‘Illicit Sex', Coercion and Consent in Ming-Qing Law
The Chinese legal term that denotes ‘illicit sex' (jian) has an ancient provenance, although its use continues to the present day. Its fundamental [350] meaning is treachery or betrayal, which can take political as well as sexual form - as seen, for example, in the Ming Code's and the Qing Code's prohibitions of jian dang, ‘treasonous factions', as well as fan jian, ‘sex offences'.
In the Confucian scheme, the absolute sexual loyalty a wife owes her husband corresponds to the political loyalty a subject owes the sovereign; in effect, they are the same value in parallel registers. Hence, a jian fu was an ‘adulterous wife', whereas a jian chen was a ‘treasonous minister'. The basic misogyny of jian finds graphic expression in the character itself, which consists of the radical nil, meaning female or woman, repeated three times in a triangular structure. The essence of the concept is the treacherous scheming of women, i.e. an effeminate conspiracy in the shadows.[351]In sexual terms, jian referred to vaginal intercourse outside marriage (either coerced or consensual), which was understood as one man violating a woman of another man's household and thereby threatening to corrupt the latter's line of descent. Therefore, vaginal penetration was required for rape to be considered ‘consummated'. The focus being female chastity, malemale sexual acts were treated separately until the eighteenth century (see below). Similarly, non-vaginal penetration of a female (e.g. rape by means of anal penetration) was punished by analogy to jian, confirming that jian itself referred to vaginal penetration.[352] Other sexual practices certainly occurred - for example, the hero of the Ming dynasty novel Plum in the Golden Vase (Jinpingmei) enjoys being fellated by his concubines - but they do not appear in legal texts.
The law against illicit sex drew a fundamental distinction between ‘coercion' (qiang) and ‘consent' (he). The term usually translated as ‘rape' is qiang jian, which literally means ‘coercive illicit sex'; its counterpart is he jian, ‘consensual illicit sex'. Both were categories of crime, the main difference being that in cases of coercion, only the male rapist would be punished, whereas in cases of consent, both partners would be punished equally. Penalties were more severe for coercion than for consent, although the gap widened over time. ‘Consent' bore no positive connotation whatsoever in Chinese law: its only legal significance was as a category of crime, and a woman who consented to sex outside marriage was herself a criminal.4
In Ming-Qing law, rape was punished by death. But the death penalty applied only if the rape victim were worthy - in effect, she had to earn the death penalty for her attacker by means of her spotless record of chastity and her militant resistance to the rape itself. Therefore, for a man to be convicted of coercion, his victim first had to be exonerated of the crime of consent.[353]
The basic standards of evidence for rape were spelled out by a Ming- dynasty commentary that was incorporated into the Qing Code:
In prosecution for rape (qiang jian), there must be evidence of violent coercion (qiang bao), and the situation must have been such that the woman could not struggle free; there must also be persons who heard what happened, as well as evidence such as physical injury or torn clothing. Only then shall the offender be sentenced to strangulation.[354]
The code further stipulated that ‘if an offender joins with a woman by coercion, but consummates the act by means of her consent, then the act does not count as coercion'. In other words, vigorous physical resistance throughout the entire episode was required for a woman to qualify as a rape victim; otherwise, by default, she might well be judged guilty of consent. In addition, reduced penalties applied to an offender who raped a woman with a record of unchaste behaviour.[355]