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The Penetrated Male in Late Imperial China: Judicial Constructions and Social Stigma

Author(s): Matthew H. Sommer


Source: Modern China, Vol. 23, No. 2 (Apr., 1997), pp. 140-180
Published by: Sage Publications, Inc.
Stable URL: http://www.jstor.org/stable/189169
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The Penetrated Male
in Late Imperial China
Judicial Constructions and Social Stigma

MatthewH. Sommer
University of Pennsylvania

Sexual relations between men in the late imperial era should be


seen, not as constitutive of a stable homosexual identity, but as acts
that profoundly destabilized the gendered social hierarchy by treating
some men (the penetrated) like women. Official anxiety about homo-
sexual intercourse increased during the early eighteenth century, a
time when fixed, heritable status differences eroded, while elite con-
cern with gender performance intensified (Sommer, 1994; Mann,
1991). The result was a spate of new laws against sodomy (ji jian).
Even so, the prohibition of sodomy predated the Qing dynasty and
derived from long-standing perceptions by no means limited to offi-
cial or elite circles.
The focus of the Qing code's section on "illicit sex" (jian) is
heterosexual intercourse outside marriage; its basic aim, to control
male access to females. There is no mystery why heterosexual acts
would have concerned the Qing judiciary (or its predecessors): the
defense of patriarchal marriage was part of the larger, venerable
project of upholding familial order and social hierarchy as means to
political order (Sommer, 1994).

AUTHOR'S NOTE: The research for this article was funded by the Committee for Scholarly
Communication with China. I presented a draft at the 1993 conference on "Code and Practice
in Qing and Republican China " at UCLA; my thanks to discussants Joseph Esherick and Harold
Kahn and to the other participants. Also, thanks to Kathryn Berhardt, Philip Huang, Yasuhiko
Karasawa, Eugenia Lean, Jennifer McFarlane, Elizabeth Perry, Bradly Reed, Richard von Glahn,
and two anonymous referees for their comments.

MODERNCHINA, Vol. 23 No. 2, April 1997 140-180


? 1997 Sage Publications,Inc.
140
Sommer/ THEPENETRATED
MALE 141

But why prohibitsex between men? Three scholars have tried to


explain Qing laws against sodomy. According to Meijer (1985),
consensual sex between males was not banneduntil the mid-Qing;in
fact, its prohibitiondates from the Ming dynasty,at latest. He also
suggests that laws against sodomy were simply part of a consistent
effort to ban all sexual activity outside marriage.But the Qing code
does not bansex betweenwomen-indeed, I findnot a single mention,
let alone prohibition,of female homosexualacts in any Qing or earlier
legal source (not to mention other extra-maritalpractices familiar
from the Westernlegal tradition,such as masturbationandbestiality).
Ng (1987, 1989) argues that Qing "homophobia"was part of an
ideological campaignto gain the allegiance of the conservativeChi-
nese elite. She also claims thatthe penaltyfor "malehomosexuality"
was moreseverethanthatfor "unchastefemalebehavior,"speculating
that sex between men "was viewed as a direct challenge to the
requirementsof filial piety"because it could produceno sons (1989:
88-89). In fact, the penalty for consensual sodomy between adult
males which she cites (100 blows of the heavy bambooand a month
in the cangue) was exactly the same as thatfor consensualheterosex-
ual acts outside marriage(Sommer, 1994: 428).
Hinsch (1990) adoptsthe conclusionsof MeijerandNg, which suit
his own theory of a "generaltolerancetowardhomosexuality"up to
the Qing dynasty, when "the new Manchu morality" induced the
regime to prohibitconsensual sex between men for the first time in
Chinese history (1990: 4, 142). Neo-Confucianism and Western-
izationreinforcedthis bigotry,resultingin the homophobiaof current
Chinese regimes (1990: epilogue).
Hinsch offers valuable insights-for example, that age and status
hierarchiestendedto parallelthe hierarchyof roles in analintercourse.
Nevertheless, as Furthpoints out (1991), Hinsch'sdesire to recovera
"tradition"to contrastwiththe homophobicpresentmay obscuremore
than it reveals.' His notion of "importedManchuconcepts of sexual-
ity" (1990: 162) also is questionable.Arguably,no one was more
obsessed with defendingManchuvalues thanthe Qianlongemperor,
yet he was widely reputedto enjoy eroticrelationswith males, as were
the XianfengandTongzhiemperors(Hinsch,1990: 142-143).Manchu
legal texts from the periodpriorto sinicizationandconquestshow no
142 MODERNCHINA/APRIL 1997

bias against same-sex activity. Manchu tradition forbade sex in fewer


contexts than did Ming law; the Qing founders even abandoned certain
marriage customs to conform to Chinese incest taboos (Zhang and
Guo, 1988: 485).
A further possibility, that desire for a member of the same sex was
perceived as illness or perversion, has been ruled out by Furth's study
of contemporary medical texts: "No kind of sex act or object of desire
was singled out in medical literature as pathological" (1988: 6). Qing
sodomy legislation was not a product of Foucault's "perverse implan-
tation" (1978).
Meijer, Ng, and Hinsch all use "homosexual" to denote a male who
had sex with males, and "homosexuality" to denote such activity and
erotic attraction for members of the same sex generally. Such usage
goes to the heart of a basic controversy in historical studies of
sexuality, namely, whether sexual orientation today is primarily a
biologically determined constant, independent of historical change, or
primarily a modem social and cultural construct (Foucault, 1978;
Stein, 1992).
To refer generally to "homosexuals" and "homosexuality" risks the
anachronism of assuming that a fundamental social identity based on
the sex of the person's object of desire has always and everywhere
existed and been experienced in the same way.2 In many societies, the
sex of one's object of desire has yielded in priority to a hierarchical
division between penetrant and penetrated.3 In late imperial China,
legal and literary texts strongly suggest that only penetrated males
were perceived as "different"; desire for another male in and of itself
seems to have carried little significance for popular attitudes and none
at all for law. (In legal texts, homoerotic desire requires no special
vocabulary, just the same cliches used to describe heterosexual lust-
for example, yin xin.) This division of roles was understood to involve
multiple hierarchies, especially that of gender, the model being het-
erosexual intercourse. Penetration of a male upset the proper hierarchy
of gender, in which masculinity was defined by the penetrant role in
intercourse, corresponding to the husband/father role in society.
Such a perspective conformed to an attitude widespread in Qing
society, especially in settled peasant communities, which stigmatized
the penetrated male. In reviewing Qing legal cases, it becomes clear
Sommer/ THEPENETRATED
MALE 143

thatthere was a fundamentalcoherencebetween popularperceptions


of homosexualrelationsandjudicial standards.The judiciarysought
to protect vulnerable masculinity as part of its larger agenda of
upholdinglegitimatesocial hierarchy.

HISTORY
LEGISLATIVE

BEFORETHE QING

Sexual relationsbetween males, even when prohibited,were long


treatedas a categoryfundamentallydifferentfromjian, the standard
termfor "illicit sex"used in legal codes for two millennia.The classic
definitionofjian specified a heterosexualcontext:"amale andfemale
engage in intercoursewithout basing it on a relationshipof moral
duty" (nan nii bu yi yijiao) (Xue, 1990: 26/14b). The Qing jurist Xue
Yunshengconfirms that anal intercoursebetween males "originally
could not be judged accordingto the provisionson illicit sex" because
"thereis a greatdifferencebetween [sex with] a male and [sex with]
a female" (nanzi yu funii da xiang xuan shu) (the agent of action is
presumed male). He does not elaborateon the exact natureof this
difference (1970: 285-33).
Hence the classic purposeof legislationagainstjian hadnothingto
do with same-sex acts, regardlessof whetherthey were considered
crimes. But in the Qing, the definition of this legal term expanded:
new laws assimilated homosexual offenses to heterosexual ones,
labeled them a subcategoryof jian, and included them in the jian
section of the code. Underlying this shift, however, was a basic
continuity:from the Song dynastythroughthe Qing,judicial interest
in male homosexual acts consistentlyfocused on phallic penetration
of the anus,the divisionof sexualrolestherebyimplied,andthe stigma
of the penetratedmale. This division of roles held far greatersignifi-
cance than that the object of desire was of the same sex. No other
sexual act between men or dispositionto performsuch acts was ever
singled out in legal discourse.
The earliest evidence of laws againsthomosexualrelationsin any
form emphasizes the gender inversion attributedto the penetrated
144 MODERNCHINA/APRIL 1997

male. Song sources reportthat a law of the Zhengheera (1111-1118)


punished "males who act as prostitutes"(nan wei chang) with 100
blows of the heavy bamboo and a fine of 50,000 cash, paid to
whomeverreportedthe culprit.4(Changimpliedfemale gender;male
prostitutes were referredto as nan chang-literally, "male prosti-
tutes.")AnotherSong text mentionsthe prosecutionof cross-dressing
male prostitutesfor the offense of bu nan-literally, "beingnot male"
(Xue, 1970: 375-03; Wang, 1988: 226; VanGulik, 1974: 163).
This fragmentaryevidence suggests that Song lawmakersassoci-
ated the penetratedrole with cross-dressingand the debased legal
status of prostitutes,and that they sought to punish males who con-
sented to such degradation.(The texts do not mention the penetrant
role, nor do they use jian to denote homosexualacts.) The apparent
purposeof Song lawmakerswas to fix boundaries:to preventpersons
of commonerstatus (liang min) from being degradedby occupation
to mean status(jian min-which includedprostitutes)and to prevent
males from being degraded by penetrationor cross-dressing into
females.5
The earliest statuteexplicitly banningsexual intercoursebetween
males dates from the Jiajingreign (1522-1567) of the Ming dynasty.
The Ming code's section on illicit sex includes no referenceto such
activity. Instead, the following measure adopted during the Jiajing
reign appearsin a supplementaryset of "statutesappliedby analogy"
(bi yin lii), each of which cites a preexistingmeasureto be appliedto
offenses not covered in the code proper.(This supplementsystema-
tized the long-standingpracticeof judgmentby analogy,so the pun-
ishment of male/male intercoursein this way may well predate its
Jiajing codification.) The statute reads: "Whoeverinserts his penis
into anotherman'sanusfor lasciviousplay (jiangshenjingfangru ren
fenmen nei yin xi) shall receive 100 blows of the heavy bamboo, in
applicationby analogyof the statuteon 'pouringfoul materialinto the
mouthof anotherperson'(hui wu guan ru renkou)"(Xing tai falii: bi
fu zafan zui lii/48b; Xue, 1970: 285-33).
This statutecontrastssharplywith those against heterosexualof-
fenses found in the section on illicit sexual activityof the Ming code.
First,it could hardlybe more explicit aboutthe act being punished-
far more so than the illicit sex statutes, which use jian to stress
MALE
Sommer/ THEPENETRATED 145

extramaritalcontextwithoutreferenceto specific gesturesor anatomy.


The statutequotedabove never mentionsjian at all, let alone the Qing
legal term for sodomy, ji jian.
Second, the statutedoes not employ the dichotomy of "coercion"
(qiang) and "consent"(he) used to define sexual offenses in Chinese
legal codes since antiquity.While the analogy to assaultmight seem
to imply the punishmentof rape,the only exampleI have foundof this
law's use in practice (from the Qing) involves the punishmentof a
man who had consented to being penetrated(Chang Wejen, 1986:
40-73). Ming lawmakersmay simply have assumed it impossible to
rape a male-an assumptionthatcontinued,with some qualification,
to inform legislation during the Qing (see below). At any rate, the
penalty(100 blows of the heavybamboo)approximatedcontemporary
penalties for consensual heterosexualoffenses (80 to 100 blows); it
was far less severe than that for heterosexualrape (strangulation)
(Xue, 1970: 366-00).
The most significant featureof the statuteis its analogy between
anal penetrationand a crime listed in the "fighting"(dou ou) section
of the Ming code: "pouringfoul materialinto the mouth of another
person"(Xue, 1970: 302-00). Lawmakersevidentlyfoundthis a more
exact analogy than any of the heterosexualoffenses in the illicit sex
section, implying thatpenetrationwas an assault,with subjectacting
upon object.
But the fighting section lists dozens of crimes, so this particular
choice begs analysis.It containsthreekey elements:penetration,"foul
material,"and targetingthe mouth. Such assault could surely cause
physicalinjury.But "foulmaterial"suggestspollutionandhumiliation
more thanphysical danger;also, most culturesassociatethe head and
face with personaldignity (anotherclause of the same fighting statute
punishes "whoeverpollutes the head or face of anotherperson with
foul material").In otherwords,pollutionand humiliationwere more
importantthan battery to defining the crime of anal penetration.
Moreover, such harm clearly affected the penetratedperson only:
being penetratedcorrespondedto having foul materialpoured into
one's mouth.The stigma would stain the penetrantno more thanfoul
materialwould sully one who pouredit.
146 MODERNCHINA/APRIL 1997

EARLYQINGLAW:THETRANSITIONAL
PHASE

Like most Ming laws, the "statutesapplied by analogy" were


adoptedinto the first editionof the Qing code in 1646.6Thereafter,as
new substatuteswere added, many "statutesapplied by analogy"
became obsolete and were eliminated(Xue, 1970: 52/bi yin lii). Xue
Yunshengreportsthatthe one on anal intercoursewas appliedduring
the Kangxi reign (1662-1723); it remainedon the books until 1725
(Xue, 1970: 285-33; Wu, 1992: 1141-1144).
As early as 1655, however, Qing courts began using the termji
jian-"sodomy"-to refer to homosexual anal intercourse(Chang
Wejen, 1986: 23-85). In 1679, legislation againstji jian appearedfor
the first time, in the illicit sex (jian) section of the code. By the end of
the Yongzheng reign (1723-1736), the code contained substantial
legislation on the subject. This legislation representeda break with
earlierpractice,in thathomosexualintercoursewas for the first time
directlyassimilatedto heterosexualoffensesunderthe rubricof "illicit
sex."
The origins of the termji jian are not clear.In Qing legal sources,
a logographmeaning"chicken"is used to representthe soundji. This
usage appearsto be a latersubstitutionfor an obscurelogograph,also
pronouncedji,which, accordingto the lateMing scholarYangShiwei,
meant "to use a male as a female"(jiang nan zuo nii) (Higashikawa,
1979: 295; Ci hai, 1978: 1/827).7The constructionof this obscure
logographis suggestive:the lower half of the logographnan, meaning
"male,"hasbeenreplacedby the logographnil, meaning"female"(see
Glossary). The essence of the term is the gender inversion imposed
on a male who is anally penetrated,as implied by Yang Shiwei's
definition and by the logograph'sconstruction.8
The 1679 substatutemarkedthe first appearanceof ji jian in the
code itself: "If evil rascals gatherin a gang and abducta young man
of good family anduse coercionto sodomizehim, then the ringleader
shall be immediatelybeheaded, and the followers shall all be sen-
tenced to strangulationafter the assizes. If it is consensual (he tong
zhe), then the crime shall be punished according to statute"(Qing
huidianshili: 990).
Sommer/ THEPENETRATED
MALE 147

In 1696, the following amendmentwas added:"If degenerateevil


charactersabducta young man of good characteranduse coercion to
sodomize him, then the followers shall be sentencedto strangulation
after the assizes, and they shall not be grantedclemency under any
amnesty.If it is consensual, then the crime shall be punishedin the
usual way" (Qing huidianshili: 825/990).
This measure introducesthe dichotomy of "coercion"and "con-
sent" to divide the newly named crime into the traditionalsubcate-
gories of illicit sex. It specificallyaddressesgangrape,butits penalties
could also apply to a rapistwho actedalone, at least in extremecases.
In a 1733 example from Guangdong,Yu Zidai (fifty-seven sui) lured
Chen Amai (sixteen sui) into a sugarcanefield, rapedhim, and beat
him to death.9Yu was sentencedas follows: "YuZidai did not gather
a gang,butnevertheless,he did lureChenAmai away andraped(qiang
jian) him; in addition,he killed him immediatelyafterwards.This is
lecherousevil in the extreme!Yu Zidai shouldbe beheadedimmedi-
ately, according to the substatute's provision on 'ringleaders'"
(Chang Wejen, 1986: 41-7).
The 1679 substatute also confirms that "consensual" sodomy
shouldbe punished"accordingto statute,"or as the amendmentadds,
"in the usual way."This languagerefersto the Ming "statuteapplied
by analogy":the 1679 law addednew penaltiesfor rapebutconfirmed
the old analogy's applicationto consensualacts.
We see an exampleof the latterin a 1724 homicidecase fromFujian
involving three soldiers: Tu Lian (thirty-six sui) had had a sexual
relationshipwith Zheng Qi (early twenties) for four years (Tu pene-
tratingZheng), and they shareda bed; their roommate,Wu Zongwu
(twenty-foursui), slept separately.One night while Tu Lian was out,
Wu was botheredby mosquitoes, so he crawled in bed with Zheng,
who had a mosquitonet. WhenTu returned,he killed Wu in a jealous
rage.TuLianwas convictedof "purposefulhomicide";morepertinent
is the judgmentof his lover:
Zheng Qi allowed Tu Lian to sodomize him; we find that the code
contains only penalties which uniformlyapply to males and females
who engage in illicit sexual intercourse;it containsno standardprovi-
sion prescribing penalties for two males who engage in sodomy.
Therefore,ZhengQi shallbe sentencedaccordingto the supplementary
statuteapplied by analogy, which provides that "whoeverinserts his
148 MODERNCHINA/APRIL 1997

penis into anotherman's anus for lascivious play shall receive 100
blows of the heavy bamboo,in applicationby analogyof the statuteon
'pouringfoul materialinto the mouthof anotherperson.'"
This judgment, approved by imperial rescript, shows that the Ming
statute might punish not only penetrants but also any male shameless
enough to submit to sodomy. Its language reflects the point of transi-
tion at which it was written: the sexual activity is called "sodomy" and
compared to the "illicit sexual intercourse" of "males and females."
But there existed as yet no measure on illicit sexual intercourse by
which to judge a consensual homosexual offense, so the old Ming
analogy had to be used (Chang Wejen, 1986: 40-73).

OF SODOMYTO ILLICITSEXUALINTERCOURSE
THEASSIMILATION

Earlier measures were superseded in 1734 by a substatute in the


illicit sexual intercourse section, which remained in force until the
early twentieth century (see Appendix A). This law (together with
complementary measures that followed) achieved a precise assimila-
tion of sodomy to heterosexual jian. The breakdown into specific
offenses paralleled preexisting categories of illicit sex; moreover, the
penalties for sodomy now equaled in almost every detail those for
corresponding heterosexual offenses. The correspondence is too exact
to have been accidental.
Gang rape of a person of either sex was punished according to the
substatute on "rootless rascals" (guang gun), ringleaders by immedi-
ate beheading and followers by strangulation after the assizes. Rape
by one offender of a person of either sex over twelve sui was punished
by strangulation after the assizes; rape of a child of either sex between
ten and twelve sui, by beheading after the assizes; rape of a child under
ten sui, by immediate beheading.
Rape of a person over twelve sui of either sex that was "not
accomplished" (wei cheng-i.e., the vagina or anus was not pene-
trated) was punished by 100 blows of the heavy bamboo and life exile
at 3,000 li. If the victim were twelve sui or under, the offender was
enslaved to the military forces in Heilongjiang.
"Consensual" sex with a child aged twelve sui or under of either
sex was automatically treated as coercive and punished by strangula-
MALE
Sommer/ THEPENETRATED 149

tion afterthe assizes. Consensualsex with a personover twelve sui of


either sex was punished accordingto the substatuteon "soldiersor
civilians engagingin illicit sex" (junminxiang jian), by 100 blows of
the heavy bambooandone monthin the cangue."'Prostitutionby male
or female, as well as sex with a prostitute,receivedthe same penalty."
After 1734, any sodomyoffense not coveredin the code wasjudged
by precise analogy to the correspondingheterosexualoffense. For
example, in an 1833 case from Beijing, Du Zhuer(thirty sui) pene-
tratedhis half-brother(samemother,differentfather)FanErge(eleven
sui). The code did not treatincestbetweenmales, so Du was sentenced
by analogy to the substatuteon "illicit sex with a sister by the same
mother but a differentfather";because of Erge's youth, the penalty
was increasedby one degree (Xing Bu dang:06194).
In a complementaryprocess,the legal discourseof sodomyadopted
key terms and standardslong used in the prosecutionof heterosexual
offenses, especially rape.During the Ming-Qingperiod, certainfac-
tors disqualified a woman from full treatmentas a rape victim by
automatically indicating lighter penalties for her rapist (Sommer,
1994; Ng, 1987). This weighting of penalties shows that the law did
not define rapefrom the victim's point of view, but ratherin termsof
a loss of status inflicted on the victim by the experience of forced
penetrationoutside a legitimatecontext.
If the victim hadpreviouslyengagedin illicit sex, then the damage
causedby the rapewas measurablyless, since the chastityat stakehad
alreadybeen polluted;the lighterpenaltyfor the rapistreflected this
prior pollution. The same was true if the hierarchyof penetration
somehow conformed to the relative status of rapist and victim: a
mastercrossing status lines downwardsto rape a servant,or a com-
monerrapinga personof meanstatus,would receive lighterpenalties,
in the unlikelyevent of prosecution,thanif they violatedstatusequals.
(On the other hand,extra penalties appliedto any male who crossed
statuslines upwardsby penetratinga female of higherstatus-e.g., a
woman of his master'shousehold.)This formalmatchingof statusto
sexual role is one of the clearest expressions in Chinese law of the
genderedhierarchyof penetration.
Afterthe assimilationof homosexualoffenses to heterosexualones,
the same logic framedtheevaluationof the malerapevictim.The 1679
and 1734 laws characterize the penetrated male as a liang ren zi di. In
150 MODERNCHINA/APRIL 1997

this phrase, liang carries the double meaning of sexual virtue and
commonerlegal status,so thatprecise translationis awkward:"a son
or youngerbrotherof good character/ofa commoner."Such a charac-
terizationmatches closely that of the ideal female victim of rape or
abductionas liangjia fu nii-"a wife or daughterof good character/
commonerfamily"-or liang renfu nii-"a wife or daughterof good
character/ofa commoner"(e.g., Xue, 1970: 366-02).
In this way, standardsfor evaluatingfemale chastity and defining
legitimateaccess to women were adaptedto measurethe loss suffered
by a penetratedmale. Below, we examinehow these standardsapplied
in practice to cases of homosexual rape. But Qing jurists never
imaginedmen to be exactly the same as women. As we see, the exact
parallelbetween homosexualand heterosexualoffenses broke down
over the question of resistanceto rape. The difference between the
plausibly rapablemale and female articulatesmost clearly the Qing
judicial constructionof sex between men.

THEPENETRATED
EVALUATING MALE

RELATIVELEGALSTATUS:MASTERSAND SERVANTS

No measurein the Qing code addressesthe issue of homosexual


relations between masters and servants, slaves, or hired laborers.
Seventeenth century novels like The Plum in the Golden Vase (Jin ping
mei) and The Carnal Prayer Mat (Rou pu tuan) suggest that homo-
sexual intercourse(masterpenetratingservant)was not uncommon;
like intercoursewith female servants,it was unlikelyto be prosecuted,
regardlessof the degree of coercion involved.
In 1798, however, the governorof Shandongmemorializedabout
a case he found difficult to judge. A landlordnamedPan Juntinghad
attempted to rape his male hired laborer (gu gong) of two years, Shao
Xing. Resisting, Shao hadkicked his masterin the testicles with such
violence thatPandied.The problemwas how to balancethe substatute
that mandated leniency for "males who commit homicide while
resistingrape"(see AppendixB) with the vital principleof maintain-
ing householdhierarchy.In this case, hadthe men been social equals,
it is most likely that Shao's penalty would have been strangulation
Sommer/ THEPENETRATED
MALE 151

afterthe assizes for the "unauthorizedkilling of a criminal,"with the


certaintyof eventualreprieve.But for a long-termhiredlaborerto kill
his master was a heinous violation of Qing law-if the homicide
resulted from fighting, then even if it was unintentional,the laborer
would be beheadedimmediately(Xue, 1970: 314-00).
The governorrecommendedleniency andthe Boardof Punishment
severity, so the emperorstruck a balance. The final judgment con-
firmedthat Shao's masterhad been tryingto rapehim; nevertheless,
for a hired laborer to kick his master to death holds the gravest
implicationsfor the principleof statusdifference.... It is inappropriate
to judge this case accordingto the substatuteon "committinghomicide
while resistingrape,"whichappliesto statusequals(chang ren),so that
the offender would be sentenced [merely] to strangulationafter the
assizes; such a sentence would show reckless indulgence.

Therefore,Shao receivedthe moresevere sentenceof beheading,with


the qualification"afterthe assizes,"keeping open the possibility of a
reprieve(Xing an hui lan:53/16a-17a).AlthoughShao's sentencewas
more severe than it would have been had the two men been social
equals, it was much lighter than if his masterhad not been trying to
rape him. This judgmentparallelsthat of a 1738 case from Zhili, in
which a male servantused violence to defendhis sister-in-lawagainst
rape by theirmaster(Sommer, 1994: 47).

LIANGAS COMMONERLEGALSTATUS

Prostitutes,male or female, violated the standardof liang in both


senses of the word. As an occupationalgroup,they, like otherenter-
tainers, possessed the despised legal status of mean persons, being
excluded from the ranksof commoners.At the same time, prostitutes
could notbe consideredliang in the sense of virtue:penetrationoutside
marriagedisqualifieda female, while any experienceof being pene-
trateddisqualifieda male.
But what if a male rape victim were liang in one sense, but not in
the other?In 1824, the governorof Shaanximemorializedon a case
in which ZhangLaijiaand WangDeyu, who were armedwith knives
and clubs, waylaid and rapedWangKe'er and anotherman on a road
(each attackerrapedone victim).The case was complicatedby the fact
152 MODERNCHINA/APRIL 1997

that the victims were both actors who performedfemale roles (xiao
dan), and therefore,the governorargued,"theycannot be treatedas
'young men of good character/commonerstatus,'" as would be re-
quiredfor the rapiststo receive the full penaltyfor coercive sodomy
(strangulationafter the assizes). But such a vicious crime could not
go unpunished.The solution, approvedby imperialrescript,was to
reducethe full penaltyone degree,to 100 blows of the heavy bamboo
and life exile at a distanceof 3,000 li.
There was no evidence that either victim had previously been
penetratedby anotherman,so they could be consideredliang in terms
of sexual virtue at the time of the rape. But their occupationclearly
debasedtheirlegal status,so they could not be consideredliang in the
sense of being commoners.Moreover,as female impersonators,these
men alreadyembodied the gender inversion sufferedby a victim of
anal penetration.The judgment,therefore,balancedthe principleof
legal statushierarchyagainstthatof punishingrape-exactly mirror-
ing the sort of compromisemade when a chaste (liang) woman of
mean legal status(not liang) was rapedby a commoner(Xu zeng xing
an hui lan: 14/2a-b;Sommer, 1994: 59-61).

LIANGAS SEXUALVIRTUEIN MALES

Any previous experience of penetrationdisqualifieda male from


being consideredliang in the sense of sexual virtue.Therefore,like
debasedstatus(absoluteor relative),suchexperiencewas alsojudged
to lessen the harmcausedby rape,indicatinga reducedpenaltyfor the
rapist.This was the logic used to evaluate an unchastewoman who
had been raped.
In a case reportedby the governorof Shanxiin 1815, Guo Zhengqi
hadbeen rapedby Li Lengsan,butadmittedthatearlierhe hadalready
consented to being "sexually polluted" (jian wu) by another man. As
the governorreasoned,"Thereis a differencebetween [Guo] and 'a
man of good character' (yu liang ren you jian). Therefore, Li Lengsan
shouldbe sentencedto 100 blows of the heavy bambooand life exile
at a distance of 3,000 li, a reductionby one degree from the penalty
of strangulationafter the assizes that is prescribedby the substatute
for 'committingcoercive sodomy without injuringthe victim.' " In
other words, if a man were shameless enough to consent to being
Sommer/ THEPENETRATEDMALE 153

penetrated,the harmhe mightsufferby being rapedcould not be great


enough to warrantthe deathpenaltyfor the rapist.Moreover,for his
earlierconsensualpenetration,Guo himself received 100 blows of the
heavy bamboo and one monthin the cangue, accordingto the provi-
sion against "consentingto be sodomized"(he tongji jian) (Xing an
hui lan: 52/7b-8a).'2

HOMICIDEIN THE COURSEOF ATTEMPTEDRAPE

Previous experience of penetrationcould affect homicide judg-


ments, too, as seen in a 1762 case from Zhili. In 1751, the widow Ma
Shi had hired an unmarried,landless peasant, Lin Ermengdong
(twenty sui), to help her orphanedgrandson,Li Changzuo(ten sui),
work their land in exchange for 60 percent of the harvest. During
crop-watching,Lin and Li shareda hut in the fields, and Lin began
penetratingthe boy, in a friendlyrelationshipthatlastedseveralyears.
In 1758, when Lin andLi were twenty-sevensui andseventeensui,
respectively, they became the subject of village gossip, and the
younger man broke off both the sexual and work relationships.But
one evening in 1761, Lin encounteredLi and propositionedhim. As
Lin later confessed, Li rejectedhim, saying: "Before, we were seen
screwing around together (zan liangge gan de goudang) ... and the
whole village talkeduntil it was unbearable.Who would want to do
that shamefulthing with you again?"A quarrelensued, and Lin beat
his formerlover to death.
In evaluatingthis homicide,the magistratefirstconsidereda clause
of the 1734 sodomy substatute:"Whoevermurdersa young man of
good characterin the course of an attemptat illicit sex ... shall also
be immediatelybeheadedaccordingto the substatuteon 'ringleaders
of rootless rascals' " (see AppendixA). Upon reflection, he rejected
this measure,reasoningthat "Li Changzuohad previouslysubmitted
to illicit sex with Lin Ermengdong,so Lin Ermengdongcannot be
compared to someone who schemes to sodomize and murders 'a
young manof good character.'"Accordingly,he sentencedLin to the
lesser penalty of beheading after the assizes, which kept open the
possibility of reprieve(Xingke tiben: 173/QL27.3.18).13
Evidently,homosexualrapewas definedfromthe victim'sperspec-
tive no more than heterosexual rape. In judicial discourse, being
154 MODERNCHINA/APRIL 1997

penetratedinvolved a stigmatizedloss of statusfor males;this loss to


a certain extent correspondedto a woman's loss of chastity,and its
effects were measuredin similarways by the penal system. Males of
debased status and males who had alreadybeen penetrateddid not
sufferthe full degreeof harmwhen raped;it followed thattheirrapists
did not deservethe full penaltiesmandatedby law.
However,thereremainedfundamentaldifferencesbetweenthe loss
suffered by a penetratedmale and a female's loss of chastity. By
definition, a woman was legitimately penetrable-but she had to
reserve that penetrabilityfor her husband.The chastitypromotedby
the Qing statewas at root a form of loyalty,explicitly associatedwith
political allegiance (like filial piety). An adulteressoffended against
herhusband,so the burdenon the female rapevictim was to provethat
she hadnot committeda betrayal.This interpretationwas reflectedin
the penalty for consensual illicit sexual intercourse,identical for
heterosexualand homosexualcouples except for one significantde-
tail: Ming-Qinglaw providedthata wife convicted of adulterycould
be "sold in marriage"by her husband(Xue, 1970: 366-00).
No comparablemeasureappliedto a male who engaged in illicit
relationswith a womanorplayedeithersexualrole with anothermale.
The Qing state orchestratedno cult of virtuous males who died
guarding their penetrabilityto correspond to the female chastity
martyrscanonizedon a regularbasis. Males were not expected to be
weak, fatalistic, or suicidal;theirs was not to reserve themselves as
vessels for one legitimate master. They were not supposed to be
penetrableat all, but ratherpenetrants,subjectsratherthanobjects of
action.
YetQing law acknowledgedthatmalescouldbe rapedandthatthey
might consentto sodomy.But for this penetrabilityto make sense, the
male had to be somehow less than male. To grasp this unstable
masculinity,let us turnto the standardsof evidence for homosexual
rape. What sort of male did the judiciaryimagine as a credible rape
victim?

COERCION,YOUTH,AND POWERLESSNESS

Unlike the Qing code's original statuteon heterosexualillicit sex


(Xue, 1970: 366-00), the sodomy substatutesdo not spell out an exact
Sommer/ THEPENETRATED
MALE 155

standardof evidence for coercion.Case recordsshow thatthe standard


long establishedfor the rape of a female was generally applied, but
with some notablemodifications.
A woman was expected to defend her chastityto the death;other-
wise, she bore the burdenof proof that she had been overpoweredin
spite of fierce resistance.Persuasiveevidence includeda confession
from the rapist, injuries, torn clothing, threat with a weapon, and
witnesses who confirmedher resistance.It was best if she had been
violated within her properdomestic space, and she needed the full
supportof patriarchalguardiansin orderto file charges.
Whena male allegedthathe hadbeen raped,some of the samekinds
of evidence were required:case records cite torn and bloodstained
clothing,andjudges askedif victimshadcriedoutandstruggled.Even
so, the male rapevictim was imaginedas fundamentallydifferent.The
issue of domestic space, for example, never comes up in cases of
homosexualrape:it was perfectlylegitimatefor men and even young
boys to be outsidethe home for a wide varietyof reasons.Indeed,case
recordsshow that it was common for unrelatedmen to sharebeds at
night, a practicewhich did not necessarilyimply sexual activity.
The crucial distinction in the prosecutionof heterosexualversus
homosexual rape is thatjudges saw men as fundamentallypowerful,
whereaswomen were assumedto be weak.Of course,a womanshould
resist, but her strongestevidence of coercion was that she had been
killed or had committedsuicide;barringdeath,seriousinjurywas the
best defense. These were decidedly weapons of the weak.
In contrast,the judiciarywas highly skepticalthata man could be
rapedat all: if sodomyhadbeen accomplisheduponan adultmale,then
it must have been consensual. Only a powerless male could be
penetratedagainsthis will-and the most unambiguousform of male
powerlessness was youth. The statutorylanguagespecifies the male
rapevictim as a liang renzi di; I have translatedthis as "ayoung man
of good character/commonerstatus,"but the literal meaning of zi di
is "son or youngerbrother."Such phrasingimplies thatthe male rape
victim was a young,juniormemberof a family unit. The correspond-
ing phrasefor the female rape victim is "a wife or daughterof good
family." "Daughter"implies youth, to be sure, but "wife" does not;
156 MODERNCHINA/APRIL 1997

the emphasis here is gender subordination within the family, not youth.
(The phrase for males says nothing about husbands.)
Indeed, the victim's youth and family seem to have been crucial
factors in the prosecution of homosexual rape. In archival records that
I have seen of homosexual rape cases (not involving homicide), the
oldest victim was fourteen sui; every case was reported to the authori-
ties by a parent of the victim. Every archival case record I have seen
of attempted rape of an adult male by a single attacker ended up in
court because one of the men killed the other. That does not mean adult
males were never raped, but rather that there existed a judicial bias
against accepting an adult male as a rape victim.
Even with an adolescent victim, judges might exhibit great skepti-
cism about whether coercion had truly been used to accomplish
sodomy. In an 1851 case from Zhili, the victim was Chen Shang'er
(fourteen sui), a peasant who worked on the village watch with three
older men; one of the other men, Han Yunrui (fifty-two sui), was an
ex-convict recently released after several years of internal exile. One
night when the others were out on duty, Han raped Chen Shang'er.
The boy's father reported the rape, and forensic examination estab-
lished that Shang'er's anus had been penetrated. Arrested, Han con-
fessed. The magistrate recommended strangulation after the assizes
for "forcibly sodomizing a young man of good character, without
injury"; but the provincial judge of Zhili overturned the judgment for
the following reasons:
In cases of "accomplishedrape,"if violent coercion has truly been
employed, then the rape victim should exhibit physical injuriesfrom
the struggle.... In this case, Chen Shang'er is already 14 sui, and
absolutely cannot be considereda child. When Han Yunruipulled at
his pants and he was startledawake, it should not have been difficult
for him to escape immediately;why is it thatall he could do was weep
and cry out? ... He did not strugglevigorously,and therebyallowed
himself to be sexually polluted.Moreover,[the otherwatchmen]must
have been in the vicinity;how is it thatthey heardnothingwhen Chen
Shang'erwas being sodomizedandcriedout?In addition,... his body
exhibitednot even the slightestinjury.[emphasisadded]

Here, the provincial judge cited the standard of evidence for rape
applied to women in Ming-Qing law, but his emphasis of the boy's
MALE
Sommer/ THEPENETRATED 157

age did not figure in this way when the victim was female. He ordered
the case retriedto establishbeyonddoubtwhethercoercion had been
used (Shuntianfu dang'an: 167/XF 1.2.6).
The clearestexpressionof judicial skepticismcame in the prosecu-
tion of men who committedhomicide in self-defense, they claimed,
against rape. Most cases involved the use of a knife or other edged
weapon to kill the alleged rapist.Qing judges deemed it so unlikely
thata teenage male would have to resortto such a weaponto prevent
rape that they treatedany such claim with greatsuspicion, assuming
the claim was a lie thatobscuredthe truemotive for murder.
Still, Qing law sometimesgrantedleniency to males who commit-
ted homicide while resisting rape. Until the late eighteenthcentury,
the procedurewas for the provincialgovernorreportingthe case to
recommendformally that the prisonerbe executed accordingto the
relevanthomicide statute,but to add an explanationof the mitigating
circumstances,with a suggestionthatthe sentencebe commuted.The
final decision would be made at the palace (Wu, 1992: 785).
But the age of the killer (i.e., the alleged victim of sexual assault)
was key to whetherleniency would be granted.In a 1744 case from
Zhili, a mannamedMa Zhongxiaoused an ax to kill one WuGuodong,
with whom he was sharinga bed, and who he claimed was trying to
rapehim. The governor-generalrecommendedleniency,butthepalace
refused:"If Ma Zhongxiao was already20 sui, then he was a strong
manin the primeof life. How could WuGuodongpossibly coerce him
into sodomy?"
So the case was sent back to the local magistratefor retrial.When
pressed about his age and strength,Ma testified, "I was only 19 sui,
and I have always been weak. He was a very strongman, and when I
was held tightly by him, therewas no way I could strugglefree."The
magistratereported:
Accordingto the offender,he was only 19 sui at the time, and although
that is not so young, the offenderis not really very strongeither.This
humble official personallyexaminedthe offenderin court,and it was
obvious thathis constitutionis not toughor strongat all. Moreover,Wu
Guodongwas morethantwice the offender'sage, andit seems credible
that he could have sought to use coercion to sodomize him, taking
advantageof his youthfulweakness.
158 MODERNCHINA/APRIL 1997

The governor-generalthenpersonallyinspectedthe prisoner,drewthe


same conclusion, and confirmedhis originalrecommendationto the
palace (ChangWejen, 1986: 133-99).
A degreeof leniency towardmales who committedhomicidewhile
resisting rape was codified in the late eighteenth century, but in
additionto unimpeachableevidence of a rape attempt,any offender
to be grantedleniency had to meet strictqualificationsbased on age.
A substatuteof 1783 specified that for a reductionof penalty to be
considered, it was necessary for "the dead man to be at least 10 sui
older thanhis killer";furthermore,"if the dead man andhis killer are
of the same age, or if the dead man is only a few sui older,"then the
case shouldbejudgedaccordingto thebasic homicidestatuteswithout
any reductionof penalty.Twelve years later,an amendmentgranted
thateven if the dead man were "notquite 10 sui olderthanhis killer,"
but strictevidentialrequirementswere met, then a reducedsentence
could apply.In 1823, a final measureabsolved boys of fifteen sui or
underof any penaltyfor killing men at least ten sui older who triedto
rape them, as long as strictevidential requirementscould be met; if
the evidence did not quite meet the strict standardof the substatute,
but authoritieswere persuadedthe boy was resisting rape, then he
would receive a nominal sentence to be commuted to a fine (see
AppendixB; Qing huidianshili: 801/769).
The intentof this legislationwas to preventmurderersfrom escap-
ing with penalties lighter than they deserved (Wu Tan, 1992: 785;
Meijer, 1985: 124-126). However,by spelling out the narrowcircum-
stances that partlyexcused such homicide, the judiciaryalso articu-
lated its image of a plausibly rapablemale. Only a boy or a young,
weak man attackedby someone older and more powerful might be
successfully raped,andthereforemightbe excused for resortingto an
equalizingweapon like a knife in self-defense.
No such equation of youth with powerlessness appears in the
elaboratejudicial discourse on heterosexualrape. Any woman who
immediatelykilled a man attemptingto rapeher was excused punish-
ment; the code mentions no qualificationbased on age (Xue, 1970:
285-20). Among males, only those fifteen sui and under could be
grantedsuch completeclemency,andonly if they were at least ten sui
Sommer/ THEPENETRATED
MALE 159

younger thantheir attackersand could meet an unusuallystrict stan-


dard of evidence (includingconfession of the rapistprior to death).
The implicationwas to associate the powerlessnessand penetrability
of being very young with beingfemale:the weakness(andconsequent
need for an equalizingweapon) of any woman was on a parwith that
of a young boy.
Adult males were seen as powerful and nonpenetrable;therefore,
penetrationof a male could be explained only in terms of youthful
powerlessnessor shamefulconsent. Females of all ages were seen as
powerless and penetrable,but were expected to safeguardthat pene-
trability by whatever means necessary, the classic scenario being
chaste martyrdomratherthanhomicide in self-defense.
Thus the Qingjudiciaryimaginedthe male rapevictim as juvenile,
thereforepowerless;powerless, thereforepenetrable;and,being both
powerless and penetrable,thereforeapproximatingthe condition of
being female. It was sucha conditionthatmadeit possible to conceive
of males as rapable.The discourseof liang never includedmen who
penetratedothermales, any more thanit includedmen who engaged
in illicit sex with women; liang applied only to males and females
positioned in the "female" sexual role. Feminists argue that to be
rapable is to be socially female, regardlessof biological sex (e.g.,
MacKinnon,1989: 178). The Qingjudiciaryseems to have takenthis
view quite literally.'4

PATTERNS
OF SOCIALPRACTICE

PARALLEL
HIERARCHIES

Thejudicial perspectivecorrespondedclosely to widespreadsocial


practices and perceptions.Most obviously, the penetratedmale was
younger than his penetrant,so that the genderedhierarchyof sexual
roles coincided with thatof age. This is truein all case recordsI have
seen, including both rapes and amicable sexual relationships,with
only two exceptions. Both exceptions (examined below), however,
prove the rule that the hierarchyof sexual roles was seen properlyto
conform to age hierarchy.
160 MODERNCHINA/APRIL 1997

Not only was the penetratedmale younger,but in the majorityof


cases he was unmarriedand in his teen years or younger(again, this
includes both rapes and consensualunions). The youth of the pene-
tratedmale is accentuatedby its eroticization:penetrantsfrequently
testified thatthey were attractedto the youthandto such youthfuland
feminized featuresas the "cleanand white skin"of those they pene-
trated.l5Here we see a conflationof eroticizedyouth, femininity,and
penetrability.
Hierarchiesof age and of sexual role often parallelothers:status
(e.g., Buddhistor Daoistclergypenetratingnovices),class (employers/
masterspenetratingemployees/servants),and economic means (with
the penetrantprovidingmoney or othervaluablesto his partner).The
effect is to reinforcethe genderedpowerrelationsalreadyinherentin
the hierarchyof sexual roles. This finding is supportedby contempo-
rary fiction, in which the homosexual roles conform to and are
confirmed by parallel hierarchies(Hinsch, 1990: 134-136; Vitiello,
1992).
In the consensualsame-sexunionsreportedin legal cases, thereare
signs apparentlygendering the penetratedmale as female. Some
involve economic division of labor:in one case, the penetratedmale
wove cloth at home, which his lover sold at market.In many cases,
two or more penetrantsfought over a penetratedmale, but I have yet
to see the opposite; the penetratedmale appears as an object of
possessive desire.'6 Sometimes, the relative authority of partners
mimicked that of contemporaryheterosexual couples. In a 1762
examplefromGuangdong,PanAsan (eighteensui) lived with andwas
informallyapprenticedto a barber,Miao Aliu (twenty-six sui), who
penetratedhim. Pan ran away for several days, staying with another
man, whom he allowed to penetratehim; finally, Miao trackedhim
down, took him home, and scolded him. After that, Pan often defied
and cursed his partner.One evening, he refused to sharpenrazorsin
preparationfor the next day's work,so Miao beathim;laterthatnight,
Pan refused to be penetrated,so Miao strangledhim (Xingke tiben:
170/QL27.4.18). This scenarioclosely fits the patternof wife killings
recordedin Qing legal archives, in which a wife's failure in gender
duty (adultery,leaving home without permission, refusing sexual
Sommer/ THEPENETRATED
MALE 161

intercourse,and other defiance) provokes her husbandto homicidal


rage.

THEADULTMALEAS PENETRANT

Legal cases suggestthata male's sexualrole could change,depend-


ing on his stage in life (cf. Hinsch, 1990: 136). Most basic is the sense
that a fully socialized adult male should be a marriedhouseholder,
whose role is to penetrate(his wife), not to be penetrated.Marriage
representedthe key rite of passage in attainingsocial adulthood;with
consummation,both male and female took up theirrespective social
and sexual roles, as husband(penetrant)and wife (penetrated).
Several cases reveal a change in perceivedrole of a male who had
in his youth consented more or less willingly to being penetratedby
an older man. Sometimes the younger man, having matured,rejects
the advances of his former lover: "I'm grown up now, and I'm not
going to do that"(Xingke tiben: 177/QL27.3.30).
Sometimes this change in attitudecoincides with takinga wife. In
a 1739 case from Sichuan,the peasantZhou Jiu (nineteensui) killed
an older monk namedQing Yue. Accordingto Zhou's confession, he
lived not farfromQing'stemple;in 1736,Zhouhadgone thereto play,
whereupon Qing Yue persuadedZhou to let him penetratehim in
exchange for some walnuts.They had sexual intercourseonce, after
which Zhou did not returnto the temple. One day in 1738, Qing Yue
triedto repeattheirsexualencounterby force, so Zhoukilled the monk
with a knife. When arrested,he claimed self-defense, but the magis-
tratewas skeptical:"SinceQing Yuehadalreadysodomizedyou, why
did you rejecthim on this one occasion?... Obviouslytherewas some
otherreason why you wished to stab him to death."Zhou responded:
"Before,I was still young, and was sodomizedby him because I was
greedy to eat walnuts. When I later recalled this, I was deeply
ashamed. Now, I've alreadygrown up, and have also taken a wife.
How could I still be willing to do this shamefulthing?"The magistrate
accepted this explanation,as did his superiors(Xingke tiben: 71/QL
4.7.12).
A male's changing sexual role figured too in a 1739 case from
Shandong,in which the peasantDong Er (twenty-eightsui) killed an
162 MODERNCHINA/APRIL 1997

older monk surnamedSun. Dong testified:"WhenI was a boy, I often


went to the temple to play, and was seducedby monk Sun, who gave
me sweets to eat, and sodomized me. Later, monk Sun moved to
FengshanTemple,a littleoverfourli from[ourvillage]. He oftencame
to our village to collect alms, and when it got late he would spendthe
night at our house, and would have illicit sex with me."
Then, in late 1734 or early 1735, at the age of twenty-onesui, Dong
Er took a wife. As Dong recounted,"MonkSun told me many times
that he wanted to sleep with my wife, but I didn't let him. But in
Qianlong 1 (1736), I was too poor to get by, and I often asked monk
Sun to lend me a hundredcash or so to buy rice; then I let him have
sex with my wife. After that, he often came and went, and I spent
severalhundredcashof his."Povertyfinallyforcedthe coupleto move
in with the wife's natal family, which hamperedSun's sexual access
to the woman. Shortlythereafter,Dong went to Sun's temple to ask
for anotherloan to get throughthe winter;Sun refusedto pay unless
Dong broughthis wife to live nearby.Dong then revealedhis plan to
travel to the east in search of employment.Sun got into a huff and
went to bed (it was evening); Dong (who was spendingthe night at
the temple),climbed onto the kang with him andwent to sleep. Later,
however,Sun woke him up and againpressedhim to move nearbyso
they could continue their arrangementof tradingsex for money; a
quarrelensued, in which the monk cursedDong, who then beat him
to death.
In six years, then, Dong went from being Sun's willing penetrated
partner,to takinga wife andbecominga penetrantin his own right;at
this point, Sun's sexual interestshifted from Dong to his new wife,
and, in exchangefor money,Dong begansharinghis wife so thatboth
men could penetrate her. The focus of Sun's lust had shifted so
completelythaton his last,fatalnight,he evincedno interestwhatever
in having sex with Dong himself, even thoughthe two men were in
bed together(Xingke tiben:69/QL4.6.20).
What stands out is not simply that hierarchyof age-reinforced
hierarchyof sexual role, but that fully socialized adultmales should
be penetrantsonly. Such a transitionmight involve severalelemnients:
age (growing up); marriage(taking up the social role as husband,
reinforcedby the sexual role as penetrant);and avoidance of being
Sommer/ THEPENETRATED
MALE 163

penetrated (if it had happened before, preventing it from happening


again).

THESTIGMAOF BEINGPENETRATED

Cases from various regions of China reveal a pervasive, powerful


stigma attached to the penetrated male, a stigma that did not touch his
partner. Some men who wanted to penetrate others violently refused
to be penetrated themselves.
In a 1738 case, Wang Si (twenty sui), a poor man from Gu'an
county, was looking for work in Beijing as a casual laborer. One winter
evening, having no money to pay for space in a heated public room at
an inn, Wang squatted at the base of the city wall by Chongwen Gate
to get through the night. In the middle of the night, Wang was accosted
by another man-later identified as Dong Kui (mid-twenties), an
impoverished bannerman who beat a drum in funeral processions-
who planned to sleep by the wall as well. As Wang later testified,

[Dong] said, "If the two of us sleep together,we'll be warmer."I said,


"I'm not sleeping next to you," and he said, "If you don't sleep with
me I'll beat you up."I saw he was big and strong,and that I couldn't
win a fight with him, so I [agreedto] sleep next to him.
Then he felt my pants, ... saying, "Ifyou let me sodomize you, I'll
buy you a pairof cottonpantsto wear."I said, "Ifyou let me sodomize
you, I'1 give you a pairof cottonpants."He cursedme, saying, "Ifyou
don't let me sodomize you, I'll beat you to death!"
It was the middle of a darknight, and no-one was around,... so I
was afraid;I tricked him, saying, "Now it's still early, and someone
might walk by and see us; thatwould be embarrassing.Why don't you
sleep for a while and then we'll talk aboutit?"So he went to sleep.
After Dong fell asleep, Wang Si murdered him.
Even if his retort about reversing roles may have been facetious,
Wang seems to have felt that penetrating Dong would be better than
being penetrated by him-and Dong took the retort as an insult,
growing belligerent in response (Xingke tiben: 74/QL 4.3.2).
Sometimes, the shame felt by the penetrated male contrasts sharply
with the bravado of the man who has penetrated him. A 1738 case from
Zhili clearly shows this contrast. One night, Li Xuan (twenty-nine sui),
164 MODERNCHINA/APRIL 1997

a casual laborer from Wenshui County, Shanxi, was sleeping at the


home of two friends, Niu Yongtai and Chi Tingguang; these two lived
and farmed together (one wonders about their relationship). The three
men were sharing the same kang; as Li later testified:
I was alreadysoundasleep, when thatNiu Yongtaistartedto sodomize
me. I was awakenedby his sodomizingme (bei ta jian xing le), but at
the time, since Chi Tingguangwas also on the kang,andsince this kind
of shamefulthing is not easy to speakof, all I could do was bearit and
keep silent.
Some days later, Li met an acquaintance, Wei Minghou, in a wine
shop:
He said to me, "You men from WenshuiCounty are all born to be
rabbits."I thoughtof Niu Yongtaisodomizingme, and suspectedthat
Niu Yongtaihadn'tkept his mouthshut and had told people about it,
so that Wei Minghou had that in mind when he made this comment;
because of this, I felt ashamed.

Li went to Niu's home to confront him; it was night, and Niu was
already in bed:
I said, "Yousodomizedme, but I bore it withoutsaying anything,but
now you've gone andtold otherpeople aboutit-what is this supposed
to mean?Get up, so we can settle this!"He said, "ButI'm not going to
get up.Whatareyou going to do aboutit?"I saw therewas a rocksitting
on the stove, so I picked it up to threatenhim, saying, "Ifyou don't get
up, I'm going to beatyou!"Niu Yongtaisaid, "I'11bet a rabbitlike you
wouldn'tdare!"

Li Xuan took the dare, and beat him to death. After confessing, he
summarized his motive:
In truth,becauseNiu Yongtaisodomizedme, and then I was ridiculed
by others, and then, when I went to confrontNiu, he cursed me as a
"rabbit"-becauseof all this,I becameso extremelyangrythatI wanted
to beat him to death.

Clearly, Niu Yongtai was not ashamed of his lust for another man; he
did not consider himself a "rabbit"(slang for a male prostitute).'7 Li,
in contrast, felt deeply shamed by having been penetrated and espe-
cially by publicity of that fact. It seems that his role in the act was far
MALE
Sommer/THE PENETRATED 165

more shamefulthan any sense of having been taken advantageof or


coerced.It was moreimportantto Li thatChiTingguang,asleepbeside
them, not find out thathe was being penetratedthanit was to stop the
intercourseitself-so he sufferedthe act to continue.Equally,it was
public loss of face, more thanthe fact of havingbeen penetrated,that
provokedLi to confrontand kill Niu (Xingke tiben:76/QL 4.3.23).
Men penetratedin amicable relationshipsfeared public exposure
as well. This seems especiallyclearwhenthe sexualpartnersinhabited
a larger community of peasant households. (In contrast, same-sex
unions in all-male contexts outside mainstreamcommunities-e.g.,
amongsoldiers,sailors,or clergy-appear to havebeen less secretive;
case recordsshow that such relationshipswere often well-known to
couples' associates.)In severalcourtcases, publicknowledgethatone
had been penetratedwas described as a powerful loss of face: the
phrases most commonly used are "to have no face" (mei lianmian);
"to lose face" (diu lian); and "tobe unableto face people"(jian bu de
ren). The force of humiliationthroughvillage gossip is a majorfactor
in a largeproportionof cases involvingthe gamutof sex offenses, both
heterosexualand homosexual. It is repeatedlycited as a motive for
desperateacts, including homicide (to avoid or avenge exposure of
rape, adultery,or homosexualrelations),suicide (by women despair-
ing over the stigmacausedby rapeor sexualproposition),andamateur
abortion(most often by widows, to avoid the exposureof an affair).
A case from Zhili illustratesthe pressureof stigmaon an amicable
relationshipbetween two young men. ZhangQibao andHuangNiuer
were hired as long-termlaborersby peasantBai Chengwen in 1727,
when they were twenty-fourand nineteen sui, respectively; neither
was married,so they shared a bed at Bai's house and soon began
having sex. Early on, the men may have alternatedroles-Zhang
confessed that he and Huang had "sodomizedeach other,"although
later, Zhang played the penetratedrole, in spite of being older than
Huang.As Zhangrecalled,"At thattime we swore not to tell anyone
else," and then "hada good relationshipfor these four or five years."
In 1731, the two men began workingseparatelyfor otheremploy-
ers, and since they no longer lived together,they met at the village
temple to have sex. One time, a villager happenedupon them and
asked what they were doing, and to Zhang's horror,Huang told him
that he had been sodomizing Zhang. As Zhang later confessed, "I
166 MODERNCHINA/APRIL 1997

couldn't believe it. ... I thought to myself, I'm a man of almost 30


sui, but here he goes telling otherpeople aboutthis; everyone in the
village will find out-how will I be able to face them?I felt incredibly
angry. ... To my surprise, he wouldn't admit he was wrong, but
insteadarguedandbeganto curse me. I becameeven angrier."Zhang
laterused an ax to kill Huangwhile he was takinga nap.
In the first hearingof his case, Zhang made no effort to deny the
murder,but in an apparentattemptto protecthis reputation,he did not
confess the sexual relationship-instead asserting that Huang had
"defamed"(wu mie) him by claiming to have penetratedhim. He did
not revealthe truthuntila secondhearing(the recorddoes not say why
he confessed, but clearly no one in the communityhad suspectedthe
men were more thancasual friends).
As an unmarried,poorlaborer,Zhanghadfew claimsto statusin his
community.The only ones, perhaps,werehis maturityandmasculinity,
yet even thesemeagerenoughclaimswouldbe severelyunderminedby
publicknowledgethathe hadbeenpenetrated,andby a youngermanto
boot.HuangNiuerobviouslydidnot shareZhang'sconcern:Huangtold
Bai thathe hadpenetratedZhang,braggingaboutan act thatapparently
enhancedhis own masculinity(ChangWejen,1986:50-54).
Similarpressureswere at workin a 1762 case fromHubei,in which
three men from Xiaogancounty workedas hiredlaborersin Zaoyang
county (about 200 kilometersto the northwest).Wu Damou (thirty
sui) had been sexually involved with his sworn older brother,Shi
Shikong (thirty-onesui), for six years. As their relative ages would
suggest, Shi penetratedWu.Wuactuallyhada wife anddaughterback
in Xiaogan;becauseof poverty,he hadleft themin 1761 to accompany
Shi to Zaoyang, where they were employed by Zhu Fengqi working
ten mu of land, andlived in a roomof Zhu'shouse. Wu supplemented
their income by weaving cloth, which Shi sold at market(note the
apparentgenderingof householdroles). Accordingto Wu,the couple
"got along extremelywell."
After six months, they met another immigrant laborer from
Xiaogan, Liu Huaizhi(twenty-foursui); he moved in with the couple
and swore brotherhoodwith them. Withinthree days of moving in,
however,Liu had discoveredthe couple's sexual relationshipand the
division of roles within it; on the thirdday he caught Wu alone and
gave him an ultimatum:if Wu would not let Liu penetratehim as well,
MALE
Sommer/ THEPENETRATED 167

Liu would expose Wu as Shi's penetratedsexual partner.Wu submit-


ted. Shortly thereafter,an outraged Shi Shikong discovered their
liaison; Wu then moved out with Liu, but two weeks later,jealousy
provokedShi to murderLiu.
Shi Shikong and Wu Damou were arrested,and at trial the magis-
tratepressedWu to explain his behavior:"Youhad had sodomy with
Shi Shikongfor severalyears, so youraffection(qingyi) for him must
have been greater.Why did you stop living with Shi Shikong, and
instead move in with Liu Huaizhi,with whom you had been having
sodomy for only a shorttime? Furthermore,Liu Huaizhi is younger
thanyou; how could you let yourselfbe sodomizedby him?"
Wu's answer:
At first my affection with Shi Shikong was stronger.But our illicit
relationshiphadbeen discoveredby Liu Huaizhi,so thatone day when
he saw Shi Shikong was not at home, he trappedme [with his knowl-
edge] and demandedto sodomize me; even thoughhe's youngerthan
I am, I had no choice but to submit.
Afterwards,we were discoveredby Shi Shikong,andhe madea big
scene.... I fearedthatoutsiderswould find out and I would lose face.
At thatpoint, Liu Huaizhitold me thatall threeof us living togetherin
a single room madethingsinconvenient,so he rentedanotherplace and
asked me to move therewith him. I thoughtto myself that if I moved
out with him ... at least we could avoid quarrelsand the risk of being
overheardand ridiculedby outsiders.

At a second hearing,pressedagainby the magistrate,Wu added:"As


far as me being somewhat older than Liu Huaizhi-I had done this
vulgar thing with Shi Shikong, and because this had been found out
by Liu Huaizhi, I was trappedand extortedby him so that I had no
choice but to let him do as he wished."
Everyoneseems to havefoundit strangethata youngermale should
penetrate an older one-but the magistratefinally accepted Wu's
explanationthat fear of exposureas a penetratedmale forced him to
submitto the privatehumiliationof submittingto a youngerman.Wu's
fear was so greatthat it inducedhim finally to abandonthe lover for
whom he had had such affectionand to move in with his blackmailer.
It was Liu's awarenessof the stigma of being penetratedthatenabled
him to manipulateWu in this way (Xingke tiben: 185/QL27.9.24).
168 MODERNCHINA/APRIL 1997

The interrogationof Wu underscoresthe coherencebetweenjudi-


cial standardsandpopularperceptionsin this area.It seems thatstigma
would attach to any male who was penetrated,but that penetration
might be morecomprehensibleif it conformedto the sexual partners'
respectivepositionsin otherhierarchies:age, class, wealth,andso on.
Only a violation of the "natural"congruence of these hierarchies
requiredspecial explanation.]x
Homosexual relationshipscould obviously be more complex-
both physically and emotionally-than an exclusive focus on anal
intercoursewould imply.Case recordsshow magistratesdeveloping
evidence about particularacts to be prosecutedas crimes: it was the
judicial fixationwith sodomy which gives thatact muchof its promi-
nence. We cannothope to learnfromthese sourcesthe entiremeaning
of such relationshipsto the participants.
Nevertheless,legal cases provideenough informationon the sym-
bolic meaningof sodomyto show thatthejudicialconstructionof that
act conformed to a more pervasive patternof understanding.The
judicial analogybetweensodomyandheterosexualillicit sex codified
the contemporarycommon sense of what phallic penetrationmeant
for both penetrantand penetrated.

MALES
MARGINALIZED

The greatmajorityof legal cases of both coercive and consensual


homosexual acts involve men excluded from mainstreampatternsof
marriageandhouseholdby some combinationof economic condition,
social status,and occupation.They are hiredlaborers,beggars, Bud-
dhist and Daoist clergy, soldiers, sailors, pirates, itinerantbarbers,
peddlers, and so on. A fair numberare impoverishedimmigrants;
almost all are unmarriedand withoutfamily ties. In short,these are
the marginalizedindividualmales left out of the mainstreamof Qing
society.
That is not to say that elite men never engaged in sex with other
males. But it went without saying that men of means would be
expected to marryand to beget sons who could carryon the patriline
and inherit family property.Such men might penetrateservants or
patronizeactors and prostitutes(more marginalizedmales), but such
Sommer/ THEPENETRATED
MALE 169

pleasures would not likely be allowed to interfere with heterosexual


duty. A paradigmatic example might be the Qianlong emperor, who
managed to sire twenty-seven children in spite of his reputed taste for
men (Hummel, 1970: 372). "
To the extent that there existed a social identity linked to homosex-
ual relationships, it was probably associated with the marginalized
males who for whatever reason could not buy into the valorized pattern
of marriage and household, and who bonded with other men of similar
condition as a way to satisfy a range of human needs. The consensual
relationships found in legal cases often coincide with some form of
resource-pooling, co-residence, and fictive kinship (sworn brother-
hood, master/novice ties). Sexual bonding seems to play a partly
functional role, as one element of multifaceted alliances in a world
hostile to individuals on their own.2"
The late Ming literatus Shen Defu took for granted same-sex unions
among men isolated from sexual contact with women:
Sometimes,males aretakenas sexual objects(nan se) becausethereis
no alternative.For example, men who live in monasteriesmust take
leave of the female quarters,and the statutes binding on Buddhist
priests prohibit illicit sex [with females]. It is the same with those
private tutorswho live as guests in dormitories.These men must all
adaptto circumstances(jianjing sheng qing) andsettle for second best
(tuo wu bi xing)-the situationcannot be avoided. In addition,there
are criminalsin prison for a long time who, if given the chance, will
inevitablyseek out a manto serve as a mate.... Also, in the northwest,
the soldiers of the frontiergarrisonare too poor to pay to sleep with
prostitutes, so they always pair up with fellow members of their
ranks.... It is lonely, bitter,and distasteful, but such men do these
thingsbecausetheyhaveno choice.... It is laughable,butalsoinspirespity.
Shen contrasted this "normal" pattern with what he saw as a new,
decadent fashion among "gentlemen of ambition who install young
catamites (luan tong) among their servants," or who pursued actors.
What made this fashion decadent, Shen implied, was that elite men
enjoyed more than adequate outlets for sexual energies within mar-
riage (and concubinage); for such men, sodomy was a wanton indul-
gence of lechery (Shen, 1976: 24/26a-b; Furth, 1988: 13-16).
Such stereotypes may have influenced the judicial characterization
of homosexual penetrants, whose unsullied masculinity did not nec-
170 MODERNCHINA/APRIL 1997

essarilyearnthemrespectability.Legislationagainsthomosexualrape
portrayedthe rapistas an "evilrascal"(e gun),an "evilcharacter" (e tu),
a "degenerateevil character"(bu xiao e tu), or a "rootless rascal"
(guang gun, literally,"barestick";gun-"stick"-meaning anunmar-
ried rogue with no family ties). Such characterizationimplies thatthe
law aimed to protectthe vulnerablemales of properhouseholdsfrom
penetrationby rogueindividualsnotboundby familyorcommunity-
an implicationreinforcedby the legal case records.It also parallels
the Qingjudiciary'sstereotypeof heterosexualrape,in which a poor,
unmarriedmale rapesa chastewomanof uprighthousehold-most of
the men prosecutedfor rapingwomen also seem to havebeen margin-
alized males. Such stereotypesreflect the state'sfear thatindividuals
not subjectto socializing bondsthreatenedthe family networkunder-
pinning social and political order(Sommer,1994).

CONCLUSION

The model for thejudicialconstructionof sexualrelationsbetween


males was heterosexualintercoursein conditionsof genderinequality,
in which the roles of penetrantandpenetratedwere perceivedas fixed
to the male andfemale, respectively.Male subjectactedupon female
object; in such circumstances,the act became inextricablyboundup
with the unequal distributionof power in the gender hierarchyand
constitutedboth an expressionof thatunequalpower and a means of
inscribingit on the bodiesandpsychesof partners.Penetrationbecame
both the metaphorand physical expressionof genderdomination.
In the properorderof things, as seen by jurists, sexual intercourse
took place only within marriage.The husbandandmasterpenetrated
his wife: by doing so, he reproducedthe patriarchalhousehold and
reinforcedthe axis of genderhierarchyat its heart.
In late imperialChina,males andfemalescame of age socially with
marriage;a key transitionpoint was its sexual consummation.Qing
legal sources and common parlance referredto consummationas
cheng qin or cheng hun:literally,"tocomplete/accomplishmarriage,"
this cheng being the samewordused for the "accomplishment" of rape
through penetration. Without consummation, a bride might be re-
jected, as sometimes occurredwhen she refused intercourse or when
Sommer/ THE PENETRATED
MALE 171

some anomaly of her anatomypreventedthe groom from achieving


penetration(Xingke tiben:74/QL 4.3.27).
Withconsummation,male andfemaletookup theirrespectivesocial
roles as husbandand wife, embodiedin theirsexual roles as penetrant
and penetrated.Penetrationrepresentedan initiationinto genderedand
hierarchizedroles: in Bourdieu'sterms, these symbolic connections
representa homologybetweensexualandsociopolitical domains(1990:71).
During the Ming and Qing dynasties, both chastity cults and
criminalpenaltiescodified this vision of penetration.If a womanwere
penetratedoutside of legitimatemaritalcontext (by illicit sex, widow
remarriage,or rape), then she suffereda pollutionof her chastity,an
objective degradationthat imperialchastitycults symbolizedby dis-
qualifyingherfromcanonization(if she were a victim of rape/murder
or rape/suicide). Such pollution correspondedto that of debased
status:therefore,the rapeor abductionof a woman pollutedby illicit
sex or by debased status caused less harm than that of a chaste
commonerwoman and would be punishedless severely.
This vision of penetrationandpollutioninformedboth the popular
perceptionand the judicial constructionof anal intercoursebetween
males. For males, too, penetrationpositionedboth roles on a hierar-
chy; the penetratedsuffered a loss interpretedas an inversion or
degradationof masculinity.The penetrantsufferedno such loss, as he
played the definitively masculinerole.
The prosecutionof illicit sex (jian)originallyaimedto controlaccess
to women;therefore,theearliestlaws againstintercoursebetweenmales
did not call thatactjian. Nevertheless,even Song andMing legislation
againsthomosexualacts sharedwithjian a fixationwith the polluting
dangerof penetrationoutof place.ThissharedfixationinformedtheQing
innovationof reconstructing sodomyas a variantofjian: hencethe logic
of equalpenaltiesfor "parallel"homosexualandheterosexualoffenses.
Eighteenthcenturyconcernaboutsodomy,like thecontemporary obses-
sion with female chastity,did not appearex nihilo;heightenedanxiety
aboutgenderperformancepromptedQingjuriststo scrutinizesodomy
moreclosely,buttheirconstructionof thatcrimerevealsa basiccontinu-
ity with whatcame before.
In law andpopularperception,then,penetration(of male or female)
was understoodas a potentand even dangerousact. Dependingon its
context,penetrationcouldimposeoroverthrowlegitimatehierarchies;it
172 MODERNCHINA/APRIL 1997

could reproduceor invertgender order;it could initiatepersons into social


adulthood,or inflict a pollutingstigmathatprovokedhomicide and suicide.
We begin to understandwhy no Qing or earlier legal text even refers
to, let alone bans, female homosexual activity. The lack of legal refer-
ences does not, of course, imply that women never formed erotic rela-
tionships with each other-there are plenty of references in nonlegal
sources (see Dai Wei, 1992; Hinsch, 1990; Topley, 1975; Van Gulik,
1974). Nor does it mean that Qing lawmakers were necessarily ignorant
of such matters. Sex between women was simply not constructed as a
crime. This makes sense, given the phallocentrism of both law and social
norms: if gender and power were keyed to a hierarchy of phallic pene-
tration, then sex without a phallus would seem to undermine neither.
The conflation of eroticized youth, femininity, and penetrability
implies an instability in the gender of young males, especially prior
to transition with marriage to adult masculinity. It seems that young
males were perceived as vulnerable to penetration, and, in that sense,
as potentially female. (Some of our cases show adolescent males being
relatively open to penetration, an attitude some abandoned with ma-
turity.) Thus, in the statutory language, it is the unpenetrated (liang)
"sons and younger brothers" of commoner (liang) status who must be
protected-vulnerable junior males who have not yet emerged from
ambiguous youth into masculine adulthood.2' Moreover, they must be
protected from the rogue male threateningthe household from without.
Qing jurists aimed not to protectindividual rights,but ratherto channel
behavior into accepted gender roles-an ever greater priority as other
social boundaries blurred. The spate of new laws against sodomy be-
trayed greaterfear of the threatto vulnerable males, but also, perhaps, of
their possible enjoyment of roles that conflicted radically with the
demands of order.Pollution of female chastity threatenedthe gendered
hierarchyof the household, but the degradationof masculinity did so too.

APPENDIXA: The 1734 Substatuteon Sodomy

If evil characters(e tu) gatherin a gang and abducta young man of good
character/commonerstatus (liang ren zi di-literally, "a son or younger
brotherof someone of good character/commoner status")and forcibly so-
Sommer/ THEPENETRATED
MALE 173

domize him (qiang xing ji jian), then the ringleadershall be sentenced to


immediate beheading, according to the substatute on "rootless rascals"
(guang gun). The followers, if they have also sodomizedthe victim, shall all
be sentencedto strangulationafterthe assizes;remainingoffenders[who did
not commit sodomy] shall be deportedto Heilongjiangto serve as slavesfor
the armoredtroops there;these sentences shall apply regardlessof whether
the offendershave committedhomicide in the course of the crime.
Even if he has not gathereda gang, whoevermurdersa young manof good
character/commoner statusfor illicit sex (jian),or luresaway a young boy of
10 sui or under and forcibly sodomizes him, shall also be immediately
beheadedaccordingto the substatuteon "ringleadersof rootless rascals."
Whoever rapes (qiangjian) a young boy of between 10 and 12 sui shall
be sentencedto beheadingafterthe assizes;whoeverconsensuallysodomizes
(hejian) a boy of such age shall be sentencedto strangulationafterthe assizes
accordingto the statutethatprovidesthat"whoeverengagesin illicit sex with
a young girl shall receive the penaltyfor coercioneven if she consents."
If one man by himself commits forcible sodomy (qiang xing jijian), but
has not injuredthe victim, then he shall be sentencedto strangulationafter
the assizes. If the offenderinjuresthe victim butthe victim does not die, then
he shall be beheadedafter the assizes. Whoever attemptsrape but does not
accomplishthe act (wei cheng), and does not injurethe victim, shall receive
100 blows of the heavy bambooand life exile at a distanceof 3000 li. If the
offenderinjuresthe victim with an edged weaponbutthe victimdoes not die,
then the offendershall be sentencedto strangulationafterthe assizes.
If a man consents to be sodomized (ru he tong ji jian zhe), then the
offendersshall receive one monthin the cangue and 100 blows of the heavy
bambooaccordingto the substatuteon "soldiersorciviliansengagingin illicit
sex" (jun min xiangjian).
If someonefalsely accusesanotherman of sodomy,or commitsothersuch
fraud,andthe truthcomes out in a courthearing,thenthe offendershallreceive
the penaltymandatedfor the crimehe has falselyaccusedthe otherof commit-
ting, with the exceptionthatdeathpenaltiesshallbe reducedby one degree;if
the penaltymandated[forthe sodomyfalselyalleged]is immediatebeheading,
then the offendershall be deportedinto militaryexile at the farthestfrontierat
themaximumdistanceof 4000 li, accordingto thesubstatuteon "evilcharacters
who causetroubleandcommitviolentacts"(e tu shengshi xingxiong).

OFTHESUBSTATUTE
BACKGROUND

This substatutewas addedto the Qing code in the second lunarmonthof


1734, in response to a memorial from Xu Ben, the governor of Anhui.
Originally,the substatuteprovidedthat
continued
174 MODERNCHINA/APRIL 1997

APPENDIX A Continued

Someone of 16 or 17 sui can still be considereda child who misbehavesout


of ignorance;if [a young man of such age] rapesa young boy or girl, then his
penalty should be reduced from those mandatedby statute for rape that is
"alreadyaccomplished"or "notaccomplished."

Subsequently, senior officials protested that a male of 16 or 17 sui was


already an adult and should be held accountable for his actions; in 1740 the
provision was eliminated from the substatute.
The brief portion in italics specifying site of deportation was added in 1851
(Qing huidian shili: 825/989; Xue, 1970: 366-03; Wu, 1992: 951-952; for an
alternate translation, see Hinsch, 1990: 143).

APPENDIX B:
Males Who Commit Homicide While Resisting Rape

If a male commits homicide while resisting rape (nanzi ju jian sha ren),
and he is 15 sui or under, then he shall not be punished, regardless of whether
he has committed planned or purposeful homicide or has committed homicide
in a fight, as long as three conditions are fulfilled: (a) the dead man is at least
10 sui older than the killer, (b) there is testimony and other proof at the scene
to allow an accurate assessment of the facts of the case, and (c) the dead man,
prior to death, confesses in a manner compelling enough to serve as proof,
or his relatives testify in a reliable manner acknowledging his guilt; if the
homicide was not committed immediately upon the rape attempt, then the
offender shall be sentenced to 100 blows of the heavy bamboo, to be
redeemed in cash according to the statute [on crimes committed by minors].
If the offender is at least 16 sui, and he committed the homicide immedi-
ately upon the rape attempt, then he shall receive 100 blows of the heavy
bamboo and three years of penal servitude; if the homicide was not committed
immediately upon the rape attempt, then he shall receive 100 blows of the
heavy bamboo and life exile at a distance of 3000 li.
If one of the following three conditions is fulfilled: (a) the dead man
provides no confession prior to death, but he is at least 10 sui older than his
killer, and it is clear that the homicide was committed while resisting rape
and for no other reason; or (b) the dead man is not quite 10 sui older than
his killer, but there is compelling testimony and other proof that the homi-
cide was committed while resisting rape; or (c) the dead man, prior to death,
confesses in a manner compelling enough to serve as proof, or his relatives
testify in a reliable manner acknowledging his guilt-then, as long as the
Sommer/ THEPENETRATED
MALE 175

offenderis 15 sui or under,andhe committedthe homicideimmediatelyupon


the rape attempt,he shall receive 100 blows of the heavy bambooand three
yearsof penalservitude;if he did notcommitthe homicideimmediatelyupon
the rape attempt,he shall receive 100 blows of the heavy bamboo and life
exile at a distanceof 3000 li; the abovepenaltiesshall all be redeemedin cash
accordingto the statute[on crimes committedby minors].
If the offenderis at least 16 sui then, regardlessof whetherthe homicide
was committedimmediatelyupon the rapeattempt,he shall be sentencedto
strangulationafter the assizes, according to the statute on "unauthorized
homicide of a criminal" (shan sha zui ren).
If the dead man is the same age as his killer,or is only a few sui older,or
if interrogationprovesthereis some otherreasonfor the homicide,and it has
been falsely testified thatthe homicide was committedin resistanceto rape
to conceal this otherreason,then the penaltyshall be determinedaccording
to the basic [homicide] statutes,dependingon whetherit was premeditated
or purposefulhomicide, or homicide in a fight; in the AutumnAssizes, the
determinationof executionorreprieveshallalso be madein the usualmanner.
If the offendertestifies thathe was resistingrape,but thereis no witness
or confession providedby the dead man priorto death to confirm this, and
interrogationproducesno evidence of anotherreasonfor the homicide, then
the penalty shall be determinedaccordingto the basic statuteson premedi-
tated homicide, purposeful homicide, and homicide in a fight, and the
offendershall be granteda reprievein the AutumnAssizes.
If the offender was first sodomized, but laterregrettedthis and rejected
[the sodomist's subsequentadvances],and thereis definiteproof of this, and
he killed the sex offender (jian fei) when again being forced to engage in
sodomy,thenhe shallbe sentencedto strangulationafterthe assizes according
to the statuteon "unauthorized homicideof a criminal,"regardlessof whether
the homicide was premeditated,purposeful,or committed in a fight, and
regardless of the relative ages of the offender and the dead man. If the
homicide was committedfor some otherreason,then the offendershall still
be sentenced according to the basic statutes on premeditatedhomicide,
purposefulhomicide, and homicide in a fight.

BACKGROUNDOF THESUBSTATUTE

This substatutewas createdin 1823 by combininglaws fromthe Qianlong


and early Jiaqing periods; the last clause was added in 1824 (Xue, 1970:
285-33; Wu, 1992: 785; Qing huidian shili: 801/768-769; for an alternate
translation,see Meijer, 1985).
176 MODERNCHINA/APRIL 1997

APPENDIX C

bei tajian xing Ie ft -Ig T jiangshenjingfangrurenfenmennei


bi yin 1l0jt I yin xi WttAA )Xn P
Fi
buxiao etu Tf jun minxiangjian IBR~
changZ liangjiazi di j'3
changren~ A liang min A J
chenqiangyu zhujian E A:15 liangnanji jian i 9] ffi
chenghunji liangrenfu nit A C
chengqin j~ A liangrenzi di A- --
diu lian X J luantong | -V
douou n I mei lianmian RBflB
e gun -g, nanchang9^
etu ,,t nanno bu yi yi jiao ^ C ^
e tu shengshi xing xiongg f$j nanse^F
nanwei chang9 f^1
gu gongfiTI nanziju jian sharen9^-f T A
guanggun Ye/6 naziyu funtldaxiangxuanshu ] - i
hejian [4A
he tongji jian a IN A qiang i
he tongzhe ft] MP: qiangjian S
huiwu guanrurenkout Jll)AA qiangxingji jian it f I &
ii ("chicken")t qingyi 1W
ji ("touse a maleas a female") r ruhe tongji jian zhe tDnfit l tS
jiba E shanshazui ren4M1 ).A
tuowu bi xingt Jtt R
jijian $J
tuzi :+
jianbu de ren ,fAA
wei chengtf
jianfei _
jianjing shengqing , f 1Wt wu mie r^
jianmin RK; yeji ffj
jianwu j yin xin C,1
i
jiangnanzuo no ^: f sT yu liangrenyoujian .1Aj IW
zanlianggegande goudangDqO {fj $
n Jg1t

NOTES

1. See Hinsch'sclaim,basedon a singleworkof fiction,that"malemarriage wasprevalent


enoughin Fujianthatthemenof thatregionevenfeltcompelledto sacrificeto a patrondeityof
homosexuality"(1990:133).Thedeityis a rabbit;since,as Hinschnotes,"rabbit" (tuzi)was
Sommer/ THEPENETRATED
MALE 177

derogatoryslang for a male prostitute,it seems unlikely thatthe authorof the storyexpected to
be takenseriously.For a more sophisticatedtreatmentof the discourseof "malemarriage,"see
Volpp(1994).
2. This articleuses "homosexual"and "heterosexual"as adjectivesfor theirliteralmeanings
of "same-sex"and "different-sex,"and to characterizepracticesor relationshipsonly.
3. In classical Greece, legal codes used separate vocabulary to refer to penetrantand
penetratedbutno clearequivalentsfor the nouns"homosexual"and"homosexuality."Sanctions
of sex between males focused on maintainingproperhierarchy,not unlike the prioritizationof
legal status in Chinese codes. On the other hand, thereis evidence in Greek sources for about
the same range of "sexual orientations"in practice as are familiar in late twentieth century
America. Orientation,in and of itself, was simply not grantedthe primacymany people now
accordit. Indeed,perceptionstodayareby no meansuniformaroundthe world;in muchof Latin
Americaonly the penetratedmale is considered"ahomosexual,"while the penetrantrole confers
"macho"status(Boswell, 1980, 1992).
4. Hinschthinkshe has foundstill earlierevidence. He quotesa law of the Qin dynasty(third
c. B.C.) as mandating penalties for a servant who "forcibly fornicates with his master or
mistress";on this basis, he claims that "theQin code lumps heterosexualand homosexualrape
together"(1990: 142). In fact, the translationshe cites renderthe law thus:"Whena slave rapes
his owner"(Hulsewe, 1985: 169) and "If a servantforciblyfornicateswith a master"(McLeod
and Yates, 1981: 116). Some interpretthe law to mean a male slave who rapedafemale of his
master'shouseholdand cite it as an early example of the priorityof legal status(Zhang,Wang,
and Lin, 1992: 424). The original-chen qiang yu zhujian-seems to stress status difference
rather than the sex of the person raped; in the absence of other evidence, caution seems
appropriate.
5. For legal statusin late imperiallaw, see Jing Junjian(1993), and Ch'u (1965).
6. Each date has been converted to the likely equivalent year according to the Western
calendar.
7. Yangaddsthat"thestatutesincludea measureagainstjijian" (usingtheobscurelogograph
forji), butno such "statute"appearsin any Mingor earlierlegal code. Yangmay well be referring
to Buddhistprohibitions(also known as "statutes,"lii); the possible influence of such prohibi-
tions on secular law awaits furtherresearch.
8. Itis not clearexactly whenor why thelogographfor "chicken"cameintouse, butit already
connoted obscenity, appearingin slang for "penis"(ji ba-"chicken tail") and "streetwalker"
(ye ji-"wild chicken"/"pheasant").
9. An age expressed in sui is one or two years lower than when expressed in the Western
"yearsold": a personaged thirtysui is either twenty-eightor twenty-nineyears old.
10. This substatute(Xue, 1970: 366-01) supersededthe Ming statuteon "consensualillicit
sex" (hejian-366-00) in 1688,being cited thereafterto punishconsensualheterosexualoffenses
among civilians (Sommer,1994: 428; Hoang, 1915: 139; Wu, 1992: 951).
11. Heterosexualoffenses: Xue, 1970: 366-00, 01, 02, 04, 07, 10, and 375-03, 04; homosex-
ual offenses: Xue, 1970: 366-03, 07, 10, and 375-03, 04.
12. Guo's age is not given, so he must have been over twelve sui; we do not know his exact
age, since the source for the case is a brief summaryin a casebook. If he was an adult,then his
case is unusual,since in every archivalexample thatI have seen, the attemptedrapeof an adult
male by a single rapistendedup in courtonly becauseone of the men hadbeen killed (see below).
For anothercase of gang rape, this time involving Manchubannermen,see Xing an hui lan
(52/8a-b).
13. This reasoningreceived formalcodificationin a substatuteof 1775 (Xue, 1970:366-10).
178 MODERNCHINA/APRIL 1997

14. Laws promulgatedby the Taipingrebels in the mid-nineteenthcenturyreveal similar


assumptions about rape: males under thirteen sui who had been coerced would be spared
punishment,but any older male who had been penetratedwas assumedto have consented.No
such age qualificationappliedto females (Sommer,1994: 161; Qiu Yuanyou,1991: 50).
15. Qing erotica depicts the penetratedmale with lighter skin than his penetrant(Hinsch,
1990: 146).
16. Prohibitionsof sodomy in the "laws"of Qing secretsocieties assumethathierarchiesof
age and sexual role conformedwith each otherandportray"youngandfairboys"and "younger
brothers"as objectsof sexualrivalrybetweenoldersecretsociety "brothers" (Davis, 1977: 147).
17. In a 1739 case from Shaanxi, a man propositionsa young boy: "People say you're a
'rabbit.'Now, I wantto havesex with you-are you selling?"(Xingketiben:70/QL4.9.5.). Also
see Hinsch, 1990: 133.
18. Vitiello finds similarevidence in contemporaryDaoist discourseon male homosexual
relations(1992: 357).
19. To an extent, Chinaresembledthe Greco-Romanworld, where "surrenderingto pene-
trationwas a symbolic abrogationof power and authority-but in a way which posed a polarity
of domination-subjectionratherthanof homosexual-heterosexual" (Boswell, 1992: 155).
20. Among pirates, anal penetrationinitiated male captives into the ranks and solidified
fictive kinship/patron-clientties (juniorpiratessubmittingto penetrationby those whose favor
they sought)(Murray,1987, 1992).Fictivekinshipcouldalso framehomosexualrelationsamong
women outside the mainstreampatternof marriageand family (Topley,1975).
21. One recalls Jia Baoyu-hero of the eighteenth century novel Dream of the Red
Chamber-whose ambiguous gender performanceacts out his reluctance to grow up (see
Edwards,1994).

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MatthewH. Sommeris AssistantProfessorof historyat the Universityof Pennsylvania.


He is currentlycompletinga book on the regulationof sexualityin late imperialChina.