Stuprum: Public Attitudes and Penalties for Sexual Offences in Republican Rome

Echos du Monde Classiqu.e!Classical Views XXXV, n.s. 10, 1991, 267-91 STUPRUM: PuBLIC ATilTUDES AND PENALTIES FOR SEXUAL OFFENCES IN REPUBLICAN ROME' ELAINE FANiliAM In 38 BC C. Julius Caesar Octavianus divorced his second wife Scribonia immediately after she had borne him a daughter, Julia, to marry Livia, wife of Ti. Claudius Nero, at that time six months pregnant with Nero's second son, Drusus.1 Twenty years later, as Augustus Caesar, he enacted what is known as the Lex Julia de adulteriis, the first law to make adultery a criminal offence and to subject to public prosecution what had previously been a family issue, the sexual activity of women outside marriage.2 Under this law the husband confronted with his wife's infidelity was not left the option of forgiving or ignoring her offence, but was open to prosecution for pandering if he did not begin divorce proceedings: either he or the woman's father was then given sixty days in which to launch prosecution for adultery against first the lover, then, on obtaining his conviction, the ex-wife: in default of the husband or father, once these sixty days had elapsed, outsiders were encouraged to lay charges against the lover, the wife, and the husband himself, for his complicity. The woman's father was authorized to kill the lover caught in the act in the paternal or marital home, provided that he also killed his daughter at the same time. The husband's rights were much more limited: he had no right to kill the wife, and could kill the lover only if he surprised him in the marital home and the man was of a disreputable social class. Adulterers found guilty were condemned to confiscation of a substantial part of their estate and relegation to an offshore island. The same law applied to the much smaller number of women not yet, or •1 would like to acknowledge the generous advice of Susan Treggiari, who allowed me to consult her own continuing research into Roman marriage, and saved me from some errors of law in this presentation. I would also like to thank Amy Richlin and the late Jack Winkler for their kind. comments on an earlier draft, and the improvements which I owe to their recommendations. Any remaining inaccuracies are my own. I On Octavian's divorce of Scribonia and marriage to Livia, see Suet. Aug. 62-63, Cass. Dio 48.34.3, with discussion by Carcopino (1958) 65-82. 2 On the Augustan marriage laws in general, see Csillag (1976). On the Lex Julia de adulteriis in particular, see Csillag 175-99 (1976). The details of the adultery law are derived from the citations of later jurists in Digest 48.5. Galinsky (1981) argues that moral reconstruction, rather than demographic concerns, motivated these laws: "the main target...was the pleasure oriented way of life especially of the Roman nobility, and the main goal was the restoration of a sound family life" (128). 267 268 ELAINE FANTlIAM no longer, married, whose sexual activity was designated as stuprum: the basic prohibition was ne quis posthac stuprum adulteriumve facito sciens dolo malo "Let no one henceforth commit fornication or adultery wittingly or with malice aforethought" (Digest 48.5.13). Its most famous victim, sixteen years later, was Augustus' daughter Julia, condemned by the emperor as judge in a private hearing, but denounced publicly to an embarrassed senate, disinherited and sent to the barren island of Pandateria. She was never allowed to return to Rome or reenter normal civilian life.3 It is not surprising to find the adultery of wives severely punished and their killing at their father's hand approved. But the law provokes two types of question. First, why was the sexual activity of unmarried women assimilated to adultery and treated with equal severity? And second, since Rome had flourished for many centuries without this legislation, why had it become necessary at this juncture?4 Since Roman wives had not waited until this generation to practise extramarital sex, we must ask whether attitudes had suddenly changed, or previously efficient sanctions ceased to work. In short, what were the attitudes and sanctions affecting sexual activity...