Lex Scantinia

The Lex Scantinia (less often Scatinia) is a poorly documented[1] Roman law that penalized a sex crime (stuprum) against a freeborn male minor (ingenuus or praetextatus).[2] The law may also have been used to prosecute adult male citizens who willingly took a passive role in having sex with other men. It was thus aimed at protecting the citizen's body from sexual abuse (stuprum), but did not prohibit homosexual behavior as such, as long as the passive partner was not a citizen in good standing. The primary use of the Lex Scantinia seems to have been harassing political opponents whose lifestyles opened them to criticism as passive homosexuals or pederasts in the Hellenistic manner.[3]

The law may have made stuprum against a minor a capital crime, but this is unclear: a large fine may have been imposed instead, as executions of Roman citizens were rarely imposed by a court of law during the Republic. The conflation of the Lex Scantinia with later or other restrictions on sexual behaviors has sometimes led to erroneous assertions that the Romans had strict laws and penalties against homosexuality in general.[4]

Background
Roman boy wearing a bulla, which marked him as sexually off-limits
See also: Sexuality in ancient Rome

Latin has no words that are straightforwardly equivalent to "homosexual" and "heterosexual."[5] The main dichotomy within Roman sexuality was active/dominant/masculine and passive/submissive/"feminized."[6] The adult male citizen was defined by his libertas, "liberty," and allowing his body to be used for pleasure by others was considered servile or submissive and a threat to his integrity.[7] A Roman's masculinity was not compromised by his having sex with males of lower status, such as male prostitutes or slaves, as long as he took the active, penetrating role.[8] Same-sex relations among Roman men thus differed from the Greek ideal of homosexuality among freeborn men of equal social status, but usually with some difference in age (see "Homosexuality in ancient Greece" and "Pederasty in ancient Greece"). The adult Roman male who enjoyed receiving anal sex or performing oral sex was thought to lack virtus, the quality that distinguished a man (vir).[9]

The protective amulet (bulla) worn by freeborn Roman boys was a visible sign that they were sexually off-limits.[10] Puberty was considered a dangerous transitional stage in the formation of masculine identity.[11] When a boy came of age, he removed his bulla, dedicated it to the household gods, and became sexually active under the patronage of Liber, the god of both political and sexual liberty.[12] Pederasty among the Romans involved an adult male citizen and a youth who was typically a slave between the ages of 12 and 20.

The law

As John Boswell has noted, "if there was a law against homosexual relations, no one in Cicero's day knew anything about it."[13] Although the Lex Scantinia is mentioned in several ancient sources,[14] its provisions are unclear. It penalized the debauchery (stuprum) of a youth, but may also have permitted the prosecution of citizens who chose to take the pathic ("passive" or "submissive") role in homosexual relations.[15] Suetonius mentions the law in the context of punishments for those who are "unchaste," which for male citizens often implies pathic behavior;[16] Ausonius has an epigram in which a semivir, "half-man," fears the Lex Scantinia.[17]

It has sometimes been argued that the Lex Scantinia was mainly concerned with the rape of freeborn youth,[18] but the narrowness of this interpretation has been doubted.[19] The law may have codified traditional sanctions against stuprum involving men, as a forerunner to the Lex Julia de adulteriis coercendis that criminalized adultery involving women.[20] The early Christian poet Prudentius makes a scathing joke that if Jupiter had been subject to Roman law, he could have been convicted under both the Julian and the Scantinian laws.[21]

Only youths from freeborn families in good standing were protected under the law;[22] children born or sold into slavery, or those who fell into slavery through military conquest, were subject to prostitution or sexual use by their masters. Male prostitutes and entertainers, even if technically "free," were considered infames, of no social standing, and were also excluded from the protections afforded the citizen's body. Although male slaves were sometimes granted freedom in recognition of a favored sexual relationship with their master, in some cases of genuine affection they may have remained legally slaves, since under the Lex Scantinia the couple could have been prosecuted if both were free citizens.[23]

Prosecutions

The infrequency with which the Lex Scantinia is invoked in the literary sources suggests that prosecutions during the Republican era were aimed at harassing political opponents, while those during the reign of Domitian occurred in a general climate of political and moral crisis.[24]

Two letters written to Cicero by Caelius[25] indicate that the law was used as a "political weapon";[26] ancient Rome had no public prosecutors, and charges could be filed and prosecuted by any citizen with the legal expertise to do so. Abuse of the courts was reined in to some extent by the threat of calumnia, a charge of malicious prosecution,[27] but retaliatory charges motivated by politics or personal enmity, as Caelius makes clear in this case, were not uncommon.[28] In 50 BC, Caelius was engaged in a feud with Appius Claudius Pulcher, the consul of 54 BC and a current censor. A. Claudius Pulcher had refused to lend Caelius money and also had a disastrous love affair with Caelius' sister.[29] A. Claudius Pulcher's term as censor was a moral "reign of terror" that stripped multiple senators and equestrians of their rank;[30] sometime during the fall of that year he indicted[31] Caelius, a sitting curule aedile, under the Lex Scantinia. Caelius was happy to respond in kind. Both cases were presided over by the praetor Marcus Livius Drusus Claudianus—ironically, in the view of Caelius, since Drusus himself was "a notorious offender"[32]—and evidently came to nothing.[33] "Few people," Eva Cantarella observed, "were completely free of suspicion in this area."[34]

Although the law remained on the books, it had been largely ignored[35] until Domitian began to enforce it as part of his broad program of judicial reform. The crackdown on public morals included sexual offenses such as adultery and illicit sex (incestum) with a Vestal, and several men from both the senatorial and equestrian order were condemned under the Lex Scantinia.[36]

Quintilian[37] refers to a fine of 10,000 sesterces for committing stuprum with a freeborn male, sometimes construed as referring to the Lex Scantinia,[38] though the law is not named in the passage.[39]

History of the law

A Roman law (lex, plural leges) was typically named after the official who proposed it, and never after a defendant. In 227 or 226 BC, Gaius Scantinius Capitolinus was put on trial for sexually molesting the son of Marcus Claudius Marcellus; a certain irony would attend the Lex Scantinia if in fact he had been its proposer.[40] It may be that a relative of Scantinius Capitolinus proposed the law in a display of probity to disassociate the family name from the crime.[41] The law has also been dated to 216 BC, when a Publius Scantinius was pontifex, or 149 BC.[42] The earliest direct mention of it occurs in 50 BC, in the correspondence of Cicero,[43] and it appears not at all in the Digest.[44]

See also

References
  1. Craig Williams, Roman Homosexuality: Ideologies of Masculinity in Classical Antiquity (Oxford University Press, 1999), p. 116, calls it a "notoriously elusive" law to which "scattered and vague references" are made in the ancient sources, in contrast to the well-documented Lex Julia de adulteriis coercendis. See also Eva Cantarella, Bisexuality in the Ancient World (Yale University Press, 1992), p. 106; Thomas A.J. McGinn, Prostitution, Sexuality and the Law in Ancient Rome (Oxford University Press, 1998), p. 141; Amy Richlin, The Garden of Priapus: Sexuality and Aggression in Roman Humor (Oxford University Press, 1983, 1992), p. 224; John Boswell, Christianity, Social Tolerance, and Homosexuality: Gay People in Western Europe from the Beginning of the Christian Era to the Fourteenth Century (University of Chicago Press, 1980), pp. 63, 68.
  2. McGinn, Prostitution, Sexuality and the Law, pp. 140–141; Richlin, The Garden of Priapus, pp. 86, 224; Boswell, Christianity, Social Tolerance, and Homosexuality, p. 67, pointing out that this is the only certain provision of the law.
  3. Elaine Fantham, "Stuprum: Public Attitudes and Penalties for Sexual Offences in Republican Rome," in Roman Readings: Roman Response to Greek Literature from Plautus to Statius and Quintilian (Walter de Gruyter, 2011), p. 138, and see "Prosecutions" below.
  4. Jonathan Walters, "Invading the Roman Body," in Roman Sexualites (Princeton University Press, 1997), pp. 33–35, noting particularly the too-broad definition of the law by Adolf Berger, Encyclopedic Dictionary of Roman Law (American Philosophical Society, 1953, reprinted 1991), pp. 559 and 719, as prohibiting pederasty in general.
  5. Williams, Roman Homosexuality, p. 304, citing Saara Lilja, Homosexuality in Republican and Augustan Rome (Societas Scientiarum Fennica, 1983), p. 122.
  6. Williams, Roman Homosexuality, p. 18 et passim; Cantarella, Bisexuality in the Ancient World, p. 98ff.; Skinner, introduction to Roman Sexualities (Princeton University Press, 1997), p. 11.
  7. Thomas A.J. McGinn, Prostitution, Sexuality and the Law in Ancient Rome (Oxford University Press, 1998), p. 326; Catharine Edwards, "Unspeakable Professions: Public Performance and Prostitution in Ancient Rome," in Roman Sexualities, pp. 67–68.
  8. Williams, Roman Homosexuality, p. 18 et passim; Skinner, introduction to Roman Sexualities, p. 11.
  9. Amy Richlin, "Not before Homosexuality: The Materiality of the cinaedus and the Roman Law against Love between Men," Journal of the History of Sexuality 3.4 (1993) 523-573.
  10. Plutarch, Moralia 288a; Thomas Habinek, "The Invention of Sexuality in the World-City of Rome," in The Roman Cultural Revolution (Cambridge University Press, 1997), p. 39; Richlin, "Not before Homosexuality," pp. 545–546.
  11. Richlin, "Not before Homosexuality," pp. 545–548.
  12. Larissa Bonfante, introduction to The World of Roman Costume (University of Wisconsin Press, 2001), p. 7; Shelley Stone, "The Toga: From National to Ceremonial Costume," in The World of Roman Costume, p. 41; Judith Lynn Sebesta, "Women's Costume and Feminine Civic Morality in Augustan Rome," Gender & History 9.3 (1997), p. 533.
  13. Boswell, Christianity, Social Tolerance, and Homosexuality, p. 69.
  14. Cicero, Ad familiares 8.12.3, 8.14.4; Suetonius, Life of Domitian 8.3; Juvenal, Satire 2, as noted by Richlin, The Garden of Priapus, p. 224. Cantarella, Bisexuality, p. 107, lists references in addition in the Christian writers Ausonius, Tertullian, and Prudentius.
  15. Richlin, The Garden of Priapus, p. 224; Catharine Edwards, The Politics of Immorality in Ancient Rome (Cambridge University Press, 1993), p. 71; Marguerite Johnson and Terry Ryan, Sexuality in Greek and Roman Society and Literature: A Sourcebook (Routledge, 2005), p. 7.
  16. Richlin, The Garden of Priapus, p. 224.
  17. Williams, Roman Homosexuality, p. 122.
  18. Fantham, "Stuprum: Public Attitudes and Penalties for Sexual Offences in Republican Rome," p. 137.
  19. McGinn, Prostitution, Sexuality and the Law, p. 141.
  20. Williams, Roman Homosexuality, pp. 122–126.
  21. Prudentius, Peristephanon 10.201–205; Williams, Roman Homosexuality, p. 124.
  22. Walters, "Invading the Roman Body," pp. 34–35; Richlin, The Garden of Priapus, p. 224.
  23. James L. Butrica, "Some Myths and Anomalies in the Study of Roman Sexuality," in Same-Sex Desire and Love in Greco-Roman Antiquity and in the Classical Tradition (Haworth Press, 2005), pp. 234–236.
  24. Butrica, "Some Myths and Anomalies in the Study of Roman Sexuality," p. 231; Ray Laurence, Roman Passions: A History of Pleasure in Imperial Rome (Continuum, 2009, 2010), p. 68.
  25. Ad familiares 8.12 and 8.14 (letters 97 and 98 in the numbering of Shackleton Bailey).
  26. Richlin, The Garden of Priapus, p.224.
  27. H. Galsterer, "The Administration of Justice," in The Cambridge Ancient History: The Augustan Empire, 43 B.C.–A.D. 69 (Cambridge University Press, 1996), p. 402.
  28. Richlin, The Garden of Priapus, p. 224.
  29. Marilyn Skinner, Clodia Metelli: The Tribune's Sister (Oxford University Press, 2011), pp. 101–102.
  30. D.R. Shackleton Bailey, Cicero Epistulae ad familiares (Cambridge University Press, 1977), vol. 1, p. 432.
  31. The actual prosecutor was the obscure Sevius or Servius Pola.
  32. Shackleton Bailey, Epistulae, p. 433.
  33. Michael C. Alexander, Trials in the Late Roman Republic, 149 BC to 50 BC (University of Toronto Press, 1990), pp. 167–168, records no outcome for either.
  34. Cantarella, Bisexuality in the Ancient World, p. 107.
  35. As implied by Juvenal, Satire 2.43f.; Phang, Roman Military Service, p. 279.
  36. Suetonius, Life of Domitian 8.
  37. Quintilian Institutio Oratoria 4.2.69: "He assaulted a freeborn boy, and the latter hanged himself, but that is no reason for the author of the assault to be awarded capital punishment as having caused his death; he will instead pay 10,000 sesterces, the fine imposed by law for such a crime" (ingenuum stupravit et stupratus se suspendit: non tamen ideo stuprator capite ut causa mortis punietur, sed decem milia, quae poena stupratori constituta est, dabit).
  38. Sara Elise Phang, Roman Military Service: Ideologies of Discipline in the Late Republic and Early Principate (Cambridge University Press, 2008), p. 257.
  39. Walters, "Invading the Roman Body," p. 34.
  40. Phang, Roman Military Service, p. 278.
  41. Cantarella, Bisexuality in the Ancient World, p. 111; Fantham, "Stuprum: Public Attitudes and Penalties for Sexual Offences in Republican Rome," p. 139.
  42. Cantarella, Bisexuality in the Ancient World, p. 111; Phang, Roman Military Service, p. 278. Cantarella rejects the proposal that the law be dated to 149.
  43. Phang, Roman Military Service, p. 278.
  44. Phang, Roman Military Service, p. 279.

Further reading
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