by K J Dover
The two categories of conduct which the law explicitly named are in fact two distinct species of the genus ‘sale of one’s own body’. Peporneumenos is the perfective participle of the verb porneuesthai, ‘behave as a pornē or pornos’. Pornē, cognate with pernanai, ‘sell’, was the normal Greek word (first attested in the seventh century B.C. [Arkhilokhos fr. 302]) for a woman who takes money (if a slave, on her owner’s behalf) in return for the sexual use of her body, i.e. ‘prostitute’. We find also a masculine form pornos applied to men or boys who submit to homosexual acts in return for money (Xen. Mem. i 6.13, Ar. Wealth 153-9; first in an archaic graffito on Thera, IG xii. 3. 536). Hētairēkōs is the perfective participle (infinitive hētairēkenai) of the verb hetairein, cognate with hetairos, the normal word for ‘companion’, ‘comrade’, ‘partner’. Hetairā, the feminine form of hetairos, often2 denoted a woman who was maintained by a man, at a level acceptable to her, for the purpose of a sexual relationship without formal process of marriage, implicit promise of permanence or intention of raising a family, but not without hope on the man’s part that she might love him; hence it is sometimes nearer to ‘mistress’ than to ‘prostitute’. In the classical period the verb hetairein and the abstract noun hetairēsis do not seem to have been used of a hetaira, but exclusively of a man or boy who played a homosexual role analogous to that of a hetaira.
Whether a woman was regarded as a common prostitute or as a hetaira depended to some extent on the number of different men with whom she had intercourse and on the duration of her relationship with each man. Plainly a woman in a brothel, dealing with a queue of customers every day, was a pornē, and equally plainly a woman who was kept in luxury by a wealthy man for a year or more, during which time she never (well, hardly ever) had intercourse with anyone else, was a hetaira, but the dividing line between the two categories could not be sharp; how, for instance, should one classify a woman who had intercourse with four different men in a week, hoped on each occasion to establish a lasting and exclusive relationship, and succeeded in doing so with the fourth man? Moreover, whether one applied the term pornē or the term ‘hetaira’ to a woman depended on the emotional attitude towards her which one wished to express or to engender in one’s hearers.3 Anaxilas fr. 21 draws a distinction in terms of loyalty and affection, but fr. 22, an indignant vilification of the greed and deceitfulness of women who sell themselves, begins and ends (lines 1, 31) by calling them hetairai but in the middle (line 22) calls them pornai. Perikles had children by Aspasia, who was certainly distinguished and accomplished, probably fastidious and probably also faithful to Perikles; but Eupolis fr. 98 represents one of these sons, Perikles the younger, as shamed by the appellation ‘the whore’s son’.
The law cited by Aiskhines, in saying ‘... or peporneumenos or hētairēkōs’, implies a distinction in respect of homosexual conduct analogous to the distinction between the pornē and the hetaira, and §§51f. make this plainer:
Now, if Timarkhos had remained with Misgolas and had not gone on to anyone else, his conduct would have been less improper (lit., ‘more metrios’), if there is anything proper in behaviour of the kind we are considering; and, for my part, I would have had no hesitation in bringing against him only the charge which the legislator names so bluntly, hētairēkenai; for anyone who acts in that way in relation to one man, but takes pay for his activity, is liable, in my opinion, to that charge alone. But if I remind you (sc. of the facts) and prove – passing over those gross (lit., ‘wild’) creatures, Kedonides and Autokleides and Thersandros, in whose houses he has found a welcome – that he has earned money by the use of his body not only in Misgolas’s keeping but in someone else’s, and then in another’s, and that he has gone from that to a new one, there is not much doubt by then that he is not simply hētairēkōs but – by Dionysos! I don’t see how I can go on beating about the bush all day – actually peporneumenos. Anyone who acts in this way indiscriminately, in relation to many men, for pay, is liable, in my opinion, to precisely that charge.
From now on, all parts of the verbs porneuesthai and hetairein will be translated ‘prostitute ... -self’, but the original word will be indicated in each instance by adding ‘(porn.)’ or ‘(het.)’.
The ‘facts’ of which Aiskhines ‘reminds’ the jury have in part been retailed in §§37-44. To give an impression of magnanimity, Aiskhines says (§39) that he will pass over in silence ‘all the offences which Timarkhos committed against his own body when he was a boy’ and begin with the period at which he was an adolescent youth (meirakion) and spent his days at a doctor’s surgery, ostensibly to learn medicine but in reality to pick up homosexual custom (§40). A certain Misgolas, a distinguished citizen but a man of ‘extraordinary enthusiasm for this activity’, took Timarkhos home to live with him, having made an advance payment (§41). A further series of allegations follows in §§53ff.; turned out by Misgolas, who could no longer afford him, Timarkhos went to live in turn with Antikles, Pittalakos and Hegesandros. The ‘wild men’ whom Aiskhines ‘passes over’ in §52 are not mentioned again, nor should we expect them to be; ‘I will say nothing about ...’ is a common orator’s way of making a damaging allegation while at the same time trying to secure the credit for not making it (this technique is used again in §§106, 107, 109, 170). Rules of evidence in Athenian courts were, by modern standards, very lax; Aiskhines speaks with great complacency of the fact that the defendant’s history is well known to many of the jurors (§44, ‘that I am telling the truth is known to all those who were acquainted with Misgolas and Timarkhos at that period’), and in §§92f. he urges the jury not to attend solely to the evidence produced in court, but to take into account all the rumours and gossip they have ever heard about Timarkhos (cf. §§48, 73, 80-5, 89f., 121f., 127, 130). There was, of course, a strong tactical reason for taking this line: the extreme difficulty, in the absence of any written contract, of proving beyond doubt that Timarkhos received money from the men with whom he lived.
Let us at this point pause to list certain questions prompted by what has been said so far:
(a) The law cited by Aiskhines referred to the sale, not the gift, of one’s body. It said nothing of ‘unnatural practices’, ‘gross indecency’, and the like, and thus it appears not to have imposed any penalty on those who submitted to homosexual acts for love or for fun. Was that in fact the law’s intention? Were there other laws which penalised non-commercial homosexuality?
(b) The law penalised the seller; did it not penalise the buyer?
(c) Aiskhines evinces hesitation and embarrassment at having to utter the word peporneumenos in court, and he speaks (§51) of the law’s ‘bluntness’ in using even the word hētairēkōs. What was the extent of Athenian inhibition in speaking of homosexual conduct, and what were the reasons for it?
2. Penalties
It was possible for any Athenian to vilify and ridicule any other Athenian for any conduct whatsoever, real or alleged, which could be represented as disadvantageous in the community as a whole, and to found his attack on moral principles generally professed, however imperfectly observed, by the citizen-body. Evidence of an unusual degree of enthusiasm for heterosexual or homosexual intercourse afforded manifold grounds for moral censure: the enthusiast was more likely than other people to commit crimes such as rape and adultery, and more likely to be tempted to acquire money dishonestly as a means to purchased sexual enjoyment; more likely to consume his inheritance on hetairai and prostitutes, instead of preserving it as taxable capital or devoting it to purposes welcome and useful to the community; more likely also to choose pleasure or comfort in circumstances which called for the soldierly virtues of self-sacrifice, endurance and resistance to pain.4 Also, anyone who could be regarded as abetting another’s delinquency, and thereby as bringing about a hypothetical disadvantage to the community (this could be said, for example, of the person who had caused another to prostitute himself and had thus deprived the community of that other person’s counsel in the future), was v
ulnerable to attack. It is hard to think of any act upon which a sufficiently determined and ingenious adversary, adept at moralising, cannot put a sinister interpretation; but this is quite a different matter from the precise question whether the client of a male prostitute incurred a penalty prescribed by law.
It proves curiously difficult to discover from Aiskhines’ speech the answer to this question, and we have to remind ourselves that if a speaker in court thought it helpful to his case to confuse the issue while professing to clarify it, he would do his best to confuse it. The same is true of a modern advocate, and it is the business of the judge to dispel confusion. In an Athenian court, if the case was of an unusual kind and rested upon laws with which the jurors were unfamiliar (considerations which apply [§132; cf. §17] to the case of Timarkhos), a speaker had a better chance at least to create in the jury a frame of mind favourable to him, even if he could not wholly succeed in misleading them on questions of legal fact.
It is to be presumed that a speaker could not expect to get away with plain misrepresentation of the law’s actual words, especially when – as was normal practice – the relevant law itself had been read out by the clerk of the court at the moment when the speaker needed it for the purposes of his argument. Hence statements of the form ‘the law says ...’ have a claim to be considered true unless there is good evidence to the contrary. If the words quoted from the law are archaic, elliptical or otherwise hard to interpret, and are explained by the speaker, the probability that his statement of the text is true approximates to certainty, but the correctness of his explanation is a different matter; it would be a mistake to treat such an explanation, whether offered by prosecutor or by defendant, as the Greek equivalent of a jurist’s considered opinion. It is also noticeable that on occasion the clerk of the court is instructed by the speaker to begin reading the law from a certain point in the text or to stop before reading the whole text, for the speaker may wish to mislead the jury by expounding part of the law in a way which would be absolutely precluded if the preceding or following part were read out.5 Moreover, in summarising a law the speaker may combine verbatim quotation with comment and interpretation of his own. §19 provides a good example:6
‘If any Athenian,’ he (sc. the legislator) says, ‘has prostituted (het.) himself, let it not be open to him to become one of the nine archons’ – because, I imagine, that office is one in which a crown is worn – ‘or to carry out a priestly function’ – as not even being clean in body – ‘or act as an advocate,’ he says, ‘in the state’s interest, or hold any office whatsoever at any time, in Attica or abroad, allotted or elected, or serve as a herald, or go on an embassy’ – or bring to trial men who have been on an embassy, or take money for threatening false accusations – ‘or deliver an opinion on any occasion in council or assembly’, however accomplished an orator he may be.
Classical Greek script did not possess equivalents of the inverted commas, dashes and brackets which are required in translating such a passage into English, so that any reader (from 346 B.C. to the present day) who did not actually hear Aiskhines utter these words and had no access to people who had heard him was compelled to exercise his own judgment in separating quotation from comment. It is not hard to see that ‘because, I imagine ...’ is comment; ‘as not even being ...’ is a comment on ‘priestly function’ analogous to the preceding comment on ‘nine archons’, though without the first person singular which clarifies the distinction between text and comment, and recurs, in slightly different form, in §188. The repetition of ‘he says’ after ‘or act as an advocate’ is designed to renew, after those two comments, the impression that what we are hearing is essentially a quotation of the law. ‘Or bring to trial ...’ might pass, with a very inattentive or slow-witted hearer, as quotation, but in fact it is inserted because Timarkhos had embarked on a prosecution of the envoys; prosecuting envoys did not differ juridically from any other kind of prosecution, and the law affecting prostitution will naturally not have specified disqualification from just one out of the whole range of possible prosecutions. ‘Or take money ...’ implies that Timarkhos has been bribed to bring a false charge against Aiskhines; it cannot possibly be part of the law, for blackmail and corrupt practice – unlike the holding of administrative and religious offices – were not privileges left open by the law to those innocent of prostitution. Finally, ‘however accomplished ...’ is a qualification exceedingly improbable in an actual law (we have enough of the Athenian laws to justify statements about what is or is not legal style) but exactly in accord with a litigant’s usual allegation that his opponent attempts to conceal dishonesty of purpose under meretricious rhetoric (cf. Aiskhines’ sneers against Demosthenes’ technical expertise, §§94, 119, 125, 166, 170).7
Aiskhines seems to have composed on behalf (though certainly not at the behest) of Misgolas (§§45f.) and Hegesandros (§67) testimony which, he hoped, they would formally acknowledge as theirs by appearing in court when it was read out.8 In the case of the testimony composed for Misgolas, whose goodwill he is evidently anxious to retain, if possible (§41, ‘a fine man in every other respect, and in no way open to criticism, but possessed of an extraordinary enthusiasm for this activity [sc. homosexual relations]’),9 he claims not to have named the true relationship between Misgolas and Timarkhos, ‘nor anything else which makes a truthful witness liable to legal penalty, ‘ but only what is ‘without danger or disgrace for the witness’. How he managed this we do not know, since the document inserted in our text of the speech (§50), purporting to be the testimony of Misgolas, is betrayed as a later forgery by the erroneous patronymic and demotic given therein to Misgolas,10 but presumably, once Misgolas had deposed that Timarkhos had lived in his house for such-and-such a period, Aiskhines could then hope (with justification, as the outcome of the case showed) to ‘demonstrate’ the nature of the relationship by appeal to rumour and gossip and the fact (if it was a fact) that Timarkhos, when young and exceptionally good-looking, had a great deal of money to spend while living in Misgolas’s house (§§41f., 75f.). Aiskhines describes the testimony he has composed for Hegesandros as ‘a little plainer’ (§67) than that composed for Misgolas (presumably good relations with Hegesandros were not so important to Aiskhines politically); but again, the putative document (§68) is not reliable evidence for the actual wording.
Aiskhines’ reference to ‘penalty’ and ‘danger’ (cf. §98) is expanded in §72:
I do not suppose that you (sc. the jurors) are so forgetful as not to recall the laws which you heard read out a little while ago, in which it is laid down that anyone who has hired an Athenian for this practice, or anyone who has hired himself out, is liable to the greatest penalties, the same for both. What man, then, is in such a desperate plight that he would be willing to give plain testimony of a kind which involves his showing himself – if his testimony is true – to be liable to the severest (lit., ‘last’, ‘extreme’) penalties?
By ‘the greatest penalties’ (cf. §§20, 90) or ‘the severest penalties’ Aiskhines means execution, as is clear from an analogy drawn with the bribery of jurors (§87):
On that basis, it was absolutely necessary that the man who offered the bribe should give evidence that he did so, and the other man that he received it, when the penalty laid down by the law for both of them is death, as in the matter which concerns us now, if anyone hires an Athenian to use as he pleases, and again, if any Athenian voluntarily offers the shaming of his body for hire ... (§88)... Those put on trial (sc. for bribery)... were sentenced to death ...
That an offence other than treason or homicide should incur the death penalty is no matter for surprise, since the Athenians executed people for a wide range of offences, though in many cases it was open to the court to impose a ruinous fine instead. What is striking is that the laws which were read out and expounded in the earlier part of Aiskhines’ speech do not in fact support the statements which he makes in §72 and §87. It was not the case that the law prescribed the dea
th penalty both for a male prostitute and for his client. Its provisions were:
(a) If a man who has prostituted himself thereafter addresses the assembly, holds an administrative office, etc., then an indictment, entitled ‘indictment of hetairēsis’, may be brought against him, and if he is found guilty, he may be executed. The relevant passages are §§20, 32, 40, 73, 195.
(b) If the father or guardian of a boy has hired him out for homosexual use, both the father (or guardian) and the client are liable to punishment. See further §§13f.
(c) Acting as the procurer of a woman or boy of free status (i.e. not a slave) incurs the severest penalty (§§14, 184).
(d) Hubris committed against man, boy or woman, of free or slave status, also incurs severe penalties (§§15f.).
The nature of hubris will be discussed in Section 4 below; provisionally, we may interpret it as assault for the purpose of doing as one pleases.
The law cited under (c) has no bearing whatever on the case of Timarkhos, since Aiskhines does not assert that he procured anyone else or that he was the beneficiary of procurement. But mention of the fact that procurement could incur the death penalty serves rhetorically to establish an association of prostitution with punishment in the minds of the jury, and there may be an underlying implication (cf. p. 38 below on ‘hubris against oneself’) that Timarkhos was, as it were, his own procurer; so Ar. Clouds 979f. speaks of a flirtatious boy as ‘playing the pimp (proagōgeuōn) for himself with his eyes’.
The law cited under (b) again has no bearing on the case of Timarkhos, for it is not alleged that Timarkhos hired out a son or ward of his own, nor that he made homosexual use of anyone so hired. Here too mention of the law contributes to the association of homosexuality with punishment; since Aiskhines says more about this law than about the law against procuring, we may suspect that he has a stronger rhetorical point, and consideration of the details shows our suspicion to be justified. Indeed, Aiskhines makes use of the law in order to mislead the jury on an important question. When he states in §72 that the laws which have been read out to the jury prescribe ‘the greatest penalties’ for anyone who hires an Athenian for homosexual use, he is guilty of double falsehood. The laws which have been read out (§§12, 16, 21, 35) say no such thing; and the law which prescribed punishment for the client of a boy hired out by father or guardian was not read out, but only summarised by Aiskhines in his own words (§13). The fresh statement in §87 that ‘anyone who hires an Athenian to use as he pleases’ is liable to punishment again omits the essential specification of ‘an Athenian’ as a boy hired out by father or guardian.
