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Tuesday, November 29, 2022

Fornication under ancient laws of Vietnam

Updated: 16:24’ - 04/03/2011

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Pham Diem     
State and Law Research Institute

According to the Confucian conceptions in the Orient, the women’s virginity as well as the wives’ faithfulness to their husbands were considered among the foremost moral qualifications. Acts of infringing upon such virginity and faithfulness were considered not only immoral acts but also criminal offenses subject to severe punishment by law.

To that effect, the ancient law-makers classified with full consciousness these offenses into a group called “nhom toi gian dam” (fornication), which was dealt with by Hong Duc Code (of the 15th century) in an exclusive chapter titled “Gian dam” (Fornication) and by Gia Long Code (of the 19th century) in a section titled “Pham gian” (Commission of fornication) of chapter “Luat Hinh” (Penal Law).

Generally, in the two above-mentioned ancient Codes, the law-makers were fully conscious of identifying the subjects and objects of offense as well as the circumstances under which the offenses were committed, thereby to determine the penalties and civil compensation liability therefor.

Regarding the subjects of the offense, the offenders were, as usual, male; yet, sometimes they also included female if they consentiently joined male in committing the fornication. Consequently, such females were also punished under the ancient laws, as, according to the Confucian conception, the female had to always keep their chastity.

Regarding the objects or victims of the offenses, namely the female, the law-makers classified them according to their social status and their relations with the offenders.

Regarding the circumstances under which the offense was committed, the law-makers were also conscious of distinguishing rape from adultery. According to old feudal concept, only when people were officially tied together as husband and wife, could they have sexual intercourse; otherwise, it would be considered a crime.

1. Fornication under Hong Duc Code

In Hong Duc Code, chapter “Gian dam” (Fornication) contained 10 articles. Besides, such offenses were prescribed elsewhere in a number of articles of other chapters.

According to Article 403, those who commit rape would be sentenced to exile or death and had to pay a sum as a token of their begging for forgiveness. If they caused injury to the victims, they would be penalized one grade heavier than that imposed on persons who beat others to injury. If death was caused to the victims, the offenders’ property would be confiscated and paid as compensation to the former’s families.

So, it can be seen through this Article that rape was clearly distinguished by ancient law-makers from adultery. To them, rape was the most serious offense among the sexual crimes, and the rapists would be given due punishment besides having to pay compensation for the harms done to the victims.

Under Article 401 of the same Code, those who commit fornication with other persons’ wives would be subject to exile or death sentence, with other persons’ concubines would be penalized one grade lighter. And those who commit such offense against people of rank and fashion would be subject to penalty one grade heavier than that meted out for offenses against the commoner, and the first wives or concubines would all be put to exile and return land to their husbands. If the women were just the fiancee, both would be penalnized with one grade lighter. Yet, as provided for in this Article, all offenders had to pay a sum asking for the victims’ forgiveness.

So, this law provision clearly distinguished the victims’ social positions (first wife and concubine, wife and financee, people of rank and fashion and the commoner). Females might be victims and also offenders too.

As provided for in Article 402, those who seduce unmarried girls would be judged like committing common adultery and had to pay an amount of money to ask for their victims’ forgiveness, while the seduced girls were pleaded not guilty. Here, the victims were unmarried females who were, however, not raped but only seduced before yielding to the male offenders. Consequently, only the males were penalized by law while the females not.

Under Article 405, those who have an affair with other people’s wives, would be penalized with 60 cannings and a sum of money to ask for the victims’ forgiveness.

Meanwhile, incest was considered an especially grave offense and included in “Thap ac” (Ten grave crimes), which was subject to severe punishment. Under Article 406, those who commit fornication with concubines of their own grandfathers or fathers, with their adopted mothers, their aunts, their elder or younger sisters, their nieces, their sisters in law, their daughters or nieces in law would all be sentenced to beheading. Those who commit adultery with maids of their grandfathers or fathers, would be penalized with one grade lighter. In all the above-mentioned cases, the females would also be sentenced to exile.

According to Article 407, if servants commit fornication with wives, daughters or daughters-in-law of their masters, or with close female relatives of their masters, they would be sentenced to beheading; so were the hired laborers if they also committed such offense; the offenders’ property would be confiscated for the house masters, and the females were also sentenced to exile.

Under Article 409, if jailers commit adultery with the involved females, they would be sentenced to one grade heavier than that imposed on common adultery; the female would be sentenced to three grades lighter if they consiently committed the offense; if they are raped, they would not be pleaded guilty.

Particularly, Hong Duc Code spared one article exclusively prescribing fornication with female juveniles. Article 404 stipulated that those who committed fornication with girls of 12 years old or younger would be sentenced like rapists even though such girls had agreed thereto.

2. Fornication under Gia Long Code

The sexual crimes in Gia Long Code were grouped in an exclusive article (Article 322) in Section of “Pham gian” (Committing fornication), which contained 9 articles spelling out provisions similar to the provisions of Hong Duc Code but more specific.

Article 322 gave the overall prescription of the sexual crimes as follows:

- If it is adultery, both would be penalized with 80 cannings, if the women are unmarried; or 90 cannings, if the women are married.

- Committing fornication with deception (seduction, deception of women in order to have sexual inter-courses with them), the sinners would all be penalized with 100 cannings, regardless of whether the women are married or unmarried.

- If it is forcible sexual intercourse, regardless of whether the victims are married or unmarried, the offenders would all be sentenced to hanging, or exile plus 100 cannings in case of a failed attempt.

- Having sexual intercourses with girls of 12 years old or younger, the sinners would be charged with rape.

- Committing adultery with mandarins’ wives, both the adulterers and the adulteresses would be sentenced to hanging. If mandarins commit adultery with commoners’ wives, the couples would be penalized with 100 cannings and such mandarins would also be dismissed from office. Servants committing adultery with each other would all be subject to 100 cannings.

- In all circumstances, if being raped, the women are not pleaded guilty.

- In all circumstances, if the female victims get injured, the offenders would also be liable to pay the medical treatment for them.

Gia Long Code contained a special provision in Article 333 that if a husband tolerates his wife’s adultery with another person, the husband, the wife and the adulterer were all pleaded guilty and penalized with 90 cannings. In cases where a husband forced his wife or a father forced his daughter to have sexual intercourses with another person, such husband or father would be penalized with 100 cannings, the adulterer with 80 cannings while the women are pleaded not guilty; the couple’s marriage had to be dissolved immediately.

In Gia Long Code, incest was specified in Article 334, under which, the persons who committed adultery with the maids of their grandfathers or fathers, with daughters in law or nieces in law, or with other kith and kin in their families, would be sentenced to beheading together with their love mates. The adulterers and adulteresses being distant relatives would all be penalized with 100 cannings.

Besides, Gia Long Code also specified other sexual offenses such as servants committing fortication with their masters’ wives or daughters (in Article 336); the adultery between servants and non-servants (Article 339); adultery committed by clergymen (Article 338); mandarins having sexual intercourses with female singers (Article 340), etc., for which the sinners would be duly punished.-

VNL_KH1 

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