¹ It is uncertain what law Euphiletus cites in this passage. It may be the dikē blabēs (Dem. 21.43) or the dikē biaion (Harp. s.v. βια⋯ων).

² E.g. Harrison, A. R. W., The Law of Athens i (Oxford, 1968), p. 34Google Scholar (‘we can accept the broad point that paradoxically seduction was more severely dealt with than rape …’); Pomeroy, S., Goddesses, Whores, Wives, and Slaves: Women in Classical Antiquity (New York, 1975), pp. 86–7Google Scholar (‘Seduction was considered a more heinous crime than rape’); MacDowell, D. M., The Law in Classical Athens (London, 1978), p. 124Google Scholar; Cole, S. G., ‘Greek Sanctions against Sexual Assault’, CP 79 (1984), 97–113, p. 103Google Scholar (‘…it was believed that moicheia could be punished more severely than sexual assault’); Salviat, F. and Vatin, C., ‘La repression des violences sexuelles dans la convention entre Delphes et Pellana, le droit d'Athènes et les lois de Platon’, in Inscriptions de Grèce centrale (Paris, 1971), 63–75, p. 75Google Scholar (‘la loi attique du IV^e siècle était plus dure contre la μοιχε⋯α que contre le viol’); Carey, C., Lysias: Selected Speeches (Cambridge, 1989), p. 80Google Scholar. Several of these authors detect flaws in Euphiletus' argument, but none questions his overall conclusion. Cf. Lipsius, J. H., Das attische Recht und Rechtsverfahren (Leipzig, 1905–1915Google Scholar; repr. Darmstadt, 1966), pp. 432–3. Beauchet, L., Histoire du droit privé de la république athénienne i (Paris, 1897), p. 239Google Scholar, and Cohen, D., ‘The Athenian Law of Adultery’, RIDA ³ 31 (1984), 147–65, p. 153Google Scholar, note Euphiletus' conclusion without explicitly endorsing or rejecting it. Bateman, J. J., ‘Lysias and the Law’, TAPA 89 (1958), 276–85, p. 278Google Scholar observes ‘Lysias' argument ignores the existence of various legal courses and penalties that could be taken against an adulterer, and also the fact that a rapist could be punished by death’. However, Bateman does not analyse the argument in detail and his observation has been ignored in recent scholarship. Plutarch, , Solon 23Google Scholar, states that the law of Athens treated seduction with greater severity than rape, but his view may be derived from Lysias' speech. Whatever his source, his view is vulnerable to the same objections that can be brought against Euphiletus' argument. Note, however, that Plutarch found this state of affairs paradoxical.

³ Euphiletus' case was probably tried by the court at the Delphinium (Dem. 23.74; Ath. Pol. 57.3). For a discussion of the identity of the ephetai who sat in this court, see Rhodes, P. J., A Commentary on the Aristotelian Athenaion Politeia (Oxford, 1981), pp. 646–8Google Scholar.

⁴ For a general treatment of the problems involved in using the Attic orators as sources for Athenian law, see Wolff, H. J., ‘Methodische Grundfragen der rechtgeschichtlichen Verwendung attischen Gerichtsreden’, Opuscula Diversa (Amsterdam, 1974), pp. 27–39Google Scholar. One should note that Euphiletus' case rests on the statute about lawful homicide. The strained interpretation of the law and the misrepresentation of the penalties for rape in 30–5 serve only to blacken Eratosthenes' deed, not to establish Euphiletus' innocence.

⁵ For the categories of murder in Athenian law, see Gagarin, M., Drakon and Early Athenian Homicide Law (New Haven, 1981), pp. 3–4Google Scholar. I have borrowed the term ‘lawful homicide’ from Gagarin.

⁶ Well argued by Cohen, , ‘Law of Adultery’, pp. 149–50 with references to earlier literatureGoogle Scholar.

⁷ Harrison, , Law of Athens, i. 34Google Scholar.

⁸ Cohen, , ‘Law of Adultery’, pp. 151–2Google Scholar. Unlike Euphiletus, whose argument is dictated by the rhetorical strategy of his speech, Demosthenes had no reason to distort the provisions of the law about lawful homicide since the question of rape as opposed to seduction was not relevant to his case against Aristocrates, . Ath. Pol. 57.3Google Scholar is not evidence that the law applied only to those who killed moichoi: see Cohen, , ‘Law of Adultery’, p. 152 n. 13Google Scholar.

⁹ Apollod. 3.14.2 (βιαζ⋯μενος); Paus. 1.21.4 (αἰσχ⋯νοντα) Cf. Hellanicus, , FGrHist 323a F 22Google Scholarand Dinarchus 1.86.

¹⁰ Cf. Cole, , ‘Greek Sanctions’, pp. 100–1Google Scholar.

¹¹ Cole, , ‘Greek Sanctions’, p. 103Google Scholar.

¹² Cole's claim that the law about the Areopagus ‘came to be thought of as a law on moicheia’ conceals a fundamental misconception about Athenian law. In the absence of jurisprudence and a law of precedent, there could be no development of statutory interpretation of the sort she appears to suggest. All the Athenian courts did was to judge; they did not ‘make law’ by their decisions. In the Athenian legal system there was nothing similar to the ius honorarium of Roman law.

¹³ Dem. 23 was delivered in 352/51 (D. H., Amm. 1.4Google Scholar). If the work of Lysias himself, Euphiletus' speech must have been composed several years before that. For a convenient summary of what is known about Lysias' life, see Carey, , Lysias, pp. 1–3Google Scholar. We might also point out that if, as Cole plausibly maintains, the myth of Ares' trial illustrates the provisions of the statute about lawful homicide, then the broader interpretation of the statute was current in the late fifth century when Hellanicus recounted it and also late in the fourth century when Dinarchus alluded to it.

¹⁴ For rape as an act of hybris, see Eur, . Hipp. 1073Google Scholar; Hdt. 6.137; Plat, . Leg. 874cGoogle Scholar; Aeschin. 1.15–17 (the law about hybris cited in the context of a discussion of sexual offences). Cf. Fisher, N. R. E., ‘Hybris and Dishonour’, G&R 23 (1976), p. 193 n. 44Google Scholar. Dover, K. J., Greek Homosexuality (Cambridge, MA, 1978), p. 36Google Scholar, claims that the rapist could not necessarily be prosecuted for hybris, but his argument is rightly questioned by Cole, , ‘Greek Sanctions’, p. 99 n. 14Google Scholar.

¹⁵ On this aspect of hybris, see Fisher, , ‘Hybris and Dishonour’, G&R 26 (1979), 32–47Google Scholar.

¹⁶ αἰσχ⋯νειν referring to an act of rape: Lys. 1.32; Paus. 1.21.4. ⋯τιμ⋯ζειν referring to an act of rape: Eur, .Hipp. 885–6Google Scholar.

¹⁷ One cannot argue that although rape was called hybris in ordinary language, the crime may have fallen outside the legal definition of the term. The Athenians never formulated such technical juristic definitions: see Cohen, D., Theft in Athenian Law (Munich, 1983), pp. 5–7Google Scholar. For a discussion of the nature of the offence subject to the graphē hybreōs, see Gagarin, M., “The Athenian Law against Hybris’, in Bowersock, G. W. et al. (ed.), Arktouros (Berlin and New York, 1979), 229–36Google Scholar. One should note that rape certainly fits the definition of hybris provided by Aristotle in his Rhetoric, a work written in part for those composing speeches to be delivered in court.

¹⁸ Graphē hybreōs as an agōn timētos: Dem. 21.47. On the agōn timētos, see Harrison, , Law of Athens ii (Oxford, 1971), pp. 80–2Google Scholar. Death as a possible penalty for hybris: Lys. fr. 44 (Thalheim); Din, . Dem. 23Google Scholar.

¹⁹ Harrison, , Law of Athens i. 35Google Scholar, recognizes that rape could be prosecuted by means of a graphē hybreōs, but claims that the prosecutor in such a case could not demand the death penalty. He cites no evidence for his view which apparently rests on nothing more than an inference drawn from Euphiletus' assertion that seduction was punished more severely than rape. Cole, , ‘Greek Sanctions’, p. 99Google Scholar, is unaware of the possible penalties for hybris and consequently does not see their implication for Eupiletus' argument.

²⁰ Harrison, , Law of Athens i. 34—5Google Scholar. Harrison nevertheless thinks that the penalty for conviction on the graphē moicheias was death.

²¹ Cole, , ‘Greek Sanctions’, p. 104Google Scholar.

²² For concern about avoiding pollution in the courts, see Antiphon 5.11.

²³ Hdt. 8.105–6. This idea was suggested to me independently by Professor R. Billows and Professor W. Greenwalt. For a discussion of other punishments inflicted on the adulterer, see Cohen, D., ‘A Note on Aristophanes and the Punishment of Adultery in Athenian Law’, ZSS 102 (1984), pp. 385–7Google Scholar.

²⁴ I cite from Willetts, R. F., The Law Code of Gortyn (Kadmos Suppl. 1; Berlin, 1967)CrossRefGoogle Scholar. However, I follow Finley, M. I., Economy and Society in Ancient Greece (New York, 1982), pp. 135–7Google Scholar, in seeing no distinction between the terms ╒οικε⋯ς and δο⋯λος and translate both as ‘slave’.

²⁵ For a discussion of the various attempts to reconcile Plutarch's information with that found in Lys. 1.30–5, see Cole, , ‘Greek Sanctions’, pp. 102–3Google Scholar.

²⁶ Cohen, , ‘Law of Adultery’, pp. 156–7Google Scholar; Hansen, M. H., Apagoge, Endeixis, and Ephegesis against Kakourgoi, Atimoi, and Pheugontes (Odense, 1976), pp. 44–5Google Scholar. Hansen's views about apagōgē have been criticized by Gagarin, M., ‘The Prosecution of Homicide in Athens’, GRBS 20 (1979), 317–22Google Scholar. Hansen, responded in ‘The Prosecution of Homicide: A Reply’, GRBS 22 (1981), 21–30Google Scholar. Cohen's article exhibits no awareness of Gagarin's criticisms nor of Hansen's reply. Th e view that a moichos was a kakourgos an d wa s thus subject toapagōgē was earlier put forward by Paoli, , ‘Il reato di adulterio in diritto attico’, SDHI 16 (1950), 123–70, p. 152Google Scholar, and rejected by Harrison, , Law of Athens i. 35 n. 1Google Scholar.

²⁷ Cohen's, attempt in ‘Law o f Adultery’, pp. 156–62, esp. p. 157Google Scholar, to detect an allusion to the apagōgē procedure in Lys. 1.26–9 must be rejected. Cohen notes the use of the verbs ⋯μπισβητεῖν and ⋯μολογεῖν in this passage and at Ath. Pol. 52.1, but this proves nothing. In the former passage the criminal Eratosthenes admits his offence to Euphiletus, a private citizen, whereas in the latter the criminal confesses to a board of magistrates. Eratosthenes' admission of guilt at Lys. 1.26–9 is a preliminary step in his attempt to convince Euphiletus to accept his offer of compensation. For the use of the verb ⋯μολογεῖν in a similar situation, see Ar. V. 1417–25. Cohen's reconstruction of the law of adultery is likewise fanciful.

²⁸ Hansen, , Apagoge, Endeixis, and Ephegesis, pp. 48–52Google Scholar, attempted to formulate a new definition of the phrase ⋯π' αὐτοπώρῳ, but this has been refuted by Cohen, , Theft, pp. 52–7Google Scholar.

²⁹ Antipho n 5.9; Ath. Pol. 52.1; Lys. 10.7–10; Dem. 24.113; Dem. 54.24; Isoc. 15.90.

³⁰ Hansen, , ‘Prosecution of Homicide’, pp. 22–3Google Scholar. The following discussion shows that Hansen's claim ‘It is apparent that Aeschin. 1.90–1 and Arist. Ath. Pol. 52.1 are interdependent sources’ is implausible.

³¹ Gagarin, , ‘Prosecution of Homicide’, p. 322 n. 60Google Scholar.

³² While the noun κακο⋯ρλοι could have a general meaning (‘wrongdoers’) as well as a narrower one (those subject to apagōgē to the Eleven), there is no evidence to show that the participle κακουργο⋯ντες ever had such a restricted meaning.

³³ An earlier version of this article was presented to the NEH Seminar on the Family in Ancient Greece held at the Graduate Center of the City University of New York in the summer of 1989. I would like to thank Professor S. Pomeroy, who led the seminar, for inviting me to speak, and all the members of the seminar for a lively discussion. Gratitude is also due to Dr S. C. Todd, whose comments on an earlier draft removed various errors and suggested many good points, several of which I have incorporated. He should not be held responsible for any gaffes, blunders, or howlers which remain.