Male-Male Rape in Qing Law
The first laws in imperial China explicitly prohibiting male homosexual rape were promulgated by the Qing dynasty, beginning in the mid seventeenth century.[373] These laws, and the specific procedures that Qing jurists developed for dealing with male-male rape, were based by analogy on pre-existing laws and procedures for prosecuting the rape of women.
The stereotypical rapist was the same rootless, rogue male found in male-female rape cases (beggars, casual labourers and soldiers are plentiful); but also, this analogy extended to the male rape victim himself, who in various ways was put in a female position.The crime prohibited by these laws was referred to in Chinese as ji jian, which case records and commentaries show referred specifically to anal intercourse between males. The term literally means ‘chicken illicit sex', which sounds like nonsense; but ‘chicken' (ji) evidently carried a strong connotation of obscenity, as it also appears in vulgar terms for ‘penis' (ji ba, literally ‘chicken tail') and ‘streetwalker' (ye ji, literally ‘wild chicken'). For convenience, ji jian is usually translated into English as ‘sodomy', but the Chinese term carries none of the theological baggage of that notoriously vague European legal concept. Other sexual practices aside from anal intercourse certainly occurred and are depicted in fiction, but anal intercourse is the only male-male sexual act that appears in legal texts, which draw a precise parallel between it and the extramarital vaginal penetration prohibited as jian.
This parallel was codified in a substatute of 1734, which completed the formal incorporation of male-male sodomy into the previously heterosexual concept of jian. The breakdown into specific offences exactly paralleled preexisting categories of illicit sex. Moreover, the penalties for sodomy offences equalled in almost every detail those for corresponding heterosexual ones.
For example, gang rape of a person of either sex was punished by immediate beheading (for the ringleader) and strangulation after the assizes for accomplices; rape by one culprit of a person of either sex over age 12 sui was punished by strangulation after the assizes; rape of a child of either sex between 10 and 12 sui, by beheading after the assizes; rape of a child under 10 sui, by immediate beheading. Rape of a person over 12 of either sex that was ‘not consummated' by penetration was punished by 100 blows of the heavy bamboo and exile at a distance of 3,000 li (about 1500 km); if the victim were 12 or under, the penalty was enslavement to the military forces in Manchuria.The focus of the 1734 substatute was male-male rape; but to maintain the exact parallel with heterosexual jian, the substatute also criminalised consensual sodomy, almost as an afterthought, and prescribed the same penalties as for consensual sex outside of marriage between a man and a woman: 100 blows of the heavy bamboo and one month wearing the cangue.[374] If the object of penetration were age 12 sui or under, the act was automatically treated as ‘coercive' and punished by strangulation. In other words, the age of liability for the crime of ‘consent' for both males and females was 13 sui.
What was the conceptual basis for the close analogy between homosexual and heterosexual acts drawn by Qing jurists? Men, as a category, were defined not by penetrability, but by its opposite, the ‘active' sexual role of penetrator. A male could be imagined as vulnerable to rape, like a woman, only by being imagined as powerless, like a woman; and what made this possible was the physical weakness of childhood. Therefore, Qing jurists imagined the plausible male victim as an adolescent or even younger boy, assaulted by a powerful mature man. This image is clearly expressed by the language of the Qing Code, which (for example) characterised the male rape victim as ‘a son or younger brother of good/commoner family'; and it is confirmed by the records of cases where homosexual rape was actually prosecuted, which invariably concern children or youths assaulted by significantly older and more powerful men.
In thirty-nine such cases, the average age of rapists is 33 sui, whereas the average of rape victims is just 16 sui.[375] (The imagined male rape victim included no ‘husband' to correspond to the wife in ‘wives or daughters of good family', who were imagined as the female objects of sexual assault.) This image is equally clear in the substatutes applied to homicide in self-defence against rape.[376] A woman who killed a man trying to rape her would not be punished, as long as she could satisfy the strict evidentiary requirements for rape; the law says nothing about the woman's age. Once again, we see that the legitimacy of violence, including homicide, depended on Confucian family norms rather than any notion of individual rights. In the case of homosexual rape, however, such complete impunity could be enjoyed only by a male under the age of 15 sui who killed an attacker at least ten years older than he.In this way, jurists drew a parallel between female chastity and vulnerability to rape, and the effeminate vulnerability of male children or youths. Moreover, it is quite clear from both legal case records and a wide variety of literary sources that the male youth was feminised and eroticised as an object of masculine possessive desire. In this way, the weakness of a young boy corresponded to the gendered vulnerability of women generally, and male vulnerability to rape (like male erotic appeal as a sex object) was considered a temporary transitional phase that ended with the empowered masculinity of adulthood.
For a male youth to be penetrated inflicted a profound stigma (on both the individual and his family) and threatened to derail his delicate journey to adult masculinity. No such stigma attached to the penetrator, however, because his was the definitively masculine role; he might be perceived as a disreputable rogue, but his sexual behaviour in no way compromised his masculinity. On the contrary, case records show that men who had penetrated other males might brag of that act, thereby exposing and shaming their sexual partners.[377]