HOMOSEXUALITY IN ROMAN LAW: CONTRA NATURAM?
HOMOSEXUALITY IN ROMAN LAW: CONTRA NATURAM?

Summary/Abstract: Although the analysis of relevant sources shows that homosexuality was not an issue of particular importance for the Romans, the paper presents the changes regarding the legal regulation of homosexual activities which, in accordance with socio-political and philosophical-religious changes, crystallized during Roman legal history – from relative tolerance to strict criminalization. In this context, an attempt is made to answer the question whether or to what extent and at which historical moment homosexuality was considered contra naturam behavior, and accordingly to expose the change in protected legal good – from violation of honor and masculinity to violation of God and nature. Thus, the republican civil law restrictions that affected passive homosexual men (eum qui corpore suo muliebria passus est) on the basis of censorial, and especially praetorian, infamy are first considered. Then, starting with the monetary punishment of passive homosexuality provided for by the mysterious lex Scantinia, Augustus' criminal law regulation stuprum is presented, which in jurist elaboration (especially Paul's) resulted in different and tougher punishments – capital punishment for the rape of a free man, and property punishment for voluntary passive homosexuality. Finally, in the third part of the paper, it is shown how the post-classical imperial legislation, under the influence of the Christian understanding of homosexuality as sinful and unnatural, prescribed even the death penalty for stuprum masculorum, and at the same time points out that Justinian with Novels 77 and 141 as the primary goal in suppressing this worst act contra naturam set correction and only as secondary goal severe punishment for the purpose of achieving general prevention.

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