The biblical text of Deuteronomy 21:10-14 deals with the treatment of sexually desirable non-Jewish women who are captured in war. It addresses the sexual privileges of the captors, as well as the legal rights and the process of the socialization into Israelite society of the captives. In light of recent events in Bosnia, the system of behaviours this section of Deuteronomy posits is particularly germane.
This paper will explore some of the attitudes and laws relating to the captive woman which developed in the post-biblical literature, tracing the way in which particular issues are addressed through the various levels of commentary--the Midrashei Halakhah (Sifrei Deuteronomy, Midrash Tannaim, Midrash Hagadol),  the Talmudim,  and various Targums, commentators and midrashic compilations such as Rashi, Leqah Tov, Toldot Adam, Rabbenu Hillel, Maimonides (Rambam), Nahmanides (Ramban), Yalqut Shimoni and Torah Tmimah.  The tapestry of commentaries is numerous, rich and varied; it is beyond the scope of this paper to consider more than a small number of them.
I shall examine in particular the following issues:
1. The nature of the sexual act contempated by Deut. 21: 10-14.
2. The type of war in which it is permissible to take captives.
3a. The possible reasons for and effect of biblical permission to marry a captive woman.
3b. The attitude of the post-biblical sages to this permission.
4. When intercourse may take place.
5. The biblical rituals, their later development by the sages, and the attitude of the sages to these rituals.
6. Was the conversion of the captive woman mandatory or optional, Noahide or Israelite?
7. The rules regulating the release of the captive woman.
8. Can Deuteronomy 21:10-14 be understood as anti-rape legislation?.
1. What is the Nature of the Sexual Act Contemplated in Deut. 21:10-14?
Deut. 21:10-14 provides as follows:
When you go forth to war against your enemies, and the Lord your God has delivered them into your hands, and you have taken them captive, And you see among the captives a beautiful woman, and desire her, and take her for a wife--Then you shall bring her home to your house, and she shall shave her head and do her nails, And she shall remove the garment of her captivity from her, and remain in your house and weep for her father and mother a for month, and after that you may approach her and have intercourse with her, and she shall be your wife. And if you do not want her, you shall send her out on her own; you shall not sell her at all for money, you shall not treat her as a slave, because you "violated" her.
We shall focus on the expression "violated her," 'initah in Hebrew, from the root 'anah. It is in the translation of this word that an attitudinal difference between the Targumim becomes apparent. In 2 Samuel 13;11-14, the story of Amnon and Tamar, the root 'anah is used twice: "do not violate me," and then "he overpowered her, he violated her, and he lay with her." If we understand "and he lay with her" to mean "and he had intercourse with her," we may understand from the juxtaposition of the two concepts that 'anah can be considered sexual violence. That is, in this instance the use of 'anah together with "had intercourse" seems to imply actual rape.
This seems to be the case as well in Gen.34:2, the story of Dinah and Shechem. There the text says: "He [Shechem] took her, and he lay with [had intercourse] with her and he violated her [vaye'anehah]." 'Anah alone would not mean necessarily rape, but simply sexual violence of some sort. Rape is again implied here by the use of 'anah and "had intercourse" together.
The idea of rape may also be expressed with other terminology. In Deuteronomy 22:25, 28 we find the verb "had intercourse" used with the verbs "took hold of," "grabbed", to imply the idea of forced intercourse i.e. rape. The verb 'anah is used alone in Lamentations 5:11, Ezekiel 22:10, and Judges 19:25, and from the context in these instances seems to imply rape.
We must recognize, however, that though it is important to determine what is meant by 'anah in Deuteronomy 21:14, rape is only one way of exerting sexual violence. Clearly sexual violence is conveyed in all the quoted instances where 'anah is used. Thus although there is no specific mention of rape in Deuteronomy 21:14, the word 'initah implies that the woman's consent (if any) to intercourse was due to her circumstances.
The expression 'initah is particularly poignant, a point that seems to have been recognized in both the Onqelos and Neophyti Targums. Onqelos actually uses the root 'anah in his translation, while Neophyti 1 has "you have exercised your power/authority [reshut] over her." Targum Pseudo-Jonathan, on the other hand, considers 'anah to be only actual intercourse, translating with the verb shamash, and thus failing to transmit the Bible's sensitivity to the captive's powerlessness.
2. When is it Permitted to Take Captives?
As it is permitted to take live captives in only certain types of war, this is the first issue which is addressed in the sources. Sifrei (parshat Ki Tezeh pisqa 211) and Midrash Tannaim clarify that this war in which captives are subsequently going to be taken is a non-obligatory war (milhemet reshut) as opposed to an obligatory war (milhemet hovah). >p>The phrase "and when you go forth to war against your enemies" appears in only one other place in the Tanach in addition to our section, Deuteronomy 20:1. That pericope outlines allowable battle exemptions, and explains that if the inhabitants of a besieged city do not open their gates and agree to become a labour force for the Israelites, all the males are to be killed. The women, children and the riches of the city become booty (Deuteronomy 20:14). Halakhically, these rules apply to a war that is considered non-obligatory (Mishnah Sotah 8:7)
However, this is not the only possible scenario. Deuteronomy goes on to say that these rules apply only in the case of cities that are far away and which do not belong to the seven nations mentioned in 20:17 and in 7:1-3. God specifically ordered that these nations have to be totally killed--nothing that breathes must be allowed to live (20:16). There is a discussion in Mishnah Sotah 8:7 and B.T. Sotah 44b as to the exact terminology used to describe a war which is commanded by God. Raba points out that all agree that the wars waged by Joshua (having been commanded by God) are obligatory wars . As well, all agree that the expansionary wars fought by King David are non-obligatory . The grey area of classification concerns wars against heathens who live close to or outside the boundaries of the country: are they pre-emptive i.e., are they to protect the land which God had commanded the Israelites to have, or are they expansionary? It is for this reason that the Sifrei and Midrash Tannaim make the statement that this war in which captives will be taken is a non-obligatory war, i.e., it is perfectly legal to take a female captive. Rashi, Leqah Tov, Midrash Hagadol and Toldot Adam also discuss this issue in their commentaries.
A further …