Sexual Violence within Marriage
A wife's consent had no bearing on the legitimacy of conjugal intercourse. By law and custom, the validity of marriage depended on an agreement between patriarchal heads of household, not the spouses themselves, and if the marriage were valid then sexual intercourse between the spouses was ipso facto legitimate.
Here we have a stark contrast with the European canon law tradition, which defined marriage as a covenant before God requiring the free consent of both husband and wife. Hence, Ming-Qing jurists recognised no crime of ‘marital rape' - presumably they would have regarded this term as an oxymoron, since ‘rape' constituted a subcategory of jian, which referred only to acts that took place outside marriage. By extension, if a woman alleged that she had been raped, her pelvis would be examined by a court-ordered midwife only if she were unmarried and presumed to have been a virgin. The reason is that pelvic trauma in a married woman might result from her husband's actions, which were legitimate by definition, and therefore could not be considered evidence of rape.8Cases involving what we might call ‘marriage by abduction' illustrate this point from another angle. The legitimacy of a marriage depended not on the consent of the bride and groom themselves, but rather on that of the heads of their respective households (usually their fathers), and marriage normally resulted from negotiations between two families that were brokered by a matchmaker. Moreover, there was typically some delay between betrothal and marriage, which might last several years. Trouble could develop if negotiations broke down or if one family changed its mind in the interim that followed betrothal, and sometimes the groom's family would attempt to impose a fait accompli by seizing the bride, taking her home, forcing her to perform the marriage rituals (typically bowing before family elders and their ancestral altar), and finally having the groom ‘consummate the marriage' by raping her.
When such cases came to court (and not all did, because some women's natal families would accept the fait accompli), the coercion and sexual violence inflicted on the woman bore no legal significance in and of themselves. Rather, judgement would depend entirely on whether the marriage was valid: namely, whether appropriate representatives of both families had agreed to the marriage through a matchmaker, finalising their agreement through payment of the bride price by the groom's family, and documenting it with a written contract. If they had, then the manner in which the groom consummated the marriage was irrelevant. If they had not, then those who had seized and raped the woman were liable for the grave crime of ‘using coercion to abduct a wife or daughter of good family and using her for illicit sex in the manner of a wife or concubine'. The language of the statute is telling: the term ‘illicit sex' underscores that the illegitimacy of the sexual act derived from its lack of a valid marital context.[356]A fundamental mission of the legal system was to uphold and enforce a Confucian vision of normative family hierarchy, defined for immediate family in terms of generation, birth order, gender and marriage, and for the extended family in terms of degree of kinship distance within the orthodox mourning system. For crimes involving kin, penalties would be weighted accordingly: acts of violence would be punished far more severely if an individual offended against their senior relative than in the reverse case. For example, both Ming and Qing legal codes explicitly authorised a husband to beat his wife, as long as he broke no bones or caused even more severe injury (and the qualitative evidence in Qing case records suggests that wife-beating was normalised to a high degree); but a wife who struck her husband was liable for severe punishment and might even be sentenced to death, depending on the circumstances. A wife who murdered her husband would be executed by immediate dismemberment, whereas a husband who murdered his wife would, at worst, be sentenced to strangulation with delay, which opened the door to a possible reprieve.
At the annual autumn assizes (qiushen), senior judges advising the emperor in his review of such delayed sentences would weigh the aggravating and mitigating circumstances in each case, and if a husband had killed a wife who had been ‘unfilial [to his parents]' (buxiao) or ‘disobedient' (bushun), then his sentence would be commuted. The reasoning behind such commutation was that the wife's misbehaviour had provoked her husband's righteous anger.[357] Because of the lengthy review process in capital cases, especially those involving the autumn assizes, it has been estimated that most were never carried out.‘Disobedience' certainly included refusing sexual intercourse, but there was a limit to how violently a husband could handle his wife with legal impunity, even if she defied him. Wanton sadism was not condoned. A reprieve would be justified only when the husband's homicidal violence somehow accorded with the normative basis of marriage.
In 1784 the Qianlong emperor addressed this issue by contrasting two husbands whose convictions for murdering their wives were under review at the autumn assizes. In the first case, Chen Minggui's wife Lin Shi had resented his poverty, argued with his mother and repeatedly demanded to dissolve their marriage. When Chen scolded her, she insulted and cursed his mother, provoking him to strangle her. The emperor commuted Chen's penalty on the grounds that Lin Shi's incorrigibly defiant and unfilial conduct was itself criminal and therefore mitigated her husband's guilt considerably. After all, the emperor opined, ‘the basic purpose of taking a wife is to care for one's parents, and the purpose of enlightened punishment is to assist in moral instruction'. In the second case of wife-killing, however, the emperor refused clemency. The murder happened as follows: when Wang Tianfu's young bride Yu Shi refused sexual intercourse, he beat and kicked her savagely and finally burned her genitals with fire tongs; she later died of her injuries.
In denouncing ‘the extreme cruelty' of this murder, the emperor singled out the youth and innocence of the woman (she was just 17 sui11 - i.e. 15 or 16 years old - whereas her husband was in his thirties, and it appears the murder took place on the couple's wedding night) and also highlighted the extreme disproportion between her transgression and her husband's violence: ‘We shall approve his sentence, so as to admonish the violent and cruel'! The emperor concluded by noting that ‘one crime was motivated by righteous anger, and the other by licentious cruelty. The differences must be weighed and each case judged accordingly'.[358] [359] [360] [361]Moreover, a husband who caught his wife in the act of adultery could kill her and her sexual partner with complete impunity, if he acted at once. This was one of the few exceptions allowed by Ming-Qing law to the emperor's absolute monopoly on the taking of life. In other words, to kill one's wife was not necessarily wrong, as long as a husband acted out of ‘righteous indignation' against a wife who had threatened the integrity of his household and lineage.13 Moreover, if a wife engaged in adultery, and her lover murdered her husband, then she was liable for the death penalty (along with her lover) even if she had played no part in the murder and knew nothing about it. The rationale for this law was that the wife's betrayal of her husband had created the motive and opportunity for his murder. These exceptions did not apply, however, if a husband had previously abetted his wife's unchaste behaviour - for example, by agreeing to a polyandrous relationship with another man, or by making her support him through prostitution. Under those circumstances, a husband who killed his wife and/or her sexual partner lost his legal immunity; equally, a wife not complicit in her husband's murder would be punished only for illicit sex.14
Moreover, the legitimacy of conjugal relations was not simply a matter of indulging the sexual whims of husbands.
From the previous discussion it might appear that nothing taking place within marriage could be considered a sex offence, punishable by law. But that was not true. The concept of unfilial marital intercourse had an ancient provenance. For example, jurists of the Tang, Song and Yuan dynasties (618-1368) all imposed severe penalties for a husband who impregnated his wife or concubine during the official mourning period for his father or mother. So too, the Ming Code and the Qing Code proscribed marrying or taking a concubine during mourning, and they mandated penalties of extra severity for offences of ‘illicit sex' if committed during the mourning period. The Ming Code and the Qing Code did not contain any explicit prohibition of unfilial marital intercourse per se (i.e. impregnating a legitimate wife or concubine during mourning). Nevertheless, authoritative commentators urged that such conduct be punished with a beating or even penal servitude, under the broad rubric of criminal ‘unfilial conduct' (bu xiao). As one observed, ‘it is by forgetting his parents, to indulge in licentiousness, that her husband has made her conceive'. Ideally, then, even the conjugal bed was supposed to be ruled by an internalised Confucian morality.[362]To sum up the discussion so far: marital relations, including both sex and violence, were properly governed not by lust or other egocentric impulses but rather by deference to one's place in a larger familial order. A husband was authorised to have sexual relations with his wife, or to inflict violence on her, only in a manner and to a degree consistent with enforcing that order.