Don't call it a spade
Patriarchal Sexual Law
We live in a world of sexual license. Sexual freedom we could say. You can sleep with whoever you want and neither state authorities, nor most people, will interfere with your sexual life. You can even engage in the most unnatural, disgusting and disease-inducing activities; but criminal law just has nothing against you.
This alone is a sign that the patriarchy doesn’t exist anymore. Patriarchies are systems in which all women belong to a man; the husband after marriage, the father before that, or the head of the household if she’s a servant of some sort. Women have this uncanny ability to make men want to have sex with them, and at the same time prefer to have exclusivity in that matter. Not to mention the potential for disease or childbirth. So naturally their legal guardians had to take care that women, i.e. their property, was not captured by other men to have sex with them without proper compensation. As such, law regulating sex in the pre-modern period where every bit as complicated, and as harsh, as laws regulating finance and property in our day.
Imperial Chinese law on marriage is a lot of fun, but most interesting are their laws on fornication. Fornication belonged to criminal law, ever since the very first complete legal code on compiled during the early Tang Dynasty in 624, which has remained to us as the 唐律疏義 tánglü shūyì. More importantly, rape was understood as fornication + force, a more serious crime but nothing really different. The difference is stark between a legal code which lasted pretty much intact for 1300 years, and our present day of female supremacy, when rape has been reinterpreted every few years as the single most heinous crime that can be committed, while at the same time requiring no standards of proof.
What follows is a translation of the legal code of the Qing dynasty (1644-1911), the 大清律例 dàqīng lülì, tome 33. I have the book but you can find the text in Wikisource.
1. 凡和姦杖八十 . Any fornicator gets 80 strokes of the big stick.
杖 zhang was a big wooden stick with a flat surface, the worst of two available corporal punishments. It was normally applied to the buttocks or the back. If done strongly it could kill a fit man after 50 strokes or so. The traditional maximum was 200, so it was usually never applied that strongly. Bribes to the executioner in advance helped make him feel weak that day.
At any rate, 80 strokes for peaceful, consensual fornication is a lot of strokes. 80%+ of the sex going on in any modern society is fornication. Think about that.
有夫者杖九十. If there’s a husband, 90 strikes.
Obviously any consensual fornication with a woman with a husband is morally worse than if the woman is single, so you get 12% more strikes of the big fat wooden bat.
刁姦者[無夫有夫]杖一百. Seducers get 100 strokes, whether the woman has or does not have a husband.
– 刁姦 supposedly meant getting to fornicate on false pretences; the man (or woman, I guess) getting to seduce the other part by lying about its attractiveness or something. 100 strokes to you for lying. –
強姦者絞. Rapists [literally “forced fornicatiors”] get hanged. Not immediately, most death penalties were done after review on autumn. But rapists got hanged, period.
未成者杖一百流三千里. Attempted (but unfulfilled) rape gets exile to 3,000 li away.
– A li was a bit more than 500m during the Qing (set at 576m around 1900), so about 1,700km away. –
凡問強姦須有強暴之狀婦人不能掙脫之情亦須有人知聞及損傷膚體毀裂衣服之屬方坐絞罪 This is commentary to the law: “All cases of rape require proof of violence, and proof that the woman couldn’t get away. Also they need someone in the know (i.e. a witness) and damage to the skin [of the victim] as well as her clothes, in order for the penalty of hanging to be valid.”
若以強合以和成猶非強也. If intercourse starts as forced but ends as consensual then [it means] it wasn’t forced”.
– Important point here. Very important point. Again this is commentary later added to the law. I wonder what case(s) prompted this to be added.-
如一人強捉一人姦之行姦人問絞強捉問未成—-流罪””If one man forcibly captures [a woman] and another man rapes her, the rapist gets hanged. Attempted rape gets exile”
又如見婦人與人通姦見者因而用強姦之已係犯姦之婦難以強論依刁姦律 If a man sees a woman fornicating, and because of that rapes her, it’s unfair to argue it’s rape, and so it’s sentenced as “seduction”. So rape of a fornicator gets you 100 strokes of the rod, not the death penalty. Hey, she was in the market after all.
姦幼女十二歲以下者雖和同強論. Fornication with a girl below 12 years old gets treated as forcible (rape), i.e. hanged, period. Not unlike what Anglo countries call “statutory rape”.
其和姦刁姦者男女同罪. In case of consented fornication and seduction, men and women get the same penalty.
姦生男女責付姦夫收養. If fornication results in a birth, the male fornicator must raise the child.
姦婦從夫嫁賣, 其夫願留者聽. If the female fornicator is married, her husband can sell her to someone else, or keep her if he so chooses.
若嫁賣與姦夫者姦夫本夫各杖八十婦人離異歸宗財物入官 If she is sold to the male fornicator, the fornicator *and* the cuck husband each get 80 strokes of the big stick. The woman is sent back to her father and her property is impounded by the government.
強姦者婦女不坐 Raped women have no punishment.
若媒合容止[人在家]通姦者各減犯人[和刁]罪一等 . People who promote or provide lodgings for fornication get the same punishment as fornicators, with one degree less. So 70 strokes of the big stick instead of 80.
[如人犯姦已露而代]私和姦事者各減[和刁強]二等 . People who, knowing fornication took place, do not denounce it to the authorities and instead helps the parties reach a private agreement, get the same punishment, with two degrees less. So 60 strokes of the big stick.
*This part is important*.
其非姦所捕獲及指姦者, 勿論. If someone claims there was fornication but didn’t actual caught them in the act, there is no crime.
若姦婦有孕[姦婦雖有據而姦夫則無憑]罪, 坐本婦. If a female fornicator is pregnant, she alone is punished. After alone, there is proof of her deed, but not of the man’s.
– Again, you needed proof, which wasn’t easy to come by. –
After the main articles come some further detailed regulations.
一 、凡職官及軍民姦職官妻者 ， 姦夫、姦婦女並紋監候 . If a public official or military man fornicates with the wife of a public official, both male and female fornicator hang.
若職官姦軍民妻者，革職，杖一白的決. If a public official fornicates with the wife of a military man, he is fired and gets 100 strokes of the big stick, [maximum penalty]. In this case the sentence had to be executed, he couldn’t evade it with money (as normal penalties could).
姦婦枷號 一 個月，杖 一 百. Fornicating military wife must carry the cangue for a month, and 100 strokes of the big stick.
– The cangue was a square made of wood with a hole for the head, or sometimes the hands, which people couldn’t get off. It’s basically a very funny way of making everyone know you’re a criminal. In this case a huge slut.
其軍民相姦者，姦夫 、 姦婦各枷號 一 個月，杖 一 百. If two military people fornicate, they get the cangue for one month, and 100 strokes of the big stick.
其奴婢相姦，不分 一 主，各主，及軍民與官員，軍民之妾婢相姦者，姦夫姦婦各杖一百. If two servants fornicate, whether they belong to the same master, or have different masters, as well as when military men fornicate with the concubine of a military men or a public official, both fornicators get 100 strokes of the big stick.
– Note that simple fornication between free people was 80 strokes. –
凡有輪姦之案，審實，俱照光棍例，分別首從定擬. For cases of gang rape, after investigating the truth, officials must follow the Thug Regulations, and sentence separately the leader of the gang and the followers.
– The Thug Act being apparently Qing Dynasty official jargon for a special law for hoodlums and petty gangsters that the dynasty set up pretty early on. A principle of that law was to punish gang leaders with immediate beheading, and followers with deferred hanging. I guess the idea was to get the followers to rat on each other with the hope of having their death sentence annulled before Hanging Season started in the fall. –
The following article was about 雞姦, literally “chicken fornication”, which my dictionary tells me means “sex between men”. That I think is matter of another post.
My classical Chinese isn’t perfect and my legalese is even worse, so if there’s any error please let me know. But I think my translations are decent. I hope you get the gist of the law. Sex happens within marriage; period. If you must fornicate, at least take care that nobody knows or cares.