Does Joseph's intent to divorce Mary show that the death penalty for adultery was not mandatory?

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This might sound like an odd question to some, but this is a serious proposition to some students of Biblical law. Here is an example of the argument, from Philip Kayser's book Is the Death Penalty Just?:

However, perhaps the most significant illustration of this leeway in the law is the case of adultery. Leviticus 20:10 is one of several passages calling for the death penalty on adultery using that phrase, möt yumat. It says, “The man who commits adultery with another man’s wife, he who commits adultery with his neighbor’s wife, the adulterer and the adulteress, shall surely be put to death.”

The phrase möt yumat is clearly tied to adultery, yet Scripture makes clear that the victim of the adultery is not required to prosecute, and if he or she does prosecute, he or she is not required to ask for the maximum penalty. Matthew 1:19 draws attention to Joseph’s uprightness when he chooses not to prosecute to the fullest extent of the law - “Then Joseph her husband, being a just man, and not wanting to make her a public example, was minded to put her away secretly.” He chose not to impose the death penalty upon her (making her a “public example”), but the text makes it clear that this quiet divorce was consistent with Biblical justice. It says, “being a just man” he did this.[1]

Kayser's intent, in the above example, is to show that the phrase möt yumat (often translated "he shall surely die") does not always signify that death is the just penalty for witnessed adultery in all cases, but merely shows a "maximum" penalty for this crime. And if we take his "Joseph and Mary" example at face value, then it seems that he would suggest even no civil government penalty might be considered a possible "just" outcome from the Biblical perspective (because Joseph's intent merely to divorce came with no civil penalty). He is following Gary North's "victim's rights" theology, whereby the "victim" of the crime (in this case, the husband) is assumed to have the power to negate a legal penalty. Gary North even relies upon the same "Joseph and Mary" example as a lynch-pin for his argument in his book Victim's Rights:

I am arguing in this chapter that the State possesses no independent authority to prosecute if the victim voluntarily decides not to prosecute an argument based heavily on Joseph’s decision as a just man to put Mary away privately.[2]

In fact, the primary thesis of North's book falls apart if he cannot use the Joseph and Mary case to back it up. Kayser's application of this thesis is:

Scripture makes clear that the victim of the adultery is not required to prosecute, and if he or she does prosecute, he or she is not required to ask for the maximum penalty.[3]

We'll separate Kayser's claim into two statements:

  1. The victim of adultery is not required to prosecute.
  2. A victim of adultery who prosecutes can ask for a lesser penalty than the death penalty.

Neither of these statements is "clear" from scripture, much less the "Joseph and Mary" example. For the sake of argument, let's assume that statement number 1 is true, and that Joseph could be considered a "just man" by refusing to prosecute Mary for adultery. I affirm with scripture, of course, that Joseph was a "just man." We will discuss Joseph's situation in detail later and discover some obvious reasons why he would not prosecute Mary. But Kayser is attempting to conflate the two issues above when he states that Joseph "chooses not to prosecute to the fullest extent of the law". In fact, Joseph chose not to "prosecute" at all. He was intending to "put away" (divorce) Mary privately. Under Biblical law, there were no "private" or "secret" courts: cases were handled at the city gates, in the most public way, so that everyone could see that justice was being done, and anyone could speak up if they wanted to contradict a false witness.

This may surprise some people, but under Biblical law, men were not required to get permission from the civil government to divorce their wives (Deut. 24:1). I'll discuss this in greater detail below, because this is another point which Kayser gets wrong. Men were required by Biblical law to issue a "writ of divorcement," but this was not "supervised" or "authorized" by any judge, and did not require any public (or even private) "prosecution." Under Biblical law, a judge would only be sought out (by Mary, presumably) if Joseph refused to give her the writ, as he was required to by law.

So, if statement number 1 is true in the case of Joseph, then statement number 2 cannot logically follow from the Joseph and Mary case. If Joseph refused to prosecute (as the scripture in Matthew implies), then we don't know what penalty he would have asked for, because he was never in a position to ask for a penalty from a judge. For all we know, if he had decided to prosecute (we'll see why he didn't in a moment), he might very well have supported the death penalty. Of course, in the real world, the angel intervened, even before the divorce. But would anyone suggest that Joseph would have been "unjust" to support the death penalty for adultery? Even Philip Kayser believes that the death penalty for adultery is "just."[4]

Let's look closer at Joseph's (difficult) situation, and why he would choose not to prosecute. Here are some things we know for sure:

  1. Mary and Joseph were betrothed.
  2. Adultery against a betrothal covenant is a death penalty offense (if there are at least two witnesses willing to step forward): Deut. 22:23-24.
  3. Joseph thought that Mary had committed adultery (otherwise he would not have intended to divorce her; he was a "just man," and a just man would only divorce for some kind of adultery/fornication: Matt. 19:4).
  4. Joseph had no witnesses to the adultery to present to a judge. How would he have proved that he wasn't the father, unless two witnesses were prepared to testify? Of course, he could testify to his own behavior, but that is only one witness. (see below about whether Mary was allowed to testify)
  5. Mary had (surely) told Joseph the good news that the angel had announced to her. Joseph, understandably, didn't believe her, but he could not know for sure that she was lying. What if she were telling the truth?
  6. If Joseph were a "just man" (and he certainly was), then he would be committed to upholding just Biblical legal procedure, which would have allowed the defendant to testify in defense of herself in court, before the judges. However, Mary would not, in first century Judea, have been allowed to testify in her own defense (relaying what the angel had told her), because women were not allowed to testify in the unjust Jewish courts of that time. Joseph would be placing her at the mercy of an inherently unjust legal procedure, because they were not following Biblical law.
  7. In fact, to bring a death penalty charge, (even if Joseph had witnesses, which he did not) Joseph would have had to take Mary all the way down to Jerusalem, to stand before the highest court in Judea -- the Sanhedrin -- which was (at this time) the only court authorized by the Roman government to convict people on death penalty offenses like adultery. Furthermore, at the time of Jesus birth, the Sanhedrin had been packed with Herod the Great's chosen lackeys (because he had killed off most of the previous members, according to the Jewish historian Josephus). No "righteous man" in Judea would have expected true justice from Herod's Sanhedrin.
  8. Consider what might have happened if Joseph had gone before the Sanhedrin and had been asked (under oath) what Mary's explanation was (because she herself couldn't testify)? To testify truthfully, Joseph would have to have said: "She claims that she was visited by an angel, and that God had created the child she is carrying, and that 'The Lord God will give him the throne of his father, David, and he will reign over the house of Jacob forever. There will be no end to his kingdom.' [Luke 1:32-33]" Herod's lackeys would have promptly reported this to Herod, and we know how long the innocent child would have lasted from that point (see Matt. 2:16-18). Joseph, being a righteous (and wise) man, would not have wanted to put an innocent child at risk in this way.

Given all of the above facts, is it any wonder that Joseph could not have gotten a "just" outcome from any court he had access to? Can his choice not to go before unjust judges be used to imply anything about Biblical law?

The answer is clearly no. There is no evidence of an alleged "victim's right" to dismiss a mandatory death penalty crime from the case of Joseph and Mary.

On the other hand, Joseph had a Biblical right to divorce Mary privately without having to prove adultery (Deut. 24), and that's what he was planning to do. This is yet another point which Kayser gets wrong:

Indeed, if this interpretation of the crime of adultery is not taken, then it is impossible to understand the many passages that allow sexual sins as grounds for divorce. (How can there be a divorce if the penalty of death always had to be applied?!) ... Christ made clear that adultery was grounds for divorce in Matt. 5:31-32. If you could prove adultery in court to sue for divorce, you could certainly use the same grounds for capital punishment. You couldn’t just divorce people because you thought they had committed adultery. Deuteronomy 22:17-19 makes that clear. The case had to be proven beyond a shadow of a doubt in court. In Ezra 10, Ezra tried each case of improper marriage on its own merit. He didn’t make everyone with a non-Israelite wife divorce her. That would be unlawful according to Deuteronomy 21 and other passages. Paul is applying the Old Testament when he tells believers not to leave unbelievers who are willing to dwell with them. And if you read the chapter carefully you will see that Ezra didn’t do it. Each couple had a court case examination, and Ezra said, “Let it be done according to the law.”[5]

Kayser brings up two scriptural cases which -- he asserts -- show that men were required to get civil government permission before divorce. Let's look at each of them.

1. Deuteronomy 22:13-19 is a case of a husband publicly slandering his wife about premarital unfaithfulness (discussed here). It doesn't state that he was seeking a divorce, or even that he had actually divorced her by putting her away. It doesn't state that he had brought witnesses before a judge to prove a case of adultery. It doesn't state that he is required to go before the judge before getting a divorce. Verse 14 simply states that the man is slandering his wife publicly (and, by implication, bringing dishonor upon her parents). The judges -- far from already knowing any facts of the case -- actually have to be told by the girl's father what the man has been saying (see verses 16-17). The case in verses 13 through 19 is not dealing with a man who accuses his wife in court either of adultery or lying about her virginity (these death penalty offenses would require at least two actual witnesses, according to the explicit law in Deut. 19:15).

This case is describing a legal action brought by the parents of the girl against the man's public slander. The parents are able to prove the husband's slander by the use of the "evidences of virginity" (possibly a blood-soaked garment). The lack of such evidence does not prove the girl's guilt -- it's lack would simply prevent the parents from challenging the husband's slander, in the first case. The separate case cited in verses 20-21 would require the husband to bring at least two witnesses against the girl (in accordance with Deut. 19:15) and would result in a mandatory death penalty (v. 21), not simply divorce.

2. The action by Ezra described in Ezra 9-10 dealt with Israelites who had returned after the Babylonian captivity, and had married foreign wives, in violation of the law in Deuteronomy 7.

Kayser claims: "Ezra tried each case of improper marriage on its own merit."[6] This is a false claim, with which I deal in the following answer:

Does the divorce of the foreign women in Ezra 9-10 show that civil government has authority to dissolve marriages or preside over "divorce trials"?

Kayser claims: "Paul is applying the Old Testament when he tells believers not to leave unbelievers who are willing to dwell with them."[7] This claim actually has nothing to do with "proven" adultery as a valid ground for divorce, or with the alleged Biblical requirement to get civil government permission before issuing a divorce certificate. Paul is simply telling Christians who converted after they were married not to separate from their spouses (divorce), merely because their spouses were still non-Christians. This is not comparable to the case in Ezra, where the men willingly entered into Biblically-illegal "marriages."

  1. Kayser, Is the Death Penalty Just?, p. 24
  2. Gary North, Victim's Rights, p. 32
  3. Kayser, Is the Death Penalty Just?, p. 24
  4. "To argue against applying the death penalty to Biblical crimes is to question God’s wisdom and justice, to denigrate His Word and to leave us without any objective standard by which we can oppose tyranny." (Kayser, Is the Death Penalty Just?, p. 27)
  5. Kayser, Is the Death Penalty Just?, p. 24
  6. Kayser, Is the Death Penalty Just?, p. 25
  7. Kayser, Is the Death Penalty Just?, p. 25