San Diego State University The Gendered Body in the Qing Courtroom Book Report

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ompose a ~250-word reflection on “The Gendered Body in the Qing Courtroom,” devoting attention to what it reveals about notions of gender, class, and/or morality in Qing society.

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The Gendered Body in the Qing Courtroom
Stanford University
court cases, including homicides and marriage disputes, from eighteenth- and nineteenth-century
China in which magistrates scrutinized bodies for evidence about gender
performance. In order to judge these cases properly, magistrates needed
to find out whether the persons under scrutiny were physically capable
of normative gender roles or had violated the rules governing such roles;
their judgments aimed to repair kinship networks and reinforce patriarchal
hierarchies. These boundary-crossing “hard cases” help us understand tiie
complex interweaving of bodily sex and social gender in the Qing: they provide insight into how magistrates (as well as midwives and others who gave
evidence) would interpret die body in terms of what society demanded of it.
For some time now it has been conventional to posit a clear distinction
between sex and gender: sex is transcultural, biologically determined, and
grounded in the body, whereas gender is socially and culturally constructed
and therefore learned and performed according to varying scripts. As
convenient as this sex/gender distinction may be, it has provoked intense
debate among feminist theorists about exactiy where to draw the line between tiiem—or whetiier it is even possible to discern a stable, unmediated
category of sex (or the body) prior to discourse.’
It seems, however, tiiat a tentative consensus has emerged, at least among
historians of gender and sexuality: while there does exist a real, physical
This article originated in a talk I gave at the Universit)’ of California Los Angeles some
years ago tided “The Truth of the Body: Forensic Examination and Gender Identity in the
Qing Dynasty”; its revision has benefited from the advice of Kathleen Brown, Lynn Hunt,
Jennifer Sessions, Shao Dongfang, and especially Margaret Kuo. I would also like to thank
Weijmg Lu and two anonymous readers for their valuable comments, as well as the archivists
in Beijing and Sichuan who made available the legal cases cited here. This research received
financial support from the Committee for Scholarly Communication with die PRC, the
American Philosophical Society, and the Social Science Research Council.
This debate has generated a vast literature: for an overview of key issues, see Linda Alcoff,
“Cultural Feminism versus Post-structuralism: The Identity Crisis in Feminist Theory,” iri
The Second Wave: A Reader in Feminist Theory, ed. Linda Nicholson (New York: Routledge,
Journal of the History of Sexuality, Vol. 22, No. 2, May 2013
© 2013 by the University of Texas Press
DOI: 10.7560/JHS22205
body, it is difficult, if not impossible, to observe that body in any purely
empirical or unmediated way. Thomas Laqueur’s history of the shift in
Western science from a one-sex model of the body to a two-sex model is
foundadonal for this perspecdve.^ The old one-sex model interpreted female
reproductive organs as inverted, inferior male organs on a verdcal scale of
more or less realized versions of an ideal male body. In contrast, the new
two-sex model clearly idendfied female anatomical difference, and to our
modern eyes it seems far more objecdve than its predecessor; nevertheless,
the scientists and doctors who ardculated the new model argued that the
female organs were the sources of feminine weakness, thereby establishing
a new biological radonale for the social subordinadon of women. In this
way, Laqueur shows that the shift in paradigms masked deeper condnuides
in the shaping of perception by gender ideology and in the use of sciendfic
observation to radonalize social hierarchy. Although he does concede the
existence of “the real, transcultural body,” Laqueur concludes that “sex,
like being human, is contextual. Attempts to isolate it ftom its discursive,
socially determined milieu are as doomed to failure as the philosophers search
for a truly wild child or the modern anthropologist’s efforts to filter out
the cultural so as to leave a residue of essential humanity.”‘
In other words, it would be misleading to treat the body as “a biological
given which emits its own meaning. It must be understood instead as an
ensemble of potendalides which are given meaning only in society.”* The
historian’s challenge is not so much to discover the real body itself—which by
definidon is transhistorical and transcultural—but rather to explore the ways
the observed body has acquired meaning in pardcular historical contexts.
Such meaning has a strong performadve dimension, since typically the
body is judged in terms of what it is expected (or forbidden) to do. This
perspecdve is closely associated with feminist theorist Judith Buder, who
argues that gender comes into existence only through its performance, and
to persist it must be repeatedly performed.^ In Butler’s view, all gender
performance is a kind of “drag,” because there is no real gender grounded
in nature. Furthermore, the need for repeddon opens up the possibility
1997); Mary Hawkesworth, “Confounding Gender,” Signs 22 (1997): 649-85; and Lynn
A. Hunt, “The Challenge of Gender: Deconstruction of Categories and Reconstruction of
Narrative in Gender History,” in Geschlechtergeschichte und allgemeine Geschichte, ed. H.
Medick and A. Trapp (Göttingen: Wallstein, 1998), 59-97. The pose of extreme skepticism
is exemplified by Judith Butier, “Is there a ‘physical’ body prior to the perceptually perceived
body? An impossible question to decide,” in Gender Trouble: Feminism and the Subversion of
Identity (New York: Rouüedge, 1990), 114.
^ Thomas Laqueur, Making Sex: Body and Gender from the Greeks to Freud (Cambridge,
MA: Harvard University Press, 1990).
‘ Ibid., 16.
•* Jeffrey Weeks, Sexuality and Its Discontents (New York: Routledge, 1990), 122-23.
° Butier, Gender Trouble.
The Gendered Body
of incorrect performances—and of purposely subverting the dominant
script through parody and invention. She envisions a world of radical selfdetermination in which tiiere come into being as many genders as there are
individuals to perform. But her tiieory also implies tiiat correct performance
might be reinforced and rewarded, while incorrect performance might have
to be corrected and punished. Law comes into the picture as a codifier and
enforcer of correct standards.
In China during the Qing dynasty (1644-1912), the expectation that
all women marry and produce sons was die organizing principle and stable
reference point for gender discourses that made the female body legible.
Rates of marriage and fertility vary in different societies and historical
periods, but in China, marriage at an early age (shortiy afrer menarche, in
the late teens) was a nearly universal experience for women.* For the vast
majority, conjugal intercourse, pregnancy, and child-rearing were simply
fate—these bodily constraints were real, even if imposed by society rather
than nature.^ For women, compulsory marriage and reproduction were
something like the Qing equivalent of our own society’s “compulsory
heterosexuality,” and a woman’s body acquired social meaning within this
circumscribed frame of reference.
Thus, for example, Charlotte Furth has shown that discourses oí fuke
(women’s medicine) in late imperial China simultaneously articulated two
different paradigms of the body: the androgynous body oigeneration versus
the specifically female body oí gestation. The body of generation was an
ideal type in which male and female principles complemented one another
in a shifijng balance so that difference was a matter of degree; the body of
gestation, on the otiier hand, emphasized female difference and materiality
as sources of impurity and weakness tiiat caused medical problems specific
to women. The latter paradigm clearly reflects gender hierarchy in society,
whereas die former seems to suggest timeless complementatity and equivalence. Nevertiieless, even within tiie apparentiy androgynous generative
body, the female essence, blood, was “encompassed” by the male essence,
qi, in a process tiiat consistentiy reestablished gender hierarchy at “ever-‘
ascending levels.”* The underlying tiieme was tiie “necessary subordination
ofwomen to men in society.”‘ Moreover, what linked botii paradigms was tiie
common mission of marital procreation: medical discourse treated women
” Arthur P. Wolf and Theo Engelen, “Fertility and Fertility Control in Pre-revolutionary
Chmz,” Journal of Interdisciplinary History 3%, no. 3 (2008): 362.
‘ This was certainly true for poor women but probably for most prosperous women as
well. Francesca Bray argues that elite wives could sometimes avoid the reproductive duties of
the wife-mother role by displacing them onto the subordinate women of the household who
were also sexually available to their husbands (see n. 31).
* Chariotte Furth, A Flourishing Tin: Gender in China’s Medical History, 960-1665
(Berkeley: University of California Press, 1999), 49 and fig 3
‘ Ibid., 306.
“primarily as childbearers,” and tiie “primary agenda” of medicine was to
“safeguard female primary vitalities and to make sure that other illnesses in
fertile, pregnant and postpartum women were not prescribed for in a way
that might damage tiieir reproductive health.”‘” In sum, it was women’s
vital role in reproducing the family that organized and motivated/M¿£.”
Like medicine, law required the direct scrutiny of bodies for evidence,
and the regulation of gender roles and sexual behavior according to the
Confucian family scheme was a fundamental priority for the Qing judiciary.
All the legal cases I present here in one way or another challenged the marital
frame of reference, straining the legibility of tiie gendered body and the
coherence ofthe normative categories that informed judicial reasoning. In
some of these cases, it seems as if a real body that defies simple categorization is struggling to break through the veil of discourse that stretches to
encompass it. Several of my cases center on “stone maidens” {shinü) who
were rejected by their new husbands on grounds of vaginal impenetrability and yet had to be placed somewhere in society; another case involves a
Buddhist nun who was raped and whose legal treatment helps clarify how
jurists conceptualized the category of woman to include individuals outside
the family who eschewed procreation; another concerns a husband rejected
by his wife because of the inadequate size and performance of his penis;
and the last concerns the kind of physical evidence needed to exculpate a
husband who had killed his wife and a neighbor when he found them together in bed. I also summarize what I have argued elsewhere about how
Qing jurists conceptualized the male rape victim. These cases are artifacts
of normative discourse, but the body does not appear in them as a blank
surface to be filled arbitrarily with words; rather, we find jurists and others
working to contain a disorderly world of physical anomaly and transgressive
behavior within a contingent yet surprisingly elastic set of norms.
A case from Tianmen County, Hubei Province, memorialized in 1739,’^
involves a poor widow named Xie Shi, aged nineteen, who remarried following the death of her first husband. He Hanzhang.” After He’s death,
‘”Ibid., 183.
” See Matthew H. Sommer, review of Chariotte Furth, A Flourishing Tin: Gender
in China’s Medical History, 960-1665 (Berkeley: Universit)’ of California Press, 1999),
Harvard Journal ofAsiatic Studies 61, no. 1 (2001): 273-79.
‘^ Xingke tiben (routine memorial on criminal matters), #74/Qianlong 4.3.27. (Originals
are held at the First Historical Archives, Beijing; cases collected before 2000 are cited by the
bundle number/Chinese date; cases collected since 2000 are cited by serial number, Chinese
date; all are from the archival category “marriage and sex offenses.”)
‘^ Ages, when known, are given in sui; an age reckoned in sui is on average one more
than the same age reckoned in years old: for example, a person aged eleven sui is probably
ten years old.
The Gendered Body 285
Xie Shi had depended on relatives for support and with their help had
negotiated her second mardage, to a peasant from her husband’s village
named Dong Xianzhao. Problems arose when diis new husband tried to
consummate dieir mardage. As Xie Shi later testified, “Five or six days after
I joined him in mardage, Dong Xianzhao tried to have intercourse with me
[literally, “get close to my body”—jm xiaofuren de shen], but he couldn’t
[bu nengjin], and he told me diat I am a stone maiden [shinü]. He was so
unhappy that he couldn’t even eat.”
A couple of days later, Dong went in search of one ofthe matchmakers,
Dai Luzhi, widi the intendon of canceling the mardage and demanding
a reftind ofthe bddepdce he had paid for Xie Shi. The matchmaker was
not at home, so Dong confronted his son, Dai Zhenxia, aged twenty. As
Zhenxia later confessed, “Dong Xianzhao came over and told me that my
father as matchmaker had swindled him with a stone maiden, so he wanted
to cancel die mardage. I said, ‘Xie Shi was married into die He family for
several years, and I never heard anyone say she was a stone maiden then.
Now she’s been marded into your family for only a few days—how come
she’s suddenly a stone maiden.?'” This implied insult to Dong’s masculinity
—that if diere were any problem in consummating the mardage, then
something must be wrong with the groom, not the bride—provoked him to
attack Zhenxia. In the fight that followed, Zhenxia kicked Dong Xianzhao
in the abdomen, wounding him mortally.
When this homicide came before the county magistrate, one of his first
pdoddes was to interrogate Xie Shi. Was she really a “stone maiden”? If so,
then what sort of conjugal reladons had she had widi her yîm husband.? Xie’
Shi tesdfied, “I am a stone maiden. My first husband and I were married for
several years, but he didn’t have intercourse with me [literally, “get close
to my body”] even a single dme [meiyoujin shen yi ci].” Note the ambiguity of her tesdmony: she does not say explicitly whether he even tried.
The magistrate dien ordered the court midwife, Wang Li Shi, to examine
Xie Shi in a “private room” {mi shi); die midwife reported: “Even a finger
can’t penetrate [zhitou doujin bu qu] Xie Shi’s lower body [xiashen]. She is
definitely a stone maiden. On her upper body, her breasts are collapsed flat
[pingta de], like a man’s breasts [yu nanren de ruyiban]. Your Honor can
see for himself”‘* Thereupon, as die magistrate wrote in his case report,
* For midwives as forensic examiners of female anatomy, see Chariotte Furth, “Androgynous Males and Deficient Females: Biology and Gender Boundaries in Sixteenth- and
Seventeendi-Century China,” Late Imperial China9, no. 2 (1988): 22; Furth, A Flourishing
Yin, 282; Matthew H. Sommer, Sex, Law, and Society in Late Imperial China (Stanford
CA: Stanford Universit>’ Press, 2000), 83-84; and Janet Theiss, Disgraceful Matters: The
Poltttcs of Chastity in Eighteenth-Century China (Berkeley: University of California Press,
2004), 139-40. For the contrasdng roles of female midwives and male doctors in women’s
medicine, see Charlotte Furdi, “Concepts of Pregnancy, ChUdbirdi, and Infency in Ch’ing
Dynast>’China,”/o»r»a/o/Afiff» St«rf!M 46, no. 1 (1987): 7-35.
“this humble official ordered Xie Shi to expose her bosom, and he personally
examined her breasts, finding them exactiy as described by die midwife.”
The magistrate summarized this physical exddence as follows: “Xie Shi’s
body is that of a stone maiden [shen xi shinii], so she cannot engage in
sexual intercourse [bu nengrenshi].” His precise word choice is significant:
what he wrote, literally, is that Xie Shi “cannot engage in human activity.”
“Human activity” {ren shi) is a polite term for sexual intercourse (similar
to ren dao, literally “the way of being human”); in this context, it would
seem to imply that conjugal relations are a definitively human activity: if
one becomes human, in part, through conjugal intercourse, then Xie Shi’s
disability might suggest some incompleteness of her personhood. I will
return to this point presently.
The magistrate sentenced Dai Zhenxia to strangulation after the assizes
(for “homicide in a fight”) and forwarded his case up through the judicial
hierarchy for review (as required in all capital punishment cases). Upon
reinterrogation at the provincial capital, however, Dai recanted his confession and insisted that he had been framed; among other things, he denied
that Xie Shi was a stone maiden. For this reason, the provincial governor
ordered the case retried by the magistrate of nearby Qianjiang County,
who immediately ordered his own court’s midwife, Guo Shi, to “take Xie
Shi to a private place where there are no other people [wu ren mi chu] and
make a careful and detailed examination of her body to find out the exact
truth.” Guo Shi confirmed the testimony of the first midwife: “Even the
tip of a finger cannot penetrate Xie Shi’s lower body [zhitouding ye bu neng
ru]: she’s definitely a stone maiden. Both breasts are collapsed flat [Hang
rupingta], in no way different from a male’s [yu nanzi wuyi].” In the end,
Dai Zhenxia confessed once again, and his original sentence was confirmed.
Aside from solving the homicide itself, a key priority in this adjudication
was to determine whether the crime of marriage fraud had been committed.
This priority helps explain the careful attention paid to Xie Shi’s anatomy.
The very first statute of the Qing legal code’s chapter on marriage provides
that “when male and female are betrothed, if either party has some crippling
defect [canfei] or disease [jibing] . . . then the other family must be clearly
informed of the facts.” In such circumstances, if a bride’s family committed fraud by passing her oíí{wangmao) as normal and healthy, then those
responsible (including matchmakers, if complicit) were liable for eighty
blows of the hea7 bamboo, and the brideprice would be returned; if ± e
groom’s family committed this kind of fraud, then the penalty would be
increased by one degree, and they would forfeit the brideprice they had
paid; and in either instance, the marriage would be canceled.”
The question, therefore, was whether those who had arranged Xie Shi’s
marriage to Dong Xianzhao had known that she was a stone maiden. The
‘^ Xue Yunsheng, Duli cunyi chongkanben, ed. Huang Jingjia (Taipei: Chinese Materials
and Research Aids Service Center, 1970), substatute #101-001.
The Gendered Body
magistrate pressed Xie Shi on this point; she tesdfied: “I knew about this
secret illness [an bing] myself, but I never told anyone else about it.” The
matchmaker was pressed even harder: “Xie Shi is a stone maiden; how
could you, in your capacity as matchmaker, dare to use her to swindle
Dong Xianzhao.'” The matchmaker answered: “This is a secret illness of a
woman’s body [nüren shen shang de an bing]—why on earth would I have
known anything about it? If I’d known she was a stone maiden, I never
would have dared to act as matchmaker and arrange for Dong Xianzhao to
take her in marriage!” The magistrate also interrogated reladves of Xie Shi’s
first husband, but diey had been unaware of any disability and described
the couple’s marriage as harmonious. Therefore, die magistrate concluded,
“Widi regard to Xie Shi: her body is diat of a stone maiden, but her reladves
were all ignorant of this fact, and they definitely did not commit the crime
of fraudulendy represendng a crippled person as a healthy one in order to
marry her off [yi canfei wangmao jia ren]. Therefore, the brideprice and
matchmakers’ fees need not be returned, and Xie Shi should be entrusted
to die custody of her brother-in-law, Dong Yinzhao, to be taken home.”
This dme, the judgment was approved on review.
In other words, Xie Shi’s marriage was legal, and so she should return to
her rightful place in her husband’s family. What made this judgment tenable
was die convenient feet diat this stone maiden was now a widow, which solved
die social problem raised by her vaginal impenetrability. Everyone involved
clearly saw Xie Shi’s condidon as a disability diat made it impossible for her
to perform the sexual and reproducdve roles of a wife. But the death of her
husband had opened a place for her within die family system diat did not
require sexual intercourse or reproducdon, namely, widowhood—a role that
required only the ritual and social dimensions of wifehood and depended on
die widow’s complete abstendon ftom sexual intercourse. Impenetrability
certainly guaranteed a sort of chasdty, aldiough it seems an odd legerdemain
to equate physical disability widi virtuous self-restraint (I will return to this
point below). From a judicial point of view, however, nothing fiirther needed
to be done. As a widow, Xie Shi enjoyed die rights to remain unmarried in
her husband’s lineage, to gain custody of her husband’s estate, and to have
an appropriate nephew appointed as her husband’s heir (to perform ancestor
worship, inherit his property, and care for her in her old age).^* Of course,
diis soludon ignores die fact diat under die circumstances, her reladonship’
with her in-laws was likely to be awhvard at best.
I have no interest in trying to diagnose Xie Shi’s condidon in modern
biomédical terms; but it seems significant diat no one involved in her
case doubted she was a woman. She had been raised as a daughter, and
she had already been married and widowed once before being exp’osed
” Sommer, Sex, Law, and Society, chap. 5. For the chastity cult during the High Qing, see
Theiss, Disgraceful Matters; and Weijing Lu, True to Her Word: The Faithful Maiden Cult in
Late Imperial China (Stanford, CA: Stanford Universit)’ Press, 2008).
and rejected as a stone maiden.’^ All parties in the case record referred to
her as “Xie Shi,” the form appropriate for a mature woman. As to judicial
treatment, we find that the magistrate ordered her examined by a midwife
rather than by the court’s male forensic specialist (whose duties included,
for example, the examination of male victims of homosexual rape). The
choice of midwife reveals the magistrate’s a priori categorization of Xie
Shi as a woman. Also telling is the way the magistrate ruled out marriage
fraud. He interrogated the matchmaker and Xie Shi’s male relatives closely
about whether they had known of her disability, and it is clear that they
would have been punished (and the marriage canceled) if they had been
shown to have deceived the other party to the marriage; but Xie Shi’s
own knowledge of her “secret illness” was deemed irrelevant—or so we
can infer, since she was not punished for failing to reveal it. Apparentiy,
modest)’ and passivity were expected of her, confirming that the magistrate
(and everyone else) had cast her in a woman’s role.
But what sort of woman was a stone maiden like Xie Shi? The sixteenth-century
medical authotity Li Shizhen organized sex-related anomalies in two categoties,
fei nan and/« nü.”^ This categorization takes for granted that anomaly can be
comprehended within the male/female {nan/nii) binary division of the sexes;
less obvious is what Li Shizhen meant by/«.” Fei ren, which might be literally
translated as “nonhuman” or “not a human,” is a venerable classical term for a
crippled or deformed person; it can also mean an edldoer or traitor, and tiiere
may be a connection between these meanings, given the variety of mutilating
punishments used on criminals in early China.^” The most straightforward
rendering of Li Shizhen’s terms may be “deformed males and females.” This
translation resonates witii tiie language used in the case report to characterize
Xie Shi’s condition: “ctippled” {canfei) or “ill” {bi)^^
“‘ Chariotte Furth notes that in many cultures, infants with ambiguous genitalia tend to
be raised as girls by default, refiecring the widespread assumption that a female is somehow
an incomplete or lesser version of a male (“Androgynous Males,” 19).
‘* The wrirings of Li Shizhen (1518-93) retain much of their authorit)’ even today; his
Bencaogangmu was cited by Qing forensic manuals, and it remains the foundational text for
traditional Chinese medicine. Cf Carla Nappi, The Monkey and the Inkpot: Natural History
and Its Transformations in Early Modern China (Cambridge, MA: Harvard Universit)’ Press,
2009); and Matthew H. Sommer, “Abortion in Late Imperial China: Routine Birth Control
or Crisis Intervention?,” Late Imperial China 31, no. 2 (2010): 97-165.
” For the original text, see Li Shizhen, Bencao gangmu (Beijing: Renmin Weisheng
Chubanshe, 1975), 52:2971-72 (under “human anomaly,” renkui).
^^ Hanyu dacidian (Shanghai: Shanghai Cishu Chubanshe, 2008), 11:778.
^’ Charlotte Furth translates/« nan mdfei nil as “those who are neither male nor female;
or false males and false females” (“Androg)’nous Males,” 4-5). Tani E. Bariow translates
these terms as “non-males” and “non-females” (“Theorizing Woman: Funii, Guojia, Jiating
The Gendered Body 289
The individuals that make up Li Shizhen’s taxonomy all suffer from
some crippling defect or deformity related to sex, but they are still considered male or female; he explains that these defects prevent males from
becoming fathers and females from becoming mothers, implying a sort of
arrested development that precludes the frill realization of adult gender
roles. As Charlotte Furth explains, “Four of the five terms applied to
women refer to genital abnormalities ofthe sort that would make sexual
penetration impossible” (including tiie “stone maiden,” also known as the
“drum,” gu)-, the fifrh term refers to highly erratic menses, which were
associated with infertility. Those found in the male category are “largely
the frinctionalfy impotent.”^^ Normalcy, therefore, depended on an ability to play the role appropriate to one’s sex in heterosexual intercourse
and reproduction: the “deformed” male and female were anomalies that
defined normalcy by contrast.
Tani Barlow invokes Li Shizhen’s taxonomy to support her thesis that
gender in late imperial China derived exclusively from family roles and not
from bodies: “The foundational or categorical figure is motiier/father, not
woman/man.”^’ She is certainly correct, insofar as Li Shizhen takes for
granted that tiie defining purpose of anatomy is to frilfrll normative sexual
and reproductive roles. Indeed, the perspective of “crip theory” would
suggest that reigning heteronormative assumptions about the proper use
of bodies are what actually create such anomalies or disabilities, in the sense
of giving them social meaning.^* But it seems significant ± a t Li Shizhen
did not cite tiie binary of mother/fatiier: he nowhere spoke of “deformed
mothers'” versus ”átfoxmtá fathers.” Instead, he chose the binary of females
versus males, implying broader categories grounded in anatomy tiiat are
somehow prior to specific social roles and that include individuals whose
disabilities prevent them from completely frilfilling those roles.
As I have argued elsewhere, in late imperial China tiie sexual consummation of marriage constituted a key rite of passage into social adulthood, in
which male and female took up tiieir respective roles in tiie division of sexual
labor (penetrator/penetrated) and in the division of gendered social labor
(husband/wife).^^ From tiiis perspective, tiie stone maiden’s disability arrested
her development into a mature woman: it prevented her from taking up the
[Chmese Women, Chinese State, Chinese Family],” in Body, Subject, and Power in China, ed.
Angela Zito and Tani E. Barlow [Chicago: University of Chicago Press, 1994], 258, 279n8)
Furth, “Androgynous Males,” 5.
” Bariow, “Theorizing Woman,” 279n6.
” Cf Robert McRuer’s analysis ofthe connection between “compulsory heterosexuality”
and “compulsory able-bodiedness” in contemporary societ)’ {Crip Ueory: Cultural Signs of
Queerness and Disability [New York: New York University Press, 2006], introduction). See
also Alison Kafer, “Compulsory Bodies: Reflections on Heterosexuality and Able-Bodiedness ”
Journal of Women’s History 15, no. 3 (2003): 77-89.
” Sommer, Sex, Law, and Society, 162-63, 306-7.
sexual and gender roles within mardage that defined gendered matudty and
trapped her in the permanendy juvenile condition of a virgin daughter.
All this helps us to interpret the midwives’ tesdmony about their pelvic
examinadon ofthe stone maiden Xie Shi. First, both the midwives and
their magistrates believed that a penetrable vagina and full breasts were
definitive of normal female anatomy: they were necessary “props” for
the correct performance ofthe wifely role. Second, the purpose ofthat
anatomy was heterosexual intercourse and reproduction. The midwife’s
finger stood in for a husband’s penis, implying a prior judgment about
the purpose ofthe anatomy being tested (“even the tip of a finger cannot penetrate”). Third, Xie Shi was not a male but rather a female with
a problem: a deficient female, to borrow Furth’s term. It is important to
note what the midwives who searched Xie Shi’s body did not report: they
found nothing recognizable as a penis. In the absence ofthat organ, they
categorized her as a female—albeit a deficient one.^^
The contrast between Xie Shi’s two mardages raises the quesdon of
when exacdy she can be said to have become “disabled.” We do not know
exactly what went on between her and her first husband, aside from her
euphemisdc tesdmony that he did not jin shen—literally, “get close to my
body,” by which she apparendy meant vaginal penetradon. But since her
first husband did not insist on vaginal intercourse—in fact, we cannot tell
from her tesdmony whether he even attempted it—she seems to have had
no trouble acting as his wife: he accepted her without complaint, and her
in-laws, who testified that the couple got along well, were unaware of any
problem. The fact that they had a harmonious reladonship suggests that her
disability dedved as much from what others expected to do with her body
as from her body itself: a vagina can be considered “impenetrable” only
if someone expects to penetrate it. Her anatomy acquired social and legal
significance as a disability only when her second husband made her condidon public (“outing” her, in effect) and cited it as grounds for divorce. In
short, the disability ofthe stone maiden was not simply an anatomical fact,
it was a social problem “in anatomical disguise.”^^
” “Stone maiden” is Charlotte Furdi’s apt translation of shinü (see “Androgynous Males”).
In the context of this term, nii means “maiden” or “unmarried daughter” rather than the “female” ofthe male/female binary, reinforcing the implicadon of arrested maturadon.
” An interesdng contrast is the case of Thomas/ine Hall, a seventeenth-century Virginian
colonist who provoked controversy and eventually lidgadon by alternadng male and female
dress. Hall’s genitals were examined several dmes in order to ascertain his/her sex, but they
were so ambiguous in appearance that observers could not agree whether Hall was male or
female (some recognized a penis, others did not). In the end, the court ordered Hall to wear a
combinadon of male and female dress as a public marker (warning?) of Hall’s defiance of anatomical and social categories. See Kathleen Brown, “‘Changed . . . into the fashion of man’:
The Polidcs of Sexual Difference in a Seventeenth-Century Anglo-American Setdement,”
Journal of the History of Sexuality 6, no. 2 (1995): 171-93.
^’ The phrase is Laqueur’s {Making Sex, 236). Cf. Kafer, “Compulsory Bodies”; and
McRuer, Crip Theory.
The Gendered Body
In Xie Shi’s case, tiie problem of where to place a stone maiden achieved
solution through a separation of the different dimensions of the wifely role.
A widow was not expected to have sexual intercourse or to r e p r o d u c e indeed, she was forbidden to do so. Xie Shi’s condition in no way disqualified her from the role of widow.
An 1865 case from Nanbu County, Sichuan Province,^’ resulted in a
different solution to the problem of placing a stone maiden, but one that
shared tiie same logic of separating the biological and social dimensions of
tiie wifely role. In tiiis case, tiie groom, Wang Guicai, aged sixteen, explained
in his petition tiiat “it was only when I slept with [my bride] Zou Shi diat
I discovered she is a two-formed cripple and cannot bear children [er xing
fei ren, bu neng shengyu].” The term er xing or: erxingzi, which I translate
as “two-formed,” was another term for tiie stone maiden.'” The groom’s
statement was confirmed by the bride, Zou Shi: “My body has a crippling
illness, and I cannot bear children [shen you canji, bu neng shengyu], so my
husband and I are not happy togetiier.” After this discovery, Wang and his
fatiier demanded tiiat Zou Shi’s natal family pay tiiem thirty strings of cash
in compensation. When her fa±er, Zou Shaopan, refiised to pay, the Wangs
insisted on divorcing her and getting a refiind of her brideprice (amount
unspecified); but her fatiier also refiised to take her back. Finally, tiie groom
and his father filed charges in the Nanbu County court.
Since the facts were not in dispute, the magistrate did not botiier to order
a pelvic examination of Zou Shi. Instead, he simply ordered her father to
pay the Wangs the tiiirty strings of cash tiiey had demanded so that they
could buy a concubine for Wang Guicai “to secure his line of descent”; in
exchange, the Wangs would agree to keep Zou Shi as Wang Guicai’s main
wife. Zou Shaopan was not happy widi this decision, so tiie magistrate
scolded him and told him to consider what was best for his daughter:
Since Zou Shaopan’s daughter has a “crippling disability” [canfei],
it would be appropriate according to law to return her to her natal
family. But for her sake as well [as the groom’s], tiiis judgment is a
better solution: this way, your daughter will have sons even though
she cannot bear them herself [WM zi er you zi], she will have successors
and her incense fire will continue—tiiat is what is most important! You
should not begrudge tiiis small payment, because if you fail to pay, you
will force your daughter to bear a lifelong burden of pain [shi nü bao
zhongshen zhi tong].
” Nanbu County #6-30-318, Tongzhi 4.5.13. (Originals are held at Nanchong xMunicipal Archive; each case is cited by serial number and Chinese date.)
^^ For example, an eariy Qing story contains the following line: “That woman was a ‘stone
maiden’ [shinu], also known as a ‘two-formed person’ [you jiao zuo er xingzi]” (Tianhua
Zhuren, Tunxian xiao [Shenyang: Chunfeng Wenyi Chubanshe, 1983], 2:29).
Zou Shaopan pledged to pay the required amount, but later he dragged his
heels, provoking the Wangs to file a complaint. In response, the magistrate
ordered Zou to take custody of his daughter undl he saw fit to pay up: in
other words, if he wanted to secure a place for her in the Wang family, he
would have to compensate them.
The magistrate’s decision in this case confirms Francesca Bray’s insights
into the polidcs of the polygynous elite household. Bray argues that polygyny
was based on the performance of different aspects of the wife-mother role
by different women within a single family: the main wife {qi), who came
ftom the same elite background as her husband and who was the dtular
mother {dimu) of all her husband’s children, would perform the social and
rituaUspects of motherhood. Meanwhile, she could displace the biological
aspects of motherhood (sexual intercourse, pregnancy, childbirth, and so
on) onto the subordinate women of the household: the concubines {qie)
and maidservants {beinü), who were also sexually available to her husband
(these women had been purchased through brokers ftom poor families).
In this way, an elite wife could enjoy the presdge and authority conferred
by the social-ritual aspects of motherhood without the burden of the risky
and possibly distastefiil biological aspects of that role. Bray’s analysis lays
bare the class exploitadon at the heart of the elite family and helps us to
understand how polygyny could actually serve the interests of the elite
women who cooperated in its perpetuadon.^’
The present case did not involve members of the elite, although the
magistrate’s decision did assume a certain level of prosperity. (The magistrate
must have believed that Zou Shupan could afford thirty strings of cash, or he
would not have ordered him to pay that much.)^^ If Wang Guicai acquired
a concubine, then—as the magistrate explicidy pointed out—that second
woman could perform the biological role to secure his line of descent, leaving Zou Shi—as main wife—to play the social-ritual role only. The ability
to separate the social ftom the biological through polygyny created a space
within marriage that could accommodate a stone maiden.
^’¥r!incesca.’Bray,TechnologyandGender:FabricsofPower in Late ImperialChina(BcrkdcY:
Universit)’ of California Press, 1997), 335-68. Bray’s claim that elite wives used abortifacient
drugs to avoid child bearing is controversial and may be incorrect (see Sommer, “Abortion in
Late Imperial China”). From anecdotal evidence, it is clear that many elite wives did in fact
bear children of their own. For gender roles and the division of labor among females within
the elite household, see Susan Mann, The Talented Women of the Zhang Family (Berkeley:
Universit)’ of California Press, 2007).
‘^ Thirty strings of cash (about thirty thousand cash) was a large amount of money
for most people. To put this price in perspective, in the wife-selling cases I have collected
firom the Nanbu County archive, the average price of a wife in open sales during the midnineteenth century was about fiñeen thousand cash. It makes sense that the price to acquire
a concubine would have been higher than the average price in a wife sale, because wife selling
carried a certain amount of stigma; also, men pressed by poverty to sell their wives usually
had to accept the first offer received and could not afford to hold out for a higher price.
” A similar logic guided one of the forms of “delayed transfer marriage” that were practiced in Guangdong Province: in “compensation marriage,” a woman with an independent
The Gendered Body 293
Other cases involving stone maidens ended with a very different solution. In 1851 Liao Ronghua of Ba County, Sichuan Province, married
his eldest daughter Zhanggu, aged thirteen, to Tan Xinxi, the son of Tan
Tianyuan. The two families were already connected by marriage, as Liao
Ronghua’s uncle Liao Yongtai was Tan Tianyuan’s father-in-law, and this
man served as matchmaker for the marriage. At first all appeared to go
well, but after six months, the groom reported to his father and maternal
grandfather, the matchmaker, that the bride’s “vagina is solid” {yin shi); as
Liao Ronghua later explained in his plaint to the Ba County magistrate,
this condition made it “impossible to use her as a wife” {nan yi wei qi)’.
“Solid vagina” is another expression for the impenetrability of a stone
maiden: in Chinese, “solid maiden” and “stone maiden” are homonyms
as well as synonyms.^* The Tan family sought to cancel the marriage, and
the matchmaker helped negotiate a settiement.
The settiement was that Zhanggu would leave botii families and become
a Buddhist nun. The groom’s family was expected to pay some amount
of money in order to gain her natal family’s agreement to take her back
and place her in a temple; that money would help establish her in her
new life (apparentiy a financial endowment was necessary for the temple
to accept her as a novice).^^
The matter ended up in court because of a dispute over how much the
groom’s family should pay; at first, tiiey paid eight strings of cash, and Liao
Ronghua wrote out a “receipt” {lingyue) and took his daughter home. Later,
however, Ronghua pressed tiie Tans for a larger sum, and when he failed to
get It, he sued Tan Tianyuan for canceling the marriage (without mentioning
tiie girl’s disability in his plaint). Tan Tianyuan tiien filed a counterplaint
frankly explaining tiie situation and suggesting tiiat his son may have been
the dctim of marriage fraud. Afrer tiiis exchange of plaints, tiie dispute was
mediated by neighbors and settied out of court. The mediators reported to
tiie magistrate tiiat tiie marriage indeed had to be canceled because tiie btide’s
“womb is afflicted with solidity of tiie vagina” {tai huanyin shi); tiierefore.
mcome who did not wish to play the biological role of wife could buy her husband a concubme to perform that role in her place; this maneuver enabled the main wife to live independently as long as she liked while securing the right to move into her husband’s household in
old age and to claim a place on his ancestral altar after death. See Janice Stockard, Daughters
of the Canton Delta: Marriage Patterns and Economic Strategies in South China, 1860-1930
(Stanford, CA: Stanford Universit)’ Press, 1989), 48-69.
^•’ Cf. Furth, “Androgynous Males,” 5n9.
^’ We find similar solutions in other cases. In an 1863 case fi-om Ba Count)’, Sichuan
Province, the groom’s family paid the stone maiden’s natal family thirteen taels of silver in exchange for a divorce; the divorce contract authorized the woman “to enter a temple as a nun”
but also stipulated that “if she recovers fi-om her disabilit)’, she is entitled to marry someone else” (Ba County #5-7213). For a similar example fi-om Baodi Count)’, Zhili Province
see Baodi County #170/Guangxu 33.11.19. (Ba Count)’ cases are cited by serial number;
Baodi cases are cited by bundle number and Chinese date.)
the groom’s father. Tan Tianyuan, had agreed to pay fifteen strings of cash
in exchange for Liao Ronghua’s agreement that his daughter be divorced
and “shave her head to enter a temple as a nun” {pi ti ru miao wei ni). The
magistrate approved this settiement and ordered both parties to come to
the county court to file affidavits confirming its terms.’*
The most common Chinese expression for joining the clergy (which
appears several times in this case’s record) literally means “to exit the
family” {chu jia), and that is precisely what was involved: male and female
clergy lived outside xht family system, did not marry, and were expected
to remain entirely celibate. In the previous cases, the problem ofthe stone
maiden’s placement was solved by finding places inside the family that did
not require sexual intercourse or reproduction from a woman. In the present case, the problem was solved by finding a corresponding place outside
the family, in the celibate clergy.
In social practice, clerical celibacy may have been the solution of choice to
the problems posed by a stone maiden, since widowhood and purchase ofa
concubine were not always practical options. (Disabled sons were sometimes
donated to monasteries to become monks, too, if unable to perform necessary labor.) In Ming and Qing fiction, the stereotype ofthe stone maiden
mostiy depicts her as a Buddhist or Daoist nun. As Furth has pointed out,’^
the most famous example is the character “Sister Stone” (Shi Daogu) in the
sixteenth-century drama Mudanting {The Peony Pavilion), who explains,
“Driven by yin and yang, people rush pell-mell in pursuit of marriage, but
Heaven denied me woman’s proper parts and so my sole recourse was to
the Way, to don the shaman’s robe.”” Sister Stone goes on to recount
that she did originally marry, but her husband was unable to consummate
their marriage; so he acquired a concubine and “abandoned” {qi) her, after
which she then became a Daoist nun.” Another stone maiden turned nun
can be found in the Qing novel Xu Jinpingmei {Plum in the Golden Vase:
The Sequel)-, she is the reborn Pan Jinlian, notorious heroine ofthe Ming
novd Jinpingmei {Plum in the Golden Vase), and her disability is depicted
as karmic retribution for the excessive licentiousness of her previous life.
The stone maiden posed a practical problem: somewhere in society a
place had to be found that would obviate her disabilit)’ by making sexual
intercourse and reproduction unnecessary. It is striking that the normative
gender system could accommodate such anomalous individuals, for whom
” B a County #4-4919.
” Furth, “Androgynous Males,” 21.
‘* Tang Xianzu, The Peony Pavilion, trans. Cyril Birch (Boston: Cheng & Tsui, 1980), 70.
^’ Tang Xianzu, Mudanting {The Peony Pavilion) (Beijing: Renmin Wenxue Chubanshe,
1997), 83-86.
‘”‘ Li Mengsheng, Zhongguo jinhuixiaoshuo baihua (Shanghai: Shanghai Guji Chubanshe,
1994), 252. In Ming and Qing fiction, infertilit)’ is portrayed as one ofthe negative effects
of licentiousness; see Keith McMahon, Causality and Containment in Seventeenth-Century
Chinese Fiction (Leiden: E. J. Brill, 1988), 102.
The Gendered Body 295
magistrates seem to have felt considerable sympadiy. My sources document
two basic soludons to this problem. The first was to separate the social and
dtual requirements of die wife/modier role from die biological requirements
ofthat role; the second was for a stone maiden simply to “exit the family”
by joining die celibate clergy. We can find a hybdd soludon in a fictional tale
from the early Qing coUecdon Yunxian xiao {Laughter of Cloud Fairies). In
diis tale, die hero’s wife turns out to be a stone maiden. After he acquires a
second woman who can bear him sons, die stone maiden becomes a Buddhist
nun, which she asserts is her fate, and the hero provides a cash endowment at
a temple to support her. This resoludon combines the two soludons found
in our legal cases: the second wife performs die biological role, freeing die
stone maiden to “exit die family” Eventually, die hero’s son wins top honors
on die civil service examination, and everyone lives happily ever after.*’
A third “solution,” which hardly bears contemplation, appears in yet
another legal case (from Shunyang County, Henan Province, dated 1743).
When peasant Liu Cao’er, aged twenty-diree, discovered that his bdde,
Jiang Shi, aged seventeen, was a stone maiden, he tried to return her to her
natal family to be sold off so that he could marry someone else with the
proceeds. But her natal family reftised to cooperate. The protagonists in this
case were far too poor to consider buying a concubine or endowing a place
for Jiang Shi at a temple, and Liu Cao’er saw his wife as a useless burden.
He became ftustrated and irate, and finally he murdered die unfortunate
young woman, attempdng to pass off her death as a suicide. As extreme
as this scenario is, it seems a logical result of die ftindamental difficulty of
finding a place in Qing society for a woman who could not perform the
biological role of wife. Jiang Shi’s life chances were constrained by her
body—but it was society that imposed those constraints.*^
We know that in late impedal China, the dominant ideology linked gender
norms very closely to the archetypal roles of husband/father and wife/
mother. As I have shown elsewhere, legal reforms ofthe Yongzheng and
early Qianlong reigns dghtened this link considerably.*’ Nevertheless,
we also know that Qing society contained many individuals—including
“” Tianhua Zhuren, Yunxian xiao, 29-36.
Xingketiben,#198-8, Qianlong 8.3.20. In this case, die magistrate had not brought a
midwfe to die inquest, so he ordered two neighbor women to examine the corpse’s pelvis,
and they confirmed that she was “truly a stone maiden”; the male forensic examiner had
already determined the cause of death to be stranguladon radier than suicide.
Sommer, Sex, Law, and Society, esp. 8-12, 308-16. Barlow (“Theorizing Woman”)
goes soferas to argue diat gender discourse recognized no general category of woman based
on anatomy; instead, individuals were gendered exclusively by performance of famUy roles:
that is, stricdy speaking, there were no “women” or “men” but only wives/mothers/sisters/
daughters and husbands/fethers/brothers/sons.
an increasing number and perhaps proportion of single men—who lived
outside the family system. If such individuals failed to perform family
roles, did they constitute a category outside gender? If not, what criteria
defined their gender?
Clergy provide obvious material for pursuing this inquiry, since by definition they had “exited the family” {chu jia) and were expected to remain
unmarried and to abstain from all sexual activity; moreover, Buddhist monks
and nuns shaved their heads and wore gender neutral clothing. For these
reasons, it might be appropriate to regard clergy as a category beyond
gender, or perhaps as some sort of third gender.** It would logically follow
that a nun should not be considered a woman, even if she had a woman’s
body. In fact, this logic might help to explain our cases in which stone
maidens became nuns: such a solution placed them outside the family and
therefore, in effect, outside womanhood altogether.
But before we accept these conclusions, can we test them? An opportunity is provided by legal cases in which nuns were raped. For example, in
a 1745 case from Huaining County, Henan Province, the young Buddhist
nun Zhao Wan, aged twenty-three, was raped by three men who lived near
her temple.*’ Zhao Wan lived alone with her elderly mother in a small rural
temple. She had been in the temple since childhood, when her widowed
mother had moved there with her, and had never married; the nun who had
been her teacher and supervisor had recentiy died, leaving her in charge of
the temple. The ringleader in the gang rape, an unmarried barber named
Chen Yuan, aged twenty-six, got the idea to rape her one day when she
thanked him politely for helping to catch her runaway mule. Chen noticed
that no one else was at the temple, and his lust was aroused, so he took the
nun by the hand; she pulled back her hand and scolded him loudly, so he
ran away. But he was consumed by desire, and he persuaded two friends,
both single landless peasants who worked as casual laborers, to help him
rape her. Late that night, the three men broke into the temple and took
turns raping her in her bed at knife-point.
The next day, Zhao Wan reported the rape to the county magistrate,
bringing along her bedding, soiled with the men’s semen and her own
blood, as evidence. The magistrate personally inspected the scene of the
crime, noting evidence of the break-in, and then ordered the court midwife
to perform a pelvic examination on the nun. The midwife testified that
the nun was “definitely a virgin who has just been penetrated for the first
time” {shixi chuzi chuposhen). The rapists confessed immediately upon arrest and testified to the nun’s chastity by confirming that she had resisted
•’•’ Like clerg)’, eunuchs were said to “exit the family” (chu jia) upon being castrated and
entering imperial service (Melissa Dale, personal communication). Mitamura Taisuke has
characterized eunuchs as “the artificial third sex” ( Chinese Eunuchs: The Structure of Intimate
Politics, trans. Charles A. Pomeroy [Rutland, VT: Charles E. Tuttle, 1970], 21).
“‘ Xingke tiben, #119/Qianlong 10.12.10.
The Gendered Body 297
Chen Yuan’s initial advance and that they had used “violent coercion”
{qiangbao) to rape her, threatening to kill her if she cried out. Chen Yuan,
as ringleader, was sentenced to immediate beheading, and his two accom-‘
plices were sentenced to strangulation after the assizes, according to the
substatute against “gang rape” {lunjian); this sentence was upheld upon
review and confirmed by imperial edict.
The significance of this case for our discussion is that it was handled
in exacdy the same manner as the rape of a chaste wife or daughter; the
fact that the rape victim was a nun made no difference whatsoever.** The
law cited and the penalties imposed were the same that would apply in
any other gang rape case. One interesting detail is the pelvic examination: performing such examinations in rape cases was the most important
forensic duty of midwives, but they were ordered to do so only when the
alleged victim was unmarried and presumed to have been a virgin prior to
being raped. Midwives were expected to read female genitalia for evidence
of penetration: had the alleged victim indeed been penetrated—literally,
had her “body been broken” {poshen)> Pelvic examinations were never
performed on married women who claimed to have been raped, presumably because any readable evidence might be the result of her husband’s
legitimate actions; in such cases, conviction for rape depended on other
kinds of proof.*^ Usually a woman of Zhao Wan’s age would have been
married; but since this nun had lived a life of clerical celibacy since childhood, her body could be read for evidence in the same manner as that of
an unmarried virgin daughter.
In other words, for purposes of rape prosecution, eighteenth-century
jurists equated a nun’s celibacy with die virginity and chastity of the classic
rape victim defined by law: “a wife or daughter of good/commoner family” (/¿»w^y««/www). She shared die same anatomy as females within the
family system and for that reason shared the same vulnerability to rape. This
conclusion is confirmed by evidence ftom the system for canonization of
chastity martyrs: in 1747 a Daoist nun who “preserved her purity [quan
zhen] in die face of violent attack” (that is, she was murdered while resisting
rape without jdelding to penetration) was canonized by imperial edict, “even
though she does not fall within the ranks of wives and daughters of military
personnel or civilians” {bu zai bing minfunu zhi lie).*^ With this precedent
established, celibate female clergy became eligible for canonization if they
died resisting rape. This evidence shows that legal authorities during die
” For Qing rape law and trial procedure, see Sommer, Sex, Law, and Society chap 3
” Ibid., 79-84.
H- •
‘* Qing huidian shili (Beijing: Zhonghua Shuju, 1991), 403:508. In the High Qing,
women whose heroic martyrdom in the cause of chastity was recognized by imperial edict
would be honored by the local magistrate in the Confucian temple and have memorial arches
erected in their honor by their families at state e.pense; in English-language scholarship it
is conventional to refer to this ofiScial recognition of chastity heroines as “canonization.”
High Qing defined a broad category of woman in terms of shared anatomy
and “rapability” that included females outside the family system.*’
The notion that women are defined by a shared xoilnerability to rape
recalls a tradition of feminist theory that sees sexuality and sexual relations
as central to women’s subordination within a patriarchy. For example, Susan
Brownmiller (whose pioneering work helped make rape a focus of feminist
concern) sees sexual assault as a key factor in the subordination of women,
arguing that even women who are not themselves assaulted are made more
dependent on men hy fear oí rzpe.^^ The crime itself she explains through a
crude anatomical determinism: “What it all boils down to is that the human
male can rape. Man’s structural capacity to rape and woman’s corresponding
structural vulnerability are as basic to the physiology of both our sexes as the
primal act of sex itself”” In Brownmiller’s view, it is this shared vulnerability
to rape that defines women politically.” More sophisticated is the approach
of Catherine MacKinnon, who uses the conceptual structure of Marxism
to explain, by analogy, the role that sex plays in patriarchy: “Sexuality is to
feminism what work is to Marxism: that which is most one’s own, yet most
taken away.”°’ MacKinnon rejects Brownmiller’s anatomical determinism
while extending her insight that sexual domination has played a critical role
‘ ‘ The three rapists in this case—a barber and nvo casual laborers, all young and single
—were precisely the sort of dangerous male that eighteenth-century jurists had in mind
when they promulgated harsh laws against “roodess rascals” {¿uang gun, literally, “bare
sticks”), including the Yongzheng substatute against gang rape cited here (which applied,
by analogy, “the substatute against rootless rascals” [guanggun li). See Sommer, Sex, Law,
and Society, 96-101; and Matthew H. Sommer, “Dangerous Males, Vulnerable Males, and
Polluted Males: The Regularion of Masculinity in Qing Dynasty Law,” in Chinese Femininities/
Chinese Masculinities, ed. Susan Brownell and Jeffrey Wasserstrom (Berkeley: University of
California Press, 2002), 67-88.
*° Susan Brownmiller, Against Our Will: Men, Women, and Rape (New York: Simon and
Schuster, 1975). Sharon Marcus builds on Brownmiller’s insight to interpret rapabilit)’ as a
consequence of a “cultural script” rather than anatomical vulnerabilit)’. “Even though women in feet are neither the sole objects of sexual violence nor the most likely target of violent
crimes, women consritute the majorit)’ of fearfiil subjects; even in situations where men are
empirically more likely to suffer from violent crimes, they express less fear than women do,
and tend to displace this fear onto a concern for their mothers, sisters, wives, and daughters
which usually takes the form of restricring their mobilit)’ by means of warning these women
not to go out alone at night” (Marcus, “Fighting Bodies, Fighting Words: A Theory and
Politics of Rape Prevention,” in Feminists Theorize the Political, ed. Judith Butier and Joan
Scott [New York: Roudedge, 1992], 394).
*’ Brownmiller, Against Our Will, 4-5.
” Brownmiller’s anatomical determinism has some obvious problems: for example, if
the decisive factor were human anatomy, then the incidence of heterosexual rape should be
constant across cultures and over time (which it is not), and it could not be changed without
modifying the anatomy in question. Cf. Catherine A. MacKinnon, Toward a Feminist Theory
of the State (Cambridge, MA: Harvard Universit)’ Press, 1989), 56. Nor does Brownmiller’s
theory consider why some males commit homosexual rape, let alone why others would be
vulnerable to it.
” MacKinnon, Toward a Feminist Theory, 3.
The Gendered Body 299
in the shared experience and definition of womanhood: “To be rapable, a
position that is social not biological, defines what a woman is.”‘*
Ironically, ±is position has a great deal in common with the way Qing
jurists conceptualized womanhood (altiiough, needless to say, their political ends had nothing in common with Brownmiller’s or MacKinnon’s).
Theirs was a phallocentric conception: they understood female sexuality
frindamentally in terms of penetrability and viewed male sexual predators
(stereotyped as rogue “rootless rascals” outside the family system) as a
constant and ubiquitous threat; female virtue tiiey defined in terms of how
much a woman was willing to suffer in order to defend that penetrability,
to reserve it exclusively for her husband.
To sum up, Qing jurists imagined a general category of woman defined
by a shared vulnerability to penetration. Chastity and rapability were tiie two
sides of this coin. The stone maiden fits into this picture, albeit imperfectiy,
in that she was deficient or incomplete according to a standard that equated
normalcy of botii anatomy and gender role with penetrability. From this
perspective, the stone maiden was an exception that proved the rule: her
disability prevented her from frilly realizing a standard of womanhood tiiat
applied generally—just as unchaste women confirmed by negative example
the standard of virtue to which all women were held.”
MacKinnon’s observation tiiat to be rapable is to be socially a woman, regardless of biological sex, leads us to tiie male victim of homosexual rape. What
made the rape ofa male comprehensible to Qing jurists.?’* The first laws in
imperial China explicitiy prohibiting homosexual rape were promulgated by
tiie Qing dynasty. These laws, and the procedure that Qing jurists developed
for dealing with homosexual rape, were based by analogy on pre-existing laws
and procedures for prosecuting heterosexual rape; this analogy extended to
tiie male rape victim himself, who in various ways was put in a female position.
For example, when a male alleged that he had been raped, the magistrate
would order the court’s forensic examiner to inspect his anus for e’idence
‘ ‘ Ibid., 178.
‘ If male or female clergy engaged in consensual sexual acts, they were punished under
the same statutes that applied to laypeople (for “consensual illicit sexual intercourse”), but
they would receive a penalt)’ increased by two degrees to reflect their violation of clerical
vows as well as the penal code; they would also be forced to return to laity (Xue Yunsheng,
Duli cunyi, statute #372-00). High Qing law maintained that the only legitimate context for
sexual acts was marriage, and it prohibited any that took place outside that context (Sommer,
Sex, Law, and Society, esp. 8-12, 65, 305-16).
” I have treated this subject in detail elsewhere, so here I confine myself to a brief summary See Sommer, “The Penetrated Male in Late Imperial China: Judicial Constructions and
Social Stigma,” Modern China 23, no. 2 (1997): 77-130; Sommer, Sex, Law, and Society,
132-38; and Sommer, “Dangerous Males.”
of penetradon, much the same way midwives examined female rape vicdms
who were presumed to have been virgins. The logic for such examinadon is
oudined in a 1788 statement from the Board of Punishment reprimanding
the Guangdong authorides for mishandling the investigadon of a homicide
involving sodomy. The coroner in this case had failed to examine the anus
of the homicide vicdm, with whom the killer claimed to have had a longterm sexual reladonship:
It is true that the code contains no explicit measure providing for
examinadon ofthe anus of a male who has been sodomized. Nevertheless, the code does contain a substatute mandating the examination of
the vagina of a female virgin [chunü] who has been raped in order to
ascertain whether she was really a virgin, and that logic can certainly
be extended by analogy [yi ke tuilei] to sodomy cases. Especially in
cases where the victim has provided no testimony before death, it is
absolutely necessary to examine his anus to determine whether it is
stretched out [kuansong]. Only then is it possible to establish proof of
a pdor illicit sexual reladonship.
Coroners’ manuals explained that the anus of a male who “has been sodomized over a long period of dme” {jiu beijijian) will be “stretched out,
not dght at all” {kuansong, bing bujincou), whereas the anus of a “virgin”
male who has been raped will be “open, with the inside red and swollen”
and possibly bleeding.”‘^ The stakes were high in such examinations, because
if a murder took place in ± e context of a rape attempt, it was supposed
to receive penalties of even greater sevedty. Therefore, it was necessary
to ascertain whether the killer had indeed had consensual sodomy with
his vicdm or had instead raped him. Moreover, the penetrated anus was
evaluated stricdy as evidence of crime, since Qing law allowed no legidmate
context for homosexual penetradon: the point of forensic examinadon was
to distinguish between “virgins” who were victims of crime and habitual
sodomites who were themselves criminals.
Thus, males who had been used in die “female” sexual role would be
examined for evidence in the female way.’^ This treatment of male rape
vicdms implies that Qing jurists to some extent shared MacKinnon’s view.
To pursue this logic ftirther: if “rapability” defined the category woman,
then were male rape vicdms considered in some sense to be women?
The key here is not anatomy per se but age. Men, as a category, were
defined not by penetrability but by its opposite, the “acdve” sexual role of
penetrator. A male could be imagined as vulnerable to rape, like a woman, only
by being imagined as powerless, like a woman; and what made this possible
was the physical weakness of childhood. Therefore, Qing jurists imagined
” Ruan Qisi, Chongkan buzhu Xiyuanlu jizheng (Taipei: Wenhai Chubanshe, 1968),
‘* For a detailed example, see Sommer, Sex, Law, and Society, 127-28.
The Gendered Body
tiie plausible male victim as an adolescent or even younger boy assaulted by
a powerfiil mature man. This image is clearly expressed by die language of
the Qing code, which, for example, characterized the male rape victim as “a
son or younger brotiier of good/commoner famüy” {Hangjia zi di); and it is
confirmed by tiie records of cases where homosexual rape was actually prosecuted, which invariably concern children or youtiis assaulted by significantiy
older and more powerfiil men. Moreover, it is quite clear from both legal
case records and a wide variety of literary sources that tiie male youth was
feminized and eroticized as an object of masculine possessive desire. In tiiis
way, tiie weakness of a young boy corresponded to tiie gendered vulnerability
of women generally, and male vulnerabiUty to rape, like male erotic appeal
as a sex object, was considered a temporary transitional phase that ended
with tiie empowered masculinity of adultiiood. In a way, tiiis androgynous
ambiguity of die adolescent male corresponded to tiie arrested development
of tiie permanentiy juvenile stone maiden: botii conditions make sense when
we understand that normative gender identity was fiilly realized only with
adulthood, marked above all by marriage and reproduction.
A related question is whether homosexual rape law can shed light on how
jurists conceptualized male clergy. Just as tiie rape of a Buddhist nun was
handled in the same manner as the rape of a “wife or daughter of g o o d /
commoner family,” case records show that the rape of a male novice in xht
Buddhist or Daoist clergy was punished exactiy like tiie rape of “a son or
younger brotiier of good/commoner family.” Therefore, for purposes of
rape prosecution, Qing jurists recognized a broad category of males, whose
immaturity made tiiem temporarily vulnerable to rape, that included individuals botii inside and outside the family system.
I have yet to find a Qing legal case involving a clear example of one of Li
Shizhen’s “deformed males” {fei nan) to correspond to tiie stone maidens
discussed above. But a 1748 case from Licheng County, Shandong Province, comes d o s e . ” In this case, the peasant Ren Mei, aged thirty-two,
killed his new wife, Zhang Shi, aged eighteen, one night after less than’
uvo months of marriage. In his confession, Ren explained that his wife
had been very unhappy with his attempts to consummate their marriage:
“She resented me because she thought my penis was too small [zengxian
xiaode xiashen xiao], and she wasn’t willing to sleep with me. . . . Every
night Zhang Shi was annoyed at me because I performed unsuccessfully
[buji shi], and she refrised to sleep with me.” He would kowtow to her
and beg her to let him try again, and usually she would eventually give
in. But on that fatal night, she adamantiy refrised and demanded that he
” Zhongyang Tanjiuyuan Lishi-yuyan Tanjiusuo xian cun Qingdai Neige Dakuyuan cang
Mmg-Qing dang’an, ed. Zhang Weiren (Taipei: Academia Sinica, 1986), case #156-87.
divorce her: “She cursed me, saying: ‘A guy like you shouldn’t expect to
get married, because you only harm someone else by doing so! I’m not
willing to be married to you any longer. The sooner you divorce me, the
better! [ni zheyangyige ren jiu bugai qixin tao laopo kenghai bieren, wo
rujin bu ken tong ni zuo Hang kouzi de le, ni zao xie ba wo xiu le ba].”‘
Then she pushed him off the bed, and he fell over backward on the floor.
This was too much for him, he testified: he threatened to kill her if she
did not submit, but she continued cursing him, so he hacked her to death
with a kitchen knife.
After hearing this confession, the magistrate ordered Ren Mei to expose
himself for inspection: “This humble official then examined Ren Mei’s penis
[xiati]: it appears impotent and small [wei xiao].” Aside ftom this briefest
of statements, the magistrate made no comment on the genitals that played
such a pivotal role in this homicide. His report summarizes the couple’s
conjugal difficulties without going into detail: “After they married, Ren Mei
failed to satisfy Zhang Shi in bed,*” so that whenever he wanted to sleep
with her she would curse and scold him; this had happened many times.”
Ren Mei was sentenced to strangulation after the assizes, according to the
statute against “purposeful killing of one’s wife”; the magistrate charged
no one else with any crime.
The whole matter of just what was wrong with Ren Mei is left a bit vague.
From his own testimony, it would appear that his problem involved both
size and performance; and the magistrate’s two-character opinion—weixiao,
itself the epitome of brevity—seems to confirm that impression. But we have
no way of knowing what standard the magistrate was using to judge either
size or performance. (Nor can we answer the interesting question of what
standard Ren’s wife was using.) In medieval and early modern Europe, when
a woman sued her husband for divorce on grounds of impotence, it was
not uncommon for the court to delegate a group of experienced matrons
to attempt to arouse the man by kisses, manual stimulation, and so forth
and to report back on the results of their efforts.*’ But I find no evidence
of such heroic investigative zeal on the part of Qing courts, at least with
regard to male potency.
The vagueness about Ren Mei’s problems seems remarkable in contrast
with the graphic precision of the midwives’ testimony about the stone maiden
‘” This statement sounds euphemistic and literary in the original Chinese: yu zhenxi zhi
jian wei cheng Zhang Shi zhi xin (literally, “between pillow and sleeping mat, he failed to
fulfill Zhang Shi’s heart”).
” See, for example, R. H. Helmholz, Marriage Litigation in Medieval England
(Cambridge: Cambridge University Press, 1974), 89. In China during the Republican era,
after legal reforms based on Western models introduced male impotence as grounds for a
wife to sue for divorce, court-ordered physicians would conduct similar tests (by applying
chemicals) to determine whether a man was capable of erection. See Margaret Kuo, “The
Handmaid of the Revolution: Gender Equalit)’ and the Law of Domestic Relations in Republican China, 1912-1949″ (PhD diss., Universit)’ of California Los Angeles, 2003).
The Gendered Body
Xie Shi in the first case recounted above.” What explains this reticence? Do
we detect, perhaps, some measure of tacit masculine solidarity on the part of
the magistrate, expressed in a reluctance to press tiie matter too far? A more
likely explanation is Ren Mei’s lack of any obvious physical anomaly severe
enough to trigger charges of martiage fraud. Presumably, the magistrate’s
purpose in examining Ren Mei’s penis was to check for such deformity.
Since no one was charged witii or even questioned about marriage fraud,
the magistrate eadentiy judged tiiat Ren Mei’s penis fell witiiin the range of”
normalcy, even tiiough it appeared to be “impotent and small.” Apparentiy,
Ren Mei’s problems did not meet tiie standard of “crippling deformity”‘
{canfei) or “disease” {jibing) specified by tiie statute against fraud.
With fraud ruled out, why include so much testimony about Zhang
Shi’s sexual dissatisfaction in tiie case report? The answer is that aside from
justifying the provisional sentence imposed on Ren Mei (by proving that
he had killed his wife and explaining his motive), this report was designed
to inform the review process undertaken annually. The Qing code mandates deatii for some scenarios of wife killing but in every instance with the
qualification that “execution should take place afrer the Autumn Assizes”
{qiuhou chujue). Published regulations for tiie Autumn Assizes specify tiiat
any husband who killed his wife because she had been “defiant” {bu shun)
or “unfilial” {buxiao) should have his sentence commuted significantiy.*^
There can be littie doubt tiiat Ren Mei’s sentence of strangulation was radically commuted: tiie way his wife had defied, cursed, and pushed him would
have been interpreted as mitigating circumstances, any one ofwhich justified
a certain amount of violence on his part. (Qing law permitted a husband to
beat his wife as long as he broke no bones or inflicted worse injury.)** This is
the main reason that Ren’s testimony about his wife’s sexual dissatisfaction
was included in tiie case report. In tiiis respect, tiie report follows tiie standard pattern for cases of wife killing: if tiie wife had provoked her husband’s
violence tiirough some egregious faüure of gender duty (defying, cursing,
or stdking him; disobeying or abusing his parents; leaving home witiiout
permission; committing adultery; or the like), tiien her misbehavior would
be recorded in detail so tiiat his sentence could be commuted approptiately.*’
We should note tiiat, in contrast witii tiie stone maidens, Ren found himself
in court only because he had kiHed his wife. If he had simply faüed to satisfy
her sexually or to sire descendants for his ancestors, tiien he might have been
unhappy, but he would have suffered no formal consequences. In other words,
he would not have been forced to divorce his wife or to become a monk, let
alone to provide her with a second husband capable of sexual intercourse.
Both Xie Shi’s case and Ren Mei’s case are recorded in the same kind of routine memorial {xingke tiben) fi-om the same reign period.
Sommer, Sex, Law, and Society, 4 1 .
” Xue Yunsheng, Duli cunyi, statute #315-00.
” Sommer, Sex, Law, and Society, 40-43.
The Qing code also specified that if a husband caught his wife or concubine
in the act of adultery and killed her and/or her sexual partner, then he
would be charged with no crime as long as he had killed them immediately
(presumably motivated by “righteous indignation,” yifen) at the scene of
adultery.** But what sorts of evidence enabled a magistrate to make such a
judgment? After all, imperial law had always jealously reserved the taking
of life to the emperor alone, and it delegated this power only in a very few
circumstances; thus, for example, there was no doctrine of justifiable homicide in self-defense, except in defense against rape or against an intruder
entering one’s home in the middle ofthe night.
One morning in 1888, a peasant named Cui Yuming, aged thirty-three,
presented himself at the court of Baodi County, Zhili Province; he was
covered with blood, and he handed over to the astonished attendants a
pair of human heads and a cleaver, wrapped up in a blood-soaked pair of
pants. He announced that the heads belonged to his wife. Gao Shi, aged
twenty-nine, and their neighbor, Teng Qiyun, aged thirty-two: Cui had
arrived home unexpectedly to find them asleep together in bed and had
murdered and beheaded tiiem. Then he had come straight to the court to
report his deed. (The bloody pants belonged to Teng Qiyun.)*^
Cui Yuming was arrested, and the county magistrate visited the scene
of the slaughter, together with his forensic examiner and a midwife. The
headless corpses were found sprawled on the floor ofthe bedroom in Cui’s
three-room house: he had hacked the couple to death before beheading
them, and they were naked except for their footwear; the rest of their clothing was strewn on the floor. The headless corpses were immediately identified
as male and female—and, therefore, as Teng and Gao Shi, respectively
—by their genitalia and by the shape and clothing of their feet: Gao Shi had
bound feet, whereas Teng’s natural feet wore socks. The forensic examiner
fitted the heads to the corpses to make sure they matched. Then he and the
midwife made a detailed inspection of the corpses and found that “there
are remnants of semen leaking out [yujing liu chu] of both Teng Qiyun’s
penis [jingwu] and Gao Shi’s vagina [chanmenY’; evidendy, the couple had
engaged in intercourse shortiy before being killed.
“* For a detailed study of this law, see Marinus Meijer, Murder and Adultery in Late Imperial China: A Study of Law and Morality (Leiden: E. J. Brill, 1991).
” Derk Bodde and Clarence Morris, Law in Imperial China: Exemplified by 190 Ch’ing
Dynasty Cases (Cambridge, MA: Harvard Universit)’ Press, 1967), 312, 510.
^ There seems to have been a well-known and widely shared “script” for how to perform
such a deed. The same basic scenario can be found in many other Qing cases of revenge killing;
it is also strikingly similar to a famous episode ofthe Ming novel Shuihu zhuan {The Water Margin), derived from folklore, in which Wu Song avenges his brother by killing and beheading
his sister-in-law. Pan Jinlian, and her lover, Ximen Qing, after which he turns himself in to the
authorities (chaps. 25-26). It is hard to say whether the fiction was scripted by social practice or
vice versa—there may have been a mutually reinforcing feedback loop beuveen them.
The Gendered Body
On this basis, the magistrate concluded that “their corpses have been
found at the site where they committed adultery” and that Cui Yuming
had “killed them immediately upon discovering their adultery”; therefore,
the magistrate ruled, Cui was innocent of any cdme and should be released
wi±out penalty. In other words, the forensic evidence in this case proved
the cdme of adultery, which legitimized the subsequent homicides. Cui’s
neighbors and the reladves ofthe dead tesdfied diat they knew of no evidence to contradict diis judgment, and on die magistrate’s orders, they
filed affidavits to confirm that diey accepted it. The magistrate’s supedors
approved his judgment, so he released Teng’s corpse to his modier and
Gao Shi’s to her husband and killer for budal.*’
In reading diis case record, one’s attention is arrested by the sheer matedality of die murdered couple’s bodies and by the violence of their butchery
They provide a stark reminder diat bodies really do exist on some level beyond
discourse and that “power is exerted on people; it is not an intangible aura.”^”
And yet, one cannot visualize these bodies in some purely natural form,
abstracted from what societ)’ demanded of them. Even ± e basic, empid-‘
cal task of sexing die bodies for idendficadon depended as much on their
physical shaping ±rough socially mandated gender performance as on their
natural anatomy: Gao Shi’s bound feet matched her vagina, just as Teng’s
natural feet matched his penis, and the examiners’ gaze took in both sets
of features simultaneously Moreover, the legal significance of ±ese corpses
depended endrely on social imperadves—and there could be no stronger
tesdmony to how far Qing law backed the power of husbands over wives: it
even delegated die power to kill when a wife crossed die red line of adultery
The padiedc “remnants of semen” discovered by the examiners meant that
Cui Yuming would get away with murdedng two people and mutilating
their corpses: that wzs the trudi these bodies told.
Late impedal popular ficdon is dch with fanciftil episodes that call into
quesdon die links between anatomical sex and gender performance, and the
same judiciary diat sought to regulate gender and sexual behavior in society
also banned much of this literature. In these works, die body exhibits an
extraordinary plasdcity, and anatomy poses no barder to any pardcular role:
sexual predators widi protean genitalia masquerade as women, cross-dressing
woman wardors pass as men, castrated males serve as “female” concubines,
and sexual vampires and stone maidens prove to be ideal wives.^’
‘ Baodi County, #171/Guangxu 14.2.10.
70 •
° Bray, Technology and Gender, 46.
” See, for example, Judith Zeidin, Historian ofthe Strange: Pu Songling and the Chinese
Classical Tale (Stanford, CA: Stanford University Press, 1993); Sophie Volpp, “The Discourse on Male Marriage: Li Yu’s ‘A Male Mencius’s Modier,'” Positions 2, no. 1 (1994):
Such fiction provides both complement and antidote to our grim legal
narratives. Whereas the legal cases show that anomalous bodies imposed
constraints on the performance of normative gender, this fiction brings to
mind Judith Butier’s Utopian vision of radical self-determination, in which
there come into being as many genders as there are individuals who perform.
Its category-defying phantasmagoria suggests the alternative scripts and subversive performances that a worid without laws and norms might generate.
A fantastic story by the seventeenth-century parodist Li Yu draws together many of the themes of this article.^^ The young hero marries one of
three sisters. She is exceptionally beautiful, and he looks forward eagerly to
their wedding night; but upon attempting sexual intercourse he discovers,
to his shock, that she is a stone maiden. She begs him not to reject her but
instead to acquire concubines who can bear sons in her place (an echo of
our case in which the stone maiden problem was solved in precisely this
way). Her beauty and charm inflame his desire, they embrace passionately,
and after some frimbling he finally satisfies himself by penetrating her anus:
“When it came time to vent his passion, he gave up on the front and rushed
to the rear [she qian qu hou]—under the circumstances, it was the only
reasonable thing to do!”
The next day, however, his parents learn about her disability, and without
telling the groom they exchange her for one of her sisters. (“After all, there’s
no way that one family could produce more than one stone maiden!”) Late
that night, the groom returns from a party, drunk, to find his new bride
waiting in bed in the dark. Groping her, he is pleased, though startied, to
discover that her disability has magically disappeared, and he manages to
consummate their marriage the usual way; when it grows light, however,
he discovers that instead of his beautiful stone maiden, he is in bed with
her ugly, coarse sister, who has a disgusting bladder condition that makes
her wet the bed constantiy.
Horrified, he prevails on his parents to exchange her so that he can get
back the beautiful stone maiden. Instead, they swap her for the third sister.
This one turns out to be just as beautiful as the first; but upon having her
naked in bed, he discovers that she is no virgin: her vagina is open and slack,
unlike that of the bed-wetting sister, who at least was a virgin. (The hero
can read female anatomy like a midwife!) To make matters worse, she is six
months pregnant. Alas, she too must be rejected.
Afrer this Goldilocks-like series of failures, the hero works through several
other brides, but in every instance the woman either proves unacceptable or
dies shortiy after their wedding. In the meantime, his first bride, the beautifiil
111-32; and Rania Huntington, Alien Kind: Foxes and Late Imperial Chinese Narrative
(Cambridge, MA: Harvard Universit)’ Asia Center, 2003).
” Li Yu, Shi’er loti, in Si jia mi cang jinhui xiaoshuo jinghua (Beijing: Xinhua Shudian,
2001), 11/3504-13.
The Gendered Body
stone maiden, has been circulating dirough the marriage market: more dian
twenty grooms have tried her out and in turn rejected her upon discovering her disability. Finally, she and die hero end up back together: through
a broker, die hero marries her again, without realizing until the wedding
night that his latest bride is she. They recognize diat they are fated to be
together and resolve to make the best of die situation. At first, they engage
in anal intercourse, but this act leaves die bride unsatisfied, and eventually
her unrequited desire causes an ulcerated sore to develop between her legs
where a vagina should be. The hero discovers diat he can penetrate diis
sore instead of her anus; and eventually, diis makeshift intercourse cures die
bride’s karmic condition: in place of the ulcer, she develops a normal vagina
and is able to bear him sons! They live happily ever after.
Like much of Li Yu’s fiction, this tale interweaves a number of lines of
subversive parody. The comic series of wedding night disasters recalls Butier’s
idea of gender as a repeated performance susceptible to failure or subversion.
If the consummation of marriage was supposed to signal the adoption of
adult gender roles, dien diese repeated failures undermine the coherence
of normative gender and highlight its contingent and ftagile nature.
Instead, die hero’s makeshift intercourse with his stone maiden bride
suggests the possibility of alternative forms of sexual satisfaction that are not
linked to procreation; it also brings to mind die relationship that the stone
maiden Xie Shi was able to have with her first husband, who did not require
vaginal intercourse as a prerequisite for harmonious marriage. Moreover, Li
Yu’s pairing of a penetrable anus with an impenetrable vagina—each taboo
being the mirror image of the odier—reminds us of the unstable parallel
that Qing law drew between male and female rape victims. Qing jurists
understood the male anus as a sexual organ only for the limited purpose of
proving crime. But diis maneuver seems simultaneously to deny but also
tacidy acknowledge the ubiquitous phenomenon in their society of the
young male as object of possessive desire.
Finally, the stone maiden’s preservation of her “purity” for her one true
husband, despite trial by ordeal with more dian twenty other grooms, is a
hilarious parody of the female chastity so fetishized by Ming-Qing elite’s. It
echoes die absurdity of equating the disability of a stone maiden wi± the
chastity of a faidiftil widow—”to follow one true husband for life” {congyi
er zhong), despite all temptation and the pressure of poverty—an absurdity
we first noticed in the case of Xie Shi. After all, as Li Yu shows us, a stone
maiden was not disabled from »//forms of sexual activity, let alone passion
and desire, any more than a nun was incapable of fornication.
What can we learn from die legal cases presented here.’ Each illustrates how
Qing magistrates interpreted bodily evidence in order to enforce orthodox
norms of gendered behavior. Each supports die insight that perception of the
body is shaped by die prior influence of gender ideology, revealing the body
as “an ensemble of potentialities” that acquires meaning largely through
social expectations. In particular, these cases highlight the performative
aspect of bodily gender, blurring the distinction between the physical and
social dimensions of being. As many scholars have argued, the body acquires
meaning through what it is expected (or forbidden) to do.
These cases all involve anomalous anatomy or transgressive behavior
that defied such expectations and therefore subverted the normative script
of gender. Qing jurists sought to enforce conformity to Conftician family
roles; but there were always some individuals whose bodies or behavior defied category and somehow had to be accounted for. As the stone maiden
cases show, to perform normative gender required normal anatomy; without
that “prop,” a woman could not fulfill the procreative mission of a wife,
and to place such a woman in society required some complex discursive
and financial maneuvering. The purpose of Qing rape law was to defend
the chastity of “wives and daughters of good family,” but cases involving
nuns show that jurists in practice defined a broader category of woman in
terms of a shared anatomical vulnerability to rape, a category that included
individuals outside the family system. As a corollary, rape prosecution required the peculiar legerdemain of stretching Confucian wifely chastity to
include Buddhist monastic celibacy.
Even odder, perhaps, is the unstable analogy that Qing jurists drew between woman defined in terms of rapability and the plausibly rapable male.
Like the impenetrable stone maiden, the taboo of the penetrable male is
an example of reading the body in performative terms. Women, of course,
were legitimately penetrable within the context of marriage, procreation
being what gave their bodies social purpose and meaning. For males,
however, feminine ‘ulnerability to penetration was a transient and aberrant condition that they were expected to outgrow, and the law allowed no
space for legitimate male homosexual acts. Nevertheless, Qing jutists tacitiy
acknowledged that some boys welcomed penetiztion, as shown by laws that
made thirteen sui the age of liabilit)’ for consent to sodomy.^^ Moreover,
the open secret of elite men in the Ming-Qing era was an intense erotic
fascination with the young male, especially the cross-dressing boy actors
of the opera who moonlighted as escorts and prostitutes.^* Of course, it
was erotic objectification that made the young male vulnerable to rape in
the first place. It is as if the young male were simultaneously expected and
forbidden to submit to sodomy.^”
In the legal cases recounted above, magistrates restored order by
interpreting the material evidence of bodies according to cultural and
” Xue Yunsheng, Duli cunyi, substatute #366-03; cf Sommer, Sex, Law, and Society, 125.
” Wu Cuncun, Homoerotic Sensibilities in Late Imperial China (London: Routiedge
Curzon, 2004).
” Part of the solution to this puzzle is that elite males were prosecuted for sodomy only
rarely; the main focus of such prosecution was marginalized single males.
The Gendered Body 309
legal norms and, on tiiat basis, assigning people to tiieir proper places. In
contrast, Li Yu appears to_transcend the limits of official imagination: he
mocked the linkage betwee’n physical bodies and social roles that legal and
medical autiiorities strove to maintain. But his story works only because
he, his protagonists, and his readers all took for granted ±ose very norms
and standards. Everyone understands that only a fertile virgin is a suitable
bride (hence ± e problem that the story must solve), and by the end of his
tale Li Yu too managed to restore order through the proper alignment of
reproductive capacities and duties. The stone maiden’s faithfrilness to the
hero is rewarded by a karmic cure that transforms her into the fertile wife
he needs; and altiiough diis happy end rewards die hero’s willingness to
accept her as she is, his rejection of her sisters reveals the limits of his tolerance. Ultimately, the story follows a normative trajectory: its happy ending
is a marriage in which vaginal intercourse produces sons.
Li Yu opened up Butietian vistas of possibility; but in an ironic dovetailing
witii tiie judicial imagination, he ended by restoring the same sexual order
that magistrates worked so hard to defend. One’s lingering impression is
of both the elasticity and the tenacity of empowered values.
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The Gendered Body 311
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compulsory heterosexuality


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