Crimes and Punishments
CRIMES AND PUNISHMENTS
Outline
Biblical jurisprudence was based upon the assumption that man is under obligation to carry out the revealed will of God in leading a holy life, respecting the rights of God and man, not simply upon a utilitarian basis of a pragmatic nature, but rather as a creature made in the likeness of God. This obligation was regarded as unchangeable and absolute, beyond the authority of man to amend or adapt to any general standard prevailing in current society. The moral requirements of Yahweh were not in the slightest lowered or affected because of the general breakdown of ethical standards prior to the Flood (Gen 6). On the contrary, the entire human race was consigned to destruction for flouting God’s law, except for the one family which still upheld it. Even in the Mosaic legislation it was made clear that such basic principles as capital punishment for murder were not subject to modification or abolition; on the contrary, any community which failed to punish murderers with death would incur God’s curse and be subject to His retribution (Num 35:31-34). Even in NT times this responsibility of the community or state to inflict the death penalty for capital crimes is maintained (Luke 20:16; Acts 25:11; Rom 13:4), even though in his personal relationships the true believer is to return good for evil and turn the other cheek. But the Sermon on the Mount has nothing to say about the enforcement of public justice; “Do not resist one who is evil” (Matt 5:39) applies only to the behavior of the individual Christian who suffers injustice, not to the state charged with the responsibility of protecting society against wrongdoers.
Classification of crimes
The Mosaic legislation does not clearly distinguish between crimes and torts. A crime is an offense directly or indirectly against the public, of sufficient gravity to be dealt with through judicial proceedings, brought by representatives of the public interest. Criminal law is that branch of jurisprudence designed to protect the general public from the harmful acts of wrongdoers. A tort, on the other hand, is an offense against an individual for which the latter may recover damages for the injury incurred. Since there were no regularly appointed public prosecutors in ancient judicial practice, it normally devolved upon the victims of injustice, or their nearest surviving relative, to bring criminal cases to the attention of the judges in the jurisdiction where the crime occurred. Even in the case of murder, the nearest surviving male relative had the responsibility of gō'ēl (“kinsman-redeemer”), and acted as prosecutor, or even as executioner, of the murderer; so also with the lesser offenses. This tended to confuse the distinction between torts and crimes. There was little legislation relative to contract actions; this type of law did not become elaborated until the later development of commerce and industry under settled urban conditions, such as those reflected by the Old Babylonian Code of Hammurabi. The Mosaic code pertains only to a nomadic culture or to a simple agricultural economy, appropriate to the times of the Exodus and the Conquest; had it been composed at any later period, it would certainly have dealt with medical malpractice, fraudulent building-contractors and merchants, and class distinctions of various sorts, such as marked the later history of Israel. Its virtual silence concerning the rights of royalty or crimes against the king makes it certain that the Pentateuchal code was drawn up before the 11th cent. b.c., when monarchy was instituted in Israel.
Broadly speaking, the Mosaic legislation dealt with two main types of offense: the religious and the civil (which is prob. a better term than “secular,” since all offenses had a Godward reference as well as a manward); human relations were viewed as a direct concern of the Lord Himself.
Crimes against God: religious offenses
Idolatry.
The sanction against the worship of other gods received first attention in the Decalogue, and was the concern of the first two commandments (Exod 20:3-6). Exodus 22:20 specifies the death penalty: “Whoever sacrifices to any god, save to the Lord only, shall be utterly destroyed”; the mode of execution is normally by stoning (Deut 13:10). If an entire community was involved in the sin of idol-worship, its inhabitants were to be slain with the sword, and all of their livestock and property were to be put under the ban of complete destruction (13:12-16). The idols must be smashed and all their cult-objects and altars be reduced to rubble (7:5, 25).
Infant sacrifice
was a kind of cultic murder perpetrated against helpless infants in the worship of Moloch and other Canaanite idols with allegedly bloodthirsty appetites; it was to be punished by stoning to death (Lev 20:2). Later on, in the reign of Ahaz (743-728 b.c.) and esp. in the time of King Manasseh (696-641 b.c.), this abominable practice found government sanction, and there ensued a general breakdown of moral life and the proliferation of crimes of violence (2 Kings 21:6, 16).
Witchcraft, divination and spiritualism.
These were of course associated with pagan idolatry, and were subject to the death penalty. “There shall not be found among you any one who burns his son or his daughter as an offering, any one who practices divination, a soothsayer, or an augur, or a sorcerer, or a charmer, or a medium, or a wizard or a necromancer” (Deut 18:10, 11). “You shall not permit a sorceress to live” (Exod 22:18), and mediums were to be stoned to death (Lev 20:27). King Saul was noted for his rigor in carrying out these laws against sorcery and witchcraft in Israel (1 Sam 28:9), even though he finally resorted to the witch of Endor before his death. Isaiah notes the prevalence of soothsaying in his day (in the reign of Ahaz), and speaks of it as a specifically Philistine practice (Isa 2:6).
Blasphemy.
The third of the Ten Commandments prohibits the taking of the name of Yahweh “in vain” (Heb. lashshāw’ “to uselessness,” “to no good purpose”); such a crime will involve certain retribution from the Lord. All the more stringent was the sanction against reviling God in an impiously defiant fashion (Exod 22:28), and the first recorded offender against this commandment in Moses’ time was executed by stoning (Lev 24:11-23). It will be noted that Exodus 22:28 treats a reviling of duly constituted human authority as tantamount to blasphemy against God Himself, who has ordained human government (cf. Rom 13:1, 2).
False prophecy
consisted either in prophesying in the name of some false god, or in pretending to speak in the name of Yahweh when in point of fact no message from the Lord had been received. In either case the penalty was death (Deut 18:20-22). In later times Jeremiah was nearly lynched by mob action under this law (Jer 26:8, 9), on the supposition that his prediction of Nebuchadnezzar’s complete triumph would prove false.
Sabbath-breaking.
Defiance of the authority of God’s law.
In contrast to an offense committed by inadvertence (which could be atoned for by sacrificing a she-goat—Num 15:27) a crime committed “with a high hand” (beyād rāmāh) involved a deliberate rejection of the authority of God the Lawgiver, and was punishable by death, or at least by being “cut off” from Israel (15:30, 31). The same was true of the refusal to abide by a decision of the priests at the Tabernacle or Temple (Deut 17:8-12); such an impious rebel was to be stoned to death. To defy the authority of the supreme court of the nation was equivalent to treasonous subversion, and had to be sternly dealt with.
Crimes against man: civil offenses.
These consisted of offenses toward men of such gravity as to endanger society or the state. They went beyond matters of controversy between private individuals, but posed a threat to the safety of the community as a whole.
Homicide.
Assault and mayhem.
The penalty for felonious assault resulting in serious or permanent injury to another was governed by the lex talionis; i.e., the same injury must be inflicted upon the offender as he dealt out to his victim—rather than the multiple and excessively harsh punishment allowed by some of Israel’s neighbors, who prescribed mutilation for violation of property rights, in addition to monetary damages, public flogging and a term of hard labor for the government (cf. ANET2 186-a, from Middle Assyrian Laws). But assault and battery against one’s own parents was regarded as a crime so heinous as to be punishable by death (21:15), involving a rejection of the entire basis of family solidarity and of obedience to all human authority (as well as the solemn sanction of God the heavenly Father). As for injuries inflicted on slaves, the loss of an eye or even of a tooth entitled the injured to manumission (21:26, 27).
Robbery and larceny.
Remarkably little is said about robbery in the Mosaic code. Provision is made for the repentant robber to make amends for his offense by restoring what was taken away by violence (gāzēl) with an additional twenty percent by way of punitive damages (Lev 6:2-7). Only after such restitution could he approach the Lord with his guilt-offering (āshām). Leviticus 19:13 groups robbery with “oppression” (the term used is ’āshaq) and the withholding of the wages of a day-laborer as a category of crime strictly forbidden (19:13), yet no particular penalty is specified (as it was in the Code of Hammurabi, #22, which prescribed capital punishment). Burglary, of course, could be repelled by the householder even to the taking of the intruder’s life, as mentioned above. More is said of larceny in general; in particular the theft of livestock is singled out for severe treatment (Exod 22:1, 4): i.e., the rustler must pay back two for every one that he has stolen, provided the original animal is recovered. But if it has been killed or sold off, then he must replace it fourfold for a sheep, or fivefold for a bull or cow. Possessions stolen from a home were apparently to be restored without any additional damages (Exod 22:3), but inability to pay back would result in the selling of the thief into slavery until the amount of the theft had been earned for restitution. (For matters involving bailments and embezzlement, see below under Torts.)
Sex crimes.
In common with other ancient Near Eastern law codes, the Mosaic law devotes much attention to matters pertaining to marriage and the preservation of a pure line of descent. But in sharp contrast to the pagan codes (Sumerian, Babylonian, Assyrian, and Hittite), no religious prostitution is allowed, and pre-marital or extra-marital relations of every sort are dealt with as heinous crimes. Sodomy or homosexuality is to be punished by the death of both parties involved (Lev 18:22, 29; 20:13); carnal relations with a beast required the execution of both the man and the animal (18:23; 20:15). All crimes of unchastity were regarded as grievous offenses against God, adversely affecting the whole community; failure to punish them would mean the moral decline of Israel to the degenerate level of the pagan Canaanites before them. This, in turn, would lead to their expulsion from the Land of Promise (18:24-29). Even the remarriage of a divorced wife who had been married to someone else constituted an abomination which would “cause the land to sin” (Deut 24:4). In other words, sex relations were by no means to be regarded as the personal business of individuals; unchastity so deeply affected the status of a nation before God as to entail His condemnation and curse if allowed to go unpunished. It should be carefully noted that this high concept of purity was no natural product of Heb. thought; it went entirely counter to the viewpoint of the entire ancient world, and to the legal systems of Mesopotamians and Hittites preserved to us (which devoted much attention to regulations dealing with common prostitutes and temple harlots). The Mosaic standard can only be accounted for as imposed upon them by God, against their own natural bent and tendency—as the historical books and the Book of Proverbs abundantly show.
a. Adultery. Extra-marital intercourse (ne'ūpīm) between married persons, categorically forbidden in the seventh commandment (Exod 20:14), was to be punished by stoning to death both the man and the woman (Lev 20:10; Deut 22:24). Even prior to actual marriage a betrothed woman would commit adultery by having intercourse with another man; both would be subject to the death penalty (22:23, 24).
b. Fornication. Sexual intercourse between a man and an unmarried woman (zenūt) was forbidden and fathers were esp. enjoined from permitting their daughters to become harlots (Lev 19:29), “lest the land fall into harlotry and the land become full of wickedness.” (The sex life of individuals was regarded as profoundly affecting the welfare of the entire community, rather than being a mere private matter.) No standard penalty was set for fornication, however, and it appears that an Israelite, not a priest, could marry a repentant and reformed harlot (since this was expressly forbidden only to priests, 21:7). Fornication was a capital crime for a priest’s daughter; she was to be burned at the stake (21:9) as one that had “profaned her father.” It should also be noted that God commended Phinehas, the grandson of Aaron, for killing an Israelite who took a Midianite harlot into his tent (Num 25:7-15) in connection with the episode of Baal-peor.
c. Rape and seduction. If a man forcibly ravished an unmarried woman out-of-doors (away from the protection of the home), he was to be put to death, without any penalty attaching to the woman (Deut 22:25-27). Rape of a woman who was married or betrothed was regarded as adultery and hence subject to the death penalty. If a man seduced a consenting virgin, not betrothed, then he was bound to pay her father the high indemnity of fifty shekels and to take her into his home as his legal wife, unless her father refused outright to permit him to marry her (Exod 22:16, 17; Deut 22:28, 29). In such a case the wife was not subject to divorce for the rest of his life (22:29).
e. Intercourse during menstruation. Since unwanted pregnancies were impossible during her monthly period, a woman was esp. subject to male aggression at this time, and so stringent sanctions were set up to guard against promiscuity and defilement by blood (18:19; 20:18). Even her husband was rendered ritually unclean for a week if he lay in bed with her (15:24), even though he had no intercourse with her.
Dishonor to parents.
Not only was assault upon parents regarded as a capital offense (Exod 21:15), but so also the verbal assault of a curse: “Whoever curses his father or his mother shall be put to death” (21:17); “his blood is upon him” adds Leviticus 20:9. Furthermore, a son could become guilty of death if he proved to be consistently disobedient and willful, or even lazy and addicted to liquor. In such a case it was his own parents who had the responsibility of accusing him before the local court and the elders of the city (Deut 21:18-20); all the adult males of the community were then to stone him to death, in order that the young man’s evil example not infect the others of his generation and thus bring about disaster and chaos upon them all. This drastic measure may not have been often resorted to, but the mere fact that it was included in the list of capital crimes undoubtedly served to enforce a sense of respect for parental authority, and for all duly constituted authority in Israelite society.
Kidnapping.
The death penalty was prescribed for this offense as well: “Whoever steals a man, whether he sells him or is found in possession of him, shall be put to death” (Exod 21:16). Deuteronomy 24:7 expands this a little to include among the victims “one of his brethren, the people of Israel.” The motive for kidnapping was not the extortion of ransom, as it is in modern times, but rather for selling into slavery, presumably to an alien and heathen master.
Malicious prosecution and perjury.
Anyone bringing a false accusation against another might, upon conviction of guilt, suffer the same penalty as would have been imposed upon the defendant, had he been proven guilty. The same was true of a witness for the plaintiff or for the prosecution; if he knowingly gave false testimony before the court, “then you shall do to him as he had meant to do to his brother” (19:19). (Interestingly enough, this was the first law mentioned in the Code of Hammurabi: “If a man accused another man and brought a charge of murder against him, but has not proved it, his accuser shall be put to death.”) The express purpose of this severe regulation was not only to deal appropriately with the offense itself, but to deter others in the community from thus misusing the courts to gratify their own malicious purposes (19:20).
Torts
As indicated above, a tort is a personal wrong inflicted by one upon another, calling for a personal action at law rather than any kind of public prosecution. The case normally would be argued before the elders of the town, sitting as a panel of judges in the open space inside the city wall near its principal gate.
Property damage.
The damage or destruction to a neighbor’s vineyard, crops or field because of straying cattle or sheep had to be compensated for by an equivalent amount of crops or produce (Exod 22:5). Similarly one who was responsible for the death of a neighbor’s livestock would have to replace it with another of the same kind and quality (Lev 24:18, 21). The same was true if a neighbor’s animal fell into an uncovered pit and died; it was the landowner’s responsibility to cover over any dangerous holes, so that even trespassing cattle might be protected from harm (Exod 21:33, 34). If the man at fault repaid the loss with money (i.e. silver bullion, usually), he was entitled to keep the dead animal for his own use. In the case of property damage through the accidental spread of fire from one man’s land to another’s, any crops thus destroyed would have to be repaid in kind (22:6).
Bailments.
In cases where the plaintiff had entrusted personal property to another for safekeeping, a dishonest bailee was required to pay double indemnity if convicted of bad faith (Exod 22:9). But if the property was stolen from the bailee by a thief, or the animal was killed by some predatory beast, then he simply had to repay 100 percent damages. He was obliged, however, to take a solemn oath before God that he had been entirely innocent in the matter in cases where the theft or damage occurred in the absence of any human observer (22:10, 11).
Oppression of the underprivileged.
Three classes of people were particularly subject to unfair treatment and exploitation in ancient Near Eastern society: the widow, the fatherless orphan, and the foreigner (usually an immigrant from another race or tribe who has not obtained citizenship). It was difficult for them to obtain fair treatment in the community or before the courts when wealthy and influential citizens chose to exploit or oppress them. For this reason they came under the special protection of Yahweh Himself, and those who afflicted them came under His judicial wrath and curse (22:21-24); those guilty of oppressing them would eventually be removed, so that their own wives would become widows, and their children orphans. Their sympathy and consideration for sojourners was to be based upon their own past status as oppressed sojourners in the land of Egypt (23:9).
Punishments
The Torah prescribed at least three modes of capital punishment: stoning, burning at the stake, and smiting with the sword. There is at least one reference to hanging (Deut 21:22), in connection with an execution for crime, but it is so worded as to suggest that it was the corpse of the dead criminal which was suspended for public warning, rather than the actual mode of death (“...and he is put to death, and you hang him on a tree”). In such a case the suspended body was not to be left hanging after sundown of the day of execution (Deut 21:23)—a provision which still held true on Good Friday, when the bodies of Jesus and the two thieves were taken down from their crosses (John 19:31). Even in the case of enemy leaders slain in war Joshua honored this rule, and had the corpses of the five Canaanite kings taken down and buried on the same day they were hanged (Josh 10:27).
Capital
By stoning.
By the sword.
This was apparently the usual mode of inflicting the death penalty upon murderers, esp. when apprehended by the nearest male relative of his victim (the gō'ēl haddām or “revenger of blood”), who had the responsibility of killing him on sight (Num 35:19, 21). It was certainly the mode used in putting to death the population of a community which had fallen into idolatry (Deut 13:15); it was first practiced in the case of the apostasy of the golden calf (Exod 32:27), where large numbers of offenders were involved.
By burning.
This was specified for all three involved in a case where a man had intercourse both with a mother and her daughter (Lev 20:14). The same was true with the daughter of a priest who committed fornication (21:9).
Mutilation.
This is explicitly prescribed for a woman who violently lays hold of the male organ of her husband’s adversary: her hand is to be cut off (Deut 25:12). It is also clearly implied for all those who commit mayhem: “Eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe” (Exod 21:24, 25). Presumably the penalty was carried out by the injured party in the presence of the court, although this is not actually spelled out. It was obviously reserved for cases where the injury was inflicted on purpose, or by criminal negligence and recklessness. It should be noted that there was no requirement of retaliatory punishment upon the family of the offender, as there was in Babylonian or Assyrian law, for example. (Thus the Middle Assyrian Law Code A, 55 provides that the wife of a seducer be turned over to the father of the seduced girl that he might employ her for prostitution.) “The fathers shall not be put to death for the children, nor shall the children be put to death for the fathers; every man shall be put to death for his own sin” (Deut 24:16). Doubtless the same principle applied to cases of mayhem, although it is nowhere made explicit; the offender personally bore the punishment for his crime and he alone.
Scourging.
This is mentioned as a form of public justice, although Deuteronomy 25:1-3 does not specify what types of offense were to be so dealt with. The miscreant had to lie face down before the judges and receive the number of blows (not to exceed forty) of which he had been deemed worthy. It may be fairly inferred from Deuteronomy 22:18 that the chastisement meted out to one who falsely accuses his wife of unchastity prior to marriage consisted of public scourging; but otherwise there seems to be no specific offense for which scourging was reserved in the Torah. It was employed for domestic discipline, but even in the case of an offending slave the master was criminally liable if death resulted from the beating.
Imprisonment.
This seems to have been restricted largely to the detention of accused persons awaiting trial; technically speaking, it was not rated as a punishment under the law of Moses. It seems quite clear that Joseph (in Egypt) was given an indefinite term of years in the royal prison, in lieu of the death penalty which his master might normally have given him for the disgraceful charge leveled against him. In later times, however, the prophet Jeremiah was consigned to a dungeon on a charge of treason (Jer 37:15, 16), but apparently without a formal hearing. The fact remains, however, that there is no recorded instance of a sentence of imprisonment meted out to a convicted criminal in an Israelite court, in OT times at least.
Monetary damages and fines.
Enslavement.
This was for a term of years not to exceed six in the case of an Israelite (Exod 21:2). This was prescribed as the penalty for a thief who could not repay the twofold or fourfold damages required for the theft of livestock (22:3). Other types of enslavement were the result of civil actions rather than criminal, notably for the non-payment of debts (cf. 2 Kings 4:1; Neh 5:5; Amos 2:6). Voluntary servitude is discussed (Lev 25:39ff.), as a measure resorted to under economic pressures. This too had nothing to do with criminal law.
Bibliography
A. Alt, “Die Ursprünge des israelitischen Rechts” (1934), revised in “Kleine Schriften zur Geschichte des Volkes Israel” I (1953), 278-332; H. B. Clark, Biblical Law, (2nd ed. (1944); G. Mendenhall, Law and Covenant in the Ancient Near East (1955); J. Pritchard, (ed.): Ancient Near Eastern Texts, 2nd ed. (1955), 159-198; R. de Vaux, Ancient Israel, Its Life and Institutions (1961), ch. 10 (“Law and Justice”).