I cite several peer reviewed scholars on that point, actual experts in the subject, even in this article. And more in the chapters I cite, and those scholars do likewise. That’s your bread crumb if you want to pursue that line of investigation.

The internet is not academia. Even when it filters academia, the filter often distorts what an academic actually said. Better to go to the source: read the actual peer reviewed literature on this, particularly the latest, and don’t just selectively choose books and articles that argue one position, but seek out the best arguments for both positions, and compare the quality of their arguments—including their semantics (i.e. what they are actually saying, vs. what the internet claims they said).

[T]here is an entire faction of historians and popularizers pulling the Lindberg stunt, who are in fact more widely known and cited in the lay world…

I’m more curious about who’s in your “faction” so to speak. I see a lot of “historians don’t believe in the dark ages,” I know that you obviously do, but who else does, because it seems that your perspective is being a little drowned out on the internet.

Oh no, that’s all quite true: rape was routine in the ancient world. As I note in my speech on Sex and Sexism in Ancient Rome, it is very, very hard to find any consensual sex in the Roman Empire.

According to this respondent, rape was the “default mode of prostitution in ancient Rome.” What are your thoughts on that? Or are we dealing with an overly broad definition of rape?

If there were legal remedies, they would have been available only to elite courtesans. Non-elite prostitutes were defenseless. Even in court, clients were found not criminally liable in cases where they had kicked down doors to rape prostitutes. This is an actual case from the Digest, discussed below. What was the legal reasoning behind that? Even court action, if there was any, wasn’t all that effective.

Here’s the response, it’s very thoughtful:

“Buckle up, this is not going to be a happy answer.

First, although unenslaved prostitutes suffered legal infamy that restricted their access to the courts and protection under the law in a fashion similar to actual slaves, practically, actual slave prostitutes were very common, and slave trafficking seems likely to have supplied a majority of Roman prostitutes throughout the classical period. Possibly a vast majority, although there is debate about that (there were certainly some unenslaved prostitutes), but in any case, there was a basic link, in Roman thought and practice, between slavery and prostitution that should be specifically addressed.

From a modern, correct, perspective, due to this outsize role of slavery in supplying prostitutes, coerced sex – rape – might be said not only to be licit but to be the default mode of prostitution in ancient Rome. Whether or not force was used in the moment, it was in the background. Even in ancient mindsets this could be recognized in special circumstances that prompted slavery and prostitution to be viewed in a different light – such as when considering illegal enslavement and sale into the sex trade. Flip the light-switch of social status that prompted the Romans to see rape as rape, and suddenly they saw it all along the road to prostitution – to the point that the idea that a formally respectable woman could have been illegally enslaved and wound up in a brothel without having been raped at many points along the prostitute-trafficking pipeline was scoffed at as ludicrous nonsense.

(Or, at absolute best, in ancient fantasy-romance literature, portrayed as a fantastical, extraordinary feat. Brothel-peril is a feature of some surviving Roman novels, and possibly a stock plot of the genre, in which it’s an opportunity for the heroine to affirm her superhuman devotion to her chosen man by somehow avoiding what happens to everybody else in such circumstances.)

Quoting McGinn (see sources section):

Rape was a very real prospect for a brothel prostitute […] Her vulnerability is illustrated by the sarcastic comments of the speakers in the rhetorical exercise recorded by the Elder Seneca about the brothel-inmate who kills her rapist. They question the woman’s ability to avoid rape by the pirates who captured and sold her, the pimp who acquired and installed her in a brothel, and the various customers who confronted her, including drunks, gladiators, and hot-blooded young men bearing arms. The visitors she could expect to receive amounted to “a low and hurtful mob” (“sordida iniuriosaque turba”). In other words, rape was the fate of a woman in a brothel: the place raped her, if no man did.

But returning to the formalist legal view of such things, and thus to the ordinary ancient perspective on “legitimately” prostituted prostitutes…

Broadly, as said above, it is quite clear that the laws of sex crimes (most relevantly, stuprum, and also adulteria) specifically define away the possibility of slaves and unenslaved but legally infamous persons being the victims of such sex crimes. What made criminal sex criminal was transgression against the sexual honor that helped define what it meant to be a respectable person. However, in the eyes of Roman law, there was no way to criminally transgress the sexual honor of an infamous person because they had none.

Enslaved people, as well as people subject to legal infamy such as unenslaved prostitutes, had very limited access to courts and the law in general. They had limited ability to bring cases or, under many circumstances, even testify. The exclusion from civil rights affected access to all sorts of justice: not just the specific case of stuprum.

At least one jurist is indulgent of the man in a scenario that’s nonconsensual beyond the level of general background coercion. Ulpian states that there is no liability for a lust-crazed customer who, locked out by a prostitute, breaks down her door to get to her. The legal question involves other opportunists taking advantage of the broken door to rob the prostitute – and that’s the loss for which Ulpian opines there is no action in court – but the original encounter, which involves her trying to lock the man out, doesn’t involve even what agreement an unfree person can give.

However, we can contemplate whether there might be other relevant offenses besides stuprum, and there is some, doubtful, possibility that these alternatives might not be completely denied. Besides law on sex crimes, law on violence could conceivably apply, although there’s a lack of evidence of its being applied in practice and evidence that brothels were viewed as naturally rowdy and violent places, so it’s not clear whether that avenue may also have been closed. Laws on breach of agreement (in case of a transaction gone bad) might have had some application – the law did at least recognize that prostitutes should receive their fees. These avenues might have been theoretically possible but even if so probably would have relied on obtaining the help of a respectable person in handling the case, which adds another layer of dubiousness. We might imagine that a few prostitutes catering to the elite may have had the connections to make something happen, but many more prostitutes occupied a very low place in society and could not likely form such connections.

Lastly, there is the possibility of self-defense in the moment, which might go beyond the locked door and other passive measures to include active violence against the assailant. Even this was not certainly a legally (to say nothing of bodily) safe route – raising the prospect of being charged for wounding or killing an attempted rapist in self-defence – but there are some stories of a prostitute’s (probably a nonslave prostitute’s) use of violence in self‑defence being upheld. How usual this was is not very clear, and there would almost certainly have been greater legal risk in attempting self-defence against someone themselves respectable and powerful than against someone themselves infamous, or just socially marginal.

Overall, the fact that the application of these other laws to prostitutes can only be discussed vaguely is an indication that the Romans largely kept the problems of prostitutes and the formally disgraced out of court and preferred that respectable venues of the law have as little to do with them as possible. With some potential, but probably not very reliable caveats, Roman law shielded the honorable and not the disgraced.

Sources

The best scholarly source here is McGinn, Prostitution, Sex, and the Law in Ancient Rome, which discusses this particular question pp. 326-328. McGinn’s conclusion, that the legal position on the liability for raping a prostitute is not clear, is a main informant for my post.

Other relevant scholarship includes McGinn (again), The Economy of Prostitution in the Roman Empire: Social History and the Brothel, which provides the above quote on p. 89, and Perry, Sexual Damage to Slaves in Roman Law (but this one mainly concerns “sexual damage” to slaves outside the context of prostitution).

Assembling a list of relevant primary sources would take some work. Information is fairly widely scattered, with bits of information in various legal writings and scattered impressionistic or allusive evidence in other literature, such as the aforementioned romance novels.”

I would only add that prostitutes, if fortunate, could be protected by civil actions initiated against their rapists by their owners, pimps, family, or even clients (if a client had a contract with her and chose to enforce it against her rapist), essentially for injury or theft of services. And we know of at least one case where a prostitute’s right of refusal was upheld under the law, although she fought off her would-be-rapist and was facing a charge of assault (the charge was dismissed); it’s not known what would have been available to her if she had not succeeded in fighting him off (other than actions brought against a rapist by third parties per above; though possibly she could bring her own action for theft of services, there isn’t any surviving case law on it).

You may also find this paper on point for your query; and for more detail, this book.

Richard,

I asked a Classics professor about whether raping prostitutes was legal in ancient Rome and whether rape victims were expected to kill themselves, following the example of Lucretia.

This was the response I got:

“Hi! I can provide some semblance of an answer for you. First, about whether rape of a prostitute was a crime. Prostitutes were infames, meaning that they lacked civil rights, just like slaves and actors. So short answer no: they didn’t have the right of consent any more than a slave did, so there was no sense that they could be raped. Catharine Edwards, Unspeakable Professions, is good on this for the social side of things. For the legal side, while I don’t know the Digest really at all, I DO know Berger’s Dictionary of Roman Law! There we learn that “Relations with meretrices [prostitutes] were not punished as stuprum [sex crime]”. This means that laws about sex crimes did not apply to prostitutes.

For the second question no, there was not an expectation that women who were raped (so we’re talking citizen women here) should commit suicide. If the woman was raped, she was free from the punishments that could attach to adultery, and the punishment just fell on the man (Berger again). Lucretia is an almost mythic exemplum, showing an extreme standard of feminine perfection. We might note that in that story, the men present tell her that she is not guilty and does not deserve punishment, but she kills herself anyway. So even in that story there is no expectation of suicide, at least from the men present.”

Thought you would find this interesting.

Was it perfectly legal to rape a man (or woman) if they were prostitutes…

I don’t know the answer to that one; I would assume it would be theft of services, and thus a civil tort. But would there also be a criminal action for rape? I don’t know. Cato belongs to the Republic, long predating imperial legislation. One would have to check the Digest of Justinian for all of its Imperial-era rape statutes to reconstruct the answer. Scholars might already have done this; you’d have to search the scholarship to see.

Was there any difference between a prostitute and a promiscuous woman in the Roman world? Or were they the same?

Legally, yes. Until you were convicted of promiscuity. A woman convicted of promiscuity would be legally declared a prostitute (including requirement to dress as one, which actually meant, dress as a man); and any loopholes would be moot, I assume, since any woman thus convicted who did not get that registration would register themselves, because they have more rights as a prostitute than a woman declared infamia without registration as a prostitute. Even the later legislation that forbade elite women registering would no longer apply, because conviction would remove your elite status.

Was there an expectation that victims of rape kill themselves, because that was what a good Roman woman with a sense of honor would do? What about women who dressed and acted like sluts or were promiscuous?

The latter would register as prostitutes, or else undertake a similarly classified profession (like actress), because it freed them from all sex crime laws (surrendering any higher status they may have had). As to the former, I don’t know if anyone has done a study of what was usual. One would have to research the literature to find out.

I understand that marital rape was perfectly legal in the Roman world, as you said in your talk. But what about raping a prostitute? For instance, Cato the Elder said (in a fragment):

“But except for a man who openly peddled his body or had hired himself out to a pimp, even if he had been disreputable [famosus] and of suspicious character, they ruled that it was not just for rape to be committed against a free body.”

Was it perfectly legal to rape a man (or woman) if they were prostitutes, as Cato the Elder indicates?

I understand slaves could be raped with impunity. Was it perfectly legal to rape foreigners?

Another question is: If a free Roman girl or woman dressed like a whore or wore really slutty clothes and she was raped, would this have been considered perfectly legal? Would anyone have been legally prosecuted for this?

Was there any difference between a prostitute and a promiscuous woman in the Roman world? Or were they the same?

Lucretia was the ideal Roman woman. She killed herself after being raped, as you know. Was there an expectation that victims of rape kill themselves, because that was what a good Roman woman with a sense of honor would do? What about women who dressed and acted like sluts or were promiscuous?

You are referring to an article in 1965 that contains inaccuracies. For example, Octavia was betrothed, not married; she only actually married at 13 or 14. Likewise, many of the things Hopkins counts as marriages were likely betrothals not marriages (e.g. that’s what “as though she were a wife, although she is not yet a wife” means). And we now know numbers and year counts in epitaphs are not strictly reliable. So his data are not usable this way. (They also span too long a period; laws may have changed under Christian dominance—I only wrote of the pre-Christian era; I didn’t look into what may have changed regarding ages of marriage in Christian law.)

But assuming there was no change, I haven’t seen any evidence against the law being as it was stated: sex with the underaged was a sex crime. It probably still occurred (as all crimes do), but, for example, anyone who wanted to avenge themselves on you could haul you into court for underage sex (or even any sex with a betrothed before formal marriage) if they could prove it (this ability to be rewarded for outing sex criminals started under Augustus and is actually one of the most notable features of the new Roman sex law regime he created and that mostly is what I described in my talk).

I just went over your link on Roman sexuality:

Although it appears that most sexual activity started at fourteen, nevertheless it was legal to start fucking someone at twelve. Women, in fact, typically got married at the age of fourteen or not far from it. But it wasn’t a sex crime unless they were under twelve. So at least they classified under twelve as a sex crime. Even having sex with a slave under that age was a sex crime.

Underage marriages, and the underage sexual intercourse that took place within these unions, seem to be the great exception to this. They certainly took place, were apparently socially acceptable, and the parties to the practice were not penalized for it. The evidence is discussed by M. K. Hopkins (1965):

Whatever the reason, 8 per cent of 145 pagan girls married before they were 12 (3 per cent of 180 Christians) and a further 10 per cent (4 per cent of Christians) married at the age of 12, and 11 per cent more (8 per cent of Christians) at the age of 13. Of course, many of the 13-year-olds and some of the 12-year-olds may have been already past menarche. And it is possible among the 10 to 11-year-olds. One cannot tell, but is it likely?

We know of very early marriages among the aristocracy. Octavia, daughter of Claudius, married at 11; Agrippina, mother of Nero, married at 12. Pre-pubertal or not, they were certainly young, but contemporary historians (whose works survive) did not comment upon these early marriages. The ages have to be calculated from the other evidence which we have. More evidence on dates would presumably yield more early marriages. But the historians made no jibes and, gossips that they were, they do not generally seem reluctant to criticize where there was a target worth hitting.

We can conclude that pre-pubertal marriages did occur, probably on some scale. … Those lawyers, who fixed a low age for marriage and took no steps to make the law effective, were clearly indifferent to pre-pubertal marriage. While to the gossiping historians, and presumably to their public, the pre-pubertal marriage of two girls in families which were often grossly attacked were clearly tolerable, unexceptionable – and, dare we say, unexceptional?

[…]

What did excite comment was the extraordinary action of marrying a young girl without consummating the marriage. Suetonius commented that for political reasons Augustus married a young girl who was ‘hardly nubile’, and later because of a quarrel sent her back ‘still a virgin’. Dio tells the same story and, if I am not mistaken, even adds a tone of faint disbelief- ‘as though she were still a virgin’. The emperor Honorius successively married the two very young daughters of Stilicho for political reasons, and again the sources remark on the girls’ preserved virginity.

Admittedly the number of cases is exiguous, but it seems that the preservation of a very young wife’s virginity had more news value to the Romans than pre-pubertal consummation. One cannot conclude from this that all marriages to girls who had not reached puberty were immediately consummated.

[…]

There is a law which deals with a girl’s marriage under 12 and intercourse; it is concerned with her adultery. This is but one example; it may be an exception, but surely the general assumption is that intercourse took place on marriage.The doctors, Soranus and Caelius Aurelianus, advised that defloration should take place after menarche – but I think they were recommending delaying marriage, not a delay within marriage. And in any case their advice would be superfluous unless defloration before puberty occurred. In short, some writers advised against pre-pubertal intercourse, others treated it as a normal Roman practice; at least three historians express surprise that young wives were returned as virgins.

According to McGinn (2015), the parties to an underage marriage were not guilty of stuprum, even if there was underage sexual intercourse:

Of no small importance is the fact that underage female marriage never seems to have been considered as giving rise to liability for stuprum between the partners themselves. Here is a telling instance of the principle ‘[w]hat the law would control, it first legalized.’ This lack of liability is remarkable when viewed both from an ancient and from a modern perspective. In instances, for example, of bigamy and incest, deliberate violation of the adultery statute in the context of attempted marriage-formation, when, as a matter of law, no marriage was possible, would risk the imposition of a severe penalty for offenders. An accommodation might be made for parties who were deceived about a partner’s actual marital status in the case of bigamy and for reasons of sex, age, and mistake in the case of incest. But we have no evidence of any discussion at all of the need for such in the context of underage female marriage. In other words, there is no sign that it was ever regarded as a problem. Piro convincingly demonstrates (74) that despite some ambiguities in the evidence sex was a routine expectation in this context, as was cohabitation as a married couple.

[…]

Marriage or even the expectation of such represented a social good worthy of accommodation. I think it right to extend this analysis to the question of liability for stuprum. Since the parties to an underage marriage were trying, on a Roman estimate, to do the right thing they escaped criminal liability. Indeed the question, as we have observed, never even arises in our sources.

The evidence for underage marriage is found in funerary inscriptions. Girls were sometimes married as young as 6 or 7 years old. For example, Venturia got married at age 11:

Here I lie, a married woman, Veturia is my name and descent, wife of Fortunatus, daughter of Veturius. I lived for three times nine years, wretched me, and I was married for twice eight. I slept with one man, I was married to one man. After having given birth to six children, with one surviving, I died. Titus Iulius Fortunatus, centurion of the second legion Adiutrix Pia Fidelis, erected this for his wife, who showed unequalled and extraordinary devotion to him.

Roman jurists recognized the existence of underage marriage, but did not condemn it, although they did not legally equate it with regular marriage. This is from Ulpian:

If a fiancee gave a dowry and the marriage has been called off, though she herself sues for its recovery through a condictio, it is all the same fair that she be
granted privileged status as a creditor, although no marriage has taken place. I believe the same ought to be held also in the case of a girl younger than twelve years of age who has been led to her partner’s home as though she were a wife, although she is not yet a wife.

Based on your understanding of Roman sexual practices, was sex with someone under the age of 12 acceptable in a marital context? If pre-pubertal marriage was acceptable, wouldn’t it make sense that marital pre-pubertal sex was also an acceptable practice? My impression is that if you wanted to avoid stuprum for underage sex or “fornication with a virgin,” the best way to do so was to get married. Is this correct?