Nonmarital Sex and the Reform Canonists
The vice of sexual sin as well as the virtue of sexual chastity is rooted in the spirit, not in the body, declared Ivo of Chartres in a paraphrase of an Augustinian dictum. But Ivo’s contemporaries did not agree about how far sexual fantasies could be entertained before crossing the threshold of sin.[795] Among Ivos contemporaries, only Peter Abelard and some writers of the School of Laon were prepared to maintain that carnal pleasure and the desire to experience it were natural and hence not intrinsically evil.[796] Sexual feelings that were not consciously desired and their physical manifestations such as, for example, a spontaneous erection, might produce no guilt, but any pleasure or enjoyment that resulted from sexual thoughts and feelings was clearly sinful according to the teaching current in the period.117
From these premises it followed that any voluntary action that might lead to sexual arousal or pleasure was sinful, whether or not the anticipated result occurred.
The canonists of the reform period consistently supported this view and its juristic consequences. Thus, telling dirty jokes or laughing at them, singing suggestive songs or listening to them, and producing, performing, or attending entertainments calculated to arouse prurient feelings were all forbidden to laymen and even more stringently to clerics.[797] [798] Canonists likewise repeated as legal injunctions the counsels of penitential authors against bathing in mixed company where men and women seeing one another in a state of undress might be sexually aroused.[799] Still more serious were touching, fondling, or kissing, especially if the breasts or genitals were involved.[800] The canonists were not alone in treating lascivious contact as a serious offense: the Icelandic law code, the Grdgds, prescribed the same penalty for lewd kissing as for fornication.[801] Indeed, any kind of petting that led to orgasm was legally fornication.[802]These prohibitions of carnal reveries and sexual contacts reflected the temptations as well as the values of a celibate clerical elite.
The realities of social life among the laity in the eleventh and twelfth centuries were entirely different. The expectations of lay society militated against chastity. All classes of the medieval population included large numbers of unmarried men, for social and economic pressures forced many males to postpone marriage until relatively late in life. Among the nobility, about whose amusements we are fairly well informed, unmarried men rarely led lives of voluntary chastity. They had sexual access to servant girls, peasant women, bastard daughters of their relatives, and staggering numbers of harlots. The more presentable and ambitious of these young men might also offer consolation, sexual and social, to widows, possibly in the hope of marrying into wealth. Daring or foolhardy young men sometimes became involved with married women as well. The idealized dalliance that modern scholars depict as innocent or platonic courtly love masks the more fleshly reality of sexual mores among young men of good families.[803] The canonists, however, wished to remake the sexual habits of lay society so far as possible in the image and likeness of the celibate elite. Sex, they taught, was permitted only between married persons and even for them should be hedged about by constraints. Sexual intercourse or other overt sexual activity by unmarried persons or by married persons outside of the marital relationship fell into the canonists’ category of moechia, or illicit sex.[804] Some people can marry, said Ivo, quoting Augustine, and some cannot; but no one may fornicate or have illicit sex.[805]Fornication
Fornication was, for the canonists of the reform period, the basic type of illicit sex, a sordid business that fouled the body while it sullied the soul; it slammed shut the gates of God’s kingdom and turned men and women away from their maker.[806] Ivo was aware that he and other canonists were dealing here with new law, that in Christ’s Church fornication was a far more serious offense than it had been under the Mosaic law of the old dispensation.[807] So serious was sexual sin that Burchard of Worms devoted the entire seventeenth book of his Decretum to fornication and related offenses; in addition sexual topics featured prominently in many of the other nineteen books of his work.
The fourth-century canons of Elvira furnished both Burchard and Ivo with penal guidelines on the subject of fornication: sexual relations between unmarried persons, according to the Elvira canons, merited a year’s penance if the couple subsequently married one another. If they slept together but did not later marry, the penalty was increased to five years.[808] A later council modified this scheme and imposed a flat three-year penalty, and penitential writers added further modifications to cover other contingencies. But the underlying message remained clear: fornication is both a sin, requiring confession and penance and a crime, meriting public retribution and punishment.[809] Punishment for this offense might be meted out by ecclesiastical authorities or by other authorities vested with law-enforcement power, as happened, for example, on the First Crusade.[810] And if earthly rulers failed to take action, clerical writers seldom tired of reminding their readers that God was perfectly capable of reaching out and exacting terrible retribution from the sexual offender in this life as well as in the next.[811] The legal perils for criminal fornication were also greatly increased.[812]
Canonistic teaching about concubinage during the reform period was confused and inconsistent. The major collections included numerous citations from older authorities holding that concubinage was prohibited for all Christians, and the reforming synod of Gerona in 1078 went so far as to decree excommunication for any man who kept a concubine.’[813] But eleventh-century canonists also reported numerous older authorities who treated concubinage as informal marriage and imposed no penalties on these unions.[814] While canon law, drawing upon earlier Roman law, forbade Christian men to have both a wife and a concubine simultaneously or to have more than one concubine at a time, it is not apparent that the church in the eleventh or early twelfth centuries, even at the height of reform fervor among its leaders, was prepared to outlaw concubinage among the laity.[815] What the canonical collections did make plain was that concubinage ought to be an exclusive relationship and reasonably
permanent.
Under these conditions, concubinage remained an alternative to formal marriage.Fornication, then, was a sexual offense in canon law, but concubinage was not necessarily an offense at all. The other principal sex offenses that the canonists censured were bigamy, adultery, rape, prostitution, pandering, sex with non-Christians, homosexual relationships, bestiality, and masturbation. The last three were by this time referred to commonly as “unnatural. ” Each of these offenses, if publicly practiced or generally known, carried with it the sanction of infamia, a deprivation of respectable status that involved unfitness for holding most kinds of public trust or office and the loss of rights to appear in court as a complainant or witness.[816]
The sources gave short shrift to both bigamy and miscegenation. Ancient authorities had flatly forbidden bigamy—in the sense of simultaneous marriage to two or more wives, as distinguished from constructive bigamy, or sequential marriage to two or more wives (digamy)—and the canonists simply repeated the ban.[817] Miscegcnation, in the sense of sexual relations between a Latin Christian and a non-Christian partner who was also non-Europcan, became a particular problem in the early twelfth century for Crusaders and settlers in the states created by the First Crusade in the Levant. Although Crusadcrs and Latin settlers in the Holy Land often entered into more or less casual liaisons with Saracen women from the region, both ecclesiastical and royal authorities opposed these arrangements. The Council of Nablus in 1120 prescribed harsh punishments calculated to prevent recidivism by offenders: a Latin man found guilty of miscegenation with a Saracen woman was to be castrated, while the woman was to have her nose removed.[818] Western canonists ignored miscegenation; presumably it was not a pressing issue.
Adultery
Adultery, however, was a matter of considerable concern. While adulterous fantasies were spiritual offenses, penalized in the privacy of sacramental confession, the canonists became concerned when sinful desires were acted out in carnal intercourse.[819] Drawing upon both ecclesiastical sources and Roman law, the canonists warned cuckolded husbands that they must not slay their adulterous wives, no matter how great the provocation; if they did so the Church was prepared to punish them as murderers.160 Adultery constituted the second most serious offense after heresy, in the opinion of one authority, and could not be excused by procreative intent.161 The offense entailed excommunication, removable only by submission to the required penance, by marital separation if the innocent spouse so desired, and by prohibition of future marriage between the adulterer and his paramour, even after the death of his or her earlier spouse.162 Other authorities mentioned further types of punishment for adultery, including whipping and public humiliation of various kinds, as well as exile.163 Adultery, like fornication and other sexual crimes, was also believed to invite direct intervention by God in human affairs and thus was blamed for numerous disasters.164 As with fornication, too, the heinousness of the crime and the severity of the punishment might be increased if the relationship was also incestuous,165 or if the offense was committed in a church.166 The innocent husband of an adulteress was under considerable pressure to take action against
160Burchard, Decretum 9.γ3 (= Ivo, Decretum 8.210), in PL 140:827-28; Ivo, Decretum 8.111-12, 124-25(= Panormia 7.14-15), in PL 161:606-607, 610.
161Ivo, Decretum 8.99 (= Panormia 7.21), in PL 161:604, citing Ps.-Clement c. 5, in Hinschius, DPI, P- 32; also Ivo, Decretum 8.105 (= Panormia 7.20), in PL 161:605. Cf. Ivo, Decretum 12.21, in PL 161:785, which compares adultery to other offenses, including perjury, sorcery, poisoning, defrauding laborers, and oppressing widows and orphans.
162Burchard, Decretum 9.65 (= Ivo, Decretum 8.201, Panormia 7.12), 9.66 (= Ivo, Decretum 8.202, Panormia 7.9), 9.67 (= Ivo, Decretum 8.203), 9∙69-70 (= Ivo, Decretum 8.206-207), 9∙74 (= Ivo, Decretum 8.211, Panormia 7.10-11), 17.51, and 19.5, in PL 140:826-28, 931, 957; also Ivo, Decretum 8.284 and 295 (= Panormia 3.143), in PL 161:642, 646; Gottlob, “Der Ehebruch und seine Rechtsfolgcn in den vorgra- Hanischen QueIlen und bei Gratian selbst.” Studia Cratiana 1 (1954), p. 344. Presumably the penalties and penances imposed upon adulterers account in part of the report of Albert of Aachen that those guilty of this offense flocked in great numbers into the ranks of the First Crusade; see Albert’s Hist. 1.2, in RHC, Occ. 4:272.
?“Thus Albert of Aachen, Hist. 3.57, in RHC, Occ. 4:379: “Deprehensi ibidem [viz.: Antiocheni] in adulterio vir et femina, coram omni exercitu denudati, et post terga manibus revinctis, a percussoribus graviter virgis verberati, totum circuirc coguntur exercitum, ut saevissimis plagis illorum visis, a tali et tam nefario scelere ceteri absterreantur.” Cf. Guibcrt, Gesta Dei 4.15, in RHC, Occ. 4:182. Albert’s optimistic belief that savage punishment would deter other potential offenders was ill-founded. On exile as punishment for adultery, see Council of Nablus (1120) c. 5, in Mansi 21:263.
?“Thus in the Levant blame for the military disaster of the Battle of the Bloody Field (1119) was laid on the marital infidelities of Roger of Antioch; Fulcher of Chartres, Hist. 3.3.4, ed. Hagenmeyer, pp. 622-24.
165Burchard, Decretum 17.4-6, 49 (= Ivo, Decretum 8.181 and 9.100, Panormia 6.120), 19 5, in PL 140:919-20, 930-31, 965-66; also Ivo, Decretum 8.256, in PL 161:641.
166Ivo, Decretum 3.14, in PL 161:202.
her, since if he failed to do so, he condoned her offense and might himself be punished.[820]
Rape and Abduction
Despite generations of complaints about the frequency of raptus, the abduction and ravishment of women was still an urgent problem in the reform period.[821] Although raptus continued to mean any type of abduction, whether the victim was sexually molested or not, by the time of Ivo of Chartres, canon law had begun to equate abduction with sexual violation. Ivo cited a letter of his friend and patron, Pope Urban II (1088-99), *n which the pope ruled that the abduction of a woman by a man created a presumption that the perpetrator sexually molested his victim; when apprehended, therefore, the malefactor was obliged to refute this presumption by proof, if he could do so.[822]
Evidently, therefore, by the last decade of the eleventh century the canonists had begun to redefine raptus as a sexual offense. Ivo’s collections also indicate that the victim’s consent to sexual intercourse was becoming an essential element in determining the nature of raptus and the severity of its punishment. [823] The principal penalties that the late eleventh-century canonists visited upon those guilty of raptus were excommunication, infamia, and (according to some) inability to marry the ravished woman, so that the ravisher might not benefit by his crime.[824] Churchmen guilty of raptus lost the benefit of their clerical status; accomplices and accessories to the crime were subject to the same punishments as principals.[825] The penalties increased if the victim was betrothed or married to someone other than her abductor, or if the woman had taken religious vows.[826] Civil authorities also treated rape as a grave offense, but frequently construed it as a crime primarily against the victims father or male guardian rather than as a personal offense against the victim, as canon law did.[827]
The canonists, however, were prepared to recognize the right of sanctuary for a man accused of raptus, should he manage to take refuge in a church, provided that he first released his victim and restored her to her family prior to claiming protection. Once on consecrated ground the abductor obtained a guaranteed immunity from retaliation by the victims family, although he remained subject to ecclesiastical punishment for his deed.[828]
The most vexed problem in the ecclesiastical law concerning raptus during the reform period concerned marriage between the ravisher and his victim. Some authorities maintained that such marriages must be forbidden under all circumstances, even if the victim willingly consented to her abduction and to subsequent marriage with the abductor, while others argued that the possibility of marriage should not be foreclosed, particularly when there had been consent in the first place.[829] On this subject the law in the mid-twelfth century remained unsettled.
But Western authorities in the twelfth century evidently considered forcible rape a less pressing issue than their predecessors had. This lessened concern apparently reflected an alteration in the relations of the sexes. Suitors wishing to win the hand of a lady whose parents opposed their wooing were beginning to find more subtle ways of securing their goal. Where such a suitor a century earlier might have abducted the woman and pressed his suit by force and intimidation, early twelfth-century males seem to have been more inclined to resort to charm, blandishments, and acts of valor to win over the lady’s heart. Ravishment was giving way to seduction as the preferred method of capturing an heiress against her family’s wishes. This change in courting patterns is reflected not only in poetic praise of fin amors, but also in canon law.[830]
Prostitution
Prostitution was another topic of contemporary relevance for canonists of the reform era. The growth of population, the increasing flow of people into towns, the severing of migrants to the towns and cities from their ties with friends and family in their villages of origin, and the greater anonymity that urban life entailed may have made both the practice and patronage of prostitution easier than it was in rural hamlets.[831] Even the armies of warriors under vows during the First Crusade were overrun by harlots, a situation that shocked and alarmed clerical chroniclers. The leaders of the Crusade tried time and again to expell the whores from their camps, but they succeeded only occasionally, and only at times when their forces were in peril. As soon as a crisis ended, loose women reappeared and took up their trade with the soldiery once more; brothels were clearly a normal component of the Crusaders’ camps.[832] Even the appearance in a vision of Jesus, who excoriated the crusaders for their visits to the stews, was unable to put a stop to this traffic.[833] The lavish and numerous bordellos of Byzantium made a lasting impression, too, both on the participants in the Crusade and on those who heard their accounts of the sporting life in the Greek capital.[834] The stories and reminiscences of returning Crusaders probably had only marginal importance, however, for the apparent increase in prostitution in the West from the early twelfth century onward. That development was a product of population growth and changes in social structure in Western Europe, particularly its growing urban sector and rising numbers of women with meager resources and few marketable skills. The experience of the Crusaders with the elaborately organized prostitution industry in Byzantium and the Levant, however, may well have influenced the style of commercial sex in the burgeoning urban areas of the twelfth-century West.
In any case, the canonists of the reform period scoured their authorities to locate condemnations of prostitution and inserted into their collections as many suitable texts as they could find. Church tradition had condemned prostitution in no uncertain terms.[835] Roman law, however, had tolerated the practice, and what was more distressing to the high-minded, had protected the right of prostitutes to keep and enjoy the profits of their trade.[836]
But while Church reform canonists reiterated stock condemnations of prostitution from past authorities, writers of the period also advocated a more novel goal: the reform and rehabilitation of prostitutes. Associated with this zeal for rescuing harlots from a life of sin and leading them instead to salvation was a renewed interest in St. Mary Magdalen in the spiritual literature and liturgical practice of this period. The Magdalen cult was actively patronized by Pope Lco IX and other reform leaders.[837] The impulse to rehabilitate harlots, rather than merely to condemn them, was particularly clear in the decision by Ivo of Chartres to include in his Decretum two canons that encouraged efforts to reform the daughters of joy. The canons not only sought to loosen the hold that pimps and panders had over prostitutes, but also declared it a meritorious act of Christian charity to marry a prostitute in order to redeem her from a life of sin.[838] Perhaps Ivo realized that in order to redeem prostitutes it would be necessary to weaken the power of those who profited most from the operation of brothels. At any rate he culled from his research a number of canons, drawn mainly from Roman sources, attacking the property rights and legal immunity of those who operated houses of ill-fame.[839] Other authorities in the reform period also legislated against pimps and panders.[840]
Sins against Nature
A major moral concern of several influential reform leaders, notably St. Peter Damian, lay in the repression of “sins against nature.” Unnatural sex acts, in Damian’s view, included masturbation, femoral intercourse, anal intercourse, bestiality, and presumably (although he does not explicitly refer to them) fellatio and perhaps cunnilingus as well.[841] Although all of these practices are by definition contraceptive, the issue for Damian was not that these were substitutes for procreative sex, but rather that they were Sodomitical and “against nature,” a phrase that he used time and again in the Book of Gomorrah, the most explicit manifesto against deviant sexuality in reform literature. Damians concern—indeed obsession might not be too strong a word for it—with masturbation, homosexual practices, and other “unnatural” sex acts was not shared or appreciated by other reform leaders. Pope Alexander II (1061-73), who on other issues was a staunch ally of Damian, even tried to suppress the Book of Gomorrah. The pope asked Damian to loan him the manuscript of the work, on the pretext that he wished to have a copy made for his own use; Alexander then locked the manuscript away and refused to return it to the author. Damian was understandably outraged and complained at length in an angry and impassioned letter to two of his curial allies, Cardinals Stephen and Hildebrand (the future Pope Gregory VΠ). After recounting the whole episode and after making a series of scarcely veiled threats about Pope Alexanders likely fate in this life and the next, Damian begged the two cardinals, successfully it seems, to retrieve the Book of Gomorrah and to restore it to its author.[842]
Damian’s detailed and explicit diatribe against “unnatural” vice is unique, but the canonists of his period were also concerned with the issues raised in the Book of Gomorrah. The collections of Burchard and Ivo contained numerous canons condemning sodomy, bestiality, pederasty, and fellatio. They also prescribed penances, many of them severe, for those guilty of these practices.[843]
Sodomy (a term that included all kinds of deviant sex practices, but that was also used in a more specific sense to mean anal sex) drew special attention from legislators in the Crusader kingdom in the Levant. Authorities there decreed that men guilty of sodomy should be burnt to death.[844] Those who voluntarily confessed their guilt and performed the appropriate canonical penance, however, might be spared execution, but were condemned to exile instead. Men who suffered homosexual rape also escaped execution, but were nonetheless required to do canonical penance, presumably because of the ritual pollution that they had suffered.[845]
Canonists of this period also reiterated older penitential condemnations of lesbian relationships.[846] They paid only passing attention to sex with animals,[847] mutual masturbation,[848] and Hansvestitism.[849]
Although Peter Damian argued that solitary masturbation was a type of sodomy, because it was “against nature” and therefore deserved all of the severe punishments visited on sodomy, his view found no following among the canonists.[850] Burchards treatment of masturbation drew entirely on the penitentials and he dealt with it primarily as a matter for confession and penance, rather than as a criminal offense.[851] Ivo had even less to say than Burchard did about masturbation, although he included in his Decretum three brief statements concerning moral responsibility for seminal ejaculation during sleep.[852] [853] One English council during the period took the extraordinary step of classifying all unnatural sex acts as reserved sins, which could not be forgiven by an ordinary priest in confession, but must be referred to the bishop of the diocese for penance and absolution.290 This canon, which accords fully with Peter Damian’s views, seems to be the only instance in which Damian’s rigorist position received explicit support from legislation.