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Reading and Contextualizing Aselgeia in Tenth-Century Byzantine Law

Mark Masterson

Victoria University of Wellington, New Zealand

In the Prokheiros Nomos, a Byzantine legal compilation from 907 CE written to aid judges in their work, we read a law that addresses male/male sexual behavior: “The aselgeis ones, both the one doing it and the one getting it, let them pay the penalty by the sword, unless the one having gotten it perhaps might be less than 12 years old. For in that instance his lack of age sets him free from that sort of punishment” (39.73; Zepos and Zepos 1931, 225-226). The first things that may attract our attention now are that the law is concerned with anal intercourse and that the penalty is death. This penalty should be regarded as rhetorical, as are many penalties in this code, especially as there is no record of this law ever being used (Laiou 1992, 68; Messis 2006, 779n170; Pitsakis 2008, 8). Indeed, the law, a veritable copy, is the latest version of a law that appeared nearly 200 years earlier (Masterson 2019, 62). Rather than center the penalty in this talk, I propose we consider anal pleasure, here designated by aselgeia, between males in the Byzantine imaginary. We proceed both by considering the content of the law and by contextualizing the law with sacred and secular writing that likely would have been familiar to someone reading this law in, say, the year 950.

The forgiveness given to the boy is interesting. Of course the law doesn’t wish to punish a boy who may have been manipulated. But we must also note that this was not rape; some manner of consent is envisaged in the law. An earlier version of the law (Ekloge 17:38, 741 CE) places this subtext more on the surface with these words: “...his age shows that he did not understand this thing he had undergone.” And this leads to further reflections on what is going on when two adult men are engage in anal intercourse. It is plausibly an affair of bodily pleasure. There is something attractive about aselgeia.

Contextualization of the law via the calling of males engaging in anal intercourse aselgeis intensifies the impression that anal intercourse was frequently understood as sensual activity. Aselgeia and related words appear in the Septuagint and the New Testament. In the Septuagint, aselgeia is connected with generalized acts of debauchery (Maccabees 2:26), and in the New Testament, it shows up as a particular sensual interest of the gentiles (Epistula Petri 1:4:3). In historiography, a biography of ninth-century emperor Basil I, the Vita Basilii, written in the mid 900s, draws a picture of aselgeia in the dissolute court of emperor Michael III (also ninth century): “the imperial treasuries were wantonly and profligately turned over to aselgeis and illegal Bacchic revels and wanton sexual acts” (21). It was fun to be unconstrained and drink, and aselgeia is part of this sensual scene. We read similar things about emperors Leo V (800s) and Alexander (900s) in Symeon the Logothete’s Chronicon (128.8 and 134.3), also written in the tenth century.

We should therefore approach Prokheiros Nomos 39.73 from this angle: while God apparently does not want aselgeia, and historiographers may wag fingers, male/male anal sex can be sensually attractive, and if given a holiday from strictures, some, even many, Byzantine men will be interested.

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Legalize It: Gender and Sexuality in Ancient Law

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