Lex Scantinia
Encyclopedia
The Lex Scantinia is a poorly documented ancient Roman law
that penalized a sex crime (stuprum) against a freeborn male minor (ingenuus
or praetextatus). 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.
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 penalites against homosexuality in general.
has no words that are straightforwardly equivalent to "homosexual" and "heterosexual." The main dichotomy within Roman sexuality was active/dominant/masculine and passive/submissive/"feminized." 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. 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. 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).
The protective amulet (bulla
) worn by freeborn Roman boys was a visible sign that they were sexually off-limits. Puberty was considered a dangerous transitional stage in the formation of masculine identity. 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. Pederasty among the Romans involved an adult male citizen and a youth who was typically a slave between the ages of 12 and 20.
's day knew anything about it." Although the Lex Scantinia is mentioned in several ancient sources, 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. Suetonius
mentions the law in the context of punishments for those who are "unchaste," which for male citizens often implies pathic behavior; Ausonius
has an epigram in which a semivir, "half-man," fears the Lex Scantinia.
It has sometimes been argued that the Lex Scantinia was mainly concerned with the rape of freeborn youth, but the narrowness of this interpretation has been doubted. 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. 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.
Only youths from freeborn families in good standing were protected under the law; 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.
were aimed at harassing political opponents, while those during the reign of Domitian
occurred in a general climate of political and moral crisis.
Two letters written to Cicero by Caelius
indicate that the law was used as a "political weapon"; 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
, but retaliatory charges motivated by politics or personal enmity, as Caelius makes clear in this case, were not uncommon. In 50 BC, Caelius was engaged in a feud with Appius Claudius Pulcher, the consul
of 54 BC and a current censor, who had refused to lend him money and with whose sister Caelius had a disastrous love affair. Appius's term as censor was a moral "reign of terror" that stripped multiple senators and equestrians of their rank; sometime during the fall of that year he indicted 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"—and evidently came to nothing. "Few people," Eva Cantarella
observed, "were completely free of suspicion in this area."
Although the law remained on the books, it had been largely ignored 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.
Quintilian
refers to a fine of 10,000 sesterces for committing stuprum with a freeborn male, sometimes construed as referring to the Lex Scantinia, though the law is not named in the passage.
. 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. 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. The law has also been dated to 216 BC, when a Publius Scantinius was pontifex
, or 149 BC. The earliest direct mention of it occurs in 50 BC, in the correspondence of Cicero, and it appears not at all in the Digest.
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
that penalized a sex crime (stuprum) against a freeborn male minor (ingenuus
Ingenui
Ingenui or ingenuitas , was a legal term of ancient Rome indicating those freemen who were born free, as distinct from, for example, freedmen, who were freemen who had once been slaves....
or praetextatus). 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.
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
Roman Republic
The Roman Republic was the period of the ancient Roman civilization where the government operated as a republic. It began with the overthrow of the Roman monarchy, traditionally dated around 508 BC, and its replacement by a government headed by two consuls, elected annually by the citizens and...
. 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 penalites against homosexuality in general.
Background
LatinLatin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
has no words that are straightforwardly equivalent to "homosexual" and "heterosexual." The main dichotomy within Roman sexuality was active/dominant/masculine and passive/submissive/"feminized." 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. A Roman's masculinity was not compromised by his having sex with males of lower status, such as male prostitutes
Prostitution in ancient Rome
Prostitution in ancient Rome reflects the ambivalent attitudes of Romans toward pleasure and sexuality. Prostitution was legal and licensed. Some large brothels in the 4th century, when Rome was becoming officially Christianized, seem to have been counted as tourist attractions and were possibly...
or slaves
Slavery in ancient Rome
The institution of slavery in ancient Rome played an important role in society and the Roman economy. Besides manual labor on farms and in mines, slaves performed many domestic services and a variety of other tasks, such as accounting...
, as long as he took the active, penetrating role. 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
Homosexuality in ancient Greece
In classical antiquity, writers such as Herodotus, Plato, Xenophon, Athenaeus and many others explored aspects of same-sex love in ancient Greece. The most widespread and socially significant form of same-sex sexual relations in ancient Greece was between adult men and pubescent or adolescent boys,...
" and "Pederasty in ancient Greece
Pederasty in ancient Greece
Pederasty in ancient Greece was a socially acknowledged relationship between an adult and a younger male usually in his teens. It was characteristic of the Archaic and Classical periods...
"). The adult Roman male who enjoyed receiving anal sex or performing oral sex was thought to lack virtus
Virtus (virtue)
Virtus was a specific virtue in Ancient Rome. It carries connotations of valor, manliness, excellence, courage, character, and worth, perceived as masculine strengths...
, the quality that distinguished a man (vir).
The protective amulet (bulla
Bulla
-People:* Anton Bulla, a Slovak footballer and coach* Clyde Robert Bulla , an American author of books for children* Johnny Bulla, an American golfer* Karl Bulla, a Russian photographer* Max Bulla, an Australian bicycle racer...
) worn by freeborn Roman boys was a visible sign that they were sexually off-limits. Puberty was considered a dangerous transitional stage in the formation of masculine identity. When a boy came of age, he removed his bulla, dedicated it to the household gods
Lares
Lares , archaically Lases, were guardian deities in ancient Roman religion. Their origin is uncertain; they may have been guardians of the hearth, fields, boundaries or fruitfulness, hero-ancestors, or an amalgam of these....
, and became sexually active under the patronage of Liber
Liber
In ancient Roman religion and mythology, Liber , also known as Liber Pater was a god of viticulture and wine, fertility and freedom. He was a patron deity of Rome's plebeians and was part of their Aventine Triad. His festival of Liberalia became associated with free speech and the rights...
, the god of both political and sexual liberty. 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 CiceroCicero
Marcus Tullius Cicero , was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He came from a wealthy municipal family of the equestrian order, and is widely considered one of Rome's greatest orators and prose stylists.He introduced the Romans to the chief...
's day knew anything about it." Although the Lex Scantinia is mentioned in several ancient sources, 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. Suetonius
Suetonius
Gaius Suetonius Tranquillus, commonly known as Suetonius , was a Roman historian belonging to the equestrian order in the early Imperial era....
mentions the law in the context of punishments for those who are "unchaste," which for male citizens often implies pathic behavior; Ausonius
Ausonius
Decimius Magnus Ausonius was a Latin poet and rhetorician, born at Burdigala .-Biography:Decimius Magnus Ausonius was born in Bordeaux in ca. 310. His father was a noted physician of Greek ancestry and his mother was descended on both sides from long-established aristocratic Gallo-Roman families...
has an epigram in which a semivir, "half-man," fears the Lex Scantinia.
It has sometimes been argued that the Lex Scantinia was mainly concerned with the rape of freeborn youth, but the narrowness of this interpretation has been doubted. 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. The early Christian poet Prudentius
Prudentius
Aurelius Prudentius Clemens was a Roman Christian poet, born in the Roman province of Tarraconensis in 348. He probably died in Spain, as well, some time after 405, possibly around 413...
makes a scathing joke that if Jupiter
Jupiter (mythology)
In ancient Roman religion and myth, Jupiter or Jove is the king of the gods, and the god of the sky and thunder. He is the equivalent of Zeus in the Greek pantheon....
had been subject to Roman law, he could have been convicted under both the Julian and the Scantinian laws.
Only youths from freeborn families in good standing were protected under the law; 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.
Prosecutions
The infrequency with which the Lex Scantinia is invoked in the literary sources suggests that prosecutions during the Republican eraRoman Republic
The Roman Republic was the period of the ancient Roman civilization where the government operated as a republic. It began with the overthrow of the Roman monarchy, traditionally dated around 508 BC, and its replacement by a government headed by two consuls, elected annually by the citizens and...
were aimed at harassing political opponents, while those during the reign of Domitian
Domitian
Domitian was Roman Emperor from 81 to 96. Domitian was the third and last emperor of the Flavian dynasty.Domitian's youth and early career were largely spent in the shadow of his brother Titus, who gained military renown during the First Jewish-Roman War...
occurred in a general climate of political and moral crisis.
Two letters written to Cicero by Caelius
Marcus Caelius Rufus
Marcus Caelius Rufus was an orator and politician in the late Roman Republic. He was born into a wealthy equestrian family from Interamnia Praetuttiorum , on the central east coast of Italy...
indicate that the law was used as a "political weapon"; 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
Calumnia (Roman law)
In Roman law during the Republic, calumnia was the willful bringing of a false accusation, that is, malicious prosecution. The English word "calumny" derives from the Latin....
, a charge of malicious prosecution
Malicious prosecution
Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include intentionally instituting and pursuing a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution...
, but retaliatory charges motivated by politics or personal enmity, as Caelius makes clear in this case, were not uncommon. In 50 BC, Caelius was engaged in a feud with Appius Claudius Pulcher, the consul
Roman consul
A consul served in the highest elected political office of the Roman Republic.Each year, two consuls were elected together, to serve for a one-year term. Each consul was given veto power over his colleague and the officials would alternate each month...
of 54 BC and a current censor, who had refused to lend him money and with whose sister Caelius had a disastrous love affair. Appius's term as censor was a moral "reign of terror" that stripped multiple senators and equestrians of their rank; sometime during the fall of that year he indicted Caelius, a sitting curule aedile, under the Lex Scantinia. Caelius was happy to respond in kind. Both cases were presided over by the praetor
Praetor
Praetor was a title granted by the government of Ancient Rome to men acting in one of two official capacities: the commander of an army, usually in the field, or the named commander before mustering the army; and an elected magistratus assigned varied duties...
Marcus Livius Drusus Claudianus
Marcus Livius Drusus Claudianus
Marcus Livius Drusus Claudianus was a senator of the Roman Republic. He was born with the name Appius Claudius Pulcher, into the patrician family of the Claudii. According to Suetonius, Drusus was a direct descendant of the consul and censor Appius Claudius Caecus...
—ironically, in the view of Caelius, since Drusus himself was "a notorious offender"—and evidently came to nothing. "Few people," Eva Cantarella
Eva Cantarella
Eva Cantarella is a leading Italian classicist noted for examining ancient law by relating it to modern legal issues through law and society perspective...
observed, "were completely free of suspicion in this area."
Although the law remained on the books, it had been largely ignored 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
Vestal
Vestal can refer to:* Pertaining to Vesta , a Roman goddess, the Sacred fire of Vesta, or the Temple of Vesta* Vestal Virgin* Vestal, New York* HMS Vestal, the name of eight ships of the Royal Navy* USS Vestal , ship...
, and several men from both the senatorial and equestrian order were condemned under the Lex Scantinia.
Quintilian
Quintilian
Marcus Fabius Quintilianus was a Roman rhetorician from Hispania, widely referred to in medieval schools of rhetoric and in Renaissance writing...
refers to a fine of 10,000 sesterces for committing stuprum with a freeborn male, sometimes construed as referring to the Lex Scantinia, though the law is not named in the passage.
History of the law
A Roman law (lex, plural leges) was typically named after the official who proposed it, and never after a defendantDefendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
. In 227 or 226 BC, Gaius Scantinius Capitolinus was put on trial for sexually molesting the son
Marcus Claudius Marcellus (consul 196 BC)
Marcus Claudius Marcellus was a consul and a censor in of the Roman Republic. He was the son of the famous general Marcus Claudius Marcellus , and possibly father of the three-time consul Marcus Claudius Marcellus .Marcellus first appears in Livy's history when his father, then curule aedile,...
of Marcus Claudius Marcellus
Marcus Claudius Marcellus
Marcus Claudius Marcellus , five times elected as consul of the Roman Republic, was an important Roman military leader during the Gallic War of 225 BC and the Second Punic War...
; a certain irony would attend the Lex Scantinia if in fact he had been its proposer. It may be that a relative of Scantinius Capitolinus proposed the law in a display of probity to disassociate the family name
Roman naming conventions
By the Republican era and throughout the Imperial era, a name in ancient Rome for a male citizen consisted of three parts : praenomen , nomen and cognomen...
from the crime. The law has also been dated to 216 BC, when a Publius Scantinius was pontifex
College of Pontiffs
The College of Pontiffs or Collegium Pontificum was a body of the ancient Roman state whose members were the highest-ranking priests of the polytheistic state religion. The college consisted of the Pontifex Maximus, the Vestal Virgins, the Rex Sacrorum, and the flamines...
, or 149 BC. The earliest direct mention of it occurs in 50 BC, in the correspondence of Cicero, and it appears not at all in the Digest.
See also
- Homosexuality in ancient RomeHomosexuality in Ancient RomeSame-sex attitudes and behaviors in ancient Rome often differ markedly from those of the contemporary West. Latin lacks words that would precisely translate "homosexual" and "heterosexual." The primary dichotomy of ancient Roman sexuality was active/dominant/masculine and...
- ExoletusExoletusExoletus is a Latin term, the perfect passive participle of the verb exolescere, which means "to wear out with age." In ancient Rome the word referred to a certain class of homosexual males or male prostitutes, although its precise meaning is unclear to historians.In his essay on sexual morality,...
- FustuariumFustuariumIn the military of ancient Rome, fustuarium or fustuarium supplicium was a severe form of military discipline in which a soldier was cudgeled to death...
, sometimes thought to apply to sex acts between fellow soldiers
Further reading
- Joh. Frid. Christ. (1726), Historia legis Scantiniae ("History of Lex Scantinia")
- Theodor MommsenTheodor MommsenChristian Matthias Theodor Mommsen was a German classical scholar, historian, jurist, journalist, politician, archaeologist, and writer generally regarded as the greatest classicist of the 19th century. His work regarding Roman history is still of fundamental importance for contemporary research...
(1899), Römisches Strafrecht ("Roman Criminal Law"), p. 703f (Mommsen also quotes either Seneca the ElderSeneca the ElderLucius or Marcus Annaeus Seneca, known as Seneca the Elder and Seneca the Rhetorician , was a Roman rhetorician and writer, born of a wealthy equestrian family of Cordoba, Hispania...
or Seneca the YoungerSeneca the YoungerLucius Annaeus Seneca was a Roman Stoic philosopher, statesman, dramatist, and in one work humorist, of the Silver Age of Latin literature. He was tutor and later advisor to emperor Nero...
commenting on Lex Scantinia) - Münzer's (1921) entry for Scantinius in: Pauly-Wissowa (ed.), Realencyclopädie der Classischen Altertumswissenschaft ("Specialist Encyclopedia of Classical Ancient Philology")
- Article on struprum cum masculo by W. Kroll in Pauly-Wissowa (ed.), Realencyclopädie der Classischen Altertumswissenschaft, 1921
- Article Päderastie by M. H. E. Meier in Ersch & Gruber (eds.), Allgemeine Encyclopädie der Wissenschaften und Künste
- Wilhelm Rein, Das Criminalrecht der Römer von Romulus bis auf Justinianus ("Roman Criminal Law from Romulus up to Justinian I"), 1844, p. 864
- Gisela Bleibtreu-EhrenbergGisela Bleibtreu-EhrenbergGisela Bleibtreu-Ehrenberg , M. A., Ph.D., is a German sociologist, ethnologist, sexologist, and writer further specializing into the fields of psychology, Indo-European studies, religious studies, and philosophy, since 1980 also increasingly anthropology...
, Tabu Homosexualität - Die Geschichte eines VorurteilsTabu HomosexualitätTabu Homosexualität: Die Geschichte eines Vorurteils is a standard work of Germanophone research into homophobia, written by German sociologist, ethnologist, and sexologist Gisela Bleibtreu-Ehrenberg, and first published in 1978.- Background :...
("The taboo of homosexuality: The history of a prejudice"), 1978, p. 187-196 - F. X. Ryan: The Lex Scantinia and the Prosecution of Censors and Aediles, Classical Philology, Vol. 89, No. 2 (Apr., 1994), pp. 159-162
External links
- Lex Scantinia de nefanda venere
- See entry Scantinius in Smith, Dictionary of Greek and Roman Biography and Mythology
- Valerius MaximusValerius MaximusValerius Maximus was a Latin writer and author of a collection of historical anecdotes. He worked during the reign of Tiberius .-Biography:...
(translated by Henry J. Walker): The story of Scantinius (from Factorum ac dictorum memorabilium libri IXFactorum ac dictorum memorabilium libri IXFactorum ac dictorum memorabilium libri IX by Valerius Maximus was written around CE 30 or 31...
) later resulting in the passing of Lex Scantinia named after Scantinius the aedile