Sex, Marriage and Family in World Religions (91 page)

There are also cases in which a woman screams rape in her room in the daytime or at night and the husband turns up suddenly to catch the rapist. This is probably a trick to frame an enemy by using one’s wife as bait. It is just too coincidental for the husband to turn up at just the right moment. The sitting magistrate confronted with such a case should investigate most carefully to determine the authenticity of the complaint and avoid passing a death sentence on an innocent person.

It is most important for the magistrate to maintain a solemn attitude in the court during illicit sexual intercourse trials. He will be well advised to avoid the use of imprudent expressions or scornful language simply because these cases involve licentious matters. The magisterial court is the focal point of attention of the whole district and illicit sexual intercourse cases have a bearing on the customs of society. The slightest flippancy by the sitting magistrate, who is supposed always to promote morality, will undermine decent social custom.

When interrogating a woman offender, the magistrate should never order her to go near the dais or talk to her in a hushed voice, and should avoid staring at her, lest people laugh at him behind his back and create a scandal. When preparing the statement of decision, the summary of depositions, and so on, frivolous expressions and playful words should be avoided. Otherwise the local gentry will consider the magistrate lacking in seriousness and his superiors will deem him untrustworthy.

In trials of illicit sexual intercourse cases, only the women directly involved are interrogated. Care should be taken to avoid the unnecessary involvement 436

of other women because it would create situations detrimental to the normalcy and tranquility of society.

[From Huang Liu-hung,
A Complete Book Concerning Happiness and Benevolence,
trans. Djang Chu (Tucson: University of Arizona Press, 1984), pp. 431–43, modified]

QING LEGAL CASES CONCERNING

SEXUAL OFFENSES

To see how judges interpreted the statutes on illicit sexual intercourse, below are eight cases, classed under three statutes. They are from the
Conspectus of
Legal Cases (Xing’an huilan),
compiled by Zhu Qingqi and Bao Shuyun in 1834. The work contains over 5,650 cases, most of them from the period 1784– 1834. Both compilers served for years in the Board of Punishments and put together this work to provide officials with a handy body of precedents.

Document 6–22

x i n g ’ a n h u i l a n

The governor-general of Zhili has reported a case in which Fan Youquan tried unsuccessfully to rape a girl of fourteen, Li Erjie. In view of the girl’s youth and immaturity, Fan feared the rape would be difficult to carry out. He therefore started by thrusting his finger into her vagina, causing flow of blood.

The girl and her father both maintain that the rape was unachieved, and a midwife who has examined the girl likewise attests her still to be a virgin. The governor-general has accordingly sentenced Fan Youquan to exile [at a distance of 3,000 li] under the statute on attempted but unsuccessful rape. This sentence being in accord with the facts, it is appropriate to request a confirmatory reply.

The governor-general of Zhili has memorialized concerning a case in which Zhang Wentong, perceiving the clear white countenance of Zhao Daoqi, a boy of twelve, decided with Shi Jincai to commit successive sodomies upon the boy.

The act was achieved.

By analogy to the substatute on successive consummated rapes by more than one man of a respectable woman, Zhang Wentong, as ringleader, is now sentenced to immediate decapitation, and Shi Jincai, as accomplice, to strangulation after the assizes.

t o l e r a t i o n b y a h u s b a n d o f a w i f e ’ s o r c o n c u b i n e ’ s i n fi d e l i t y

The governor of Henan has reported a case in which Wang Heigou sold his wife to Li Cunjing to become the latter’s wife.

Confucianism
437

Investigation shows that Wang’s act was prompted by poverty and illness, which gave him no alternative. Thus, it differs from the selling of a wife done without due cause. His wife, moreover, has no natal family to which to go, so that were her marriage dissolved as provided by statute, this would be detrimental to feminine morality.

After careful consideration of the circumstances, this Board finds that the wife should be permitted to remain with the second husband Li Cunjing, and that Wang Heigou should not be required to surrender the gift-money paid to him.

The general commandant of the gendarmerie of Beijing reported and transferred to this Department a case in which Qu Da seized and had sexual relations with the wife of Chen Wu. In this case, Qu Da has accordingly been sentenced to life exile for forcible seizure of a woman.

Remaining for consideration is the fact that the husband, Chen Wu, tolerated the relationship of his wife with Qu Da, which according to the relevant substatute, properly means that her marriage with Chen ought to be dissolved.

It also appears, however, that Chen’s toleration of the affair sprang from fear of Qu Da’s strength and fierceness and was thus dictated by coercion. Moreover, according to what Chen Wu himself says, were his children to remain solely in his care after dissolution of the marriage, his straitened circumstances would make it impossible for him to care for them alone, so that the consequences would be disastrous.

Consideration of the basic circumstances leads us to the decision that both Mrs. Chen and the children should return to her husband and resume living with him.

The Censorate of the North City of Beijing has transferred to this Department a case involving Qiu Gui, who was originally the wife of Wang Bao. Wang, because of poverty, arranged with his wife’s father to fabricate a report that he, Wang, had died, so that he might in this way sell his wife as a concubine to Pan Shoulin. Later, however, when Fan learned the facts, Pan’s own wife reviled and beat Qiu Gui, who ran away.

Under the statute concerning the buying or selling of a woman, Wang Bao, Pan Shoulin, and Qiu Gui are each to receive 100 blows of the heavy bamboo.

The Censorate of the North City of Beijing has transferred to this Department a case in which Yang Jingrong sold his wife through a go-between to Li Tingzhi, who took her as his wife in ignorance of the fact that she already had a husband.

In accordance with the statute on selling women, the first husband, Yang, and his wife are both to receive 100 blows of the heavy bamboo. His wife, however, is to continue living with her new husband, Li.

The governor of Shandong has reported a case in which Zhang Yongbao had sexual relations with the daughter of his fifth-degree younger cousin, Zhang Yongchao. When the affair was discovered, the girl committed suicide.

438

Zhang Yongbao is now sentenced to 100 blows of the heavy bamboo and three years penal servitude, this being the penalty provided by substatute for a man whose fornication with a consenting woman, on being discovered, leads to her committing suicide out of shame. Furthermore, he is to wear the cangue for 40 days, as specified in the substatute which adds this punishment to the basic penalty for fornication, when such occurs between members of the same clan whose relationship to each other lies beyond the five degrees of mourning.

The governor of Shanxi has memorialized concerning a case in which Mrs.

Li nee Zhang, after having been widowed for many years, happened to hear of someone getting married in her neighborhood, which so aroused licentious thoughts in her that she enticed Li Mingze, a son of her deceased husband through a former marriage, to have sexual relations with her.

Li had been reared by Mrs. Li during his childhood, and in allowing himself nonetheless to be enticed by her, he showed complete disregard for her status as a stepmother. Both persons are thus equally guilty of a licentious behavior destructive of the primary human relationships. The Code, however, [rather surprisingly] contains no article dealing with sexual relations between a son and his stepmother. Therefore Mrs. Li and Li Mingze, subject to final approval from the throne, are both now sentenced to immediate decapitation by analogy to the statute providing this penalty for illicit sexual relations between a man and the wife of his paternal uncle.

[From Derk Bodde and Clarence Morris,
Law in Imperial China Exemplified by 190

Ch’ing Dynasty Cases
(Cambridge: Harvard University Press, 1967), pp. 427–433, modified]

CHEN DUXIU ON THE WAY OF CONFUCIUS AND

MODERN LIFE

Chen Duxiu (1879–1942) was a founder of and frequent contributor to
New
Youth,
the magazine that launched the New Culture movement in 1915. Chen had studied in both Japan and France and on his return advocated that the young take history into their own hands. They should break with stagnant old ideas that stood in the way of modern life, with its principles of equality and human rights. In 1917 Chen became dean of the College of Letters at Peking University. The article below appeared in December 1916.

Document 6–23

The pulse of modern life is economic, and the fundamental principle of economic production is individual independence. Its effect has penetrated ethics.

Consequently, the independence of the individual in the ethical field and the independence of property in the economic field bear witness to each other,
Confucianism
439

thus reaffirming the theory [of such interaction]. Because of this [interaction], social mores and material culture have taken a great step forward.

In China, the Confucians have based their teachings on their ethical norms.

Sons and wives possess neither personal individuality nor personal property.

Fathers and elder brothers bring up their sons and younger brothers and are in turn supported by them. It is said in chapter 30 of the
Record of Ritual:
“While parents are living, the son dares not regard his person or property as his own”

[27:14]. This is absolutely not the way to personal independence. . . .

In all modern constitutional states, whether monarchies or republics, there are political parties. Those who engage in party activities all express their spirit of independent conviction. They go their own way and need not agree with their fathers or husbands. When people are bound by the Confucian teachings of filial piety and obedience to the point of the son not deviating from the father’s way even three years after his death36 and the woman not only obeying her father and husband but also her son,37 how can they form their own political party and make their own choice? The movement of women’s participation in politics is also an aspect of women’s life in modern civilization. When they are bound by the Confucian teaching that “To be a woman means to submit,”38

that “The wife’s words should not travel beyond her own apartment,” and that “A woman does not discuss affairs outside the home,”39 would it not be unusual if they participated in politics?

In the West some widows choose to remain single because they are strongly attached to their late husbands and sometimes because they prefer a single life; they have nothing to do with what is called the chastity of widowhood. Widows who remarry are not despised by society at all. On the other hand, in the Chinese teaching of decorum, there is the doctrine of “no remarriage after the husband’s death.”40 It is considered to be extremely shameful and unchaste for a woman to serve two husbands or a roan to serve two rulers. The
Record of
Ritual
also prohibits widows from wailing at night [27:21] and people from being friends with sons of widows. For the sake of their family reputation, people have forced their daughters-in-law to remain widows. These women have had no freedom and have endured a most miserable life. Year after year these many promising young women have lived a physically and spiritually abnormal life.

All this is the result of Confucian teachings of ritual decorum.

In today’s civilized society, social intercourse between men and women is a common practice. Some even say that because women have a tender nature and can temper the crudeness of man, they are necessary in public or private gatherings. It is not considered improper even for strangers to sit or dance together once they have been introduced by the host. In the way of Confucian teaching, however, “Men and women do not sit on the same mat,” “Brothers-and sisters-in-law do not exchange inquiries about each other,” “Married sisters do not sit on the wine neat with brothers or eat from the same dish,” “Men and women do not know each other’s name except through a matchmaker and 440

should have no social relations or show affection until after marriage presents have been exchanged,”41 “Women must cover their faces when they go out,”42

“Boys and girls seven years or older do not sit or eat together,” “Men and women have no social relations except through a matchmaker and do not meet until after marriage presents have been exchanged,”43 and “Except in religious sacrifices, men and women do not exchange wine cups.”44 Such rules of decorum are not only inconsistent with the mode of life in Western society; they cannot even be observed in today’s China.

Western women make their own living in various professions such as that of lawyer, physician, and store employee. But in the Confucian Way, “In giving or receiving anything, a man or woman should not touch the other’s hand,”45

“A man does not talk about affairs inside [the household],” and a woman does not talk about Affairs outside [the household] and “They do not exchange cups except in sacrificial rites arid funerals.”46 “A married woman is to obey” and the husband is the mainstay of the wife.47 Thus the wife is naturally supported by the husband and needs no independent livelihood.

A married woman is at first a stranger to her parents-in-law. She has only affection but no obligation toward them. In the West, parents and children usually do not live together, and daughters-in-law, particularly, have no obligation to serve parents-in-law. But in the way of Confucius, a woman is to “revere and respect them and never to disobey day or night,”48 “A woman obeys, that is, obeys her parents-in-law,”49 “A woman serves her parents-in-law as she serves her own parents,”50 she “never should disobey or be lazy in carrying out the orders of parents and parents-in-law.” “If a man is very fond of his wife, but his parents do not like her, she should be divorced.”51 (In ancient times there were many such cases, like that of Lu You [1125-1210].) “Unless told to retire to her own apartment, a woman does not do so, and if she has an errand to do, she must get permission from her parents-in-law.”52 This is the reason why cruelty to daughters-in-law has never ceased in Chinese society.