Sex, Marriage and Family in World Religions (88 page)

5. Instructions to gentlemen and commoners: People should be kind and cordial toward villagers, neighbors, clansmen, and relatives. If sometimes a minor quarrel occurs, both parties should reflect deeply and make every effort to negotiate and reach a reconciliation. They should not lightly bring suit. Even if one is right, one’s property will become diminished and one’s work and livelihood may be cut off. How much worse is it if one is not right? In that case one cannot avoid imprisonment and punishment. It will end in calamity. All should earnestly take this as a serious warning.

6. Instructions to official households
(guanhu):
Since these are known as “households of public servants,” and they thus differ from the common people, they should be especially content with their status and obey the law. They should devote themselves to “controlling oneself”

and benefiting others. Moreover, villagers and neighbors are, in fact, all relatives and friends. How can one rely on his strength to bully the weak, or his wealth to appropriate the property of the poor? Prosperity and decline come in cycles.

This calls for deep reflection.

7. Instructions when there has been a death in the family: There should be timely burial of the dead. It is not permissible to keep the coffin at home or in a temple. If coffins or ashes have been temporarily stored
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in a temple, they should be buried within one month. Never should one employ Buddhist monks to make offerings to the Buddha, nor engage in extravagant display at funerals. The ceremony should be on a scale in keeping with one’s resources. What matters is only that the dead should be returned to the soil soon. Anyone violating this should be flogged a hundred strokes with a heavy rod in accordance with the law. In addition, officials [violating this] should not be eligible for appointment, nor should scholars be allowed to take the civil examinations. Villagers, relatives, and friends who come to console may assist by making contributions. They should not oblige the family to provide food and drink for them.

8. Instructions to men and women:

They should not establish hermitages on their own under the pretext of engaging in religious practice. If there are such people, they should be expected to marry before long.

9. Restrictions on temples and people:

They are prohibited from holding mixed gatherings of men and women during the day or evening under the pretext of worshiping the Buddha or transmitting the sutras.

10. Restrictions on town and village:

They are prohibited from collecting money or donations, or making and parading figurines under the pretext of averting disasters or gaining good fortune.

With respect to the instructions above, I only wish that everyone understand what is right and be a good person. Everyone should realize that if he does not offend the authorities, there is no reason why he should be subject to punishment. All should earnestly follow these instructions so that peace and harmony will be with them. If anyone does not follow them and dares to be defiant, the law of the state is clear and officials must be impartial [in enforcing the law].

Everyone should deeply reflect on this so he will have no cause for regret later.

[Translated by Ron Guey Chu from
Sources of Chinese Tradition,
pp. 749–751]

Document 6–19

1. A student asked, “Girls also should be taught. What if, besides teaching them the
Classic of Filial Piety,
they are taught the readily understandable passages in books like the
Analects?
”

Zhu Xi said, “That would be fine. Ban Zhao’s
Exhortations for Women
and Sima Guang’s
Family Models
are both good.”

2. A student asked, “On which day should the bride be introduced in the ancestral shrine?”

Zhu Xi said, “The ancients waited three days before introducing her.”

422

“Why is it necessary to wait three months?”

Zhu Xi said, “Until then one does not know what the wife’s character or behavior are like. After three months, her performance of the role of wife will be clear. Only then does she become a wife. However, today one cannot wait till the third month. One can only make the gesture [of waiting till the third day].”

3. The student asked, “After the ancients presented the gift of silk, they presented the results of the divination. What did they do if the divination showed that [the marriage] was inauspicious?”

Zhu Xi said, “Then they stopped it.”

“The ancients presented a betrothal gift of five bolts of cloth. This seems too slight. Wouldn’t it be hard to adopt?”

Zhu Xi answered, “To describe it as elaborate or simple is to discuss it in terms of financial advantage [and therefore inappropriate]. However, if there is no hope for people of our sort to restore the ancient system, are we going to be able to change anyone else’s customs through education?”

4. Yaoqing asked about the position of the husband and wife when they are buried together. Zhu Xi responded, “When I buried my late wife, I saved the eastern space, but I had not checked what the ritual texts specify.”

Anqing said, “On earth, the right side is the more honored one, so I suppose the man should be on the right.”

Zhu Xi said, “In sacrifices, the west is the superior position, so it ought to be the same in burials.”

5. A student asked, “What if one’s mother dies and one’s father is still alive and the father wants to follow customary practices with regard to mourning garments, employ Buddhist monks for services, and have the body cremated?”

Zhu Xi responded, “What do you think?”

The student responded, “One could not obey.”

Zhu Xi said, “The first two are superficial matters. If it is as you say, obeying would be all right. But cremation cannot be practiced.”

Yong said, “Cremation destroys the parents’ remains.”

Zhu Xi added, “Discussing it along with mourning garments and Buddhist services shows an inability to recognize degrees of importance.”

6. With bows to one’s parents, they both accept the bow seated. The same is true for bows to one’s paternal uncles and their wives. As for a sister-in-law and her husband’s younger brother who live in the same household, they must bow, but they should respond with a bow. Husbands and wives also respond with a bow to the other’s bow.

In Jianyang there was a wife whose husband had no means of supporting her, so her parents wanted to take her home [thus ending the marriage]. When the matter was reported to the officials, the recorded ruled that they could be separated. Zhidao [Zhu Xi’s disciple Zhao Shixia] thought that that was very
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wrong, saying, “How can the moral obligations of husband and wife be discarded because of poverty? How can the authorities follow the request?”

Zhu Xi responded, “This sort of case should not be viewed from one side only. If the husband is incompetent and unable to support his wife, and the

wife has no way to supply herself, what else can be done? In this sort of case one should not stick to high principles. But you must investigate carefully to make sure it is not a case that has been twisted because the wife wants to leave her husband.

[Translated by Patricia Ebrey from
Zhuzi yu¨lei,
7.127, 89.2273, 89.2281, 89.2286, 91.2332, 106.2644 (Beijing: Zhonghua shuju, 1986)]

SEXUAL OFFENSES IN THE CODE OF THE

QING DYNASTY

Each Chinese dynasty issued a legal code, and these codes survive from the Tang period (618–907) on. The main laws tended to be carried over from one code to the next, though over time more substatutes were added. For the last of the dynasties, the Qing dynasty (1644–1911), we have not only the code but discussions of it and cases where it is cited and interpreted.

Chinese law drew from several traditions, including Confucian notions of the hierarchical basis of family relations and the obligations of family members.

Legal marriage was defined and regulated by the code, as claims to property and punishment for offenses depended on precise kinship relations between the parties involved.

The section given below deals with rape and other types of illegal sexual activity. The English distinction between adultery and fornication is not relevant to the Chinese code, which does not treat illicit sexual intercourse differently when one or both of the accused were married to someone else. However, because most women married soon after puberty, the general assumption in the statutes translated below is that the woman is married.

It should be noted in reading the sections of the code below that death sentences were often commuted or reduced to a lesser form of the death penalty through the judicial review process.

The parenthetical passages below are from the commentaries to the code, not the code itself.

Document 6–20

a r t i c l e 3 6 6 : o f f e n s e s o f i l l i c i t s e x u a l i n t e r c o u r s e 1. In the case of illicit sexual intercourse by mutual consent, the punishment is 80 strokes of the heavy bamboo. If the woman has a husband, the punishment 424

is 90 strokes of the heavy bamboo. For illicit sexual intercourse brought about by intrigue, (whether or not she has a husband), the punishment is 100 strokes of the heavy bamboo.

2. In the case of forcible rape, the punishment is strangulation (with delay).

If the act is not consummated, the punishment is 100 strokes of the heavy bamboo and exile to 3000 li.
(For a finding of forcible rape, it is necessary that
there be such force that the woman could not break away, also that others have
known [of the act] or heard [a cry], or that there be injuries to the skin or the
body, or a tearing of the clothes.

Only then can [the man] be sentenced to strangulation. If there is force and
then agreement, and on the basis of the agreement [the sexual act] is consummated, then this is not a case of [rape with] force. If one man uses force and seizes
[the woman] and another rapes her, the one who engages in illicit sexual intercourse will be tried [and sentenced to] strangulation. The one who forcibly seized
[the woman] will be punished for [rape which] is not consummated; he is punished with exile. Again, if someone sees a woman engaging in illicit sexual intercourse, and the one who sees her uses force to rape her, since she is already a
woman who engages in illicit sexual intercourse, this cannot be viewed as rape
with force. [Rather,] sentence on the basis of the law of illicit sexual intercourse
brought about by intrigue [seduction].)
3. If someone engages in illicit sexual intercourse with a young girl of twelve or below, then, although there is agreement, it is the same as rape.

4. As for consensual illicit sexual intercourse, or illicit sexual intercourse by use of intrigue [seduction], the man and the woman receive the same punishment. If the illicit sexual intercourse causes the birth of a boy or a girl, it will be the responsibility of the man to bring it up. The adulterous wife will be sold or married [to another] as her husband wishes. If he wishes to keep her, he may. If she is married or sold to the adulterous lover, the adulterous lover and the real husband will both receive 80 strokes of the heavy bamboo. The woman will have to leave the new home and return to her own clan. The property will be forfeit to the government.

5. In the case of rape, the woman is not punished.

6. If there is a broker or one who accepts
(individuals into his house)
to engage in illicit sexual intercourse, his punishment will be reduced one degree from that of those who
(by means of agreement or craftiness)
engage in illicit sexual intercourse.

7.
(If a person is guilty of illicit sexual intercourse which has already been
discovered, the one who acted for him)
in privately making an agreement in regard to illicit sexual intercourse [e.g. by giving money to the husband] will in each case [have his punishment] reduced two degrees
(from the penalty for
illicit sexual intercourse with consent, intrigue [seduction], or force)
.

8. If [the guilty pair] have not been seized in a place where the illicit sexual intercourse took place [but were apprehended somewhere else], or someone
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pointed them out as guilty [but offered no proof], they will not be punished. If the adulterous wife becomes pregnant
(then although there is proof as to the
woman, there is no proof as to the man),
the punishment is inflicted on the woman alone.

a r t i c l e 3 6 7 : f a c i l i t a t i n g a n d t o l e r a t i n g t h e w i f e ’ s o r c o n c u b i n e ’ s i l l i c i t s e x u a l i n t e r c o u r s e 1. In the case of anyone who facilitates and tolerates his wife or concubine engaging in illicit sexual intercourse with another, the husband, the adulterous lover, and the adulterous wife will each receive 90 strokes of the heavy bamboo.

If someone forces his wife, concubine, or adopted daughter to engage in illicit sexual intercourse with another, the husband or the adoptive father will each receive 100 strokes of the heavy bamboo. The adulterous man will receive 80

strokes of the heavy bamboo. The wife or the daughter will not be punished.

Moreover, her relationship [with the husband or father] is terminated. She is returned to her clan.

2. If someone facilitates and tolerates or forces his own daughters, or the wives or concubines of sons and son’s sons, to engage in illicit sexual intercourse, the punishment will be the same.

3. If consideration is used to buy a divorce or to sell a divorce [i.e. someone gives the husband money to cause him to get rid of his wife] (in order) that [the one giving it] may marry another man’s wife (by agreement), the husband and the wife and the one who is buying the divorce, will each be punished with 100 strokes of the heavy bamboo. The wife will be divorced and returned to her own clan, and the wedding gifts will be forfeit to the government. If the one buying the divorce and the wife use tricks to put pressure on the husband to divorce her, and if otherwise the husband would not have sold the divorce, he is not punished. The one who buys the divorce and the wife are each given 60 strokes of the heavy bamboo and penal servitude of one year. Redemption will be received for the remainder of the wife’s penalty. She will be returned to her husband, who may marry her off or sell her. If it is a concubine, reduce the punishment one degree. If there is a broker, his penalty will be reduced from that of the offender
(the one who purchases the divorce or uses force to
induce the sale of the divorce)
one degree.
(If [the husband] does not denounce
[the woman] because of her adultery, but marries her off and sells [her] to the
adulterer, the husband receives 100 strokes of the heavy bamboo and the adulterous lover and the adulterous wife will each get the full punishment of the law
[applicable to each, Art. 366].)
a r t i c l e 3 6 8 : i l l i c i t s e x u a l i n t e r c o u r s e