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One of the most ingenious arguments in all of Attic oratory is to be found in the speech Lysias wrote for Euphiletus to deliver at his trial for the murder of Eratosthenes (Lys. 1.30–5). In his speech Euphiletus first describes to the court how his wife was seduced by Eratosthenes, then recounts how he discovered the affair, caught the adulterer in the act, and, despite an offer to pay compensation, slew him. Euphiletus defends his action by citing the law of the Areopagus that whoever kills an adulterer caught in flagranti with his wife cannot be convicted of murder. Euphiletus further points out that the same exemption applies to the man who catches someone seducing his pallakē. If the lawgiver regarded the seduction of a pallakē as so serious that it merited the death penalty, Euphiletus argues, he must have regarded the seduction of a wife as even more reprehensible, deserving a penalty worse than death.
1 It is uncertain what law Euphiletus cites in this passage. It may be the dikē blabēs (Dem. 21.43) or the dikē biaion (Harp. s.v. βια⋯ων).
2 E.g. Harrison A. R. W., The Law of Athens i (Oxford, 1968), p. 34 (‘we can accept the broad point that paradoxically seduction was more severely dealt with than rape …’); Pomeroy S., Goddesses, Whores, Wives, and Slaves: Women in Classical Antiquity (New York, 1975), pp. 86–7 (‘Seduction was considered a more heinous crime than rape’); MacDowell D. M., The Law in Classical Athens (London, 1978), p. 124; Cole S. G., ‘Greek Sanctions against Sexual Assault’, CP 79 (1984), 97–113, p. 103 (‘…it was believed that moicheia could be punished more severely than sexual assault’); Salviat F. and Vatin C., ‘La repression des violences sexuelles dans la convention entre Delphes et Pellana, le droit d'Athènes et les lois de Platon’, in Inscriptions de Grèce centrale (Paris, 1971), 63–75, p. 75 (‘la loi attique du IVe siècle était plus dure contre la μοιχε⋯α que contre le viol’); Carey C., Lysias: Selected Speeches (Cambridge, 1989), p. 80. Several of these authors detect flaws in Euphiletus' argument, but none questions his overall conclusion. Cf. Lipsius J. H., Das attische Recht und Rechtsverfahren (Leipzig, 1905–1915; repr. Darmstadt, 1966), pp. 432–3. Beauchet L., Histoire du droit privé de la république athénienne i (Paris, 1897), p. 239, and Cohen D., ‘The Athenian Law of Adultery’, RIDA 3 31 (1984), 147–65, p. 153, note Euphiletus' conclusion without explicitly endorsing or rejecting it. Bateman J. J., ‘Lysias and the Law’, TAPA 89 (1958), 276–85, p. 278 observes ‘Lysias' argument ignores the existence of various legal courses and penalties that could be taken against an adulterer, and also the fact that a rapist could be punished by death’. However, Bateman does not analyse the argument in detail and his observation has been ignored in recent scholarship. Plutarch, Solon 23, states that the law of Athens treated seduction with greater severity than rape, but his view may be derived from Lysias' speech. Whatever his source, his view is vulnerable to the same objections that can be brought against Euphiletus' argument. Note, however, that Plutarch found this state of affairs paradoxical.
3 Euphiletus' case was probably tried by the court at the Delphinium (Dem. 23.74; Ath. Pol. 57.3). For a discussion of the identity of the ephetai who sat in this court, see Rhodes P. J., A Commentary on the Aristotelian Athenaion Politeia (Oxford, 1981), pp. 646–8.
4 For a general treatment of the problems involved in using the Attic orators as sources for Athenian law, see Wolff H. J., ‘Methodische Grundfragen der rechtgeschichtlichen Verwendung attischen Gerichtsreden’, Opuscula Diversa (Amsterdam, 1974), pp. 27–39. One should note that Euphiletus' case rests on the statute about lawful homicide. The strained interpretation of the law and the misrepresentation of the penalties for rape in 30–5 serve only to blacken Eratosthenes' deed, not to establish Euphiletus' innocence.
5 For the categories of murder in Athenian law, see Gagarin M., Drakon and Early Athenian Homicide Law (New Haven, 1981), pp. 3–4. I have borrowed the term ‘lawful homicide’ from Gagarin.
6 Well argued by Cohen, ‘Law of Adultery’, pp. 149–50 with references to earlier literature.
7 Harrison, Law of Athens, i. 34.
8 Cohen, ‘Law of Adultery’, pp. 151–2. Unlike Euphiletus, whose argument is dictated by the rhetorical strategy of his speech, Demosthenes had no reason to distort the provisions of the law about lawful homicide since the question of rape as opposed to seduction was not relevant to his case against Aristocrates. Ath. Pol. 57.3 is not evidence that the law applied only to those who killed moichoi: see Cohen, ‘Law of Adultery’, p. 152 n. 13.
9 Apollod. 3.14.2 (βιαζ⋯μενος); Paus. 1.21.4 (αἰσχ⋯νοντα) Cf. Hellanicus, FGrHist 323a F 22and Dinarchus 1.86.
10 Cf. Cole, ‘Greek Sanctions’, pp. 100–1.
11 Cole, ‘Greek Sanctions’, p. 103.
12 Cole's claim that the law about the Areopagus ‘came to be thought of as a law on moicheia’ conceals a fundamental misconception about Athenian law. In the absence of jurisprudence and a law of precedent, there could be no development of statutory interpretation of the sort she appears to suggest. All the Athenian courts did was to judge; they did not ‘make law’ by their decisions. In the Athenian legal system there was nothing similar to the ius honorarium of Roman law.
13 Dem. 23 was delivered in 352/51 (D. H. Amm. 1.4). If the work of Lysias himself, Euphiletus' speech must have been composed several years before that. For a convenient summary of what is known about Lysias' life, see Carey, Lysias, pp. 1–3. We might also point out that if, as Cole plausibly maintains, the myth of Ares' trial illustrates the provisions of the statute about lawful homicide, then the broader interpretation of the statute was current in the late fifth century when Hellanicus recounted it and also late in the fourth century when Dinarchus alluded to it.
14 For rape as an act of hybris, see Eur. Hipp. 1073; Hdt. 6.137; Plat. Leg. 874c; Aeschin. 1.15–17 (the law about hybris cited in the context of a discussion of sexual offences). Cf. Fisher N. R. E., ‘Hybris and Dishonour’, G&R 23 (1976), p. 193 n. 44. Dover K. J., Greek Homosexuality (Cambridge, MA, 1978), p. 36, claims that the rapist could not necessarily be prosecuted for hybris, but his argument is rightly questioned by Cole, ‘Greek Sanctions’, p. 99 n. 14.
15 On this aspect of hybris, see Fisher, ‘Hybris and Dishonour’, G&R 26 (1979), 32–47.
16 αἰσχ⋯νειν referring to an act of rape: Lys. 1.32; Paus. 1.21.4. ⋯τιμ⋯ζειν referring to an act of rape: Eur.Hipp. 885–6.
17 One cannot argue that although rape was called hybris in ordinary language, the crime may have fallen outside the legal definition of the term. The Athenians never formulated such technical juristic definitions: see Cohen D., Theft in Athenian Law (Munich, 1983), pp. 5–7. For a discussion of the nature of the offence subject to the graphē hybreōs, see Gagarin M., “The Athenian Law against Hybris’, in Bowersock G. W. et al. (ed.), Arktouros (Berlin and New York, 1979), 229–36. One should note that rape certainly fits the definition of hybris provided by Aristotle in his Rhetoric, a work written in part for those composing speeches to be delivered in court.
18 Graphē hybreōs as an agōn timētos: Dem. 21.47. On the agōn timētos, see Harrison, Law of Athens ii (Oxford, 1971), pp. 80–2. Death as a possible penalty for hybris: Lys. fr. 44 (Thalheim); Din. Dem. 23.
19 Harrison, Law of Athens i. 35, recognizes that rape could be prosecuted by means of a graphē hybreōs, but claims that the prosecutor in such a case could not demand the death penalty. He cites no evidence for his view which apparently rests on nothing more than an inference drawn from Euphiletus' assertion that seduction was punished more severely than rape. Cole, ‘Greek Sanctions’, p. 99, is unaware of the possible penalties for hybris and consequently does not see their implication for Eupiletus' argument.
20 Harrison, Law of Athens i. 34—5. Harrison nevertheless thinks that the penalty for conviction on the graphē moicheias was death.
21 Cole, ‘Greek Sanctions’, p. 104.
22 For concern about avoiding pollution in the courts, see Antiphon 5.11.
23 Hdt. 8.105–6. This idea was suggested to me independently by Professor R. Billows and Professor W. Greenwalt. For a discussion of other punishments inflicted on the adulterer, see Cohen D., ‘A Note on Aristophanes and the Punishment of Adultery in Athenian Law’, ZSS 102 (1984), pp. 385–7.
24 I cite from Willetts R. F., The Law Code of Gortyn (Kadmos Suppl. 1; Berlin, 1967). However, I follow Finley M. I., Economy and Society in Ancient Greece (New York, 1982), pp. 135–7, in seeing no distinction between the terms ╒οικε⋯ς and δο⋯λος and translate both as ‘slave’.
25 For a discussion of the various attempts to reconcile Plutarch's information with that found in Lys. 1.30–5, see Cole, ‘Greek Sanctions’, pp. 102–3.
26 Cohen, ‘Law of Adultery’, pp. 156–7; Hansen M. H., Apagoge, Endeixis, and Ephegesis against Kakourgoi, Atimoi, and Pheugontes (Odense, 1976), pp. 44–5. Hansen's views about apagōgē have been criticized by Gagarin M., ‘The Prosecution of Homicide in Athens’, GRBS 20 (1979), 317–22. Hansen responded in ‘The Prosecution of Homicide: A Reply’, GRBS 22 (1981), 21–30. Cohen's article exhibits no awareness of Gagarin's criticisms nor of Hansen's reply. Th e view that a moichos was a kakourgos an d wa s thus subject toapagōgē was earlier put forward by Paoli, ‘Il reato di adulterio in diritto attico’, SDHI 16 (1950), 123–70, p. 152, and rejected by Harrison, Law of Athens i. 35 n. 1.
27 Cohen's attempt in ‘Law o f Adultery’, pp. 156–62, esp. p. 157, to detect an allusion to the apagōgē procedure in Lys. 1.26–9 must be rejected. Cohen notes the use of the verbs ⋯μπισβητεῖν and ⋯μολογεῖν in this passage and at Ath. Pol. 52.1, but this proves nothing. In the former passage the criminal Eratosthenes admits his offence to Euphiletus, a private citizen, whereas in the latter the criminal confesses to a board of magistrates. Eratosthenes' admission of guilt at Lys. 1.26–9 is a preliminary step in his attempt to convince Euphiletus to accept his offer of compensation. For the use of the verb ⋯μολογεῖν in a similar situation, see Ar. V. 1417–25. Cohen's reconstruction of the law of adultery is likewise fanciful.
28 Hansen, Apagoge, Endeixis, and Ephegesis, pp. 48–52, attempted to formulate a new definition of the phrase ⋯π' αὐτοπώρῳ, but this has been refuted by Cohen, Theft, pp. 52–7.
29 Antipho n 5.9; Ath. Pol. 52.1; Lys. 10.7–10; Dem. 24.113; Dem. 54.24; Isoc. 15.90.
30 Hansen, ‘Prosecution of Homicide’, pp. 22–3. The following discussion shows that Hansen's claim ‘It is apparent that Aeschin. 1.90–1 and Arist. Ath. Pol. 52.1 are interdependent sources’ is implausible.
31 Gagarin, ‘Prosecution of Homicide’, p. 322 n. 60.
32 While the noun κακο⋯ρλοι could have a general meaning (‘wrongdoers’) as well as a narrower one (those subject to apagōgē to the Eleven), there is no evidence to show that the participle κακουργο⋯ντες ever had such a restricted meaning.
33 An earlier version of this article was presented to the NEH Seminar on the Family in Ancient Greece held at the Graduate Center of the City University of New York in the summer of 1989. I would like to thank Professor S. Pomeroy, who led the seminar, for inviting me to speak, and all the members of the seminar for a lively discussion. Gratitude is also due to Dr S. C. Todd, whose comments on an earlier draft removed various errors and suggested many good points, several of which I have incorporated. He should not be held responsible for any gaffes, blunders, or howlers which remain.
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