良奸有别——清代侵害妇女罪量刑中的“贞节”尺度

The Virginity of Insulted Women as a Penalty Imposing Criterion in the Qing Dynasty

清代法律在对侵害妇女罪行的拟罪中将"犯奸妇女"与"良家妇女"区别开来,侵犯"犯奸妇女"罪量刑低于侵犯"良家妇女"。这一原则可追溯到明末王肯堂之《王仪部先生笺释》,顺治初年修律时采用,乾隆年间已应用于实际的案件审拟中,嘉庆时经刑部确认奏准皇帝后列入条例。其后十数年间,又形成强奸及因奸致死和抢夺犯奸妇女罪量刑的系列相关条例。分析现存的清代强奸、抢夺、买卖妇女案例可知,妇女在被侵犯前是否失贞是清代司法实践中渐趋郑重的量刑尺度之一。

The Qing dynasty adopted virginity as a criterion in judging the crimes against women.The crime to sexually assault,snatch,or abduct and traffic a woman who has lost her virginity is considered less severe than the same action against a woman maintaining her virginity.The idea of such a practice might be traced back to the late Ming thinker Wang Kentang(王肯堂).There is evidence that shows that this differentiation had been indicated in the Shunzhi version of the law.During the Qianlong period,it was commonly applied in trial judgments.By Jiaqing period,after being confirmed by the emperor,it was written into the inquisition and punishment regulations followed by a series of detailed entries in later years.