Sex, Marriage and Family in World Religions (90 page)

Someone may ask whether a couple could be considered as committing illicit sexual intercourse when they are caught indulging in an obscene embrace and voluptuous kissing, just short of actual intercourse. The statute on killing a man who has engaged in illicit sexual intercourse provides that when a woman is discovered by her husband in the act of illicit sexual intercourse, if the husband kills the adulterer, the adulterous wife, or both in the act, he shall not be subject to punishment. A note attached to this statute provides that if the guilty parties are not caught in the act, the husband who kills either of them shall not be protected by this statute. This means that under such circumstances the law concerning killing the adulterer in the act does not apply. Indulgence in obscene embraces and voluptuous kissing, short of actual intercourse, is a crime punishable under the statute covering lewd dalliance. Whether the husband wants to prosecute the pair or not remains his choice.

Someone may inquire whether, since the husband must be the one to catch the adulterer in the act, the woman’s father-or mother-in-law, her husband’s uncles, or brothers are ineligible to expose such a crime. Suppose the husband
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has to leave home for a long time, who is there to restrain a adulterous wife from indulging in shameless and licentious conduct? A note attached to the statute provides that the husband’s brothers, relative with mourning obligations, people living in the same household, and people having the responsibility for performing such duties are all eligible to catch the adulterers. If anyone among the woman’s parents, uncles, aunts, brothers, sisters, or even maternal grandparents wounds or kills the adulterer on the spot, he or she enjoys the same immunity the husband would have. The only injunction is that a junior relative should not kill a senior relative; if that happens, the culprit should be punished according to the statute on killing by intent. On the other hand, if a senior relative kills a junior relative under the same circumstances, he shall be punished according to the degree of closeness of their relationship. Therefore the husband is by no means the only one eligible to catch his wife’s adulterer. . . .

Someone may pose the following question: Suppose there is a woman who has no senior relative and whose husband leaves home for a distant place; the woman lives in an isolated dwelling and her paramour comes and leaves without inhibition; she may have sons or nephews, but being junior relatives they cannot take action. Under such circumstances should the law permit such licentiousness to continue, affronting decent social custom?

The answer is that there must be neighbors and villagers who, detesting the woman’s open debauchery, could catch the adulterer on the spot with the village headman and the local elders as witnesses. Fired by righteous indignation, they might even kill the adulterers on the spot. In such a case it would be inappropriate to treat them as a third party and punish them according to the statute on killing in an affray. Since the village headman and local elders have the responsibility of advising and controlling the local population, they cannot be considered outsiders, but “persons having the responsibility to perform such duties.” From this we can conclude that the law on illicit sexual intercourse is very stern toward the offenders.

Some say that because the statute on illicit sexual intercourse by mutual consent punishes the offenders with flogging only it is too lenient and fails to inhibit violations. I am of the opinion that the statute on illicit sexual intercourse by mutual consent is by no means too lenient. We must admit that sexual desire is universal and no one is immune from it. Only by observing the principles of propriety can a cultivated person refrain from indulging in it. There are occasions when mixed company is traditionally permitted; these are the occasions when flirtations between men and women get started. Many social gatherings where large numbers are present provide opportunities for licentious couples to arrange appointments for trysts. Secluded pavilions and deserted corridors where privacy can be expected become places for practicing carnal knowledge. If Draconian laws are applied to such offenders, many young and beautiful lovers will have to forfeit their lives. Therefore when the ancients enacted the law, they considered human feelings. The principle of propriety is 432

used to govern the conduct of gentlemen and gentlewomen, while the law is used to control the behavior of the common people. Lustful behavior and shameless conduct are manifestations of the animal instinct. The fact that the penalty for illicit sexual intercourse by consent is limited to flogging is based on the idea that lowly people, like animals, are so stupid that they are unworthy of reprimand.

As to the sexual crimes that violate the order of consanguinity or good social custom, such as the crime of incest between close relatives, the offenders shall be subject to strangulation. Even if the crime is unconsummated, the offenders shall be subject to flogging and exile. In the case of a slave having illicit intercourse with his master’s wife or daughter, even by mutual consent, the slave shall be beheaded and the woman strangled. This shows that not all offenders in illicit sexual intercourse cases can get away with merely being flogged.

Why does the statute provide a heavier penalty for rapists than any other sex offenders? When a sexual act is forced on a woman, an innocent and chaste person suffers violence and dishonor under duress. The death penalty imposed on the rapist is a means of acclaiming the virtue of chastity and discouraging debauchery of womanhood. The heavy penalty is not designed simply to punish those who use force to satisfy their animal desire.

Among relatives there is a difference between the senior and junior relatives in the order of consanguinity. If incest is committed by the use of force, the offender shall be beheaded; if the victim is a concubine, the offender shall be strangled. The same severe penalties are also applied to cases in which the offender is a slave or an indentured servant, since the crime is considered more serious than that committed by an ordinary person. If an official rapes the wife or daughter of a subordinate, the offender shall be beheaded because he has used his influence or power in committing the crime. Likewise, a father-in-law who rapes a daughter-in-law, or an elder brother-in-law who rapes a younger sister-in-law shall also suffer decapitation because the offender has used his position to coerce his junior relative into submission. . . .

There are two kinds of illicit sexual intercourse by intrigue. In one kind a woman is enticed by flattery and sweet talk of someone in the service of the adulterer to forsake her husband and leave her home to consort with the adulterer. Another kind occurs when the adulterer uses his influence to intimidate a woman into succumbing to his demand. Although in both cases the illicit sexual intercourse is committed by consent, they are essentially different from those cases in which the parties indulge in carnal knowledge as a result of mutual admiration.

In enticing by sweet talk, the go-between may trick the woman by comparing the poverty of her husband with the wealth of the other man; another may
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emphasize the old age and ugliness of her husband as against the youthful and handsome appearance of her admirer; still another may say that her husband is rough and uncouth while her admirer is considerate and tender. By nature all women are fickle and only a few can resist such temptations. To be sure, there are virtuous and chaste women who resolutely reject such proposals with stern language as soon as they are offered, and the go-between then has to retreat in shame. But if the woman listens attentively and becomes interested, she will not be able to restrain herself from falling into the trap.

When a go-between induces a woman to commit illicit sexual intercourse, there must be an adulterer behind the scheme. The magistrate must investigate thoroughly who the go-between was and where the illicit sexual intercourse took place. The penalties should go beyond the administering of the usual number of blows to each of the guilty parties; the go-between should be punished also. As to the case in which the adulterer uses his influence to intimidate the woman into illicit sexual intercourse, if she fails to reject his proposal with stern language as a virtuous woman should, and instead succumbs to his proposal, the statute governing cases of illicit intercourse by mutual consent or by intrigue provides that the man and the woman should be deemed equally guilty.

Nevertheless, if the crime of illicit sexual intercourse is committed under intimidation, it is essentially different from the illicit sexual intercourse committed as a result of mutual admiration. The woman who loses her chastity through intimidation is really a victim of the scheme initiated by the man.

Although the law does not provide a heavier punishment for the man in such a case, his behavior is contemptible when human feelings are taken into consideration. I myself feel that the man should be punished by analogy under the statute on illicit intercourse between an official and females under his jurisdiction, that punishment being two degrees more severe than an ordinary case of illicit sexual intercourse between equals. The woman should be punished as in an ordinary case of illicit sexual intercourse because she was under intimidation of the man when the crime was committed. Thus the punishment will fit the crime. This, however, is my personal opinion. I mention it here in the hope that it will serve as a deterrent to those who may attempt to commit illicit sexual intercourse by intrigue.

When a husband brings a complaint of illicit sexual intercourse to the court, he usually pleads that it was a case of rape. The magistrate must therefore carefully compare the statements made by the parties with the contents of the original written plea. He should observe the demeanor of husband and wife to see if they are really full of righteous indignation. He further observes the appearance of the accused to determine if he is really a knavish and wicked fellow and whether his testimony is over casual or evasive. The witnesses are then questioned minutely.

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If it is a case of rape, the statements in the plea will be straightforward and coincide with the oral testimony. If it is a case of illicit sexual intercourse by consent misrepresented as a case of rape, the statements in the plea will be twisted and their oral accounts ambiguous. The demeanor of the husband will not show true indignation. He will pretend indignation and will keep glancing fleetingly at his wife for fear she may say something inappropriate. The woman’s appearance will give no sign of wrath or mortification and her statement will be incoherent. During cross-examination she will contradict herself frequently.

When confronted with the accused, she will bow her head and become speech-less. This proves that the woman is still under the spell of the accused and is not entirely unmindful of their past friendship. If the appearance of the accused does not indicate a malignant personality and his answers to questions appear to be forthright and honest, and if the statements of the witnesses do not provide conclusive evidence of the use of force, it would be imprudent to decide that it is a case of rape. The witnesses are bound to have some knowledge of the affair if it was an illicit sexual intercourse by consent, and in the atmosphere of a public trial, even though they are compelled to tell the truth, they are not disposed to state arbitrarily that it was a case of rape.

Rape often occurs in isolated dwellings or lonely mountain passes where it is opportune to commit such a crime. Anticipating resistance, the offender usually brings with him a knife or other weapon to threaten the victim. During the struggle both parties are apt to have wounds on their faces or wrists. The woman’s underclothes will be torn during her resistance as the offender forces her in haste. How could an intruder burst into a village dwelling in broad daylight without a weapon, rape a woman, and leave her with no marks or wounds and no torn clothes?

There are instances when a fierce desperado commits flagrant rape by sheer brute force; the victim cannot resist his overwhelming strength or is tied up and gagged by the intruder. But if the woman is chaste and decisive and prefers to die rather than be ravished, she will yell in spite of gagging. Would no one in the neighborhood come to her rescue when they heard her yelling for help?

Those who come to help would see the scene and bear witness. Under such circumstances the verdict of rape can be passed without hesitation and no fear of miscarriage of justice should bother the magistrate.

However, if there is yelling at the beginning, but the noise suddenly stops as the neighbors begin to wonder about the commotion, this is probably a case of rape at the beginning, but the woman then acquiesces. After the man leaves the scene, the woman regrets what has happened, or as the neighbors gather to inquire about the commotion she cannot keep silent and is obliged to tell her husband tearfully that she has been raped. The husband, without knowing of the woman’s acquiescence, insists on vengeance and prosecution of the man as a rapist. This puts the magistrate in a dilemma, since he cannot put extremely
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intimate questions to the parties in public and the witnesses may be unwilling to mention in a trial that there was noise at the beginning and silence at the end. In this situation should the magistrate declare that it is a case of rape?

Under the statute, a rape which is not resisted to the end should not be considered a rape and the offender should not be subject to strangulation. The rationale of the ancient lawmakers for inserting this provision in the statute was the desire to judge a case by the offender’s intentions. For instance, when a woman is confronted with a rapist and her reputation is at stake, she will disregard her safety and yell for help. When she is under duress, her hope of rescue constantly occupies her mind. Even after the rapist departs, her yelling and wailing will continue without interruption. Despite the physical abuse, her intention of keeping her chastity prevails. On the other hand, if a woman who is forced to perform a sexual act by an intruder protests with a loud noise, but after the act is successfully consummated changes her mind and acquiesces to the violence, it means that the woman has given her tacit consent to the rapist, and the case must be considered as illicit sexual intercourse by mutual consent rather than rape. The sitting magistrate should pronounce it a case of illicit sexual intercourse by consent or a doubtful case in which the culprits are punished with reduced penalties.