Komentarz do Powtórzonego Prawa 22:24

אשר ענה את אשת רעהו, he violated her and made her unfit to continue being the wife of her betrothed. We find a similar expression in Michah 2,9 נשי עמי תגרשון מבית תענוגיה, “you drive the women of My people away from their pleasure homes.” [compare Nachmanides who explains that the woman is not considered as an unwilling helpless victim in the scenario described by the Torah here. Hence the comparison with the chapter in Michah by our author is not so baffling. Ed.]

על דבר שלא צעקה בעיר, “because she did not even cry out in the city;” Nachmanides writes that the example quoted here by the Torah is the scenario that usually occurs. Normally, when the girl about to be raped cries out, there will be someone in the city that responds to her outcry. Failure to cry out may therefore be interpreted as consent by her. Similarly, seeing that there is only a remote chance that one’s outcry is heard in the field, her failure to cry for help does not incriminate her. If it can be proven that there were people passing by in the field while all this was taking place, she is considered as having consented because she had not tried to attract attention. If the woman did not know how to attract attention by crying out, but she is found weeping bitterly, this is also considered a behaviour that exonerates her from being labeled a harlot. Alternately, any attempt on her part to escape her attacker by struggling with him in silence also is interpreted as conduct that exonerates her.

על דבר אשר ענה, “on account of his having violated (raped) the wife of his fellow.” We would have expected the Torah to write: “on account of his having slept with his fellow’s wife.” If he had to use force to make her submit, she is a victim of violence and innocent. How then could the Torah punish her with death by stoning? The reason the Torah describes the man as having violated her, forced her, is that the Torah considers the male as if he had raped her, whereas she is considered as if she had been quite willing to engage in this encounter. Seeing the incident occurred in town where her cries for help would likely have resulted in her being rescued she is guilty of death for failing to cry out. The man, on the other hand, is treated as if he had violated her against her will instead of having merely seduced her first, and we apply the death penalty to him.
If the Torah mentions “city” and “field” as the locations where these illicit sexual unions take place, this is not to be understood literally, i.e. that only adultery by consent in the city makes the woman guilty of the death penalty, whereas she is free from guilt only if she had been raped in the field. The words “field” and “city” are illustrations of a likely scenario. If a woman was raped in the city she is most certainly not convicted, whereas if she chose to commit adultery in the field she is most certainly a candidate for the death penalty. In the final analysis both parties’ fate depends on the testimony of the witnesses.

וסקלתם אותם באבנים, “you shall stone them (to death) with stones. The Torah decrees a harsher mode of death for the woman who committed an adulteress act while betrothed, seeing that still having been a virgin, and not having tasted the physical gratification of sexual intercourse, she nonetheless shamed her family; this is a sin which reflects on her father and her family in whose house she lost her innocence and therefore reflects on there having been something wrong in her upbringing. Once she has been married and lived in her husband’s home, the family can blame her aberration as connected to her having left her father’s home.

על דבר אשר ענה את אשת רעהו, “for his having raped the wife of his fellow;” Nachmanides writes that although, generally, the expression עינוי, affliction, is used only when actual rape takes place, as in Genesis 34,2 with Dinah daughter of Yaakov, whereas here the woman in question was a willing partner in the act, why else would the Torah declare her guilty? However the situation described here is one where the man in question has been seen taking hold of her, and was lying down with her and she made no attempt to be rescued or to rescue herself; she is guilty while the man, at the same time, is considered as having raped her, since he initiated the crime without her consent being expressed, and he had made no attempt to seduce her, i.e. to secure her freely given consent.

על דבר אשר לא צעקה בעיר, “because she did not loudly protest being violated,” even though in a city where help would have been at hand. Her silence is proof that she did not really object to being violated by the rapist. She had no reason to fear being killed as the rapist would surely have been found and brought to justice.