Nonmarital Sex and the Decretists

The twelfth-century decretists devoted considerable attention to the chapters of Gratian’s Decretum that dealt with sex outside marriage. Their discussions of nonmarital offenses were predicated on certain assumptions common in this period about the nature of human sexuality.

Love poets and lawyers also assumed that young persons are especially prone to indulge in nonmarital sex. The heat of youth, Rolandus observed, predisposes young people to sexual excesses, and Huguccio converted this predisposition into a presumption of fact: young persons discovered in circumstances where sexual activity was possible should be presumed to have engaged in it, whereas older persons in the same circumstances should be presumed not to have done so.^[1197] Weakness of the flesh, though more marked in the young than in the old, was a source of concupiscence in persons of all ages, Rufinus noted, and in men, he added, the specific organic source of sexual sin lay in the testicles.^[1198] But both men and women were prone to commit carnal offenses—men as a result of their natural sensual appetite, which led them to seek intercourse with women at every opportunity; women, due to the weakness of their nature, burned with the fury of lust and would hardly ever remain chaste, unless they were closely watched and guarded.^[1199]

The seriousness of extramarital sex offenses, in the decretists’ view, de­pended upon two considerations: the place of the offense in the scale of sexual sins and the circumstances of the offender.

Acting on their assumption that all men and women are naturally inclined to commit sexual offenses, the decretists counselled Christians to take special pre­cautions to avoid situations conducive to sexual temptations. Thus, neither cler­ics nor laymen ought to read or attend performances of comedies, which often described in word and deed the seduction of virgins and the lures of harlots and so might light the fires of lust, even in the pious.^[1204] These cautions were not without foundation, since twelfth-century Latin comedies, notably De tribus puellis, sometimes spun out sexual fantasies of considerable clinical, as well as literary, interest.^[1205]

Twelfth-century literary texts commonly reflected a conventional analysis of sexual attraction as a four-stage process. Visual attraction and conversation drew the lovers together. Looking and talking then led to touching, followed by kissing, and finally sexual intercourse.^[1206] The decretists also shared this ty­pology of sexual involvement and described each as an increasingly grave of­fense.

Kissing also counted as a moral danger. The treatise Sacramentum coniugii non ab homine included a short section on the psychology of kissing and warned that the practice quickly inflamed participants with sexual desire. A penitential in an Avranches manuscript required those guilty of erotic osculation to do pen­ance by kissing the hand of a leper and giving him alms.²⁰⁴

The decretists warned that extramarital sex of any kind, ranging from admir­ing contemplation of a potential lovers beauty to actual copulation, was wrong. That such activities are common or even customary, Huguccio warned, does not excuse the crime involved in them; nor, he continued, can Christians argue that their extramarital dalliances had sacred precedents in the activities of the Old Testament prophets.²⁰⁵ Immoderate familiarity with anyone of the opposite sex was an offense, even if it stopped far short of full sexual intercourse.²⁰⁰

Adultery and Fornication

The decretists knew, of course, that transgressions against the Church’s sexual code were common—the commonest of all offenses, according to Stephen of Tournai—and Huguccio lamented that few adults were innocent of fornica­tion.²⁰⁷ Despite its near universality, however, fornication, according to these writers, was an offense against natural law, if a virtually inevitable one.²⁰⁸

²⁰⁴Weigand, “Liebe und Ehe,” p.

²⁰⁵Huguccio, Summa to C. 32 q. 4 c. 7 v. quando mos erat, non erat crimen, in Weigand, Naturrechtslehre, p. 429; likewise Joannes Faventinus, Summa to D. 50 d.p.c. 12 v. David post adulterium et homicidium: “Nota exempla ueteris testamenti admit­tenda, non usquequo imitanda,” (B.L. Royal 9.E.VII, fol. 29va).

^20eHuguccio, Summa to D. 34 c. 1 v. mala fama, in Pembroke 72, fol. 143va, and Vat. lat. 2280, fol. 35va vb: “Mala fama non ratione criminis, scilicet quod Carnaliter ad ipsam accederet, non uidetur uerisimile quod aliquis suspicaretur [MS Vat.: hoc sus­picaret]. In his enim nil seui criminis naturale fedus suspicari permittit, ut C. de epi­scopis et clericis, eum qui [Cod. 1.3.19], sed ratione immoderate familiaritatis; uilis enim habeatur et Contemptabilis cum ita se exponeret muliercule, forte tota die uolebat esse cum ea et in consilio et in colloquio et habere caput in gremio eius et sedere iuxta ea et forte osculari et amplexari; ergo illa mala nil erat nisi ab inicio uilitatis et secundum hoc non est questio quare iste non esset infamatus; non fuit purgatus, non enim erat necessaria purgatio, quia non referebatur quod de crimine notatus.”

²⁰⁷Stephen of Tournai, Summa to D. 89 d.p.c. 5 v. propinquis, ed. Schulte, pp. 110-11; Huguccio, Summa to D. 25 d.p.c. 3 v. sit sine peccato, in B.N. lat. 3892, fol. 29va, and Vat. lat. 2280, fol. 26ra: “Immo pauci adulti inueniuntur sine carnali delicto, scilicet fornicationis, ut di. 1. quia sanctitas [D. 50 c. 16] et ita nullus potest eligi sine peccato, unde patet quod non sic accipitur ibi in epistula pauli nomen criminis, sed sen­sus est ibi; see also Weigand, “Liebe und Ehe,” p. 46.

²⁰⁸ Simon of Bisignano, Summa to D. 1 c. 7 v. uiri et femine coniunctio; Summa Rev­erentia to the same passage; and Summa Lipsiensis to the same passage, all in Weigand, Naturrechtslehre, pp. 286, 289, 295-96; Joannes Faventinus, Summa to c.

Although Gratian had taken pains to use “fornication” with some precision, the decretists used the term to describe a wide range of behavior. Fornication in their vocabulary meant not only illicit sexual intercourse, but also any wish or intention to commit such an act.^[1209] They used the term to describe extramarital relations by married persons as well as by unmarried ones.^[1210] Furthermore, for­nication was used in an extended sense to describe such diverse offenses as con­traceptive marital intercourse, polygyny, or any deviation from the faith (spiri­tual fornication).^[1211] To confuse matters further, decretists sometimes described illicit sex between two unmarried persons as adultery. Stuprum and moechia were all-purpose nouns that might apply to any kind of illicit sex, including both adultery and fornication.^[1212]

When they used the term strictly, the decretists meant by fornication any act of sexual intercourse between an unmarried man and woman.^[1213] The decretists held in theory that fornication in this sense was a major crime, second in se­riousness only to murder; in practice, however, they often treated it as a minor matter.²¹⁴ The degree of culpability depended to a large degree upon the cir­cumstances and upon the persons involved.²¹⁵ The Cardinal reflected common attitudes when he remarked that people consider fornication a lesser offense for men than for women and for infidels than for Christians.²¹⁶ The status of the participants naturally affected the gravity of the offense, as did the place where it was committed, and the duration of the relationship.²¹⁷ The term “simple for­nication” was sometimes used to distinguish sexual relations between two un­married persons from “double fornication,” that is sex between a married per­son and an unmarried one.²¹⁸

Many people believe that simple fornication is not a serious offense, re­ported Bartholomew of Exeter, but he was in respectable company when he disagreed with that view.²¹⁹ Even simple fornication constituted a crime, ac­cording to the decretists, and heinous offenders might be heavily penalized.²²⁰ Adultery, like fornication, was common in twelfth-century society and seems

²¹⁴Rufinus, Summa to D.

²¹⁵SP to C. 32 q. 7 d.p.c. 10, ed. McLaughlin, p. 247; Rufinus, Summa to C. 17 q. 4 c. 12 v. et sicut maius peccatum est, ed. Singer, p. 375; Michaud-Quantin, “Manuel,” p. 26.

²¹⁶Gloss to C. 32 q. 4 c. 3 v. sed considera, in B.L. Stowe 378, fol. 176vb: “Credens Ieuius esse delictum uiri fornicantis quam uxoris, quia leges interdicunt uxori uirum [MS: non] accusari propter suspicionem solam uel iurc mariti, ut supra eodem q. i. quod si adulter [C. 32 q. 1 d.p.c. 10]. C.”; Rolandus, Summa to C. 32 q. 4 c. 12, ed. Thaner, PP- 173-74-

²¹⁷Rufinus, Summa to C. 28 q. 1 c. 5 and C. 31 q. 1 c. 7, ed. Singer, pp. 453, 470-71, followed verbatim by Joannes Faventinus in B.L. Royal g.E.VII, fol. 140va; Summa “El­egantius" 3.69, ed. Fransen-Kuttner 1:146.

²¹⁸Michaud-Quantin, “Manuel,” p. 40; Joannes Faventinus, Summa to C. 32 q. 4 d.p.c. 10 v. simplex fornicatio, in B.L. Royal 9.E.VII, fol. 144ra: “Quam fecit solutus cum soluta; duplex enim est quando ligatus cum ligata uel soluta.” ₁

²¹⁹BarthoIomew of Exeter, Penitentiale 69, ed. Morey, pp. 236-37; Rolandus, Summa to C. 32 q. 4 c. 11, ed. Thaner, p. 173.

²²⁰Rolandus, Summa to C. 32 q. 4 c. 2 and c. 11, ed. Thaner, pp. 171, 173; Summa “Elegantius” 2.5, ed. Fransen and Kuttner 1:42. Rufinus, Summa to C. 2 q. 1 pr., ed. Singer p. 238, mentioned excommunication, while SP to C. 6 pr. and C. 32 pr., ed. Mc­Laughlin, pp. 130, 240, declared that fornicators were infames and that the offense con­stituted a diriment impediment to marriage. Premarital intercourse between betrothed persons, however, was not fornication at all, according to some; under certain circum­stances, of course, it could transform a betrothal into a marriage; Rolandus, Summa to C. 27pr. and C. 27 q. 2 c. 50, ed. Thaner, pp. 114, 132-33; Rufinus, Summa to>C. 27 q. 2 pr., ed. Singer, pp. 446-47; Questiones Cusane 2, ed. Fransen, p. 212. in some circles to have been tacitly tolerated, so long as family honor was not jeopardized.²²¹ The author of the Summa Parisiensis claimed that adultery was horrendously common among the English, while English authors thought it terribly prevalent among the Irish.²²² A few decretists taught that adultery was prohibited by natural law, but the more frequent view maintained that the ban on adultery had been introduced by positive law.²²³ The decretists fully realized that the law on adultery had undergone change through the ages. Ancient cus­tom, Rolandus noted, had permitted married men under some circumstances to have sexual relations outside of marriage, as for example when their wives failed to produce heirs; but, he added, extramarital sex was no longer allowed for this reason (illustrated in Pl. io).²²⁴

There was a clear consensus that adultery was far more heinous than simple fornication.²²⁵ With adultery, as with fornication, intention formed an essential element of the crime. Thus if one party were unaware that the other party was married, the unwitting party might be guilty of fornication, but not of adul­tery.²²⁶ In principle the consequences of adultery were supposed to be the same for men as for women, but practice was quite different.²²⁷ The husband who

²²¹John of Salisbury, Policraticus 8. ιι, ed. Webb 2:305, and Hist, pont. 23, ed. Chibnall, pp. 52-53; Benton, “Clio and Venus,” pp. 24-28.

²²²SP to D. 56 d.p.c. 9 v. contra Bonifacius, cd. McLaughlin, p. 51; Mary Martin McLaughlin, “Survivors and Surrogates: Children and Parents from the Ninth to the Thirteenth Centuries,” in Lloyd de Mause, ed., History of Childhood (New York: Psy­chohistory Press, 1974; repr. NcwYork: HarperTorchbooks, 1975), p. 114.

²²³See the opinions of Huguccio, Petrus Hispanus, the Apparatus Ordinaturus mag­ister, the Summa Tractaturus magister, the Summa Lipsiensis, Joannes Faventinus, and an unknown glossator (possibly Rufinus), all set forth in Weigand, Naturrechtslehre, pp. 414-17, 419.

²²⁴Rolandus, Summa to C. 32 q. 7 c. 27 v. plane uxoris voluntate, ed. Thaner, p. 188; cf. SP to C. 32 q. 4 pr., ed. McLaughlin, p. 243; Sicard of Cremona, Summa to C. 32 q. 7, in Weigand, Naturrechtslehre, p. 412; Tractatus In primis hominibus, in B.L. Royal 11. B.XIII, fol. 89ra-rb: “Si primus tunc poterit accipere penitentiam de precedent! adul­terio et remanere cum secundo, namque tempore innocentii non erat statutum ne quis duceret illam cum [MS: con] qua fuerat adulteratus cui sententie hec sequens littera consonat.”

²²⁵SP to C. 32 q. 7 c. 16, ed. McLaughlin, p. 247; Rufinus₁ Summa to C. 32 q. 7 c. 16, ed. Singer, pp. 492-93. The decretists’ discussions of adultery are obscured, however, by the same vague use of terms that marked their discussions of fornication; Rolandus, Summa to C. 32 q. 4 c. 4, ed. Thaner, p. 171; SP to ibid., v. nemo, omne stuprum, ed. McLaughlin, p. 243; Rufinus, Sumnui to the same passage, v, omne stuprum adulterium est and c. 5 v. adulter est, ed. Singer, p. 486, followed verbatim by Joannes Faventinus in B.L. Royal 9.E.VΠ, fol. 143vb-144ra.

^22eRolandus, Summa to C. 32 q. 5 c. 4, ed. Thaner, pp. 177-78; Questiones Cusane 4, ed. Fransen, p. 213; Tractatus In primis hominibus, in B.L. Royal 11.B.XIII, fol. 88rb: “Notandum est etiam quod si mulier ignoranter copuletur uiro habenti Coniugem in al­iena patria in illa non est adulterium immo coniugium, similiter et de uiro.”

²²⁷SP to C. 32 q. 5 c. 23, ed. McLaughlin₁ p. 246; RoIandus₁ Summa to C. 32 q. 6 c. 4, ed. Thaner, p. 182.

discovered that his wife had engaged in an extramarital affair was obliged, ac­cording to some decretists, to turn her out: keeping her after discovery of her infidelity was both stupid and impious.²²⁸ A wife was defiled by her husband’s adultery, but she was not allowed to dismiss him for that reason.²²⁹ The inno­cent party in an adulterous marriage, however, had the right to refuse to have sex with the guilty party, who lost his or her right to demand the conjugal debt.^2,39

The decretists strongly opposed self-help by cuckolded husbands. Human law might allow a deceived man to kill his faithless wife, Rolandus declared, but the Church’s law does not.²⁸¹ The Summa Parisiensis maintained that a husband who, despite this prohibition, slew his adulterous wife was entitled to plead circumstantial factors in mitigation of his guilt, and added that God might per­haps accept the wife’s murder as satisfaction for her sin.²³²

The canonical consequences of adultery, according to the decretists, con­sisted mainly of infamia for lay persons, although aggravated cases might re­quire further penalties.²³³ In addition, there were conflicting opinions about an adulterous couple’s right to wed after the death of the married party’s spouse. The Summa Parisiensis held that such a couple might marry each other, but were forbidden to marry anyone else; Rolandus, however, would allow them,

²²⁸Rolandus, Summa to C. 32 q. 1, ed. Thaner, p. 160; SP to C. 22 q. 4 c. 21, ed. McLaughlin, p. 207; Stephcn of Tournai, Summa to D. 34 c. 11 v. dimittere, ed. Schulte, p. 52; see also the gloss of GanduIphus to C. 22 q. 4 d.a.c. 19 v. ecce usque laud., in Schulte’s edition of Stephen of Tournai, p. xxix; Tractatus In primis hominibus in B.L. Royal 11. B.XIII, fol. 89rb: “Salamon in parabilis, â€?Qui tenet adulteram stultus et impius est [Prov. 18:22]. Quod sic exponitur: qui tenet adulteram eam non corrigendo et eius adulterio assentiendo stultus et impius est. Uel fortassis etiam si non assentiat cum illa nolit cessare et ipse possit continere tenens talem stultus et impius uidebitur.”

²²⁹Rufinus, Summa to C. 32 q. 1 c. 3 v. uxorem coinquinat, ed. Singer, p. 476, fol­lowed verbatim by Joannes Faventinus in B.L. Royal 9.E.VII, fol. 141vb.

²³⁰ SP to C. 32 q. 7 c. 1, ed. McLaughlin, p. 247; Cardinalis₁ gloss to C. 27 q. 2 c. 26 v. nisi eand. uitam, in Weigand, “Glossen des Cardinalis,” pp. 77-78; Questiones Cusane 9, ed. Fransen₁ p. 214; Joannes Faventinus₁ Summa to C. 32 q. 1 c. 3 v. licita sed adul­tera, in B.L. Royal 9.E.VII₁ fol. 141vb: “Id est non est licitus uiro fornicarie exigere debitum ab uxore, sed debet abstinere ab ea tanquam ab adultera. Nam si a uiro de­bitum petat, reddere debet.”

²³¹Rolandus₁ Summa to C. 33 q. 2 c. 5 v. adulterarum, ed. Thaner₁ p. 190; Joannes Faventinus₁ SummatoC. 32 q. ιd.p.c. 10v. Iexiulia, in B.L. Royal 9. E. VII, fol. 142rb, summarized, more-or-less₁ the provisions of the Augustan statute: “De adulteriis, quod data est a diuo augusto et temeratores aliarum nuptiarum gladio punit et eos qui nefan­dam libidinem in masculis exercuerunt et illos qui Uirginem₁ uiduam, uel aliam honeste uiuentem Stuprauerunt penam arrogat. Si honesti sunt, publicationem dimidie partis bonorum; si humiles Cohertionem corporis cum relegatione. ” Secular laws in this period continued to sanction the slaying of both adulterer and adulteress; Ruiz de Conde₁ Amor y matrimonio, p. 21.

²³²SP to C. 23 q. 5 c. 6 and C. 33 q. 2 c. 5, ed. McLaughlin, pp. 218-19₁ 250.

²³³Rufinus, Summa to C. 2 q. 3 d.p.c. 7 and C. 32 q. 7 d.a.c. 19 v. de incestuosa tant. fornic. and v. hii vero qui uxores, ed. Singer, pp. 246, 493, 495. under some circumstances, to marry others, but not to marry their partners in adultery.²³⁴ The author of In primis hominibus preferred to resolve the issue on other grounds: if the adultery was public knowledge, he held, then the couple might not marry; if it was secret, they could marry, since this would not cause scandal.²³⁵ Other writers, including Huguccio, rested their treatment of this situation on traditional grounds: if the couple had agreed to marry prior to the death of the married party’s spouse or if either party were involved in plotting the death of the spouse, they were forbidden to marry. Otherwise they might be permitted to wed, although it would be preferable if they did not.²³⁶

Prostitution

The decretists had little new to say about prostitution. Like Gratian they de­plored the existence of the industry, but treated it as a minor stain on the social fabric.²³⁷ While they advised their readers to avoid patronizing prostitutes, they

²³⁴SP to C. 32 q. 7 c. 22, ed. McLaughlin, ρ. 248; Rolandus, Summa to C. 31 q. 1, ed. Thaner, pp. 154-55.

^23sTractatus In primis hominibus,” in B.L. Royal 11.B.XIII, fol. 86va-vb: “Queritur autem de illo qui conmisit adulterium cum aliqua maritata, an marito ipsius defuncto liceat ei habere matrimonium cum illa?... Coniugium inter tales non admittatur si adulterium fuit publicum propter terrorem et scandalum uitandum tenet ecclesia.’’

²³⁶Rolandus, Summa to C. 31 q. 1, ed. Thaner, pp. 154-55; Questiones Cusane 12, ed. Fransen, p. 214; Simon of Bisignano, Summa to C. 31 pr., in B.L. MS Add. 24,659, fol. 32rb-va: “Nullus ducit in matrimonium quem polluit per adulterium. Hic ante pen- itentiam peractam potest intelligi. Penitentia uero peracta potest quis eam ducere in coniugium quam polluit per adulterium nisi in duobus casibus, scilicet si uiuente marito iurauit quod eandem eo mortuo duceret in uxorem, ut infra eodem questio, relatum [C. 31 q. 4 c. 4] et nisi in mortem mariti fuerat aliud machinatus, ut infra eodem questio, si quis [C. 31 q. 1 c. 5].” Sicard of Cremona, Summa to C. 31 q. 1 ρr., in B.L. MS Add. 18,367, fol. 58vb: “Require utrum adultera prius repudiata fuit a marito uel non. Item si adulter sciebat uel ignorabat. Item si ignorabat ius aut factum. Item si peniteat uel peni- tencie contempnat. Item si uiuente marito fidem dederat. Item si nece defuncti machi­nati fuerunt.- Hoc duo postrema nullam recipiant dispensationem, nam impediunt contrahendum et dirimunt contractum.... Unde si quis talium me consuleret, res­ponderem quod nunquam talis cum tali contraheret, nisi forte dispensationem euidens utilitas postularet, ut forte pro bono pacis. Ubicumque autem admittitur dispensatio, cicius admititur cum repudiata quam cum nesciente uel cum penitente.’’ Huguccio, Summa to C. 31 q. 1 pr., in Admont 7, fol. 312va: “Hec est questio scilicet an quis possit eam ducere in uxorem quam polluit per adulterium et dico indistincte quod potest nisi in duobus casibus, scilicet si uiuente marito fidem ei dedit quod eo mortuo duceret eam in uxorem, uel si alter illorum in mortem uiri machinatus est cum effectu. In his duobus casibus impeditur contrahendum et dirimit contractum.... In quolibet alio casu hon­estum est si non contrahant. Si tamen contrahunt, tenet et ualet.’’

²³⁷Paucapalea, Summa to D. 48 pr., ed. Schulte, p. 34; Rolandus, Summa to C. 27 q. 1 c. 41 v. promiscuum feminarum, ed. Thaner, p. 125.

²³⁸Huguccio, Summa to C. 32 q. 4 c. 11, in Vat. lat. 2280, fol. 283vb, and B.N. lat. considered it only a trivial offense to have relations with a harlot.^[1214] Several writers enlarged slightly on Gratian’s treatment of the property rights of prosti­tutes, developing the theme that although it is wrong for a prostitute to practice her trade, she did no wrong by accepting money for her services.^[1215] Writers of this period disagreed to some extent about the propriety of accepting alms from prostitutes. Huguccio, for one, was inclined to think that the Church should refuse their offerings, while Joannes Faventinus thought they might be accepted.^[1216]

As for marrying harlots, the decretists agreed that this practice could, under some circumstances, be considered an act of piety. Several writers, however, had misgivings about the wisdom of these marriages: Paucapalea, Rolandus, and Rufinus agreed that an unmarried man might legally marry a reformed harlot who had done penance for her shady past, but that a married man who discovered that his wife had taken to whoring was obliged to repudiate her (see Pl. 5).^[1217] Rolandus remarked that policy on this matter had recently changed; formerly the Church had discouraged men from marrying reformed prostitutes, “but nowadays it is considered praiseworthy.”^[1218] Simon of Bisignano was more skeptical of the practice than the others: even a reformed prostitute, he thought, would find it difficult to remain virtuous, but, he added, marriage to her would nonetheless be valid.^{242 [1219] Huguccio was also skeptical, but would permit marriage if the harlot had previously demonstrated that she seriously wished to reform her life.[1220] [1221] In any case, Rufinus noted, a man who chose to marry a harlot, however praiseworthy his action, was barred from cleri­cal orders.243}

Several canonists of this period remarked that not all prostitutes are the same. The author of the Summa Parisiensis observed that some harlots did not choose the life voluntarily, but were forced into it and were not therefore to­tally accountable for what they did.^[1222] Even unrepentant prostitutes might be veritable paragons of piety, when it came to formal religious observances: Peter the Venerable remarked that they were especially keen in following the Church’s fasting regulations and declared that their scrupulous observance pro­vided an example that his monks ought to emulate.^[1223]

Pimps and panders were an altogether different matter. They incurred in­famy by their very occupation, Rufinus asserted, and the faithful must shun them at all costs.^{[1224] [1225] But even a pimp was capable of performing certain acts with legal effect—he could contract lawful marriage, for example, although if he did so the canonists felt a probably not unwarranted fear that he might force his wife into a career of sin.248}

Prostitutes were certainly plentiful and their massive numbers compelled the Church to accommodate its rules to their presence. Prostitutes might be technically excommunicate because of their occupation, but Peter the Chanter advised that they should be permitted to attend Church services, lest they spend the time set aside for worship in more deplorable activities. Besides, he added on a practical note, there were simply too many prostitutes to make it feasible to exclude all of them from Church attendance.²⁵⁰

Rape

The decretists’ teachings on rape differed in several important respects from the views found in Gratian.²⁵¹ They analyzed the degrees of force employed in rape, for example, and distinguished between more grievous offence that in­volved violent coercion, which overpowered the victim, and the less serious offence involving moderate coercion, where the victim was induced to yield against her will, but without being physically forced to submit.²⁵² In either case the victim must resist or protest in order for the incident to be regarded as rape. It made no difference to the definition of the offense whether the co­ercive measures involved were directed against the person of the victim or against her parents and family.²⁵³ Decretist discussions of rape also contained an early version of the notion that English and American lawyers would later call statutory rape: intercourse with a girl younger than the minimum legal age for valid consent to marriage was considered rape, even if the victim consented, and failed to protest, and no force was employed.²⁵⁴

The decretists considered prior relationship between the parties a vital fac-

²⁵⁰Nicholas M. Haring, “Peter Cantor’s Views on Ecclesiastical Excommunication and Its Practical Consequences,” Mediaeval Studies 11 (1949) 101. Medieval cities seem to have had droves of prostitutes who roamed public gathering places in search of busi­ness. For a description of harlots lining up outside of workshops to tout for clients among the workers see Jean Gimpel, The Medieval Machine: The Industrial Revolution of the Middle Ages (New York: Holt, Rinehart and Winston, 1976), p. 3.

²⁵¹Note that while raptus may refer to the forcible theft of property as well as to ab­duction and sexual ravishment, the decretists restricted it primarily to mean sexual rela­tions secured though coercion. Stephen of Tournai, Summa to C. 36 q. 1 pr., ed. Schulte, pp. 256-57; SP to C. 36 q. 1 ed. McLaughlin, p. 272; Rufinus, Summa to C. 36 q. 1 pr. and d.p.c. 3, ed. Singer, pp. 534-35, followed verbatim by Joannes Faventinus in B.L. Royal 9.E.VII, fol. 154va.

²⁵²Rufinus, Swmma to C. 36 q. 1 pr., ed. Singer, p. 534, followed verbatim by Joannes Faventinus, in B.L. Royal 9.E.VII, fol. 154va. Rufinus analyzed coercion more extensively at C. 22 q. 5 c. 1, ed. Singer, pp. 400-401; see also Octavio Garceran de Vall y Laredo, El rapto y Sujurisprudencia (Habana: Cultural, 1945), p. 8.

²⁵³ Stcphen of Tournai, Summa to C. 36 q. 1 d.p.c. 2 v. patre ad animam, ed. Schulte, p. 257; SP to C. 36 q. 1 d.p.c. 2, ed McLaughlin, p. 272; Rufinus, Summa to C. 34 q. 1 & 2 c. 3 v. legat libros, ed. Singer, p. 508.

²⁵⁴Rufinus, Summa to C. 36 q. 1 d.p.c. 3 v. et non parentibus, ed. Singer, p. 535; cf. Joannes Faventinus, Summa to C. 36 q. 1 c. 3 v. raptori consensit, in B.L. Royal 9.E.VII, fol. 154va: “Ut fornicaretur, non ut matrimonium contrahet. Si enim ab inuito consensisset causa matrimonii dummodo nubilis esset, non redderetur patri. Si autem nondum nubilis, sine consensisset siue non, reddenda esset ei.” See also Medeiros and Moreira, Do crime de seduςao, p. 14.

tor in determining whether the crime of rape had been committed. If the par­ties, prior to the sexual assault, had agreed to marry in the future, or if they were actually married at the time of the incident, then the assailant could not be punished for rape, no matter how atrocious his attack. He might, however, be liable for injuries caused by his attack.²³⁵ The Cardinal added that if a man forced his betrothed to have intercourse with him, he forfeited any future right to demand the marital debt from her.²⁵⁶

If there had been no marriage agreement between the parties prior to the assault, there was some question about whether they could subsequently marry. The early decretists noted that the law had formerly forbidden such mar­riages,²⁵⁷ but Rufinus maintained that forcible intercourse was in itself no im­pediment to marriage.²⁵⁸ If the girl was of age and if she consented to inter­course, then abducting her from her parents and having sexual relations with her did not bar marriage, even if the abduction involved doing violence to the parents.²⁵⁹ Stephen of Tournai distinguished between abduction of a girl in order to marry her and sexual ravishment: when the rapist employed force to secure momentary sexual gratification, he and his victim could never subse­quently marry.²⁶⁰ In addition Rufinus and others would bar marriage if the girl had been betrothed to another man at the time of the attack or, a fortiori, if she had at that time been married to someone else.²⁶¹

²⁵⁵Stephen of Toumai, Summa to C. 36 q. 1 d.p.c. 2, ed. Schulte, p. 257; Simon of Bisignano, Summa to C. 36 in B.L. MS Add. 24,659, fol. 35va: “Tunc enim desponsa­tione precedente si eam rapuerit secundum canones non dicitur raptum committere, licet alias peccauerit quia iniuriam uidetur fecisse nuptiis quas per raptum preuenit. Secus uero est secundum leges que etiam in re propria raptum et furtum dicunt posse committi, ut in Inst. iiii. t. i. § interdum [Inst. 4.1.9; sed proprior refertur in para- graphum sequentem]. ” See also the gloss to C. 36 q. 2 c. 5 in B. L. Stowe 378, fol. 204va: “Si ergo desponsatam sibi rapuerit non rapine penam incurret; secus secundum leges,” and Joannes Faventinus, Summa to C. 27 q. 2 c. 49, in B.L. Royal 9.E.VII, fol. 136rb: “Istam legem in corpore iuris non habemus. Immo legimus quod sponsus in sponsam suam raptum potest existere et ut raptor puniendus est; ergo ibi raptus esse potest nisi prius de puelle nuptiis actum est.” Ibid., v. uel nihil fuerit: “A raptore cum effectu. Nam si prius egit de nuptiis, id est cum ea nuptias celebrauit, non erit raptus, qui in uxorem non admitti; quamuis in sponsa propria admitti possit secundum leges, non autem se­cundum canones.”

^ffi6Cardinalis, gloss to C. 27 q. 2 c. 49 v. nupciis, in Weigand, “Glossen des Car­dinalis,” p. 81.

²⁵⁷Rolandus, Summa to C. 27 pr., ed. Thaner, pp. 114-15; SPtoC. 32 q. 7 c. 7, ed. McLaughlin, p. 247; Rufinus, Summa to C. 34 q. 1 c. 3, ed. Singer, pp. 507-508.

²⁵⁸Rufinus, Summa to C. 36 q. 2 pr. and c. 10, ed. Singer, pp. 535-36. ^ffi9Rolandus, Summa to C. 36 q. 2, ed. Thaner, pp. 233-34.

²⁶⁰Stephen of Tournai, Summa to C. 36 q. 2 pr., ed. Schulte, p. 257.

²⁶¹Rufinus, Summa to C. 36 q. 2 c. 9 v. nulli desponsata, ed. Singer, pp. 535-36; gloss to C. 36 q. 2 c. 8, in B. L. Stowe 378, fol. 204vb: “Per contrarium ergo si rapta fuerit alteri desponsata, raptor eam habere non poterit. R.” Ibid, to C. 36 q. 8 c. 11: “Si quis autem uxorem habere uoluerit et canonice et Iegaliter eam accipiat, qui uero eam

Forcible intercourse with an unwilling victim was a heinous offense and Rufinus noted with an air of satisfaction that the civil law punished it with death.^[1226] Canon law, of course, did not impose the death penalty; it did require that the victim be restored to her family and that the attacker submit to their will. The family head could enslave the assailant, who nonetheless retained the right to buy back his freedom if he had sufficient resources.^[1227] In effect this meant that the victim’s family could require compensation from the attacker and that if he failed to make satisfaction, the law allowed them to seize physical control of his person. In actuality this policy simply reflected the effects of class differences: the swineherd who ravished a duchess, if by some miracle he es­caped mutilation and death, would be enslaved; the duke who ravished a shep­herdess, if punished at all, could make compensation by providing her with a purse full of coins as a dowry.

Deviant Sex

The late twelfth century was a period in which attitudes toward homosexual behavior were beginning to change. Sexual practices and preferences in this period commenced to be taken as indicators of doctrinal orthodoxy; deviance from the dominant sexual preference was thought to manifest deviance from accepted doctrine. There is some evidence that male brothels existed in Chartres, Orleans, Sens, and Paris late in the twelfth century, but overt homo­sexual practices attracted increasingly repressive attention from authorities, both secular and religious.^[1228] Peter the Chanter devoted a long chapter of his Verbum abhreυiatum to a vigorous denunciation of the vice of sodomy, and can­onists, as well as theologians, gave increasing attention to analyses and denun­ciations of sex practices, both homosexual and heterosexual, that they consid­ered unnatural.^[1229] That these practices were widespread, according to Joannes Faventinus, offered no excuse for those who indulged in them. Custom could excuse many crimes, Joannes maintained, but not sexual activity “contrary to nature.”^[1230]

The decretists had little to say about other sexual habits. Only Huguccio and Sicard of Cremona dealt explicitly with masturbation and their discussions focused mainly on defining the degrees of moral guilt in self-stimulation. For Huguccio particularly the two operative criteria were the pleasure that re­sulted from the sexual experience and the intention of the individual. If the pleasure was slight and not deliberately sought, as for example in nocturnal emission, the degree of guilt was correspondingly slight. But if orgasm was de­liberately induced and enjoyed, the degree of guilt and the attached punish­ment correspondingly increased.^[1231]

Few decretists commented at all on cross-dressing or the biblical prohibition of transvestite practices. Stephen of Tournai, one of the minority to deal with the subject, did distinguish between respectable women who adopted male dress in order to avoid threats to their chastity, and loose women, who dressed like men in order to sin more freely.^[1232] None of these writers dealt with men who adopted female dress, whatever their purpose.