TheLex Scantinia (less oftenScatinia) is a poorly documented[1]Roman law that penalizedstuprum (criminalized sexual behavior or "sex crime") against a freeborn male minor (ingenuus orpraetextatus).[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 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 theLex Scantinia seems to have been harassing political opponents whose lifestyles opened them to criticism as being passive homosexuals orpederasts in the Hellenistic manner.[3]
The law may have madestuprum 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 theRepublic. The conflation of theLex 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]
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 hislibertas, "liberty," and allowing his body to be used for pleasure by others was considered servile or submissive and a threat to his integrity.[7] ARoman's masculinity was not compromised by his having sex with males of lower status, such as maleprostitutes orslaves, 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 receivinganal sex or performingoral sex was thought to lackvirtus, the quality that distinguished a man (vir).[9]
The protective amulet (bulla) worn by freeborn Roman boys was a visible sign that they weresexually off-limits.[10] Puberty was considered a dangerous transitional stage in the formation of masculine identity.[11] When a boycame of age, he removed hisbulla, dedicated it to thehousehold gods, and became sexually active under the patronage ofLiber, 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.
AsJohn Boswell has noted, "if there was a law against homosexual relations, no one inCicero's day knew anything about it."[13] Although theLex 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 thepathic ("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 asemivir, "half-man," fears theLex Scantinia.[17]
It has sometimes been argued that theLex Scantinia was mainly concerned with therape of freeborn youth,[18] but the narrowness of this interpretation has been doubted.[19] The law may have codified traditional sanctions againststuprum involving men, as a forerunner to theLex Julia de adulteriis coercendis that criminalizedadultery involving women.[20] The early Christian poetPrudentius makes a scathing joke that ifJupiter 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 orsexual use by their masters. Male prostitutes and entertainers, even if technically "free," were consideredinfames, 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 theLex Scantinia the couple could have been prosecuted if both were free citizens.[23]
The infrequency with which theLex Scantinia is invoked in the literary sources suggests that prosecutions during theRepublican era were aimed at harassing political opponents, while those during the reign ofDomitian occurred in a general climate of political and moral crisis.[24]
Two letters written to Cicero byCaelius[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 ofcalumnia, a charge ofmalicious 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 withAppius Claudius Pulcher, theconsul of 54 BC and a currentcensor who had refused to lend him money and with whose sister Caelius had a disastrous love affair.[29] Appius's term as censor was a moral "reign of terror" that stripped multiplesenators andequestrians of their rank;[30] sometime during the fall of that year he indicted[31] Caelius, a sittingcurule aedile, under theLex Scantinia. Caelius was happy to respond in kind. Both cases were presided over by thepraetorMarcus 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 onpublic morals included sexual offenses such as adultery and illicit sex (incestum) with aVestal, and several men from both the senatorial and equestrian order were condemned under theLex Scantinia.[36]
Quintilian[37] refers to a fine of 10,000sesterces for committingstuprum with a freeborn male, sometimes construed as referring to theLex Scantinia,[38] though the law is not named in the passage.[39]
A Roman law (lex, pluralleges) was typically named after the official who proposed it, and never after adefendant. In 227 or 226 BC, Gaius Scantinius Capitolinus was put on trial for sexually molesting theson ofMarcus Claudius Marcellus; a certain irony would attend theLex 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 thefamily name from the crime.[41] The law has also been dated to 216 BC, when a Publius Scantinius waspontifex, 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 theDigest.[44]
^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-documentedLex Julia de adulteriis coercendis. See alsoEva 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.
^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.
^Elaine Fantham, "Stuprum: Public Attitudes and Penalties for Sexual Offences in Republican Rome," inRoman Readings: Roman Response to Greek Literature from Plautus to Statius and Quintilian (Walter de Gruyter, 2011), p. 138, and see"Prosecutions" below.
^Jonathan Walters, "Invading the Roman Body," inRoman 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.
^Williams,Roman Homosexuality, p. 304, citing Saara Lilja,Homosexuality in Republican and Augustan Rome (Societas Scientiarum Fennica, 1983), p. 122.
^Williams,Roman Homosexuality, p. 18et passim; Cantarella,Bisexuality in the Ancient World, p. 98ff.; Skinner, introduction toRoman Sexualities (Princeton University Press, 1997), p. 11.
^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," inRoman Sexualities, pp. 67–68.
^Williams,Roman Homosexuality, p. 18et passim; Skinner, introduction toRoman Sexualities, p. 11.
^Amy Richlin, "Not before Homosexuality: The Materiality of thecinaedus and the Roman Law against Love between Men,"Journal of the History of Sexuality 3.4 (1993) 523-573.
^Plutarch,Moralia 288a; Thomas Habinek, "The Invention of Sexuality in the World-City of Rome," inThe Roman Cultural Revolution (Cambridge University Press, 1997), p. 39; Richlin, "Not before Homosexuality," pp. 545–546.
^Richlin, "Not before Homosexuality," pp. 545–548.
^Larissa Bonfante, introduction toThe World of Roman Costume (University of Wisconsin Press, 2001), p. 7; Shelley Stone, "The Toga: From National to Ceremonial Costume," inThe 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.
^Boswell,Christianity, Social Tolerance, and Homosexuality, p. 69.
^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 writersAusonius,Tertullian, andPrudentius.
^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.
^Prudentius,Peristephanon 10.201–205; Williams,Roman Homosexuality, p. 124.
^Walters, "Invading the Roman Body," pp. 34–35; Richlin,The Garden of Priapus, p. 224.
^James L. Butrica, "Some Myths and Anomalies in the Study of Roman Sexuality," inSame-Sex Desire and Love in Greco-Roman Antiquity and in the Classical Tradition (Haworth Press, 2005), pp. 234–236.
^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.
^Ad familiares 8.12 and 8.14 (letters 97 and 98 in the numbering ofShackleton Bailey).
^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.
^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.
^Cantarella,Bisexuality in the Ancient World, p. 107.
^As implied by Juvenal,Satire 2.43f.; Phang,Roman Military Service, p. 279.
^QuintilianInstitutio Oratoria4.2.69: "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).
^Sara Elise Phang,Roman Military Service: Ideologies of Discipline in the Late Republic and Early Principate (Cambridge University Press, 2008), p. 257.
^Cantarella,Bisexuality in the Ancient World, p. 111; Fantham, "Stuprum: Public Attitudes and Penalties for Sexual Offences in Republican Rome," p. 139.
^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.
See entryScantinius in Smith,Dictionary of Greek and Roman Biography and Mythology
Valerius Maximus (translated by Henry J. Walker):The story of Scantinius (fromFactorum ac dictorum memorabilium libri IX) later resulting in the passing ofLex Scantinia named after Scantinius the aedile
