Legal Opinions on Prostitution
For the context of these selections from Justinian's the Corpus Iuris Civilis [The Code of Civil Law], see Paul Halsall's Medieval Sourcebook: Corpus Iuris Civilis: The Digest and Codex: Marriage Laws
41. Marcellus, Digest, Book XXVI.
It is understood that disgrace attaches to those women who live unchastely, and earn money by prostitution, even if they do not do so openly. (1) If a woman should live in concubinage [this was legal state of sexual domestic partnership without official "marriage" (connubium) or dowry] with someone besides her patron, I say that she does not possess the virtue of the mother of a family42. Modestinus, On the Rite of Marriage.
In unions of the sexes, it should always be considered not only what is legal, but also what is decent.(1) If the daughter, granddaughter, or great-granddaughter of a senator should marry a freedman, or a man who practices the profession of an actor, or whose father or mother did so, the marriage will be void.
43. Ulpianus, On the Lex Julia et Papia, Book I.
We hold that a woman openly practices prostitution, not only where she does so in a house of ill-fame, but also if she is accustomed to do this in taverns, or in other places where she manifests no regard for her modesty.(1) We understand the word "openly" to mean indiscriminately, that is to say, without choice, and not if she commits adultery or fornication, but where she sustains the role of a prostitute.
(2) Moreover, where a woman, having accepted money, has intercourse with only one or two persons, she is not considered to have openly prostituted herself.
(3) Octavenus [a minor Roman jurist], however, says very properly that where a woman publicly prostitutes herself without doing so for money, she should be classed as a harlot.
(4) The law brands with infamy [not just a bad reputation but a legal state which removed certain legal protections] not only a woman who practices prostitution, but also one who has formerly done so, even though she has ceased to act in this manner; for the disgrace is not removed even if the practice is subsequently discontinued.
(5) A woman is not to be excused who leads a vicious life under the pretext of poverty.
(6) The occupation of a pander is not less disgraceful than the practice of prostitution.
(7) We designate those women as procuresses who prostitute other women for money....
(9) Where one woman conducts a tavern, and keeps others in it who prostitute themselves, as many are accustomed to do under the pretext of a employing women for the service of the house; it must be said that they are included in the class of procuresses....
(12) Where a woman is caught in adultery, she is considered to have been convicted of a criminal offence. Hence if she is proved to have bee guilty of adultery, she will be branded with infamy, not only because she was caught flagrante delicto [ie in the act of committing an obvious wrong], but also because she was convicted of a criminal offence. If, however, she was not caught, but was, nevertheless, found guilty, she becomes infamous because she was convicted of a criminal of fence; and, indeed, if she was caught but was not convicted, she would still be infamous. I think that even if she should be acquitted after having bee caught, she will still remain infamous, because it is certain that she wa taken in adultery, and the law renders the act infamous and does not make this dependent upon the judicial decision.
(13) It is not mentioned here, as in the Lex Julia on adultery, by who or where the woman must be caught; hence she is considered infamous whether she was caught by her husband or by anyone else. She will also be infamous according to the terms of the law, even if she was not caught in the house of her husband or her father....
3. Marcianus, Institutes, Book XII.
The freedwoman of another can be kept in concubinage as well as a woman who is born free, and this is especially the case where she is of a low origin, or has lived by prostitution; otherwise if a man prefers to keep a woman of respectable character and who is free born in concubinage, it is evident that he can not be permitted to do so without openly stating the fact in the presence of witnesses; but it will be necessary for him either to marry her, or if he refuses, to subject her to disgrace.(1) Adultery is not committed by a party who lives with a concubine because concubinage obtains its name from the law, and does not involve a legal penalty; as Marcellus states in the Seventh Book of the Digest.
