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Rape and Adultery in Athenian Law

Published online by Cambridge University Press:  11 February 2009

C. Carey
C. Carey
Affiliation:
Royal Holloway, University of London
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Extract

It is a truism of modern discussions of Athenian law and oratory that the Athenians regarded adultery as a more heinous offence than rape. This consensus has been challenged in a valuable paper by E. M. Harris. But although Harris has successfully (at least in my view) placed in question a number of assumptions about this area of Athenian law and ethics, I wish to argue that the traditional position is in its broad outlines correct. In this as in so many aspects of Athenian law it is difficult to make firm statements. Firstly, for the Athenian system as a whole we lack evidence for many issues of legal prescription and procedure for the period before the restoration of the democracy, and our evidence is frequently lacunose even for the period after the restoration. As a result we are presented with a ‘snapshot’ of the Athenian system at a particular stage in its development and are rarely able to trace chronological developments in detail and frequently unable to trace them in broad outline. A further result of this ‘snapshot’ effect is a false impression of coherence. Legislative measures belonging to different periods are likely to present themselves as the result of an integrated design rather than the product of accretion. Finally, and most importantly, our sources distort. Occasionally they provide information on the laws and on legal procedure in passing, in order to contextualize an argument or narrative; but in general they are presenting us with information in an attempt to persuade.

Type
Research Article
Information
The Classical Quarterly , Volume 45 , Issue 2 , December 1995 , pp. 407 - 417
Copyright
Copyright © The Classical Association 1995

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References

1 See Harris, E. M., CQ 40 (1990), 370–77CrossRefGoogle Scholar. Todd, S. C., The shape of Athenian law (Oxford, 1993) 276Google Scholar is sceptical.

2 Cohen, D., RIDA 31 (1984), 147ff.Google Scholar, Law, sexuality and society (Cambridge, 1991) 98ff.CrossRefGoogle Scholar; cf. Todd (cited n. 1 above) 277. The view taken in the text is that of Paoli, U. E., SDHI 16 (1950), 123–182, esp. 130ffGoogle Scholar. (= Altri studi di diritto greco e romano (Milan, 1976), 251–307, esp. 257ff.Google Scholar). That the effect of the broad definition of moicheia is to make the Athenian system radically different from the other systems known to us in its definition of non-violent illicit sex (as Cohen emphasizes), is not a compelling reason for normalizing the Athenian system. Moreover, it is to be stressed that our evidence for the definition of moicheia in other Greek states is minimal. The broad definition of moicheia in Athens is of a piece with the right which Solonian law granted to a father or brother to sell into slavery a daughter or sister found in illicit sex (Plut, . Sol. 23)Google Scholar.

3 Cohen, 1991 (cited n. 2 above) 108–9 suggests that Stephanos' action could be based on a fraudulent misrepresentation of the divorced Phano as still married. This is unlikely to be the case. In a narrative which emphasizes Stephanos' duplicity, it would be remarkable if this falsehood went unnoted. It is equally surprising that there is no attempt on Epainetos' part to assail the fraudulent claim. Indeed §69 (where Phano's divorce is introduced in a matter-of-fact way) suggests that Phano's situation was familiar to all parties.

4 Cohen, 1984 (cited n. 2 above) 151, Cohen, 1991 (cited n. 2 above) 104.

5 See the citations of Harris (cited n. 1 above) 370 n. 2.

6 Harris (cited n. 1 above) 371.

7 Harrison, A. R. W., The law of Athens I (Oxford, 1968), 34Google Scholar; cf. Harris (cited n. 1 above) 372.

8 Harrison (cited n. 7 above) 34.

9 Probably not ‘on top of’, pace Harris (cited n. 1 above) 372, which would effectively narrow the law to cases involving the missionary position. Moreover, it is unlikely that Euphiletos in Lys. 1.24 would tell us so circumstantially that he found the alleged adulterer lying next to his wife οι μν πρτοι εισιόντες ἓτι ειδομεν αὐτ7nu; κατακειμενον παρ τι γυναικι, οι δ' ὒστερον ν τι κλινμι γυμνν στηκότα, ‘those of us who entered first still saw him lying next to my wife, while those who came in after saw him standing naked on the bed’), if one of the laws on which he proposes to base his defence was generally understood to mean that the perpetrator should be on top of the female. Better is Paoli's ‘presso la moglie’ (cited n. 2 above) 127 = 254.1 take it that the prepositional phrase expresses the circumstances (‘at’), as in π' αὐτοΦώρωι λαβειν, rather than the position. See also next note.

10 Interestingly the law does not specify that sex should have been completed or even that it should be in progress when the man is caught. There is moreover no indication that the couple should be naked or partly clothed (though Lysias in speech 1 feels obliged to provide this information; see preceding note). It is of course always possible, since Greek laws notoriously rely on common sense interpretation (‘the man on the Clapham omnibus’ approach) that sexual intercourse begun or completed is to be understood. More probably in a society which discouraged contact between unrelated males and females the presence of a man alone with a decent woman offers a prima facie case for assuming that illicit sex is intended or in progress.

11 Harris (cited n. 1 above) 373; cf. Todd (cited n. 1 above) 277 and Paoli (cited n. 2 above) 168f. = 294f.

12 Dem. 45.4, Apollodoros brings a graphe hybreos against Phormion for marrying his mother. Since the case never came to court, we do not know how Apollodoros denned the alleged hybris and we can only guess at the arguments Apollodoros might have used to induce the jurors to accept his definition of the alleged actions. He does however state that he brought this action because procedures for private suits had been temporarily suspended. The only certain trial for hybris known to us, Isai. 8.41 (alleged wrongful imprisonment with the intention of bringing about the disfranchisement of the victim, presumably by preventing him from performing military service or discharging a debt to the treasury) involves the use of force (the treatment of this instance by Murray, O., in Nomos: studies in Athenian law, politics and society, Cartledge-Millett-Todd, , (ed.), (Cambridge, 1990) 141Google Scholar, places too much emphasis on atimia to the detriment of the element of force). For other possible actions for hybris (and threats to bring such an action) see Fisher, N. R. E. in Nomos: studies in Athenian law, politics and society (cited above) 125–6Google Scholar.

13 See Harrison (cited n. 7 above) 32f. Whether the graphe hybreos was also available in cases of moicheia (as Harrison 35 supposes) is not clear.

14 D. Cohen, 1984 (cited n. 2 above) 155ff., Cohen, 1990 (cited n. 2 above) 110ff., Todd (cited n. 1 above) 276.

15 Harris (cited n. 1 above) 376f.

16 Hansen, M. H., GRBS 22 (1981), 22fGoogle Scholar.

17 Hansen, M. H., GRBS 22 (1981), 26Google Scholar.

18 See [Dem.] 23, quoted above.

19 Arist. Ath. Pol. 52.1.

20 Pace Carey, C.Lysias, selected speeches (Cambridge, 1989) 75Google Scholar, who errs in concentrating on the law of justifiable homicide, not the law on moicheia.

21 Cf. Carey (cited n. 20 above) 60 n. 5.

22 Cf. Arist. Ath. Pol. 57.3 ν δ' ποκτειναι μν τις μολογι, Φι δ κατ τοὺς νμους οιον μοιχν λαβὼν ἣ ν πολέμωι γνοσας ἣ ν ἃθλωι γωνιξόμενος, τούτωι πι ΔελΦινιωι δικάξουσιν.

If someone admits homicide but claims that he killed legally, for instance having caught a moichos or in war through ignorance or in an athletic competition, he is tried at the Delphinion.

23 Cf. Xen. Hieron 3. 6 οὐ μν δ λληθεν οὐδ τδ πόλεις ὃτι ἣ Φιλια μέγιστον γαθν και ἣδιστον νθρὼποιδ στιν μόνουδ γον τούδ μοιχούδ νομιξουσι νηποινει ποκτεινειν, δλον ἂτι δι τατα ἂτι λυμαντρας αὐτοὐς νομιξουσι τς τν γυναικν Φιλας πρός τούς ἂνδραδ ειναι.

Not even cities are unaware that friendship is the greatest boon and pleasure for mankind. At any rate, they see fit to kill only moichoi with impunity, evidently because they consider them defilers of the affection of wives for their husbands.

24 Lys. 1.48 [οἱ νόμοι] κελεύουσι μέν, ν τις μιιχν λβηι, ὃτι ἃν βοληται χρσθαι.

[the laws] prescribe that it anyone catches a moichos he should treat him as he pleases.

For punishments see Carey, C., LCM 18 (1993), 53ffGoogle Scholar. It is conceivable, but unprovable, that the right to kill granted under moicheia law rested on this clause allowing physical maltreatment at will.

25 [ νόμος] Kappa;ελεύει, ν τις δικως ειρξηι ὡς μοιχ7nu;, γρψασθαι πρδ τρὺς θεσμοθτας δικως ειρχθναι, και ν μν ἓληι τν ειρξαντα και δόξηι δικωσ πιβεβρυλεσθαι, θιον ειναι αὑτν και τος γγυητς πηλλχθαι τς ν δ δξηι μοιχδ ειναι, π αραςοναι αὑτν κελεει τοὺς γγυητς τι λόντι, πι δ το σικαστηριου ἂνευ γχειριδιου χρσθαι ὃ τι ἃν βουληθι.

[the law] prescribes that if anyone falsely imprisons another as an adulterer the victim may indict him before the Thesmothetai for false imprisonment, and that if he secures the conviction of the man who imprisoned him and it is decided that he has been the victim of a dishonest plot, he is liable to no penalty and his sureties are quit of their bail; however, if it is decided that he is an adulterer, the law prescribes that his sureties are to deliver him to his captor, who may treat him as he chooses in the court, short of using a knife.

26 Cf. [Dem.] 59.87, Aischin. 1.183.

27 οὒτως, ὢ ἂνςρες, τος βιαξομένους λττονος ξημιας ζιουσ ἠγἠσατο ειναι ἣ τοὺς πειθοντας τν μν γρ θάνατον κατέγνω, τοις δέ διπλν ποιησε τν βλβην, ἠγούμενος τούς μν διαπραττομνους βιαι ὑπ τν βιασθντων μισεισθαι, τοὺς δ πεισαντας οὔτωσ αὐτν τς ψυχς διαΦθειρειν ὣστ οικειτρας αὔτοις ποιειν τς λλοτριας γυναικς ἣ τοις νδρσι, και πᾱσαν π' κεινοις τἠν οικιαν γεγονέναι, και τοὺς παιδας δλους ειναι ποτρων τυγχνουσιν ντες, τν νδρν ἢ τν μοιχν.

Which shows, gentlemen, that he considered those who use force deserving of a lesser penalty than those who use persuasion. For the latter he condemned to death, while for the former he doubled the damages, because he thought that those who get their way with violence are hated by their victims, while those who use persuasion so corrupt the minds of the women that they make other men's wives more their own than their husbands', with the result that the whole household is firmly under their control and it is unclear whose the children are, the husbands’ or the lovers'.

28 Xen. Hieron 3.6, quoted n. 23 above.

29 E.g.Dysc. 842f. λλ' γγυ παιδων π' ρτων γνησιων τν θυγατρ'…

I bestow my daughter for the sowing [pit. ploughing] of legitimate children…

30 For the epikleros see in general Harrison (cited n. 7 above) 132ff.

31 Paoli (cited n. 2 above) 139/266. His further argument (142/269) that the act must take place within the family house to count as moicheia is supported by no evidence. It is important to note that the relative seriousness of adultery and rape has nothing whatever to do with the value attached to women as a sex or as individuals, since the penalties for rape are not affected by the sex of the victim.

32 For the developments in the inheritance rights of bastards see Harrison (cited n. 7 above) 67f.

33 The issue of the citizen status of nothoi with Athenian parentage on both sides is controversial (for a recent discussion which argues against the view taken here, with bibliography of the debate, see Patterson, C.Classical Antiquity 9 [1990], 40–73CrossRefGoogle Scholar) and likely to remain so. There is no reason a priori to suppose that adult males in this category were or were not included within the number of full citizens, since practice with reference to the rights of bastards varied from polis to polis (Arist. Pol. 1278a29). And ancient evidence is disappointingly ambiguous. My own view, that bastards with an Athenian father before 451/0 or two Athenian parents after 451/50 were entitled to citizen rights, is based on four passages, Arist. Ath. Pol. 42.1, [Dem.] 57.17, Isai. 12.7, Hyp. fr. 29. Ath. Pol. 42.1 omits legitimacy from the criteria for citizenship. This silence alone is inconclusive, but the conspiracy of silence between Ath. Pol. and [Dem.] 57.17, which again ignores legitimacy, is more difficult to dismiss. In particular, the speaker of [Dem.] 57 is facing a potentially hostile jury (as he stresses in the proem) who know the conditions for citizenship as well as he does and will notice any obvious omission. The MSS. text at Isai. 12.7 says that a man is a citizen because μτηρ στι τ' στι και πατρ: the reference to marriage in printed texts is modern conjecture. In 338 Hypereides (fr. 29) lists as lacking rights slaves, debtors to the treasury, the ἂτιμοι, the πεψηισμένοι (under the Demophilos decree) and metics, but not nothoi. Nolhoi of Athenian parentage on both sides cannot be tacitly subsumed as a class under the reference to ἂτιμοι (on the assumption that this category automatically lacked citizen rights), since only someone who had lost his rights would be referred to as ἂτιμοσ. It would be strange if Hypereides ignored a group with a seemingly better claim to citizenship, while mentioning metics and slaves.

34 Cohen, 1990 (cited n. 2 above) 168.

35 E.g. Ar. Av. 793–5, Thesm. 478ff.

36 This paper was originally delivered at a seminar at the University of Genoa in February 1994. I wish to record my thanks to my colleague at Royal Holloway, Dr. Isa Busticardi, for correcting the original Italian version, and to the Dipartimento di Archeologia e Filologia Classica at Genoa for their hospitality, in particular to Prof. Umberto Albini. Finally, I wish to thank the anonymous referee for sharp criticisms from which the discussion has benefited.