I am attaching a longish quotation from the Code of Justinian, promulgated in AD 528. As you can observe, the Code makes a clear distinction between rape and adultery. It stipulates the death penalty for men guilty of rape, regardless of whether the victim is married or unmarried, or of whether she a free woman or a slave. The only difference is that if the victim is free, the rapist, besides being executed, forfeits all his property to the victim, but if she is a slave the perpetrator loses his life, but not his property (that is: his property goes to his legal heirs).
Title 13. Concerning the rape of virgins, widows, and nuns.
- The Emperor Justinian to Hermogenes, Master of the Offices. We decree that ravishers of virgins, who are of honorable rank or
freeborn, whether they have been betrothed or not, or of widows of any
description, whether they are freedwomen or the slaves of others,
shall be punished with death, as being guilty of the worst of crimes;
especially when they are widows or virgins consecrated to God, for not
only in this case is an injury committed against humanity, but against
the reverence due to Almighty God himself; since the virginity or
chastity which has been destroyed cannot be restored. It is with
reason that person of this kind are condemned to death as ravishers,
as they are frequently also guilty of homicide. Therefore, in order
that a crime of such atrocity may not go unpunished, We decree by this
general constitution that those who perpetrate it, as well as those
who aid them at the time, where they are caught in the act and
surprised when committing it, can immediately be killed by the fathers
or the blood-relatives, guardians, curators, patrons or masters of the
said virgins, widows, or women of any description whatsoever, whether
they are freeborn or not. We order that these provisions shall, above
all, be applicable to those who have dared to ravish married women,
for the reason that they are liable to punishment for a double crime,
that is to say, for adultery as well as rape; and it is necessary for
the crime of adultery to be punished with greater severity on account
of the other offence being added to it. We class with these criminals
one who has ventured to ravish the girl who was betrothed to him. If,
however, after the commission of such a detestable crime, the ravisher
should be able to defend himself on account of his powerful influence,
or to escape by flight, the illustrious Praetorian Prefects, as well
as the distinguished Prefect of the City in this Imperial Capital, as
well as the eminent Praetorian Prefects in Illyria and Africa, the
Generals of the Army, throughout the different portions of Our Empire,
the Eminent Prefect of Egypt, the Count of the East, the Vicegerents,
Proconsuls, Dukes, and Governors of Provinces, and Judges of every
rank, who may be in those places, shall display the greatest zeal and
exert every effort to apprehend the culprit, and shall punish with
exemplary severity those who have been arrested for the commission of
such a crime, and sentence them to death after evidence which is
competent and recognized by law has been given, without permitting any
exception to be pleaded. If the defendants should wish to appeal, We,
in accordance with the provisions of the ancient law of Constantine,
refuse to grant them permission to do so.
(1) When the females who have been violated are either slaves or freedwomen, their ravishers
shall only be subjected to the penalty aforesaid, and shall not be
deprived of any portion of their property. If, however, such an
atrocious crime should be perpetrated against a woman who is freeborn,
all the property movable, immovable, or capable of moving itself,
which belongs to the ravishers themselves, or to their accomplices,
associates, or followers who have given them assistance, shall be
transferred to the ownership of the said ravished freeborn woman by a
decree of court, and the efforts of her parents, husband, guardians or
curators. When the woman above mentioned is not married, she can
lawfully be united in matrimony with any man whomsoever, except her
ravisher, and the property of the latter, or as much of it as she may
desire, shall be given as the dowry of the woman aforesaid. If she
should not be willing to accept a husband, but prefers to remain
single, We order that the said property shall belong to her
absolutely, and that no judge, or any other person whosoever, shall
dare to violate this provision. No virgin, widow, or any other woman
shall be permitted to accept her ravisher as her husband, but any
person whom her parents may agree to (her ravishers excepted) can
legally marry her, as, under no circumstances, and at no time, shall
she be given permission by Us to consent to marry one who, in Our
Empire, may attempt to contract marriage in a hostile manner; for,
where anyone desires to take a wife, whether she be freeborn or a
freedwoman, it is necessary to demand her of her parents, or in
accordance with Our laws and ancient customs, of others who have
charge of her, so that a lawful union may be effected with their
consent.
(2) The penalties which We have previously prescribed, that
is to say, those of death and the loss of property, We decree shall
not only be inflicted upon the ravishers themselves, but also upon
those who accompanied them, and were present when the crime took
place. We subject to the punishment of death all those who were aware
of and accomplices in a crime of this kind, and have been convicted;
as well as those who harbored the culprits, or gave them any
assistance, whether they be men or women, no matter of what position,
rank, or dignity they may be; and We render them liable to this
penalty, whether the offence was perpetrated with or without the
consent of the said virgins or women. If, however, the ravishers
themselves refrained from the commission of this crime, being deterred
either by fear, or by the severity of the punishment, no reproach can
be brought against the woman, whether she gave her consent or not,
because this law has been enacted to protect women from the treachery
of wicked men, who intend to employ violence. For unless a man
solicited her, and deceived her by his detestable arts, he did not
induce her to submit to such dishonor; and if her parents, upon whom,
above all, devolves the duty of revenge, should tolerate the crime,
and stifle their grief, they shall be punished with deportation.
(3) When anyone of a servile condition is convicted of complicity in a
crime of this description, We order him or her to be put to death by
fire, without distinction of sex, as this was also very properly
provided for by the Law of Constantine. All the provisions of the Lex
Julia, which have reference to the rape of virgins, widows, or nuns,
or which are contained in the ancient books of the law, or in the
Imperial Constitutions, are hereby abolished for the future, and this
law alone shall take the place of all others, so far as what We have
decreed concerning the rape of nuns, virgins, and widows is concerned.
Given at Constantinople, on the fifteenth of the Kalends of December,
during the Second Consulate of Our Lord the Emperor Justinian, [i.e., AD 528].