古代鲜有强奸罪:受害妇女若告官九死一生 – Why were there fewer rapes in Ancient times

[导读]以《大清律例》为例,它规定:只有在妇女始终抵抗歹徒的性暴力行为或女方身亡或女方身体部位被严重致伤时,法官才会认定为强奸罪。

本文摘自《历史的迷踪:你所不知的历史真相》,刘照兴 著,吉林出版集团出版

中国两千多年的封建社会,按理说,强奸罪要比抢劫、盗窃犯罪多得多,可史料记载却少得多。其原因是什么呢?

首先,封建的贞操观束缚了妇女,把贞节看成天理,即使受害也很少告官。从秦朝开始,历代统治者都特别重视“守节”,表彰“贞妇”、“节妇”,一本本《列女传》相继出现,记载表彰一些女子守节的范例。如西晋皇甫谧的《列女传》记载:三国时夏侯令的女儿嫁给了曹文叔,曹文叔不久死去,又没有儿子,父亲叫她改嫁,她割去两个耳朵表示不肯。后来,父母见她无依无靠,又动员她改嫁,她又割去鼻子表示守节不嫁。又如安定女子张芝,年轻守寡,与两个嫂嫂一起被乱军抢去,她为了守住贞节,先杀了两个嫂嫂,再自尽,幸亏乱军很快败散,她才获救。封建社会里,对妇女来说,“饿死事小,失节事大”。寡妇改嫁被认为是“淫妇”,许多女子因犯了改嫁之“淫”而惨遭迫害致死,使得女子在死了丈夫之后,畏慑于传统压力,或殉死、或被迫守节一辈子。也有不少妇女效法《列女传》自愿节烈,并自戕、毁容或自残以誓守节之志。在那样的社会里,受害妇女为了自己的贞节,忍气吞声或自寻短见。受害人不告诉,这类犯罪怎能多呢?

其次,封建社会的法律对强奸罪的审定,严重不利于受害妇女告官。历代王朝律令中的强奸罪要件大同小异。以《大清律例》为例,它规定:只有在妇女始终抵抗歹徒的性暴力行为或女方身亡或女方身体部位被严重致伤时,法官才会认定为强奸罪。也就是说,妇女遭到强奸时,如果一开始反抗,后来无力抵抗或歹徒拿出凶器威迫下或口头威吓女方被迫停止反抗而接受歹徒的性行为,均视作通奸行为。一旦被认定为通奸罪,就会给受害者带来三个恶果:一是蒙受羞辱的名声,只好自杀身亡以逃避舆论的谴责。二是以前有过‘‘失节”行为的女人,即使被强奸,罪犯也要从轻处罚;三是妇女与男人通奸的。未婚女子要被重打80大板;已婚妇女要打90大板。清代还规定,不论男女挨板子都要当众裸露下身,挨打蒙羞。因此。妇女被强奸告官九死一生,勿宁不告。在这种法制下,强奸罪自然少了。

当然,这种说法可能不很全面,那时强奸罪少于其他罪的原因是否还有其他,也说不定,有待于进一步研究和考证。

 The “Qing Law” has the following provision: only when a woman consistently resisted sexual violence from attackers, or if the woman is killed or parts of her body are seriously injured, will the judge consider that rape has occurred.

  This piece is an extract from: “Behind history, history truths you don’t know about”, by Liu Zhaoxing, Jilin Publishing Group.

  With China’s 2000 years as a feudal society, it stands to reason that there should be many less historical records of rape than theft, robbery and other crimes. But what is the reason for this?

First, the feudal value of chastity put women in bondage: with chastity replacing justice, victims rarely went to plead their cause. From the Qin dynasty onwards, rulers paid particular attention to ‘keeping chastity’ 守节, and to commend “virtuous women” and “chaste women”, books called “Lives of exemplary women” appeared one after another, recording examples of women performing exceptional acts in the name of chastity. As the Imperial Annals of the Western Jin Dynasty record: in the time of the three kingdoms, the daughter of Xiao Houjin was married to Cao Wenshu, but Cao Wenshu died soon after, before they had a son. Her father asked her to remarry, and she cut off both her ears as a sign of refusal. Later, her parents, seeing her with no support, asked her again to remarry, and she cut off her nose to signify that she wanted to keep chastity and not remarry. Another example is that of the virtuous woman Zhang Zhi: she became a widow in her young age, and together with two sisters-in-law, was caught by a rebel army. In order to preserve chastity, she first killed her sisters-in-law, and then committed suicide. Fortunately, the rebel army was quickly defeated, and they were saved in the end. In feudal society, for women, “starving to death is a small thing, but losing chastity is a great thing”. A widow who remarried was considered an ‘adulteress’, and many women found guilty of the ‘obscenity’ of remarriage were brutally tortured to death. So after their husband died, many women feared that they would be pressured by tradition either to a martyr’s death or to a lifetime of chastity. And many women, following the example of voluntary chastity offered in “The Lives of Exemplary Women” committed suicide, disfigured or mutilated themselves in order to keep that oath. In such a society, the women victims, because of their own sense of chasity, either suffered in silence, or committed suicide. When the victims won’t speak, who knows how many crimes were committed?

Second, the stipulations of the laws about rape in feudal society were not conducive to women reporting the crime to officials. The details of rape laws in various dynasties are very similar. If we look at “Qing Law” for example, the law said: only if the woman continuously resisted the perpetrators, or the woman was dead, or suffered serious injuries to her body, would the judge identify this as rape. This means that, if a woman was raped, and resisted at the beginning, but later was unable to resist or, intimidated by a weapon or verbally, the woman was forced to stop resisting and accept the rapist’s sexual assault, this would be regarded as a case of debauchery or adultery. And once recognised as involved in debauchery, there would be three consequences for the victim. The first is that they would enjoy humiliation, and might commit suicide to escape the condemnation of public opinion. The second is that for woman who previously exhibited “disloyal behaviour”, even if they were raped, the criminals should be punished more leniently. The third is when a woman was seen as committing ‘adultery’ with a man. Unmarried women would be hit 80 times, married women would be hit 90 times. The Qing dynasty law also stipulates that, for both man and woman, their lower body would be exposed to the crowd, and they would be beaten into disrepute. And for that reason, women who got raped would rather suffer nine deaths than report the fact to officials. With such a legal system, it’s only natural that there should be few cases of rape.

Of course, this argument may not be comprehensive, and there may be other reasons why there were fewer cases of rape than other crimes during that period. Maybe, this requires further research and study.

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