Sex, Law, and Society in Late Imperial China (review)

Sex, Law, and Society in Late Imperial China. By Matthew H. Sommer. Law, Society, and Culture in China Series, edited by Philip C. C. Huang and Kathryn Bernhardt. Stanford: Stanford University Press, 2000. Pp. 413. $55.00 (cloth).

Matthew Sommer's Sex, Law, and Society in Late Imperial China is a milestone in the history of Chinese sexuality. Sommer's analyses of legal cases and statutes dating from the seventeenth to the nineteenth centuries are argued with a sophistication unprecedented in the writing on Chinese sexuality to date. Most of the materials Sommer uses--Qing dynasty legal case records from the county, provincial, and palace levels--have been available only since the 1980s. These previously unmined sources allow Sommer to challenge the conclusions of other scholars regarding the significance of changes in Qing law regarding sex and to overturn conventional wisdom as to the timing and nature of shifts in late imperial attitudes toward both heterosexual sex and sex between men.

Scholars of Chinese sexuality have repeatedly echoed the commonplace that the Qing dynasty at its inception in 1644 sought to crack down upon the permissive sexual mores of its predecessor, ushering in a regime of repression that culminated in the homophobia and conservatism of the twentieth century. Sommer's primary aim is to deflate this cliché (whose convenient dating should always have made us suspicious). He argues instead that the watershed date is 1723, when Emperor Yongzheng "emancipated" those of hereditary debased status. Debased status groups included slaves, bondservants, actors, prostitutes, and yamen runners. Considered polluted because of their association with servile labor (the entertainment services of actors and prostitutes were viewed as a form of penal servitude), they were denied participation in the civil service examinations that were the gateway to positions of social status. Most scholars have viewed the abolishment of hereditary debased status as an emancipation, emphasizing the acquisition of the right to participate in the examination system. However, Sommer argues that from the perspective of the judiciary, the most important effect of the proclamation of 1723 was the abolition of a caste expected to engage in sex work and the ensuing criminalization of prostitution. Whereas in the early imperial period the judiciary had viewed debased individuals and households as exempt from the standards of sexual morality to which they held elites, with the "emancipation" of the debased, they were held to the same standards of sexual morality (and criminal liability) as commoner and elite households. The statutes of 1723, for example, showed a concern to preserve the chastity of female slaves and bondservants, who had previously been assumed to be sexually available to their masters. Now, as the norms of marriage and chastity were extended to them, their masters' sexual privileges were circumscribed if not curtailed. Similarly, the parameters of the imperial chastity cult were extended to include commoner women. Basic penalties for consensual illicit sexual intercourse were stiffened, and penalties for rape were made more severe. Homosexual rape was in fact defined as an explicit crime at this time.

All these changes, Sommer claims, should be viewed as part of a transition from "status performance" to "gender performance," in that individuals were no longer expected to subscribe to the morals appropriate to their status group but to their gender. In the early imperial period, the judiciary conceived of the populace in terms of a distinction between elite status and base status. Those of base status were considered sexually available to those of elite status and were not expected to conform to Confucian moral norms. The Yongzheng proclamations marked a "new obsession with fixing and policing family-based gender roles," even among those of humble birth (p. 12). Social position became less important in determining the morality of sexual acts, and performance of normative roles prescribed for one's gender--in particular, the preservation of chastity--became more important. This change, Sommer argues...