by K J Dover
It is evident from what Aiskhines says about that situation that the law did not envisage execution as a normal punishment for the father or guardian, for it went on to provide that when such a boy grew up he was absolved from the customary obligation to maintain his father. In two passages Aiskhines makes it sound as if a boy forced into prostitution by his father was not himself penalised:
§13: If anyone is hired out for prostitution by his father ... the law says that there should be no indictment of the boy himself...
§18: Here the legislator is not yet speaking to the person (lit., ‘body’) of the boy ... but when he is enrolled on the register (sc. as an adult citizen) ... thereafter the legislator speaks not to anyone else, but to Timarkhos11 himself.
Yet we read in §14:
The law (sc. which exempts the prostituted boy from maintaining his father) deprives the father during his lifetime of the benefits of begetting children, just as the father (sc. deprived) the boy of his freedom of speech.
This implies that when the boy grows up he suffers the disabilities imposed by the law (deprivation of the right to speak in public) even though his prostitution had not been of his own choosing; ‘no indictment’ in §13 therefore means no indictment at the time (and none [cf. p. 27] at any time provided that the boy does not attempt, when grown up, to exercise the rights from which he is now automatically debarred). The rhetorical purpose of asserting that in the case of a prostituted boy the punishment at the time fell on the father or guardian, not on the boy, is simply to emphasise that Timarkhos chose his own way of life when he was already grown up.
The wording of the law under (a) carries two implications of the greatest importance. One (to be discussed more fully in Section 3 below) is that since foreigners visiting or residing at Athens had no right in any case to hold office or address the assembly, they were free to prostitute themselves as much as they pleased, without incurring any penalty or any disability greater than that which their status as non-citizens already imposed on them. The second implication is that if an Athenian citizen made no secret of his prostitution, did not present himself for the allocation of offices by lot, declared his unfitness if through someone’s inadvertence he was elected to office, and abstained from embarking on any of the procedures forbidden to him by the law, he was safe from prosecution and punishment. The validity of this second implication is sustained by a series of passages :
§3: It will be shown that ... Timarkhos alone has brought this whole case on himself. The laws laid down that because of his shameful life he should not address the assembly; in saying that, they issued a command, in my judgment, by no means difficult to comply with, but extremely easy.
§§19f.: ‘If any Athenian,’ says the legislator, ‘has prostituted himself (het.), let him not be permitted to ... hold any office ever ... or to deliver an opinion in council or assembly ...’ And if anyone acts contrary to these (sc. prohibitions) the legislator has provided indictments of prostitution (het.) and imposed the greatest penalties.
§32: These, then, he (sc. the legislator) debars from the rostrum, these he forbids to speak in the assembly. And if anyone, in contravention of those (sc. prohibitions)... speaks ..., ‘Let any Athenian who wishes,’ he says, ‘proclaim (sc. the need for) an official scrutiny’ (cf. §46).
§40: ... earning money for that very thing of which the law says that those who do it may not address the assembly (lit., ‘which the law forbids to do or not also address the assembly’).
§73: The reason why Timarkhos is on trial is that after behaving as he did he addressed the assembly, contrary to the law.
§195: Tell those who are guilty of crime against their own bodies not to inflict themselves upon you, but to cease addressing the assembly; for the law too investigates not those who live simply as private citizens but those who take part in political life.
Aiskhines refers in §74 to male prostitutes, recognised as such by the public, who plied their trade by waiting for customers in or in front of their houses or rented rooms. The reference does not suffice to prove that the practice was legal, any more than the continued existence of pimps could ‘prove’ that it is legal nowadays to live off a prostitute’s earnings, but another passage (§§119f.), in which Aiskhines forestalls arguments likely (he says) to be used by Demosthenes on Timarkhos’s behalf, is decisive:
He (sc. Demosthenes) expresses great surprise if you do not all remember that each year the Council farms out the prostitution tax; those who have bought (sc. the right to collect) the tax do not (sc., Demosthenes says,) conjecture, but know precisely, those who follow this trade... He says that (sc. proof of) the activity requires not (sc. simply) a prosecutor’s accusation but testimony from the tax-farmer who collected this tax from Timarkhos.
Clearly the state would not have made regular provision for the taxation of an activity which it had forbidden.
Then in §158 Aiskhines tells a curious story. An orphan, he says, Diophantos by name, lodged a complaint with the magistrate whose duties included the care of orphans, alleging that a foreigner had failed to pay him the four drakhmai which he owed him for homosexual use of his body. Aiskhines’ introduction of the story with the words ‘Who among you does not know ...?’ is unpromising, since ‘You all know ...’ was commonly used by a speaker in court to lend conviction to an audacious falsehood, but Aiskhines specifies the magistrate (‘whose assessor was Aristophon of Azenia’, an eminent politician, still active in 346), and a false story of which the very basis is implausible serves little useful purpose.
Again, Aiskhines imagines (§163) someone who had hired Timarkhos for homosexual use as suing him for breach of contract:
Will not the man who hires an Athenian contrary to the law be stoned, and leave the court after incurring not only the (sc. fine of) one obol in the drakhme but maltreatment (hubris) into the bargain?
The fine of one obol in the drakhme, i.e. one sixth of the sum claimed, was imposed on a plaintiff if more than four fifths of the jury found in favour of the defendant. Stoning was not a punishment actually prescribed by law, but traditions about the Persian invasion of 480 (Hdt. ix 5, Dem. xviii 204) told of men who had been stoned to death, together with their wives and children, by reason of conduct (advocacy of surrender to Persian demands) arousing in the whole community a spontaneous horror and indignation which burst the bonds of law. Aiskhines therefore means not that the plaintiff in the hypothetical case would incur a legal penalty – indeed, he would have the letter of the law on his side – but that he would kindle in the jurors an indignation which would vent itself in violence. The phrase ‘contrary to law’ in §163 begs the question; it is plain from the evidence discussed so far that the use of a homosexual prostitute was not always or necessarily contrary to law, but only in certain specific circumstances.
3. Status
It is noticeable that the law paraphrased in §19 says not ‘if anyone has prostituted himself ...’, but ‘if an Athenian (lit., ‘someone of the Athenians’) has prostituted himself ...’, and similarly in §72, ‘if anyone hires an Athenian for this practice’, §90, ‘he who has shamed (sc. by homosexual use) one of the citizens’, and §163, ‘the man who hires an Athenian’. We have already had occasion to remark that since no one but an Athenian citizen could hold administrative office at Athens or make a proposal in the assembly, foreigners were not affected by the law which imposed penalties on men who sought to exercise these functions after prostituting themselves; we have also seen good reason to believe that homosexual prostitution per se did not incur a penalty. We should expect in consequence that boys and men who made a living from homosexual prostitution would be predominantly non-Athenian, and this expectation is borne out by a section (§195) of Aiskhines’ peroration:
Tell those who are hunters of such young men as are easily caught to turn to foreign visitors or resident foreigners, so that they may not be denied the pursuit of their inclinations and you (sc. the people of Athens) may come to no harm.
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nbsp; The male prostitutes who plied their trade in brothels and paid the tax levied on their profession (§§119f., 123f.) were presumably for the most part foreigners. §195 implies that no law was concerned to deny satisfaction to homosexual ‘inclinations’ (prohairesis, i.e. ‘choice’, ‘preference’, ‘way of life’)12 on a commercial basis, provided that no Athenian was procured for the purpose; and on the implication of ‘easily caught’ – a criterion of distinction between submission for money and submission for reasons of sentiment – see further pp. 88ff.
It happens that in the period before the Timarkhos case the one contractual homosexual relationship for which we have detailed evidence involved a youth who had at best marginal citizen status and may in fact have been regarded as being, for all practical purposes, a foreigner. In Lysias iii (Defence against Simon) the speaker (we do not know his name) has been accused by a certain Simon of wounding him with murderous intent. The speaker explains (§5):
We (sc. Simon and I) conceived a desire for Theodotos, a Plataean youth. I was good to him and expected him to be fond of me, but Simon thought that he would compel him by illegal force to do whatever he (sc. Simon) wished.
So far as concerns the rights and wrongs of the violence which erupted when each of the two men thought that Theodotos should be with him and not with the other, we can hardly form an opinion, for only one side of the case is available to us, and we have no control on the colourful allegations made therein. The speech was composed some years later than 394 (as appears from the reference in §45 to the battle of Koroneia) and the date may have some bearing on the status of Theodotos. Those Plataeans who escaped in time from the Peloponnesian capture of Plataiai in 427 were given Athenian citizenship (Dem. lix 103f.; cf. Thuc. iii 55.3, 63.2), and though some remained at Athens, with membership of Athenian demes, for nearly a generation after the end of the Peloponnesian War, Plataiai was reestablished as an independent city-state in or soon after 386 (Paus, ix 1.4; cf. Isok. xiv 11-14). Moreover the decree of 427, cited and discussed in Dem. lix 104-6, did not give Athenian citizenship indiscriminately to anyone who claimed, then or subsequently, to be a Plataean, but provided that every claim should be scrutinised (with reference, inter alia, to the claimant’s political record as a friend of Athens), and that the offer should be closed when the fugitives of 427 had been dealt with. Thirdly, a limit was set to the range of religious and administrative offices which should be open to these new citizens, and it was provided that the limitation should apply to those of their issue whose birth did not satisfy Athenian criteria of legitimacy. Given these facts, it is quite possible that the young Plataean Theodotos did not possess Athenian citizen status at all; and even if he did, he could never have been regarded by Athenians in the same light as a youth of pure Athenian ancestry.
When the speaker confesses in §5 that he hoped to secure the affection of Theodotos by ‘being good to him’ (lit., ‘doing him well’, i.e. being his benefactor), he is coming as near as makes no matter to declaring a relationship of hetairēsis. He shows embarrassment (§§4, 9) at having to admit to a degree of infatuation which ill-wishers will think foolish and contemptible in a man of his age,13 but no sign of apprehension that his relations with Theodotos might incur any legal penalty. What is more important, he makes certain statements (§§22-4) about Simon’s plea which are unlikely to be false, since Simon, as prosecutor, has already addressed the court:
He (sc. Simon) went so far as to say that he himself had made a contract with Theodotos and had given him 300 drakhmai, and that I got the youth away from him with deliberate dishonest intent. But surely, if that was true, he should have got as many witnesses as possible to speak for him and tried to get the case decided according to law ... Consider how impossible it is to believe what he has said. He set a valuation of 250 drakhmai on the whole of his own estate. Rather remarkable if he hired someone for prostitution (het.) for a larger sum than he in fact possesses!
The basis of the case presented by Simon, it seems, resembled that which Aiskhines (§163) regards as likely to end in the plaintiffs fleeing the court under a rain of missiles, blows and insults. But it differs in one vital respect: in the case imagined by Aiskhines the prostituted man is Athenian.
We do not know when the law imposing political disqualification on male prostitutes was originally made, and for that reason we cannot be sure of the reasons for making it (cf. pp. 103-9). Aiskhines would not have been displeased if his audience took his reference to ‘the legislator’ in §19 as a reference to Solon, who codified a body of law at Athens in the early sixth century; but even if that was his intention, and even if the intention reflected sincere belief, it does not help us much, for Athenians in the fourth century tended to commit anachronisms in speaking of ‘the laws of Solon’ in cases in which we would say more cautiously ‘Athenian law’. The law must antedate 424, since Ar. Knights 876-880 is a clear reference to a successful prosecution under it. Once the law had been made, homosexual prostitution will naturally have become the special preserve of foreigners. A foreigner at Athens was regarded as being of lower worth than a citizen, so that any event which adversely affected the prosperity or character of a foreigner was less important than it would have been if it had adversely affected a citizen in the same way and to the same extent.14 It was easy to arouse indignation at injury done by a foreigner to a citizen, and judgment in a lawsuit between a citizen and a foreigner was apt to go against the foreigner in circumstances where the outcome would have been less predictable if both parties had been citizens. A character in Aristophanes (Knights 347) ridicules one who thinks himself a capable speaker just because ‘you presented some piddling case against a foreign resident’. An incident described in Aiskhines (§43) is instructive, and the issue of its truth or falsity matters much less than the assumption which underlies it:
They (sc. Misgolas and Phaidros) found him (sc. Timarkhos) having lunch with some visiting foreigners. They threatened the foreigners and told them to come along to the prison, because they had corrupted a youth of free status; the foreigners were frightened and disappeared, leaving the party that had been prepared.
Misgolas and Phaidros were bluffing, and the bluff is made all the more remarkable by saying not ‘an Athenian youth’ but ‘a free youth’ (sc. of any nationality). Even if the foreigners had been apprehended at the climax of an erotic tangle with Timarkhos, provided that Timarkhos had said that he was doing it because he liked it, no one had broken the law; but the foreigners were not prepared to face citizen accusers.
4. Hubris
Hubris is a term applied to any kind of behaviour in which one treats other people just as one pleases, with an arrogant confidence that one will escape paying any penalty for violating their rights and disobeying any law or moral rule accepted by society, whether or not such a law or rule is regarded as resting ultimately on divine sanctions. Together with the derived verb hubrizein, which can be transitive or intransitive (‘commit hubris [against ...]’), and the noun hubristēs, ‘man inclined to hubris’, the word is attested in Homer, and the classical period added the adjective hubristikos, ‘characteristic of a hubristēs’. Speakers in Athenian courts made lavish use of this group of words in castigating what they wished to portray as outrageous, arrogant or contemptuous behaviour, for the words carry a high emotive charge; the young Demosthenes, for example, applies hubrizein (xxvii 65) to his guardians’ shameless misappropriation of his estate.15
There was however a specific offence called ‘hubris’ in Attic law. Anyone who struck, pushed, pulled or restrained another person might put himself in danger of a prosecution for hubris. This prosecution was not a private lawsuit for damages, but an indictment for an offence against the community as a whole, and it was open to a jury to concur in a prosecutor’s demand for the infliction of the death penalty. Indictments for hubris coexisted with private claims for damages arising out of simple assault, but to establish that an act of violence was hubris rather than assault it was necessary to pers
uade the jury that it proceeded from a certain attitude and disposition on the part of the accused: that is to say, from a wish on his part to establish a dominant position over his victim in the eyes of the community, or from a confidence that by reason of wealth, strength or influence he could afford to laugh at equality of rights under the law and treat other people as if they were chattels at his disposal. Dem. xxi 180 relates the case of a certain Ktesikles who in a religious procession struck a personal enemy with a whip and was not saved from execution by the excuse that he was drunk. Ktesikles in fact ‘treated free men as if they were slaves’, says Demosthenes, and (§72) ‘it is not a blow in itself that men fear and resent, but a blow eph’ hubrei’, i.e. ‘in furtherance’ (or ‘in satisfaction’, ‘in expression’) ‘of hubris’, for this inflicts ‘dishonour’ on them, demoting them in social status and subordinating them to the aggressor until they can redress the situation by a successful indictment.
When an offence contains a sexual ingredient, or when some aspect of the sexual life of a man prosecuted for a non-sexual offence can be exploited maliciously, the hubris-group of words can be applied by an adversary both generically and specifically, in order to create a profitable confusion in the jurors’ minds. A man of strong sexual appetities, more shameless, importunate and headstrong in pursuit of their satisfaction than society regarded as acceptable, was hubristēs, and the man of opposite character, inclined to stop and think before acting in furtherance of his own short-term interests or appetites, was sōphrōn, an invariably complimentary word which can be translated, according to context, as ‘sensible’, ‘careful’, ‘disciplined’, ‘law-abiding’, ‘moral’, ‘chaste’, ‘frugal’, etc.16 This was general and popular usage; but when the subject of the verb hubrizein is an adult male and the object a woman or boy, hubris implies, unless the context gives a clear indication to the contrary, that the offence is the commission of sexual or homosexual assault. Such assault is the subject of the law cited in Aiskhines i 15. It appears that the rape of a woman, in so far as it could be regarded as proceeding from an uncontrollable and unpremeditated access of sexual excitement, did not necessarily incur a charge of hubris.17 Rape of a fully-grown youth by the simple exercise of superior strength is hardly a practical proposition, and the disparity of strength even between a man and a boy may not have been as great in Greek society as the disparity between man and woman which social convention assumed and helped to ensure; it would certainly not be assumed that the boy’s resistance would be weakened by sexual arousal.18 It may therefore be the case that unwilling homosexual submission was held to be the product of dishonest enticement, threats, blackmail, the collaboration of accomplices, or some other means which indicated premeditation, precluded the excuse of irresistible excitement, and automatically put the aggressor in danger of indictment for hubris.