Sexual Behavior in Ancient Rome

Roman Literary Treatments

Roman writers did not necessarily echo the moralistic attitudes of the Stoics and the other philosophical schools. Roman treatments of sexual themes have been described as “extraordinarily dispassionate,” and indeed their discussions of bodily passions often displayed a decidedly matter-of-fact quality.

Martial (ca. a.d. 40-104) wryly noted that lust frequently leads to mistakes. He and other Roman satirists shared a widely held view that sexual pleasure was not only a virtually universal preoccupation of humankind, but also that it was a goal that individuals could appropriately pursue, although they risked making themselves ridiculous in the process.^[63] The public pursuit of sexual sat­isfaction outside of marriage furnished comic and satirical writers with a stock theme. The amused tone of Roman authors faded, however, when they talked about marriage. They considered marriage a serious matter in which sexual fulfillment and affection between the parties played subordinate roles. Roman marriage, at least among the upper classes, was concerned with property, poli­tics, and power; it left little room for the pursuit of emotional satisfaction or sexual cravings.

Married couples among the Roman elite lived in a social system in which the family, as modern societies think of it, did not exist. The Roman familia meant a household, not a family in the modern sense, and households came in a great variety of sizes and shapes. Among the wealthy and powerful, the household often numbered hundreds of persons and things: children, servants, slaves, livestock, and other property were all part of the familia. But the head of household, the paterfamilias, was not part of the familia, although his wife and children were members of it and, like the servants and slaves, oxen and geese, and the rest of the familia, they belonged to the paterfamilias. Among the poor, however, households were apparently small, since they included no slaves or servants and little property. The familia of the humble often consisted simply of a woman and her children. Again, the male head of household was not part of his own familia.^[65]

Roman upper-class men, upon whose activities the literary sources concen­trate, typically sought sexual pleasure outside of marriage, not within it. While the upper-class Roman woman was expected to be a virgin at the time of her first marriage, boys usually received their sexual initiation in early puberty, often from prostitutes. In theory and in law, married men were forbidden to consort with women other than their wives during the republican period of Rome’s history. The offense, however, carried no effective social or legal penal­ties and was generally ignored.

Romans, like most other ancient peoples, accepted concubinage as a basic institution alongside marriage. Concubinage during the imperial period was commonplace at all levels of traditional Roman society. From the early period of the Republic, Romans had viewed concubinage as an alternative to marriage. Most concubinage relationships involved a man of high social standing who co­habited with a woman of low status. The relationship could be terminated at any time by the male partner.^{[68] [69] As Roman society underwent basic changes dur­ing the late Republic, concubinage gradually became an alternative to marriage for single men who wished to remain unmarried but to have regular sexual part­ners. Marriage involved a union between persons of roughly the same social level, and brides or their fathers were expected to furnish dowries as a normal, even indispensable, part of the arrangements. As a result, couples who found it either difficult or impossible to fulfill these conditions might choose instead to live together as lover and concubine. Concubinage was particularly popular among soldiers, who could not marry during their term of service, and with patresfamiliae who lacked the financial resources needed to arrange advan­tageous marriages for their daughters.}

Concubinage carried no moral or social stigma, at least so far as the male partner was concerned. The relationship was accepted as commonplace and it was certainly no disgrace for a man to keep a concubine instead of a wife. The woman in the partnership, however, ranked far below a legitimately married woman. Despite this, talented and witty concubines of high-ranking men fre­quented the highest circles of Imperial society.^[71] Many concubinage relation­ships were entered into simply for the sexual gratification of the man, who could easily discard his concubine of the moment when a more attractive girl caught his eye. Yet evidence also reveals a few unions marked by deep, genu­ine, and long-lasting affection between lover and concubine.^[72]

Prostitution, both male and female, was a flourishing industry throughout Roman history. In the early Republic, Romans made no distinction between a concubine and a female prostitute and used the same term, paelex, indif­ferently to designate a woman involved in any kind of nonmarital sexual rela­tionship.^[73] Gradually, however, the social and economic postion of the con­cubine improved. Differences were noted between long-term relationships outside of marriage and the transient liaisons that characterized prostitution.^[74]

Two classes of prostitutes emerged in late republican and early imperial Rome.

Higher-class prostitutes, described as delictae and pretiosae, were courte­sans, patronized by men of wealth and high social position.^[76] The fact that Latin had at least twenty-five terms for “prostitute” says something about the varie­ties and importance of prostitution in Roman society.^[77]

Not all Roman prostitutes were full-grown men or women; Martial twice re­fers to child prostitution as exceedingly common and derides the efforts of the Emperor Domitian (a.D. 81-96) to outlaw the practice of placing young per­sons in brothels.^[78] Consignment of surplus children to the stews was a common resort of the poor at Rome and elsewhere in the Empire. For indigent parents it represented a means of earning money from unwanted progeny, at the same time reducing the drain on household resources.

How much Roman prostitutes earned from their trade is difficult to deter­mine, for fees varied enormously between different classes of harlots. Martial mentions a payment of two gold pieces to a prostitute named Galla, but also indicates that some fatuous customers gave her five times as much.^[79] Certainly some prostitutes accumulated sufficient savings to furnish attractive dowries when they married, but they were probably exceptional. Typical prostitutes seem to have made not much more than a living wage from their exertions.^[80]

Differences in fee scales among different prostitutes reflected differences in social background; prostitutes from higher-class families usually fared better than their humbler coworkers.

The married man who patronized prostitutes or kept a concubine was not subject, by and large, either to moral or legal sanctions in Roman society. The husband who had an affair with another man’s wife might be slain if he were surprised in the act by the womans father, although the Lex Julia de adulteriis (18 B. c.) stringently restricted this right to certain specific circumstances. The husband who slew his wife’s lover was guilty of murder, but the usual penalties for homicide might be reduced in these cases. Adultery, however, was pri­marily a female offense, and Roman law on this subject reflected the sentiments of upper-class Roman males.^[82]

Romans generally tolerated a wide variety of other sexual practices. Mastur­bation by men or women was regarded as a blameless but unsatisfactory sub­stitute for intercourse and carried no moral stigma, although the adult mastur­bator was sometimes ridiculed as immature or childish.^[83] Homosexual relations were commonplace and likewise carried no social or moral opprobrium, with two important exceptions. Romans considered it disgraceful for a free man to adopt the passive role in anal intercourse. No disapproval attached to the man who played the active part in the relationship, and upper-class Roman males with a taste for sodomy were expected to recruit slaves or household boys to service their sexual desires.^[84] The passive role in fellatio was even more strongly disapproved; again, the objection was not to the act itself, but to what was felt to be the incongruity of a free man acting the role customarily assigned to a slave or servant boy. No such disapproval appears to have attached to the man who performed cunnilingus on a woman.^[85] Lesbian relationships excited greater opprobrium than did male homosexual liaisons, perhaps because upper­class Roman men found lesbianism threatening to their own sexual self-esteem.^[86] Male sexual prowess was also linked to the size of the penis, and the man who boasted a large member was admired and envied by his more modestly en­dowed brethren.^[87] Other sexual attitudes that figure in Roman literary sources have to do with men who preferred older women as their sex partners, a taste that Martial considered ludicrous.^[88] Similarly scorned were Roman women who chose their lovers from the ranks of aliens and foreigners, whom conservative Romans regarded with contempt.^[89] Again, it is not difficult to see in this latter attitude a defensive reaction to the sexual threat that foreign males might pose to Roman self-esteem and sexual prowess.^[90]

Roman Law

Roman literary sources expressed skepticism that sexual activities should or even could be regulated successfully by law. Sex was too personal and intimate, sexual habits too varied, and ideas about sexual morality too diverse for the for­mal processes of the legal system to deal adequately and fairly with them at all. Martial, the sharpest and most perceptive critic of first century Roman sexual mores, ridiculed efforts to defend the sanctity of marriage by fencing it about with legal walls and barriers.^[91] Resides, he pointed out, it was absurd to enact elaborate prohibitions of adultery and other extramarital sex when divorce was so simple and so common that a woman who was not yet thirty had already mar­ried ten husbands.^[92]

Despite such reservations, Roman lawmakers and the learned jurists (many of them Stoics) who elaborated legal doctrine during the classical period of Ro­man law incorporated into the legal system numerous regulations to curb the sexual practices of Rome’s subjects.

Roman law concerning sexual matters is permeated by symbols of patriarchal dominance. Legislators and jurists assumed that women were at the service of men, ministered to male pleasure, and accepted male gratification as their pri­mary goal. Roman lawmakers, like Roman poets and orators, treated women as in some measure less fully human than adult males; they were particularly shocked whem women sought sexual pleasure for themselves. Classical Roman law reflected the beliefs and opinions current among the dominant male ruling groups.^[93] We are best informed about the restrictions imposed on the sexual activities of the upper classes of Roman society, but there is evidence that lower-class womens sexual behavior was also curbed by legal restrictions. In Ro­man Egypt, for example, employers required their wet nurses to abstain from sex, either marital or nonmarital, during the term for which they were en­gaged. Wet-nursing contracts often featured stringent penalty clauses for non­observance of the ban on sexual intercourse.^[94]

Fornication

The basic category of sexual offence under Roman law was stuprum, that is, habitual sexual intercourse with an unmarried, free woman.^[95] Stuprum, in other words, meant fornication, but only certain kinds of fornication. Fornica­tion with slaves or servant girls did not count as stuprum, nor did intercourse with prostitutes or other women of degraded status.^[96] Papinian (d. a.d. 212) in­sisted that stuprum must be distinguished from adultery. Adultery involved sex acts between a married woman and someone other than her husband, while stuprum was restricted to intercourse between any man, married or not, and an unmarried girl or widow.^[97] Intercourse with a concubine was also excepted from the definition of stuprum according to the jurist Modestinus (fl. ca. A.D. 222-44), who somewhat inconsistently excluded homosexual intercourse from his definition of stuprum in one sentence and then appeared to include it in the next.^[98] The basic statute on sexual offenses, the Lex Julia de adulteriis (18 B.c.) was vague and sweeping in its definition of illicit sexual unions; under its terms all sexual copulation, save for marital intercourse, might have been classed as stuprum.^[99] The penalties prescribed for stuprum in the Lex Julia were severe; they included loss of half of one’s property for persons who were classed as hon­esti; humiles, on the other hand, might be sentenced upon conviction to corpo­ral punishment and exile.^[100]

Both the Lex Julia and the interpretations of it by the jurists dealt differently with men and women in their treatment of fornication. Men could have sexual relations with prostitutes and concubines without penalty; they were debarred only from illicit intercourse with women of the higher classes. Upper-class women, however, were forbidden to have sexual intercourse with anyone at all, save for their husbands. The law was far from an abstract statement of ideals. Augustus himself penalized his daughter and one of his granddaughters for stu­prum.^[101] Some women of the upper classes so strongly resented the legal limita­tions on their sex lives that they registered with the magistrates as prostitutes in order to free themselves from harassment because of their nonmarital sexual activities. But such protests carried serious handicaps: registered prostitutes were barred from receiving legacies or inheritances and thus cut off from a share in familial property. The loophole in the law that enabled respectable women to escape punishment for stuprum was, in any event, closed by Tiberius (a.d. 14-37), who forbade upper-class women to enroll as prostitutes.^{[102] [103]}

Adultery

The Lex Julia itself did not define adultery or differentiate it clearly from stuprum." The jurists assumed that adultery was a married womans crime, while stuprum was a male offense. The married man who had sexual relations with a woman other than his wife might be committing stuprum, but certainly was not committing adultery. By contrast, the married woman who had sexual relations with anyone other than her husband was guilty of adultery, whether or not her illicit sexual partner was married.^[104] Married women, moreover, were specifically denied legal redress against their husbands because of their husbands’ extramarital sexual adventures.^[105]

The Lex Julia sought to substitute punishment by public judicial process for private vengeance in adultery cases. Prior to the adoption of the Augustan statute the law had dealt rather leniently with adulterous women.^[106] Roman practice, however, was harsher than the law and had condoned the killing of a wife if her husband caught her in an adulterous relationship. Roman cuckolds sometimes killed their wives’ lovers as well. The LexJulia sought to limit the wronged husband s jus occidendi by providing that if a married man caught his wife in the act of intercourse with another man, the husband could kill his wife’s lover, provided that he did so at once; but the law forbade the husband to kill the wife. Alternatively, the injured husband could detain his wife’s paramour for a period of up to twenty hours; at the end of this time, he must release his prisoner, who presumably might by then be rather the worse for wear. The Lex Julia accorded extensive rights to the father of an adulterous woman should he discover the guilty pair in the act of adultery. The father in these circumstances had the right to kill both his daughter and her lover, but he must slay both of them, not just one or the other, and he must do it immediately. The father, like the injured husband, had the alternative right to detain the adulterer for a twenty-hour period.^[107]

These complicated and rather odd-sounding provisions were designed to dis­courage informal self-help in adultery cases and to establish limits to the ven­geance that the outraged male relatives of an adulteress could lawfully wreak upon the unfaithful wife and her illicit consort. Husbands or fathers who ex­ceeded the strict limits that the Lex Julia imposed upon their wrath were liable to prosecution, although the penalties that might be imposed upon them under these circumstances were lighter than the normal sanctions for acts of violence. A husband who, contrary to the Lex Julia, killed his adulterous wife after find­ing her inflagrante delicto, for example, was spared the death penalty, but was liable to perpetual exile and demotion in social rank.^[108]

Not all married women were legally capable of committing adultery. The wife of a slave, for example, could not commit adultery since marital unions among slaves lacked the dignity of legitimate marriage in a proper legal sense.^[109] A concubine, for the same reason, was not guilty of adultery if she was un­faithful to her mate; some jurists held that infidelities committed by a woman who lived apart from her husband should not be classified as adultery.^[110] More­over, if a husband failed to repudiate his wife after discovering that she was having an affair with someone else, he was barred from bringing a criminal ac­tion against her for adultery and became liable for punishment himself for pro­moting immorality.^[111] Yet, a married woman who wished to take a lover could not protect herself against an accusation of adultery by becoming the pro­prietress of a brothel or a theater.^{[112] [113] The landlord who rented a property to per­sons who intended to use it for the purpose of committing adultery also became a party to their crime, subject to the same penalties as the principals.108 Those who acted as go-betweens for an adulterous couple or who otherwise aided or abetted an adulterous union were also subject to punishment.[114] The Emperor Alexander Severus (a.d. 222-35) imposed a five-year statute of limitations upon prosecutions for adultery and this apparently applied to accessories as well as to principals in the crime.[115] An adulteress who, after a divorce from her husband, attempted to marry her partner in adultery faced legal problems in doing so, although such marriages were not explicitly forbidden until after Christianity had become the established religion of the Roman state.[116]}

Marriage

Roman law punished stuprum and adulterium and ignored sexual relations between upper-class men and low-status women such as slaves or prostitutes, but it extended positive protection to sexual intercourse between married per­sons. Romans had traditionally considered marriage a private arrangement, and it became subject to legal definition and control only in the time of Augustus.^[117] Romans were reluctant to allow public authorities to interfere in such a private and domestic matter as marriage, and this attitude presumably accounts for some peculiarities of Roman marriage law.^[118]

The classical legal definition of Roman marriage was formulated by Modes­tinus: “Marriage is the joining of a man and a woman and their union for life by divine and human law.”^[119] While this definition has rightly been described as juristically unworkable, it does enunciate some important elements in the Ro­man notion of what marriage involved.^[120] Modestinus s formulation implied that mutual consent of the parties was required and hence that marriage was a bilat­eral contract, notions that were developed more explicitly elsewhere in the law.^[121] The statement that marriage was a permanent union was not intended to imply the later Christian notion of a lifelong indissoluble marriage that made any subsequent marriage void so long as the first spouse survived. Rather, the classical jurists meant simply that the parties at the time of marriage intended to live together on a lasting basis.^[122] The couple’s commonality of life that Mod­estinus described as a sharing referred both to an attitude of mind, a belief that the married partners formed a single social unit, and also to the notion that the couple might hold property jointly for their common use and enjoyment.^[123]

Otherjurists fleshed out Modestinuss definition more fully. The intention to have legitimate children was a central feature of classical Roman marriage law, and the jurists asserted that the procreation and education of children was the ultimate purpose of marriage.^[124] Other texts make it clear that the feelings and attitudes of the parties were critical constitutive elements in Roman marriage, particularly affectio maritalis and honor matrimonii, concepts that we shall shortly discuss in greater detail.^[125]

Roman marriage began with betrothal, an enforceable agreement between the heads of two households concerning the future union of two persons—a member from each group. The agreement normally involved arrangements for a dowry (dotum) from the future bride’s paterfamilias and a wedding gift (donatio propter nuptias) from the groom’s paterfamilias, in order to provide an eco­nomic basis for the marriage. The betrothal, finalized by a ritual kiss, was bind­ing on the parties and their parents. The future bride and groom were forbid­den to marry anyone other than the person to whom they had been betrothed. The agreement terminated automatically at the end of two years if the parties had not married by that time, although it could be extended for good cause. The betrothal could be ended prior to the expiry of the two-year term by mu­tual consent of the parties and their fathers or guardians.^[126] The consent of the father of an unemancipated child was essential to betrothal, although the con­sent of a woman’s guardian was not required.^[127] The woman’s consent to her be­trothal was expected but not absolutely demanded.^{[128] [129]}

Marriage normally followed soon after betrothal. It appears that girls often married in their early or mid-teens, for numerous inscriptions commemorate married women who died before the age of twenty. Roman men, on the other hand, often delayed marriage well into their twenties or thirties, and many of them never married at all.¹²²⁵ The consent of both the bride and the groom, as well as their parents, was required for the legal validity of marriage.^[130] Consent was, in fact, the sole essential requirement for Roman marriage; but this should not be taken to mean that the other usual and customary elements of the mar­riage rites were irrelevant or immaterial. Betrothal, dowry agreement, the cer­emonial procession of the bride and her attendants to the groom’s house, the wedding feast, and other rituals constituted external manifestations of consent. While these accessory actions were not essential, they nonetheless constituted vitally important evidence in order to prove consent to marriage.^[131]

Also vital to proof of matrimonial consent was what Roman jurists called honor matrimonii, the decorum with which a husband treated his wife and the social dignity that he accorded her.^[132] Linked to honor matrimonii was the re­lated concept of affectio maritalis, the bond that joined husband to wife, a tie that Roman jurists believed distinguished a true marital union from concubinage and other types of cohabitation.^{[133] [134] Honor matrimonii was taken to be a visible and verifiable sign of the inward feeling that constituted affectio maritalis.139 Roman jurists had difficulty with questions that involved intangible feelings, in large part because they raised such thorny problems of evidence; the law none­theless accorded feelings and intentions legal importance in a number of differ­ent contexts. Ulpian, when dealing with a troublesome issue concerning the emancipation of slaves, observed that “We must suppose that the Aelian and Sentian law gave full scope to proper feelings (iustis affectionibus), but not in­deed to infatuations (deliciis).”[135] Similarly marital affection and its expression in the form of matrimonial respect played decisive roles in Roman marriage law. Marriage in Roman law was virtually a formless transaction, for none of the customary ceremonies and usages connected with its celebration was required for the creation of a valid union.[136] Marital affection and matrimonial honor, however, were crucial elements in determining whether or not a marriage existed between two persons who were living together. That determination, in turn, had far-reaching practical consequences for the property rights of the par­ties, for inheritance claims, and for the status and property of the children of the union. So long as marital affection existed between the parties, they were married; if marital affection was absent, there was no marriage.[137] It was not even necessary for the parties to live together; so long as marital affection existed between them, they were married, regardless of whether they co­habited or not.[138] Sexual union and consummation of the marriage were no more essential in Roman matrimonial law than a wedding cake is in ours.}

Roman law conceived of marriage as a contract absolute: either it existed or it did not. Roman law did not recognize conditional marriage, where the con­tract became effective only upon fulfillment of some condition subsequent to the agreement itself.^[139] Marriage was also a free contract; no one could legally be compelled to contract, or for that matter to dissolve, a marriage. Marital consent given under duress was insufficient to create a lawful union.^[140]

Classical Roman law had complex rules that limited the choice of marital partners. Marriages between close relatives, whether by blood (consanguinity) or by marriage (affinity), were prohibited and the law spelled out the forbidden degrees of relationship in great detail.^{[141] [142] In the classical law, intercourse be­tween a man and woman prior to marriage did not create a legal affinity be­tween them and hence was no bar to their marriage, even if the premarital in­tercourse was adulterous.133 One large class of people was forbidden to marry at all: the sexual unions of slaves were defined as contubernium,rather than mat­rimony. Contubernium was not protected by law and created no juridical rela­tionship between the parties; hence it provided no basis for inheritance or other property claims, nor could a slave owner be forbidden to break up such a union, for example by selling one of the partners to a distant owner.[143]}

Marriages of free persons were subject to a number of further restrictions, in addition to the ones already discussed. A free man, for instance, was forbidden to marry a harlot, an actress, or other loose woman; senators and their children were forbidden to marry women of low birth, although a simple free man could marry such a woman. Likewise actors, men who practiced the ludicri artes, were ineligible to marry women of the senatorial class. Women over the age of fifty could not marry at all, although they could become concubines.^[144] While remarriage following divorce or the death of a first spouse was allowed for most people, religious law as late as the Principate required the wives of the flamines of Jupiter to be married only once, and a flamen who married a widow was barred from exercising his priesthood.^[145] Men who suffered from sexual impo­tence might contract legitimate marriages despite their handicap. Males who had been castrated, however, were legally barred from marrying.^[146] Additional limitations on the right to marry resulted from the holding of certain offices. Imperial officials were forbidden to marry women from the province in which they held office, a disability that extended also to their sons.^[147] Guardians were likewise forbidden to marry the women under their protection.^[148]

Although Roman marriage centered upon a consensual agreement for which dowry was not required, dowry agreements were a customary feature of mar­riages among persons of property. By the first century of the Christian era the upper classes almost invariably prepared a written dotal instrument as part of the formalities of marriage.^[149] Dowry strongly implied marriage; indeed, dowry without marriage was legally impossible. Any showing that a dowry had been given created a presumption that a marriage had been agreed upon.^[150] After marriage, furthermore, gifts of property between husband and wife were le­gally no longer possible, so that any exchange of property between man and wife was either dowry or it was nothing.^[151] Since property transactions were usually easier to prove than intentions, determination of marital status almost invariably hinged on a scrutiny of the property transfers between the partners.

Roman law assumed monogamy; so strong and basic was this assumption that classical Roman law simply ignored the possibility of bigamy.^[152] Bigamy as a specific offense was introduced into the law only at a relatively late period, very likely under Christian influence.^[153] When the law did begin to take cognizance of bigamy, the offense subjected the guilty parties to infamia. This legal taint made the bigamist incapable of holding public office or exercising any position of trust or honor, from appearing in the courts, and from exercising a variety of legal rights. Continued existence of a prior legitimate union thus became an absolute bar to marriage in Roman law. ^la'

Divorce and Remarriage

Classical Roman law generally allowed remarriage following the termination of a prior marriage by death or divorce. The law did, however, subject remarriage to certain limitations designed to safeguard the property interests of the chil­dren of an earlier marriage.¹³¹ A difficult problem occurred when the first spouse disappeared under circumstances that made it probable that he or she was dead, but where death could not be proved. This situation arose most com­monly when a husband serving in the army was reported missing in action. In this situation, classical law allowed remarriage of the presumed widow; if the first husband reappeared he could not bring action against his wife for adultery or bigamy, provided that she had remarried in good faith.¹³² The second mar­riage in these circumstances was held to terminate the earlier one because affectio maritalis in the first marriage had ceased.^{[154] [155] [156] [157]}

Married Romans had a legal obligation to support their children, and the obligation extended to illegitimate offspring, where paternity could be proved.^[158] Aside from support, however, classical law did not treat the bastard child as a descendant of its father; an illegitimate child’s relationship to its mother was the same as that of a legitimate child. Concern for the welfare of bastards and meth­ods of legitimizing them began to assume prominence in Roman law only after the reign of Constantine (a.d. 313-337)^[159]

There is no evidence that Roman law ever forbade divorce, but divorces were apparently rare in early Roman history. The first known Roman divorce is said to have been that of Spurius Carvilius Ruga, who repudiated his wife in 230 B.c. As late as the time of Cicero (106-43 B.C.) the law required no special procedure for divorce actions, although certain customary formalities were usually observed and had a long history prior to Cicero’s day.^[160] A standardized divorce procedure first appeared in the period of Augustus. This procedure in­volved an oral repudiation of one spouse by the other in the presence of seven witnesses; written repudiation did not become obligatory until much later.^[161] Informal separation and de facto divorce without legal formalities also con­tinued to be common far into the imperial period.^[162]

Classical Roman divorce law centered primarily on the property conse­quences of divorce and the division of goods between the spouses at the termi­nation of their marriage. Although marriage was deemed to cease when marital affection ended, the property division required concrete action to disentangle the estates of the divorcing couple.^[163]

Formal divorce was advantageous for the wife because it protected her from prosecution for adultery if she subsequently remarried during the lifetime of her first husband. Divorce terminated sexual rights between the couple, al­though until she remarried, a divorcee could be prosecuted by her former hus­band for sexual transgressions that had occurred prior to their divorce.^[164] Classi­cal law required no statement of specific grounds for divorce, although certain grounds were commonly understood to furnish an adequate basis for repudiat­ing a spouse. Among these were adultery,^[165] capture or enslavement of either spouse,^{[166] [167] sexual impotence,166 and insanity.[168]}

Concubinage

Along with marriage, and in some senses in competition with it, Roman law recognized concubinage. In the very ancient period the law had drawn no dis­tinction between paelicatus with a concubine and with a prostitute. Only late in the Republic did legal texts begin to differentiate concubinage from prostitu­tion.^[169] Literary texts remarked upon the contrast much earlier—Plautus (d. 184 B.C.?) was apparently the first to use the term concubina, and in his comedies paelices normally refer to women involved in relatively transitory af­fairs, while long-term sex partners are called concubines.^[170]

Legal systems have usually dealt with concubinage in one of three ways. In some systems concubinage is a tolerated institution, often an inferior type of marriage; other systems make concubinage an offense and subject participants in such unions to penalties. The third alternative is to ignore the matter alto­gether. ^[171] Early Roman law had opted for the last policy, but the adoption of the LexJulia de adulteriis in 18 B.C. made it necessary to determine whether inter­course with a concubine constituted stuprum or not. Roman lawmakers chose to exempt concubinage relationships from the penalties for stuprum; con­cubinage thus became a legally tolerated institution.^[172] When concubinage be­came subject to legal definition and regulation, it received a degree of legal protection as well.^[173] Under the Augustan legislation, according to the inter­pretation that Paulus (fl. ca. A.D. 210) put on it, concubinage differed from mar­riage only in the intention of the parties.^[174] Like marriage, concubinage was a long-term licit sexual relationship.^[175] The lover might privately consider his concubine to be his wife, even though he was legally unable to marry her be­cause of differences in social status or for other reasons of public policy.^[176] The concubine, according to Pauluss commentary on the Lex Julia et Papia Poppea, was a woman whom a man kept in his house in place of a wife.^[177]

Concubinage normally arose in one of three situations in Roman society. First, a continuing sexual liaison between two parties might constitute con­cubinage because marriage between the parties was legally impossible. This was true of unions between free men and actresses, adulteresses, convicted criminals, prostitutes, or women over the age of fifty. Second, there were cases of presumed concubinage, in which the law treated a relationship as con­cubinage, regardless of the intentions or beliefs of the parties—this happened with relationships between freeborn men and freedwomen or women of ob­scure origin. Third, there was voluntary concubinage; that is, a union between a free man and a woman who was also free in the eyes of the law, where the parties could legally have married one another but, for whatever reason, chose not to do so.^[178]

The distinction between wife and concubine thus rested largely but not ex­clusively on the intentions of the parties.^[179] Over time the gap between mar­riage and concubinage grew more tenuous, and concubinage tended to become in effect an inferior type of marriage, one in which the woman had fewer rights and less legal protection than a legitimate wife. Even in this regard the prac­tical distinctions between wife and concubine gradually diminished.^[180]

The touchstone for distinguishing marriage from concubinage was marital affection. Where there was marital affection a marriage existed in some sense, even though it might be one discouraged or disallowed by law (matrimonium iniustum); if marital affection was absent, the relationship was concubinage.^[181] Moreover, in late Roman law, concubinage might develop into marriage if the couple came to regard one another with maritalis affectio. The phrase “marital affection,” it must be emphasised, had a limited technical meaning: it denoted the special kind of regard that a husband has for his wife and was distinct from the other kinds of affectio that he might feel toward his children, his slaves, his friends, or even his concubine.^[182]

Certain presumptions of fact also entered into the determination of the pre­cise status of a sexual relationship in Roman law. The law assumed that a free woman who lived with a free man was married to him, unless there was evi­dence that she made her living by prostitution.^[183] If a senator lived with a freed­woman, however, there was a contrary presumption that the relationship was concubinage, rather than a matrimonium iniustum, at least unless or until he lost his senatorial position.^[184]

As concubinage came to be legally tolerated, it also became subject to regula­tions similar to those imposed upon marriage. A married man could not take a concubine, just as he could not take a second wife, until his first marriage ended.^{[185] [186] This did not mean, of course, that Roman husbands had no sexual partners other than their wives; but those partners were classed as paelices, not concubinae.18a And a mans decision to retain a concubine, in consequence, was held to disprove his intention to marry another woman.[187] As in marriage, the concubine must have reached the age of puberty[188] and must not be a close relative of her lover.[189] Just as tutors were forbidden to marry their wards, they were also forbidden to take them as concubines.[190] Likewise the law excluded from concubinage status a woman who had previously been the concubine of a close relative.[191]}

The concubine was obliged to be sexually faithful to her patron, although he was not obliged to be faithful to her. Sexual infidelity by a concubine might be punished as adultery under the Lex Julia de adulteriis.^{[192] [193] Similarly, a concubine who left one lover for another was not honesta.18f, While the patron had a right to his concubines services, she had virtually no claims on him. She had, in fact, most of the obligations, but none of the rights, of a legitimate wife. The woman did not form part of her consorts legal familia, she could be dismissed without formality, she enjoyed none of the honors that a wife was entitled to, nor did she have any claims to share in her patron’s estate after his death.[194] One of the few economic protections that the law afforded her was a right to retain the gifts that she received—unlike a wife, a concubine could legally receive gifts from her lover during their relationship.[195] Neither her consort nor his heirs had a right to recover those from her.[196] If the concubine took property without per­mission, however, she could be prosecuted as a thief.[197]}

The children of a concubine belonged to her and she had a right to their custody, although she lacked many of the supervisory rights that a legal wife enjoyed over her offspring.^[198] Not only did a concubine have a right to have her children with her, but she also bore a positive obligation to support them and to provide them with food and other necessities. The father of progeny by a con­cubine, in contrast, had minimal obligations toward them since they were not part of his legal familia for inheritance and other purposes.^[199]

Despite their legal disabilities, some Roman concubines enjoyed a consider­able measure of honor and devotion from their consorts. One Cocceus Cas­sianus, for example, a man of senatorial rank, was so attached to his concubine, Rufina, that he left his estate to her in his will.^[200] Even Roman bankruptcy law was so structured that insolvent men were permitted to retain slaves whom they held in affection; the purpose, almost certainly, was to allow the bankrupt to keep his concubine.^[201] Concubines came to be such a normal part of Roman society that Alexander Severus (a.D. 222—235) ^was said to have ordered that every unmarried provincial governor be furnished with a concubine at public expense as one of the necessities of life.^[202]

Prostitution

Early Roman law, as previously noted, did not distinguish concubines from prostitutes, but the changes in the concubine’s status that we have surveyed helped to clarify, if not to improve, the prostitute’s status as well. Roman law was generally loath to admit that it was licit for respectable women to have ex­tramarital sex, but prostitutes were by definition not respectable, and hence their sexual habits were not a matter of great concern. While the concubine slowly acquired some legal protection and concubinage gradually rose to the rank of an inferior type of marriage, the prostitute’s legal status, conversely, remained depressed and degraded.^[203]

The prostitute in Roman law was a man or woman who was available to any­one who wished to have sex without any ties of sentiment, affection, or commit­ment.^[204] The law did not specify that payment was required in order to qualify these transactions as prostitution; hence the loose woman who gave sexual favors freely was just as much a prostitute as the pretty boy who demanded a fee in return for his services. This emphasis on indiscriminate availability as the determining characteristic of prostitution became fundamental for later civil- law definitions of the term. Prostitution itself was no crime, and no penalties attached to sex acts with a harlot.^[205] Indeed, the pagan religious calendar con­tained festivals dedicated to prostitutes of both sexes: according to the Fasti Praenesti, the twenty-fifth of April was the feast day for male prostitutes, while the preceding day was sacred to female prostitutes.^[206]

Sexual relations with a prostitute did not constitute stuprum,^[207] but in classi­cal law, sexual relations with a married prostitute might be prosecuted as adul­tery.^[208] A rescript of Diocletian (a.d. 284-305) in 290 changed this policy, how­ever, and provided that thenceforth no prosecution would be admitted for intercourse with a married woman who practiced as a prostitute.^[209]

Prostitution in Rome necessarily implied moral and social degradation {pro­brositas) not only because of the harlot’s sexual promiscuity, but also because of her way of life. The same type of social debasement was imputed to actresses and musicians, for example, as to prostitutes. To be classified as probrosa, a woman’s turpitude must be manifest or notorious; a clandestine prostitute who accepted an occasional client on the sly might not be considered a femina pro­brosa. The licentious, irregular way of life that Romans considered typical of harlots was in itself sufficient to establish a presumption that persons who lived like that were prostitutes.^[210] The law likewise inferred that anyone who lived in a brothel or served as a waitress in a tavern was a prostitute.^[211]

While many, perhaps most, Roman prostitutes were freedwomen, foreigners, or slaves and thus marginal to the social hierarchy, some free women and even women of the senatorial class prostituted themselves. A free woman was en­titled to a presumption that she was not a concubine or prostitute, unless she openly and publicly offered herself for hire.^[212] The woman who did so lost status and was consigned to the marginal classes with whom she associated herself. There was clearly a feeling that a free woman who became a prostitute betrayed the social order and the class into which she had been born. This was especially true when the daughters of senators took up prostitution or such allied occupa­tions as acting, singing, dancing, or public entertainment. Such women were socially degraded and stripped of the privileges that belonged to the senatorial order.^[213]

Roman law was highly critical of married men who tolerated sexual promis­cuity in their wives. The husband of an adulteress was considered an accom­plice in her crime unless he took immediate action against her once he learned of her extramarital exploits.^[214] If, instead of repudiating his erring spouse, he forgave her and sought a reconciliation, the cuckold was condemned as a pan­der (leno) and subjected to the social and criminal penalties attached to those who promoted prostitution.^[215] Pandering (Ienocinium) consisted in fostering and facilitating the practice of prostitution by providing housing for prostitutes, managing their business matters, or soliciting clients for them.^[216] Panders, pimps, and brothelkeepers were classed as infames; this entailed loss of most social and civic privileges and also seriously limited their capacity to inherit property.^[217]

Although a person need not accept money in exchange for his or her services in order to be regarded as a prostitute, most Roman prostitutes doubtless ex­pected to be paid and lived on the income from their clients.^[218] In some impor­tant ways the law restricted the property rights of harlots. The prostitute was deprived of inheritance rights and could not succeed to her parents’ estate.^[219] Nor could she inherit anything under the will of a soldier on active duty, even though Roman lawyers usually construed wills of this kind generously in order to give equitable effect to the testators intentions.^[220] Yet in other ways the law protected the prostitute’s right to money or other goods that she received for her sexual services. While the jurists disapproved of the prostitute’s activities and condemned her degrading life, they held that she did no harm in accepting money. The prostitute’s title to her earnings was legally protected and the client who regretted his generosity had no right to reclaim the fees he had paid.^[221] Nevertheless, the law provided no protection to the prostitute’s person: if a cli­ent abused her or ravished her by force, she had no legal redress against him, according to Ulpian (ca. a.d. 160-228) because the client’s motive was lust, not greed. So, too, if a client broke down the door of a brothel in his eagerness to bed a harlot, he incurred no liability for goods stolen by thieves who thereby gained access to the premises.^[222]

Roman law reflected public policy, too, in imposing restraints upon those who procured girls or boys for a life of prostitution. Masters were forbidden to put their female slaves to work as prostitutes, unless the slave had been a pros­titute by trade prior to enslavement. The slave who was forced into prostitution had redress against her owner and could secure freedom upon showing that she had been wrongfully prostituted.^[223] Likewise a servant girl who was not a slave but who was held as security for the debts of her employer could not be forced into prostitution by the person who held her. If an attempt was made to pros­titute her, she had a right to emancipation.^[224] Contracts for the sale of slaves sometimes included clauses that barred the purchaser from prostituting the slave after purchase. If the buyer broke his word, the seller had a right to re­cover damages for injury, as well as for breach of contract.^[225]

Roman jurists were anxious to sharpen the social distinctions between pros-

titutes and respectable women. A passage attributed to Ulpian points up this concern: it prohibits matrons from dressing in the kinds of clothing favored by women of ill-fame—presumably this meant enticing, sexy garments that were felt to be unbecoming to women of high rank. Perhaps, too, Ulpians prohibition sought to avoid embarrassing and distasteful encounters between respectable women and would-be clients who might mistake them for strumpets.²²² Similar desires to maintain dignity and social distinctions, as well as to avoid giving the appearance of respectability to the prostitute’s trade, presumably underlay an­other passage in Ulpian. In the midst of a discussion of arbitration procedure, Ulpian declared that a party to a lawsuit could not be required to appear before an arbitrator in a brothel and should suffer no injury to his interests by failure to respond to a summons to appear in such an inappropriate venue.²²³

Raptus

Early Roman law appears to have tolerated rape—at least surviving legal documents do not suggest that forcible sex was severely punished. This, may have reflected religious values as well as social conditions in the early Republic, for Greco-Roman paganism depicted the gods as practicing rape with lamen­table frequency. Whether these legends simply embodied male aggressive fan­tasies or whether they reflected the realities of early Roman society is difficult to say.²²⁴ In any event, society’s tolerance of sex by force waned during the late Republic; during the early imperial period forcible ravishment became a se­rious offense. The praetorian edict had outlawed property transactions accom­plished by force and fear²²⁵ and Augustan legislation, especially the Lex Iulia de vi publica, extended the proscription to sexual relations. The law imposed capi­tal punishment upon those who “ravished a boy or a woman or anyone through force.”²²⁶ Successful seduction of minors, when accomplished by persuasion and blandishments, rather than by crude force, was also punishable by death, while an unsuccessful attempt to seduce a minor merited the milder penalty of exile.²²⁷

“Dig. 47.10.15.15 (Ulpian). Antonio Guarino, “Ineptiae iuris romani,” in Daube Noster: Essays in Legal Historyfor David Daube, ed. Alan Watson (Edinburgh and Lon­don: Scottish Academic Press, 1974), pp. 126-28, argues that the text has been cor­rupted in transmission and that Ulpian originally meant to prohibit the wearing of lascivious garb by slave girls. At some point in the post-classical period, according to Guarino, the text was altered to forbid the wearing of such garments by matrons. Guarino suggests that the Empress Theodora (d. 548) may have been responsible for this alteration.

²²³Dig. 4.8.21.11 (Ulpian).

²²⁴Pomeroy, Goddesses, pp. 8, 12; A. Bride, “Rapt (Empechement de),” in Diction- naire de theologie catholique, ed. A. Vacant et al., 15 vols. in 30 (Paris: Letouzey et Ane, 1909-50; hereafter cited as DTC) 13/2:1666.

²²⁵Dig. 4.2.1 (Ulpian).

²²⁶Dig. 48.6.3.4 (Marcianus); Mestieri, Estudop. 12.

²²⁷ Dig. 47.11.1 (Paulus).

Raptus in Roman terminology included forcible abduction as well as forcible sexual relations. The emphasis in the law relating to raptus generally centered on the damage that the household suffered, rather than on the personal hurt and injury done to the victim.^[226] It is characteristic of the Roman attitude to­ward raptus that forcible ravishment of a male or female servant gave the injured party’s master a right to an action for damages; in general the father, employer, or owner of the victim of rape had a choice between seeking compen­sation for damages or criminal penalties for the offense.^[227]

Paulus defined the force necessary to constitute raptus as “an assult that can­not be repelled,”^[228] while Ulpian described the fear that a victim must experi­ence in order to qualify the attack as rape as “mental alarm by reason of present or future danger. ”^[229] Either abduction or sexual relations procured by force or fear, or any combination of these elements, counted as raptus. The crime, as Marcian (fl. ca. A. D. 250) noted, was more serious and more severely punished than adultery.^[230] Although classical Roman law severely restricted the subject’s right to self-help against an attacker, a specific exception permitted any person to resist and even to kill without penalty an assailant who sought to ravish the resister or a member of his household.^[231]

Latin terminology, however, often renders the meaning of Roman law on raptus ambiguous. Ravishment sometimes consisted in the abduction of a girl from her parental home by a suitor of whom her father or guardian disapproved; in other words, what was sometimes at issue in actions for raptus was what we would call elopement. The importunate suitor who eloped with his sweetheart against her father’s wishes was subject, in theory at least, to the same punish­ment as the genuine rapist with a knife in a back alley. The fact that the suitor’s victim consented to his actions, or even desired them, might mitigate the pen­alty the abductor received, but his deeds exposed him to harsh reprisals from his intended wife’s paterfamilias. If he escaped the most extreme penalties for his act, however, the admirer could still marry his beloved, provided that she freely consented to the union.^[232]

Homosexuality

Roman society was not especially tolerant of gay sex, but the law did not impose special penalties upon same-sex relationships.^[233] Instead, Roman legis­lation subjected homosexual activities to most of the same restrictions that it

Conclusions

imposed on heterosexual acts. The Lex Scantinia (149 B.c.) apparently imposed a fine on stuprum between males, but the penalty was not significantly differ­ent from that later prescribed for heterosexual stuprum by the Lex Iulia de adulteriis. The law probably sought to shield free adolescent boys from sexual harassment, much as it protected free adolescent girls.²³⁶ The aim in both cases was to make it illegal to treat free youths in the same way that young slaves were habitually treated, and to preserve social distinctions between classes. The law­makers do not seem to have envisioned imposing a ban on homosexual activities as such.

The attention of Roman law concerning adult male homosexuals centered on those who played the passive role in anal intercourse. Passive males might be cashiered from the army and were ineligible to practice law or even to appear in court on their own behalf.²³⁷ The law here reflected a feeling that a man who submitted passively to sexual relations with another man betrayed the mas­culine virtues proper to free male citizens; he was penalized primarily for treachery to the social order.