Sex, Marriage and Family in World Religions (89 page)

1. Everyone who has sexual relations with a member of the same clan who is not within the degrees of mourning,35 or with the wife of a relative beyond the 426

degrees of mourning, will receive 100 strokes of the heavy bamboo.
(If there is
force, the offender will be beheaded with delay.)
2. If one engages in illicit sexual intercourse with
(a paternal or maternal)
relative of the fifth degree and above, with the wife of a relative of the fifth degree or above, or with the daughter of the wife’s former husband, or with his sisters of the same mother [as himself but] a different father, the punishment is 100 strokes of the heavy bamboo and three years of penal servitude. If there is force,
(the male offender)
will be beheaded
(with delay)
. If there is illicit sexual intercourse with the paternal grandmother’s father’s brother’s son’s wife, or the paternal grandfather’s sister, or the wife of the paternal grandfather’s father’s father’s brother’s son’s son, or a daughter of the paternal grandfather’s father’s father’s brother’s son, or daughters of the father’s brothers, or the mother’s sisters, or wives of brothers, or the wives of the brother’s sons
(the
offending man and woman)
will each be sentenced to strangulation
(with [immediate] execution)
. It is only in the case of illicit sexual intercourse with a paternal grandfather’s sister or the daughter of a paternal grandfather’s father’s father’s brother’s son who have left the family by marriage that there is execution with delay. If there is force,
(then the offending man is)
sentenced to beheading
(with [immediate] execution. It is only in the case of rape of the daughter of the
paternal grandfather’s father’s brother’s son’s son or father’s brother’s son’s daughter or brother’s son’s daughter who have been married, and thus reduced the degree
of the mourning relationship, that there will be beheading with delay. If there is
illicit sexual intercourse with the natural mother of the wife, then to award [the
penalty] as for a relative of the fifth degree is too light, so sentence as for the
sisters of his own mother.)
3. If someone engages in illicit sexual intercourse with the concubine of his father or paternal grandfather, or with the wife of the elder or younger brother of the father, or with a sister of his father, or with his own sisters, or with the wife of a son or son’s son, or with the daughter of a brother, the
(male and
female offenders)
will be beheaded
(immediately)
. If it is rape, the rapist will be immediately beheaded.

4. Everyone who engages in illicit sexual intercourse with a concubine
(of
one of the formerly mentioned [male] relatives)
will receive a punishment reduced one degree
(from that for engaging in illicit sexual intercourse with a
wife)
. In the case of rape, he will be strangled
(with delay. The question of
whether the wife or the daughter receives the same penalty or not, as well as
whether or not the act was consummated, whether there was a broker, whether
there were those who tolerated and facilitated the act, will be decided according
to the article on illicit sexual intercourse [Art. 366]. However, sons or daughters
born of illicit sexual intercourse in the same clan are not to be entered in the clan
register. It is permitted to register them in any other part of the register [presum-ably parts reserved for base persons]).

[From
The Great Qing Code,
trans. William C. Jones (Oxford: Clarendon, 1994), pp. 347–350, modified]

Confucianism
427

ADVICE TO LOCAL OFFICIALS ON HANDLING

SEXUAL OFFENSES

Huang Liuhong (b. 1633) passed the provincial level civil service examination in 1651 and in 1670 received his first appointment as a county magistrate. He had a long and successful career, and by the 1690s he was serving in the capital.

While ill in 1696 he dictated a manual for local officials, titled
A Complete
Book Concerning Happiness and Benevolence (Fuhui quanshu)
. It offered practical advice on everything a new degree holder would need to know when taking up office, from collecting taxes to handling lawsuits, performing ceremonies, and providing famine relief. The book served a real need and quickly gained wide circulation. Below Huang discusses how to handle sexual offenses, interpreting the statutes for his readers and offering the benefit of his experience.

Document 6–21

i l l i c i t s e x u a l i n t e r c o u r s e : g e n e r a l d i s c u s s i o n Illicit sexual intercourse is the result of unsuppressed passion between man and woman. When it is rampant among the people, good social customs suffer.

When it is unsuppressed, society’s moral principles deteriorate.

Licentious customs are easily developed through the maintenance of intimate contact between the sexes. The enforcement of strict separation between males and females is the foundation of the cultivation of proper conduct. It is important therefore for those who rule over others to teach them that men and women should be segregated and that marriages should take place at proper times. A girl ten years old should not eat at the same table even with her brothers. Boys and girls must sit on separate benches. Male and female relatives should not mingle and dwellers of inner and outer apartments should never meet except on ceremonial occasions. Male servants young and old should not enter the inner gate unless summoned. Female go-betweens, mediums, quacks, or procuresses should be banned from the home so that they will have no chance to swindle and seduce the womenfolk. Young women should not be permitted to visit temples on the pretext of burning incense or to indulge in outings and wanderings in springtime. Local elders and village headmen should be instructed to oust licentious women or prostitutes in their localities when they are found, and, with the parents’ assistance, to teach frivolous and dissipated youths to mend their ways and perform useful work. If these steps are taken the avoidance of contacts between sexes can be expected to help reduce the chances for lewd dalliance and suppress the spread of licentious habits.

Members of rich and prosperous families develop lascivious habits because they have leisure time on hand, while those of indigent families are oblivious to a sense of shame because they are ignorant and have to strive for a living.

428

Many iniquitous and vicious individuals develop lustful desires as soon as they see a pretty face, and some dissipated and unstable youths forget to conduct themselves properly when they have a glance of an attractive woman.

When men flirt with females and use lewd expressions and clever language to consummate illicit liaison, their actions are called illicit sexual intercourse by consent. When individuals use stratagems and deception to achieve their lustful purpose and thus ruin the reputation of faithful wives, these crimes are called illicit sexual intercourse by intrigue. When wicked persons carrying weapons forcibly violate the bodies of females by breaking into their dwellings, their actions are called rape. The most shameless situation is the one in which a husband knowingly allows a man to commit adultery with his wife and he himself becomes a spectator of his cuckoldry. There are also cases in which because of poverty or jealousy a woman seduces a man and later accuses him of rape in order to cover up her guilt. Such cases start with illicit sexual intercourse and end with false accusation of rape.

Although there are all kinds of illicit sexual intercourse cases, they can be largely divided into illicit sexual intercourse by mutual consent and rape. Despite this simple difference, the nature of the crime varies according to the relationship between the culprits and the victims—whether the crime is committed between relatives, between people of different social standing, or between government officials and common people. In each case the punishment is different. . . .

Under the Penal Code on illicit intercourse by mutual consent between a man and an unmarried woman, both parties shall be punished with seventy blows; between a man and a married woman, both parties shall be punished with eighty blows. In illicit intercourse between a man and a female under twelve years of age, the man shall be punished as a rapist in all cases.

Persons abetting or conniving at meetings of parties guilty of illicit intercourse shall suffer the punishment next in degree, as usual in the case of accessories.

For illicit intercourse between relatives, the offenders shall be punished with 100 blows, three years of penal servitude, or even with strangulation, depending upon the relationships of the offenders and the circumstances under which the crimes were committed. For illicit intercourse with someone’s concubine, the offenders shall receive a punishment reduced by one degree.

A slave or an indentured servant who has illicit intercourse with his master’s wife or daughter shall suffer decapitation and so shall the woman. If a slave or an indentured servant is guilty of illicit intercourse with his master’s relative within the fourth degree, he shall suffer strangulation and the dissolute woman shall be punished one degree less.

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For civil or military officers of government and their official clerks and at-tendants guilty of illicit intercourse with the wives or daughters of the inhabi-tants under their jurisdiction, the punishment shall be two degrees more severe than in ordinary cases between equals; they shall also be deprived of their offices and employment. The woman, if consenting, shall be punished for such consent only as in ordinary cases.

In the case of an official who commits illicit intercourse with a woman prisoner, since he has used his power of office to achieve his purpose he is subject to the penalty of three years penal servitude. The female prisoner may be left with no choice but to submit; therefore, she shall not be subject to any aggravation of the punishment to which she was previously liable. But the crime is not considered a rape on the part of the offending official, because only female criminals who have committed murder or other serious crimes are condemned to death and confined in prison. They are not ordinary free citizens, hence illicit intercourse with them cannot be considered rape.

A slave who is guilty of illicit intercourse with the wife or daughter of a freeman shall be punished one degree more severely than a freeman would be under the same circumstances. On the other hand, the punishment of a freeman for having illicit intercourse with a female slave shall be one degree less than in ordinary cases.

Among all sexual crime cases, only the crime of rape is punishable by death.

The trial of rape cases should, therefore, be carried out with utmost care for fear of condemning innocent people to death. Rapes are accomplished by the use of force, either by threatening with knife or ax when the victims have no way to resist, or by using ropes to tie up the victims, leaving signs of struggle such as wounds on the body or torn clothes. Only under such circumstances are the criminals convicted of rape and subject to the death penalty.

If illicit intercourse is committed by the use of force at the beginning, but the woman acquiesces at the end, or if during the commission of the crime she yells and struggles at first but accedes to the will of her violator when the act is successfully carried out, the crime cannot be considered rape.

If a woman commits illicit sexual intercourse by consent with a person and is discovered by another who then uses force to have illicit intercourse with her, the crime cannot be considered rape, since she is a dissolute woman in the first place. The case should be considered as a case of illicit sexual intercourse by intrigue.

There are cases in which vicious individuals, admiring the beauty of certain women, satisfy their carnal desires by bribing lewd procuresses or immoral nuns to induce the woman to attend festivals or go to the temple to burn incense, and by putting drugs secretly into their drinks rendering these women uncon-430

scious so the ravishers can satiate their lust. Such crimes may not involve the actual use of force or physical restraint on the victims, yet they are consummated by the use of tricks and drugs and cannot be considered anything but rape. The principals of these crimes should be punished as rapists, while the procuresses or nuns who connived with them must be punished as accessories of rapists. If the rape is unconsummated, the offender shall receive 100 blows and exile to a distance of 3000 li, the punishments commensurate to the crime.

There are also cases in which a husband at first consents to the illicit sexual intercourse of his wife or concubine and then orders her to accuse the man of rape afterward. In some instances the woman yells loudly for help in the room and the man flees, leaving his clothes behind. On other occasions the husband waits for the man outside and ambushes him with weapons before he has a chance to escape. When such cases are brought to the court, can the magistrate declare that they are all rape cases indiscriminately?

In such cases it is quite possible that the husband accuses the adulterer of rape because he wants to stop the liaison between his wife and the man and to cover up his past permissiveness. The woman pleads the same because she is afraid of her husband and, incidentally, can maintain her innocence and pre-serve her reputation of fidelity. The clothes left behind by the adulterer may represent either a trick played by the woman or a struggle, and the ambush may be a clever maneuver to entrap an unwary person. There will be grave injustice if all such cases are considered rape.

As to the proof of illicit sexual intercourse, the statute provides that there shall be no conviction for illicit intercourse unless the participants are caught in the act; conviction cannot be obtained simply because someone states that it has taken place. Since the statement of a third party is not valid proof, conviction cannot result from it.