In the mid-eighth century in the Ekloge, the Isaurian law code, we read a law against sex between males: "The aselgeis, both the one doing it and the one receiving it, let them pay the penalty by the sword. But if the one receiving is discovered to be less than twelve years old, he should be excused, as his age shows that he did not understand this thing he had undergone" (17.38: Οἱ ἀσελγεῖς, ὅ τε ποιῶν καὶ ὁ ὑπομένων, ξίφει τιμωρείσθωσαν· εἰ δὲ ὁ ὑπομένων ἥττων τῶν δώδεκα ἐτῶν εὑρεθῇ, συγχωρείσθω, ὡς τῆς ἡλικίας δηλούσης μὴ εἰδέναι αὐτόν, τί ὑπέμεινεν). Understood here is that the aselgeis are males who have sex with one another. While there is some consideration given to the very young, and while it is not as severe in its rhetoric as enactments in the earlier Justinianic and Theodosian codifications, it is all the same a cruel law that mandates execution (in addition, of course, to promising persecution and the crushing of dissidence). It is therefore interesting that we have no record of this law ever being used (Laiou 1992, 68; Messis 2006, 779n170; Pitsakis 2008, 8) and it appears too that is was merely copied into successive law codes with but insubstantial changes in phraseology: Eklogadion 17.6 (early ninth century [Simon and Troianos 1977, 71]), Epanagoge 40.66 (886 CE [Zepos and Zepos 1931, 365]), and Prokheiros 39.73 (907 CE [Zepos and Zepos 1931, 225-226]).
In this paper I will discuss this evidence, especially the lack of enforcement, and argue that we should follow Laiou when she wrote the following in 1992: "Il est possible que, en dépit de tout son zèle normatif pour prohiber les actes homosexuels, la société byzantine les ait en fait tolérés tant qu’ils ne faisaient pas scandale" (78). I believe that we have a situation, at least in the middle centuries of the empire, of broad toleration of the kind that Laiou proposes and evidence of dissent from asserted standards for sexual conduct. Civil law apparently said one thing in an increasingly faint voice, while life went on its merry way. Among the benefits of taking this view is that evidence that shows homoeroticism (e.g., narratives of the rise of Basil I, or epistolography) in general becomes much more understandable. The interest the Byzantines showed in preserving ancient literature that has frankly sexual and homoerotic features, e.g. Aristophanes and, especially, the notorious Book 12 of the Greek Anthology, likewise becomes much easier to understand.