Crimina Against Sexual Morality in the Legal Compilation of Vrsar: Canon Rules as a Source of Statutory Law (Conceptual Foundations in Roman Law)

Abstract

Following the most relevant sources of legal and historical provenance, the authors analyse the regulation of breaches of sexual morality in the history of Roman criminal law. The analysis determines the contents of such criminal acts, their subjects and objects, the persons who were entitled to indict, and, finally, addresses the legal sanctions that are closely connected to the question of good that is intended to be protected. After addressing in the first part of the paper the two Roman foundations which governed
the perception of public morals – the concept of honour-shame and socially tolerated prostitution which inevitably led to infamy, the authors elaborate the criminal qualification of extramarital sexual relations of a married woman (or of a reputable woman). The former
elaborations refer to the period after the Augustan lex Iulia de adulteriis coercendis until Justinian’s Novels No 117 and No 134. Penalisation of adultery was directed at the preservation of marriage under Roman law and indirectly to the protection of social stability, which was achieved through controls of the sexual morality of the married woman, simultaneously giving men the role of its protectors and of extracting retribution. On the other hand, it meant that sexual relations of that kind with women who were considered infamous were not punishable. In the second part of the paper, the authors briefly elaborate several procedural options of public prosecution and strict penalisation of rape which should be perceived as every violent sexual relation with a virgin or an unmarried woman or a widow. The essentials of the criminal approach to rape consisted of the protection of a woman’s sexual and moral integrity as a foundation of her marital and reproductive potential.