Sexual Offences

Sexual Offences

During the Republic, several praetorian edicts were passed (and eventually, by the time of Labeo, absorbed into a ‘general edict’) bringing various forms of unacceptable behaviour under the concept of iniuria, and so making the perpetrator liable to an action for damages by the offended person or other closely interested parties.1

One of these was the edict de adtemptata pudicitia (‘concerning attempts upon chastity’).² An action for injury could be brought against anyone who addressed unmarried girls (virgines) or married women, or followed one of them about, or took away her attendant, whether by persuasion or by force. The assumptions are noteworthy: respectable women should not appear in public unattended, and one of the functions of an attendant was to hinder the possibility of sexual encounters.

Labeo’s commentary, as cited by Ulpian, made it clear that the edict was concerned with sexual approaches, that is, when the intent of the doer was ‘contrary to good morals’. ‘Address’ was explained as ‘make an assault upon virtue by blandishing speech’ and distinguished from injury by insult or foul language. Constant following about in silence was damaging to the woman’s reputation. The edict did not apply where the behaviour was merely in jest or for the purpose of rendering some service honourably; so presumably the passing wolf-whistle or the pursuit to return the dropped handkerchief or equivalent would be exempt.

Slaves and prostitutes were relatively fair game, however. ‘Anyone who addresses young girls (virgines), if they are dressed as slaves, appears to commit a lesser offence, and still less if women are dressed as prostitutes and not as respectable married women (matresfamiliae).’

An action could be brought not only by the woman herself but also by her husband or father; as we have already seen, any insult or injury to a woman was deemed to have been directed at her husband or father. Ulpian’s opinion was that in the case of adtemptata pudicitia a fiancé also should have a right of action. It was particularly important to protect the chastity of a family’s free womenfolk against outsiders, because of the implications for the paternity of children and potential heirs, but the scope of the edict was wider. Sexual advances to persons of either sex, free or slave, gave rise to an action, Ulpian tells us; in the latter case, the slave’s master could prosecute.³ With regard to slaves and women, we may suspect, Roman men were concerned not only at the affront to dignity and repute (mentioned in D. 47.10.1.2) but at the possible subversion of their domestic loyalty.

A criminal prosecution could be brought for rape (per vim stuprum: ‘intercourse by force’) of women or boys, under the lex Julia de vi publica, introduced probably in the dictatorship of Julius Caesar.4 Women sui iuris were normally allowed to bring prosecutions in criminal courts only for offences against themselves or their near relations;⁵ this would allow the raped woman herself to prosecute. As with iniuria, prosecution would be open also to husbands and fathers, and a rescript issued by Diocletian and Maximian informs a man that he is entitled to bring a prosecution under the lex Julia for an offence against his son’s fiancée. If the woman’s father did not wish to press charges, prosecution was open to outsiders, and there was no time-limit (unlike adultery, for which, under the lex Julia, a prosecution must be brought within five years).⁶

Rape was a capital charge. The emperor Hadrian took a lenient attitude towards people who took the law into their own hands and killed someone attempting rape upon themselves or one of their family; he allowed their discharge. If the woman raped was a slave, no capital charge could lie, but presumably the master would be able, as in the general case of stuprum, to bring an action for damages under the lex Aquilia.⁷

What recourse there was for rape under the Republic is not certain. A lex Plautia de vi, passed possibly in 70 B.C., was used against Catiline, but although it was superseded by the lex Julia it seems to have been concerned mainly with such offences as armed robbery rather than rape.⁸ Kunkel (1962:122–3) finds it hard to believe that there should have been no criminal process available against rapists before the lex Julia. He believes that capital charges could be brought for adultery and stuprum under the Republic and assumes that rape was subsumed under these and was then transferred to the lex Julia de vi (apparently regarded as Augustan) when these other offences were separately provided for under the lex Julia de adulteriis coercendis.

Certainly, the absence of a criminal process against men for adultery and stuprum is more readily understandable than its absence for rape. In the former cases, the woman had consented, and her punishment, if required, could be regarded as a matter for the familia, while the wronged husband had the option of divorce and a claim on the dowry. Rape was a different matter, an act of violence against a woman. A sample of the ‘grand style’ in a rhetorical treatise from the early part of the first century B.C. asks of an imaginary jury what fit penalty they could devise for those who planned to betray their country to the enemy. ‘Our ancestors used up the most severe penalties for those who raped a male, debauched (constuprassent) a married woman, wounded (so Teubner text; other readings are Violated’ and ‘beat’) or even killed anyone; they did not bequeath a special punishment for this crime (sc. treason).’⁹

Treason (perduellio) was in fact the earliest crime prosecuted by the state, and the penalty was death. The development of criminal procedures for other types of offence was gradual, piecemeal and, until the first century B.C., largely ad hoc.¹⁰ The passage above cannot really be taken as evidence for the existence in the earlier Republic of established criminal procedures with a penalty for all the various offences against the person which are listed; the speaker’s concern is not with legal technicalities but with the feelings and reactions of the Romans. It must be remembered that the tradition of self-help was remarkably persistent in Roman society. Quaestiones (criminal courts) for several other specific crimes of violence were not set up until the legislative work of the dictator Sulla, a generation before Julius Caesar. If any legal process at all was used to seek redress for rape, it may have been that of the suit for damages, iniuria. Any more drastic action against a rapist could render the avenger liable to prosecution, though, as later under Hadrian, the court might be disposed to leniency.

We have no means of knowing the level of incidence of rape in the Roman world. Even in contemporary Britain and the United States, although it is commonly accepted that the number of rapes reported to the police is only a fraction of those actually occurring, attempts to estimate the size of the fraction are little better than guesses.11 Rape has been described as ‘probably the most underreported crime’. The reasons for women’s not reporting rape are numerous and include, besides personal trauma and the expectation (whether justified or not) of unsympathetic police treatment, the feeling that they are henceforth stigmatised in the eyes of men, even their nearest and dearest, and that their own innocence is regarded as suspect.¹² Given the importance attached to female chastity (at least for wives and potential wives) in the Roman world, it would not be surprising if attitudes similar to those known or anticipated among some modern men existed, perhaps to a even greater extent, among the Romans, even if not publicly acknowledged. In the later empire, the Christian emperor Constantine wanted to penalise even the girl raped against her will, on the grounds that she could have saved herself by screaming for help. However, Diocletian, towards the end of our period, states the official position thus:

One of the main difficulties currently encountered in England in implementing the law relating to rape is the problem of consent. The Sexual Offences (Amendment) Act of 1976 defines rape as unlawful (extramarital) intercourse with a woman who at the time of the act does not consent, when the man at that time knows that she does not consent or is reckless as to whether she does. An accused man can put up a defence on the grounds that at the time and in the circumstances he honestly believed that the woman did consent.¹⁴ In Rome, after the passing of the Augustan laws on sexual offences, such a defence would not have helped the accused man much, and would have had its dangers for the plaintiff as well. The latter would be ill-advised to prosecute unless able positively to prove that the sexual act had occurred; otherwise, there could be an action for calumnia (malicious prosecution). A successful defence that the woman had consented might have released a man from the severest penalty (the maximum penalty for rape was death) but it would not have got him off scot-free. He would still have been liable to a charge of adultery (if the woman was married) or stuprum (if she was not)—unless, that is, he had had the forethought to rape a prostitute or a woman from one of the other categories, intercourse with whom did not constitute an offence (in quas stuprum non committitur).15 Not only that, but the success of such a defence would leave the woman complainant herself liable to charges of stuprum or adultery, and her husband would face prosecution if he did not divorce her. The social and legal consequences of failure may have been a deterrent to bringing prosecutions for rape.

Stuprum

In general terms, stuprum could refer to any sort of sexual immorality, including adultery. Once the Augustan lex Julia constituted adultery as a separate criminal offence, stuprum took on in addition a more restricted meaning. Though the law sometimes used the words interchangeably (adultery being one kind of unlawful intercourse), “adultery”, we are told, should be used specifically of relations with a married woman, and stuprum of those with unmarried or widowed women (or indeed with boys).^16□ Sexual relations with marriageable women were not to be encouraged, since they undermined that marriage and production of legitimate children on which the continuance of the familia depended.

However, in the Republic, it does not seem that stuprum, in the narrower sense at least, was something with which the law concerned itself, but rather a matter to be dealt with inside the family by paternal authority. A few examples are recorded by Valerius Maximus (cited above in Chapter 2) of fathers punishing or even killing their daughters, and in each case it seems that the girl’s sexual behaviour was felt to imperil her chances of marriage. Aufidianus killed his daughter rather than be obliged to marry her to her freedman lover (the implication—since pregnancy is not mentioned—is perhaps that no one else would now marry her) and Maenius’ daughter, kissing her father’s freedman, is warned to save herself for a husband. Even the ex-prostitute, Atilius, fits the pattern. He killed his daughter for her stuprum; probably he saw his hopes collapsing that she would not follow in his footsteps but would achieve a respectable marriage.¹⁷

Some improving tales are also preserved for us by, for instance, the elder Pliny, of the severity of Roman husbands under the kings and in the early Republic (and presumably in manus-marriages) towards wifely behaviour—specifically, wine-drinking—which might have led to stuprum. In just one instance a magistrate is involved, and it is said that he fined the woman the amount of her dowry; almost certainly this is an example of the actio de moribus, brought by the husband at the time of divorce as the basis of a claim to retain the dowry.

The ambiguity of the word stuprum makes it difficult to assess the significance of the three occasions mentioned by Livy on which magistrates (the aediles) are said to have brought citizens to trial before the people for stuprum.¹⁹

In 295 B.C., Q.Fabius Gurges, possibly curule aedile in that year,²⁰ brought several matronae to trial before the people for stuprum. More than 80 years later, the aediles of the plebs accused several matronae before the people of probrum (behaviour in some way ‘opprobrious’), and those condemned were exiled. Much earlier, in 329 B.C., M. (or Q.) Flavius was brought to trial before the people by the aedile C.Valerius on the charge stupratae matris familiae, and acquitted. Valerius Maximus, who does not mention the charge at all, says that after 14 tribes had voted for condemnation, Flavius protested his innocence. The aedile’s retort, that he did not care whether Flavius was innocent or guilty, so long as he was destroyed, turned the rest of the tribes in Flavius’ favour, and he was acquitted. A year or so later, on the occasion of his mother’s funeral, Flavius made a public distribution of meat to the populace, which some people, says Livy, interpreted as the payment of the price he owed them for his acquittal.

The language used to describe the charge against Flavius is similar to that in the rhetorical treatise cited above and could cover both sexual assault and seduction. In either case, why the aedile should be involved is not clear. Mommsen treats the case as exceptional; particularly blatant scandal and political feuding between Flavius and the aedile are other possible explanations. Both our accounts seem to favour the latter, and weaken the case for the existence of a regular legal process at this early date.21

Both the other occasions of magisterial intervention involve married women, and several of them at that. Much later, around 100 B.C., the (apparently) repeated unchastity of Fannia, wife of C. Titinius, provoked, so far as we know, no action on the part of the authorities, and it is even less likely that they would have intervened in marital affairs so much earlier in Republican history. The explanation may be that the women were not simply engaging in private liaisons,²² nor were they regular prostitutes (by which they would not actually have been breaking any law, though most prostitutes at that time were probably slaves or non-citizens), but that on both occasions there were some particular circumstances which required the aediles, the magistrates responsible for public order, to take action. What these circumstances were, we cannot say for certain; the difference in the penalties imposed indicates that the two were distinct from each other, and singular in themselves, rather than both applications of an established law. The offences in 295 B.C., punished by fines, seem to have been regarded less seriously, and may have been nothing more than disorderly and uninhibited behaviour ‘under the influence’ after boozy festivals such as that of Anna Perenna (March 15) or the two Vinalia, on April 23 and August 19. The last-mentioned is quite likely; one of the gods honoured on that date, according to calendars, was Venus Obsequens, and Fabius used the fines to inaugurate a temple to her near the Circus.²³

The events of 213 B.C. were apparently more serious, and led to the exile of some women. The causes cannot be recovered; but the edgy, not to say hysterical, climate of feeling in Rome at that stage of the Hannibalic War may have had something to do with the harshness of the punishments.²⁴

Augustus’ lex Julia de adulteriis allegedly superseded several earlier laws on sexual offences, but our source for this statement belongs to the end of the second century A.D., and we have no other evidence for the number, nature and content of these earlier attempts to regulate the sexual behaviour of the Romans.²⁵

After the Augustan legislation, things were different. The lex Julia created a quaestio perpetua (a special court) to deal with adultery and various other offences under the general heading of stuprum. Most of our evidence relates to adultery, which was essentially the same offence as stuprum (in the narrower sense) except that the woman was married.²⁶ The man’s marital status was irrelevant.

Stuprum was an offence on the part of both partners. As committed by a heterosexual man, it consisted in sexual relations with a marriageable girl or woman (including widows); her marriageability seems to have been determined not only by presence or absence of conubium, but by social status. For this reason, some jurists advised against trying to live in concubinage, rather than marriage, with a free, respectable woman. Modestinus put it thus: ‘Living with a free woman on a regular basis is to be regarded not as concubinage but as marriage, unless she has earned a living by selling her body.’ Sex with a prostitute was not stuprum, nor indeed with an ex-prostitute if she was unmarried (vidud); while married, she came under the adultery law, like other women. It was acceptable to have as a concubine one’s own freedwoman or a woman convicted of adultery, thought Ulpian. The latter a freeborn man could not marry; the former he could (and many did), but a certain social stigma attached to the union. Nevertheless, he seems to distinguish both these categories from the only ‘safe’ concubines: The only women one can have as concubines without fear of a charge (sc. of stuprum) are those in quas stuprum non committitur’ These remarks are grouped together in the same paragraph of the Digest as other, unconnected, observations relating to concubines, and so it may not be entirely safe to assume a connection between them. However, there does seem to be one. A man’s freedwoman is not technically ‘safe’ as a concubine, but in practice the situation is so socially acceptable that she ought even to be penalised by loss ofconubium (like an adultress) if she leaves against her patron’s will. A convicted adultress is not ‘safe’, but if you marry her you are caught the other way by the lex Julia.

For Marcianus, social disparity makes all the difference. Freedwomen (not necessarily one’s own), prostitutes and freeborn women of a humble social status can be concubines; but if the woman is of one’s own class (honestae vitae in this context is not solely a matter of respectability), one has to marry her or at least openly declare that the relationship is a regular concubinage, or else risk prosecution for stuprum.21

However, in the absence of a regular law-enforcing police force and a Director of Public Prosecutions, a prosecution for stuprum would usually be brought only if some other individual had a motive for doing so. It is unlikely that this particular part of the Augustan legislation did much in practice to restrain the sexual activities of the Romans.

Sexual relations between betrothed couples would also technically be stuprum, but the parties most intimately concerned—i.e., the couple and the woman’s father—were unlikely to prosecute. One might think that women or their fathers could use the threat of exposure and prosecution to coerce a jilting lover into marrying or making amends, but this weapon was double-edged. The woman herself would suffer loss of reputation, and run the risk of being prosecuted, and as the penalty was relegation, the risk was not to be incurred lightly.

Intercourse with a female slave did not give rise to an action for stuprum, but the owner might sue for damages under the lex Aquilia. Ulpian thought the same might apply (in addition, apparently, to a charge of stuprum) where the girl was free but under marriageable age. The penalty for seducing an under-age girl was by the time of Paul (late second century A.D.) either condemnation to the mines, or relegation or exile, depending on the man’s social status. Although the language of physical maturity is used (immaturam, nondum viripotentes), the age meant is the legal minimum age for marriage.²⁸

There is a contrast here with modern English law, in which the legal minimum age for marriage has no necessary connection with the legal minimum age for consent to sex, and it is the latter, rather than the former, which determines whether the sexual relations in themselves constitute an offence. Indeed, the ‘age of consent’ has sometimes been higher than the age of marriage. The ‘age of consent’ was raised in English law to 16 in 1885. The legal minimum age for marriage was twelve until 1929, when it was raised to 16.29 In Roman law, what constituted the offence was not the girl’s youth but her status as (potentially) marriageable.

Incest³⁰

In modern societies it is customary, in those circles (mainly legal and anthropological) where such things are discussed, to make a distinction between incest and endogamy.³¹ In English law, for example, the crime of incest is constituted by sexual relations between certain close kin, that is, a man and his daughter, granddaughter, sister or mother, or a woman and her father, grandfather, brother or son, and a fortiori they may not marry. The degrees of relationship within which marriage is forbidden extend in fact much wider than this, but sexual relations between these more remotely related persons do not constitute a crime.³²

The Romans did not make this distinction explicit. Incestum included both sexual relations between primary kin and the contracting of marriage within the prohibited degrees of relationship, whether natural or by adoption.

Evidence is lacking for the treatment of incest during the Republic. The probability is that incest between close kin was dealt with either within the family or by the pontifices, as in archaic Rome. Tiberius’ execution of a father and daughter may have been in accord with ancient precedent.³³ Marriages within the forbidden degrees would simply be void in law; sexual relations between the couple did not in themselves constitute an offence.

Under the empire, incestum, as a special type of stuprum, came under the operation of the lex Julia de adulteriis.³⁴ Sexual relations between ‘endogamic’ couples did now constitute an offence, since they were in fact unmarried, but the offence was not simply stuprum but, because of the kinship, incestum. Comments by lawyers and imperial rescripts show an awareness that the law relating to these matters was unsatisfactory. Endogamy was in practice leniently treated. A couple who had actually married (as they thought) presumably had not intended unlawful sex. If they gave up the relationship at once, that was an indication of good faith and could quash a charge of stuprum. If’mistake’ could be shown (presumably, ignorance of the relationship), the ‘incest’ could be excused. Ignorance of the law, however, might serve to excuse the woman but not the man, though his punishment might be made less severe than that for adultery. This distinction between the sexes may reflect a presumption that men, having more to do with the public world, might more reasonably be expected to know the law. A text in the Digest attributed to Papinian distinguishes between incest by ‘the law of nations’ and incest by ‘our law’; a woman could be excused the latter but not the former. Incest by ‘the law of nations’ (ius gentium, i.e., moral law) probably means that between primary kin—who, even a woman would know, were not allowed to marry—whereas her ignorance about the rules on the prohibited degrees for marriage might be excused.³⁵

If there was adultery as well as incest, then clearly the partners could not have intended marriage, and neither could be let off. The usual penalty for incest, as for stuprum generally, was relegation to an island. If there was adultery as well, the harsher penalty of deportatio was imposed.

Age is also mentioned as a possible ground for excusing the offence. Incest between father and child might begin before the latter had reached puberty. The imperial brothers (Marcus Aurelius and Lucius Verus), who were in general disposed to treat incest leniently, if the liaison was given up and there was no accompanying adultery, dismissed the charge of incest against a certain Claudia, on account of her age, but ordered that the unlawful union should be broken, adding, ‘although otherwise adultery, committed at puberty, is not excused on grounds of age. For, as was said above, even women are not held liable for incest if mistaken as to the law, but when they commit adultery they can have no excuse.’36 The reasoning here has been fogged by the introduction of adultery, if the charge was incest between Claudia and her father. An under-age girl was incapable of adultery, because she was legally incapable of marriage. Possibly Claudia was a very young bride, and the emperors were stretching a point.

Adultery³⁷

Although the lex Julia embraced a number of other offences, it was commonly referred to as the law ‘on (restraining) adulteries’ and the sources, both legal and literary, have a great deal more to say about its operations in that area than any other. This is not surprising; adultery was the offence most likely to be pursued, since in the nature of things there would usually be at least one other person with a motive for bringing a prosecution.

Adultery now for the first time³⁸ became a criminal offence, but the law did not apply symmetrically to both sexes. A married woman was guilty of adultery if she had sexual relations with any man other than her husband, a man only if the woman was married, and his own marital status was irrelevant. A husband could always prosecute his unfaithful wife. A wife could not prosecute her husband, since in the eyes of the law he had committed no offence against their marriage and women could prosecute in criminal courts only for offences against themselves. She could perhaps get her father or someone else to prosecute him, but only if the ‘other woman’ was married, and then only if the latter’s husband had failed to prosecute within the statutory time-limit. She could always divorce him, of course, and his unfaithfulness would give her grounds for recovering the dowry promptly; but unless she was feeling particularly vindictive or he was being difficult about returning the dowry, there would not perhaps seem to be much point in prosecuting him as well. Clearly, the law was intended primarily to preserve the chastity of women within marriage. That of men did not matter, so long as they kept away from other men’s wives, and there were plenty of legal alternatives available.

The husband, even if he was still in potentate, had priority over everyone else in prosecuting his wife, and after him the woman’s father. Sixty days were allowed either from discovery of the adultery or from his divorcing her, if he did divorce her. After that, outsiders were allowed to prosecute; a period of four to six months was usually granted for this. Reckoning of these times might be suspended for good cause, but in any event the charges lapsed if the prosecution was not brought within five years.

If the husband did not divorce and prosecute his wife within the priority time, he was liable to a prosecution for lenocinium (pandering). The seriousness with which it was intended that the offence should be regarded is shown also by the provision in the law, contrary to normal Roman practice, that the slaves of the accused could be tortured to obtain evidence against their owners. Septimius Severus, following the practice of Marcus Aurelius, tightened up the law by extending this privilege to prosecutors other than the husband or father of the woman.39

The woman and her alleged lover were not to be prosecuted simultaneously. Usually, it seems, prosecution was to be brought against the woman first, but if she had succeeded in remarrying before a case was brought, the man had to be prosecuted and convicted first. Papinian explains this as a protection for women against ex-husbands who might try to annul their second marriages by false charges of adultery. This might provoke a rush into remarriage by the wife. What the husband could do, advised Ulpian, was to give her due warning, once he had served notice of divorce, not to marry a specified man. If she did, he could prosecute her first.⁴⁰

The penalties for convicted adulterers were severe. The woman lost half of her dowry and one-third of her property, the man half his property, and they were relegated to different islands. With the development of the system of dual penalties, persons of low status were probably sentenced to the mines, or similar hard labour.⁴¹

A woman condemned for adultery belonged to the category of probrosae, and as such she was, under the Augustan marriage laws, along with prostitutes, bawds and their freedwomen, stageperformers and women condemned by any criminal court, forbidden marriage with freeborn Roman citizens.⁴² The sources do not indicate that men were subject to such a ban. Adultery did not necessarily result in divorce for the man (if already married), and unfaithfulness to his wife was not something the law concerned itself to punish.

From references in Martial and Juvenal it has sometimes been inferred that convicted adulteresses were even required, like the woman in Nathaniel Hawthorne’s The Scarlet Letter, to advertise their guilt, by appearing in public in the style of clothing worn by prostitutes, or at least in the outer garment, the toga. One consequence of this, as we have already seen, would be the loss of some of the protection afforded by the edict de adtemptata pudicitia and greater vulnerability to pestering in the streets. Alternatively, of course, one might conjecture that convicted adulteresses commonly did, and were known to, take up a life of prostitution—which was hardly the intention of the originator of the lex Julia,⁴³

Other penalties were infamia and the inability to testify in court.⁴⁴ Unmarried, probrosae would be unable under the marriage laws to receive inheritances; married, they were perhaps able to receive onequarter, until Domitian took away this right.⁴⁵

The lex Julia also laid down certain rules about the rights of husbands and fathers to kill those taken in flagrante. In the early Republic, according to a much-quoted speech by Cato, a husband could in those circumstances kill his wife. Whether this right was accepted as existing also in marriages without manus is unknown, and examples of its exercise are lacking; however, it seems to have survived, in theory at least, until abolished by the lex Julia. On the other hand, the right of the woman’s pater to put her to death was re-affirmed but subjected to limitations. In this, as in penalising the husband who did not divorce and prosecute his wife, Augustan legislation fundamentally undermined the tradition of domestic jurisdiction.⁴⁶

The husband was prohibited from killing his guilty wife. If, in the heat of rage, he did kill her, he was subject to the penalties for homicide, although Antoninus Pius and Marcus Aurelius were prepared to allow milder punishments. He could kill the adulterer, if the man was caught in the matrimonial home and if he belonged to certain lowly categories—slave, freedman of the family, infamis, convicted criminal, as well as gladiator and wild-beast fighter.47 The woman’s father could kill both her and her lover, if they were caught in his or his son’s house, but he must kill both together and at once, or neither. As Papinian later pointed out, the law was giving the father an additional right (that of killing the adulterer) but was not taking away the traditional right of life and death over his daughter. In practice, though, the requirement to kill both was likely to be a deterrent to killing either, and that may have been Augustus’ intention.⁴⁸

Just as with stuprum, the law ruled that sexual relations with women in certain categories did not constitute adultery; obviously, they did not with prostitutes. Also exempt were concubines (though Ulpian was inclined to include them, except those living with their patrons), and women working in bars. Under Tiberius an unsuccessful attempt was made by a certain Vistilia to avoid prosecution for adultery by registering as a prostitute; she was apparently not the first to do so. Tiberius blocked this loophole by forbidding the wives, daughters and granddaughters of senators and knights to register. There was something of a fashion among the smart set at the time for taking up disreputable occupations—e.g., as gladiators, stage-players—despite an earlier ban. The purpose may have been, at least partly, to avoid the penalties placed by the Augustan legislation on their sexual activities. Tiberius took sharp action, exiling the current offenders, and forbidding them to engage in such work in future.⁴⁹

Certain aspects of the law suggest that the marriages Augustus was mainly concerned to protect were those of the upper classes. The forfeiture of one-third of their property, loss of the right of receiving inheritances, and ban on marriage to freeborn Romans were penalties whose effect would be felt mainly at the upper levels of society. The cases recorded in literary sources are almost all heard before the senate or the emperor, and concern members of senatorial or equestrian families. Humbler people would be tried in the ordinary quaestio (or, later, the prefect’s court).⁵⁰

The provision of penalties for husbands caught colluding, or failing to prosecute adulterous wives, was no doubt meant to ensure that the law was implemented and the women and their lovers punished. In this, it may not have been very successful. Dio observes that he found that no fewer than 3,000 indictments had been lodged after Septimius Severus had tightened up the legislation, but that few of them were subsequently followed up, and the emperor himself gave up troubling about the matter.⁵¹ Outsiders were likely to be in a worse position than the husband himself to obtain adequate evidence of a wife’s infidelity. Some husbands may, for various reasons, have preferred a quiet divorce, even if it meant resigning a claim to part of the dowry, or acquiescence, to public scandal and perhaps the making of enemies among the friends of the accused lover. The severity of the consequences for the wife may also have been a deterrent to action.

Lenocinium

The person primarily aimed at is the husband. He could be punished if he did not dismiss his wife and take action against her and her lover, caught in the act; if he made a deal with the adulterer, instead of prosecuting him; if he profited pecuniarily by his wife’s adultery in some way. In what way is further specified. He may have received money in advance, in order to allow the adultery to take place, or after the adultery was discovered (pro comperto stupro), to refrain from action. However, Ulpian warned that adulterers could not expect to mitigate their offence by alleging complaisance on the husband’s part.52

This introduction of an element of compulsion upon the husband is one of the most striking, not to say startling, aspects of the law, interfering as it did with the privacy of the marital relationship and with the husband’s right to forgive his wife. In practice, however, it would not be possible to implement this part of the law unless evidence of the wife’s adultery was available to outsiders. Even then, Ulpian points out, if the couple remained married, the wife could not be accused directly of adultery by an outsider; the latter would first have to prove a charge of lenocinium against a husband. This would discourage prosecution unless the accuser was confident of being able to prove his case, and would in effect leave open the possibility of reconciliation and survival of the marriage. Ulpian comments: ‘If a wife has her husband’s approval and the marriage is peaceful, another person ought not to disturb and harry it.’⁵³ Another indication of the ineffectiveness of the law is perhaps to be found in the number of references in Latin literature of the first and second centuries A.D. to the complaisant cuckold, the lenomaritus, either acquiescing in or actively encouraging his wife’s adultery. He profits from it by various means, including receiving bribes and blackmail, and reaps social as well as financial benefits.⁵⁴

Later interpretations of the law extended its application. Anyone, man or woman, who aided and abetted by providing premises on which the adultery could take place was liable. So was anyone who received money pro comperto stupro, that is, a bribe to persons, other than the wronged husband, who knew about the affair, to keep silence.⁵⁵ Marcianus thought that a wife also who accepted a praemium (reward or recompense) from the adultery of her husband should be treated as an adulteress.⁵⁶ Presumably what he had in mind was not distinct in character from the above, being a bribe to ensure her silence, rather than a peacemaking gift to dry her tears. The latter could hardly be considered unlawful though it was invalid, unless the couple were divorcing. However, one can imagine that there might be difficulties for either side in trying to prove in court the intent behind the present.

Prostitution

Although many prostitutes, specially those in brothels, were slaves, some were freedwomen or even freeborn Romans. Like their employers, the bawds and procurers (lenae or lenones) they were probably infames under the Republic,57 although prostitution was not illegal and their activities did not constitute a criminal offence. They were apparently required to register with the aediles and were sometimes subject to taxation; more will be said about their working conditions in a later chapter.

Identifying a woman as a prostitute was not always easy. If she worked in a brothel or even in a tavern, then she was openly selling herself (palam quaestum facere). ‘Many women’, remarked Ulpian, ‘have women as prostitutes under the pretext of of employing them as staff in a tavern.’ The woman available to all men indiscriminately (sine dilectu) was easily distinguished from the one engaging in an affair with one man, whether adultery or stuprum. Less clear-cut, however, was the status of the woman who discreetly obliged one or two lovers and received money from them—that is, women like the famous mistresses of poets and politicians. Ulpian was inclined not to stigmatise such women as probrosae, though not all jurists shared his views.⁵⁸

Augustus’s social legislation imposed some disabilities on prostitutes. Under the Republic, they were apparently able to marry freeborn citizens, although the latter would incur infamia. The lex Julia et Papia forbade prostitutes, as probrosae, to marry freeborn Romans. They could not hope to rise in society by giving up the game and marrying ingenui, because, Ulpian observed, the law applied to retired prostitutes as well. Lenae, probably themselves former prostitutes, came under the same ban, and the landlady of an inn who kept ‘personnel engaged in prostitution’ (corpora quaestuaria) was also classed as a bawd.⁵⁹

The Augustan restrictions on receiving legacies and inheritances applied to prostitutes as to other women, and even when eligible to receive them they were restricted to one-quarter. Even this right was removed by Domitian. In one case, Hadrian refused to allow a known ‘camp-follower’ with the army to receive a legacy under a soldier’s will.⁶⁰

However, since sex was the prostitute’s profession, she was able to engage with impunity in activities which would have rendered a ‘respectable’ woman liable to prosecution. Sex with an unmarried prostitute, even though she was free and a citizen, was not stuprum. If she was married and retired from the game, she and her husband were both liable under the adultery law. On the other hand, if she had carried on her trade after marriage, they were probably both exempt, she because she was a practising prostitute, and he because it would scarcely be appropriate to charge with lenocinium, in the newer sense, someone who was already, as it were, professionally engaged in lenocinium.⁶¹

The prostitute and the lena might be regarded as disreputable, but their activities were not illegal, and were tolerated. Prostitution was a business like any other, and rents from brothels formed part of the revenues of the estates of many respectable citizens.⁶²

The ambivalence of the Roman attitude to prostitution is summed up by legal discussions concerning the action for recovery of payments made for a consideration that was immoral or unjust. The general principle was that the money could not be reclaimed where there was immorality on both sides, that of the giver and the taker—as, for example, when someone was bribed to allow stuprum or an adulterer or a thief paid a bribe to avoid betrayal. Money paid to a prostitute could not be reclaimed either, in the opinion of Labeo and Marcellus, but the principle on which this judgment rested was different.

The argument is not that there is immorality on both sides, but that it exists only on the side of the giver. The woman behaves immorally, in that she is a prostitute; but it is not immoral for her to accept the money—since she is a prostitute.63