From Status Performance to Gender Performance

The Confucian paradigm outlined above served as the foundation for the regulation of sexual and gender relations throughout the entire imperial era, from the Han dynasty down through the Qing.

As far as ‘coercion' was concerned, the paradigmatic crime envisioned by lawmakers in the early empire was the rape of an elite woman by an unfree labourer subordinate to her own household - a scenario not unlike the American south's paranoid fantasy of black men raping white women (which was a reversal of the true state of affairs). In contrast, elite men were entitled to have sexual relations with unfree women of their households, and nothing they did to those women counted as ‘illicit sex', let alone as rape.

According to the old status performance paradigm, the purpose of the laws against illicit sex was not to ban a particular kind of sexual act, but rather to police legally defined status boundaries so that a person's conduct conformed to the expectations of their status. Thus, for example, a free commoner woman was prohibited from sexual relations with any man other than her husband, but women of debased status were not entitled to maintain this standard of chastity. A female slave or servant could not deny her master, even if she were married. Moreover, certain categories of debased status people provided sexual services and other stigmatised forms of entertainment for a living (for example, the notorious ‘music households', yue hu), and in this context, prostitution was regulated and even taxed by the state.^{[364] [365]}

By the eighteenth century, however, China's social structure had changed dramatically, and a basic purpose of the Qing legal reforms was to update the law to fit this new social reality.1⁹ Aristocracy per se had disappeared (except for a tiny number of Manchu and Mongol nobles, who were closely con­nected to the ruling house and concentrated in Beijing); the vast majority of people were now free peasants who held land either as their own property or by contract, and who enjoyed the same free commoner legal status as their landlords. At the same time, overpopulation, shrinking farm sizes and sys­tematic discrimination against girls and women had distorted sex ratios and fostered a burgeoning underclass of men who lacked both wives and land. The rising profile of these single, landless men provoked increasing anxiety on the part of Qing officials and elites, who perceived them as a threat to social and moral order.

In the Confucian vision, the patrilineal family constituted not a collection of individuals but rather an organic stream flowing through time, from the past down into the future, in which the present generation were placeholders whose greatest duty was to continue the family line and the ancestors' incense fire. Hence, the chief purpose of marriage and of conjugal sex was to produce sons, in service to parents and ancestors. Although sex difference of course was understood, adult gender roles were defined largely in terms of the division of labour within normative marriage and reproduction: rather than ‘men' and ‘women', it might be more accurate to say that there were husbands/fathers and wives/mothers.^[366] Moreover, a fundamental tenet of Confucian statecraft was that patriarchal authority and family bonds served to socialise individuals to behave properly outside the family and to be loyal political subjects. The first chapter of the Confucian Analects tells us: ‘Those who in private life behave well towards their parents and elder brothers, in public life seldom show a disposition to resist the authority of their superiors. And as for such men starting a revolution, no instance of it has ever occurred'.^[367]

From this standpoint, the growing crowd of rogue males outside the norma­tive family system in eighteenth-century China constituted a fundamental ideo­logical and political threat to the established order. These men were known both colloquially and in legal discourse as ‘bare sticks' (guanggun) - ‘bare' in the sense of lacking the disciplining ‘roots and branches' of family ties. The term ‘bare stick' first appeared in judicial texts in the late seventeenth century and became the focus of a great deal of legislation in the eighteenth. This figure became the bogey of the Qing dynasty judiciary, which demonised him as a viciously antisocial individual and specifically as a sexual predator who threatened the chaste wives and daughters (and young boys) of ‘good' family.^[368]

The shift in legal paradigm from fixed legal statuses to gender roles defined in terms of normative family reflected the change in social structure since the early empire, as well as a broader ‘peasantisation' of Qing law to regulate the lives and reflect the concerns of ordinary people rather than those of elites.

In place of the obsolete laws, a host of new measures focused on reinfor­cing gender roles defined in terms of normative family: their cumulative effect was to envision every woman as a chaste wife and mother, and every man as a socially responsible husband and father. Under this new paradigm, the imagined rape victim was ‘a chaste wife or daughter of good commoner family' attacked by a ‘bare stick' who existed outside of the family order altogether. Case records from the eighteenth century show that rapes actu­ally prosecuted and punished by death tended to fit this scenario quite closely.

Eighteenth-century laws against rape and male-male sodomy (of which more below) targeted this ‘bare stick' for suppression, while penalties for crimes against female chastity were ratcheted up across the board. But in addition to the penal law, a parallel structure of ritual protocols promoted and celebrated female chastity with increasing scope and vigour and with a new focus on ordinary women. Just as sexual betrayal paralleled political betrayal in the Confucian scheme, so too chastity (i.e. absolute sexual loyalty to one husband for life) was seen as a value closely analogous to political loyalty of subject to sovereign. Therefore, under the Qing, women who had achieved a heroic standard of chastity would be ‘canonised' (jingbiao) by imperial edict, they would be venerated at the local Confucian temple, and their families would be authorised to erect memorial arches in their honour at state expense.

In the Qing dynasty's legal archives, we find that rape cases that were formally prosecuted, with the rapists actually receiving the death sentence, tend to conform to the codified stereotype of a rootless rogue male attacking a chaste wife or daughter of good family. These rapists were typically single men with no family and little or no property; many were outsiders to their victims' communities, including migrant labourers, beggars and other mar­ginally employed drifters. In contrast, the rape victims were uniformly respectable members of settled communities, and their own conduct was beyond reproach; many were little girls under the age of criminal liability for consenting to sexual relations, which rendered moot any conceivable ambi­guity about their conduct at the time of assault. Nearly all the victims were assaulted at or near their own homes; moreover, they exhibited injuries and torn clothing (to prove their energetic resistance), and often witnesses had heard or seen what happened.^[371]

A frequent scenario in these cases is for a married woman to be assaulted at night in her own bed by a rapist who forced entry. In one remarkable (but by no means unique) example from 1762, Wang Yuzhi broke into his victim's house at night (by digging a hole through its earthen wall) and then assaulted the woman, Wang Shi, in her sleep while her husband Li Gouhan was sleeping next to her.

Finally, in every case successfully prosecuted, the rapist himself testified to his victim's chastity by confirming that ‘violent coercion' had been necessary to overcome her fierce resistance. In effect, he had to exonerate her of the crime of ‘consent' before he himself could be convicted of the crime of ‘coercion'.