Zaleucus gouged out eyes as punishment for adultery

In the ancient world, public laws declared severe punishments for men who committed adultery.  Under the ancient Mesopotamian Code of Hammurabi, if a married woman had sex with a man other than her husband, that man would be executed through drowning.[1]  Under ancient Egyptian law, such a man would be flogged with one thousand blows with a rod.[2]  The book of Deuteronomy, a sacred text of Jewish law, declares that a man who commits adultery shall be killed.  The context suggests execution by stoning, while some Jewish legal authorities have interpreted the execution to be by strangulation.[3]

Law from the celebrated ancient Greek lawgiver Zaleucus reportedly imposed a significantly different punishment for men who committed adultery.  The earliest source for the story of Zaleucus’ punishment for adultery is the Roman Valerius Maximus, writing about 30 GC.  Valerius recounted:

Zaleucus protected the city of Locri with very salutary and useful laws.  His son was convicted on a charge of adultery and according to a law constituted by Zaleucus himself was due to lose both eyes.  The whole community wished to spare the young man the necessity of punishment in honour of his father.  For some time Zaleucus resisted, but in the end, overborne by the people’s entreaties, he first gouged out one of his own eyes, then one of his son’s, leaving the faculty of sight to them both.  Thus he rendered to the law a due measure of retribution, by admirable balance of equity dividing himself between compassionate father and just lawgiver.[4]

A text from no later than the second century BGC tells a similar story of Locrian law, but concerns theft rather than adultery:

If anyone is caught stealing, his eyes are gouged out. The son of Zaleucus was caught {stealing} and when the Locrians let him go, Zaleucus did not allow this, but he gouged out one of his own eyes and one of his son’s. [5]

These are sensational stories.[6]  For theft, a physical punishment more directly fitted to the crime would be cutting off hands.  For example, the Code of Hammurabi declared: “if a son strike his father, his hands shall be hewn off.”[7]  Gouging out a thief’s eye suggests a more abstract association with covetousness.  Valerius’ account recast the crime from theft to adultery, but retained the underlying idea of the eye motivating illegal desire.

Zaleucus law prevents Cupid's arrows to eyes

The story of Zaleucus gouging out eyes for adultery drew upon important physiological and poetic literature.  Cupid shooting love arrows was a well-established figure in Greek and Latin literature 2000 years ago.  For example, Ovid’s Metamorphoses tells of Cupid shooting an arrow of love that pieced Apollo’s heart.  Apollo, thus lovesick, exclaimed:

Sure are my arrows, but one surer still
Has struck me to the heart, my carefree heart.
The art of medicine I gave the world
And all men call me “healer”; I possess
The power of every herb.  Alas! that love
No herb can cure, that skills which help afford
To all mankind fail now to help their lord! [8]

Apollo, well-known for outrageous behavior, thus appropriated the origin of medicine.  In physiological writing, Aristotle described visual spirits entering the eye and traveling to the heart.[9]  Under the law of the ancient Greek lawgiver Zaleucus, gouging out adulterers’ eyes would prevent future danger from Cupid’s arrows to the eyes.   The danger of glances and Cupid shooting arrows into eyes subsequently became a theme in Islamic and medieval European literature.[10]

Other than in legends of the ancient Greek lawgiver Zaleucus, known laws have never specified gouging out of men’s eyes for adultery.  Modern, harsh penal regulation of male sexuality isn’t specifically rooted in classical Greco-Roman law or in medieval European Christianity.  It has arisen from more general features of human social nature.

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[1] Code of Hammurabi (c. 1780  BGC), trans. L.W. King, law #129.  Under that law, a husband could pardon his wife for adultery, but only the King could pardon the man.  In modern legal terms, criminal law concerns law for which the sovereign governs prosecution.  In that sense, men were criminalized for adultery, but women weren’t.  The code of Hammurabi and similar codes appear to be mixtures of statutory and case law.

[2] Diodorus Siculus reported of the ancient Egyptians:

Severe also were their laws touching women. For if a man had violated {by force, i.e. raped} a free married woman, they stipulated that he be emasculated, considering that such a person by a single unlawful act had been guilty of the three greatest crimes, assault, abduction, and confusion of offspring; but if a man committed adultery with the woman’s consent, the laws ordered that the man should receive a thousand blows with the rod, and that the woman should have her nose cut off, on the ground that a woman who tricks herself out with an eye to forbidden licence should be deprived of that which contributes most to a woman’s comeliness.

Library of History (Bibliotheca historica) Bk. I, Sec. 78, para. 4.  Attacks on men’s genitals feature commonly as informal, private punishment in Old French fabliau.  Marie de France included in her romance Bisclavret the cutting off of a woman’s nose.  A punishment of men for adultery in Athens in the 5th and 4th century BGC reportedly was forcing a radish into the man’s anus (rhaphanidosis).

[3] Deuteronomy 22:22.  According to the Jewish Encyclopedia:

The punishment for Adultery according to the Mishnah (Sanh. xi. 1) was strangulation; the rabbinical theory being that wherever the death penalty was mentioned in the Bible, without any specific statement of the manner of its infliction, strangulation was meant (Sifra, Ḳedoshim, 4, 9).

The Jewish Encyclopedia also notes that Jews abolished the death penalty in the year 40.  The Roman Empire throughout its existence continued to punish persons with death, including by crucifixion.  High-status Romans sentenced to death were able to choose their own means of death.  The Roman Emperor Augustus “forced Polus, a favourite freedman of his, to take his own life, because he was convicted of adultery with Roman matrons.”  Suetonius, Life of Augustus, 67.

[4] Valerius Maximus, Memorable doings and sayings (Factorum et Dictorum Memorabilium), Book VI.5 ext. 3, from Latin trans. Shackleton Bailey (2000) p. 65.  Id. Bk. I.3 ext. 4 states:

Zaleucus was accounted wisest of men among the Locrians acting in the name of Minerva {Athena}.

Valerius introduced the story of Zaleucus with admiration, “Nothing could be braver than the following examples of justice.”  The subsequent example concerns Charondas of Thurii.  Charondas made a law stating that anyone who entered an assembly armed would be put to death.  Charondas inadvertently attended an assembly armed.  Informed of that mistake, Charondas immediately fell on his sword on his own initiative.  Id. Bk. VI.4 ext. 4.  Valerius rose from poverty and social obscurity to join the Roman literary and political elite (Gagarin (1986), p. 58; an Aristotelian text describes Zaleucus as originally a non-free shepherd).  Valerius’ Memorable doings and sayings celebrate and disseminate elite Roman knowledge and values.  The Locrians under Zaleucus were also known for requiring anyone proposing a law to do so with a noose around his neck.  Claudius Aelianus (ca. 175 – ca. 235) included the story of Zaleucus gouging out eyes for adultery in his Varia Historia,  13.24.  James Yonge added that story to his translation of the Secret of Secrets in 1422 in Ireland.  For text, see Steele (1898) p. 128.  Yonge attributed the story to “the wise scholar Valerius.”

[5] Heraclidis Lembi, Excerpta Politiarum, from Greek trans. Dilts (1971) p. 35, frag. 61.  Scholars generally believe that Arisotle or his immediate pupils wrote the Politeia.  Heraclidis Lembi excerpted the work in the second century BGC.

[6] Mittica (2008) reviews some surviving texts about Zaleucus (Ζάλευκος).  In Cicero, De Legibus 6, Quintus says that Timaeus the Historian (c. 345 BGC – c. 250 BGC) denied that Zaleucus ever existed.  Plutarch describes Lycurgus, another ancient Greek lawgiver, as having lost one eye.  Parallel Lives, Lycurgus 11.  Such a story may have contributed to the story of Zaleucus gouging out eyes as punishment for adultery.  Even if Zaleucus actually existed, the story of him gouging out eyes almost surely is a literary construction.

[7] Code of Hammurabi, L.W. King translation.

[8] Ovid, Metamorphoses, Bk. I, ll. 463-530 (story of Apollo and Daphne), from Latin trans. Melville (1986) p. 16.  Apollo’s response to Daphne is highly visual:  “Apollo saw her, loved her, wanted her.”  Trans. id. p. 15.  That somewhat loose translation plays with the well-known reported declaration of Julius Caesar: “I came, I saw, I conquered.” Apollonius Rhodius, Argonautica (3rd century BCE), Bk. 3, ll. 275-98, describes Eros (Cupid) shooting a love arrow into Medea’s heart.

[9] Stewart (2003) pp. 15, 89-92, describing Aristotle’s account of intromission in De Anima and De Sensu.

[10] In Islam, the hadith reported by al-Tirmidhi, 2701, warns of a “second glance.”  See also the Qur’an, Surah 24 (Al Nur), 30-31.  On shooting arrows of love into men’s eyes in medieval Europe, Stewart (2003).  Id., p. 13, describes a shift from the classical figures of Cupid’s arrow to the heart to the medieval figure of Cupid’s arrow to the eye.  That account seems to be overdrawn. Heliodorus, Aethiopica 3.8, describes love shooting through the eye and into the heart. Similarly Achilles Tatius, Leucippe and Clitophon, 1.4.4, describes love striking the soul through the eye. Valerius’s account is consistent with that trajectory of love.

[image] Eros (Cupid) with bow, Roman copy after Greek original by Lysippos, marble sculpture in the round, 2nd century GC.  In Capitoline Museums, Italy.  Image thanks to Ricardo André Frantz and Wikipedia.


Dilts, Mervin R., ed. and trans. 1971. Aristotle. Heraclidis Lembi; excerpta politiarum. Durham, N.C.: Duke University.

Gagarin, Michael. 1986. Early Greek law. London: University of California Press.

Melville, A.D., trans. 1986.  Ovid. Metamorphoses.  Oxford: Oxford University Press.

Mittica, M. Paola. 2008. “Le tradizioni su Zaleuco. Storia politicosociale di un codice e di un legislatore leggendari.” Sociologia Del Diritto. 35 (3): 83.

Shackleton Bailey, D.R. trans. 2000. Valerius Maximus. Memorable doings and sayings. Cambridge, Mass: Harvard University Press.

Steele, Robert, ed. 1898.  Three prose versions of the Secreta secretorum. London: Kegan Paul, Trench, Trübner.

Stewart, Dana E. 2003. The arrow of love: optics, gender, and subjectivity in medieval love poetry. Lewisburg: Bucknell University Press.

charivari punished men and women unequally

A charivari, also variously called a skimmington ride and riding the stang, is a historical folk custom expressing public disapproval of personal behavior.  Domestic violence was a common motive for a charivari.  A man who beat his wife in southern England early in the nineteenth century could awaken at night to a noisy crowd, dancing in a frenzy around a bonfire outside his door.  They would be “a motley assembly with hand-bells, gongs, cow-horns, whistles, tin kettles, rattles, bones, {and} frying-pans.”  An orator would identify the wife-beater’s house with a signal chant:

There is a man in this place
Has beat his wife!!
Has beat his wife!!
It is a very great shame and disgrace
To all who live in this place,
It is indeed upon my life!! [1]

Sometimes the crowd would carry an effigy of the targeted man to a substitute punishment, e.g. burning.  Sometimes the man who physically abused his wife would be abused by the community:

Old Abram Higback has been paying his good woman;
But he neither paid her for what or for why,
But he up with his fist and blacked her eye.
Now all ye old women, and old women kind,
Get together, and be in a mind;
Collar him, and take him to the shit-house,
And shove him over head.
Now if that does not mend his manners,
The skin of his arse must go to the tanners;
And if that does not mend his manners,
Take him and hang him on a nail in Hell.
And if the nail happens to crack,
Down with your flaps, and at him piss. [2]

The practices of charivari varied across time and place.  But no evidence exists of a charivari that targeted a wife who had been beaten by her husband.  If the husband beat the wife, the husband was the subject of the charivari.

Hograth's depiction of a charivari / skimmington

The husband, in contrast, was also the subject of the charivari if he was beaten by his wife.  In France about 1400, husbands beaten by their wives were “paraded on an ass, face to tail.”[3]  In England, a mural in Montacute House (constructed about 1598) shows a wife beating her husband with a shoe and then a crowd parading the husband on a cowlstaffSamuel Pepys recorded in his diary, 10 June 1667: “in the afternoon took boat and down to Greenwich, where I find the stairs full of people, there being a great riding there to-day for a man, the constable of the town, whose wife beat him.”[4]  A Frenchman who traveled in England reported in 1698:

I have sometimes met in the streets of London a woman carrying a figure of straw representing a man, crown’d with very ample horns, preceded by a drum, and followed by a mob, making a most grating noise with tongs, grid-irons, frying-pans, and sauce-pans.  I asked what was the meaning of all this; they told me that a woman had given her husband a sound beating, for accusing her of making him a cuckold, and that upon such occasions some kind neighbour of the poor innocent injur’d creature generally performed this ceremony. [5]

The figure of straw, crowned with horns, mocked the beaten husband.  Another example describes a neighbor taking the punitive place in the charivari procession on behalf of the husband.[6]  That’s the most probably meaning of the phrase “some kind neighbour of the poor innocent injur’d creature generally performed this ceremony.”  The public intention seems to have been to beat in public husbands who were beaten within the home.  Having a kind neighbor limited the public beating to material and personal representations.

Within the home, men and women abused each other.   Public punishment for domestic violence, in contrast, seems to have fallen mainly on men.  The academic literature on charivari for a beaten husband has emphasized ideology.  A wife beating her husband exposes the unreality of patriarchal ideology.  Publicly punishing the beaten husband attempts to protect ideology from reality.  Focusing on who are punished — men — focuses on the painful, personal reality.

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[1] Notes and Queries (London), 2nd ser., X (15 Dec. 1860), pp. 476-477, cited in Palmer (1978) p. 14.

[2] Thompson (1992) p. 14, citing “From Sturton by Stowe, in the James M. Carpenter collection in Cecil Sharp House.”

[3] Ingram (1984) p. 93.

[4] Early in the nineteenth century, Richard Neville (later Lord Braybrooke) published Pepys’ Diary and added a note to Pepys’ description of a charivari:

Malcolm (“Manners of London”) quotes from the “Protestant Mercury,” that a porter’s lady, who resided near Strand Lane, beat her husband with so much violence and perseverance, that the poor man was compelled to leap out of the window to escape her fury. Exasperated at this virago, the neighbours made a “riding,” i.e. a pedestrian procession, headed by a drum, and accompanied by a chemise, displayed for a banner. The manual musician sounded the tune of “You round-headed cuckolds, come dig, come dig!” and nearly seventy coalheavers, carmen, and porters, adorned with large horns fastened to their heads, followed.

The “chemise, displayed for a banner” probably was a representation of the woman who beat her husband.  On the other hand, calling men “cuckolds” is a shaming of men. Like men beaten by their wives, men who were cuckolded were also subject to charivari.

[5] Maximilien Misson (1698), Mémoires et observations faites par un voyageur en Angleterre, sur ce qu’il y a de plus remarquable, trans. (1719) M. Misson’s Memoirs and observations in his travels over England, p.129 (entry “horns”).  Uxorius (1760), Hymen: an accurate description of the ceremonies used in marriage, by every nation in the known world, p. 177, includes an adaptation of Misson’s charivari account.

[6] John Brand, Popular Antiquities of Great Britain (1905 edition) p. 551, citing Lupton (1580), Too Good to Be TrueBrand’s book was first published in 1777.  It incorporated material from Popular Antiquities of Henry Bourne (1725).  Barrett (1895), p. 63, provides an example from 1562, near London, in which a man was the subject of a  Skimmington because his neighbor’s wife beat her husband.

[image] detail from William Hogarth, Hudibras Encounters the Skimmington (1820).


Barrett, C. R. B. (1895). “‘Riding skimmington’ and ‘riding stang’.” Journal of the British Archeological Association, 1, 58-68.

Ingram, Martin. 1984. “Ridings, Rough Music and the ‘Reform of Popular Culture’ in Early Modern England.” Past & Present. (105): 79-113.

Palmer, Bryan D. 1978. “Discordant Music: Charivaris and Whitecapping in Nineteenth-Century North America.” Labour / Le Travail. 3: 5-62.

Thompson, E. P. 1992. “Rough Music Reconsidered.” Folklore. 103 (1): 3-26.

systemic injustice of the U.S. criminal justice system

Aaron Swartz courageously worked for the public interest on the Internet.  His family and partner have without exaggeration described Swartz’s contribution:

Aaron’s commitment to social justice was profound, and defined his life. He was instrumental to the defeat of an Internet censorship bill; he fought for a more democratic, open, and accountable political system; and he helped to create, build, and preserve a dizzying range of scholarly projects that extended the scope and accessibility of human knowledge. He used his prodigious skills as a programmer and technologist not to enrich himself but to make the Internet and the world a fairer, better place. His deeply humane writing touched minds and hearts across generations and continents. He earned the friendship of thousands and the respect and support of millions more.

On January 11, 2013, Aaron Swartz committed suicide.  Out of respect for his work and his memory, please watch the above video.  In it, Swartz describes how mass democratic action stopped a serious threat to civil liberties in the U.S.

Aaron Swartz committed suicide amidst stressful, highly threatening persecution from the U.S. criminal justice system.  Almost exactly two years before he committed suicide, Swartz was arrested for an act of civil disobedience.  Using technological means well-known to computer experts, he downloaded millions of scholarly articles from the JSTOR database.  JSTOR’s capture and sale of scholarly articles reflects a general, continuing practice that needs critical public scrutiny in the Internet era.  Swartz did not distribute the JSTOR articles online.  JSTOR did not seek the prosecution of Swartz.  Nonetheless, the office of U.S. Attorney Carmen Ortiz went forward with a crushing criminal indictment of Swartz.  A U.S. Department of Justice press release proclaimed:

AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.

To put more pressure on Swartz, the Department of Justice in September, 2012, secured a new indictment that increased the number of felony counts against Swartz from four to fourteen.  The U.S. Attorney apparently wanted Swartz to plead guilty to some felony and accept a six-month prison term.  The case record makes clear that Swartz was mired in an expensive, time-consuming, highly threatening federal prosecution.  Those circumstances are reasonably understood as contributing significantly to Swartz’s suicide.[1]  The prosecution of Swartz seems to me to indicate extraordinarily poor prosecutorial judgment.

The persecution of Swartz was, however, business as usual in prosecuting persons in the U.S. criminal justice system.  U.S. Attorney Carmen Ortiz declared, “this office’s conduct was appropriate in bringing and handling this case.”  U.S. prosecutors typically get a rubber-stamp grand jury indictment of a person on a variety of charges.  The threat of those charges typically induces the person to accept a plea for whatever punishment the prosecutor thinks is appropriate.  The whole U.S. constitutional apparatus of due process is irrelevant to the pervasive practice of plea bargaining.  The U.S. criminal justice system is a bargaining game in which prosecutors have enormous discretionary power.  The time, expense, and uncertainty of a criminal trial can prompt innocent defendants to plead guilty to “lesser” charges.

U.S. criminal law places virtually no constraint on the maximum possible criminal punishment.  In the Swartz case, the U.S. Attorney declared, “At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law.”  At first the U.S. Attorney brought against Swartz four felony counts, with a punishment of “up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.”  Apparently to get more bargaining power, the U.S. Attorney subsequently brought an additional nine felony counts against Swartz.   In areas such as computer fraud and wire fraud, anyone is vulnerable to a huge number of felony counts on criminal laws that are vague, technologically anachronistic, and closely related to common, everyday actions.   If doing so would have increased her bargaining power with Swartz, the U.S. Attorney probably could have brought against Swartz hundreds of felony counts with punishments of up to 1000s of years in prison.

In the U.S. criminal justice system, criminal charges are merely tools for prosecutors to seek their desired punishment of the accused.  A maximum penalty under the law doesn’t exist in practice.  Most criminal cases aren’t resolved “under the law.”  The prosecutor judges how much to seek to punish someone and then does whatever is necessary to get that punishment.[2]  That’s how the U.S. criminal injustice system works.  It needs fundamental reform.

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[1] Following Swartz’s suicide, his family and friends declared:

Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.

MIT’s lack of support for Swartz jarringly contrasts with its wide-open network and its support for new Internet applications.  Describing the U.S. criminal justice system as “rife with intimidation and prosecutorial overreach” seems to me to be no exaggeration.  Max Kennerly has written excellent posts, with many links to relevant discussion, describing the indictment and the stress it created for Swartz.

[2] A leading scholar of criminal law and the criminal justice system has written:

The bodies of law, state and federal, that claim to define crimes and sentences do not really do what they claim. Instead, those bodies of law define a menu – a set of options law enforcers may exercise, or a list of threats prosecutors may use to induce the plea bargains they want. The menu says little about what options are exercised or what threats are used. The real law of crimes and sentences is the sum of those prosecutorial choices.

See William Stuntz, “Plea Bargaining and Criminal Law’s Disappearing Shadow,” Harvard Law Review, v. 117, no. 8 (Jun. 2004) p. 2569.

al-Jahiz on “substantial non-infringing uses” in ninth-century Baghdad

In ninth-century Baghdad, the Muslim scholar al-Jahiz addressed the legality of alcoholic drinks under Islamic law.  Al-Jahiz harshly and amusingly attacked Medinese jurists.  He declared:

These Medinese jurists who make the smell of drink on the breath a flogging offense, judge that possession of an empty wineskin demands similar punishment because, they claim, it is one of the tools of the wine trade.  (This led one wag to wonder why they do not flog themselves, since each one has about his person the tool of fornication!)  By analogy, they ought to impose the ultimate penalty for possession of a sword, a knife or deadly poison, since these are all instruments of murder.[*]

Al-Jahiz had a keen mind for legal argument.  His argument here predated by about a thousand years the argument in Sony Corp. of America v. Universal City Studios (1984).  In that case, the U.S. Supreme Court ruled that manufacturers of home video recording devices are not liable for copyright infringement because “substantial non-infringing uses” exist for home video recording devices.

Copyright didn’t exist within the vibrant world of authorship in the ancient Islamic world.  But the copyright-infringement defense “substantial non-infringing uses” was recognized in other legal contexts in the ancient Islamic world.

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[*]  Al-Jahiz, Kitab al-sharib wa al-mashrub, trans. Colville (2002) p. 142 (On Drink & Drinkers).  The Medinese jurists declared that drinking toddy was unlawful.  Al-Jahiz argued to the contrary.

Colville, Jim, trans. 2002.  Al-Jāḥiẓ.  Sobriety and mirth: a selection of the shorter writings of al-Jāhiz. London: Kegan Paul.

paternity within marriage: long history of legal fiction

Law has long upheld legal fictions of paternity in the face of paternity facts.  Before the development of scientific paternity testing, facts showing that husband and wife did not have physical access to each other during a reasonable period of possible conception could factually prove non-paternity.[1]  Nonetheless, English jurist Lord Coke, known as the greatest jurist of the Elizabethan and Jacobean eras, wrote in 1628:

By the Common Law, if the husband be within the four seas, that is, within the jurisdiction of the King of England, if the wife hath issue, no proof is to be admitted to prove the child a bastard, (for in that case, filiatio non potest probari) unless the husband hath an apparent impossibility of procreation; as if the husband be but eight years old, or under the age of procreation, such issue is a bastard, albeit he be born within marriage.  But if the issue {child} be born a month or a day after marriage, between parties of full lawful age, the child is legitimate {the legal son of the husband}. [2]

That’s not a curious absurdity of English common law.  Legal preference for paternity fiction over paternity fact continues in paternity law through to the present day.

California family law illustrates the strength of the legal fiction of paternity. The California Code of Civil Procedure, as adopted in 1872, declared an indisputable presumption of legitimacy:

The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate.[3]

A California Court of Appeals decided Wareham v. Wareham (1961) under essentially that law.[4]  The Warehams separated about May 22, 1959, filed for divorce on May 27, 1959, and were granted divorce on July 2, 1959.  Ms. Wareham gave birth to a child on February 17, 1960.  She swore under oath that she had not had sex with anyone other than Mr. Wareham in the past year.  She filed to obligate Mr. Wareham to make monthly payments to her as child support.  Blood tests conclusively excluded Mr. Wareham from being the biological father of the child.  Nonetheless the Court upheld the legal attribution of paternity to Mr. Wareham on the grounds that his wife was cohabiting with him during the normal period for conception for the resulting birth.  The Court thus upheld the financial child support obligations imposed on Mr. Wareham.

Justifications for legal fictions of paternity have varied.  In 1836, a lengthy legal-historical treatise defending Lord Coke’s statement on the marital presumption of legitimacy in English common law declared:

No man with the slightest powers of reflection, can fail to perceive that the law which presumes that the husband is the father of the child born of his wife, tends to promote public morals and female chastity [5]

By the late twentieth century, the justification for the marital presumption had shifted to the stigma of illegitimacy.  In Lockwood v. Lockwood (1946), the New York Supreme Court declared a Navy sailor the father of a child born to his wife 355 days after he sailed away on a tour of duty in the Pacific.  An Army legal pamphlet in 1982 observed of that case:

The court was clearly more interested in saving the child from the stigma of illegitimacy than in ascertaining the identity of the true father. [6]

Currently the preferred legal justification for paternity fiction is the “best interests of the child.”  Under New York State law, a court can order financial child support irrespective of biological paternity “upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman.”[7]  That’s a conceptually incoherent mash of legal concepts.  That incredible law has produced even more astonishing paternity rulings.

In politics and court cases, paternity law tends to pit women against men.  Men generally tend to prefer women, and women also generally prefer women.  In addition, women tend to engage more eagerly and more successfully in social communication.  Women thus generally win contests of social favor.

In societies that truly value gender equality, gender inequality in fundamental knowledge should be a serious concern.  Sexual biology and child-birthing procedures give women high-quality knowledge of who their biological children are.  Before modern paternity testing, most men could not be certain who their biological children are.  That fundamental knowledge inequality between women and men is no longer inevitable.  Routine DNA paternity tests before accepting any claim of paternity (before so-called “acknowledgement of paternity”) and before any judicial determination of legal paternity could feasibly establish biological paternity with certainty.  Societies thus now have feasible opportunities to advance gender equality in fundamental knowledge.

Cheap paternity testing technology has made legal fictions of paternity into bigger social lies.  In high-income democracies today, about 5% of children believe their biological father to be someone other than who he really is.  Societies can legally define fatherhood as they wish.  But societies widely suppress fundamental biological truths only with grave risks of social corruption.

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[1] Statistical evidence indicates that if a man did not have sex with a woman between 200 and 350 days before she gave birth to a child, the probability that he is the father of the child is less than 0.1%.  Humans have surely long understood roughly this basic biological truth of human reproduction.  Here are statistics on pregnancy duration and duration variance.   Such statistics were systematically studied no later than the early nineteenth century.  See Naegele’s Rule.  In Dazey v. Dazey, 50 Cal.App.2d 15, 20 [122 P.2d 308] (1942), a California appellate court claimed that a birth 225 days after the date of marriage is not “abnormal” or “contrary to the usual operations of the law of nature.”  In 1942, the probability of a child surviving after being born 225 days after conception was probably far less than 1%.

[2] Lord Coke’s First Institute, 244a. quoted in Nicholas (1836) p. 77.  Id. controverted convincingly contemporary discounting of Lord Coke’s statement.  7 A.L.R. 329 (American Law Reports)  (1920) reports:

it was solemnly decided by a court of the highest jurisdiction that a child born in England was legitimate, although it appeared on the fullest evidence that the husband resided in Ireland during the whole time of the wife’s pregnancy, and for a long while previously, because Ireland was within the King’s dominion.  In another instance, where the husband resided in Cadiz, the child was held to be a bastard; not because Cadiz was at a greater distance, but because it was beyond the four seas

The Four Seas Rule (extra quatuor maria) was reportedly extended to a Seven Seas Rule when the British Empire spanned the globe.  Rudavsky (1999) p. 127.  Under common law, neither husband nor wife could testify to access or non-access to each other.  Michael H. v. Gerald D., 491 US 110 – Supreme Court 1989, at 125 outlines the common law.

[3] California Code of Civ. Proc. § 1962(5).  In 1955, the California legislature added an emphatic prefatory clause “Notwithstanding any other provision of law, … .”  In 1965, the word “indisputably” was replaced with the word “conclusively.”  In 1975,  the California legislature replaced the word “legitimate” with the phrase “a child of the marriage” and added nonsterility as a condition for the marital presumption.  Only in 1980, more than a half-century after blood tests were widely regarded scientifically as establishing facts about paternity, did the California legislature add a two-year period after birth during which a husband could contest his paternity of a child of the marriage.  Michael H. v. Gerald D., 491 US 110 (1989) at 117 documents the statutory history.  Bois (1962) reviewed California paternity law, found it an outrage to truth and justice, and declared:

Of all the possibilities, it is believed that the one most promising is the constitutional attack, relying on the United States Supreme Court to extricate our Supreme Court from the proverbial hole it has dug for itself in this area of law.

Id. p. 474.  While Bois’s evaluation of problems with California paternity law is compelling, his evaluation of possibilities for reform was evidently faulty.

[4] Wareham v. Wareham, 195 Cal. App. 2d 64 – Cal: Court of Appeal 1961.  The facts stated above are from the judicial opinions in the case.

[5] Nicolas (1836) p. 2.

[6] Brown and Loomis (1982) p. 8.   The case ended with Lockwood v. Lockwood, 62 N.Y.S2d 910 (Sup. Ct. Spec. Term Queens County 1946).  The Windsor Daily Star (Ontario, Canada), May 13, 1946, p. 13, “N.Y. Ruling is Appealed” is a newspaper account of Lockwood’s legal situation.

[7] N.Y. Family Court Act § 532 (a).


Bois, John J. O.  1962.  “California’s Conclusive Presumption of Legitmacy — Its Legal Effect and Its Questionable Constitutionality.” Southern California Law Review, v. 35, pp. 437-474.

Brown, George R. and Mark M. Loomis. 1982. “Counseling the Putative Father: A Legal Assistance Overview to Disputed Paternity.” The Army Lawyer.  Department of the Army Pamphlet 27-50-118 (Oct. 1982) pp. 1-19.

Nicolas, Harris. 1836.  A treatise on the law of adulterine bastardy, with a report of the Banbury case, and of all other cases bearing upon the subject. London: W. Pickering.

Rudavsky, Shari. 1999. “Separating Spheres: Legal Ideology v Paternity Testing in Divorce Cases.” Science in Context. 12 (1): 123.

financial child support: judging misrepresentation and reliance

On a visit to Guyana in 1995, Mark met and had sex with Shondel.  The record provides no indication that they intended their relationship to be anything beyond a short-term sexual affair.  After Mark returned to New York, Shondel became aware that she was pregnant.  She misrepresented to Mark (and subsequently to a U.S. family court) that she knew that the child was Mark’s.  Mark, living in New York, took some actions to support Shondel and the child, living in Guyana.  When the child was just under five years old, Shondel and Mark’s relationship deteriorated.  Shondel then sought court-determined financial child support from Mark.  A DNA test found that the child was not Mark’s biological child.  Nonetheless, a family court ordered Mark to pay to Shondel $78 per week as financial child support.  In the Matter of Shondel J. v. Mark D. (2006), the highest appellate court in New York State upheld that imposition of financial fatherhood on Mark.  What judicial reasoning supported this decision?

The appellate court’s decision rested on the reasoning of a child under five years old.  The court reasoned:

Mark represented that he was the father of the child, and she {the child} justifiably relied on this representation, changing her position by forming a bond with him, to her ultimate detriment.  He is therefore estopped from denying paternity. [1]

Legal obligations typically are based on representations among adults who have capacity to contract.  Here, the court attributes contracting capacity to a child from birth to just under five years of age.  The court further explained:

The potential damage to a child’s psyche caused by suddenly ending established parental support need only be stated to be appreciated.  Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given. [2]

Mark had no contact with the child from March, 2000 to the time of the court’s decision in July, 2006.  Mark did not intend to provide emotional support to the child or the child’s mother, or have any relationship with them at all, at any time in the future.  A court cannot compel emotional support.   What’s called “child support” in this and similar cases has nothing to do with emotional support.  It’s money, pure and simple.  What financial obligation did the baby/young child perceive that Mark’s representations to her implied?  How did the baby change her behavior in response to her perception of Mark’s financial obligations to her?  How would Mark ceasing to provide financial payments to the young child make the child worse off than if Mark had never made any financial payments to her?  These questions baffle a reasonable adult.  Nonetheless, the appellate court, with keen understanding of the mind of a baby, perceived that the baby/young child’s reasoning justified New York State ordering Mark to pay Shondel $78 per week.

The court’s reasoning about how babies are made is similarly childish.  The court’s decision stated:

to the extent that it matters, we note that there is no evidence of fraud or willful misrepresentation even on Shondel’s part.  It is not likely that she would have initiated paternity proceedings, with the predictable prospect of biological testing, if she expected tests to rule him out as the father.  There is every reason to believe that she thought Mark was the biological father and that the tests would confirm her belief. [3]

Shondel believing that Mark is her child’s biological father is different from her knowing that Mark is the biological father.  She would know that Mark is the biological father only if she didn’t have sex with another man during the relevant period.  She did have sex with another man.  Hence she did not know who the biological father is.  That’s simple biology.  Pretending otherwise, at least among adults who know how babies are made, is willful misrepresentation.  That misrepresentation goes far beyond Shondel.  When imposing legal fatherhood on men, the U.S. legal system commonly misrepresents biological facts.

The court showed little concern for men’s choice.  Under a New York State statute, a court can order child support in ignorance of biological paternity “upon a written finding by the court that it is not in the best interests of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman.”[4]  According to that literal statutory language, a court has authority to make a finding about the “best interests of the child” based on consideration of arcane and archaic legal concepts: “res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman.”  That’s not common sense of the “best interests of the child.”  The statute thus permits, but does not require, courts to invoke paternity by estoppel to force financial fatherhood on a man.  With respect to the fundamental human value of becoming a father, New York State’s highest appellate court declared:

Given the {above described} statute recognizing paternity by estoppel, a man who harbors doubts about his biological paternity of a child has a choice to make.  He may either put the doubts aside and initiate a parental relationship with the child, or insist on a scientific test of paternity before initiating a parental relationship. A possible result of the first option is paternity by estoppel; the other course creates the risk of damage to the relationship with the woman. It is not an easy choice, but at times, the law intersects with the province of personal relationships and some strain is inevitable. [5]

Think of the child: what if the child calls you “daddy”?  Are you to cause potential damage to the child’s psyche by telling the child not to call you daddy?  More seriously, the court’s statement displays abstract legal complacency (“some strain is inevitable”) that jars painfully against the legal reality of undue influence, misrepresentation, and mis-service in the legal process of paternity establishment.  That structure of injustice is not inevitable.  Men could be given reasonable reproductive rights and good, meaningful opportunities to choose to be a father

In the U.S. legal system, the best interests of the child obliterates men as persons with rights under law.  In judging whether Mark should be compelled to make child support payments to Shondel for at least eighteen years, the highest appellate court in New York State declared:

the issue does not involve the equities between the two adults; the case turns exclusively on the best interests of the child.  … The child is entirely innocent and by statute the party whose interests are paramount. … Under the enactment, the mother’s motivation and honesty are irrelevant; the only issue for the court is how the interests of the child are best served. [6]

The claim that the statute obliterates the legal persons of adults shows the tenuous legal rights of adults in the U.S. today.  Just proclaim “Think of the children!” and an elaborate structure of rights, laws, and legal process turns into judges gravely pondering the “best interests” of a child that they do not know personally at all.

In legal decisions, judgments of the “best interests of the children” primarily camouflage judgments of other interests.  What a courageous scholar stated about child custody decisions applies equally well to decisions of legal paternity:

child custody cases are not really about children: they are about adults. What is especially interesting, however, is the extraordinary length to which adults go to deny this plain truth.  Ask any professional associated with child custody disputes and the one thing he or she is sure to emphasize is that their only purpose is to resolve the dispute “in the best interests of the child.”  As I hope to make clear, this is not simply false, it succeeds as a coverup to hide the degree to which the disputes serve adults’ interests. [7]

The child support system enforces a large transfer of money from men to women on the basis of nothing more than men having sex of reproductive type with women.  Both with respect to child welfare and gender equality, the “child support” system functions badly.  The legal doctrine “best interests of the child” serves to make impossible urgently needed systemic reform of family law.

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[1] In the Matter of Shondel J. v. Mark D., 7 N.Y.3d (2006) at 328.  The extent of Mark’s relationship was a matter of highly conflicting claims in the Family Court.  The appellate court’s majority opinion and the dissenting opinion likewise present contracting pictures of Mark’s relationship with the child.  The majority opinion shows no appreciation for tactical behavior in a relationship and before a Family Court.  Such tactical behavior is common among humans.  The dissenting opinion describes relevant relational facts:

At the time of the paternity proceeding, the child had lived most of her life in a different country from Mark D., and their relationship was primarily on the telephone.

Id., Smith, dissenting opinion, at 335-6.

[2] Id., majority opinion, at 330.

[3] Id.

[4] N.Y. Family Court Act § 532 (a).

[5] Shondel J. v. Mark D. (2006), majority opinion, at 331-2.

[6] Id at 330, 331.

[7] Guggenheim (2005) p. 143.  See also id. pp. 153, 157-8. Cohen (2012a) and Cohen (2012b), addressing forward-looking and much less widely important policy issues, argue against the “Best Interest of the Resulting Child” (BIRC) legal justification.  Cohen declares “BIRC justifications are vacuous” and “the BIRC justification, at least stated as such, is problematic both as a normative and constitutional matter.”  Alvaré (2012), Crawford (2012), and Mutcherson (2012) take up the BIRC debate, with Cohen (2012c) responding.  The implications of this debate for the child support system remains to be worked out.


Alvaré, Helen M. 2012. “A Response to Professor I. Glenn Cohen’s ‘Regulating Reproduction: The Problem with Best Interests’.”  96 Minnesota Law Review Headnotes 8.

Cohen, I. Glenn. 2012a. “Beyond Best Interests.” 96 Minnesota Law Review 1187.

Cohen, I. Glenn. 2012b. “Regulating Reproduction: The Problem with Best Interests.” 96 Minnesota Law Review 423.

Cohen, I. Glenn. 2012c. “Burying Best Interests of the Resulting Child: A Response to Professors Crawford, Alvaré, and Mutcherson.” 97 Minnesota Law Review Headnotes 1.

Crawford, Bridget J. 2012. “Authentic Reproductive Regulation.” 96 Minnesota Law Review Headnotes 31.

Guggenheim, Martin. 2005. What’s wrong with children’s rights. Cambridge, Mass: Harvard University Press.

Mutcherson, Kimberly. 2012. “In Defense of Future Children: A Response to Cohen’s Beyond Best Interests.” 96 Minnesota Law Review Headnotes 46.

forcing men to make monthly payments to their rapists

U.S. courts have uniformly affirmed that the state can lawfully force boys and men to make monthly payments to their rapists.  The circumstances that produce this outcome are:

  1. woman rapes boy or man with a sex act of reproductive type [1]
  2. rapist gets pregnant from the rape
  3. rapist gives birth to the baby, rather than aborting it
  4. rapist doesn’t get rid of the child under safe-haven infant abandonment laws
  5. rapist doesn’t give the child up for adoption

The rapist can then legally receive a “child support” order that requires the raped boy or man to make monthly payments to his rapist.  The size of these payments depend on the rapist’s income, not the child’s needs, and there’s is no legal requirement that these payments actually be used to financially support the child.  Moreover, if the rapist is granted state payments under the welfare program Temporary Assistance for Needy Families, the state will require the rapist to name the raped father of the child.  The state will then on its own motion establish a “child support” order against that boy or man, and the state will collect on behalf of the rapist any payments made under that order.   Circumstances of men being legally required to make monthly payments to their rapists have been numerous enough to generate more than seventeen court cases.  All the court cases addressing these circumstances have affirmed that a raped man is legally obligated to make payments to the woman who raped him.[2]

Requiring raped boys and men to “pay child support” is truly a marvel of sophistry, delusion, and social exploitation.  Courts typically gesture to the best interests of the child.  The irony of referring to the best interests of the child seems to be lost is cases imposing child support on boys of ages twelve and fifteen who were victims of statutory rape.  Courts hold up the principle “every child has a right to support from both parents.”[3]  But what about single parents?  Should law, public policy, and courts discourage single parenthood?  If the public concern is about the financial support of children, two parents are surely better than one parent.  But three or more financial parents is better than two.   Why not impose child-support orders on grandparents as well as the brothers and sisters of the parent?  The best interests of the child would be better served by imposing child support orders on the whole village.[4]

Boys and men being legally forced to to make monthly payments to their rapists indicates that elite men and women devalue fundamental interests of ordinary men.  Legal platitudes about the best interests of the child and the virtues of two-parent families are emotive superstructure above base interests.  A law review article published in 1992 asked:

Men also have interests in their genetic progeny and in their reproductive autonomy.  If we object to what some characterize as coerced motherhood, can we close our ears to pleas about coerced fatherhood? [4]

Two decades latter, the answer unquestionably is yes.  What that answer fundamentally means for open, free, democratic societies remains to be seen.

justice ponders child support law and goes blind

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Table: child support rape cases (Excel version)

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[1] The outcome is the same if a woman acquires a male’s sperm through fraud or theft.  See Higdon (2011) pp. 18-20.

[2]  Here’s a list of child support rape cases.  Many such cases probably occur in low-level family court proceedings that are largely opaque to external policy evaluation and analysis.  For example, online searches don’t show the Ohio child support rape case described obliquely in a newspaper article.  Moreover, given the unanimity of courts’ opinions, a rape victim might wisely judge that bringing such a case isn’t worth the cost.  Forcing boys and men to make monthly payments to their rapists is more bizarre to reason than unusual in practice.  On courts’ unanimity in making such decisions, see Hidgon (2011) p. 13.

[3] See, e.g. County of San Luis Obispo v. Nathaniel J., 50 Cal. App. 4th 842 – Cal: Court of Appeal, 2nd Appellate Dist., 6th Div. 1996 at 845.

[4] Two law review comments  (London (2004) and Johnson (2005)) and two law review articles (Jones (2002) and Higdon (2011)) have focused on requiring boys and men victims of rape to pay child support.  Three out of four of those authors are female.  London (2004) considers the issue from a highly gynocentric perspective. Higdon (2011), p. 12, observes:

Few would argue with the proposition that, if a man voluntarily has sex with a woman and a child results, then he should be liable for child support.

Two decades ago, few would argue for gay marriage.  A law review article published in 1994 declared authoritatively, “As a direct consequence of biological differences, reproductive choice is a right exclusive to women.”  See Thompson (1994) p. 393.  Thus biology is destiny, and men don’t get reproductive rights because men don’t get pregnant.  That’s wholly specious.  That men don’t get pregnant simplifies the moral issue of reproductive rights from aborting a fetus to not having the state impose unplanned financial parenthood on a man for no act of his own other than having sex of reproductive type.  Higdon (2011), p. 41, begins its conclusion:

Despite the noble policies upon which it is premised, the practice of holding biological fathers strictly liable for child support is not without its shortcomings.

These polices are no more noble than circumlocution in describing gross injustice.

[5] Shultz (1992) p. 93.  Higdon (2011), p. 26, states, “courts simply have to start taking a different approach to this issue.”  Higdon (2011) still has not been published in a law review.  Law reviews themselves are quite capable of ignoring and obscuring the gross unreasonableness of this area of law.


Higdon, Michael J. 2011.  “Fatherhood by Conscription: Nonconsensual Insemination and the Duty of Child Support.” (February 14, 2011). University of Tennessee Legal Studies Research Paper No. 139.  Available at SSRN: or

Johnson, Dana. 2005.  “Comment, Child Support Obligations that Result from Male Sexual Victimization: An Examination of the Requirement of  Support.” 25 Northern Illinois University Law Review, pp. 515-538.

Jones, Ruth. 2002.  “Inequality in Gender-Neutral Laws: Why Must Male Victims of Statutory Rape Pay Child Support for Children Resulting from Their Victimization?” 36 Georgia Law Review, pp. 411-63.

London, Ellen. 2004. “Comment, A Critique of the Strict Liability Standard for Determining Child Support in Cases of Male Victims of Sexual Assault and Statutory Rape.”  152 University of Pennsylvaian Law Review, pp. 1957-99.

Shultz, Marjorie M. 1992.  “Abortion and Maternal-Fetal Conflict: Broadening Our Concerns.” 1 Southern California Review of Law and Women’s Studies 79.

Thompson, Angela. 1994.  “International Protection of Women’s Rights: An Analysis of Open Door Counselling Ltd. and Dublic Well Women Centre v. Ireland.” 12 Boston University International Law Review 371.

Christian fearlessness under early Roman persecution

Early in the second century, Ignatius of Antioch was executed for his Christian faith at the order of Roman Emperor Trajan.  Ignatius of Antioch was the Christian bishop in Antioch.   Ignatius’ surviving letter To the Romans expresses his fearlessness and eagerness to die.  Ignatius wrote:

I am writing to all the Churches and I enjoin all, that I am dying willingly for God’s sake, if only you do not prevent it. I beg you, do not do me an untimely kindness. Allow me to be eaten by the beasts, which are my way of reaching to God. I am God’s wheat, and I am to be ground by the teeth of wild beasts, so that I may become the pure bread of Christ.[1]

Other Christians under Trajan were similarly fearless of death.  Ibn Abi Usaybiah transmits:

In Andronicus’ “History” we read: “Domitian ruled for sixteen years. After him, the Emperor Nerva ruled for one year, and after him, the Emperor Trajan for nineteen years. The latter reconquered Antioch from the Persians. His vicegerent for Palestine wrote to him saying, “The more Christians I kill, the more they love their religion.”  Trajan therefore ordered him to stop using the sword against them.[2]

Andronicus and his history apparently are otherwise unknown.  According to Eusebius’ Chronicle and a text from the late fifth or early sixth century, Ignatius of Antioch was martyred about 108.  Pliny the Younger, probably writing as governor of Bithynia-Pontus c. 110-113, asked Trajan for guidance on punishing Christians.  Trajan concurred with executing Christians who obstinately clung to their faith, and he advised forgiving Christians who renounced their faith.  The text from Andronicus’ History suggests that Trajan subsequently further eased persecution of Christians.[3]

Christians’ fearlessness in facing torture and death is attested in other early sources.  The indefatigable Christian disciple Paul of Tarsus, writing to the Philippians about 60 GC, proclaimed, “dying is gain.”[4]  In discourses written about 108, the Stoic philosopher Epictetus described “Galileans” (Christians) being fearless of death as a matter of habit.[5] Probably late in the second century, Galen declared, “that {Christians} are free from the fear of death is a fact which we all have observed.”  Tertullian, a Christian scholar writing between 211 and 225 to the Roman Consul Scapula, declared:

Take heed, Scapula, lest we, who undergo such unutterable hardships, should all of us at once break forth and show, that so far from dreading, we spontaneously call for tortures.  While Arrius Antoninus was zealously persecuting the Christians in Asia, they came uncalled, and in one body, before him.  Having doomed some few of them to death, he said to the rest, “Wretches, if you want to die, you have precipices and rope nooses!”  Should the Christians here act like those of Asia, what would you do to so many thousands, men and women, young and old, and of every station, yielding themselves up uncalled at your tribunal! [6]

Early Christians practiced civil disobedience of a radical type.  They welcomed authoritative threats of penal torture and execution.[7]

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[1] Ignatius of Antioch, The Epistle of Ignatius to the Romans.  An English translation can be found in the Ante-Nicene Fathers, vol. 1, available at the Tertullian Project and the Christian Classics Ethereal Library.

[2] HP p. 145.  Trajan’s Parthian campaign occurred about 113-115.  The vignette on executing Christians turns upside-down the formula or crowd-rally chant for Christian persecutions: “Let there be no Christians” (Christiani non sint).  That expression is thought to date from the second half of the first century.  Christians who were not Roman citizens could be executed locally.  Ignatius of Antioch was transported to Rome in chains to be executed there.  That probably means that he, like Paul of Tarsus, was a Roman citizen.

[3] The most plausible identity of the vicegerent for Palestine is Tiberianus.  He was Roman legate for Judaea from 114-117, and later became known as governor of the first province of Palestine.

[4] Letter of Paul to the Philippians 1:21.

[5] Epictetus, Discourses 4.7.6, discussed in Benko (1984) p. 40.

[6] The Address of Q. Sept. Tertullian, To Scapula Tertullus, Proconsul of Africa. Tr. by Sir David Dalrymple (1790), via the Tertullian Project.  I have edited the text slightly to modernize the English.

[7] While Christian were well-known for being fearless of death, that probably didn’t always mean acquiescing to their own execution.  In the first two centuries after Jesus’ birth, persons who were neither Jews nor Christians, such as Galen, did not readily distinguish between Jews and Christians .  The Kitos War, 115-117, and the extraordinarily intense Bar Kokhba Revolt, 132-136, are known as violent Jewish rebellions against the Romans.  At least some Christians probably also violently rebelled with the Jews against the Romans.


Benko, Stephen. 1984. Pagan Rome and the early Christians. Bloomington: Indiana University Press.

HP: Ibn Abi Usaybi’ah, Ahmad ibn al-Qasim. English translation of History of Physicians (4 v.) Translated by Lothar Kopf. 1971. Located in: Modern Manuscripts Collection, History of Medicine Division, National Library of Medicine, Bethesda, MD; MS C 294Online transcription.

progress in indecency regulation

In the ongoing case FCC v Fox Television Stations, the U.S. Supreme Court is considering the following questions:

1. Whether the court of appeals erred in invalidating a finding by the Federal Communications Commission (FCC) that a broadcast including expletives was indecent within the meaning of statutory and regulatory prohibitions on indecent broadcasts, on the ground that the FCC’s context-based approach to determining indecency is unconstitutionally vague in its entirety.

2. Whether the court of appeals erred in invalidating a finding by the FCC that a broadcast including nudity was indecent within the meaning of statutory and regulatory prohibitions on indecent broadcasts, on the ground that the FCC’s context-based approach to determining indecency is unconstitutionally vague in its entirety.

These contentious legal issues and the voluminous arguments in this case should not obscure the great progress that has been made in indecency regulation.

About 1800 years ago, indecency regulation was much less well-developed.  Galen then described “these birds in the city of Rome which we see being led around by their masters in order to mount female (birds) for a price.”[*]  Surely everyone today would agree that street vendors displaying for a fee animals copulating is indecent.  That sort of activity just isn’t a major public issue today.  Put differently, current indecency regulation is quite effective and unintrusive.

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[*] See Rothschild, Clare K, and Trevor W. Thompson (2011), “Galen: ‘On the Avoidance of Grief.’” Early Christianity, vol. 2, pp. 110–129.  Quotation above is from para. 62.

ability-to-pay determination under Turner v. Rogers safeguards

The U.S. Supreme Court’s Turner v. Rogers decision plausibly requires the equivalent of a simple, explicit determination of present ability-to-pay in the case of an unrepresented child-support debtor facing incarceration via a civil-contempt order.  Individual jurisdictions that do not provide indigent child-support debtors with counsel must implement such due-process safeguards.  Florida’s statute that sets out the legal determination of civil indigent status provides a good example of how the Turner v. Rogers safeguards could be implemented.

Under Florida Statutes, Section 57.082, a person applying for a state-provided attorney in a civil case is required to file a form that includes basic financial information.  The clerk of the court reviews that form using two simple rules:

  1. An applicant, including an applicant who is a minor or an adult tax-dependent person, is indigent if the applicant’s income is equal to or below 200 percent of the then-current federal poverty guidelines prescribed for the size of the household of the applicant by the United States Department of Health and Human Services.
  2. There is a presumption that the applicant is not indigent if the applicant owns, or has equity in, any intangible or tangible personal property or real property or the expectancy of an interest in any such property having a net equity value of $2,500 or more, excluding the value of the person’s homestead and one vehicle having a net value not exceeding $5,000.

Using these rules, the clerk decides if the applicant is indigent or not indigent.  The Florida statute explicitly requires a simple determination of ability-to-pay:

The duty of the clerk in determining whether an applicant is indigent is limited to receiving the application and comparing the information provided in the application to the criteria prescribed in this subsection. The determination of indigent status is a ministerial act of the clerk and may not be based on further investigation or the exercise of independent judgment by the clerk.

The applicant is allowed to request judicial review of the clerk’s decision if the clerk finds the applicant not indigent.  If the clerk determines that the applicant is indigent, the applicant receives counsel under a monthly payment plan that requires payments of no more than 2% of the applicant’s average monthly income.

The Florida statute provides a model for processing show-cause orders for considering incarcerating unrepresented child-support debtors.  If the child-support debtor does not have counsel, he or she should be given the opportunity to have a Turner ability-to-pay determination. The Turner ability-to-pay determination would follow from the Florida model, with the child-support debt due netted from the applicant’s income.  If the Florida model found the applicant indigent, then the applicant would not be eligible to be incarcerated for child-support debt.

Incarcerating indigent child-support debtors is inhumane, greatly worsens the debtors’ ability to earn income, and has large public costs, financial and social.  Incarcerating child-support debtors without due process safeguards is also illegal.  If the Turner v. Rogers decision is reasonably implemented, it is an important step toward justice under law.

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