Sexual Offenses

Patristic writers saw fornication as the prototype of all sexual offenses; some of them considered fornication the root of all other evils. The spirit of fornication, they declared, was nearly impossible to eradicate and affected everyone, unlike other deadly sins that were alluring only to some.

Ordinary people who chose not to devote their lives to ascetic observances were often advised that their best defense against the ever present urge to cop­ulate was to marry early. For this reason St. John Chrysostom warned parents to see to it that their children married soon after they reached the age of puberty.^[446]

All sexual relations outside of marriage amounted to fornication. Patristic writers realized that fornication was exceedingly common, but they also viewed it as a grave moral failing. No kind of sexual experience, save for marital inter­course, was possible without sin, according to the Fathers, and this included premarital intercourse between persons engaged to be married.¹²⁵ Premarital intercourse, however, was not at this period considered an impediment to sub­sequent marriage.¹²⁶ Because of the ever present danger that social contacts might lead to sexual attraction and then to fornication, parents were cautioned to monitor the activities of their children.

Adultery

The Fathers were not always precise in their terminology for sexual offenses and often used the term “adultery” indiscriminately to describe what was prop­erly fornication (that is, sexual relations between unmarried persons) as well as extramarital sexual relations among married persons.¹²⁸ Adultery in the strict sense was increasingly defined as a serious offense both in Church law and in Roman civil law under Constantine and his successors. Reiterating the prin­ciple that men should be subject to the same penalties for adultery as women, St. Augustine urged married women to be assertive in dealing with their hus­bands’ sexual infidelities. “You should not allow your men to fornicate,” he ad­monished women. “Appeal against them to the Church—I don’t mean to the public judges, the proconsul, the vicar, the count, or the emperor, but to Christ.”¹²⁹ He went on to remind his audience of St. Paul’s words (ι Cor. 7:4): “The wife does not have power over her body, but her husband does, and like­wise the husband does not have power over his body, but his wife does.”¹³⁰ St. Caesarius agreed with Augustine that married women should denounce their wandering husbands secretly to a priest, rather than making a complaint to public authorities.¹³¹

Adultery also became a more serious crime in civil law during the Christian Empire than previously. The Lex Iulia de adulteriis, as we have seen, had treated adultery largely as a private matter and exclusively as a female crime.

¹²⁵Caesarius of Arles, Serm. 44.1, in CCL 103:196; Basil, Epist. 199.26, in PG 32:724; Fulgentius of Ruspa, Epist. 1.10, in CCL 91:192.

¹²⁶Basil, Epist. 199.25, in PG 32:724.

¹²⁷Caesarius of Arles, Serm. 41.3, in CCL 103:182.

¹²⁸John Chrysostom, De verbis illis apostoli, “Propter fornicationes autem unusquis­que suam uxorem habeat,” 4, in PG 51:213-14; Basil, Epist. 199.21, in PG 32:721.

¹²⁹Augustine, Serm. 392.4, in PL 39:1711: “Nolite viros vestros permittere fornicari. Interpellate contra illos Ecclesiam. Non dico, judices publicos, non proconsulem, non vicarium, non comitem, non imperatorem; sed Christum.”

¹³⁰Augustine, Serm. 392.4, in PL 39:1712.

^l31CaesariusofArles, Serm. 142.2, in CCL 103:186.

crime, and heinous cases became punishable by death.^[447] Lesser punishments were assigned for less serious offenses. In addition, as we have already noted, while adultery by the wife had long constituted grounds for divorce, a law of Theodosius and Valentinian in 449 made adultery by the husband also a legiti­mate basis for divorce.^[448] The Christian emperors broadened the definition of adultery to include offenses other than marital infidelity. A law of Valentinian II in 388, for example, defined marriage between Christian and Jew as adultery and allowed anyone to lay an accusation on this charge before the magistrates.^[449]

In his treatise On Marriage and Concupiscence, St. Augustine dealt with the question of whether a man guilty of adultery should be allowed to remarry. Augustine noted that civil law allowed a man whose wife had left him to marry another, but added that ecclesiastical law classified such a marriage as adultery. When the first spouse died, however, Augustine was prepared to allow the part­ners in adultery to marry each other.^[450]

Prostitution

The legislation of the Christian emperors dealing with prostitution made few changes in the earlier law on the subject.

Moral reprobation, social contempt, and practical toleration were the hall­marks of Constantine’s policies on prostitution and these attitudes character­ized imperial law throughout the history of the Christian empire.^[453] Later rulers took some actions to ameliorate the situation of women who had been forced into prostitution. Theodosius II and Leo I restrained fathers and owners of slave girls from forcing them into prostitution and delegated to bishops the power to intervene in cases where a prostitute petitioned for release from in­voluntary servitude in a brothel.¹³⁹ At least until 439, however, prostitution re­mained a source of tax revenue for the imperial government.¹⁴⁹

In the West, St. Augustine formulated the classical Christian rationale for a policy of practical toleration toward prostitution. Augustine noted in his De or­dine that prostitution was an evil, but an evil that was necessary for the preser­vation of the social structure and the orderly conduct of civic life. “If you re­move harlots from society,” he predicted, “you will disrupt everything because of lust.”¹⁴¹ He reasoned that if prostitution vanished, sexual passion and desire would prompt men to turn their lustful attentions to respectable matrons and other virtuous women.

Patristic writers cannot be accused, however, of lenience toward prostitu­tion. Sex with a prostitute was a serious moral wrong, St. Ambrose maintained; he saw no excuse in pleas that intercourse with a harlot was merely answering a demand of nature. Sexual relations with anyone outside of marriage were wrong and grievously sinful. To consort with harlots was to indulge in wanton­ness, he believed. Ambroses position typified that of other patristic writers.¹⁴²

Prostitutes themselves, according to the Fathers, sinned each time they had intercourse with a client. The only way that a harlot could hope to merit salva­tion was to renounce her trade and to do penance for her past offenses. St. John Chrysostom, commenting on Matt. 21:32, pointed out that although Jesus had told the Pharisees that “Publicans and prostitutes will precede you into the kingdom of God,” the Gospel promise applied only to those prostitutes who renounced their evil lives. But Chrysostom took care to reiterate the Gospel message that the reformed prostitute was eligible for heaven. He then regaled his audience with a cautionary tale about a wicked whore from Phoenicia who,

¹³⁹Cod. 1.4.12, 14(456); 11.41.6(428).

¹⁴⁰Nov. Theod. 18.1; AdoIf Berger, Encyclopedic Dictionary of Roman Law, s.v. “meretrix,” Transactions of the American Philosophical Society, n.s., vol. 43, pt. 2 (Phil­adelphia: American Philosophical Society, 1953), p. 581. On the origin of this tax see Suetonius, Vitaecaesarum, Caligula 40, ed.

¹⁴¹Augustine, De ordine 2.4.12, in PL 32:1000: “Aufer meretrices de rebus humanis, turbaveris omnia libidinibus: constitue matronarum loco, Iabe ac dedecore dehonesta­veris.” Bloch, Prostitution 1:640.

¹⁴²Ambrose, De Abraham 2.11.78, in PL 14:494; Dooley, Marriage According to St. Ambrose, p. 29.

“in our own days,” had been overcome by remorse for her evil life, embraced a life of chastity, and saved many others by her example.^[454]

Incest and Rape

The fourth- and fifth-century Christian emperors made only minor altera­tions in the law concerning incest and rape; the changes seem to reflect broad considerations of social policy, rather than specifically Christian viewpoints.^[455] Marriage prohibitions were extended in 355 to bring marriage of a woman to her brother-in-law under the incest ban, a change that affected observant Jews who still obeyed the Mosaic precepts on Ievirate marriage.^{[456] [457] Indeed, Theo­dosius the Great in 393 forbade Jews to follow their traditional marriage law.14β Other marriage limitations introduced by Constantine were designed to pre­serve class distinctions and to prevent conflicts of interest, rather than to pro­mote specifically religious restrictions on marriage rights.[458]}

As for rape, the principal innovation in the law under Constantine involved defining this crime as a public offense rather than as a private wrong. The vic­tim of criminal rape might be punished along with the perpetrator. A woman who consented to abduction and carnal relations with her abductor—in other words a woman who was a willing party to an elopement—was to be burned to death along with her abductor. A woman who was abducted and ravished against her will was punished, but less severely, on the theory that she should have prevented the incident altogether by more vigorous resistance and hence was in some sense an accomplice, even if a reluctant one. Constantine’s legisla­tion also prohibited for the first time subsequent marriage between the abduc­tor and his victim. Even if both the woman and her family subsequently agreed to marriage, it was held to be void.^{[459] [460] To these public penalties, the Council of Chalcedon in 451 added further ecclesiastical ones; if the abductor was a cleric, he was to be deposed from office; if he was a layman, he was anathematized.140}

Deviant Sexual Practices

The Christian emperors showed themselves bolder and more innovative in their legislation concerning sexual behavior, heterosexual or homosexual, which they considered deviant. In a tortuously worded decree of 342 the emperors Constantius and Constans prohibited sexual relations between man and wife in any fashion that did not involve penetration of the vagina by the penis. The intent, clearly enough, was to outlaw anal and oral sex between married per­sons, as well as other kinds of deviant sexuality.^[461]

The early fifth-century Mosaicarum et Romanorum legum collatio, which sought to demonstrate that traditional Jewish law was compatible with Roman civil law, made a particular point of contending that homosexual activity was contrary to both legal traditions. Title five of the Collatio juxtaposed excerpts from the Torah with selections from Roman law sources in such a way as to con­struct a condemnation.^[462]

This condemnation echoed the sentiments of the leading Church Fathers of the period. Augustine’s verdict on all types of “unnatural” intercourse, hetero­sexual or homosexual, was that these morbid doings had no place either be­tween a man and woman united in Christian marriage or, a fortiori, between persons of either sex outside of it. Augustine considered that deviant sexual practices could only be motivated by a quest for venereal pleasure. Since such conduct foreclosed even the possibility of procreation, it lacked any redeeming qualities and deserved the severest condemnation.^[463]

Other writers were concerned about effeminacy among Christian men and taught that those who dressed like women or used feminine gestures or ac­coutrements should be forced to cease these offensive displays.^[464] The Council of Gangra echoed the Deuteronomic prohibition of cross-dressing and forbade members of either sex to adopt the clothing styles peculiar to the other. The prohibition was directed not only against persons with deviant sexual prefer­ences, but also against “holy transvestites,” that is, pious women who disguised themselves as men in order to join male ascetic and monastic communities.^[465]

Masturbation and Sexual Fantasies

A new theme in Christian writing and thinking about sexual behavior during the fourth and fifth centuries dealt with masturbation and sexual fantasies. Nei­ther pagan nor early Christian writers had paid much attention to these matters and apparently considered them trivial. With the rise in popularity and impor­tance of monasticism and Christian asceticism during the generations following Constantine, however, writers on monastic discipline began treating masturba­tion and sexual fantasies, both conscious and unconscious, as serious moral problems.

St. John Cassian considered masturbation and nocturnal pollution central issues in sexual morality and devoted a great deal of attention to both matters. He considered nocturnal emission a critical problem because he believed that the frequency of erotic dreams and of nocturnal erections and emissions were indices of lust. A monk or hermit, he reasoned, might be able to overcome overt sexual temptations, but if he continued to experience sexual fantasies in dreams, and if he continued to have seminal emissions during sleep, then he had not yet overcome carnal lust. Hence, both his religious life and his salvation might well be in peril. But the monk who freed himself completely from these experiences had achieved a real victory over fleshly desires and consequently could be certain that he was on the right path to salvation.^[466]

St. Caesarius of Arles agreed. Sexual fantasies and dreams, he warned, were insidious manifestations of lust that crept into the thoughts even of good and honest Christians and subverted morality from within. Sexual arousal, even if undesired, indicated that all was not well with the spiritual health of the indi­vidual. Caesarius considered any sexual longing, to say nothing of deliberate self-stimulation, a serious sin and placed it on an even footing with adultery or excessive indulgence in sex by married persons.^[467] You can no more dwell on sexual thoughts during sleep without suffering moral damage, Caesarius warned, than you can hold on to burning coals without charring your flesh.^[468]

If unwanted sexual fantasies were sinful, even worse were thoughts about sex that were deliberately provoked by suggestive words and sights. St. John Chrysostom vigorously denounced obscene spectacles in the theaters and warned that theater-going endangered the spiritual health of Christians. Al­most as bad, in Chrysostoms opinion, were images and pictures, especially those that portrayed the naked body or, worst of all, sexual relations. Such im­ages, he warned, infallibly lead to sin and to an unquenchable thirst for forbid­den pleasures, even among married persons.^[469]

Sex and the Clergy

Shortly before Constantine came to power, as we have seen, the Council of Elvira (or the canons that circulated under its name) had first enunciated in an authoritative way the principle that Christian clerics should be required to re­nounce sexual relations with their wives.^[470] Although Constantine subsequently repealed earlier Roman enactments that penalized adult men who failed to marry, there is no evidence that his action was prompted by a desire to impose mandatory celibacy upon the clergy throughout the empire, and in fact he never did so. Perhaps, however, one of Constantine s purposes in revoking the anticelibacy law was to regularize the position of Christians who voluntarily re­mained unmarried as part of their religious discipline.^[471]

Apart from Constan tine’s repeal of the anticelibacy laws, imperial authorities made little or no effort to implement a policy concerning clerical marriage dur­ing the fourth and fifth centuries. Indeed it was not considered irregular or scandalous for clerics to found virtual sacerdotal dynasties; St. Gregory Nazian- zen (d. 374), for example, succeeded his father as bishop of his native city, while one of the legendary lives of St. Patrick identified him as the son of a deacon, who in turn was the son of a priest. Ecclesiastical authorities at that time, how­ever, began to move increasingly in the direction of encouraging the clergy ei­ther to remain unmarried or, if already married, to abstain from sex with their wives.

Local councils and synods, especially in North Africa and Gaul, took the lead in promoting clerical celibacy. A number of African councils in the late fourth and early fifth centuries required clerics in the ranks of deacon, priest, and bishop to refrain from marital sex. A rescript OfTheodosius and Honorius, how­ever, forbade them to abandon their wives.^[472] In addition, some local churches

demanded that clerics in minor orders either vow celibacy or else marry when they reached the age of puberty. Those who elected to marry thereafter be­came ineligible for promotion to higher clerical ranks and only those who chose celibacy could proceed to ordination as deacons or priests.^[473]

The Council of Chalcedon in 451 adopted part of this policy and made it binding on the whole Church. The Chalcedon canon stipulated that permission for clerics in minor orders to marry was a “concession,” but indicated that in future this concession should be denied, especially to men who wished to marry Jewish or pagan women or women who belonged to heretical sects.^[474] Al­though the Chalcedon canon is not entirely free from ambiguity, its primary intention seems to have been to ensure that minor clerics married within the orthodox fold, rather than to require that they not marry at all.^{[475] [476]}

The bishops of Rome did not begin to take a stand on clerical celibacy until the end of the fourth century, when Pope Siricius (384-398) addressed the issue in three different decretal letters. In a letter to Bishop Himerus of Tar­ragona, Siricius dealt with the general question of sexual abstinence. The pope praised celibacy as a virtue, but stopped short of requiring that clerics bind themselves to sexual continence.¹⁶³ In a subsequent letter denouncing the errors of the Jovinian heretics, Siricius approached sexual abstinence not as an ascetic discipline, but rather as a matter of ritual purity. But again in this letter he refrained from pronouncing a positive command on the subject.^[477] In a third letter on the topic of celibacy, this one to the bishops of Gaul, Siricius com­bined the ascetic and purity themes that had figured separately in his previous letters, but once more failed to cast his praise of celibacy in the form of a posi­tive command.^[478]

Fourth- and fifth-century councils reiterated earlier bans on the remarriage of clerics whose first wives had died; they likewise barred clerics who had mar­ried widows from promotion to higher office, a policy that Pope Siricius also favored.¹⁶⁸ These actions appear to have been predicated on the belief that re­marriage was likely to be motivated largely by a desire to continue enjoying sex, a desire that was thought unseemly in a cleric; they also assumed that mar­riage to a previously married woman violated St. Paul’s dictum in ι Tim. 3:2 that a bishop should be the husband of one wife. The prohibition is reminiscent of a similar rule concerning the marriages of the Roman flamines of Jupitcr.¹⁶⁹

Another issue that prompted conciliar action during this period concerned living arrangements in which clerics shared a dwelling with women and the in­stitution of “spiritual marriage.” The first Council of Nicaea in 325 forbade bishops, priests, and other clerics to keep any woman in their households, “save perhaps for a mother or sister or aunt or such other person as may be immune from suspicion.”¹⁷⁰ The Nicene canon was repeated in North Africa in the fifth century with special reference to widows, nuns, or other consecrated virgins who might dwell under the same roof with a cleric. All such suspect living arrangements were prohibited. Similar provisions were incorporated into the civil law in 420.¹⁷¹ The Council of Carthage in the mid-fourth century fur­ther required that nuns and other women who had vowed chastity must live in strict segregation from laypersons of either sex, but especially from men. The Council applied similar rules to widows and widowers who had promised to re­main unmarried after the deaths of their spouses.¹⁷²

Local synods in Spain also adopted canons imposing penalties upon clerics who committed adultery and upon consecrated women who were guilty of for-

p. 312, asserts that these letters enunciated an “official policy of the Western Church,” but the texts themselves are hortatory and stop short of establishing legal norms.

^l681 Council of Toledo (400) c. 34, in Vives, Concilios Visigoticos, pp. 20-21; Coun­cil of Thele (418) c. 4-5, in Concilia Africae, CCL 149:61; Pope Siricius, Epist 1.8.12 and 5.2.4-5, in PL 13:1141-42 (JK 255 and 258).

¹⁶⁹See above, pp. 36-37.

¹⁷⁰1 Nicaea (325) c. 3, in COD, p. 6; “Interdixit per omnia magna synodus, nec epi­scopo nec presbytero nec alicui prorsus, qui est in clero, licere Subintroductam habere mulierem, nisi forte matrem aut sororem aut amitam vel eas tantum personas quae sus­picionem effugiunt.” Cf. Cod. 1.3.19.

^mBreviarium Hipponense c. 16, 24, in Concilia Africae CCL 149:38, 40; Cod. 1.3.19; Lynch, “Marriage and Celibacy,” pp. 18-19; McNamara, “Muffled Voices,” pp. 16-17, 20-21.

¹⁷²Council of Carthage (345 ~ 348) c.3-4, in Concilia Africae, CCL 149:5-6; John Chrysostom, Adversus virgines Suhintroductae and Quod regulares feminae viris co­habitare non debeant, in PG 47:495-532; JoAnn McNamara, “Chaste Marriage and Clerical Celibacy,” in Vern L. Bullough and James A. Brundage, Sexual Practices and the Medieval Church (Buffalo, NY: Prometheus, 1982), pp. 72-85. nication.^[479] These actions paralleled measures adopted by civil authorities dur­ing the same period.^[480]