This revised Cambridge University thesis examines the categories of rape and seduction in fourth-century Athens and finds that the ancient discussions do not fit modern categories (such as consent, violence, autonomous agency). The evidence assessed extends about one hundred years, 400-300 BCE, from Lysias’ speech about the homicidal Euphiletus’ capturing in flagrante casanova Eratosthenes to Menander’s comedies of rape. Part I, analyzing statements allegedly from courtrooms, carefully examines the difficult words hybris, bia, and moicheia. This earlier section is more philological than the latter where terms are used more fluidly. Part II, analyzing the role of and responses to rape in Menander’s plots, finds congruence in this material to the lawcourt assumptions and arguments, despite the differences in type of discourse and modes of representation in a later era under a later and less democratic government. O.’s thesis is that the status (defined as social, political, and marital) and the attitude of the male guardian ( kyrios)—rather than the female participant or victim’s thoughts, feelings, and actions—determined the acceptability of a sexual act. In other words, “female consent is not part of the standard Athenian definition of rape” (5). She is not interested here in homosexual rape or seduction, paederastic or otherwise, for which one might now consult N. Fisher, Against Timarchos (Oxford 2001).
O. addresses the recent flurry of legal studies of Athenian sexuality.1 She follows scholars who conceptualize Attic law as a politically developed system of social regulation rather than a recondite code of legal technicalities where statutes and precedents rule (thus the unexpected title). Consequently, although the choice of words seems unfortunate, she views “rape as a point of entry” into Athenian ideological systems (18). She argues that current scholarship, feminist (e.g., S. Brownmiller , Against our Will: Men, Women and Rape) and Classical, wrongly maps our (English, sometimes American) category of rape onto the ancient evidence. Whereas we focus on consent of the parties, individual agency or autonomy, she argues convincingly that the preponderance of the ancient evidence about “rape” shows close to no concern for the woman’s view of the matter (and indeed a guardian-litigant can only lose ground by introducing that topic). O., perhaps constrained by the nature of a Ph.D. thesis, does not consider rape and seduction in the historians (several in Herodotus), Old Comedy, or other (e.g., Platonic) texts. She very occasionally mentions developments or variations of legal attitudes and definitions of rape and rapists. She helpfully notes that the concept of “statutory rape” of minors defines the crime without reference to the consent of the “victim”; this parallel modern practice deserves examination. Even in Athens, rules concerning permanent sexual living-arrangements changed. For instance Pericles’ citizenship law perhaps invalidated but did not criminalize marriage-like cohabitation, synoikesis, unions between Athenian and non-Athenian. Later, however, in the legal case involving Neaera for example, such a union—at least if fraudulently promoted—became a criminal offense. (O.’s argument assumes that we can separate the penalties for Neaera’s numerous alleged violations of the laws.)
Our sources for the unsystematized Athenian laws and actual legal “practice” are hard to interpret and usually biased by their citation in an adversarial procedure with few controls. No statement about the hodge-podge of laws concerning Athenian sexual regulations today finds wide agreement. Cohen perhaps reached the outer limit when he denied that there was any category of sexual offense (cf. Law and Sexuality  122-24). We possess few independent texts of actual Athenian laws, beyond some certainly selective quotations. No one wrote a sociological treatise on ancient sexuality so we dredge up little beyond some occasional, not very helpful, remarks in Aristotle. Adversarial speeches delivered in court, at once parallel and yet tendentiously opposite in massaging identical facts, are notoriously difficult to depend on, since they are full of consequences for the loser—of which there was one, in every case.
Constructed for a contest fought somewhere between glossy rhetoric and gritty reality, between cultural ideology and street practice, legal speeches certainly illustrate public norms, although not always all the relevant ones. This general caveat is most applicable to the particulars of the two speeches that O. most extensively mines for information, Lysias 1 and Ps.-Demosthenes 59.2 Neither concerns litigation about rape—no such case survives! The former defends an aggrieved husband and speaker against a charge of murdering, in his own home, one philanderer, Eratosthenes, while the latter prosecutes directly an entrepreneurial woman named Neaera, but the real target is her dodgy kyrios, the Athenian Stephanos. This long and difficult speech has a pseudo-prosecutor—the real author—Apollodorus, a pseudo-author Demosthenes, and a pseudo-defendant. Greek does not possess a word corresponding to our concept of rape (26).
Having little legal personality, an Athenian woman’s consent is folded into and trumped by her kyrios‘. A male sex-partner without kyrios approval for his enjoyment of a female’s body is already in the legal wrong in Attica, whatever his female partner’s inclination. Hybris suits, the subject of chapter 1, could arise from sexual insults producing shame and dishonor—verbal, nonverbal, or action—but no speech for such a suit survives. The word, of course, appears in Euphiletus’ defense against Eratosthenes’ family’s prosecution (four times: 1.2, 4, 16, 25), but the husband presents himself (and his house—but not his wife) as the victim. The insulting outrage exists whether or not his citizen-wife consented (35), because of the respectable, if modest, status of Euphiletos’ self and house (1.9: oikidion). Apollodorus, for his part, attempts to show that, while incidentally Neaera not only is not a citizen but a hetaira, if not a porne (who allegedly had sex with symposiastic slaves!), her kyrios Stephanos uses her for sexual leverage to engage in blackmail and extortion against citizens, and fraud against the entire city. Hybris requires status in the victim, and Apollodorus “writes Neaera out as a respectable victim” ( 47). Women cannot independently assert their status and rarely, outside of Old Comedy, try. O. mentions Alcibiades’ wife who went to the archon, sought divorce, and for her trouble her husband and his friends carried her home by force from the agora ([Andoc.] 4.14; an amusing if legally impossible case of harpage, abduction). Thus heterosexual relations are discussed in Athenian courtspace in terms of male relationships: perpetrator and kyrios (39). The real anxieties, for which parties try to bankrupt or disenfranchise each other, concern legitimate children, their inheritance, and their demonstrable citizenship. The oikos and polis are mutually implicated. Hybris is a negotiable dicastic term rather than (or in addition to) a statutory offense.
Sexual offences are defined, then, “not by the action performed but by the status of the victim” (51), a cross-cultural phenomenon more commonly explicit outside our allegedly gender-egalitarian North Atlantic legal systems. Force or bia in Athens characterizes the tyrant or anti-democratic Alcibiades. Starting from the mythic Ithacan suitors’ sex with the willing maidservants biaios ( Ody. 22.37), O. contends in chapter 2 that the violence is perpetrated against the master Odysseus, who has a “right to dispose of the sexual commodities of the females of his household” (55). Again we have no Attic speech invoking the dikê biaiôn despite the presence of several concerned with violence and even sexual violence (e.g., Demosthenes 54, Lysias 3). Shame emerges from an odd kind of violence, O. claims for Euphiletos’ case (Lys. 1.32), namely the apparently consensual sex of the wife (seduction) violates her kyrios‘s will, here her husband’s (65). The wife’s consent, or enthusiasm, is at best a tangential issue, even in this situation. Here O. feels obligated to admit that she thinks a concept of personal consent to sex exists in ancient Athens, but “female consent does not invest a legal ideology of sex with its principal terms.” That means (I think), that a woman is admitted to have the capacity to want sex or not—this allows us to understand Menelaus’ anger with Helen or Clytemnestra’s culpability—but it does not make a difference for Athenian law. An Athenian kyrios must claim a serious offense against his interests (66).
Legal agency is then a complicated matter; O. observes that rape of one’s wife was legally impossible in English law within the last ten years. Euphiletos’ arguments may all be specious, and the question of his wife’s consent may creep into them only because he is justifying his murder of Eratosthenes. He then is manipulating the circumstances that (he thinks) make Eratosthenes’ crime arguably worse than rape, namely seduction—alienation of affection as well as purity of the line. Here again we risk importing modern categories. Our exiguous fragments of Attic law and cases (often only known from quotations not under judicial control) prevent us from having confidence in the defendant’s telling of “the whole truth and nothing but the truth,” or his arguments’ relevance, or his legal acumen and knowledge (96). Euphiletus’ amusing (indeed, “comedic”) seduction tale is an eccentric, harrumphing defence of admitted homicide. O. alleges that moicheia or adultery could be a suitable charge even in a case of rape where consent was clearly absent (94). The Athenian concept of the criminal act is thus very fluid, and she claims the same range for the responding procedures and the punitive actions available at law (108).
Chapter 3 examines moicheia (men and boys are not herein involved): is it rape and/or adultery and does it require the presence of a woman who has been legally married? Aside from ubiquitous informal policing, the courts provide a space for formal, communal regulation of sexual behaviors. O. then crosses swords, as Patterson already has, with David Cohen’s provocative 1991 book on the issue of female consent ( Law, Sexuality and Society, particularly his claims for moicheia, e.g., 108 n.30). She argues, from the scandalous histories of Neaera and her unmarried daughter Phano, that kyrios -unsanctioned sex with a daughter, sister, mother, wife or concubine ( pallake) is equally violatory. O. believes, although the evidence is unsatisfactory for much confidence, that the social issue of marriageability rather than the legal issue of actual marriage is the essential matter—Attic respectability of the parties established by citizenship on all sides and both parties engaged in proper citizen duties (and especially not tainted by prostitution, availability of a body for commercial sex). Since post-Periclean sex between a male citizen and a female non-citizen can never lead to, or amount to, formal Athenian marriage, their sexual relationship is not regulated by the polis (79). Pornai and hetairai would work on their own or have the consent of their kyrios in the sex markets. Phile’s allegedly promiscuous citizen mother (Isae. 3.10-17) poses another problem for O.—since she was a citizen woman allegedly present for quarrels, serenades, banquets, and sexual encounters beyond counting. However, O. dismisses this apparent problem in a footnote because of the woman’s non-elite status. Transgressive sex (here adultery) at Athens requires Athenian civic identity, not married status. Cohen claims that no virgin is ever explicitly termed the victim of a moichos. The term “virgin” appears in his index but not in O.’s, probably because she has minimized its significance—improbably asserting that once Athenian women were old enough for sexual activity, none found a chance for pre-marital sex because they were married off soon after (90).
Plutarch refers to a law allowing a man to sell into slavery a daughter or sister caught in moicheia ( Solon 23). Further, we hear of the intentionally (?) excessive entombment of horse and daughter at Aeschin. 1.182; cf. Fisher’s 2001 commentary and bibliography. While “virgin” is not an explicit category in these cases, I would think that implication is likely. But how then do we understand Menander’s virgin-violators discussed in part II? Both male and female can suffer atimia. The distance of O.’s position from Cohen’s is smaller than may appear at first sight. O. repeatedly acknowledges that moicheia with a married woman is surely the most important Athenian category of the crime.
The conclusion of part I then is that kyrios consent is essential for legitimate sex with a respectable woman and that sex without his consent is unacceptable, regardless of the woman’s attitude or intent (122). No legal distinction exists between our concepts of adultery, seduction, and invasive rape (131), although the kyrios can decide to construct a separate social category in the narrative of his case (cf. Edw. Harris, CQ 40  370-7; Patterson, ibid., 168-74). Rape and its regulation unexpectedly (and mayhap too hastily) disappear from the preserved Attic court-record.
Perhaps the Menandrian “comedy of status” with its references to virgin rape will help us resolve legal issues. Rape drives many of Menander’s known plots, more than is commonly realized. While drama is not history or “simple” facts (nor are the extant orations, of course), Menander “reflect[s], at some level, a genuine sense of social reality”—Athenian data, institutions, and mentalité (143). The Menandrian stage presents a “consortium for the management of property,” i.e., the oikos. Although this unit might have wealth far beyond the average, the gender/age/interests dynamics were recognizable to the Athenian audiences who found satisfaction in the poet’s reassuring plays. So far, so good, although O. naively believes that reading oratory against comedy will cancel their respective problems and biases (154). In fact they can, when in ideological agreement, multiply the distortive forces. But O. properly contends that oratory and Menander share civic obsessions and an unavoidable impulse (given their agonistic contexts) to promote the dominant civic ideology. Even if Menander’s girls and boys always turn out respectable and rich, and the rest of the stock cast of characters is often archetypical in attitudes (no Oedipus need apply), O. finds the people and plots not “innately fantastic” (168). This claim overreaches, but I agree that Menander is not irrelevant to historical reconstructions of late Classical Athenian social history.
Chapter 5 examines at length Epitrepontes (and other plays more briefly). In this comedy, the newly wed Pamphile gives birth after a forcible ( biasmon) rape-event in which her not-too-future husband was the nocturnal assailant. (Is this fact “innately fantastic” or not?) Charisios, the new husband, expresses an unusual shame for his violent sexual action against a party uncertain.3 Nevertheless, he abandons his own wife for having produced some (other) man’s (as he thinks) illegitimate child. O. argues against looking for our sexual categories and our “symmetrical model of erotic subjectivity … which prioritise consent and violence” (181). Neither rape nor seduction is the issue. Eventually, the fragile heterosexual bond of marriage here is confirmed by the validation of conventional values: the virgin-violator is found to be the woman’s subsequent husband, her one and only sex-partner. Therefore Pamphile, despite her rape, pre-marital sex, and pregnancy, can remain happily (?) married, respectable in the community’s eyes. The rapist never faces consequences and the victim’s feelings are never explored. The pattern of sexual fault and institutional resolution repeats in the plays of Menander, and of his imitators Plautus and Terence: rapist and victim coincidentally marry (184) and happily enjoy financial security (211).
The evidence of later comedy on the Athenian ideology of rape appears to dovetail with that of the angry orators of previous generations. This important observation may bother those who find a more enlightened sexual morality in the genial upholder of the status quo. Although David Konstan has argued (in Sexual Symmetry 1994) that eros is at best an exceptional ingredient in motivating Menandrian marriages, O. argues that, presented as a male passion, it often constructs situations that lead to rape, and then marriage. Menander’s rapes arise between two citizens who can, and therefore do, marry, affirming virility of the representative young male hero and continuity for the representative Athenian oikos.
Chapter 6 discusses status in Menander’s situation-comedies, eleutheros as a marker of spirit, more than a mere legal status, for a weak example. O. acutely observes an absence—Menander has no plots involving homosexuality, anxiety over gender, or even adultery—although these subjects surface repeatedly in Aristophanic Old Comedy (222). The brief conclusion restates the absence of female consent as an oikos concern when rape rears its ugly head (these pesky metaphors!). Sexual offences are only recognized and regulated when affected males perceive their oikos s’ status at risk. Legitimate citizen concerns and activities required purity of descent in the Athenian oikos, in which the individual male’s philandering elsewhere (than with Athenian citizens) did not pose problems, but the female’s sexual activities (beyond her spouse) was problematic regardless of her attitude towards it.
O. has produced a thoughtful and challenging study of Athenian sexual mores. She writes clearly4 and faces problems squarely. The book expects familiarity with the eccentric and sui generis nature of Athenian law. She questions intelligently several views that have long been accepted or recently argued. Her unexpected conclusion, that women’s legal agency (or responsibility) does not exist in Athenian courts, sometimes seems to press uneasily the evidence that she considers, but full discussion will need to examine other dramatic and historical genres.
1. E.g., she frequently disputes the views of David Cohen and David Konstan, but also refers to Virginia Hunter, Cynthia Patterson, and Adele Scafuro. Patterson’s valuable book, The Family in Greek History (Cambridge 1998), especially chapter 4, “Marriage and Adultery in Democratic Athens,” differs fundamentally and tellingly from Cohen’s view on the legal significance of women’s consent and therefore requires more of O.’s attention than she affords it. Patterson’s comments (185-226) on Menander’s sexual encounters and plots should have been further digested.
2. The latest news: D. Hamel, Trying Neaira, The True Story of a Courtesan’s Scandalous Life in Ancient Greece (New Haven 2003). Chr. Carey Apollodoros Against Neaera [Demosthenes 59] (Warminster 1992) provides introduction, text, translation, and commentary. He refers to my former student Alice Patteson’s 1978 University of Pennsylvania dissertation: A Commentary on [Demosthenes] LIX: Against Neaera. Madeleine Henry, after exploring the careers of Pericles’ mistress Aspasia and Menander’s courtesans, is now reconsidering the bizarre Neaera. Neither the author nor this reviewer has seen E. Avezzu, Demostene, Processo a una cortigiana (contro Neera) (Venice 1986), but Carey has.
3. As does Moschion in Samia, but O. shows that his shame arises from his worries about his father’s consent rather than his having engaged in the rape (200). The male-male consequences of male-female acts are paramount. This marriage was previously approved, anyway. Gorgias in Dyskolos, expostulating against Sostratos’ accosting his half-sister, distinguishes, I believe, rape and seduction, but O. finds his comments only “suggestive.” No other unmarried but marriageable woman appears on Menander’s stage.
4. The book is carefully produced but minor misprints could be corrected: Peleponnesian (42), proistates (43 n.46), Wilamoritz (195 n.77), significnat (199), a women (232). O. is differently inconsistent on Latinizing transliterations: Periklean and Alcibiades, Demetrius and Hipparchos, Chairestratos and Neaera. Is “pressurises” (57) now an established British word, when once “presses” and “pressures” seemed syllabically sufficient? The Greek has exploded in the Hyp. 1.3 quotation (127).