationale behind this law, see p. %MAL14A%.44 HL 197.45 This was either death: “If a young man’s wife, on her own initiative, follows another

man and he sleeps with her, they kill the woman” (UN 7); “If a man’s wife leaves herhouse and goes to a man where he lives (and) he has intercourse with her . . . theykill . . . the woman” (MAL A 13); cf. HL 197 (see p. %HL197%); Deut. 22.23–24 (seen. 35) or some other punishment determined by the wronged husband: “If a man [hasintercourse with] another man’s wife at her invitation . . . the man imposes on his wifewhat punishment he wishes” (MAL A 16); cf. MAL A 14 (see p. %MAL14%); MAL A22 (see p. %MAL22%); MAL A 23 (see p. %MAL23%). Note MAL A 56 (see n. 59).

46 “If a man’s wife leaves her house and goes to a man where he lives (and) he hasintercourse with her (and) he knows that she is another man’s wife, they kill the manand the woman too” (MAL A 13); cf. MAL A 23 (see p. %MAL23%); “If within thecity a man comes upon a maiden who is betrothed, and has relations with her, youshall bring them both out to the gate of the city and there stone them to death: thegirl because she did not cry out for help though she was in the city, and the manbecause he violated his neighbor’s wife. Thus you shall purge the evil from your midst.”(Deut. 22.23–24).

47 “If a man has intercourse with another man’s wife in a tavern/brothel or in thesquare (and) knows she is a man’s wife, as the man says to do to his wife, so do theydo to the man who had intercourse (with her)” (MAL A 14); cf. MAL A 16 (see p. %MAL16%); MAL A 22 (see p. %MAL22%); MAL A 23 (see p. %MAL23a%).In Assyrian law, adultery was an offense against the husband, which he could punishor not punish as he saw fit. At least this gave the wife the opportunity to talk her wayout of what she had done. This did not put her in a pleasant position, but it could

is a man’s wife (and) has intercourse with her, the man who had inter-course (with her) is cleared; (if ) the man proves it of his wife, he doesto her as he pleases.”%MALA14%43 To this list of suspicious circum-stances, the Hittite Laws add: “But if he seizes her in (her) house, theguilt is the woman’s. The woman shall be put to death.”%HL197%44

To be sure that we are in fact dealing with the crime of rape as weknow it, we must, however, ask ourselves what difference the marriedwoman’s struggles or suspicious behavior made to her guilt. If the puta-tive victim is to be punished for proved non-resistance to intercourse,then the real concern of the law is adultery, and not rape.

In fact, the laws which we have been discussing take more than apassing interest in the woman’s guilt. In the Sumerian, as in the otherparallel laws, a married woman who has failed the resistance test doesnot merely lose her case, but is herself liable to the penalty for adul-tery.45 Moreover, a review of the parallel laws reveals that a simple pleaof inadequate resistance on the part of the victim did not result in the“rapist” being released. What it accomplished was to ensure that thewoman got her fair share of the punishment46 and/or that both of themwere left to the tender mercies of her outraged husband.47

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have been worse. In Biblical Israel, adultery was an affront to God (and to society)which could not go unpunished even if the injured husband was not in a vindictivemood. It was probably for this reason that Biblical law provided for a public stoning(Deut. 22.24 [see n. 35]), which was not exactly an improvement over being at the hus-band’s mercy.

48 “If a man’s wife leaves her house and goes to a man where he lives (and) he hasintercourse with her (and) he knows that she is another man’s wife, they kill the manand the woman too” (MAL A 13); “If a man has intercourse with another man’s wifein a tavern/brothel or in the square (and) knows she is a man’s wife, as the man saysto do to his wife, so do they do to the man who had intercourse (with her). If he doesnot know she is a man’s wife (and) has intercourse with her, the man who had inter-course (with her) is cleared” (MAL A 14); “If another man, not her father, her brother,or her son, takes a man’s wife on a journey and does not know that she is anotherman’s wife, (if ) he swears (this), then he gives two talents of tin to the woman’s hus-band. If [he did know], he gives damages [and swears]: ‘If I had intercourse with her,(may I be punished)!’ But if the man’s wife [says]: ‘He had intercourse with me,’ [after]the man gives damages to the man (whose wife he took on a journey), he goes to theriver ordeal. There are no contracts for him—if he turns back from the ordeal, they doto him as the husband of the woman did to his wife” (MAL A 22); “If a man’s wifetakes another man’s wife to her house (and) gives her to a man for intercourse and theman knows she is another man’s wife, they do to him as they would do to one whohad intercourse with another man’s wife and as the husband of the woman does to hisslept-with wife, they do to the procuress” (MAL A 23).

49 If a young man’s wife, on her own initiative, follows another man and he sleepswith her . . . the man shall be set free” (UN 7).

50 MAL A 16. Note MAL A 56 (see n. 59).51 “But if he seizes her in (her) house, the guilt is the woman’s. The woman shall be

put to death” (HL 197); “If a man has intercourse with another man’s wife in a tavern/brothel or in the square . . . If he does not know she is a man’s wife (and) has inter-course with her, the man who had intercourse (with her) is cleared” (MAL A 14).

The laws which foresee letting the man go without punishment are,as parallels to the Sumerian laws make clear, specifically designed forsituations in which the man could plausibly argue that he did not real-ize that he was sleeping with a married woman. The importance of theman’s knowledge or lack of knowledge of his partner’s marriage is repeat-edly stressed in the Middle Assyrian laws.48 In the Sumerian examplewhere the man escaped punishment, the woman took the initiative.”49

This is very similar to the Middle Assyrian: “If a man [has intercoursewith] another man’s wife at her invitation, the man (who had inter-course with her) has done nothing wrong.”50 Other parallel laws wherethe man goes unpunished envisage the woman inviting him into herhouse or having willing intercourse with him in a tavern/brothel or infull view of other people.51 In all of these circumstances, the man hada good prima facie case that he mistook his partner for a prostitute. Sinceprostitution was perfectly legal in ancient Mesopotamia, it is hardly sur-prising that the man escaped punishment under such circumstances.

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52 J.J. Finkelstein, “Sex Offenses in Sumerian Laws,” JAOS 86 (1966): 364 with n. 31,wished to see in ka.ar.ab.du6 a direct reference to forcible rape; according to him, thisenigmatic phrase was to be interpreted as “(my) mouth was gagged,” taking dufl as averb “to cover” (with a passive verbal prefix: ab), and the ka (“mouth”, etc.) as theobject of the verb (with the “elimination” of the postposition ra). This interpretation is,

In sum, the Sumerian laws on intercourse with married women wereintended to punish adultery, not rape, and men who forced their sexualattentions on married women were punished, not for having sexual inter-course with a woman against her will (i.e. rape), but for violently dis-honoring a married woman (i.e. aggravated adultery).

If Sumerian regulations on intercourse with a married woman werenot really rape laws, the treatment of intercourse between unmarriedpersons in Sumerian law has even less to do with the crime of rape aswe know it. It should already be apparent from our retelling of theEnlil and Ninlil myth that the application of the word “rape” to Enlil’soffense is somewhat problematic. Not that what he did was legal—it isclear that it was in some sense “against the law,” and Enlil’s own lawat that. In a modern court, however, Enlil’s lawyer would certainly nothave failed to argue that Ninlil “led him on,” and a modern jury mightwell have been tempted to acquit Enlil. If Ninlil was not “looking fortrouble,” why did she deliberately go bathing in a place where she hadbeen warned Enlil would see her and attempt to have intercourse withher? Nor was a word said in Ninlil’s defense about screaming and strug-gles, and one could argue rather convincingly that her initial refusalhad more to do with the location suggested by Enlil (and the dangersof her parents’ finding out) than any real desire to resist his advances.Nonetheless, the fifty gods (and we may presume that the Sumerianaudience of the myth was expected to concur) had no hesitation in con-demning Enlil for what he had done. Perhaps even more shocking tomodern sensibilities is the summing up at the end of the whole inci-dent as “attentive care for Mother Ninlil.”

The problem is not, however, as we shall see, the strange minds ofSumerians, but a misapplication of modern terminology. To see whata Sumerian would have thought of Enlil’s behavior (and Ninlil’s reac-tion to it), we must again turn our attention to the Sumerian laws andtheir ancient Near Eastern parallels.

If an unmarried man like Enlil deflowered a virgin like Ninlil, theSumerian solution was to force%force% him to marry her: “If a mandeflowers the daughter of a free citizen in the street, her father andmother not having known, (saying) ‘I want to marry you’52 and she tells

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however questionable. Roth, Law Collections, p. 45 n. 2 solves these problems by inter-preting ka.ar.ab.du6 as a variant of ga.ra.ab.du12: “I want to marry you”.

53 nam ad.ni ù ama.e ì..dug4.e Roth, Law Collections, p. 44, followed by Lafont, Femmes,pp. 468–469 removes the nam and the ad.ni ü ama.e and takes the deflowerer as thesubject of the verb. Roth also takes the preceding “not having known” as the parentsidentifying the young man (cf. also Lafont, Femmes, pp. 105–121). However, neither isnecessary to make sense of the passage.

54 YBC 2177 nos. 7–8.55 This would be in line with the laws on intercourse with married women, which

sought to protect men who honestly thought their sexual partner was an experiencedprofessional.

56 We should not allow the sequence in the netherworld to convince us otherwise.Although Ninlil appears to engage in willing intercourse with three young men otherthan her lover, the myth maker is careful to save her virtue by having all of her sex-ual partners turn out to be Enlil in disguise.

her father and mother all about what happened,53 her father and mothermay give her to him as a wife. If a man deflowers the daughter of afree citizen in the street and her father and mother knew (she was inthe street) but the man denies he knew (the true situation), standing atthe temple gate, he may swear an oath (to this effect and so escape theforced marriage).”54 The emphasis in these laws on the parents’ knowl-edge that she was on the street %street% may suggest a concern toavoid cases where persons living by their daughter’s prostitution triedto force a marriage with an innocent customer.55

As our myth has gone to great pains to inform us, Ninlil’s mother,Nunbarsegunu, did not know that Ninlil was, so to speak, in the street.Moreover, Enlil could have had no hope of denying that he knew herto be a free woman of the finest family; Ninlil’s initial reluctance toaccept his advances gave him ample warning that he was not dealingwith a prostitute.56 Unfortunately, as Nunbarsegunu had warned Ninlil,Enlil was simply not the marrying kind. In this context, Ninlil’s behav-ior takes on decidedly less than neurotic overtones—she was simply adetermined young woman who believed, and ultimately proved, thather love could redeem a philandering scoundrel.

Our myth also reflects the Sumerian laws in another respect. Wehave already noted that it was not necessary for Ninlil to have beentaken with extreme force and violence, and with no contribution onher own part, in order to enlist the gods’ sympathy in asking that Enlilbe punished. Similarly, the Sumerian laws do not seem overly worriedabout whether the virginal victim of the sex offense resisted %struggle%her unmarried assailant. There is no reference to the whole host of possible aggravating circumstances which we have seen in the laws on

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57 “If a man deflowers the daughter of a free citizen in the street, her father andmother not having known . . . her father and mother may give her to him as a wife. Ifa man deflowers the daughter of a free citizen in the street and her father and motherknew (she was in the street) but the man denies he knew (the true situation), standingat the temple gate, he swears an oath” (YBC 2177 nos. 7–8). Those who wish to seethese as rape laws are forced, like Finkelstein, to read this interpretation into the text(for discussion, see n. 52.

58 On this point, see Cardascia, Lois, p. 251.59 “If a (married) man forcefully seizes the adolescent daughter of another man, who

was living in her father’s house and [. . .], she has not been asked for (see Roth, LawCollections, p. 174 with n. 31), is a virgin (and) has not been married and has not hada claimant to her father’s house, either in the city or in the steppe or by night in thesquare or at a granary or at a city festival and presses her down, the father of the ado-lescent girl may take the wife of the man who had intercourse with the girl and giveher to be pressed down, he need not return her to her husband—he may take her; the father may give his slept-with daughter to the man who had intercourse with herin marriage. If he does not have a wife, the man who had intercourse (with the ado-lescent girl) gives a third of silver as the market value of the girl to her father (and) the man who had intercourse with her may marry her; he may not send her away. Ifher father does not want (this), he may receive silver—the third—for the girl and givehis daughter to whomever he pleases. “If the girl gave herself to the (married) man (whohad intercourse with her), (and if ) the man can swear it, they may not approach hiswife; the man who had intercourse (with her) gives a third of silver as the market valueof the girl (and) the father does to his daughter as he pleases” (MAL A 55–56). Notethat the verb used to describe the forced intercourse, mazû, is translated as “rape” inCAD M/1 440a but actually means “to press” or “to squeeze out liquid”, more usuallysaid of ingredients being prepared for use in medicine (CAD M/1 439–440). The “third”is translated by Roth, Law Collections, p. 175, following Borger, TUAT I, p. 92, as “triple”.However, salsatu means “third” (CAD S/1:263–268; AHw 1150; also Cardascia, Lois, p. 249; Driver and Miles, Middle Assyrian Laws, p. 423 and Lafont, Femmes, pp. 483,151–155).

married women, nor any mention of the use of force and violence onthe part of the man. Moreover, the man’s ability to plead ignorance asto the woman’s virtue or status is heavily dependent on her parents’behavior57 not, one would think, a relevant consideration if it was herlack of resistance that was at issue.

In the parallel laws from other ancient Near Eastern societies, thequestion of the girl’s resistance seems similarly unimportant. %resist%The Middle Assyrian Laws worried about consent on the part of a vir-gin only in the case where the assailant was a married man and thenonly because a third party (the man’s wife) was involved. Moreover, tobe blamed for her behavior, the girl was required not merely to con-sent passively , but actively to give herself to the married man whodeflowered her.58 In any case, the married man could not avoid a penaltyby arguing that the girl had consented. All he escaped was a forcedmarriage; he still had to pay damages to the girl’s father.59

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60 For “rape” we have: “If a man comes upon a maiden that is not betrothed, takesher and has relations with her, and their deed is discovered, the man who had rela-tions with her shall pay the girl’s father fifty silver shekels and take her as his wife,because he has deflowered her. Moreover, he may not divorce her as long as he lives”(Deut. 22.28–29); and for seduction: “When a man seduces a virgin who is not betrothed,and lies with her, he shall pay her marriage price and marry her. If her father refusesto give her to him, he must still pay him the customary marriage price for virgins”(Exod. 22.15–16). In medieval Jewish law, these passages were taken to mean that seduc-ers could opt out of subsequent marriage by paying a fine, but “rapists” could be forcedto marry the girl with no possibility of husband-initiated divorce unless the woman wasa relative (and hence ineligible for marriage on grounds of incest) or the “rapist” hap-pened to be a High Priest (and therefore required to marry a virgin) (Maimonides, Book4, Treatise 4, Chap. 1.3, 1.5–6 [Isaac Klein, The Code of Maimonides 4: The Book of Women(New Haven, 1972)]). One should note that, even here, a seducer was penalized eventhough his victim had, by definition, consented.

61 “But if this charge (by her husband) is true, and evidence of the girl’s virginity isnot found, they shall bring the girl to the entrance of her father’s house and there hertownsmen shall stone her to death, because she committed a crime against Israel by herunchasteness in her father’s house. Thus you shall purge the evil from your midst” (Deut.22.20-21).

62 MAL A 56.63 See above, n. 53.64 YBC 2177 no. 7.

The Biblical laws even go so far as to explicitly require the samepenalty (forced marriage %forced%) in cases of “rape” and seduction.60

The only requirement was that the young woman in question immediatelytell her father what had happened to her. If her loss of virginity wasleft to be discovered by an innocent third party on their wedding night,the Israelite ex-virgin was stoned to death by the outraged community.61

The ancient Mesopotamians did not approve of non-complaining ex-virgins either, although the punishment, if any, was left strictly up tothe girl’s father: “If the girl gave herself to the (married) man (who hadintercourse with her) . . . the father does to his daughter as he pleases.”62

What all this suggests is that a Mesopotamian woman, like her Biblicalcounterpart, was required not to let the incident pass by in silence%notify% if she wished to avoid being treated as an unpaid prostitute,which is presumably why the Sumerian laws mention a statement tothe parents by the deflowered girl: “If a man deflowers the daughterof a free citizen in the street . . . and she tells her father and motherall about what happened,63 her father and mother may give her to himas a wife.”64 This is, however, a far cry from requiring her to provethat she resisted intercourse in the first place.

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65 This seems to be the assumption of Kirk, Myth, p. 103 and Cooper, JCS 32: 182.66 The age in question varies rather radically from state to state, ranging from a mini-

mum of seven years old in Delaware to a maximum of eighteen years in Arizona (etc.);for a listing, see Samuel G. Kling, Sexual Behavior and the Law (New York, 1965), pp. 216–217.

67 A number of actual marriage contracts specify that the girl is a young adolescent(VAS 6.3: 9, 227: 4; Evetts, Ner. 13: 4; Nbn. 243: 4) and literary and medical referencesindicate that older adolescents were expected to have intercourse with their husbands(BE 31.56; AMT 67/3: 10; KAR 1: 37; BAM 398 r. 9–10) and to have children (BAM248 iii 34). For more on this subject, see Martha Roth, “Age at Marriage and theHousehold: A Study of Neo-Assyrian and Neo-Babylonian Forms,” Comparative Studies inSociety and History 29 (1987), pp. 715–747. Moreover, girls who died as unmarried ado-lescents were believed to haunt young men in search of the sexual gratification that hadbeen denied them (see Sylvie Lackenbacher, “Note sur l’ardat-lilî,” Revue d’Assyriologie 65[1971]: 119–154). Similarly, “the death of an unmarried person of marriageable age . . .(is) especially perilous . . . unless a symbolic wedding is performed during the funeral,then it is believed that this ‘person’ will return in search of a mate to fulfill his or hersocial destiny, as well as frustrated sexual desires” (Gail Kligman, The Wedding of the Dead[Berkeley, 1988], p. 216); cf. the Slavic vila, as in the ballet Giselle.

68 Twelve is given as the acceptable age for marriage in the Lombard Laws, with thefurther proviso that fathers and brothers may engage their daughter or sister at any agethey please (Laws of Liutprand, Title 12.VI [K. Fischer Drew, The Lombard Laws(Philadelphia, 1973)]); cf. Levin, Orthodox Slavs, pp. 96–97.

69 Maimonides, Book 4, Treatise 1, Chap. 3.11. The cut-off point was set at this agebecause connection with a girl younger than three years was not considered to be inter-course (Treatise 1, Chap. 11.3; Treatise 4, Chap. 1.8).

This lack of concern with violence and struggles is not, moreover, tobe confused with our own “statutory rape”65 which penalizes men forsleeping with girls under a prescribed age.66 The references in the Enliland Ninlil myth to young, unstretched, vaginas have to do with Ninlil’svirginity, not with her age as such. In any case, Ninlil should not beconsidered under age. As the myth makes abundantly clear, Ninlil wasan adolescent, and adolescent girls were of marriageable age in ancientMesopotamia,67 as in early Medieval Europe.68 Besides, we must be care-ful not to foist our own views on the precious innocence of childhoodonto pre-modern societies. The Sumerians certainly prized virginity inunmarried girls, but there is no reason to suppose that they regardedthe very idea of sexual intercourse with someone below a certain agewith horror. Perhaps the most striking example of a non-modern sen-sibility on this point is to be found in Medieval Jewish law which states:“A father may betroth his daughter without her consent as long as sheis a minor . . . If she is three years and one day old, she may be betrothedby an act of intercourse, with the consent of her father.”69

Why, we must now ask ourselves, did the Sumerians take this coursewith regard to sexual offenses? One must not be too hasty in assuming

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70 “If a woman hates her husband so that she says: ‘You may not “take” me,’ hercase is investigated in her city quarter and if she has been careful and has done noth-ing wrong and, moreover, her husband has been going out and thus causing her to bevery humiliated, that woman has done no wrong; she may take her seriktu (dowry) andgo to her father’s house” (CH 142). For a discussion, see Raymond Westbrook, OldBabylonian Marriage Law, AfO Beiheft 23 [Horn, Austria, 1988], pp. 45–47. Assuming,as it seems from the terminology employed, that this refers to consummation rather thana subsequent refusal of conjugal rights by the wife, this regulation would correspondclosely to the provision of Islamic law which allows a child bride the option of appeal-ing to the qadi for dissolution of the marriage when she comes of age ( Joseph Schacht,An Introduction to Islamic Law [Oxford, 1964], p. 165).

71 “If she was not careful, and has been going out (and) scattering her house (and)causing her husband to be humiliated, they throw that woman into the water (to drown)”(CH 143). Drowning was the draconian penalty for adultery. See, for example: “If aman’s wife is caught lying with another man, they bind them and throw them into thewater. If the husband wants to spare his wife, then the king may spare his subject” (CH129).

72 CH 142 guaranteed the refusing woman her seriktu (dowry) back; as we know fromactual documents, a man who refused consummation had not only to restore the seriktu,but to pay divorce money as well. See AbB 2.109, apud Westbrook, Marriage, p. 15, n. 37 (the wife appealed to higher authorities who ordered the local authorities to givethe recalcitrant husband the choice of “taking” her or paying her divorce money); BE6/2.58, apud Westbrook, Marriage, p. 116 (the man volunteers to pay to get out of themarriage); CT 45.86, apud Westbrook, Marriage, pp. 120–121 (the authorities order theman to make the woman equal to what she was when she came in). Curiously, in thelast two cases, both men volunteer to be “hung” (i.e. impaled) as a preferable alterna-tive to “taking” the undesired woman (BE 6/2.58: 13–14, apud Westbrook, Marriage, p. 116; CT 45.86: 20–22, apud Westbrook, Marriage, pp. 120–121). This would seem tosuggest that there was a draconian penalty held over the head of uncooperative hus-bands to force them either to consummate the marriage or to divorce the woman.Medieval Jewish Law also tried to discourage the refusal of conjugal rights (see Maimonides,Book 4, Treatise 1, Chap. 14.6–16).

that the reason for this difference in approach is that ancient Meso-potamians did not recognize a woman’s right to resist a man’s advances.As we have seen, a married woman was expected to strongly resist inter-course with a third party if she did not wish to be punished. Moreover,the Hammurapi code, which parallels the Sumerian laws in ignoringthe crime of rape as we know it while severely punishing forcible adul-tery, gives official support to a woman’s refusal to consummate her mar-riage,70 providing that she is careful not to fall afoul of the adulterylaws in the process.71 In fact, a man victimized by an arranged mar-riage was in a worse position than his bride; a refusal to consummatea marriage on his part cost him or his family dearly.72

Moreover, there is no reason to suppose that the rule of forced mar-riage was ever meant to apply where the rapist was a mentally derangedindividual or where the rape was committed as an expression of class

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73 Genesis 19: 4–8; Judges 19: 22–24. It should be noted that, in both cases, thedaughters were spared and the guilty fiercely punished. The first incident resulted in thedestruction of Sodom and Gomorrah (Genesis 19: 12–29), the second in the virtual elim-ination of the tribe of Benjamin ( Judges 20-21).

74 Deut. 22.28–29 (rape); cf. Exod. 22.15 (seduction). For citations of these laws, seen. 60.

75 This is demonstrated by the incident with Shechem and Dinah: “Dinah, the daugh-ter whom Leah had borne to Jacob, went out to visit some of the women of the land.When Shechem, son of Hamor the Hivite, who was chief of the region, saw her, heseized her and lay with her by force. Since he was strongly attracted to Dinah, daugh-ter of Jacob, indeed was really in love with the girl, he endeavored to win her affection.Shechem also asked his father Hamor, ‘Get me this girl for a wife.’ . . . Now Hamor,the father of Shechem, went out to discuss the matter with Jacob, just as Jacob’s sonswere coming in from the fields. When they heard the news, the men were shocked andseethed with indignation. What Shechem had done was an outrage in Israel; such athing could not be tolerated. Hamor appealed to them, saying: “My son Shechem hashis heart set on your daughter. Please give her to him in marriage. Intermarry with us;give your daughters to us, and take our daughters for yourselves. Thus you can liveamong us. The land is open before you; you can settle and move about freely in it,and acquire landed property here.’ Then Shechem, too, appealed to Dinah’s father andbrothers: ‘Do me this favor, and I will pay whatever you demand of me. No matterhow high you set the bridal price, I will pay you whatever you ask; only give me themaiden in marriage” (Genesis 34: 1–12). The response of the Israelites, whose own lawmandated marriage when the “rapist” was an Israelite, was to trick Shechem and hispeople into thinking they had agreed; having gotten them off their guard, they pro-ceeded to slaughter the entire male population of the city (Genesis 34: 13–31). For afull discussion of this incident, see Tikva Frymer-Kensky, Women of the Bible, pp. 179–198.

76 “If her father does not want (the forced marriage), he may receive silver—thethird—for the girl and give his daughter to whomever he pleases” (MAL A 55); “If herfather refuses to give her (the seduced girl) to him (the seducer), he (the seducer) muststill pay him (the father) the customary marriage price for virgins” (Exod. 22.16). Similarly,Maimonides, Book 4, Treatise 4, Chap. 1.3 (which also gives the girl a right of refusal).

or tribal warfare. When Israelite men demonstrated their hospitality bysaving their guests from being sodomized by offering their virgin daugh-ters to be gang-raped instead,73 they were certainly not thinking in termsof making the rapists marry them afterwards, although by Biblical Law,“rapists” were usually compelled to marry their victims.74 Neither, inview of Biblical attitudes towards miscegenation, could there be anyquestion of having the usual rules apply when the deflowerer was notan Israelite, whatever his honest intentions of marrying the girl.75 Theancient Mesopotamians did not take hospitality to the extremes men-tioned in these Biblical stories, nor were they, unlike the Israelites, deter-mined to discourage intermarriage between themselves and other peoples.However, marriage with an actual rapist or otherwise unsuitable marriagepartner was avoided by allowing the father the option of refusing thematch and collecting monetary damages instead.76

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If the “rapist” was too poor to pay, he would have had to work off his debt to thegirl’s father or to anyone to whom the father sold the debt.

77 For Virginia, see Code 1849 ch. 148 § 1; for Kentucky, see Ky Stat 1852 ch. 1§2; for Georgia, see Code 1861 § 2951. This right of action for damages on the partof the injured father was still available in Virginia as of Code 1950 § 20–37.2, but wasrepealed by Acts 1968 ch 716 p 1259. It is still available in Kentucky as Ky RevisedStat 1970 § 411.030 and in Georgia as Code 1982 (with 1989 Supplement) § 51-1-16.

78 Kendrick v McCrary (1852) 11 Ga 603.79 Georgia’s Code 1861 § 2951 makes this explicit; it is implicit in the wording of

the Virginia and Kentucky statutes. See Woodward v Anderson (1873) 72 Ky 624. Itwas not universally the case in late nineteenth and early twentieth century America thatthe seduced girl was left out of consideration. Even as of 1880, the states of Wisconsin,Iowa, Indiana, Tennessee, and Alabama allowed her to also bring suit for damages (Clinev Templeton [1880] 78 Ky 550).

80 In Virginia, a father could collect actual damages (as, for example, the cost of thegirl’s pregnancy) if it could be established that intercourse had taken place (Litton vWolliver [1919] 126 Va 36–37). He could, in addition, collect punitive damages if thegirl was seduced (that is, turned from the path of virtue), especially if there was a promiseof marriage (White v Campbell [1856] 54 Va [13 Gratt] 573; Litton v Wolliver [1919]

Seduction in the American South

If the problem and solution contemplated in ancient Near Eastern legalregulations does not fit the modern concept of “rape” or “statutoryrape,” it does not follow that it has no parallels in relatively modernlaw. Where these parallels lie, however, is in the treatment of “seduction.”It was not uncommon, in late nineteenth and early twentieth centuryAmerica, for “seducers” to be vigorously encouraged to marry their vic-tims and/or to be forced to pay damages to the outraged father. InVirginia, Kentucky, and Georgia, for example, seduction could be eithera civil or a criminal matter.

In all three states, a father could take advantage of the CommonLaw provision protecting him from “loss of service” to sue his daugh-ter’s seducer for damages without having to prove that he had sufferedany actual loss of service.77 To benefit by these statutes, it was sufficientto show that the girl lived with her father, or was under his control(that is, under twenty-one and not emancipated); in such a case, ser-vice might be implied, “though it may have consisted in milking hiscows, or even pouring out his tea.”78 Two interesting features of theway in which these laws were applied are worth noting for our pur-poses. One is that, in all three states, it was the father of the girl andnot the girl herself who was entitled to compensation.79 The other isthat, in Virginia and Georgia at least, even if the defendant could showthat his victim was not virtuous, he could still not escape conviction(although he could considerably reduce the amount of damages).80

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126 Va 36). In Georgia, the statute specified that the father could sue for damages evenif there was no pregnancy (Code 1861 § 2951). Moreover, in order to collect, it wasnot necessary to allege or prove that the girl had been virtuous, although juries wereencouraged to award exemplary damages if she was (Mosley v Lynn [1930] 172 Ga193–194). Even in Kentucky, a lack of virtue in the seduced woman did not necessar-ily help the miscreant, provided that she had been chaste “for a reasonable time” beforethe alleged seduction (Stowers v Singer [1902] 113 Ky 589–591).

Breach of promise suits in Victorian England took a more, well, Victorian, attitudetowards “bad girls” but nonetheless awarded to “good girls” who had remained chastethroughout the engagement identical damages to those awarded otherwise virtuous girlswho had not resisted or had even encouraged their lover’s advances. Moreover, “althoughthe courts persisted in seeing good women as passive, they rewarded them for theiraggressive use of the courts.” (Ginger S. Frost, Promises Broken: Courtship, Class and Genderin Victorian England [Charlottesville, 1995], pp. 98–117, especially p. 113).

81 For Georgia, see Code 1861 § 4270; for Virginia, see Acts 1872-1873 ch. 192 p 178 § 1 (Code 1873 § 17); for Kentucky, see Acts 1885–1886 ch. 1230 p. 809 (KyStat 1888 ch 29 Amendment 10 § 2). This law is still in force in Virginia as Code 1950(1988 Replacement Volume with 1989 Supplement) §§ 18.2.68–70; in the other statesthe corresponding statutes have been repealed (for details, see below).

82 In Georgia and Virginia, the statutes specified that the victim had to be unmarried.The state of Kentucky did not regard the marital status of the female as relevant, spec-ifying instead an age limitation. Originally, this was sixteen, but it became twenty-oneas of Kentucky Statutes 1899 § 1214. The obvious advantage to the latter variant, fromthe woman’s point of view, was that it allowed widows the benefit of the statute.

83 This is made explicit in the Georgia and Virginia statutes. In Kentucky, virtue wasalso required although, as in civil cases in this state, “virtue” did not imply virginity oreven chastity, provided that the woman was of chaste character at (and for a reasonabletime prior to) the act of intercourse (Berry v Commonwealth [1912] 149 Ky 398; Hudsonv Commonwealth [1914] 161 Ky 257; Morehead v Commonwealth [1922] 194 Ky 593).

84 Standards of proof of such a promise vary. Virginia has always, since the criminaloffense was first instituted, insisted that the girl’s own unsubstantiated testimony as tothe existence of such a promise is not sufficient to obtain a conviction (Acts 1872–1873ch. 192 p. 179 § 2; Code 1950 § 18.2–69). However, the corroborating evidence neednot of itself be sufficient to convict, and it may be circumstantial (Riddleberger vCommonwealth [1918] 124 Va 783).

In all three states, it was also possible for the seduced girl to haveher seducer prosecuted on a criminal charge.81 The criminal statutes ofthese three states allowed an unmarried or underage woman82 who was“virtuous” or “of previous chaste character”83 to proceed against a manwho had promised her marriage84 and subsequently engaged in voluntarysexual intercourse with her, with the proviso that the miscreant mightescape conviction if he married her.

The Georgia statute was later strengthened to the effect that seducerswere to be punished with between two and twenty years of hard laborwith marriage as a bar to conviction, provided that the seducer notonly married his victim but also gave bond that he would maintain andsupport her and her children for a period of five years subsequent to

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85 Acts 1893 ch. 328 pp. 39–40 (Penal Code 1895 §§ 387–388). This law was still ineffect as of Penal Code 1933 § 26–6001–2, but was dropped by Code 1982. Such pro-visions were necessary in order to ensure good faith on the part of seducers who mar-ried their victims in order to avoid a prison sentence. As Judge Cobb points out: “Thelaw of this State has for many years provided that a prosecution for seduction may bestopped at any time by a marriage of the parties. . . . The public offense was allowedto be condoned, for the reason that the seducer had in this way made all the repara-tion in his power to the female whom he had injured, and had assumed an obligationa compliance with which it was supposed would save the woman and her offspring frombecoming a charge upon the public. In time it was demonstrated that in many cases—it might be safe to say, in nearly all, the seducer who availed himself of the privilegeof marriage did so without any intention of complying with the obligation imposed bythe marriage vow, but for the sole purpose of releasing himself from the toils of thelaw, and, once released, left his victim and her offspring without pretending to providein any way for their maintenance, often going beyond the limits of the State for theexpress purpose of avoiding the obligations imposed by the marriage contract” (Duke vBrown [1901] 113 Ga 313). Judge Cobb goes on to add that the 1893 act was passedin order to remedy this defect in the law).

86 Griffin v Griffin (1908) 130 Ga 527.87 Duke v Brown (1901) 113 Ga 316; cf. Crew v Hutcheson (1902) 115 Ga 511.

According to Judge Cobb: “Whether living together in peace and amity, or living togetherin violence and tumult, or living separate by mutual consent or for good reason, or liv-ing separate on account of mutual fault, or solely on account of the fault of the female,the plain obligation of the bond remains the same at all times—the female and heroffspring must be supported by the seducer. It may be said that this is cruel and harshin the extreme, but the bond is so written, and it can well be said that nothing in thisrequirement is so cruel as the act of leading a virtuous female to her ruin, or as harshas a term of twenty years penal servitude, which the seducer has avoided by undertak-ing the obligation required by the bond” (Duke v Brown [1901] 113 Ga 316).

88 Acts 1905–1906 ch. 25 pp. 253–254 (Kentucky Statutes 1915 § 1214). This law

the marriage. If he was unable to give bond, the miscreant remainedunder threat of further prosecution until the couple had lived togetherfor the statutory five years.85 Despite the fact that the miscreant had,in effect, been pressured into marrying his ex-victim, he was not enti-tled to an annulment on the grounds that the marriage had been madeunder duress.86 Moreover, the requirement of marital constancy to theex-victim for the statutory five years was “without reference to the con-duct of the female or her offspring.”87

The corresponding Kentucky statute was also amended with the resultthat a seducer might escape between one and five years in the peni-tentiary by marrying his victim, provided that he did not abandon ordesert her within three years after the date of the marriage. To ensurecompliance, the prosecution was suspended, with the understanding thatit would be renewed and proceed as though no marriage had takenplace if he abandoned her before the expiration of the statutory threeyears (divorce on statutory grounds was, however, permitted).88

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was still in effect as of Kentucky Statutes 1963 § 436.010, but was repealed by Acts1974 ch 406 p. 889 § 336. The inclusion of the divorce clause indicates that the inten-tion was not to deny the new husband the right to divorce his wife if she gave himgrounds for doing so, but to prevent his dumping her as soon as the shotgun had beenlowered.

89 That is, if he lived in Georgia, he could take advantage of either Code 1861 §4270 (criminal) or of Code 1861 § 2951 (civil). If he lived in Virginia, he could useeither Code 1873 § 54.187.16 (criminal) or Code 1873 § 45.145.1 (civil). In Kentucky,the choice was between Ky Stat 1888 ch. 29 Amendment 10 § 2 (criminal) and KyStat 1888 ch. 1 § 2 (civil). This double option was still available in Georgia as of 1933(either Penal Code § 26-6001-6002 or Civil Code § 105–1204), in Virginia as of Code1950 (either §§ 18.2.68–70 [criminal] or § 20–37.2 [civil]), and in Kentucky as of KyRevised Stat 1970 (either § 436.010 [criminal] or § 411.030 [civil]).

90 American law could not, of course, actually force a marriage between the con-cerned parties. On the other hand, making a prison sentence the alternative certainlywent a long way towards encouraging miscreants to marry their victims. The ancientshad no such qualms; see above, pp. %force%, %forced%.

91 In Georgia, Kentucky, and Virginia, conviction under the criminal seduction statuterequired that the woman be in some sense virtuous (see above, n. 83). Although herchastity was presumed in the absence of evidence to the contrary (Woodward v State[1908] 5 Ga App 447; Fogle v Commonwealth [1925] 210 Ky 745; Atkins vCommonwealth [1922] 132 Va 500), it was possible for the defendant to avoid convic-tion if he could impugn it (Keller v State [1897] 102 Ga 506; Hudson v Commonwealth[1914] 161 Ky 257; Flick v Commonwealth [1899] 97 Va. 766). ancient Near Easternregulations on the subject of forced marriages usually specify that the girl was a virgin,a circumstance which would have created a strong presumption of chastity in the mindsof American judges and jurors (see especially Woodward v State [1908] 5 Ga App 447:“every virgin is virtuous”). Moreover, indications are that the Sumerian miscreant couldescape a forced marriage if he could argue that he honestly mistook his victim for aprostitute (see above, p. %STREET%). Note also that the girl seems to have beenrequired to notify her parents immediately after the offense if she wished to avoid beingtreated as an unpaid professional (see above, p. %notify%).

92 The American miscreant was being prosecuted for seduction and not rape. Forancient Mesopotamia, see above, pp. %struggle%, %resist%, %forced%.

In all three states, therefore, fathers faced with the problem of aseduced daughter had a choice of having the girl file a complaint, thuspressuring the miscreant to marry her in order to avoid punishment,or (if the father did not wish the marriage or if girl’s virtue was in ques-tion, or if the young man could not be proven to have promised mar-riage) the father could instead himself sue the miscreant for damages.89

The similarities between this complex of laws and the ancient NearEastern regulations on sexual offenses between unmarried persons arestriking. Whether the offense occurred in late nineteenth century Americaor in ancient Mesopotamia, the father of the girl had the option ofallowing a marriage90 or of accepting damages instead. In order to avoidbeing pressured into marrying his victim, either miscreant could attemptto prove her lack of chastity.91 He could not, however adduce evidenceof lack of screams and struggles to prove his case.92 Neither miscreant

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93 Since proof of promise of marriage was essential to conviction in Georgia, Kentucky,and Virginia, and since marriage of seducer and seducee was a bar to conviction, onemight think that they would have applied exclusively to unmarried men. On the con-trary, Georgia and Kentucky allowed married men to be prosecuted, provided that theseduced girl was ignorant of this marriage (Wood v State [1873] 48 Ga 192; Gordanv State [1904] 120 Ga 864; Davis v Commonwealth [1896] 98 Ky 708). Virginia wenteven farther; an amendment in Acts 1877–1878 ch. 2 p. 283 § 16 (Code 1887 í 3677)allowed married men to be prosecuted under the statute without there being any require-ment of a promise of marriage. Thus, it was no bar to prosecution in Virginia that thevictim knew her seducer to be a married man (Tyree v Commonwealth [1946] 185 Va628). It had still to be proven, however, that the girl had been seduced (Flick vCommonwealth [1899] 97 Va 766). For the ancient Near East, note MAL A 55–56, inwhich the miscreant is clearly a married man (see above, n. 59).

94 For America, see above, n. 80 For the ancients, see above, n. 59 (MAL A 56).95 “If he does not have a wife, the man who had intercourse (with the adolescent

girl) gives a third of silver as the market value of the girl to her father (and) the manwho had intercourse with her may marry her; he may not send her away” (MAL A55); “If a man comes upon a maiden that is not betrothed, takes her and has relationswith her, and their deed is discovered, the man who had relations with her shall paythe girl’s father fifty silver shekels and take her as his wife, because he has defloweredher. Moreover, he may not divorce her as long as he lives” (Deut. 22.28–29).

96 For the ancients, see above, p. %forced%.97 Acts 1872–1873 ch. 192 pp. 178–179 § 2 (Code 1873 § 54.187.17). Abduction was

already a crime in Virginia (Code 1849 § 54.191.16); marriage was not, however, orig-inally a bar to conviction in such cases. This criminal action for abduction, with mar-riage as a bar to prosecution, was still available as of Code 1950 §§ 18–50, 18–52, butwas repealed by Acts 1952 ch. 429 p. 723 (which assimilated abduction to other lawson kidnapping with the result that the marriage bar was lost).

could avoid punishment simply because he happened to be married.93

Even where it was obvious that the girl was not “good,” either miscreantmight still be expected to pay damages to her father.94 The later additionof the divorce restrictions brings Georgia and Kentucky law even closerto the legal regulations of the ancient Near East, since a number of thelatter forbid seducer/rapists from divorcing their new brides.95 The onlymajor differences between the American laws on “seduction” and ancientMesopotamian legal regulations are apparent conflation of seduction andrape in the latter,96 and the insistence in the former of proof of promiseof marriage before a seducer could be vigorously encouraged to marryhis victim.

These differences are not, however, as great as they may at firstappear. In Virginia, if a girl under sixteen was abducted or detainedagainst her will either for marriage or simply for “defilement,” herdeflowerer could be prosecuted under the abduction statute, whichallowed the miscreant to escape three to ten years in the penitentiaryif he married his victim.97 It was thus not absolutely necessary in Virginia,in order for a marriage between the concerned parties to be vigorously

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98 Jones v State (1892) 90 Ga 626–627.99 Jones v State (1892) 90 Ga 628.

encouraged, that the man promised marriage beforehand or that theyoung woman consented to the original act of intercourse (as opposedto subsequent acts after the miscreant had persuaded her to marry him).

Nor, in Georgia, did the fact that the man had somewhat forced hissexual attentions on his victim necessarily put him under the rape, asopposed to the seduction statute as Judge Fish makes more or less clear:“It follows, plainly enough and without argument, that a rape cannotbe made the basis of a prosecution for seduction. The two offenses areso totally different, they cannot be confused . . . While this is manifestlytrue, it can scarcely be doubted that no modest girl or woman, uponoccasion of her first carnal contact with a man, will readily submit tothe intercourse without some reluctance and some show of resistance. . . .We imagine it would be very difficult indeed to find a virgin of anyage who would boldly and without shame or hesitation indulge for thefirst time in the sexual act; and while she may consent to it, it is per-fectly natural to expect a greater or less degree of reluctance on herpart. Indeed, it is easy to imagine that a woman may yield herself tothe sexual embraces of a man when the act is absolutely repulsive toher, and offends, in the highest measure, her every sense of delicacy. . . .That a woman exhibits hesitation, reluctance and a slight degree ofphysical resistance does not, by any means, make the intercourse, whenaccomplished, rape.”98

Having warmed to his subject, Judge Fish continues: “Even if thefirst sexual contact between the accused and herself had amounted toa rape, and he had afterwards, by persuasion and promises of mar-riage, obtained her free consent to have intercourse with him, and thusseduced her, he would be guilty of the crime of seduction. A virtuouswoman upon whom the crime of rape has been committed does notthereby lose her virtue; and if unmarried, there is no reason why shemay not afterwards become the victim of seduction by her ravisher.”99

It would appear that, in late nineteenth century Georgia, it might havebeen possible for an actual rapist to escape punishment via the seduc-tion statute, provided that he could persuade his victim to cooperate,and that he was willing not only to marry her but to stay with her forthe statutory five years.

Perhaps most striking in its conflation of rape and seduction is a lawwhich was still to be found in the code of the state of Virginia as of

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100 Code 1950 (1988 Replacement Volume with 1989 Supplement) § 18.2–61.101 Code 1950 (1988 Replacement Volume with 1989 Supplement) § 18.2–61.A.102 Code 1950 (1988 Replacement Volume with 1989 Supplement) §§ 18.2–63, 18.2–66.

This statute was laid down in more or less final form by Acts 1924 ch. 443 p. 667(Code 1942 § 4414). Marriage as a bar to conviction in such cases is somewhat older,first appearing in Acts 1918 ch. 82 p. 139 (Code 1919 § 4414). Fortunately or unfor-tunately, the state of Virginia was peculiar in this regard. Marriage is not normally abar to prosecution for statutory rape; for a discussion, see Kling, Sexual Behavior and theLaw, pp. 214–215.

103 Neither was it required that the victim have been chaste (Carpenter v Commonwealth[1962] 193 Va 851).

104 Buzzard v Commonwealth (1922) 134 Va 641; Salyer v Commonwealth (1934)163 Va 1027; Carpenter v Commonwealth (1952) 193 Va 851.

105 Code 1950 (1988 Replacement Volume with 1989 Supplement) § 18.2–66.

1989. To be sure, a rapist was not allowed to plead subsequent mar-riage as a defense in Virginia100 (although it would have been difficultto obtain a conviction if the ex-victim refused to file a complaint or totestify against the alleged rapist), and those having sexual intercoursewith children under the “age of consent” (i.e. thirteen years) could beprosecuted for statutory rape, as in any other state.101 However, if a girlwas between the ages of thirteen and fifteen, a boy or man who hadwilling intercourse with her could instead be prosecuted under a specialstatutory rape statute which allowed the miscreant to escape punishmentif he agreed to marry his victim.102 Since the miscreant was guilty ofstatutory rape and not seduction, no evidence of a promise to marrywas required by the statute (i.e. the charge of rape could be used asan inducement to a marriage not contemplated by the seducer).103

Moreover, since a girl under fifteen could not legally consent to an actof intercourse in Virginia, force was not an essential ingredient, and thegirl’s failure to make an outcry was thus immaterial to conviction.104

Finally, in a section clearly inspired by earlier Georgia and Kentuckyseduction statutes, the miscreant was required not only to live with thegirl, but also to support and provide for her under threat of furtherprosecution under the statute until she reached the age of sixteen (thecharges against him were not dropped when he married his “victim;”the case was simply continued until she reached the statutory age, atwhich point the indictment was finally dismissed).105

It would seem, then, that if ancient Near Eastern laws on “rape”bear little relation to the crime of rape as we know it they do bear afairly close resemblance to the way in which seduction was treated inlate nineteenth and early twentieth century American law (and in theodd case was still treated as of 1989), although it must be said that jus-

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106 Taylor v Commonwealth (1945) 184 Va 373.107 Code 1919 § 4411.108 Code 1919 § 4413; see above.109 Lee v Commonwealth (1925) 141 Va 531.

tice was served with much greater efficiency and clarity in the ancientlegal regulations.

As for what might have motivated late nineteenth and early twentiethcentury American legislatures to pass such statutes, evidence points tothe conclusion that in all cases the object was to rectify the damagedone to family honor (and public morality) by the “ruination” of anunmarried girl. In Taylor v Commonwealth of Virginia, a case involvinga prosecution for “(statutory) rape of a female child under 16 years ofage,” Judge Browning, speaking for the circuit court of Washingtoncounty, was of the opinion that: “Surely to permit the marriage of theparties, who had sinned against society and who wished to make the onlyamends within their power, would be within the interest of the conservationof good morals and the public well being.”106 In Lee v Commonwealthof Virginia, the “victim” was under sixteen but, since she was alsoabducted, the case was prosecuted under the abduction statute107 whichalso allowed for marriage as a bar to conviction.108 In this case, JudgeKelly delivered himself of the opinion that: “In those cases even wheredecent public sentiment has been outraged and the denounced crimesof seduction and abduction have been committed, the statute providesthat the subsequent marriage of the culprits shall bar further prosecutionof the criminal. However reprehensible the conduct of this defendant,and however just the public condemnation of his conduct, theCommonwealth by statute opens a door and offers him a place for pen-itence. He has not yet sinned away his days of grace, or his legal oppor-tunity to repair the immediate wrong done to womanhood and thepotential wrong to childhood.”109

The same may be said for the criminal cases involving seduction. InMorris v State of Georgia, a seducer tried to avoid punishment byinvoking the victim’s subsequent marriage (to a third party!) as a barto his conviction. The court was not amused, delivering itself of theopinion that: “The provision which allows a seducer to repair to somedegree his wrong is an anomaly in the interest of social peace . . . whilethe provisions allowing marriage may relieve the seducer from the painsand penalties of the law, the statute was primarily designed in the interest of the injured female and of helpless and hapless offspring . . .since this provision has its origin in mercy rather than in the strict

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110 Morris v State (1914) 14 Ga App 396–398.111 Hewitt v Prime (1839) 21 Wend 80 (Supreme Court of New York), apud James

M. Matthews, Digest of the Laws of Virginia (C.H. Wynne, 1857), pp. 257–258. Compare:“The second exception is equally as untenable as the first. It assumes that the only con-sequential injury to the father, of which he has a right to complain, consists in the lossof the services of his daughter, and the expenses he may incur during her confinement.This certainly is not so . . . All the authorities show that the relation of master and ser-vant, between the parent and child, is but a figment of the law, to open to him thedoor for the redress of his injuries. It is but the substratum on which the action is built;the actual damages which he has sustained, in many, if not in most cases, exists onlyin the humanity of the law, which seeks to vindicate his outraged feelings. He comesinto the court as a master; he goes before the jury as a father (Briggs v Evans [1844]27 NC [5 Ired] 16, apud Mosley v Lynn [1930] 172 Ga 199).

112 Mosley v Lynn (1930) 172 Ga 195.

justice of the law, it is available only while the accused is still on mercy’sground.”110

Even the civil cases, which might seem on the surface to have theleast to do with repairing the “ruination” of an unmarried girl, also fitinto the pattern. In Virginia, Kentucky, and Georgia, the invocation ofthe Common Law provision was by way of legal fiction. The collectionof damages by the father was not grounded in any actual “loss of ser-vice”; the real damage being compensated for was that to the family’shonor: “The old idea of loss of menial services, which lay at the foundationof the action, has gradually given way to more enlightened and refinedviews of the domestic relations; these are, that the services of the child arenot alone regarded as of value to the parent. As one of the fruits ofmore cultivated times, the value of the society and attentions of a virtuousand innocent daughter, is properly appreciated; and the loss sustainedby the parent, from the corruption of her mind and the defilement ofher person by the guilty seducer, is considered ground for damages.”111

In Mosley v Lynn, a case in which a sixteen year old girl was seducedby a married man who gave her expensive presents and promised herthat she would not get pregnant by him (as it happened, he was miss-ing a testicle), the sentiments of the outraged parent (the child’s mother),as expressed by her lawyer, are quoted as follows: “(He) has destroyedthe peace, happiness, and the hope she had in the flower of her fam-ily, her sweet daughter; the happiness of petitioner’s life has been takenaway from her, and she has been left to weep and mourn and lamentover the mistake her said daughter has made, brought about by saiddefendant, and because of the disgrace and dishonor of her said daugh-ter[,] petitioner’s life has become almost unbearable.”112 Moreover, inthe opinion of Judge Daniel, incontinence in a daughter was not merely

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113 Mosley v Lynn (1930) 172 Ga 194.114 Briggs v Evans (1844) 27 NC (5 Ired) 16, apud. Mosley v. Lynn (1930) 172 Ga

200. Judge Daniel also quotes § 4466 of the Civil Code 1910 to effect that “in welldefined cases the damages should be exemplary” Mosley v Lynn [1030] 172 Ga 198,cf. 199).

115 The failure of a suitor to marry his intended had serious economic consequncesfor the girl, whether she was actually “ruined” or not, since either way her chances ofever being married were diminished. It is easy for feminists to condemn women forembracing male domination; however, the reality of the situation was that there wasthen little opportunity for a woman to make it on her own. For more on this subject,see Mary Coombs, “Agency and Partnership: A Study of Breach of Promise Plaintiffs,”Yale Journal of Law and Feminism 2 (1989/1990): 1–23. For the development of Americanlaw on the subject of breach of promise suits, and of influence of the opinions of jus-tices such as those we have been quoting on this development, see Michael Grossberg,

an injury to the parent but “an offense against the good order, peace,and dignity of the commonwealth . . . Properly construed, the word‘seduction’ as used in § 4466 [of the Civil Code 1910], has referenceto any and all cases in which a child is led astray and her moralsdestroyed, uprooted, and extirpated, her social standing damaged, andshe is thereby rendered an unfit associate for other children in the fam-ily, and a debased member of society.”113

One can hardly accuse the Sumerians of having Victorian attitudesto sex. They would hardly have agreed with Judge Lumpkin that: “Never,so help me God, while I have the honor to occupy a seat upon thisbench, will I consent to control the jury, in the amount of compensa-tion which they may see fit to render a father for the dishonor and dis-grace thus cast upon his family; for this atrocious invasion of his householdpeace. There is nothing like it, since the entrance of Sin and Deathinto this lower world. Money can not redress a parent who is wrongedbeyond the possibility of redress; it can not minister to a mind thus dis-eased. Give to such a plaintiff all that figures can number, it is as thesmall dust of the balance. Say to the father, there is $1049, embraceyour innocent daughter for the last time, and let her henceforth becomean object for the hand of scorn to point its finger at. What mockery!And yet this is the identical case we are considering. . . . In cases ofdeliberate seduction, there should be no limitation to verdicts, becausethere is none to the magnitude of the injury.”114

In late nineteenth and early twentieth century America, the tend-ency was to award actual damages in cases of unvirtuous women whose lovers had gotten them pregnant, but to allow for punitive dam-ages in cases of seduction, especially where a promise of marriage had been made,115 and to encourage the juries to be generous in their

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Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill, 1985).For the situation in Victorian England, see Ginger S. Frost, Promises Broken: Courtship,Class and Gender in Victorian England (Charlottesville, 1995).

116 See above, n. 80.117 The assignment of specific damages was also a feature of Ottoman Law. Note that

in Art. 200 of the Ottoman Penal Code ( John A. Strachey Bucknill and Haig ApisoghomS. Utidjian, tr., The Imperial Ottoman Penal Code, [London, 1913], p. 152) as well as inArt. 424 of the modern Turkish Criminal Code (Orhan Sepiçi and Mustafa Ovaçık, tr.,The Turkish Criminal Code, The American Series of Foreign Penal Codes 9 [New York,1965), the compensation is proportional to the social standing of the victim and thescope and nature of the offense.

118 “If he does not have a wife, the man who had intercourse (with the adolescentgirl) gives a third of silver as the market value of the girl to her father (and) the manwho had intercourse with her may marry her; he may not send her away. If her fatherdoes not want (this), he may receive silver—the third—for the girl and give his daugh-ter to whomever he pleases. § If the girl gave herself to the (married) man (who hadintercourse with her), (and if ) the man can swear it, they may not approach his wife;the man who had intercourse (with her) gives a third of silver as the market value ofthe girl (and) the father does to his daughter as he pleases” (MAL A 55–56); “If a mancomes upon a maiden that is not betrothed, takes her and has relations with her, andtheir deed is discovered, the man who had relations with her shall pay the girl’s fatherfifty silver shekels and take her as his wife, because he has deflowered her. Moreover,he may not divorce her as long as he lives” (Deut. 22.28–29); “When a man seduces avirgin who is not betrothed, and lies with her, he shall pay her marriage price andmarry her. If her father refuses to give her to him, he must still pay him the custom-ary marriage price for virgins” (Exod. 22.15–16). Whether he married the girl or not,and whether the girl was virtuous or not, the payment made by the miscreant to thegirl’s father was the same: actual damages (or some multiple thereof ) as measured bythe diminution produced in her potential bride price by her loss of virginity. The insis-tence that the marrying seducer/rapist also pay this amount was presumably designedto ward off any attempt on his part to argue for a discount on the grounds that hisintended was no longer a virgin.

119 “If he does not have a wife, the man who had intercourse (with the adolescentgirl) gives a third of silver as the market value of the girl to her father (and) the manwho had intercourse with her may marry her; he may not send her away” (MAL 55);cf. Deut. 22.28–29 (see previous note).

awards.116 By contrast, ancient Near Eastern legal regulations had nohesitation in assigning a specific value to the damage done to the fatherby the loss of his daughter’s virginity,117 or in charging the miscreantthe same amount regardless of whether the woman was virtuous ornot.118 Still, in a general way, the motivation behind the late nineteenthand early twentieth century American laws and the ancient Near Easternlegal regulations would seem to be similar.

To sum up our findings to this point: it appears that what is treatedin the Sumerian laws, and depicted in the Enlil and Ninlil myth, is notrape at all, but the “ruination” of an unmarried girl. Provisions for-bidding the forcibly married “rapist” from divorcing his new bride119

strongly suggest that at least part of the problem caused by the “rape”

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120 See n. 14. Similarly, in ancient Mesopotamia a murderer could wash away theblood by paying compensation to the victim’s relatives: “Now they have extended (theirhands) to one another. He (the murderer) will give KUR-adimri, [daug]hter of Atar-qamu the scribe (to) Samas-kenu-uœur son of Samaku (the murdered man) in lieu ofblood-money (and so) will he wash away the blood” (Theodore Kwasman, Neo-AssyrianLegal Documents in the Kouyunjik Collection of the British Museum, Studia Pohl [Series Maior]14 [Rome, 1988], no. 341 = Raija Mattila, Legal Transactions of the Royal Court of Nineveh,Part II, SAA 14 [Helsinki, 2002] no. 125: 1’–6’).

121 Late antique and early Christian philosophers considered non-procreative sexbetween a man and a woman to be a “crime against nature,” on a par with homo-sexual acts (Vern L. Bullough, “The Sin Against Nature” in Sexual Practices and the MedievalChurch, ed. Vern L. Bullough and James Brundage [Buffalo, 1982], pp. 55–71. Such atti-tudes were also typical of medieval Slavs. “Rape could not be the result of benign butoverly enthusiastic romantic love; there was no such thing. If a man revealed true lovefor a woman by helping her avoid sex, he manifested hatred by forcing her into it. . . .Thus the medieval Slav’s conception of sexuality as evil prompted them to understandforced sex as a crime of violence” (Levin, Orthodox Slavs, p. 212). I do not mean to implythat such an attitude is sufficient to produce the modern crime of rape; on the con-trary, the canonists just quoted sanctioned a treatment of “rape” strikingly similar tothat just outlined for the Sumerians; see n. 124.

122 The most obvious case is the toleration accorded the rape of black women bywhite men, whatever the social class. Note also the lenient treatment accorded to lowerclass rapists in Renaissance Venice, provided they confined themselves to lower class victims (Guido Ruggiero, Violence in Early Renaissance Venice [New Brunswick, 1980], pp. 101–102). Medieval Russian Canon law charged miscreants on a sliding scale whichincreased the penalty with the social status of the victim (Levin, Orthodox Slavs, pp. 219–220).

was trying to find any third party who was willing to marry the victimafterwards. Enlil was, therefore, “sullied” by his intercourse with Ninliland subsequently banished from his city, not because he had lain withher against her will, although Ninlil did make some attempt to refusehim, but because he had failed to wash away her virgin blood by doingthe honorable thing and marrying her.120

If we are to understand this Sumerian attitude to sex offenses, wemust first understand the social context which inspired it. No one woulddeny that twentieth century Western attitudes to “sex crime” have beenshaped on the one hand by strongly negative Christian attitudes to non-procreative sex121 and on the other by the occasional toleration of outand out rape, even when committed by the lower orders, providedalways that the victims were not members of the upper classes.122 Toexplain why the Sumerians (and other peoples of the ancient Near East)put so much more emphasis on what we would term seduction thanon what we would term rape, it is necessary to have a look at othersocieties which have also seen forced marriage as a blanket solution tosex offenses.

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123 “Si quis mulierem vi oppresserit et violaverit, membrorum dampno punietur” (Lawsof William the Conqueror, Title 18); “Quod quide crimen si couincatur, sequitur poenas. amissio mebroru, vt sit mebru p. membro, quia virgo cum corrupitur, mebru amit-tit, & ideo corruptor puniatur in eo in quo deliquit, oculos igitur amittat opter aspectudecoris, quo virgine cocupiuit, amittat & testiculos, qui calore stupri induxerut” (Bracton,De Legibus et Consuetudinibus Angliae, III.147).

124 Frederick Pollock & Frederic W. Maitland, The History of English Law, 2nd ed.(Cambridge, 1898), vol. 2: 490–491; cf. J.B. Post, “Ravishment of Women and theStatutes of Westminster,” in Legal Records and the Historian, John Hamilton Baker, ed.(London, 1978), pp. 150–164. Under the influence of the twelfth century Decretum ofGratian, medieval Canonists also allowed rapists to escape more or less unscathed if theymarried their victims ( James Brundage, “Rape and Seduction in the Medieval CanonLaw,” in Sexual Practices and the Medieval Church, ed. Vern L. Bullough and James Brundage[Buffalo, 1982], p. 146). Among the South Slavs, as with the Sumerians, the rape of amarried woman was treated as adultery (Levin, Orthodox Slavs, p. 216); the question ofthe woman’s resistance or lack thereof was relevant to her penalty, but not the man’s(Levin, Orthodox Slavs, pp. 216–217, 218–219), and a forced marriage was a perfectlyacceptable outcome when an unmarried girl was involved, although the parents werefree to settle for money damages instead (Levin, Orthodox Slavs, p. 217).

Rape and Seduction in Medieval England

To judge solely by the law on the books, Medieval England would not seem to be a pertinent example, since the penalty laid down forrape was castration (with or without blinding), not, one would think,an auspicious start to a marriage between the concerned parties.123

However, thirteenth century judges found no difficulty in allowing thewoman to release the man from his penalty if she agreed to marry him(i.e. the threat of a draconian penalty could be used to arrange a forcedwedding).124

This rather Sumerian attitude to sex offenses is, as one might expect,also reflected in folk literature. A nice parallel to our Enlil and Ninlilmyth (particularly in terms of the “psychology of the rape victim”) isthe Medieval ballad: “Royal Forester”which is worth quoting in full:

“I am a forester of this land as you may plainly see. It’s the mantle of your maid-enhead that I would have from thee.” He’s taken her by the milk white hand andby the leylan sleeve. He’s lain her down upon her back and asked no man’s leave.“Now since you’ve lain me down young man, you must take me up again. Andsince you’ve had your will of me, come tell to me your name.” “Some call meJim, some call me John, begad it’s all the same. But when I’m in the king’s highcourt, Erwilian is my name.” She being a good scholar, she’s spelt it o’er again.“Erwilian, that’s a Latin word, but Willy is your name.” Now when he heard hisname pronounced, he mounted his high horse. She’s belted up her petticoat andfollowed with all her force. He rode and she ran a long summer day, until theycame by the river that’s commonly called the Tay. “The water it’s too deep mylove; I’m afraid you cannot wade.” But afore he’d ridden his horse well in shewas on the other side. She went up to the king’s high door, she knocked and she

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125 Steeleye Span, “Below the Salt,” (Chrysalis-CHR 1008). The first English text ofthis ballad, a faithful translation of the original Latin, appeared in Anchovy Ram’s ele-mentary drum tutor: Half Way to Para-diddle, published in 1293. Compare the very sim-ilar ballad “The Knight and the Shepherd’s Daughter” in Francis James Child, TheEnglish and Scottish Popular Ballads (New York, 1882–1898), vol. 2: 457-477 (no. 110). Inone of the Child versions (E in Ballads, vol. 2: 465–467]), it is made quite clear thatthe maiden was, in fact, raped.

126 See James Henry Dixon, Ballads and Songs of the Peasantry of England (London, 1846),pp. 82–84; cf. Child, Ballads, vol. 2: 487–488 (no. 112 D).

went in, said: “One of your chancellor ‘as robbed me and he’s robbed me rightand clean.” “Has he robbed you of your mantle? Has he robbed you of yourring?” “No, he’s robbed me of my maidenhead and another I cannot find.” “Ifhe be a married man, then hanged he shall be. And if he be a single man, heshall marry thee.” This couple they got married. They live in Huntley town. She’sthe earl of Airlie’s daughter and he’s the blacksmith’s son.125

In line with this rather curious story are other ballads, such as “Blowthe Winds, I-Ho,” which poke cruel fun at young men who fail to“rape” young women while they have the chance, and have to be taughta sober lesson by their would-be “victims”.

There was a shepherd’s son, he kept sheep on yonder hill . . . Helooked east and he looked west, he took another look, and there hespied a lady gay, was dipping in a brook. She said, “Sir, don’t touchmy mantle, come, let my clothes alone; I will give you as much moneyas you can carry home.” “I will not touch your mantle, I’ll let yourclothes alone; I’ll take you out of the water clear, my dear to be myown.” . . . He set her on a milk-white steed, himself upon another; andthere they rode along the road, like sister, and like brother. . . . Andwhen they came to her father’s gate . . . And when the gates were open,this lady jumped in; she says, “You are a fool without, and I’m a maidwithin. Good morrow to you, modest boy, I thank you for your care;if you had been what you should have been, I would not have left youthere. . . . There is a flower in my father’s garden, they call it mary-gold; the fool that will not when he may, he shall not when he wold.”126

Another version of this ballad, called “The Baffled Knight” is evenmore explicit:

Yonder comes a courteous knight, lustely raking ouer the lay; he was well awareof a bonny lasse, as she came wandring ouer the way. . . . “Also Ioue saue you,faire lady, among the roses that be so red; if I haue not my will of you, full soone,faire lady, shall I be dead.” . . . “If you will carry me, gentle sir, a mayde vntomy father’s hall, then you shall haue your will of me, vnder purple and vnderpaule.” . . . When she came to her father’s hall, it was well walled round about;she yode in at the wicket-gate, and shut the foure-eared foole without. “You had

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127 Child, Ballads, vol. 2: 483 (no. 112 A).128 Child, Ballads, vol. 2: 485 (no. 112 C, verse 17). Child also quotes (vol. 2: 479–483)

variants of this ballad from Spain, France, Italy, Denmark/Sweden, Germany, andGreece. In consonance with the Italian folk ballads, are actual records from medievaland early Renaissance Italy of “rapes” which ended in forced marriages (see Ruggiero,Violence, p. 167).

129 This is not to imply that there were no genuine rape cases in medieval England(or among the Sumerians for that matter). For the treatment of the crime of rape inEnglish courts, see John Marshall Carter, Rape in Medieval England: An Historical andSociological Study (Lanham, 1985).

130 In cases of seduction, the usual practice in England was to wait and see whetherthe girl got pregnant; the strong-arm tactics were reserved for cases where fornicationresulted in conception (see G.R. Quaiffe, Wanton Wenches and Wayward Wives [NewBrunswick, 1979], pp. 59–123). Early Germanic peoples seem to have been quite relaxedin such matters; not only could single and betrothed women be abducted without undulyserious consequences, but one could even acquire a wife who was already married tosomeone else in this way, provided the proper payments were made to her father or

me,” quoth she, “abroad in the field, among the corne, amidst the hay, where youmight had your will of me, for, in good faith, sir, I neuer said nay. Ye had mealso amid the field, among the rushes that were so browne, where you might hadyour will of me, but you had not the face to lay me downe.” He pulled out hisnut-browne sword, and wipt the rust off with his sleeue, and said, Ioue’s cursecome to his heart that any woman would beleeue! When you haue your ownetrue-loue a mile or twaine out of the towne, spare not for her gay clothing, butlay her body flat on the ground.”127

A variant adds to the “good advice” given the hapless knight by hisescaped victim: “And if you chance for to meet a maid, a little belowthe hill, sir, you need not fear her screeking out, for she quickly willlye still, sir.”128 This last sentiment may well represent male views pro-jected onto women, but it does emphasize the extent to which thewoman’s initial consent to the act of intercourse was, in English as wellas Sumerian examples, immaterial to the outcome.

Quite apart from shaking ourselves free of the notion that any womanwho would behave like Ninlil must come from some strange and benightedpart of the world, the English examples point up the extent to which,given the right social context, the “typical” sexual offense may come tobe viewed, not as a form of brutal assault, but as a rather rough formof courtship.129 Noteworthy in the case of the “Royal Forester” and“Blow the Winds, I-Ho” is the great social distance between the twolovers, which might have led the young woman, or her father, to rejecta more conventional suit on the part of the young man.

This is, however, as far as our English examples can take us since,when one comes to examine attitudes towards fornication, the Englishand the Sumerians quickly part company. Folk custom in England dis-played a refreshingly nonchalant attitude to pre-marital sex,130 an atti-

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husband before any children were born (Lex Alamannorum, L–LI, LIII, XCVII.4=PactusLegis Alamannorum, XXXII.1; Rothair’s Edict, 186–191, 214; Laws of Liutprand, 31.II,119.III; Laws of Ethelbert of Kent, 82–83).

131 “If a man says that the unmarried daughter of a free man has had intercourse,if it is proven that she is a virgin, he pays 10 shekels of silver” (LI 33). This collectionof laws unfortunately does not contain any price regulations indicating the buying powerof ten shekels; by the roughly contemporary code of Esnunna, this amount of moneywould have been sufficient to hire a wagon with oxen and driver for thirty days, or thewages of a hired laborer (exclusive of food rations) for ten months (CE 3, 11). Comparethe twelfth century C.E. code of Jaroslavl which penalized the slanderer of a woman’svirtue as severely as if he had raped her (Levin, Orthodox Slavs, p. 222).

132 See William W. Hallo, “The Slandered Bride,” in Studies Presented to A. Leo Oppenheim,Robert D. Biggs and John A. Brinkman, eds. (Chicago, 1964), pp. 95–105. Cf. “If aman, after marrying a woman and having relations with her, comes to dislike her, andmakes monstrous charges against her and defames her by saying, ‘I married this woman,but when I first had relations with her I did not find her a virgin,’ the father and motherof the girl shall take the evidence of her virginity and bring it to the elders at the citygate. . . . And they shall spread out the cloth before the elders of the city. . . .” (Deut.22.13–17). On the importance of virginity in a bride in the ancient Near East, see alsoClemens Locher, Die Ehre Einer Frau in Israel, Orbis Biblicus et Orientalis 70 (Göttingen,1986), especially pp. 232–237. Contra Karel van der Toorn, Review of Locher, Ehre inBiOr 46 (1989): 430, if MAL A 55–56 (and other laws on the violation of virgins) cameinto play only when the girl became pregnant, then why do such laws not say: “If anunmarried girl has been made pregnant”?!

133 Articles 414–417 of the Turkish Criminal Code; cf. articles 197–200 of the OttomanPenal Code. Seduction is also a criminal offense under modern Turkish law (articles423–424 of the Turkish Criminal Code; cf. article 200 of the Ottoman Penal Code), asis abduction (articles 429–431 of the Turkish Criminal Code; cf. article 206 of theOttoman Penal Code).

134 Abductions and forced marriages were customary in the Roman Empire, althoughthe emperors did their best to put a stop to them by threatening the man with mutilationor death either at the hands of the government or of the outraged relatives, the womanwith death if she consented to the elopement and disinheritance by her outraged parentsif she was raped ( Justinian allowed the raped woman to collect the rapist’s property),

tude which ancient Mesopotamians did not share. The importance topublic opinion of an unmarried woman’s virginity may readily be seenfrom the laws of Lipit Istar, which fine a man for unjustly casting asper-sions on it,131 and from an actual Sumerian case in which a man triedto escape from the duties of intercourse with an unwanted wife by claim-ing that his bride was not a virgin.132

Rape and Seduction in Modern Turkey

A more revealing set of examples comes from the rural districts of mod-ern Turkey, where virginity among unmarried girls is still held at a pre-mium. The situation is somewhat complicated by the fact that Turkey,like Medieval England, has a genuine rape statute on the books,133 not tomention a tradition, probably inspired ultimately by late Roman law,134

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assistants with death, any slaves who were involved with a mouthful of molten lead orincineration, and the parents with deportation if they forgave the culprit and/or con-sented to the marriage (Theodosian Code, Book IX, Titles XXIV.1–2, XXV.1; Justinian’sCode, Book IX, Title XIII; Leo, Constitution XXXV). If, however, anyone was hardyenough to persist and managed to escape accusation for five years, the marriage, andany resulting offspring, were considered legitimate (Theodosian Code, Book IX, TitleXXIV.3). Later, even this concession was withdrawn ( Justinian’s Code, Book IX, TitleXIII.1.1). Justinian. Novellae, Ninth Collection, Title XXVI (cf. Title XXXIII) fulmi-nates against authorities who recognized such marriages but awarded the woman theman’s property under the terms of the rape law!

Similarly, the Liber Augustalis of Frederick II Hohenstaufen of Sicily did its best todiscourage rape with a view to marriage by threatening the rapist with death (LiberAugustalis, Title XXII [25]) while fulminating at those who “escaped capital punishmentby marrying (the victim) or by arranging for another to marry her” (Liber Augustalis,Title XXII [25]) and against those who used the threat of capital punishment to force“unequal marriages” (Liber Augustalis, Title XXIV [28]).

By contrast, the Byzantine Ecloga, doubtless inspired by Exod. 22.15–16 and Deut.22.28–29, allowed for marriage with the option of a fine in cases of seduction (AngeliciE. Laiou, “Sex, Consent, and Coercion in Byzantium” in Angelici E. Laiou, ed., Consentand Coercion to Sex and Marriage in ancient and Medieval Societies [Dumbarten Oaks, 1993],pp. 120–121). St. Basil’s canons permitted marriage in cases of seduction while still insist-ing on punishing the attendant pre-marital intercourse. They also allowed for marriageas an outcome in cases of abduction without ecclesiastical punishment as long as no vio-lence was involved and as long as the young couple had not actually slept together(Laiou, “Sex,” pp. 134–135). Interestingly, the Isaurian emperors who issued the Eclogawere determined to encourage marriage, even between unequal partners (Laiou, “Sex,”p. 126).

of draconian punishments for abductors.135 This has not, however, pre-vented certain “rapes” and abductions from being “punished” by a mar-riage between the concerned parties.136 I quote two cases from a recentethnographic study.

135 The Old Ottoman Criminal Code (Uriel Heyd, Studies in Old Ottoman Criminal Law[Oxford, 1973], pp. 95–131) punished abductors with castration, willing abductees withbranded vulvas, and accomplices with fines, and dissolved the marriage, if any (ChapterI.10–12, 15). The Dulkadir Regulations (Heyd, Old Ottoman Criminal Law, pp. 132–147)punished rape and seduction with fines; in cases of abduction they refused to acknowl-edge the marriage unless the girl’s guardian gave his consent (Dulkadir Regulations,12.2–3, 16; Register 9). Interestingly, the reason given for insisting on the guardian’sconsent is explicitly to prevent marriages between persons of unequal birth (DulkadirRegulations, 16).

136 The situation is similar in Italy. “Rape has also received some ex post facto approvalin Sicily and elsewhere when it is preceded by the abduction of a virgin by an unmar-ried male who following the defloration not only offers but insists upon marriage” (DonaldE.J. MacNamara and Edward Sagarin, Sex, Crime and the Law [New York, 1977], p. 34).Such customs were tacitly recognized in Italian law until very recently; according to Art.544 of the Italian Penal Code of 1930 (E.M. Wise and A. Maitlin, tr., The Italian PenalCode, The American Series of Foreign Penal Codes 23 [New York, 1978]), marriage wasa bar to conviction in cases of rape (articles 519–520) and abduction (articles 522, 524)as well as seduction (article 526). Compare the Italian Penal Code of 1889, articles 352(the marriage bar), 331 (rape), 340–341 (abduction). The section on seduction appearsto have been added between 1889 and 1930.

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137 June Starr, Dispute and Settlement in Rural Turkey, Social, Economic and PoliticalStudies of the Middle East, vol. XXIII (Leiden, 1978), pp. 139–140 (no. 8).

Case 1: “Between ten and fifteen years ago, my brother was in love with a girlnamed Ay(r)e, but she was engaged to another man. The night before her wed-ding, my brother Hamut and I went to the girl’s house with guns. Her parentswere very old, and we threw salt in their eyes. We took the girl, and shot ourguns in the air. My brother married the girl . . .” “Were her parents angry?” Iasked. “What could they do? They were so old. My brother wanted to marry her,so they let him.” “Did she want to marry him?” I asked. “Who remembers? Shewas so young. It was a long time ago.” . . . Although the elements which went intothe parent’s decision to accept the union are unknown, certain aspects of the case,relating to widely held rural attitudes and customs, can be discussed. For instance,virginity in a bride is highly valued and it is unlikely that her fiancé would havebeen willing to marry her after her kidnapping, which carries the presumption ofdeflowering. Any man who did marry her (except her kidnapper) would lose faceand be the brunt of veiled jokes for a considerable period.137

Case 2: “Last year a young man named Hasan Ali was in love with a girl wholived in a village halfway between Bodrum and Mandalinci, but her parents wouldnot let him marry her. One night, after a wedding, Hasan Ali and fifteen of hisfriends went to her house with guns. They threatened to shoot her parents; theythrew pepper in their eyes, and knocked them down. They took the girl in HasanAli’s jeep to a seaside village. . . . The morning after the girl was abducted, thegirl’s parents reported the incident to the gendarmes, who began a search for her.At the end of two weeks in Didim, the girl was still refusing to marry HasanAli. . . . Ali became afraid that word of where they were hiding would reach theBodrum police, so he took the girl to Izmir. . . . By this time Hasan Ali was outof money, but the girl had decided she would marry him. It had taken him twenty-eight days to persuade her. They returned to her village and married. The par-ent’s case against the boy was subsequently dropped. They now have a baby, andher parents have forgiven Hasan Ali for her abduction.” . . .

Reporting a girl’s elopement to the gendarmes gives the parents the grounds toprosecute her kidnapper if later he decides not to marry her. When the case comesto court, as it will because of the gendarme report, the only way the defendant(her abductor) can have the case dismissed is to show the judge a marriage certificate(which he can only do after he has wed the girl). Thus, in dismissing chargesagainst the male once he has become husband to the female he abducted, the pre-sent law takes account of the widespread custom of kız kaçırma as an alternativemarriage form. By kız kaçırma, a man avoids costly bridewealth gifts to the womanand her family, and the woman’s parents avoid the expenses of a village wedding,which are considerable. Under Turkish law, the female is considered the passiveperson, victimized by her abductor, because abduction diminishes her desirabilityas wife to any male except her abductor, since everyone assumes she is no longera virgin (whether sexual intercourse has taken place or not). The young woman’srole in the elopement, and even her initiation of the flight—some young womenentice the man they want to marry to run off with them—is not relevant legal evi-dence, and will not help a man avoid a six month jail sentence (or more), if he—or she—is unwilling to marry. Under Turkish law, a man is subject to retrial forabduction if the couple divorces without sufficient reason within the first five yearsof marriage. . . . Had the police or gendarmes discovered them before she was

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138 Star, Dispute, pp. 186–189 (no. 24).139 “If a man brings the brideprice (teræatu) for another man’s daughter but someone

else seizes her without asking her father and mother and has intercourse with her, heshall die” (CE 26); cf. UN 6 (see p.%UN6%); CH 130 (see p. %CH130%); Deut.22.23–24 (see n. 35).

140 “If he does not have a wife, the man who had intercourse (with the adolescentgirl) gives a third of silver as the market value of the girl to her father (and) the manwho had intercourse with her may marry her; he may not send her away. If her fatherdoes not want (this), he may receive silver—the third—for the girl and give his daugh-ter to whomever he pleases” (MAL 55); cf. “If an overseer or a shepherd elopes witha free woman and does not pay the brideprice (kùsata) for her, she becomes a slave (tohis master who paid it) for three years” (HL 35); Deut. 22.28–29 (see n. 60); Exod.22.15–16 (see n. 60); Genesis 34: 11–12 (see n. 75). The “rapist” did not even escapepaying if the woman was clearly at fault: “If the girl gave herself to the (married) man(who had intercourse with her), (and if ) the man can swear it, they may not approachhis wife; the man who had intercourse (with her) gives a third of silver as the marketvalue of the girl (and) the father does to his daughter as he pleases” (MAL A 56).

141 “If a man ‘takes’ another man’s daughter without asking her father and motherand does not set up a kirru-jar and contracts for her father and mother, even if she livesfor a year in his house, she is not a wife. If a man sets up contracts and a kirru-jar forher father and mother and then “takes’ her, she is a wife; the day she is caught in thelap of another man, she dies, she need not live” (CE 27–28); cf. “If a man ‘akes’ a wifeand does not establish her contracts, that woman is not a wife” (CH 128).

142 Similarly, see Levin, Orthodox Slavs, pp. 216–217, 218 (for South Slavic canon law).

willing to marry, he would be tried for abduction, forcible rape of a virgin, andthreat and assault against her parents.138

These exempla cannot be applied to the Sumerian case without a fewreservations. As we have seen, the Turkish peasants, like their Englishcounterparts, had a real rape statute to hold over the head of the“rapist” and thus force his cooperation. Moreover, a betrothed girl (asin Case 1) would not have been eligible in the ancient Near East fora forced marriage.139 Finally, it was not the case in ancient Mesopotamiathat the “rapist” spared himself the expense of a bride price and hisin-laws the expense of a wedding.140 If he did not eventually make acontract with her parents and celebrate the marriage feast, she was notlegally his wife, even if she lived with him for a year.141

Otherwise, however, the parallel is striking, especially when it comesto the irrelevance of the girl’s consent to the man’s “guilt”142 and tothe proviso restricting the divorce rights of the forcibly married man inview of the bride’s reduced chances of finding a third party for a hus-band. Equally striking is the fact that the situation of Hasan Ali wouldnot have been greatly different if he had lived in late nineteenth orearly twentieth century Georgia, down to the number of years he was

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143 The attitude of the law towards the seducee was also the same in both cases.“Under Turkish law, the female is considered the passive person, victimized by herabductor, because abduction diminishes her desirability as wife to any male except herabductor, since everyone assumes she is no longer a virgin (whether sexual intercoursehas taken place or not)” (Star, Dispute, p. 187). Similarly: “Where a virtuous unmarriedfemale has been cruelly betrayed, it is evident that she has been much more sinnedagainst than sinning; the law regards her as the victim, rather than an accomplice, ofhim who accomplishes her ruin and brings about her downfall” (Keller v State [1897]102 Ga 511).

144 The original Ottoman Penal Code of 1858 made no mention of seduction. However,article 200 was amended on December 17, 1860 (1277 A.H.) so as to make it a crim-inal offense to seduce a virgin under promise of marriage. In addition to a prison term,the miscreant was also required to pay compensation for the loss of virginity. Articles423–424 of the Turkish Criminal Code, which was adopted in 1926, further provided thatif the defendant married his victim, the prosecution was to be suspended unless the mar-riage terminated in divorce within five years. Article 206 of the Ottoman Penal Codeallowed for marriage as a bar to conviction in cases of abduction; in an amendment ofAugust 1, 1911 (1329 A.H.), a provision was added to the effect that the statutory pun-ishment would fall on the abductor’s head if he divorced his new bride. Article 434 ofthe Turkish Criminal Code provided that a marriage between the abductor and his ex-victim would suspend the prosecution or, if he had already been convicted, the execu-tion of the sentence, provided that he did not try to divorce her before the terminationof the period prescribed by law. It also extended this option to cover cases of rape (arti-cles 414–416). It should be noted that, despite the fact that the Turkish Criminal Codeof 1926 is generally viewed as being “almost entirely” based on the Italian Penal Codeof 1889, this does not seem to be the case with modern Turkish law on the subjects ofrape, seduction, and abduction; indeed, the only obvious influence of the Italian PenalCode of 1889 on these laws is in regard to those who assist in an abduction. In theTurkish Criminal Code of 1926 (article 434), as in the Italian Penal Code of 1889 (arti-cle 352), a marriage between the interested parties protected not only the abductor, buthis accessories as well. By contrast, according to the Ottoman Penal Code of 1858 (article206 as amended on 1st August 1911), those who assisted in an abduction were to bepunished even if the abductor married his victim afterwards.

145 The Sumerian-sounding provisions in South Slavic canon law (Levin, Orthodox Slavs,pp. 216–217, 218–219; see n. 124) may well be influenced by the Biblical passages whichwe have examined. However, it should be noted that the Slavs, like the ancientMesopotamians, arranged their children’s marriages (Levin, Orthodox Slavs, pp. 95–96).

required to remain married to his new bride.143 This is perhaps notentirely accidental, since Turkish laws on the subjects of seduction,abduction, and rape reached final form during this same period.144

As in the ancient Near East and Medieval England, the offense con-templated by Turkish law is not really rape at all but the “ruination”of an unmarried girl; moreover, the context which generates such “rapes”is clearly the parents’ refusal to consider a love-struck man’s suit, a con-tingency which would naturally arise in any situation where, as in ancientMesopotamia, marriages were typically arranged by the couples’ parents.145

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146 MAL A 43.147 Verina Martinez-Alier, “Elopement and Seduction in 19th-century Cuba,” Past and

Present 55 (1972): 91–129. Compare, for example, Spanish Andalusia: “It is accepted thatyoung people who face opposition to their marriage from the girl’s father may force thefather’s hand by running away to spend the night together. After this, their recognitionas a married couple . . . is the only way in which his honour can be retrieved” ( JulianPitt-Rivers, “Honour and Social Status” in Honour and Shame: The Values of MediterraneanSociety, J.G. Peristiany, ed. [Chicago, 1966], p. 49). The tactic of using pregnancy toforce a marriage disapproved of by the parents in Italy is discussed in Rudolph M. Bell,Fate and Honor, Family and Village (Chicago, 1979), pp. 90, 93.

148 Code 1867 §§ 1698, 1704.149 Ky Stat 1860 ch. 47 § 11; Code 1873 § 31.104.3.

Imagine the despair of a young man whose lady love was engagedto another man in accordance with the Middle Assyrian laws: “If aman pours oil on the head of a man’s daughter or brings metal dishes(for the wedding feast), and the son to whom they assigned the wife iseither dead or has fled, he (the father-in-law) may give (her) to whicheverhe pleases among the remaining sons from the eldest to the youngestwho is ten years old. If the father(-in-law) is dead, and the son to whomhe assigned the wife is also dead, (but) there is a son of the dead sonwho is ten years old, he may marry (her) and if the sons of the sonare younger than ten years, if the father of the daughter wants, he maygive his daughter (to one of them) and if he wants, he may return (themarriage gifts) one-fold.”146

It should further be remarked that ancient Mesopotamia is only anextreme case; it is hardly necessary to have marriages actually arrangedby the parents in a given society in order to generate a disproportion-ate number of seductions. Thus, in 19th century Cuba, young peoplewere theoretically allowed to chose their own mates but, in fact, thefamilies concerned intervened forcibly if they felt that a proposed matchwould bring them dishonor. On the other hand, the even greater dis-honor presented by a deflowered daughter was usually sufficient to con-vert the parents into advocates for the match (presuming that the socialdistances involved were not too great), which gave “true love” an oppor-tunity to have its way via seduction.147

Such considerations are not entirely irrelevant to the importance ofseduction in late nineteenth and early twentieth century American laweither. For complete freedom to choose her own marriage partner, agirl had to wait until she was eighteen in Georgia148 and twenty-one inKentucky and Virginia.149 Keeping in mind that the reported casesnearly always involve appeals from convictions where the seducer refused

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150 In some cases, this is due to the wording of statutes which specified that theseduced girl had to be under sixteen or twenty-one but that, in itself, suggests that theproblem of seduction was believed, by legislators, to apply particularly to girls who werenot old enough to make their own unfettered choice of a marriage partner.

151 See, for example Jones v State (1892) 90 Ga 619; Berkley v Commonwealth (1915)164 Ky 192; Fuller v Commonwealth (1949) 190 Va 22.

152 As, for example, Hausenfluck v Commonwealth (1889) 85 Va 706 (girl’s father)and Shaver v Commonwealth (1928) 151 Va 554, Hillman v Commonwealth (1930) 155Va 1005 (the boy’s father).

153 Shaver v Commonwealth (1928) 151 Va 554; Fleenor v Commonwealth (1958)200 Va 271.

154 See p. %STREET%.155 If a man deflowered a virgin slave girl the Sumerian penalty was not forced mar-

riage but simply compensation to her master: “If a man deflowers the virgin slave girlof another man using violence, he must pay five shekels of silver” (UN 8); cf. “If a mandeflowers another man’s slavegirl, he pays one third MA.NA of silver (twenty shekels)and the slave girl continues to belong to her owner” (CE 31) and the actual case treatedin Finkelstein, JAOS 86: 359.

to marry his victim, and may not accurately reflect the situation in theunknown quantum of unreported instances of rape and seduction, it isstill striking how often one or both parties involved in a case was tooyoung to have contracted a marriage against parental opposition.150

Indeed, it was not uncommon for the seduced girl to be fifteen or six-teen years old.151 Moreover in a number of cases, it is mentioned eitherthat a parent was originally opposed to the match152 and/or that theyoung couple had talked of going out of state in order to obtain a mar-riage license.153

Where Has This Journey Taken Us?

To sum up our findings: given the fact that arranged marriages werethe rule in ancient Mesopotamia, the man whom a girl’s parents didnot approve of was in the same position as our unsuccessful English orTurkish suitor; he could only change other people’s minds by takingdrastic action. The Sumerian laws are careful to avoid potential entrap-ment by specifying that the parents did not know that their daughterwas wandering about in the street, thus giving the man the opportu-nity of claiming ignorance of the fact that she was not a prostitute154

and/or that she was a free woman, rather than a slavegirl.155 Thus, inorder to be forced to marry the girl, the “rapist” had to have been act-ing without the parent’s connivance and in the knowledge that a hastywedding was a likely result of his actions. It follows that a man whodesperately wished to marry a certain woman against the opposition of

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156 This is, of course, assuming that the girl’s brother did not simply kill her, as inthe English ballad “Teftie’s Annie” and in many Mediterranean societies to this day. Itis interesting to note that this self-help “solution” to the “problem” of lost virginity isnot considered as an option. This does not, of course, mean that it would not havebeen allowed to happen, but it does suggest that demanding an immediate marriagewith the culprit was the typical family reaction to the loss of their daughter’s virginity.

157 “If anyone elopes with a woman and (parental) allies go after them, if two or threemen die, there will be no compensation—you have become a wolf (if you try to dothis)” (HL 37).

158 Note, for medieval England, Brundage, “Rape and Seduction,” p. 146: “Thedecretist commentators . . . came to see marriage subsequent to abduction as a meansby which girls might be allowed to marry men of whom their parents disapproved.Hence, marriage subsequent to a technical rape might ironically allow a woman a greaterfreedom of choice in her marriage than she could otherwise enjoy” and Post, “Ravishment,”p. 153: “it is arguable that some couples used the procedure to offset family objectionsto socially disparaging matches—a trick which has a striking modern parallel.”

159 Note that, in both “Blow the Winds, I-Ho” and the Enlil and Ninlil myth, themaiden was skinny dipping in clear water.

160 See n. 76. Note that in “The Knight and the Shepherd’s Daughter” (Child, Ballads,vol. 2: 457–477 [no. 110], mentioned in n. 125), the young man offers to buy the vic-tim off with a purse of gold, which suggests that a similar solution to the problem wasenvisaged in England.

161 In a way, this is an improvement over the general rule in our own system which,after subjecting the victim to a great deal of public humiliation, does not compensateher or her family and, in fact, prosecutes any woman who accepts money from her

her parents had a means of forcing the issue.156 Indeed, the Hittite lawseven went so far as to protect the abductor from having to pay com-pensation if the parent’s attempts to thwart him resulted in deaths.157

To a modern sensibility, all of this seems a cruel disregard for thewoman’s feelings, but we must remember that a Mesopotamian girl,unlike her modern American counterpart, married very young, and toa man not of her own choosing. Compared to the normal expectationsof a Mesopotamian woman then, being “taken advantage of ” or abductedmight not have been such a bad thing.158 The mate her parents chosefor her might be someone whom she had never seen and who foundher unattractive or disagreeable. Moreover, as we noted in the Englishand Turkish exampla as well as in our Enlil and Ninlil myth, the womanmight even take the initiative in such cases by putting herself deliber-ately in harm’s way with no blame attaching to her for having doneso,159 provided that eventual marriage was what she had in mind.

In most cases, the loss of the woman’s virginity was probably sufficientto convince the parents of the necessity of an immediate wedding, butthe law did give the girl’s father the option of collecting damages andrefusing the marriage,160 which allowed for a more appropriate punish-ment of the odd case of actual rape.161 In the meantime, the presence

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rapist rather than pressing charges against him. The problem is that taking compensa-tion from a criminal in return for refusing to file a complaint deprives the state of theopportunity to punish him. For a discussion of the offense of “compounding crime,” see Rollin Perkins and Ronald Boyce, Criminal Law, 3rd. ed (Foundation Press: 1982),pp. 577–582, 1090–1092.

162 Or untrue love, as the case may be. Given the perversities of man’s nature, itmust sometimes have happened that the assailant lost interest as soon as the object ofhis romantic absorption was no longer a virgin and the threat of a loss of bachelor free-doms loomed large. Indeed, it should be noted that in both the Enlil and Ninlil mythand the “Royal Forester” ballad, the gallant lover most gallantly fled, with his ex-vic-tim in hot pursuit. Mesopotamian “conventional wisdom” held that marriages contractedin this way soon ended in divorce: “A young adolescent was treated as a wife; she wasoverpowered for purposes of copulation(?); he carried her off to his house. He made herenter his father’s house; he established her (marriage) contracts; he delivered her brideprice. He put her bride price on the table; he brought it in to her father. He haddeflowered her, (but it was as if ) he had not deflowered her; he hated her. He cut offthe hem of her garment; he weighed out her divorce money and bound it in her lap;he made her go out of the house. In future days, a husband of her choosing may marryher; he will not try to claim her back” (Benno Landsberger, Die Serie ana ittisu, MSL 1(Rome, 1937), pp. 98–99: Tablet VII ii 36–iii 6 with corrections by B. Landsberger,“Jungfräulichkeit: Ein Beitrag zum Thema ‘Beilager und Eheschliessung’” in SymbolaeIuridicae et Historicae Martino David Dedicatae [Leiden, 1968], p. 47). Compare: “Not heed-ing her plea, he overpowered her; he shamed her and had relations with her. ThenAmnon conceived an intense hatred for her, which far surpassed the love he had hadfor her. ‘Get up and leave,’ he said to her. She replied, ‘No brother, because to driveme out would be far worse than the first injury you have done me.’ He would not lis-ten to her, but called the youth who was his attendant and said, ‘Put her outside, awayfrom me, and bar the door after her’” (2 Samuel 13.14–17).

of a ruling providing for forced marriages provided what was probablya necessary safety valve which preserved the principle of arranged mar-riages by occasionally allowing “true love to take its course.”162

Conclusion

To answer our initial question: what Enlil did to Ninlil was not rape,as that crime is understood today, but the “ruination” of an unmarriedgirl. The logical solution to such a “problem” is for the deflowerer tobe forced to make good the damage which he has done. Therefore, weshould not question Ninlil’s judgment in pursuing Enlil, or that of hersociety in demanding that he marry her. Through the mutually enlight-ening study of ancient Mesopotamian literature and law and with theaid of comparative law and literature, we have reached a verdict, and,in the process, brought a previously unnoticed Mesopotamian customto light.

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