Sexual Offenses in the Fourteenth and Fifteenth Centuries

Fornication and Adultery

The popular belief that simple fornication between unmarried persons was nei­ther a sin nor a crime persisted, although this had been classified formally as heresy since 1287.

Although it had long been true that Church courts exercised jurisdiction over simple fornication, the late fourteenth and fifteenth centuries saw the in­trusion of secular law into this domain as well as into the others previously mentioned. A good many cities adopted local statutes and ordinances providing punishment for adultery, fornication, and other common types of nonmarital sex.^[1926] In addition, towns often expressly prohibited fornication in certain spe­cial situations—Aglie and Lesolo, for example, penalized fornication in the house of one’s lord or employer, and other cities made it an offense to seduce or have intercourse with the servants of another.^[1927] Belluno, however, specifically exempted from punishment men who had sex with servant women in their own households, at least so long as the women agreed to their masters’ proposi­tion.^[1928] Still other cities only penalized fornicators who belonged to specific oc­cupational groups—jailers, for example, were prohibited from having sexual intercourse with women prisoners; Perugia banned fornication by doctors, bar­bers, tailors, and other craftsmen who visited the houses of their clients, while at Rieti millers were specifically forbidden to molest female patrons.^[1929] Fornica­tion with non-Christians was severely punished: sex between Christians and Jews, for example, carried a fine of £1000 at Perugia, payable within twenty days of conviction; those who failed to pay might be burnt alive.

In theory, at least, adultery continued to be a much more serious offense than simple fornication—Alessandro Tartagni (1424-71) held that it was more serious than rape, while Egidio Bellamera considered it the most heinous of all sex crimes, comparable in gravity to heresy.^[1935] Even animals show indignation at those who made sexual advances to their mates, declared Giovanni Neviz- zani, who regretfully noted that adultery was no longer punishable by death.^[1936]

In reality, adultery was rarely punished as severely as either ecclesiastical or civic authorities said it should be. The sixteenth-century Neapolitan jurist, Paulus Grillandus, accurately reflected current practice when he numbered it among the lesser crimes. Offenders convicted of adultery were often punished no more severely than those found guilty of simple fornication—fines, peniten­tial processions, and public whippings were the commonest penalties, although in aggravated cases, especially with prominent families involved, the death penalty was occasionally imposed.^[1937] Several authorities maintained that when a woman committed adultery, her husband was at fault and should be punished as much or more than she was, but I have yet to see a case in which that was done.^[1938] It was not altogether uncommon, however, for the male adulterer to be charged, while his female accomplice was not.

In a continuing extramarital affair, each act of intercourse or sex play theo­retically counted as a separate offense and lies told in order to hide the offense could also be taken into account when determining punishment. On this last point, Martin de Azpilceuta maintained that a woman whose husband, sword in hand, threatened to kill her for adultery was entitled to lie in order to save her life.¹⁴³ In Sardinian customary law, the location where adultery took place affected the penalty imposed: a married woman who slept with another man in the man’s house was punished more lightly than if she received her lover in her husband’s dwelling.¹¹⁴

In addition to other penalties, adultery could result in substantial financial loss. Adulterous wives forfeited their claims to the estates of their husbands, and their offense also revoked any inter vivos gifts they had received from him prior to marriage.¹⁴⁵ On the other hand a husband who killed his adulterous wife, while he escaped criminal penalties for homicide, also forfeited his claims to her dowry.¹⁴⁶ A male adulterer whose married mistress conceived a child, moreover, was obliged to compensate his paramours husband for expenses incurred in raising the child.

A great many municipalities during this period enacted criminal statutes against adultery. Male adulterers were subject to a fine, often quite a heavy one, while their mistresses frequently became liable to physical punishment— whipping was common—and might have their heads shaved or be exiled from the city for a period of time; the dowry was usually forfeited to the husband.¹⁴⁸

¹⁴¹Baldus, Comm, to X 1.38.5 § 4, fol. 127ra; Bossi, Tractatus varii, tit. De coitu dam­nato 57, fol. 188ra; Nevizzani, Silva nuptialis, fol. 15vb-16ra; Hieronymus Olives, Comm, to Carta de Logu 22, pp. 57-58; Ourliac, “Notes,” p. 60.

¹⁴²Nevizzani, Silva nuptialis, fol. 79rb.

¹⁴³Martin de Azpilceuta, Comm, to C. 22 q. 5 c. 11, in his Opera 1:422-23; Baldus, Comm, to X 2.20.9 § 3> f°l∙ ¹95^ra; Rochus Curtius, Tractatus de consuetudine 73., in TUJ 1:127v.

¹⁴⁴Eleanora of Arborea, Carta de Iogu 22, p. 58.

¹⁴⁵Baldus, Comm, to X 1.14.10 §§ 6-7 and 1.38.5 § 4, fol. 52va, 127ra; Die Summa Iegum brevis, levis, et utilis des Sogenannten Doctor Raymundus von Wiener-Neustadt 1.30, 2.36, ed. Alexander Gal, 2 vols. (Weimar: Hermann Bohlaus Nachfolger, 1926) 1:187-91, 300; Sylvestrina, s.v. Adulterium, 1:31.

¹⁴⁶UIrich Zasius, In celeberrimos aliquot titulos ff. ennarationes, non modo ad iuris veteris lucem cogitationemque, sed et aeque ad palatiorum et fori praxim supra fide con­ferentes to Dig. 24.3.10.1 § 6 (Lyon: Excudebat N. Bonhomme, 1548), fol. 16va.

¹⁴⁷Sylvestrina, s.v. Adulterium, 1:31: “Si autem dubitat adulter ex eo quod mulier sit Ievis et cum aliis adulteratur, relinquatur iudicio Dei.”

¹⁴⁸Ancona, Constitutiones 3.12, p.

Prostitution as a Public Utility

The legal status of prostitution changed radically during the late fourteenth and fifteenth centuries. Efforts to reform prostitutes diminished sharply during this era, and penalties attached to the practice of prostitution became little more than anachronisms in many places.^[1942] Most striking of all was the transformation of prostitution into a public utility^[1943] and the involvement of town and city gov­ernments, particularly in southern Europe, in the ownership and operation of brothels.

Prostitutes during this period fell into four distinct categories. The top tier consisted of the inmates of public brothels, which had been almost unheard-of in medieval Europe prior to this time. These institutions were owned by a mu­nicipality and managed by public officials. As municipal enterprises, these houses received official protection, and their inmates in effect worked for the community. Towns often realized significant profits from these operations. The second class comprised those who worked in bathhouses, or stews. Bathhouses were usually privately owned, operated for profit, and frequently attracted in­vestment from respectable persons of rank and social standing. Third came the strumpets who worked in bordellos, small-scale operations kept by madames who were usually retired whores. Bordellos were privately owned, often by the

The Black Death to the Reformation madames themselves. At the lowest end of the scale were the streetwalkers, essentially individual entrepreneurs although frequently managed by and de­pendent on a pimp, who was simultaneously their protector, business manager, lover, parasite, and abuser.^[1944]

Both the social and the legal situation of the prostitute depended upon which category she belonged to.

Official prostitutes, who worked in municipal brothels or were licensed by civic authorities, were presumably only a fraction, possibly quite a small frac­tion, of the women whose sexual services could be had on a commercial basis. It is difficult to estimate the numbers of prostitutes active at any given place and time, since their numbers varied considerably depending upon the way in which the category was defined. At Venice a directory of local harlots was pub­lished early in the sixteenth century, giving their names, addresses, and fees. The guide listed 210 women, whose price per “trick” ranged from one-half scudo (Elena Rossi) to thirty scudi (Paulina Filla Canevo).^[1947] The list is probably incomplete, for the number of entries is extraordinarily low for a city the size of Venice in this period. A recent study of prostitutes at Dijon in the fifteenth century showed that most were local women and roughly four-fifths were the daughters or widows of artisans or manual laborers. Most of the Dijon whores entered the life at about age seventeen and nearly half reported that they had been forced into prostitution. Almost a quarter of the group were apparently prostituted by their families and more than a quarter had been victims of rape.^[1948] London’s regulated brothels were located across the river from the city

in a section of Southwark known as Stewside, where eighteen establishments were situated at the end of the fifteenth century.^[1949] We know little about the working conditions and social history of prostitutes in rural areas.

Economic details of late medieval prostitution are difficult to pin down, but municipal brothels often produced profits and the operators of bathhouses ap­parently realized substantial returns. Small-scale private establishments appar­ently were less attractive investments—Florentine tax records show, for ex­ample, that in 1433 Antonia and Piero di Simone Brunelleschi, a mother and son who owned two houses inhabited by prostitutes, made four florins a month. A well-connected entrepreneur, Rosso di Giovanni di Niccolo de’ Medici, who let out six rooms to prostitutes in one of the houses that he owned, got between ten and thirteen lire per month.^[1950] The income of individual harlots was pre­sumably highly variable. Giovanni Nevizzani observed that beauties could be had for a trifling price and he was probably right. Moralists decreed that prosti­tutes must charge no more than a just price for their services, but they failed to specify how that price could be determined.^[1951]

Legal writers continued to maintain that the law should protect the property that prostitutes gained from their occupation. Francis de Platea (d. 1460), while discussing prostitutes’ property rights, addressed the intriguing question of the ownership of property acquired by a nun who was also a prostitute. He con­cluded that she ought to remit her fees to her convent; the convent, however, should not retain the money, but should use it to support pious causes.^[1952] The earnings of prostitutes were generally subject to taxes levied by municipal au­thorities; ecclesiastical bodies also taxed prostitutes occasionally for the benefit of religious causes.^[1953]

Some cities restricted the financial activities of their prostitutes. Venice, for example, imposed a limit on the debts that prostitutes could assume. Should they fail to repay their obligations on schedule, they might be jailed.¹⁶²

Despite financial limitations, lively competition for trade, and generally low fees for their services, some late medieval harlots accumulated substantial amounts of property. The last will and testament of Claudie Fabrie, a whore in the brothel of Beaucaire, dated ι July 1492, shows that she was reasonably prosperous. Her will gave directions for her funeral, together with bequests for that service and for the priest who heard her last confession, stipends for anni­versary Masses, and a number of charitable bequests. In addition she left legacies to another harlot, Agnes Cornegrasse, to her brother, who was a no­tary, to her husband, and to one Jacques Torrelli, alias Cassolet, whom she de­scribed as her “faithful friend” and who may well have been her pimp.¹⁶³

Prostitution in many parts of Europe was regulated during this period by confining prostitutes to specified sections of cities, by dictating the kinds of clothing they could wear, and by limiting some other aspects of their trade.¹⁶⁴ Restrictions on dwelling places of harlots were common throughout the four­teenth and fifteenth centuries. Statutes designated specific neighborhoods where whores could legally dwell and often provided that those who set up shop elsewhere could be expelled from their houses if their neighbors filed a complaint. A few towns required all prostitutes to live in the public brothel, presumably in an effort to secure a monopoly. The quarter set aside for prosti­tutes was often a region with a high crime rate and civic authorities seem to have hoped to confine noise, rowdiness, and disturbances to a single zone within the city. Piacenza attempted to deal with the problem by exiling its pros­titutes to the suburbs, but how well this worked is unclear.¹⁶⁵ Many cities regu­lated the appearance of their whores. Sumptuary statutes often specified that respectable women were forbidden to wear the particular colors, types of cloth, or styles of dress reserved for trollops. A few places also required women of ill-

¹⁶²ILeggi e memorie Venete, ρ. 40; Petrus de Monte, Repertorium, s.v. Meretrix, fol. ^55ra∙.

¹⁶³Text in LePilleur, Prostitution, pp. 139-41; see also Otis, Prostitution, pp. 65-66, for other examples of well-to-do-prostitutes.

¹⁶⁴Bullough, Hist. OfProstitution, p. 114; Rossiaud, “Prostitution, sexualite, societe,” p. 70.

¹⁶⁵Ancona, Constitutiones 4.10, p. 123; Bergamo, Statuta 10.50, fol. 178r; Cremona, Statuta 114, p. 41; Statuta Mediolani, 2 vols. (Milan: Impressum apud A. Minutianum, impensis P.M. & B. fratrum de Bugatis, 1512) 2:146r-147v; Modena, Statuta 3.67, fol. 81r; Statuta Novariae, lib. 1, tit. Quod meretrices expelluntur (Milan: Impressum per J. de Castelliono, 1511), fol. 83v; Parma, Statuta 4.81, fol. 157r; Perugia, Statuta 4.109, fol. 30rb-va; Piacenza, Statuta 1.36; Reggio Emilia, Statuta 7.3, 4, 7, fol. 290r-292v; Urbino, Statuta 5.35, fol. 108r; Ordonnances des rois 6:611; LePilleur, Prostitution, pp. 12-13; OliveiraMarques₁ DailyLifeinPortugal, p. 179; Bellamy, Crime and Public Order, pp. 60-61; Bullough, Hist, of Prostitution, pp. 113-14. repute to wear an arm band or other insignia when they appeared in public. The rationale advanced for these regulations was usually that they would pro­tect honest girls and matrons from importunings and propositions by lechers on the streets.^[1954] Several towns forbade prostitutes to appear in public during cer­tain seasons. Nimcs required them to stay indoors during Holy Week under pain of a fine. Todi banned them from the streets every day of the week save Saturday, and those who showed themselves on other days might be publicly whipped. French towns closed their brothels during periods of epidemic dis­ease as a public health measure.^[1955] A few places tried to limit the length of time that any particular prostitute might spend in the town.^[1956] Public solicitation by prostitutes troubled authorities in several cities. One way of controlling this was to exclude harlots from taverns and public eating-places. Venice seems to have been particularly sensitive on this issue, for the Senate of the Republic not only forbade prostitutes to eat or drink in public places, but also prohibited them from sleeping in taverns or hostels and denied them the right to sell wine in the city’s brothels.^[1957] Florence finally forbade its prostitutes to engage in any other trade at all.^[1958]

Some cities also attempted to limit the clientele to whom prostitutes could offer their services. Avignon forbade Jews to enter public brothels under pain of losing a foot and forfeiting twenty-five livres for each offense. A synodal statute at Avignon also made it an offense for clerics or married men to frequent broth­els: the penalty was excommunication plus a fine of twenty marks if the visit was at night. The fine was reduced to ten marks for daytime visits.^[1959] Ulm at­tempted to keep youngsters out of its sporting houses by penalizing boys under age fourteen who visited them.^[1960] In general, however, the clients of prostitutes were usually immune from prosecution or punishment, although Avignon at­tempted to prevent its brothels from being used as houses of assignation by for­bidding proprietors of these establishments to allow men to bring their mis­tresses onto the premises for immoral purposes.^[1961] This curious solicitude for public morality was not unlike complaints made by the public prostitutes of Tar­ascon and Dijon, who apparently feared competition from free-lance practi­tioners outside of the public brothel and demanded that civic authorities take steps to curb debauchery.^[1962] Avignon seemingly witnessed fierce competition between public purveyors of sex as well, for the police ordinances of 1458 in­cluded a provision that forbade whores to drag men by force into brothels and to keep them against their will.^[1963]

The fifteenth century seems to have been the heyday of publicly operated prostitution. During this period a good many cities authorized public expen­diture to build, maintain, and enlarge municipal brothels, while taking little interest in other types of public investment. A fair number of cities that oper­ated public houses of prostitution, for instance, had no municipal schools. Both public and private brothels thrived during this century. Thus Dijon, for ex­ample, with a population numbering only about 2,500 in the city proper and less than 10,000 in the baillage, in 1485 not only maintained a public brothel, but also eighteen private bordellos, which seem to have been tolerated by their neighbors and were in no way marginal either to the civic or the economic life of the town.^[1964] At Seville early in the following century, brothels were clustered in the low-lying area next to the river and were clearly seen as profitable and respectable investments. Their owners included not only the town itself, but also several ecclesiastical corporations, including the cathedral chapter, religious communities, and hospitals, which leased them to private operators. A genera­tion or two later Seville’s public executioner leased no less than twenty brothels, which he sublet to individuals who operated them under the supervision of a municipal brothel manager. The city government, in other words, licensed individuals to keep houses of prostitution and required those who received li­censes to take an oath to uphold the statutes governing their operation. The owners and operators of these establishments were esteemed as respectable citizens and described themselves as good Christians with no hint of embar­rassment.^[1965] Similar situations were common in other European cities during this period.^[1966] Not only did civic authorities operate and supervise brothels, but they also treated them as communal enterprises for civic purposes. Thus, when the Emperor Sigismund stopped at Bern on his way to the Council of Con­stance in 1414, the city fathers welcomed him and his entourage by opening the city ’s brothels to the emperor and his men free of charge. Similarly in 1509 Ven­ice dispatched a thousand of its prostitutes at public expense to care for the sexual needs of its army at Mestre.^{[1967] [1968]}

Private establishments, especially “dishonest” bathhouses that doubled as brothels, were often in direct competition with the public facilities. The asso­ciation between bathhouses and the practice of prostitution was notorious, and the expression “to go to the bathhouse” required no explanation—it had little to do with cleansing the body. The inventory of one fifteenth-century Avig- nonese bathhouse disclosed that the facility had a great many beds, but no bathtubs at all.¹⁸¹¹ The identification was so close, indeed, that genuine bathing facilities had to distinguish themselves sharply from the commoner kind of bathhouse. Thus a new bathhouse at Avignon about 1446 spelled out the pro­priety of its operation with great care:

Let everyone of whatever rank be aware that Genin de Geline or de Helme, otherwise known as de la Cerveleria, has established be­hind his house at IIelme good and honest stews for bathing by good and honest women and that these are quite separate from the men’s bath of de la Cerveleria... and that women will be well received and taken care of here by trustworthy ladies.^[1969]

Since town governments considered prostitution a civic industry, they were anxious to curb the activities of entrepreneurs who were not part of the local establishment. Statutes prohibited pimps from extorting money from prosti- tutes and attempted to limit the activities of the men and women who recruited girls for the brothels. It is unlikely that this regulatory activity accomplished a great deal, for private brothels and streetwalkers seem to have been controlled almost everywhere by thugs and ruffians who lived off the earnings of prosti­tutes and practiced various kinds of extortion not only on the harlots, but also on their customers.¹⁸² It is likewise doubtful whether occasional civic efforts to halt the process of selling women to the brothels—parents often did this—and forcibly holding them there resulted in any great diminution in the practice.¹⁸³

By and large, prostitutes were not often prosecuted during this period for simply practicing their trade. Such prosecutions as there were seem to have been confined to England, where civic prostitution never caught on. The City of London even expelled its prostitutes in 1485 in an endeavor “to eschewe the Stynkyng and horrible Synne of Lechery.” As they Settledjust across the Thames in Southwark, the expulsion probably did little to achieve its nominal purpose. This fastidiousness was distinctly unusual: when prostitutes were prosecuted elsewhere in this period the circumstances usually suggest that the defendant had been guilty of setting up business without complying with local ordinances governing prostitutes.

Prostitutes were still disadvantaged, to be sure, but the disadvantages they suffered were in this period more often inflicted on them by their families than by public authorities.¹⁸⁴ Nor is there much evidence that the clients of prosti-

veleria, en las qualz se estubant homes, Iasqualas cstubas de donas an lor intrado devant Γostal de Maistre Anthoni Carbonel, bedel de 1’Estudi, per que touta dona honesta que Γy plaira de se anar estubar Γen poyria anar, car aqui sera recuillida ben et honestmen et bon merchant per donas honestas.” See also Otis, Prostitution, pp. 98-99.

^vi2Constitutiones Marchiae Anconitanae 1.8 (Faenza: Per I.M. de Simonetis, 1524), fol. 5r-v; Bergamo, Statuta 10.49, f°l∙ 178r; Cremona, Statuta 118, 124, ρρ. 442-43; Faenza, Ordinamenta 1.8; Lucca, Statuta 4.108, fol. 222v; Modena, Statuta 3.66, fol. 81r; Orvieto, Reformationes et decreta 3.28, p. 175; Perugia, Statuta 3.88, fol. 34vb; Reggio Emilia, Statuta 7.6, 8, fol. 291v-293r; Urbino, Statuta 4.39, fol. 91r; LePilleur, Prostitution, p. 14; Elvey, Courts of the Archdeaconry of Buckingham, no. 292, p. 207; Hair, Before the Bawdy Court, no. 241, 533, pp. 110, 205; Brucker, Society of Renais­sance Florence, pp. 199-201; DeLloyd J. Guth, “Enforcing Late-Medieval Law: Pat­terns in Litigation during Henry VIIs Reign, in Legal Records and the Historian: Papers Presented to the Cambridge Conference on Legal History, 7-10 July 1975, ed. J. H. Baker (London: Royal Historical Society, 1978), pp. 92-93; Wunderli, London Church Courts, pp. 93-95; Marin-Muracciole, L honneur des femmes en Corse, pp. 272-74; Oliveira Marques, Daily Life in Portugal, pp. 179-80; Rossiaud, “Prostitution, sex- ualite, societe,” p. 72; Pike, Aristocrats and Traders, p. 195.

¹⁸³Cremona, Statuta 115-16, p. 41; Orvieto, Reformationes et decreta 3.19, p. 175; Parma, Statuta 6.54, fol. 128r; Rieti, Statuta 3.98, fol. 55r; Todi, Statuta 3.112, fol. 75r-v; Nevizzani, Silva nuptialis, fol. 74rb.

¹³ⁱCalendar of Letter-Books Preserved Among the Archives of the City of London at the Guildhall: Letter-Book L, temp. Henry IV-Henry VII, ed. Reginald L. Sharpe (Lon- tutes were punished or harassed. Frequenting the brothel carried with it little or no dishonor or shame in fifteenth-century society, although clerics who did so openly might be reprimanded by Church authorities.^{[1970] [1971]} But public officials in this period were generally more interested in giving public protection to prostitutes, particularly those working in civic brothels, than in punishing them.

While legal writers continued to maintain that forcible ravishment of a whore was not rape, secular authorities acted differently. Prostitutes were frequently beaten, occasionally stabbed, and otherwise abused by clients; but the very fact that such assaults appear in court records and that some towns adopted ordi­nances forbidding attacks on harlots suggested that the whore who was as­saulted had at least some recourse.^[1972]

Attempts to rescue prostitutes from a life of sin became less popular during the fourteenth and fifteenth centuries than earlier; perhaps they were also less successful. There is occasional evidence of reform at work—the city council of Avignon, for example, administered a small fund for rehabilitating prostitutes— but this is uncommon. One Florentine prostitute was offered money by her neighbors to relinquish her trade, but she refused to take it on the grounds that the sum was insufficient. At Paris, when Jean Tisserand established a refuge for reformed prostitutes in 1490, some poor women of the city set themselves up as harlots in order to qualify for admission to the institution.^[1973] Zeal for reform of bawdy women was distinctly on the wane in this era.^[1974]

Rape and Abduction

The incidence of rape and abduction varied considerably between different areas of Europe in the late fourteenth and fifteenth centuries. In Venice, forc­ible coitus, abduction, and similar assaults were by far the most frequently en­tered sex offenses in the criminal records. Dijon, with a population well below 10,000, recorded twenty or more rape cases annually. Rape and abduction were also common in English records for the same period.^[1975] In Seville, on the other hand, abduction and rape seem to have been relatively rare, although perhaps they were simply underreported.^[1976] Rape and abduction charges seem to have been brought against upper-class males far more frequently than their numbers in the total population would warrant. We may infer from this that sexual at­tacks were more often reported when the perpetrator was wealthy and promi­nent than when the assailant belonged to the humbler orders. In any event, punishment of convicted rapists was often much less severe than the statutes prescribed. Fines, imprisonment for brief periods, or some combination of the two were the commonest penalties decreed by Venetian courts for convicted rapists. When compared with the savage mutilations and death sentences rou­tinely handed down for robbery and other kinds of assault, these were very mild punishments indeed.^[1977] But there seems to have been a marked class bias in these cases: the higher the social status of the victim, the more severe the punishment. The courts dealt with sexual assaults on lower-class women as rela­tively trivial crimes, but treated sexual attacks upon women of the upper classes as a social peril that required savage reprisal.^[1978]

Victims of sexual assaults were always women. The commentators declared that sexual attacks on men by women were either impossible or at least very unlikely, and the criminal records of the period agree. On the other hand, aca­demic lawyers and some legislators also maintained that sexual assaults on all women—save for prostitutes—merited equal penalties, but courts failed to ap­ply this egalitarian doctrine in practice.¹⁹³

Municipalities often legislated extensively about rape, abduction, and re­lated matters. Many prescribed the death penalty for most or all of these of­fenses. Belluno, after experimenting with lesser penalties, reinstated capital punishment for rape in 1428. A few towns, among them Aglie, Bergamo, and Faenza, prescribed graduated scales of punishment, calibrated to fit the cir­cumstances of different cases. Penalties varied according to the marital status of the victim and of the perpetrator, the time and place of the offense, and the degree of malice involved. The customary law of Sardinia prescribed only a fine for rape, but provided that if the full amount of the fine was not paid within fifteen days of conviction the offender would lose a foot.¹⁹⁴ Jean LeCoq (d. ca. 1400) noted a rape case in which the defendant demanded the right to fight a duel with his accuser; the court rejected his demand, however, because the de­fendant was a cleric.¹⁹⁵ Several communities adopted statutes that voided rape prosecutions if both parties were unmarried and were willing to marry each other, provided that the woman’s parents approved the match.^19e Academic law­yers taught that sexual molestation of a girl who had not yet reached puberty merited the death penalty under any circumstances. Lesser sexual assaults, such as kissing or fondling a woman without her consent, were also penalized, but did not warrant the death penalty. The statues of Bergamo provided that

¹⁹³Ancona, Constitutiones 3.12, p. 83; Perugia, Statuta 3.82, fol. 33rb; Ncvizzani, Silva nuptialis, fol. 52rb, 74ra; Bossi, Tractatus υarii, tit. De raptu mulieris 10, fol. 183ra; Albcricus de Rosate₁ Vocabularius s.v. Raptus, fol. 94rb-va; Petrus Grillandus, De penis 10.23, >ⁿ TUJ* io:32vb.

¹⁹⁴Aglie, Capitula et Statuta 50, in Corpus Statutorum Canavisii 1:117; Ancona, Con­stitutiones 3.12, p. 83; Belluno₁ Ius municipale, lib. 3, tit. De adulteriis, c. 1, 2₁ 6₁ fol. 81v-82r; Bergamo, Statuta 9.67, fol. 142v-143r; Borgosesia₁ Statuta 38, ed. Mor₁ p. 159; Caluso₁ Statuta 30, in Corpus Statutorum Canavisii 2:11; Creinona₁ Statuta c. 108, 111, pp. 39—40; Cuneo, Corfius statutorum 6.429, ed. Camilla, p. 225; Faenza₁ Ordinamenta 4.23, fol. 41r; Lessolo₁ Statuta 12₁ in Corpus statutorum Canavisii 2:414; Lucca, Statuta 4.99, 103, 104, fol. 214v, 216v-217r; Messina, Consuetudines 58, p. 24; Modena₁ Statuta 3.60, fol. 79r-v; Perugia, Statuta 3.82, fol. 33rb; Piacenza, Statuta 5.42; Urbino, Statuta 4.39₁ fol. 90r; Valsesia₁ Statuta 4.182, ed. Mor₁ p. 105; Carta de Iogu 21, p. 56; Wunderli, London Church Courts, p. 91.

'⁹⁵Jean LeCoq, Questiones Johannis Galli, no. 80, ed. Marguerite Boulett₁ Bibliothe- que des ecoles franςaises d’Athenes et de Rome, fasc. 156 (Paris: E. de Boccard₁ 1944)₁ PP∙ 95-97-

^l9*^,Lucca, Statuta 4.102, fol. 215v; Parma₁ Statuta 3.57, fol. 128v; Reggio Emilia, Statuta 3.52₁ fol. 159r-v; Spoleto₁ Statuta 2.46, fol. 33r-v; Petrus de Ancharano₁ Comm, to X 5.16.2₁ 1580/81 ed. 5:88: Johannes Boseh₁ De nuptiis 2.22, inTUJ* 6:4rb. there was a presumption against rape if intercourse took place in the house of a third party, provided that the woman entered the house of her own free will.^[1979]

Treatment of rape and related crimes depended greatly on the victim s resis­tance to the advances of the offender. Egidio Bossi (1487-1546) noted that even if the woman consented to intercourse, the incident still counted as rape if vio­lence was employed to induce her consent. The municipal statutes of Belluno (1428) specified, however, that admiring phrases, persuasive speeches, and promises uttered in order to persuade a woman to have sex did not constitute violence.^[1980] On the other hand if the woman wept, wailed, and protested, ac­cording to Bossi, this established a presumption that she did not consent to the advances. Further, even if she consented after the fact, a rape charge could still be pressed against the assailant. Bossi also noted that rape was a crime against her parents as well as against the victim and that abduction and the moving of the unwilling victim from one place to another were of the essence of the crime.^[1981]

Attempted rape was usually punished less severely than a completed at­tack—Bossi suggested deportation as an appropriate remedy, although some cities imposed fines and other sanctions for this crime.^[1982] Lucca and Modena prescribed the same penalties for accessories and accomplices as for the prin­cipal offender, but in practice they generally got off with milder penalties.^[1983]

Legal writers generally agreed that it was rape to have sex with ones fiance by force, but that forcible coitus with ones wife was not a crime. A rape charge was warranted, according to Giovanni Nevizzani, only when carnal knowledge was the principal objective of the attack. Thus if a woman was forcibly abducted and held prisoner, this action would not be punishable as raptus unless the ab­ductor had intercourse with her against her will.^[1984]

The labels “rape” or “ravishment” can be misleading, for the terms de­scribed a variety of situations. When a minor child, for example, was abducted by her mother or father and married to a man of whom the child’s legal guardian did not approve, this might well be classed as ravishment, although it certainly is not in any ordinary sense rape. Parents in these situations no doubt acted for a variety of reasons. In some cases the mother may have been motivated by concern for the child’s well-being, but in others the abducting mother seems to have been more concerned with profiting from her child’s marriage than with anything else. In order to discourage this sort of conduct, Richard II of England approved a statute that disinherited women who were “ravished” in this way, so that the “ravisher” would not profit from the crime. The legislation, however, did not seem to diminish the frequency of the offense.^[1985]

Sins against Nature

Secular and religious lawmakers, as well as law writers, were greatly concerned during this period about “unnatural” sex, particularly homosexuality and mas­turbation. Their interest was reflected in the vastly increased volume of muni­cipal law dealing with homosexual behavior. Some ecclesiastical writers also treated masturbation as a major contravention of natural and divine law.

For reasons that may be linked to concern over the population crisis follow­ing the Black Death, lawmakers in the generation after 1348 suddenly seem to have perceived sodomy as a grave threat to society and visited upon those con­victed of deviant sexual practices severe and gruesome punishments. “Sodomy is a most detestable vice,” declared Egidio Bossi, and municipal authorities clearly agreed. In 1432, Florence even created a special magistrate, the Official of the Curfew and the Convents, to deal with sodomy cases. The magistrate’s title illustrates one feature of popular views of homosexuality, namely that the vice was most prevalent among students and clergy.^[1986] Writers on moral ques­tions lumped together as sodomy any and all sexual practices that they consid­ered unnatural, including masturbation, mutual masturbation, oral sex, and anal sex, either homosexual or heterosexual. Although most sodomy legislation referred specifically to sexual contacts between men, legal theorists contended that sodomy had begun historically with the practices of the women of Sodom and Gomorrah, the “mothers of lust,” as Bossi called them, who were not satis­fied with the sexual pleasure of intercourse with men and consequently in­vented new and perverse pleasures to appease their lust. Men, according to this pseudohistory, had been all too ready to take up these womanly perver­sions, and thus unnatural vice spread through the world.²⁰⁵

Although conservative clerics, such as John Mirc (fl. ca. 1450), cautioned preachers that they should avoid mentioning sodomy and other sexual sins in their sermons, St. Bernardino of Siena threw timidity to the winds and dedi­cated one of his Lenten sermons specifically to sins against nature. He aimed his denunciations squarely at the insanity (as he called it) of homosexual desire, which he believed deranged reason as no other vice could do.²⁰⁰ Either sodomy or masturbation, he declared, furnished more than adequate grounds for a di­vorce, a novel conclusion that several legal writers adopted.²⁰⁷

Municipal statutes often envisioned grisly punishments for homosexuals. Burning alive was by far the most common, although a few towns substituted beheading for burning under some circumstances. Several cities adopted com­plex scales of punishment. Perugia, for example, prescribed heavy fines for the first two convictions and burning alive only for the third, provided that the of­fender was an adult. Perugian boys between the ages of twelve and fifteen who consented to sodomy could be jailed for three months; boys above fifteen were fined £50 in addition to their jail sentences. Age was often a major factor in determining the punishment for sodomy, as was the role, active or passive, played by the convicted person. Other cities distinguished between sodomy committed by married men and by unmarried men. Todi fined both parties to a homosexual act £100, provided that they were under the age of twenty-five. If they failed to pay within ten days, they were to be stripped, tied by the geni­tals, paraded naked through the city, beaten, and expelled from town. If the culprit was between twenty-five and thirty-three, the fine rose to £200, with the same penalty for nonpayment. A culprit over the age of thirty-three was to be burnt publicly and all his property forfeited to the city. Bergamo not merely required a public burning, but also insisted that the condemned mans family be compelled to witness the execution and that they not be permitted to leave un­til the fire was extinguished.²⁰⁸ Case records show that the most horrendous

^z05Bossi, Tractatus υarii, tit. De stupro detestabilis in masculos 4, fol. 190ra-rb; Jean Gerson, De confessione mollitiei, ed. Glorieux 8:72; Paulus Grillandus, De penis 2.1-2, in TUJ* 10:28ra.

²⁰⁶John Mirc, Instructions, 11. 222-25, ed. Peacock, p. 7; St. Bernardino, Sermo 15.1-3, in his Opera 3:267-82.

²⁰⁷ St. Bernardino, Sermo 15.2.2, in his Opera 3:277; Aegidius Bellamera, Comm, to C. 32 q. 7 c. 7, d.p.c. 10, and C. 35 q. 2 & 3 c. 11, 1580 ed. 3^4va-55ra, 92ra-rb; Petrus de Ancharano, Comm, to X 5.16.4, 1580/81 ed. 5:88-89; Bossi, Tractatus varii, tit. De stupro detestabili in masculos 6, fol. 190rb.

²⁰⁸Ancona, Constitutiones 3.12, p. 84; Belluno, Ius municipale, lib. 3, tit. De adulter­iis c. 13, fol. 82v; Bergamo, Statuta 9.76, fol. 143v-144r; Cremona, Statuta 113, p. 41; Faenza, Ordinamenta 4.23, fol. 41r; Lucca, Statuta 4.107, fol. 217v-222v; Modena, Statuta 3∙63, fol. 8or; Orvieto, Reformationes et decreta 3.27, pp. 174-75; Parma, Stet- utβ 3.33, fol. 124v; Perugia, Statuta 3.18, 214, fol. 17rb-va, 63vb-64ra; Reggio Emilia, statutory punishments were reserved for particularly vicious cases, such as ho­mosexual rape and that ordinary offenders were more likely to be whipped, fined, and exiled.^{[1987] [1988]} Men accused of sodomy, like defendants in other serious criminal cases, were denied the right of counsel in presenting their defense. If convicted, their property was usually confiscated and their wills declared void.^[1989]

Masturbation, although classed as an unnatural sex act by moralists, was not subject to public prosecution, and where evidence of it emerged in the course of proceedings for other sex offenses, authorities ignored it.^[1990] Instead, mastur­bation was a matter for the internal forum of confession. Guy de Roye (ca. ¹345^{- 1}4^o9)> Archbishop of Sens, considered masturbation so serious a matter that he classified it as a reserved sin, for which absolution could be granted only by a bishop or diocesan penitentiary, but this doctrine appears to have been peculiar to Guy, for no other authority of the period took a similar stand.^[1991] In­deed, Jean Gerson (1363-1429), who wrote a special treatise on hearing the confessions of masturbators, nowhere indicated that he was dealing with a matter reserved to bishops, although he, too, considered it a grave moral vice. While masturbation was serious, Gerson knew that it was also extremely com­mon. Boys, he observed, often begin to masturbate at the age of five, or even as early as three. By the time they have grown old enough to appreciate the se­riousness of their actions, he declared, they are so addicted to the pleasure it produces that they continue to manipulate their genitals anyway, despite the fact that continued masturbation may lead to even more heinous sex crimes, such as sodomy. Even adults, Gerson added, may continue to practice mastur­bation, and many of them never confess this fact. Gerson advised confessors to question penitents cautiously in order to ferret out secret masturbators and bring them to repent. Gerson suggested that penitents be encouraged to seek good company, to practice abstinence in food and drink, accompanied by fre­quent prayer, flagellation, sprinkling with cold water, and spitting on the ground while renouncing the devil.^[1992]

Other deviant sexual practices attracted scant attention from legal writers, moralists, or lawmakers during this period, although municipal authorities sometimes legislated against sexual relations with animals, which they classed with sodomy. The city fathers of Reggio Emilia felt sufficiently threatened by cross-dressing to impose a £50 fine on transvestites. Their concern, however, seemed to have been primarily that randy men might disguise themselves as women in order to make their way into sections of the churches reserved for females, in order to flirt with the wives and daughters of respectable citizens.^[1993]