Niek Janssen
Although there are no explicit provisions against male-to-female crossdressing in codified Roman law or jurisprudence, men dressing like women nevertheless occupied the legal imagination. The Digests (34.2.33), for instance, ponder whether the clothes worn by such men should legally be considered “men’s garments” or “women’s garments.” Declaimers, too, assigned their students cases involving crossdressing. The Minor Declamations (282) preserve a prompt for a declamation about a man who saves his sister from the clutches of a tyrant by putting on her clothes and slaying her captor. When a local magistrate erects a statue in honor of the tyrannicide—feminine dress and all—the magistrate is accused of defamation (iniuria). How can the magistrate defend his action?
This paper argues (1) that both crossdressers and those who represented others as crossdressers did in fact face legal jeopardy in Rome; and (2) that the most effective line of defense for such individuals was to present their non-conforming gender expression as a parody rather than a transgression of gender norms. To illustrate how the “parody defense” operates, I read Minor Declamation 282 together with Statius’ Achilleid, which also seeks to apologize for its crossdressing protagonist.
In the first part of the paper, I argue that despite the absence of formal laws against crossdressers, crossdressing nevertheless presented a legal risk. While breaching gendered sartorial conventions was not technically “illegal,” it nevertheless constituted a transgression against other systems of normativity that governed Roman thought: custom (mos), divine/natural law (fas), and especially propriety/decency (decorum). (Crossdressing in fact counted as the prime example of a failure of decorum; see e.g. Quint. 11.1.2-3.) These extralegal systems of normativity fed directly into Roman legal practice. When Seneca the Elder (Contr. 9.2.17) reports that a praetor holding court in women’s clothes could be accused of maiestas, this is not because there was a specific law against magistrates crossdressing, but because every “decent” Roman knew that wearing women’s clothes was “inappropriate” for men.
In the second part of the paper, I propose that the most effective defense for crossdressing was to present a “parodic reading” of one’s sartorial transgressions. Central to the Roman conception of parody is the idea that while parodic imitations are “indecorous” in one sense, the compensate for this by being highly decorous in some other area. In the parodic epic Achilleid, for instance, Achilles presents his youthful crossdressing on Scyros on the one hand as a “crime against fate” (indecores, Fatorum crimina, cultus, 2.45), but also as highly appropriate insofar as he did so on his mother’s orders, and it is fitting for children to obey their parents (2.17-19). In the same way, the magistrate of Minor Declamation 282 admits that his depiction of the tyrannicide is transgressive, but also insists that it is appropriate insofar as his unusual representation will ensure that future generations will remember him. Together, these roughly contemporaneous texts—both quite possibly written in response to Domitian’s so-called “moral reforms” (Suet. Dom. 8)—form a powerful example of how the studies of law and literature can illuminate one another.