Changes In Sexual Relations During Quing Dynasty In Matthew Sommer's Book Sex, Law And Society In Late Imperial China

Mattew Sommer’s book Sex, Law and Society in Late Imperial China, one of the innovative book in Law Society and Culture in China series, is a provocative study that concentrates on the changing sexual relation during Qing dynasty (1644–1912) on a civil law perspective. The book is primarily focused on the shifting gender norms governing the non-elite in the late Qing period.

His analysis masterfully incorporated the recently opened archival records from Beijing and Sichuan provinces available between the 1980s to 1990s, which enable the writer to perform legal reasoning by taking advantage of these primary sources to trace the matters back to the much earlier empire periods, in somehow chilling details, and translate the legal codes into social practices. The judicial sources are based on Central cases and prefectural records the 1750s to 1850s. With the use of such ethnographic approach, this masterpiece has aroused historians’ attention to be the first study utilizing legal cases records to draw new insights by looking at how the legislation and central court regulating sexuality as well as giving an account on the nature of the sexuality is being regulated.

Before the release of this book, none of the studies have been focused on this area because of the lack of original sources available. Sommer delicates to utilize those records to evaluate the significance of these changes in the law and seek to answer why the government has such intention in having legal reform. Meanwhile, this book has showcased the levels in which the populace has conformed to and the diverse strategies they adopt to contravene to the law regulations, challenging the mandated moral and political order set by the government. By so doing, the writer demonstrates how the Qing legislators actively utilize the law to consolidate the moral and social orders and alleviate the accompanying effects brought by the prominent social changes. It also shows the heightened conservative attitudes towards sex, for example, the strong discouragement on homosexuality, courtesans, and the deliberate promotion of female chastity.

As suggested by Scott (2007), the goal for adopting gender as an analytical category is to discover the range of sex roles being available, how the sexual symbolism functions in that particular society and particular period by exerting meanings and power to maintain the social order or promote its change. As a reader, we are enlightened by Sommer to utilize the prosecution of sex offenses to dig out and reflect the ideologies and norms in the late Qing period. Issues covered ranging from injustice rape law governing heterosexual and homosexual rape, banning on prostitution and courtesan culture on understanding the cult of chastity in China and the banning of sodomy in posing threat to the masculinity as gender performance among men.

With the rise of commerialization that enable a more fluid social structure that blue the social barriers on status boundaries, the enacted legal reform emancipated hereditary and debased-status groups by eliminating their categories in 1723 in Yongzheng Emperor’s reign (1723–1735), Sommer (1994) argues, marks a fundamental change on the regulation of sexuality (both heterosexual and homosexual), in the sense that the age-old, fixed paradigm of maintaining inheritable status boundaries that each behave in accordance with the status-based criteria, has been shifted into a new paradigm that emphasized performing gender role strictly defined and within heterosexual marriage, that is to say, from status performance to gender performance. Heterosexual marriage in the Chinese context is as a social institution that serves three purposes, to link up two lineage families, to report to ancestors and to beget sons to continue the patrilineal descending line by having offspring to inherit family properties and carry on the patriline. In other words, the standard of familial and sexual morality regulation applying to officials and elite groups have been changed to a uniform standard on setting sexual morality requirement and assigning criminal liability across every individual.

For example, it extended the gender standard to peasants women, which can be attributed to the state attempts to have a status leveling, by extending and equalizing the Confucian standards of rituals and propriety being applicable even to the mean/debased population to avoid internal subversion of marital order. Before the Yungzheng Emperor 1723 reform, prostitution is allowed and even deemed as necessary as it can show the clear status boundary of those from the debased population, to commoners and to the elite class. However, after the reform, the category of the debased population is eliminated. It infers all people aside from the elite class also expected to conform to patriarchal gender norms. The goal of such reform lies in the extension of elite and commoner moral, sexual morality standard and cultural values to mean class (viz. criminialised prostitutes and unmarried men) to serve surveillance purpose against them by imposing penal law on them, thus by no means serve liberating purpose as suggested by other scholars. In addition, Paderni (2002) argues in line with Sommer that such legal measures serve as a response to the repercussions of the wide-ranging societal developments that have led the society to become more fluid in the sense that there are fewer social barriers grounded in status boundaries.

Thus, Sommer asserts the reason for the emancipation on such aforementioned on debased groups of people was not for granting more human rights in the Westerners sense. The law does not eager to protect individuals rights, rather, to channel deviate behaviors into accepted act within accepted normative gender roles by imposing criminal liabilities on the offenders and the advocate of a new sexual morality standard. By achieving this goal, some jobs such as the allow of courtesans (sexual entertainers) from previous eras are abandoned because of their sexual connotation that damage the cult of chastity as well. Despite that, the most triggering reason that motivates such reform, as argued by the writer, is the swelling of a group of unmarried impoverished men that hugely threatened the sexual and social order. As suggested by the author, the Qing dynasty is said to be the watershed in China history regulating sex in the sense that the government exercises an expanding control on governing sexuality that is also initiated by acute demographic changes.

There are two major legal reforms have exerted tremendous influences on sexual relations in late imperial China. They are the banning of sodomy (Ji Jian) and the praise of female chastity respectively. Sommer work’s answer the urgent question that although sodomy has existed in a long history since the Warring States period of ancient China (c.f. “Strategies of Wei” from Annals of the Warring States, B.C. 243) why is the case that even consensual sodomy have started to be prohibited and sued as a crime for both penetrants and penetrated in 1679 (Meijer, 1985)?

In chapter three, the discussion is on showing how the Qing rape law worships the cult of chastity of women, which is linked to preserving the political orders of the regime. The time during the jurists of the late imperiod period, they evaluate the punishment on the offenders by the “pollution” that inflict on the woman. It would be so different from the modern western standard, where the degree of punishment might be defined by the violation of the female bodily freedom and her will. The pollution in Chinese sense has the horrifying implication that if the woman is unchaste or has not conveyed enough level of clarity that she rejects to be penetrated, the degree on such pollution tends to be smaller. Such legal arrangement is serving the interests of rapists by using their perspective in arriving decision on whether it is constituting rape.

As chastity has its symbolic meanings by the propaganda that it implicates political loyalty to the ruler that resemble upholding loyalty of a wife to her husband, that is, to realize the Neo-Confucian social order. Such ideological construction has led women situated in disadvantaged positions in the cases of Rape. In short, the increased emphasis on advocating female chastity has such a strict requirement that limiting female from shifting the blames of the rapists on their offends. Only under extreme condition, women will be proved guiltfree for preseving her chastity, complying the requirement as a lawful wife. There are growing state awareness that there are cases of rough men who go outside the proper order that prey upon chaste women from proper family background. The emphasis played by chastity in the rape law reveals a huge limitation on constraucting the image of ideal victim of rapes.

In chapter four, Sommer introduces the new legislation target against Sodomy in trying to fix the gender performance of men. Amidst the early eighteen century, it was the first time in China history that sodomy becomes a legal offense. Contemporary gender historians usually argue the prohibition of consensual sodomy indicates outright homophobia during that time. However, Sommer does not think in this view. Sommer suggests the banning of sodomy derives from the damage imposed on the penetrated male’s performance on fulfilling familial gender role, thus underscoring his gender performance and lead to the degradation of male. Sodomy is considered an act that has the tendency to destabilize the gendered hierarchy by treating men as if women that is able to be penetrated (Sommer, 1997). Sommer also suggests that the stalwart stigma being attached to the penetrated male, but not the penetrator, showcases the writer’s assertion that the shifting paradigm governing sexuality. Sommer provides a handy explanation for this phenomenon by tracing back to the economic and social condition of China in that time in High Qing period.

As documented in the Qing, though contemporarily being praised the early Qing enjoy its prosperity in comparison with other regimes in Qing, the social background during Yongzheng and Qianlong regimes shows that starting from 1770, there was a skyrocketing population growth in which males are far outnumbered women and the proportion of male who never getting married have begun to rise significantly, showing a downward trend of social mobility among men. Some of these men are considered rough males and rootless rascals (literally means bare stick - guanggun , that infer being unmarried and thus no family ties). Perkins’ book (2017) which talks about the agricultural development in China demonstrated that during the time in the early to mid-Qing eras, the cultivated land cannot cater to the demand of the growing population, which would very possibly result in a shortage of food and resources. They have no family ties derived from their immigrant status, usually from impoverished backgrounds that resulted in having bare resources for marriage and thus reproduction (Sommer, 1997).

They are excluded from mainstream patterns of having marriage and household and, thus, becoming marginalized males, some of them could only turn into rapists that prey upon unmarried young men women from good families, engaging in sexual crime. Only through affiliating and bonding with other males socially and sexually could they satisfy their sexual desires, material and basic human needs for survival, thus forming a same-sex union/alliance as a only available choice of substitution to heterosexual institution, such same-sex union acts serve functional and very practical purposes such as co-residence, resource-pooling and emotional bonding: for instance, sworn brotherhood and master/novice ties as fictive kinship. Sommer also provides an explanation for this by tracing back to their various occupational backgrounds. The reason why they failed to buy into the valorized marriage pattern can be attributed to their distinctive jobs and financial conditions different from the majority (Defu, 1976)

For instance, consider these two examples provided by Sommer. If you work as a Buddhist priest that live in monasteries that are strictly prohibited from having sex with females, not even any physical contact on crossing boundaries to female quarter, to adapt to such circumstance, the only way for them to have sex is by seeking people from same-sex category. Also, for those who are criminals, such environment setting in prison inevitably also constraint them to only find a man as a partner to have sex. In addition, for those who work as a frontier garrison military, the limited financial condition for them to find a female prostitute has led them to find fellow members of their rank as an alternative. In these cases, the nature of the occupation, the financial resources, and social condition have turned men being capable as a sexual object rather than subject because there are no choices among them, they are isolated from having contact with women.

By viewing their profile, it makes easy to understand that the negative portrayals of rough males, the shift legislation that prohibits them to prey upon young men are also an attempt from the government to protect the populace, yet the intention of such reforms has more to do with fighting against these social misfits that acting outside the normative family orders as they are not capable to form families. From the lens of the government, they only form illicit sexual relations or so-called “unorthodox households” that imitate the arrangement of heterosexual marriages, And thus, they are highly stigmatized and criminalized, evidenced by their frequent appearances in the records of criminal prosecution (Sommer, 1994).

Aside from that sodomy and rape performed by rootless rascals, under such an undesirable financial condition, those who have wives have to resort to selling their wives or engage in human trafficking to force commoner girls into prostitutes to money from that. Sex is becoming more or less a commercialized market. Wife-selling, documented as one of the strategies among rough male as a way for survival, is only acceptable and legal under the circumstance that the wife is unchaste, involved in adultery. If not, it would be treated associating with suspicions of adultery, the judiciary would, in turn, viewing wife-selling as a problem.

Assumed that there is a case that the men himself engaging in adultery, he would lose the rights to sell his wife. Sommer shows that the rationale behind it is the strong disapproval and punishment of adultery, keeping your moral integrity in place is the prerequisite to ask for selling your wife. Sommer believes, wife-selling of an unchaste wife, has not been so much a debatable issue from the perspective of the government because the turnover provides a new opportunity for the deviate woman to restart and reassert the patriarchal order, by placing her into a new household that is under patriarchical supervision. Judiciary is not objecting to the notion of the commodification of women, but instead, the illicit elements that is likely to provoke during the transaction. In the dissertation of Sommer, he argues commodification of unchaste women are not uncommon as it is documented that some of these women are sold as slaves, approved by the judges in one legal case in Sichuan.

The handle of unchaste wife, back in the days of Yuan dynasty, being unchaste indicate that the woman has allowed herself to transform from a commoner into a debased person; in Yuan dynasty, women who has a history of adultery is allowed to become prostitutes because the morality governing people in the commoner circle is no longer confine to her. aforementioned example showcased the state fixation on using chastity as a guiding principle on settling wife-selling issues.

Evidenced by sayings as mentioned earlier is that the Qing has preserved the Ming’s law on governing wife-selling practices show that both regimes disapprove wife-selling under normal conditions, deeming it as guilty of mai xiu, the selling of a divorce. Having said that, as documented by Qing archives from both county and palace, as poverty serves as an acute motivator derived from economic pressure for the poverty-stricken husband to sell their wife or even the wives themselves agitated to be sole in exchange for money. Though being distorted as wife-selling of adulterous nature, Sommer infers that such women are not received the full beating penalty (di jue) eventually and are allowed to use cash fines in payment of the corporal penalties. In these cases, Sommer shows to the readers the concession made by the government that acknowledged wife-selling because of poverty in view of such undesirable social reality in the year of 1818 during the Jiaqing period.

Only until that year, the Board of Punishment of Qing government has finally officially issued an policy to accept poverty as a justifying reason for wife-selling as ways mitigating one’s financial conditions. However, such practice is in no ways perfect as it is still inevitable to lead to the loss of chastity of the woman because she needs to inevitably consent to would enable a second marriage being arranged to her, though she does not need the face the beating penalty, the woman still needs to suffer the consequences of not being a virtuous woman anymore. In short, we can witness the shifting judicial policy made its concession by allowing wife being transacted like a commodity from husband in exchange for economic resources to cater to the needs of their social conditions, it implicates that the state has given up keeping enforce the strict requirement on chastity towards the lower class. The uniformity of sexual morality is not possible ideally, exceptions are shown when there is a mismatch between theory and actual social conditions. Nevertheless, to discourage wife-selling by constructing the stigma on the sold wife in the first place, has its political purpose to maintain a patriarchal order that Chastity confines women that to gender domination by marriage.

To further strengthen his argumentation and stance, Sommer points out an excellent point to validate his viewpoint that the disturb of proper social order is the case that matter to the state ruling, not much to do by their immoral elements involved.The writer provides the illustration that the banning of sodomy does not constraint wealthy people from the higher class, ranging from advantaged groups and emperor because sodomy does not affect their domination. The writer argues that sodomy becomes problematic only in the cases among debased groups because they cause disrupted social orders that threatening their ruling and domination.

Paradigmatic examples of this would be the Qianlong emperor, who has a renowned taste of desiring men. Under this line of thinking, it seems that even such erotic pleasures do not interfere you with performing the heterosexual duties, sexual intercourse outside marriage would only be justified among elite class, as in the case that the emperor Qianlong has 27 children while being gay as well (Hummel, 1970). So it would be plausible to propose that, only those from debased class, especially the rough male are the culprit from the lens of the officials that causes gender troubles because such acts degrade masculinity that does not serve the purpose of reproduction that confined by heterosexual marriage. Sommer (1994) also raised up a point that phallic penetration, from the lens of Chinese people, signifies a cultural meaning of male domination that is considered reasonable in Confucianism values.

It makes sense to readers that although it is said that at that time the prohibition on sodomy illustrated the rise of homophobia of the government; the case of lesbianism is not applicable presumably because it poses no threat to femininity that tolerates submission and subordination to authority, what’s more, there is no involvement of phallic penetration that strategically avoids the offending on gender stereotype that men should not be penetrated. The lack of legal case concerning or banning female homosexual intercourse in Qing legal texts does not implicate the lawmakers has been viewing it as acceptable. Evidence showing from Hinsch (1990) and Topley (1975) exemplifies that there are countless of non-legal documents written that are showcasing lesbian sexual intercourse, implying that there is no possibility that the lawmakers are not informed that women also can form erotic relationship towards others of the same sex that issued a criminal law that contains double standard treating homosexuality that tolerates female homosexuality.

From Sommer’s perspective, he raised a radical viewpoint that the reason why sex between women has not become a crime is that the nature of the law and social order are upholding phallocentrism in nature. Sex without a penis in this context would not challenge, undermine and overthrow the legitimacy of those who are in the higher position in the hierarchy and thus the gender order. It seems that homophobia is not the primary cause of banning of sodomy in such regard. For the case of sodomy, it is a potent, dangerous and unacceptable from their point of view because penetrating towards men has overturned the gender hierarchy because the role of the penetrator within intercourse does not correspond to the normative husband and father role within marriages in society, considering that they are not bound by any family connections.

It is also worth noting that the inflicting stigma attaches to the penetrated men by a man that usually lead to suicide and cases of homicide that happens during the resistance of rape that happen immediately or after incident of sodomy, thus, under the line of thinking then it is reasonable that the lawmakers have issued criminal law that harshly punishes anyone involved in consensual and forced sex. According to the new substitute “Soldiers or civilians engaging in illicit sex” at that time, even men who consent to be sodomized has to sentenced to 1 month in the cangue and publish by 1 hundred blows from heavy bamboo. At the surface level, we can see the attempt from the state to deter young boys from engaging in such behavior. However, Sommer (1997) extends the discussion by suggesting readers look into how the discourse of female being as victims of rape has rendered to the decision of the penalties among cases of sodomy. Sommer suggests that the weighting of the penalties lie heavily on the loss of status that the victim during the process of forced penetration that renders outside the legitimate context, resembling the case of rape against a chaste female that is discussed in the previous paragraph talking about rape law.

Following this logic on deciding penalties for homosexual rape, if the victim has previous experience of penetration, from the judges’ point of view, the possible inflicted harms to his status will, in turn, lessen a lot and very presumably indicate a reduced penalty on the rapist. It goes without saying that such logic will affect the judgment of the penalty on homicide. For example, in the case of consensual homosexual intercourse in a loving relationship; if the penetrated one day killed the penetrator, as the penetrated has a history to sodomize others, as both of them neither would be regarded as having good characters, the penality imposed against the attacker would be more lenient that he would not deserve the full penalties. In this regard, we can see that the concept of chastity as a sexual virtue coincidently was applicable to men as well. These ideological thinking reflected the principle of the legal status hierarchy of the lawmaking process.

Henceforth, such strategies adopted by the government are dedicated to consolidate and strengthen the new generalized normative orders, but mostly applicable to commoners but not for the elites and privileged classes. They try to bring these rough males back into the proper social orders but also to protect the young vulnerable males from proper households, prevent them from falling victims to their penetration. By reviewing this legal legislation, it reflected that there were homophobic attitudes towards sodomy and the negative characterization against these dangerous rascals is a result that they produce no socializing bond, it was out of the state’s fear that they would threaten and disrupt the underpinning family networks that enable the societal stability and political order that the illicit sexual intercourses must be prohibited once and for all.

Mommer asserts that such intensification of sexual regulation signified the government’s aims to establish a uniformity of sexual and legal norms applying to the lower class, considering that that was a time where having significant progress on socio-economic development and transformations. Such radical development has contributed to deep social anxiety on the instability among families and communities in addition to the growing concern for gender performance (Mann, 1991). Influenced deeply by Neo-Confucianism, it stresses the ordered familial and social orders is essential as it would infer the stable political orders that would enable the continuity of its political regimes. The legal reform was ultimately aimed at upholding the political order by stabilizing the well-positioned familial orders and social hierarchy, preventing the threatening of sexual anarchy to such orders (Sommer, 1997). From the jurists' point of view, the proper order should be sexual intercourse take place only within heterosexual marriage. The penetrator plays the role of the husband and is the only one who is able to penetrate his wife. Only by so doing can reproduce the patriarchal household and serve as the reinforcement of the core values and the axis of gender hierarchy (ibid).

All in all, despite the well-researched works done by Sommer, however, there are some limiting angles that Sommer has not been taken into account on his theorizing work. The vaginal and anal penetration might have implicated further meaning other than the symbolic and metaphysical meaning of gender domination. As suggested by Furth (1999), her studies on Chinese medical beliefs on late imperial China argue that the transfer of semen (applicable to women as well) and blood carry “Qi” that has cultural meanings that similarly resembles the conceptual understanding of ritual pollution in this context. Echoes with Yates (1997), it would be better if Sommer has taken a comparative approach to analyze sexual intercourse as a complex discourse of ritual pollution.

In addition, Sommer could have extended his illustrations on demonstrating how the acute demographic crisis is a contribution to the legal changes (Diamant, 2001). His argument on the shifting paradigm from status performance to gender performance of the legal system of China would be more completed if the writer can take reference to counties which also have similar changes like ours, testing whether in the face of such demographic change, would the standard on confining acceptable sex practises be similar to China as well.

Backed up in close reading on substitutes since Yuan to Qing dynasty and over 600 authentic legal cases records, Sommer’s pioneering, highly original, and meticulously researched studies are impressive given by his focused argumentation that showcased the power dynamics intertwined between one’s age, wealth and class can affect how they will be affected by the Qing judicial constructions. Sommer has demonstrated that the shifting of the law influences the majority of those who are mean population. It shed light revealing that the long-hidden legal practices that have exerted tremendous influences on people located in the margin in the social hierarchy of late imperial China. These legal measures worked in within institutional and social levels have made huge progress to the legal and gender history of China. Its accessible language makes it suitable to be an elementary book for readers and specialists who are interested in the social and gender history of late imperial China

This book has a major contribution to the nuanced understanding of how the state struggled to uphold and protect the notion of Chinese orthodoxical views on men and women of the prescribed positions. It lays a foundation for further scholarly investigation on evocating larger gender and legal issues.