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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.

犯姦 Fornication

1. 凡和姦杖八十 . Any fornicator gets 80 strokes of the big stick.

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.

0

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.

條例
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.

01

– 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.

35 responses to “Patriarchal Sexual Law

  1. Pingback: Patriarchal Sexual Law | @the_arv

  2. Mr. Random Commentuer October 29, 2018 at 14:27

    H_ly f_ck_ng sh_t.

    Brilliant post.

  3. Toddy Cat October 29, 2018 at 15:56

    Did Imperial China have prisons, or was it all corporal punishment, execution, and fines?

    • spandrell October 29, 2018 at 16:49

      Prison was the 3rd harshest penalty, after the big stick. Maximum was 3 years, though. The found anything longer than that to be barbaric.

      • maieuticinitiate October 30, 2018 at 13:56

        I have the impression that as we go forward in history towards modernity, we see more and more corporal punishments, capital punishments and fines being substituted for prison time.
        Would you validate that impression?

        • spandrell October 30, 2018 at 15:38

          Absolutely. The idea of life imprisonment in imperial China and pre-modern Europe would’ve been positively absurd.

        • Alex November 2, 2018 at 19:04

          Of course. Because you have a massive expenditure for the purpose of punishment or, rather, rehabilitation. No pre-industrial society could really afford it. You either get killed or you become a designated slave, who can provide labor for room and board. So, long stints in prison make sense only if you are royalty and the like.

  4. Dividualist October 29, 2018 at 15:58

    >Sex happens within marriage; period.

    Um, probably prostitution and sex slaves / concubines balanced the picture. Also fornicating with ones own servant seems to be missing from the list and likely for a good reason. So it seems men, esp. wealthier men did actually have out of marriage options, just women didn’t?

    Also, many societies discovered the kind of equilibrium that prostitution must be allowed, it is just that normal women and prostitutes must be two very separated categories with no overlap, this even meaning prostitutes wearing special clothing and hairstyles. Despite modern narrative portraying prostitutes as victims, I have met a couple of so extremely promiscuous women that becoming a prostitute would have been rather a natural expression of their inclinations. So in these kinds of societies prostitution meant a plan B for women, of course, running away from daddy successfully may be difficult. I don’t know, did this plan B exist in China?

    James Clavell novels have stuff like Good Guy Greg is fucking a bought concubine (not sure if slave) for years, making her kids, then basically as a reward he sells her to become the wife of some poorer dude, apparently this is a reward because now she can get the higher status of being a wife, apparently the man is not too bothered about it. Not sure if Clavell is any reliable tho.

    Anyway my impression is that it sounds like a system optimized for denying sexual choice to normal women while allowing pretty much everything else, prostitution, buying and selling concubines, lots of things that would make a Victorian blush. Unlike Victorian culture, not prudish about sex in general, just making sure normal women have no choice. Everything else basically OK. This seems to be my impression, but I know little.

    • spandrell October 29, 2018 at 17:07

      Concubines were junior wives, and had rights as such. You got the Big Stick if you messed with someone elses concubine.

      But yes, prostitutes were fair game, of course. And there were no shortage of those. But it wasn’t *that* common either.

  5. pwyll October 29, 2018 at 16:37

    Typo, 1st paragrah: I believe “You can sleep with whoever you want and the state authorities, nor most people”
    …should be…
    “You can sleep with whoever you want and neither the state authorities, nor most people”
    (feel free to delete this comment)

  6. pwyll October 29, 2018 at 16:38

    Another typo, second paragraph. I think “the father belong that” should be “the father before that”. (again, feel free to delete this comment.)

  7. Pingback: Patriarchal Sexual Law | Reaction Times

  8. sfoil October 29, 2018 at 21:59

    This seems like about the right post to ask: what’s the deal with high-status Asians taking professional entertainers/actresses as wives? There are modern examples, but I recall you mentioning some of the emperors doing this as well, so this isn’t some modern degeneration. Obviously there is a tradition of concubinage (which basically doesn’t exist in Christendom, nor really in Antiquity) so maybe the “wives” were much lower status than strictly-monogamous European equivalents.

    Things have changed recently but marrying an entertainer seems to have ranged from gauche to completely unacceptable among Europeans with even a pretense of elite status for almost the entirety of recorded history. There was something of a niche for “courtesan” types but I don’t think that’s what is going on. Were the Chinese more strict about separating entertainers from prostitutes? Did the nature of Imperial legitimacy make political/dynastic marriages pointless? Were these women “hobbyists” rather than professionals (e.g. formal dancing, chamber music)? Am I just completely off base? Interested in your thoughts.

    • spandrell October 30, 2018 at 04:52

      Apparently concubinage was common in Ancient Greece, so there’s that.

      I guess you recall me mentioning Han Wudi’s wife? That was 100 BC; can’t really remember any entertainer becoming an imperial concubine after that. There’s Xi Jinping today, hah. Maybe he plans to be a great conqueror like Wudi.

      Taking an entertainer was a concubine was pretty gauche in China too; but there seems to have been a culture of “men will be men”, while in Europe public opinion had a much larger input from women. Ditto about dress and morality in general.

      • sfoil October 30, 2018 at 23:02

        “there seems to have been a culture of ‘men will be men’, while in Europe public opinion had a much larger input from women”

        I think that’s the answer I was looking for. I skimmed the Wikipedia lists of empresses and imperial concubines, and the page for Han Wudi’s wife was the only one that indicated she was a professional entertainer (interesting note: no one has gone through those pages to change BC/AD to BCE/CE, which I suspect indicates Sinology’s continuing academic unfashionability), with a few references to non-professional pastimes for other women. I assume that if a bigshot saw a dancer he wanted she would be a concubine (but not a notable one) rather than a mistress. Chinese concubines might have generally enjoyed higher social status but less “liberty” than Western mistresses, and the former is frankly polygamous while the latter exists on the fringes of basically monogamous customs, but they’re generally comparable making the usual allowances for East/West differences.

        Most of the examples I can think of of are modern (like Mao) and/or merchant types (businessmen taking former minor singers and starlets as trophy wives etc). My extrapolation into legacy elites was in error based on your one data point, poorly remembered.

        My impression is that Greek concubinage was vestigial at most by the Classical Period (“ancient Greece” in popular imagination) but I’ve never really researched it.

    • Rollory October 30, 2018 at 22:58

      The Empress Theodora (Justinian’s wife) was a prostitute and a stage actress, from what I remember.

      • Karl October 31, 2018 at 18:27

        Probably slander, although Theodora was not noble by birth.. She was hated by Prokop who claimed that she had commited almost any possible misdeed, especially sexual misdeeds.

        • CW November 2, 2018 at 20:41

          Theodora being a former actress is verified in all primary sources about her. Whether she was the dirtiest whore in the Empire who knows though actresses were generally though to at least sometimes practice prostitution until really the 20th century.

          Also Justinian had to change the Augustan law about men of high orders marrying infames women before they got married (before Augustus it wasn’t all that uncommon in the West for rich men to marry their favorite whore either, it was common enough that Augustus thought he needed to outlaw it).

          • Candide III November 3, 2018 at 20:34

            it was common enough that Augustus thought he needed to outlaw it

            Was it? Rich and powerful Romans might keep infames as lovers, but they wouldn’t have thought to marry them. The intent of Lex Julia of 18-17 BC, and of subsequent Lex Papia Poppaea of 9 AD, was to encourage reproduction, especially in the higher classes. One approach was to penalize bachelors and childless families in rights of inheritance and testaments. Another was to specifically empower fathers and husbands to punish trespassers on their daughters and wives’ chastity (i.e. adulterers) — incidentally one provision was that a husband who didn’t put away his adulterous wife in the three days provided by law could be prosecuted as a pimp, this is analogous to the Qing clause on selling the adulterous wife to the adulterer. Yet another was to extend the set of eligible brides. I gather that before Lex Julia nobiles (knights and senators) had to marry nobiles, but the law allowed them to marry commoners and (for knights) even freedwomen — i.e. it extended eligibility to everybody except slaves, infames, and freedwomen if you were a senator.

  9. maieuticinitiate October 30, 2018 at 14:00

    Probable typos:
    “The difference is start between a legal code (…) 1300 years our present day” might be “The difference is STARK (…) 1300 years AND our present day”.

  10. Drako L Bluewing November 1, 2018 at 18:24

    This is a preferable alternative to modern day sex laws.

  11. Pingback: Patriarchal Sexual Law | The Monthly Truth Seeker.

  12. iPod(whynobodybuysthemanymore?) November 3, 2018 at 16:32

    A kindergarten teacher who love learning and experiencing new things. Currently studying to be a Master of Education.

    I am proud to be Indonesian and would love to meet open-minded people with broad knowledge.

    If you think I’m pretty, smart and fun, you’re right ;)

    Looking for intellectual mind and polite gentleman.

    80% of online profiles aren’t above that. 30% are below, in facts.

    Could sticks (small, mid-size, large) and law turn self-aggrandizing shells apt at deception and self-deception into, well, thoughtful, self-conscious, meaning-seeking living beings?
    No.
    So, what would the use of sticks and laws (these too, small, mid-size, and big alike) be?

    To “own” “your” woman? You don’t own humans by obligation, you own them through seduction — hypnosis in facts. And it’s temporary, as we know.
    And, as many a real psychology book says, it’s the hypnotised who leads the hypnotizer, because the latter is forced to make the first do what the first wanted to do in and of themselves — but they didn’t want to know that they wanted it.
    See what a tool the seducer is.

    (Same for crowd charmers, elected officials, and so on. Wanna get elected? Then you can’t own a Ferrari — unlike all your peers, who, not having to be liked, don’t have to not be envied).

    The sole case where I’d talk of a “win” in the commerce between the sexes is when you make her long for you and leave. So even the “win” is pitiful, no beauty in sprinkling other lives with disillusion and rue (although superficial they are, and quick to fade).

    And anyway, while stomaching the online profiles I do stomach daily, I can’t help but remind myself that they are the way they are because men have selected their type over time.
    Very deceptive woman chosen over less deceptive woman.
    Self-objectifying woman chosen over half-self-objectifying woman.
    Cimpletely thoughtless liked way better than mostly thoughtless, which in turn will be far more in demand then the exceptionally half-thoughtful one.

    Human natural selection is awesomely democratic: what’s on the market is what a wide majority prefers.
    That they don’t know their preferences is another matter.

    (The same is true of commercial ads for example, or marketing communication altogether: yes, there’s no room for non-deception there, but why? Because a very wide majority of consumers will be merciless towards the non-deceptive ad, product spec sheet, and company.)

    I mean… it’s all right.

    • Rhetocrates November 6, 2018 at 00:45

      Sex laws aren’t about making you a better man or her a better woman.
      Sex laws are about making it a better society despite the fact that it has bad men and women in it, by showing those who might be tempted to follow bad behaviour why they shouldn’t.

    • Wency November 7, 2018 at 14:54

      “men selected their type over time”

      This is partly true, but keep in mind that online profiles also consist of women (and men) who have not been selected. I know good women who used online dating; most abandoned it very quickly, often in a matter of days or weeks, as they were either snapped up by discerning men or utterly disgusted by the crude come-ons with which they were bombarded.

      The women who are left online are those who are not snapped up (whether due to having little to offer, unrealistically high expectations, a tendency to drift in and out of relationships, or all of the above), and who have high tolerance for the come-ons, possibly because they’re responding to some of them.

  13. james November 4, 2018 at 03:44

    Hilarious. So well ordered.

  14. ChineseNerd November 9, 2018 at 01:33

    姦 means adulterer/adultery.It has a pretty bad connotation, with 姦 is used in a lot of swear words as a stand in for “fuck”. 姦你媽(Gan Ni Ma) is often used in 臺語(Hokkien). It is often translated as “fuck your mom”, however it more literally means “You’re mom is an adulterer” and should be more appropriately translated as “You’re mom’s a whore.” Simplified versions of 姦 are used in 汉奸/漢奸 meaning traitor or backstabber to the Han Race. This may clear things up about the “fornication” part. It more means adultery than sex. My chinese is not good either, but I have a decent grasp of connotation thanks to my grandparents and this was a word that carries a lot of meaning in China.

    • J November 9, 2018 at 16:37

      Pardon my English, but 犯姦 sounds more like rape than fornication. That is why the punishment is so barbaric. There is no fornication with a girl under 12, it is rape, as Spandrell said. Of course, meanings change in time.

    • Candide III November 9, 2018 at 19:56

      The 清 law book is in 文言, though, not in vernacular, and that makes a difference. 大漢和辞典 gives the following meanings of 姦:

      1. Evil, illegal. 2. Bad. 3. Bad person. 4. To feign. 5. To steal, to misappropriate. 6. To trespass (干, 犯). 7. Disturbance (e.g. revolt). 8. To be intimate with a woman: 姦、婬也。 9. In Korean texts, attractive (sic): 姦、高麗用中国書獨以姦為好字。 10. Same as 奸.

      Most of the compounds listed with 姦 have nothing to do with sex, relying on meanings 1-7. 婬 is almost the same as 淫.
      For 奸, it gives much fewer meanings:

      1-1. To have illicit intercourse: 奸、犯婬也、从女干聲。 1-2. To trespass (干). 1-3. Disturbance. 1-4. (obs.) To desire. 1-5. Same as 姧. 2-1. To commit lewd acts: 奸、犯淫也。 2-2. Same as 姦.

      And, probably just to get a rise out of the poor student using the dictionary, for 姧 it gives:

      Same as 姦.

    • spandrell November 14, 2018 at 04:23

      Fornication just means “illicit sex”, i.e. all sex not between married people, which is exactly what 姦 means in Chinese legal texts.

  15. Daniel Shore November 13, 2018 at 00:31

    Wonder how the PUA’s would respond to this.

    Interesting to note the above is almost identical to Islamic sexual law, even down to the lashings, the banishment, the capital punishments, and, loosely speaking , the ‘concubines’. The only significant difference is in Islam death is prescribed for any adulterer, and not just the public official/military class cases.

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