In the week beginning Monday 20th of February 1995, four rape cases were reported in the national press in Britain. Of these, two resulted in acquittal, one in conviction and the fourth, which had originally resulted in conviction, was now overturned at appeal. 2 There was little similarity between the alleged rapists: one a boy of thirteen, another a TV personality, a third a well educated police officer and the fourth an ex-cab driver and ex-convict with two previous convictions for rape. Nor was there any greater similarity between the victims or the context of the crimes.3 However, what these four cases do share is a common understanding of the term rape as indicating a sexual interaction to which one party does not consent. Both for the common descriptive purposes of everyday language and for the specific demands of legal definition, we use the term to centralise the issue of consent. Indeed, the debates which rage about this topic are predicated on it: for instance, the argument that the definition of rape should include events to which the victim is pressurised to consent, morally or emotionally, rather than physically coerced, is based on a central concern with the nature of consent; likewise, the suggestion of possible motivations, such as revenge or jealousy, for a fraudulent charge of rape assumes and discusses the autonomy of the victim and his or – more often – her ability to consent to sex. Thus the statement of the eighteenth-century jurist, Matthew Hale, that while rape is an easy charge to make it is one which is ‘hard to be proved and even harder to be defended by the party accused though never so innocent,’ despite being the cornerstone of sexist attitudes to rape which put the victim on trial rather than the defendant and which make rape one of the least reported of violent crimes with the lowest conviction rate, 4 still prioritises the act of consent and focuses directly upon the notion of female volition. It may be true that such volition is rarely if ever legitimated and used instead as a tool to discredit the complainant, but in these discussions of heterosexual rape, women are constructed as persons for whom legal autonomy can be posited and who thus have the ability to consent to sex or not. The (demonstrable) lack of this consent criminalises the encounter, makes it liable to the designation of rape, and can lead to the conviction of the perpetrator.
My interest in this paper is in the way rape enters legal discourse in Athens in the age of the orators. I am not attempting here to provide an overview of the prosecution of rape and sexual offences in Athens at that time, 5 and indeed, I shall not here deal with every legal term relevant to such a project. 6 Rather, I am going to look essentially at one specific term which is relevant to the study of rape, and then, more briefly, at a related concept which I hope will support and expand my conclusions. In looking at both these terms, my focus is not upon how they functioned within the statutory code of Athens – if indeed we can imagine such a thing – but how the discussions going on around them offer an important way of reading them and their relationship to sexual behaviour.
The study of rape in Athenian law may at first glance seem problematic as an enterprise in itself, since rape makes no more than a cameo appearance in the extant speeches. Yet the speeches which do touch upon the regulation of sexual conduct show that the issues it raises resound against discussions going on in the courts which are of crucial importance to the city as a democratic city. We may be left with large and frustrating gaps in our factual knowledge of Athenian law on rape and other sexual offences, but the discussions which we have leave us in no doubt that when heterosexual offences do become the issue, they put questions about legitimacy, the composition of the democratic body, the integrity of the oikos and the nature of interactions between citizens at centre-stage. Thus the narrative of rape along with other sexual offences acts out, in a series of episodic vignettes, a rhetorical drama of public opinion and civic sexual morality. It is on a specific aspect of this ‘rhetorical drama’ that I want to focus, thinking about how, although rape or other sexual offences are not the charge to be judged at the trial, the related narrative of sexual action informally designates acceptable patterns of sexual behaviour. What I am going to argue in this paper is that it is this relation to normative civic concerns and not reference to the notion of female consent which problematises sexual action, and that this has implications for the prosecution of sexual offences in Athens.
The concept of hubris has been widely discussed in recent years, most extensively by Nick Fisher in his detailed study of the term in Greekliterature from Homer to the orators. 7 There he plots the dynamics of the term as essentially part of the same register of values as honour and shame. Indeed he describes this relationship explicitly and says that hubris ‘is essentially deliberate activity, and the typical motive for such infliction of dishonour is the pleasure of expressing a sense of superiority, rather than compulsion, need or desire for wealth’ (Fisher 1992, 1). The validity of extending the range of activities which could be called hubris to include sexual misdemeanours has been accepted by several scholars over recent years – Fisher, Cohen, MacDowell and Gagarin to name but a few. 8 I would like to ask to what extent this term is relevant for a study of rape which defines rape as non-consensual intercourse. It would of course be very interesting to discover that non-consensual intercourse could in a legal and not just a narrative sense be termed hubris, because that would bring it under the purview of the graphe hubreos under which the penalty could be death, 9 and raise a question mark over the validity of Euphiletos’ well-known claim in Lysias 1 that rape was only punishable by a fine in Athens (Lys. 1.32). 10 When I look at Apollodoros’ prosecution of Neaira I shall examine how it reflects on this issue of hubris and the prosecution of sexual offences, and Ishall argue that in this text the discursive category of hubris acts out a specific and loaded social commentary about what actions really might appear to infringe the norms which regulate sexual behaviour between individuals. Finally, I shall maintain that, for sexual offences, hubris does not work by reference to consent, even though it may be true that non-consensual sexual relations could be termed hubris in certain contexts.
When hubris is used to refer to sexual offences it does very often appear to mean non-consensual intercourse, such as for example in Hyperides Funeral Oration, paragraph 36, where the speaker contrasts the exploits of the heroes of the Trojan war, who avenged the wrong of one woman against whom hubris had been committed, and the exploits of Leosthenes and his men, who prevented hubris being committed against all Greek women. 11 Often such patterns of behaviour are associated with the sacking or capture of cities 12 or with the rule of tyrants. 13 Aristotle makes quite explicit how this works when he gives advice to the tyrant not to excite resentment by appearing to act out of hubris, that is, not to inflict bodily punishment on free men as if he acts out of contempt but paternally and when he consorts with the young to do so as if because he feels passion for them, not because he has the power. This points up that the range of sexual offences which could be called hubris includes situations in which there is no actual physical violence. The scenario which Aristotle is envisaging is one in which the compulsion rests in the implicit power relation between the tyrant and his subject (Arist. Pol. 1315a). There need be no actual violence or even the threat of violence to make this hubris, because such a relationship always has the potential to be inherently coercive. This might make it seem as if hubris can be taken very much to correspond to our category of rape as non-consensual intercourse; the victims of invading armies and tyrants mentioned earlier were specifically thought of as being compelled or at the very least constrained to submit to intercourse, and the passage in Aristotle even indicates that a situation in which sex was obtained without any resort to physical violence, but by an act of forced consent, could be seen as hubristic. But if we assume that the applicability of the term hubris to the area of sexual offence follows the dynamics of the concept as it relates to other wrong-doing, documented in particular by Fisher and explicitly described by Aristotle, 14 then we would expect to find that it referred to sexual situations in which the purpose of the perpetrator was to dishonour the victim, or to make an attack on his or her sexual honour. In the passage at Politics 1315a, he discusses how it is dangerous for the tyrant, because it is likely to stir up resentment so acute as to encourage assassination attempts, to have relations with people, whether involving physical violence or not, which show that he is treating them and their family as if they did not have an equivalent sexual honour to himself. By involving them in such a relationship, unless he acts as if out of passion, he is seen to be acting in order to demonstrate their inequality of status or for the pleasure of doing so. Sexual activity which is degrading and intended to degrade can be called hubris.
Many of the references to hubris in sexual contexts referred to the victims as women and children or women and boys, 15 so perhaps it would be useful to look for comparison to the homosexual sphere. Rape is often implied here also, for example in the references mentioned above to the behaviour of tyrants, invading armies, or political factions, but we find here too that violence is not a necessary ingredient for making a sexual encounter hubristic. Being the passive partner in homoerotic relations, particularly those which involved penetration, can be thought of as suffering hubris.16 The boy or youth who has been dishonoured in this way may even be accused of committing hubris against himself.17 Xenophon formulates this on slightly different, but very revealing, lines. In indicting the unwholesome nature of the pleasures which Kakia (Badness) offers, Virtue (Arete) claims:
τà δ’ ἀφροδίσια πρò τοῠ δείσθαι ἁναἐκάζεις, πάντα μηχανωμένη καΐ ἐυναιξί τοις ανδρασι χρωμένη· ουτω ἐαρ παιδεύεις τους σεαυτης φίλους, της μέν νυκτος υβριζουσα,
But you compel sexual relations before they are required, trying everything and using men as women; thus you educate your friends, commit ting hubris against them through the night.
(Xen., Mem. 2.1.30)18
It is hubris to use men as women, even in contexts where the sexual relationship is apparently neither coercive nor mercenary. Here the points at issue must be passivity and penetrability, which normatively characterise the female in sexual relationships and which insult a man’s or even a youth’s 19 sexual honour precisely because it is treating them as if they had the sexual honour appropriate to a woman but not to a man. Aischines’ speech Against Timarchos gives us a vivid example of this in operation: because Timarchos has behaved, sexually, as a woman, that is, as if he had the sexual honour of a woman, then his civic status should be changed and he should be denied the right to advise the city by speaking in the assembly, the privilege specifically of adult males (Aischin. 1.51 ff.).20 We see here, then, that certain sexual acts are inherently dishonouring, at least in theory, regardless of whether they are performed voluntarily or not, or for pay or not, and these actions can be termed hubris. We must remember, however, that Timarchos is attacked by Aischines and threatened with the removal of his civic status (that is, of his civic gender), because he has committed hubris against himself. 21 As both perpetrator of hubris and its passive and willing victim he forms a special category, his access to which has been determined by his acceptance of a role to which he is unfitted by nature (para phusin: Aischin. 1.185), and which degrades him because it can change his status from that of civic man to that of woman. 22
To return to the dynamics of heterosexual relations, if Timarchos has dishonoured himself by acting as a woman, are we going to find that heterosexual acts could be criticized in a largely parallel way, that certain acts with a woman, regardless of their consensual or non-mercenary nature, are inherently hubristic? Other treatments of heterosexual activity seem to imply this (e.g. Fisher 1992, 107; Cohen 1991a, 176–8). However, the other dimension of criticism levelled against Timarchos was that he acted against nature in behaving like a woman. The double sins of passivity and penetrability are gendered as feminine, so how can a woman acting as a woman, or even, arguably, a man causing a woman to act as a woman, be thought of as hubristic? Certainly, we never hear of a woman committing hubris against herself. Unlike Timarchos, for a woman to behave sexually as a woman, without any aggravating conditions, is not degrading. What then are the conditions which would provide such aggravation? We might expect that physical force or violence used on the victim would constitute it in a way which corresponds to our category of rape: even, as we have already discussed, the implicit coercion represented by the unequal power relationship at work when a tyrant somehow obtains sexual favours from his subjects. Even where there is no clear evidence of any sort of physical abuse or even contact, lack of consent can lead to an act being termed hubristic, as for instance when young men go carousing into the house of Telestagoras, a rich Naxian. He receives them kindly (ϕιλοφρόνως), but they committed hubris against him and his two daughters of marriageable age (έπιἐάμους).23 Here there is an implicit, but sharp, contrast between action which is consensual, Telestagoras receiving the young men into his home, and unspecified activity which is consented to neither by Telestagoras nor his daughters. In all of these situations the consent, that is, the unforced consent, of the woman is lacking or perhaps more importantly, the consent of her kurios. 24If we think back to occasions when the bad behaviour of tyrants or oligarchs is under discussion, we often find that such acts of hubris are presented as a source of anxiety specifically for the kurios, 25 though this is partly determined by the context.26 Moreover, there is no situation which is termed hubristic where we can see such a definition resting on the lack of consent of the woman alone.
Although traditionally ascribed to Demosthenes, a number of scholars since antiquity have doubted its authenticity and in the most recent edition of the text it goes under the name of the principal speaker and presumed author, Apollodoros, with the name of Demosthenes appearing only in the sub-title (Carey 1992). 27 The speech is a record 28 of the prosecution’s case in the trial of a woman called Neaira which took place probably at some point between 343 and 340 BC in Athens. Although it is the woman Neaira who is being prosecuted, both the speakers, Theomnestos and his sunegoros, Apollodoros, make no secret that the real object of their enmity is the man with whom she is living, Stephanos.29 Expressly this is because of two attacks which Stephanos had made upon Apollodoros in the courts. In the first it is recounted that Stephanos had persuaded the jury to vote Apollodoros guilty of proposing an illegal decree when he suggested that the surplus moneys left over from the administration of the state should be put to military rather than theoric use. In particular, Theomnestos holds against him the fact that he tried to impose on Apollodoros a fine so heavy that it would disfranchise him since, unable to pay such a large amount, he would become a state debtor and therefore subject to atimia ( [Dem.] 59.3–8).30 The second charge brought by Stephanos against Apollodoros was one of murder, a charge which Stephanos was not able to prove and which, Theomnestos claims, he had only brought, ‘hired by Kephisophon and Apollophanes to secure Apollodoros’ exile or disfranchisement for pay; he received few votes for his five hundred drachmas, and left the court a perjurer with a base reputation.’ ( [Dem.] 59.10).31 Underlying these charges, especially the former, is the political factionalism of Athenian politics at this time. Apollodoros, like Demosthenes, belonged to the group which wanted a much more aggressive military policy towards Philip of Macedon, Stephanos to their opponents who followed the leadership of Euboulos and were against expensive military campaigns in the north. 32
The charge here is that Neaira, although not an Athenian citizeness,33 is living in marriage with Stephanos, an Athenian citizen. The Periclean citizenship law of 451–450 made such unions invalid in terms of their ability to produce citizen offspring, but they did not actually criminalise them. However, by the mid-fourth century, after a brief lapse in the enforcement of the law due to lack of manpower at the end of the Peloponnesian War, such rules had been tightened up and for an Athenian and a non-Athenian to live as man and wife had become a punishable offence. If Neaira is convicted she can be sold into slavery and her property confiscated (59.16) and Stephanos fined. But the buck does not stop there: as Cynthia Patterson notes, ‘If Neaira is convicted of acting as his wife, then the legitimacy of the entire oikos is called into question’ (Patterson 1994, 203). What is of particular interest to me is the way in which this story is told: the tale of citizenship is recounted by means of the narration of the sexual histories of Neaira and later of her alleged daughter, Phano. Crucially, as we shall see, it is a specific and loaded version of this story, which develops the discussion of the use of the term hubris for sexual offences.
Neaira began her life in Corinth, bought as a child by a brothel-keeper along with several other girls (59.18–20). Trained by this woman, she began to ply her trade as an adolescent with such success that she became famous and was bought by two men who owned her and supported her in return for her services (59.29). When they were about to be married, they offered to sell her freedom to her even reducing the price for which they had bought her, provided that she did not continue to be a prostitute in Corinth. She collected contribu tions from her lovers and then asked one in particular, an Athenian called Phrynion, to make up the difference, which he did (59.30–2).
When Phrynion brings Neaira back to Athens he treats her wantonly (aselgos) and without restraint (propetos):
‘Aφικόμενος τοίνυν δευρο ἔχων αὐτὴν ἀσελἐ̑ως καὶ πὐοπετ̑ως ἐχρ̑ητο αυ̑τηι, καὶ έπι τα δείπνα έχων αυτην πανταχοί έπορευετο οπου πίνοι, έκωμαζέ τ αεί μετ ’ αυτου, συνην τ ’ έμφανως οποτε βουληθέίη πανταχου, φίλoτίμίαν την έξουσιαν προς τους ορωντας ποιουμένος. καὶ ως αλλους τε πολλους έπι κωμον έχων ηλθεν αυτην καὶ ως Xαβρίαν τον Aίξωνέα...καί έκει αλλοι τε πολλοί συνεἐίἐνοντο αυτηι μέθυουσηι καθευδοντος του Φρυνίωνος, καὶ οι διακονοι οι ?αβρίου τραπεζαν παραθεμένοι.
Having arrived here with her he treated her wantonly and without restraint, and he went to dinners with her wherever he was drinking, and he always went revelling with her and he had intercourse with her openly whenever he wanted, making his self-aggrandising display available for any to see. And he went to many other people’s parties with her including Chabrias of Aixione... And there many others had intercourse with her when she was drunk and Phrynion asleep, even Chabrias’ servants who had waited at table.
Apollodoros uses examples of this behaviour as further support for his assertion that Neaira cannot possibly be an Athenian citizeness: Phrynion takes Neaira to drinking parties and has sex with her there wherever and whenever he wishes; at one party when she is drunk and Phrynion asleep, he claims, many men have intercourse with her, including the host’s serving men (diakonoi). Apollodoros, however, does not call this hubris as he describes it here or later when he summarises Phrynion’s behaviour ( [Dem.] 59.35.1) and will only do so once later when paraphrasing Neaira’s presentation of events to Stephanos with whom she is seeking protection ( [Dem.] 59.37.7). In fact, he could have made a great deal out of the unlikelihood of Neaira, if she were an Athenian citizeness as she and Stephanos claim, being so friendless as to be unable to avoid such hubris. Alternatively, if she was clearly a willing participant, then it could be argued that she committed hubris against herself, in that by behaving like a prostitute she risked damaging her status as citizeness.35 This line of argumentation, although possible for a Timarchos, does not work for a Neaira, despite the parallel themes of their situations. Timarchos, a citizen, has through his voluntary sexual behaviour, committed hubris against himself and degraded himself to a point at which he should no longer be considered to possess the status which would entitle him to the enjoyment of citizen rights; in fact they should be denied him. We might expect the same argument to be made for Neaira, who claims to be a citizeness. That is, that either through committing hubris against herself by her willing participation in these events, or by having hubris committed against her and no kurios to protect her interests or avenge the insult,36 she has shown herself to be unable to maintain her citizeness status, whether that status is fictional or not.
This argument cannot be used for Neaira, however, as hubris has not been committed against her in Apollodoros’ version of events, where his description of Phrynion’s behaviour pointedly avoids such an appellation. Indeed, the only point at which the word hubris is used to describe these events is in an ambiguous position as the words of a manipulative female speaker within the text, as I shall discuss below. We also have very little way of gauging how willing or unwilling a participant in these events Neaira was, particularly when she has sex with Phrynion openly. The implications of the passive verb which Apollodoros uses to summarise Phrynion’s treatment of Neaira, proupelakizeto (to bespatter with mud, to besmirch, – accompanied here too by the adverb aselgos at 59.35.1), with Neaira as its subject and Phrynion the agent, indicate an activity to which it would be expected that Neaira would take exception, even though the obvious verb to indicate physical compulsion, biazein, is absent.37 But in contrast to the presentation of Timarchos, there is no interest in Neaira’s subjectivity here, and the adverbs with which Phrynion’s actions are described at 59.33.1, aselgos ‘indecently’, and propetos ‘licentiously’, denote the public opinion of such behaviour rather than its effects on Neaira. Else where in the text aselgos is used of behaviour which has no particular victim but denotes the way it is expected to be viewed by the decent onlooker or person who hears about it.38 Neaira leaves Phrynion on account of his bad behaviour towards her, but Apollodoros presents this as being also because she finds herself not loved as she expected and not granted her wishes, perhaps implying that Phrynion’s sexual treatment of her would not have been sufficient to make her leave if other areas of her life with him had been satisfactory.
In contrast, here is the only point at which Apollodoros allows the word hubris to be used:
...τòτε έπιδημησαντα Στέφανον τουτονί εις τα Mέἐαρα καὶ καταἐομενον ως αυτην έταίραν ουσαν καὶ πλησιασαντα αυτηι, διηἐησαμένη παντα τα πεπραἐμένα καὶ την υβριν του Φρυνίωνος...
...then to this Stephanos who came to Megara and was lodging with her as a hetaira and having relations with her, she described in detail everything which had happened and Phrynion’s hubris... 39
( [Dem.] 59.37.3–5)
The feminine participle (diegesamene) makes it very clear whose words these are and Apollodoros makes sure to site the participle close to the allegation of hubris. The positioning separates that allegation from the authorial comment of the previous clause but ensures that it picks up the only noun in that clause, to which it can refer, hetaira, and stands close to another participle describing what Stephanos has been doing with her – plesiazo is a proper but no-nonsense word for sexual intercourse. We have also just been told of the exigencies of her life in Megara which she is eager to escape; although still plying her trade as prostitute the meanness of the Megarians and the paucity of foreigners due to the war have meant that she is scarcely able to maintain her household let alone the extravagances she enjoys. She is in the process of making Stephanos her patron, an outcome which she desires because she wants to come to Athens under the protection of a man. Apollodoros has made his point deftly: these are the words of a woman bent on getting her own way.
I am interested in why this behaviour can be only ambiguously designated as hubris, that is, why these actions are not called hubris by Apollodoros as the best and most obvious way to describe them, even though they appear to fulfil the criteria for hubris offered to us by Aristotle and which Fisher gives us good grounds to accept. Phrynion, by making such a scandalous sexual display of Neaira has, regardless of whether she participated willingly or not, allowed her status to be advertised as such that even the serving men at the party do not consider themselves to be acting out of turn by having intercourse with her while she is drunk. Neaira calls this hubris, particularly in her explanation of events to Stephanos, because the status which Phrynion and the serving men are attributing to her is lower than that which she would claim for herself.40 Neaira, however, has no kurios whose lack of consent would support her interpretation and make these actions hubris of the compulsion type, or who can authorise by his actions the degree of honour with which she credits herself. Apollodoros, we remember, wants to demonstrate that there is no way in which Neaira could possibly have any claim to being a citizeness, so that living with Stephanos as if she were his wife, and trying to marry her daughter to Athenian citizens, becomes an indictable offence, despite Stephanos’ support.41 Therefore, Apollodoros’ avoidance of the term hubris for what Phrynion has done to Neaira, becomes part of his overt aim of denying the possibility of her having citizeness status, because even if Phrynion did treat her appallingly, to designate it as hubris would be to introduce the possibility of a discussion about her status. His later, but ambiguous, use of the word signals to his audience that the implications of such behaviour are most highly relevant for the status of the victim, but that they are appropriate to it, and not inappropriate as Neaira is trying to claim.
The case which I am making here is that there is no indication that what happens to Neaira at this point could ever form the basis of a graphe hubreos and this is because Neaira does not have the status to maintain it. Even the narrative use of the term hubris here works to militate against there ever being a legal sense in which Phrynion’s actions could be called hubris. Rather, the discursive category of hubris here subtly offers us a sociology for sexual offences and their regulation and writes Neaira out as a respectable victim. Her sexual behaviour only becomes of interest to the courts when it trespasses on the privileges of the city; for Phrynion to treat a Neaira like this, the text is claiming, signally and significantly does not.
This text is of course particularly concerned with the issue of status and any reading of Neaira’s position given by Apollodoros is inevitably bound to construct her status as negatively as possible. It has, however, been claimed that one can perceive other situations in which offences of this sort, committed against women who were not of citizen-wife status, have resulted in the prosecution and even conviction of their abusers, for instance the Rhodian lyre-player mentioned in Dinarchos’ prosecution of Demosthenes and the flute girl referred to at Demosthenes 21.36 ff. 42 Do these prosecutions indicate a real sense in which the graphe hubreos could be used to convict someone accused of (sexual) assault? I would like to look a little more closely at these texts. Here is the passage in Dinarchos:
Θέμίστιον δέ τον Aφιδνάΐον, διοτι τὴν ‘Pοδιάν κιθάριστριάν υβρισέν Eλέυσηάοις, θάνάτω έζἐμιωσάτέ
You punished with death Themistios of Aphidna, because he committed hubris against the Rhodian lyre-player at the Eleusinian festival.
(Din. 1.23) 43
We have no way of knowing exactly what offence Themistios was said to have committed or whether it involved sexual assault or not.44 Nor are we able to determine whether the woman involved was a free non-Athenian or a slave. However, we are able to determine the context of the offence – the Eleusinian festival. It may mean that rather than a graphe hubreos, Themistios was charged under a probole, a special action involving offences at religious ceremonies.45 Even if the conviction were under a graphe hubreos as the context suggests, the religious significance of the occasion and its public nature provide circumstances which would increase the chance of conviction, and may indeed form the real import of the offence. We cannot therefore assume from this case the regular or even occasional prosecution of offenders on the grounds that they have committed (sexually) offensive acts against persons such as the Rhodian lyre-player.
There is a similar degree of uncertainty about the details of the case mentioned by Demosthenes. Certainly there is a fairly secure identification of the profession of flute player as one which would be likely to be carried out by someone of low status, probably non-Athenian and quite likely servile.46 The identification of the case as a graphe hubreos can only be inferred from the context, since Demosthenes sums up the cases which he mentions as being examples of people who have had hubris committed against them. But again, for our purposes there is a twist to the story:
καὶ τòν θεσμοθέτην ος έναἐχος έπληἐη την αυλητρίδα άφαιρουμένος
[and Meidias was planning to mention...] the thesmothete who was recently struck while taking away the flute player.
(Dem. 21.36) 47
The action arises not out of an assault on the flute girl, but out of an attack made on a man in connection with her. Nor are we told the man’s name, but his office: he is a thesmothete, a public official, and the point which Demosthenes has just been making is that the assault on an official has significant political ramifications. Finally, although the participle, aphairoumenos, used to describe the thesmothete’s actions towards the girl can and has been translated as ‘rescuing’,48 in fact the verb has a more neutral and less positive meaning, ‘to take away, remove’, even in the middle as we have here ‘to remove for oneself. 49 Why then do we assume that the man is launching a sexual assault on the flutegirl 50 from which the thesmothete saves her and that the prosecution which is threatened against him is in some way related to this? It could be no more than a straightforward wrangle over the girl 51 – whose wishes are of course never mentioned – in which one of the participants oversteps the mark by striking the other, a free citizen and an official of the democracy, a far more serious offence than being a trifle rough with some flute girl. Nor in fact does the case ever come to court: the thesmothete, not having the regard for the laws which the paragon Demosthenes espouses, is prepared to drop the case in return for a sum of money.
What I am arguing here is that none of these cases gives us a clear example of the graphe hubreos – or possibly any other action – being employed in response to a sexual assault committed against a woman of marginal status. Neaira may have been a special case as regards interest in demonstrating the impossibility of her being a citizeness, but none of these cases betokens a clear distinction of an offence which rests upon a notion of the sexual integrity of a woman whose status in the city can be claimed to fall below that of the respectable citizeness. 52 We do have examples of texts which refer to the heinousness of hubris(and probably sexual hubris) being committed against respectable women, but it is noticeable that these deal with contexts which are specifically beyond legal discussion and redress, most prominently war. We have no forensic text which deals with the subject of sexual violence against a woman of citizen status, so it is difficult to argue what such a case would be like. Perhaps, however, it is interesting to note that in the nearest example we have, when Euphiletos describes Eratosthenes’ action in seducing his wife as hubris, he figures that hubris as being committed against himself in the act of entering his house (Lys. 1.4). In all these examples, then, hubris is not a term which denotes an activity per se, but a relational term; far from problematising sexual action on the grounds of a specific feature such as its non-consensual nature, it seeks to police an encounter according to the differing apportionment of honour of its protagonists. The use both of the discursive term hubris and its legal correlate, the graphe hubreos, questions not what has happened, but between whom.
Nor do I think that the question of the graphe hubreos is the only one to which the interface between issues of sex and issues of status is relevant. I would at this point like to go back to Apollodoros’ prosecution of Neaira and look at the way in which a different and also problematic term for the designation of sexual behaviour works in this text. I am going to argue that it functions to support my claim that the most crucial issue in the regulation of heterosexual relations is status. This is particularly applicable to this case, of course, which deals with the contested citizeness status of two related women. But for the arguments in the text to work as they do, this must reflect on the interface between sexual mores and social status on a wider level. The present prosecution is in fact a perfect example of how this works: the alleged citizeness status of Neaira is called into question and possibly acceptably demonstrated to be false, specifically by reference to her sexual actions.
I would like therefore to examine how moicheia and related terms are treated in this text, the only Demosthenic or pseudo-Demosthenic text in which the words occur. In the course of my argument, I am going to take issue with the claims which David Cohen has recently and eloquently made about the meaning of the word moicheia (Cohen 1990, 147–66 and esp. 1991a, 98–109). 53 He believes that the term relates only to the sexual transgression of wedded wives, but this text raises questions which seriously undermine such an interpretation. We first find the term being used of Neaira. When she joins forces with Stephanos she continues to prostitute herself, but charges more on the grounds that she now is somebody’s (tinos ousa) and lives with a man (kai andri sunoikousa, [Dem.] 59.41). She also with Stephanos’ help begins to extort blackmail, for if they find among Neaira’s clients a rich, inexperienced xenos, they would lock him up as having been caught in moicheia with her and extort money. The text makes it clear that this is a ruse which is using deceitfully the powers which the kurios is allowed against the moichos and which could only be employed against someone who is inexperienced and probably also a xenos. Cohen, of course, who is committed to the idea that moicheia has to mean ‘the voluntary violation of the marital bond’ and nothing else, thinks that the deceit involved is that Neaira, although she is living as Stephanos’ wife, is not his wife. In fact not only does he base the explanation of the allegation of moicheia here on this, but he also claims that the second allegation, made in respect of Neaira’s alleged daughter, ‘is simply a repetition of’ the schema of this earlier accusation (Cohen 1991a, 109, n. 32). The text, however, gives us the key to the scam itself; there is a law which says that a man cannot be taken as a moichos for having relations with a woman who sits in a brothel or who sells herself openly. In the second case, the notorious episode where Epainetos is arrested as a moichos for intercourse with Phano, Neaira’s 54 unmarried daughter, this is indeed the law to which Epainetos refers. But his first objection to being charged as a moichos, even though he admits intercourse, is not this, nor that Phano is unmarried, for this is never mentioned as I am sure it must have been if it was the very heart of the offence of moicheia as Cohen claims, but that Phano is not Stephanos’ daughter but Neaira’s. 55 He raises also the ‘facts’ that Neaira knew that he was having intercourse with Phano and that whenever he came to Athens he spent large sums of money on them.
Here, then, we find the terms of moicheia set up quite specifically, and the lines drawn in quite a different way from Cohen’s formulation. The woman involved need not be a wife to make the accusation of moicheia appropriate, but she needs to be respectable. For a woman, that means to be the daughter of someone respectable, arguably an Athenian citizen, or to have a kurios who is respectable and who does not consent to the act of intercourse, and she must not be engaged in prostitution. These are the necessary conditions for bringing an accusation of moicheia against a man. If we examine the situation from the other angle we find a slightly different picture, but still not the one which Cohen would paint. The speaker in [Demosthenes] 59 finds it horrifying that Phano should later have been married, and married to the archon basileus, 56 when she was not only not an Athenian citizeness,but also should have been excluded from the sanctuaries of the city on the grounds of what she had done. Instead as wife of the archon basileus she offers sacrifice and performs rites on behalf of the city. Obviously there is a discrepancy between the conditions necessary to find a man guilty of moicheia and to consider a woman defiled by it; Epainetos cannot be guilty of moicheia due to his relations with Phano, but she should be treated like a woman who has been taken with a moichos. Here still we are not getting Cohen’s picture of moicheia because Phano has not been guilty of adultery, nor does the text suggest it. Moicheia begins to look like an offence not based primarily or exclusively on the violation of the marital bond, but upon the interplay of figures competing for and with the unequally divided capital of respectability.
In fact, the case of Phano provides a model for the flexibility of the term and for its concern not only with marriage, but with respectability; one might almost say, not with marriage but with marriageability, which must be policed because it is the token of a woman’s access to the rank of citizeness through her ability to be married to a citizen and to give birth to citizen children. Cohen of course is right to believe that the ‘voluntary violation of the marital bond’ posed a particular problem for the democratic city and the oikoi within it – one need only read Lysias 1 to be convinced of that. 57 It is also true that in Lysias 1, which discusses the sexual misdemeanours of wedded wives as a central concern, female consent becomes a more interesting topic for the very reason that Euphiletos would have us believe, that is, that if a married woman consents to intercourse and connives at the secrecy of it, a greater problem is posed for the integrity of reproduction within the house. But Phano’s sexual behaviour here, at this point, when she is nobody’s wife, is problematised too, and reflects critically on the issue at hand – the status of Phano and her mother, Neaira. The point of the inclusion of the story here is that it doubles the denial of the claims of Neaira and Phano to citizeness status and further implicates Stephanos in the crime of attempting to pass them off as if they were of that status. It would be wrong for Epainetos to be taken as a moichos not because Phano is married – and no-one suggests that at this point she is – but because that would be to treat her as if she were the sort of woman who had a respectable kurios and was respectable. Phano really can ‘consent’ to intercourse – or perhaps rather she cannot not consent – because she is a prostitute and the daughter of Neaira. Here I am using the term ‘consent’ in a particular way, not to indicate any personal choice or autonomy in respect of her sexual relations, but to indicate that her sexual liaisons go on beyond the scope of regulation of the laws of the polis unless she tries to trespass on the polis by claiming citizeness status. The trick which Stephanos and Neaira try to carry off, similar indeed to the attempt made earlier with Neaira as protagonist, is the pretence that Phano and Neaira are women who cannot consent, that is, that the one is a citizen-wife and that the other is capable of becoming so. To put this another way, the deceit that they attempt to perpetrate is that they are the sort of women whose kurios must consent for them, leading us back to the involvement of Stephanos. The point about the discussion of these fraudulent charges of moicheia is not that Stephanos is in with a ‘bad lot’, up to no good, and basely concerned with gain (even though these points may all be made), but that it instantiates the act of which he stands, if indirectly, accused, that is, that by meddling in the apportionment of respectability afforded to these women in respect of their sexual encounters, he is adulterating the polis in the grossest way. The counter to the charge of moicheia is not that Phano is unmarried but that she could never be a respectable citizen-wife. The horror of it is that she has been married, and married above all to the archon basileus and that she has acted in religious ceremonies on behalf of the city.
I hope that I have shown that the linked stories of the sexual lives of Neaira and her daughter demonstrate how difficult it is for us to use female consent as category for understanding the way in which patterns of sexual behaviour were regulated in Athens. Unlike a modern understanding of the concept of heterosexual rape, and indeed of other sexual offences against women, female consent as such simply is not the principle around which sexual behaviour is regulated, whether that regulation is seen in terms of explicit legislation or at the paralegal level of the soap-opera of civic norms. Constantly we find that the terms in which sexual action is problematised and legislated for in Athens in the age of the orators centralise the discussion of status. Moreover, these considerations of status take place within a city which grants its privileges by reference to a narrative of the sexual lives of its men and women. The stories of the sexual acts by which each citizen was conceived assert legitimacy and citizen status, especially after 451 BC, when to be an Athenian citizen one must be the child of an Athenian father and an Athenian mother, conceived in the context of legitimate marriage. 58 In addition to this, the narrative of the sexual acts in which citizens engage allows or threatens the maintenance of this status and the ability to pass it on to one’s offspring. 59 It is by reference to this, not to consent, that the regulation of sexual offences in Athens works. It may be true to say that the graphe hubreos was available to try rape and other sexual offences in Athens, but how this worked in practice must always be qualified by reference to a rhetoric of regulation centred not around consent, but around status. This formulation means that, in respect of sexual offences, the female as autonomous desiring subject is only of incidental interest to the morality of the democratic city, because it is only in certain circumstances that it infringes upon the attribution of status within the closed and self-interested community of citizens.
Notes
1 This paper was originally prepared for the Rape conference in Cardiff in November 1994. I would like to thank Dr Simon Goldhill, Dr Paul Cartledge and Dr John Henderson for reading it and offering comments on it in its original form, and Dr Simon Goldhill for re-reading and commenting upon it in its present form. I would also like to thank Dr N.R.E. Fisher, my reader, for several very useful comments and also Dr Anton Powell. The idea of the analogy of legal speeches to soap opera is borrowed from Sally Humphreys.
2 For reports, see the Daily Telegraph, the Guardian and the Mail for that week, specifically for Tuesday 21st and Wednesday 22nd February.
3 Victims: a fourteen-year old schoolgirl, an ‘exotic dancer’, a female police officer and a hairdresser. Of course the alleged rapists and their victims do have their gender in common. Context: an inner city park, the victim’s flat, a police section house and a car in a deserted country lane. The degree of violence employed ranged from marks possibly made by fingers without breaking the skin to multiple stab wounds.
4 For data and interpretation on report and conviction rates see Scully 1990, 6; Allison and Wrightsman 1993, 5–8, 195, 209.
5 For something more along these lines, see the forthcoming publication of my Ph.D. thesis. See also, Carey 1995, 407–17 for a very good discussion of these issues.
6 The most obvious absentee is the concept of bia and the related suit, the dike biaion, which I deal with elsewhere (see above n. 5). For the purposes of this paper, I hope that it suffices to say that although we have very little discussion of the dike biaion in the texts, such discussion as there is produces conclusions which are by no means incompatible with the conclusions of this present paper. There are some very interesting issues connected with the discussion of this term, which suggest that it need not necessarily focus exclusively on interpersonal violence, but I do not have the space to discuss them here.
7 Fisher 1992, but see also 1976, 1979, 1990.
8 For Fisher see above note 7; Cohen 1991a, 1991b; MacDowell 1976; Gagarin 1979. See also Harrison 1968; Cole 1984. See also, most recently,Carey 1995.
9 Execution of someone convicted under a graphe hubreos: Din. Dem. 23. Thegraphe hubreos was an agon timetos, so the prosecutor could propose whatever punishment he wanted. On the agon timetos see Harrison 1971, 80–2; Todd 1993, 133–5.
10 This is a fascinating text with a lot of material relevant for the prosecution of sexual offences. Unfortunately I do not have space to discuss it here, where I would like to remain focused on [Demosthenes] 59. For the ensuing discussion perhaps the most important points which emerge from a study of Lysias 1 are: a) that in that text, at least in a narrative sense, activity which is stressed as consensual, Eratosthenes’ seduction of Euphiletos’ wife, is described as hubris; and b) that a close examination of the text reveals that the distinction between sex obtained by violence and by persuasion is one which the speaker is at great pains to construct for the particular rhetorical necessities of that speech and we should thus not assume that such a distinction, in such terms, would generally hold good. For discussion of this text see e.g. Todd 1993, 201–10; Harris 1991, passim; Hunter 1994, passim.
11 The first reference to hubris in this passage is more ambiguous, since Helen is sometimes represented as going willingly to Troy. The second, however, is less so, as hubris committed against women during war and invasion is presumably not consensual. I am grateful to Dr Stephen Todd for pointing out the contrast in the uses of hubris in this particular passage to me. In a sense this itself supports my point that the relationship between hubris, sex and the consent of the woman involved is not fixed, but fluid.
12 See Dem. 23.56, 141; Isokr. Epist. 9.10; Hyp. Fun. Or. 20, 36; Thuc.8.86.3; Din. Dem. 19.6; Arist. N.E. 1115a, Rhet. 1314b, 1315a15–20, 1373a35.
13 Dem. 17.3; Lys. 12.98 (oligarchs); Isokr. 3.36, 4.114; Thuc. 9.74.3;Arist.Pol. 1315a15–28.
14 See Arist. Rhet. 1378b23–35, quoted and discussed by Fisher 1992, 8 ff.
15 The Greek is γυναίκες καὶ παίδες. See Hyp. Fun. Sp. 20, 36; Thuc. 8.74; Isokr. Epist. 9.10; Dem. 23.141.
16 See for example Arist. N.E. 1148b30; Dem. 22.58; Aischin. 1.15, 16.
17 See Aisch. 1.29, 108 and 186.
18 The text is Smith’s 1979; the translation is mine.
19 On the idea of the contested acceptability of the youth’s sexual submission see Dover 1978, 19–109; Winkler 1990, 171–204; Cohen 1991, 171–202 and on its connection to marginality and rites of passage see Bremmer 1980 and Robson (this vol.). I think that the youth’s sexual submission was ambiguously acceptable, i.e. so long as it was for the ‘right’ reasons and was suitably discreet, then it did not damage his reputation, but if it violated any of the terms of its acceptability, then it would be regarded with serious disapprobation.
20 See the excellent analysis of this in Fernandes’ forthcoming thesis. Aristotle defines a citizen as one who is able to take part in deliberative and forensic activity, Pol. 1275b.
21 Although it must be remembered that Timarchos is not actually being tried on a charge of hubris, but probably under the dokimasia rhetoron, on a charge of immoral living, the accusation of hubris is directly paralleled to this as grounds for denying him the right of a male citizen. The men with whom he has consorted do not come in for any particular criticism, though in other circumstances the active partner, as the person who commits the act of hubris, does. There is also the graphe hetaireseos, though it is unclear exactly what this punished, (male) prostitution or the exercise of certain rights if one was or had been a prostitute. See Halperin 1990, 88–112.
22 I do not say civic woman because Timarchos is less than a civic woman as he cannot do the things which entitle a woman to civic status, that is, be married to a citizen and produce citizen sons, see e.g. Patterson 1994, 199–216.
23 Arist., Frag. Rose, 558.14, Athen. 8.348b–c. Is this an example which takes us away from the consideration of rape? The fact that it is mentioned that the daughters are of marriageable age and merely the schema of male-attacks-female may justify seeing this episode as sexualised. Moreover, I think that the viewing of women within their home is sexualised to some degree; it is to some degree a breach of sexual and not just social mores. Cf. Euphiletos’ ‘why are you committing hubris entering my house’ (1.16), and the story of Candaules’ wife in Hdt. 1.12, though of course in that story the queen is naked.
24 The kurios would be under the same disadvantage in that his consent too could be forced through the dynamics of the relationship.
25 e.g. kurioi are not ashamed to be fearful about the possibility of hubris being committed against their woman and children, Arist. N.E. 1115a22. The envoys of the Four Hundred, trying to mollify the fleet in Samos, say that the Five Thousand will govern and that the sailors’ relatives are not being treated with hubris: Thuc. 9.74.3. Men are most concerned about hubris to their children and women and this is the offence that they resent most, Isokr. 3.36.
26 i.e. when a citizen is addressing the assembly, or the People’s Court and talking about the threat that a particular event would represent for them, as a way of persuading them to vote in a particular way; see e.g. Dem. 17.3, 19.196 ff., 23.141; Hyp. Fun. Or. 20, 36 etc.
27 For the views of other scholars on the problem, McCabe 1981, 152–74 and Appendix 3; Trevett 1992, 62–70.
28 How authentic a record, it is impossible to tell. It may be that many of the speeches which we have underwent substantial revisions before publication.
29 Stephanos is also the main player in the practicalities of this case.For example, when the challenge to torture of Neaira’s slaves is made, it is clearly delivered to Stephanos and it is he who refuses it (59.123–5).
30 For atimia for state debtors see Dem. 43.58.
31 The translation is Carey’s, 1992, 33.
32 For the political background, see Cawkwell 1963.
33 I accept that ‘citizeness’ is a problematic term (see especially Whitehead 1986, 77), but I have chosen to use it partly because the alternatives are rather clumsy and long-winded, and also because, especially in this text, I think that the phrase aste gune refers to a vital concept which implies a level of participa tion (in terms of being married to a citizen and producing citizen children) which is crucially at issue and for which I wanted to find an ‘active’ English equivalent.
34 The text is Carey’s, the translation mine.
35 The present prosecution is of course a perfect example of how this works: the alleged citizeness status of Neaira is called into question/proved to be false specifically by reference to her sexual actions.
36 Phryion is Neaira’s kurios (if she has one). We have a parallel from the homoerotic sphere, where we find that a father or guardian who prostitutes the boy who is under his control is prosecuted (Aischin. 1.13), but there is no suggestion of an equivalent situation pertaining for women; that a woman’s kurios commits what could be called hubris against her, by prostituting her, is proof that she is of the status which he implies. Procuring was punishable, but this is different as it involves the action of someone other than the kurios and it seems that even the opposition think that Nicodemos in Isaios 3 was at liberty to give his sister in marriage legitimately, or to give her to ‘all who ap proached her’. This action on his part ‘proves’ that his sister could not have been legally married and produced legitimate offspring. The only check on this would be for wives, where the residual kureia of a woman’s natal family might exert some degree of protection.
37 Phrynion, through the power which he has over her, may be judged like a tyrant, that is, physical violence may not need to be present to point up the inherently coercive nature of the relationship. Alternatively, it would be interesting if it could be claimed that bia/biazein and cognates work in a parallel way to hubris in this text; is there here a subtext that one cannot biazein a prostitute?
38 e.g. see 59.30.16.
39 Oxford text as used by Carey 1992; the translation is mine. I have kept hetaira for the same reasons that Carey uses ‘courtesan’ to translate it in his edition, since the word must designate such a wide range of women from the commonest streetwalker to the celebrated ‘companion’. See Carey 1992, 16.
40 She has been living in Corinth and carrying on her trade with a great degree of success (being a celebrity, lampras 26.2), attracting cultured, presumably wealthy, and apparently reasonably loyal clients (26) and living extravagantly.
41 Since Stephanos is Apollodoros’ real target it may be that Neaira is particularly unable to maintain her status because of Stephanos’ support, i.e. it is her association with him which makes her the object of Apollodoros’ attack. This has important bearing on the case and on the fact that it came to court, but it would still technically be the case even in a situation where the man involved was of less importance to the prosecutor. This is an example of the city’s right to designate status outweighing that of the kurios, as instantiated in the Citizenship Law of 451/0, and the necessity of enrolment in the phratry. Stephanos’ support of Neaira’s claim to citizeness status is not sufficient, just as Phrastor’s support of his son’s claim is not either. For a recent and very informative discussion of this law, see Boegehold 1994, 57–66.
42 For discussion of these cases, see Fisher 1992, 39–40; 1995, 69–70, 74–5.
43 The text is from the Loeb, the translation mine.
44 Fisher 1992, 39 suggests the assault is not sexual, but gives no grounds for this; perhaps the public nature of the setting makes it unlikely to have been non-consensual intercourse or any sexual assault.
45 For a discussion of the probole, see MacDowell 1990, 13–17.
46 The profession of flute player can also be allied with prostitution in terms of the sexual availability of flutegirls: Ar. Thesmo. 1176–1211, Wasps 1346. For the visual representation of the association of flutegirls and sex, see Dover 1978 and Keuls 1985.
47 The text is MacDowell’s, 1990, 108, the translation mine.
48 See e.g. Loeb translation p. 29; Fisher 1995, 69; MacDowell 1990, 255, but as ‘removing’ in his translation.
49 For references see Liddell and Scott, αφαιρέω.
50 We may assume that the assault is sexual since one of the motivations is said to be eros (21.38).
51 MacDowell dismisses the suggestion that the thesmothetai had some responsibility to patrol the streets to prevent sexual assaults on the grounds that it is ‘probably a false inference from this passage’; 1990, 255.
52 I do in fact also think that even if the woman was a respectable citizeness, the threat to her status arising out of the shame of having her sexual encoun ters discussed in public would make it very unlikely that any such case would ever be brought.
53 Carey 1995, 407–8 also disagrees with Cohen on this point.
54 At least it is claimed by the speaker that she is Neaira’s daughter; Stephanos has apparently claimed that she is his daughter by an unnamed Athenian woman, [Dem.] 59.119.
55 As Carey points out (1995, 408) this also has a strictly legal dimension:if Stephanos is not Phano’s father then he has no right to prosecute Epainetos. Ithink that this is a very strong point, but I would disagree that this is the main thrust of Epainetos’ argument. Certainly this point is never made explicit, whereas his reference to the law which rules out prostitutes from the terms of legislation on moicheia is referred to as being crucial to the case. Also, this point depends on a view that Stephanos has no rights over Phano and could thus not legally perform any action on her behalf/in respect of her. The terms of the agreement reached at the ensuing arbitration state that Stephanos does have the right to direct the sexual activity of Phano; [Dem.] 59.71. The speaker (for his own rhetorical purposes no doubt) then relates this whole issue directly to the question of Phano’s citizen status.
56 This has two implications, the one more general – it is another way of saying ‘a citizen’ since to be able to be the archon basileus one must be a citizen – and the other quite specific, since the position of archon basileus has particular religious significance.
57 See Lys. 1.32 ff.
58 e.g. after the Periclean Citizenship law of 451–450. See Arist. Pol. 1275b, Ath. Pol. 26.4, Plutarch Per. 37.3.
59 Apollodoros presents proof of Neaira’s sexual high-jinks as proof of her non-citizen status (though of course this could be a rhetorical device). The allegations which can be made about Phano’s sex life, and her connection with Neaira about whom sexual allegations can be made, ensure that she is unable to maintain her citizeness status and be married to a citizen and give birth to citizen children. Timarchos is unable to maintain his full access to citizen rights on account of his sexual action. The sexual allegations which can be made about Phile’s mother in Isaios 3 prevent Phile from establishing her legitimacy. Although a link is not explicitly made to the actions of his sister, it is also worth noting that Phile’s mother’s brother has his citizen status called into question and only manages to maintain it by a majority of four votes.
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