Deuteronomy 15:16–17 - On the slave’s gender

(The above rendering comes from the RJPS translation—an adaptation of the NJPS translation—showing proposed corrections that may be incorporated in late fall 2024.)

The party in question is hypothetical, and the reference is to a category of persons. That category was introduced into the discourse in verse 12, using grammatically masculine verbal inflection and “male” noun, but with gentilics that are explicitly of both genders:

כִּי־יִמָּכֵר לְךָ אָחִיךָ הָעִבְרִי אוֹ הָעִבְרִיָּה

If any fellow Hebrew, man or woman, is sold to you,…

Subsequent references to the worshiper are masculine as required for grammatical gender agreement. Such wording allows for the inclusion of women (Stein 2008; Stein 2013).

Now in verses 16–17a, a subcase is raised. (Verse 18 returns to the main case.) The referring expressions remain grammatically masculine. Meanwhile, is there anything about the new topic (wanting to remain in the household) that might prompt the ancient audience to suspect that female slaves are no longer in view? In the Jewish Study Bible (Oxford Univ. Press, 2nd edn., 2014), Bernard M. Levinson thinks not (emphasis added):

This law adjusts the older laws regulating male (Exod. 21.2–6) and female slaves (Exod. 21.7–11) in [that] it rejects separate procedures for the female bondservant and creates a single law that applies to both sexes, strikingly abrogating the older law (contrast v. 17b with Exod. 21.7b)!

Yet as Jeffrey Tigay explains (JPS Torah Commentary, 1996, pp. 149, at v. 12), the matter is not so simple:

Exodus refers to a minor sold conditionally by her [parent] for the purpose of marriage; such a sale would naturally not be terminated after six years.… Deuteronomy, on the other hand, maybe refer only to a girl or woman who becomes indentured because of insolvency or debt… with no intention of marriage. Since both types of female servitude existed simultaneously in the ancient Near East, there is no need to assume that Deuteronomy is superseding Exodus’s law about girls.

In other words, for verses 16–17a, we still must ask whether it somehow went without saying that a female slave would have been handled differently. After all, slavery was one area of social life where laws and mores were known to differ by gender in certain respects.

According to the plain-sense rabbinic commentators, the answer is yes. Ibn Ezra and Rashbam construe כֵּן (lit. “so” = “the same” = in this manner) at the end of the verse to refer to the furnishing of provisions mentioned back in verse 14—not to the intervening subcase. Ibn Ezra mentions the explicit statement in midrash halakhah that אין אשה נרצעת “a woman is not subject to piercing.” (Similarly Rabbenu Bachya.) This view seems to arise out of the fact that, as Tigay noted on verse 17, “Jewish exegesis saw the [piercing] ceremony as punitive,” and thus the piercing would be unduly degrading for a woman. (Luzzatto meanwhile reads this passage in light of Exod 21 and concludes that a woman was not allowed to serve more than six years unless she had been married to her master or his son.)

I do not find the arguments of the pashtanim convincing in this case, for three reasons:

1. Given verse 12, verses 13–14 would naturally be construed as applying equally to women anyway, even without verse 17b as confirmation.
2. If the final clause אַף לַאֲמָתְךָ תַּעֲשֶׂה־כֵּן were intended to apply to those earlier verses, it could easily have been placed immediately afterward—prior to the subcase.
3. It is precisely what is discussed in verses 16–17a, namely the dramatic measure of piercing the earlobe and the resulting permanent servitude, that would be controversial in its application to a woman—and would therefore benefit from an explicit statement one way or the other.

Therefore, as a matter of the passage’s plain sense, I view the mention of an אָמָה “female slave” in verse 17b as confirming that women are in view in 16–17a.

As for the translation, the NJPS base rendering reads as follows:

But should he say to you, “I do not want to leave you”—for he loves you and your household and is happy with you—you shall take an awl and put it through his ear into the door, and he shall become your slave in perpetuity. Do the same with your female slave.

The wording of the last sentence implies that the masculine pronouns in the preceding sentence (unlike in vv. 12–14) were indeed excluding women from view. However, as argued above, there is no such exclusion in the source text.

During the adaptation process that led to the first printing of RJPS in 2023, we were too hesitant to depart from NJPS precedent here. We retained the masculine pronouns in these verses, even though our doing so retained a gendering in English that is not apparent in the Hebrew text. The rendering currently reads as follows:

But should [your male slave] say to you, “I do not want to leave you”—for he loves you and your household and is happy with you—you shall take an awl and put it through his ear into the door, and he shall become your slave in perpetuity. Do the same with your female slave.

The proposed rendering seems closer to the presentation in the source text. Nonetheless, the upshot is the same by either rendering; ultimately, the biblical law regarding this topic (namely, what happens at the end of six years of servitude) does not differ for men and women.