Japan’s sex-crime laws have remained unchanged since 1907. However, in the summer of 2017 the Japanese diet passed a bill with proposed amendments to the 110 year old law. Sexual assault and rape cases in Japan are seemingly low but hide the fact that about 80% of cases remain unreported. The amended law includes expansions on the definition of rape and increased sentences for offenders. Nevertheless, the question remains whether these amendments are enough.
The provisions outlining sex-crimes and the penalties can be found in the criminal code of Japan. In article 177 of the unrevised penal code, rape is defined as,
“A person who, through assault or intimidation, forcibly commits sexual intercourse with a female of not less than thirteen years of age commits the crime of rape and shall be punished by imprisonment with work for a definite term of not less than 3 years. The same shall apply to a person who commits sexual intercourse with a female under thirteen years of age.”
In addition, article 178 includes provisions on “quasi rape”,
“1) A person who commits an indecent act upon a male or female by taking advantage of loss of consciousness or inability to resist, or by causing a loss of consciousness or inability to resist, shall be punished in the same manner as prescribed for in Article 176.”
2) A person who commits sexual intercourse with a female by taking advantage of a loss of consciousness or inability to resist, or by causing a loss of consciousness or inability to resist, shall be punished in the same matter as prescribed in the preceding Article.”
From article 177, it is clear that the definition of rape is limited to forced sexual intercourse with a woman. If a man is the victim of a sex-crime, the crime is not acknowledged under rape but as quasi rape and referred to as an “indecent act”. In addition, the definition of rape is further limited by the words “assault and intimidation”, and does not mention or define consent. Furthermore, forced anal and oral sex is not included. In general, the 1907 law is very limited and discriminatory in scope. Although the minimum sentence is three years, in reality the rape cases that are reported are often settled outside of court or the perpetrator(s) are given a suspended sentence. One such case is the Keio University gang rape case of 2016, in which all charges were dropped against the 6 students. In addition, according to the Japan Times, in 2014 out of the 1290 reported cases 755 cases were dropped or suspended.
However, the revised law does show some improvements, especially to the narrow definition of rape. The definition of rape, as laid out in article 177, was expanded to include involuntary anal and oral sex and rape is renamed as ‘forcible sexual intercourse’ both of which also recognize men as victims as well. Furthermore, the minimum sentence will be raised from three years to a minimum of five years. In rape cases that cause injury or death, the sentence is raised to a minimum of six years from five. In addition, the provision of “assault or intimidation” was removed from domestic sexual abuse concerning children. However, the precondition was not eliminated completely, which raised some criticism about its relevance as “a lack of physical resistance should not be taken to indicate that the sex was consensual, especially in cases of power harassment”. Additionally, the revised law no longer only requires the victim to file a lawsuit against their attacker for them to be prosecuted.
Another issue that was disapproved of was the lack of provisions to cover marital rape. Issues of domestic violence and domestic sexual abuse have often been regarded as private matters of the family which the government should not be involved in. The first official nationwide survey was only done in 1993, as marital rape is something that supposedly did not exist. In 2001, great strides were made by establishing Japan’s first domestic abuse law, the “The Law on Prevention of Spouse Violence and Protection of Victims”. However, this law only offers some protection in the form of six-month restraining orders and eviction but
fails to identify domestic abuse itself as a punishable crime. Although in some cases the existing law can be applied, there is a strong demand for specific provisions to cover spousal rape.
Furthermore, the lack of a provision outlining the notion of consent is a concern. Article 178 outlines provisions for situations when a person is unconscious or unable to resist however, this all only falls under quasi rape. If a person is sleeping or heavily under the influence of alcohol they are unable to give their consent yet this is not considered as “proper” rape under the old and revised law. Consent is an important factor in sex-crime cases as allowing the sexual crime to occur does not always imply consent and therefore it should be explicitly stated. The absence of forceful resistance does not imply consent. According to Mari Miura, a Sophia University professor, “Japanese men get the benefit from this lack of consciousness about the meaning of consent.” The issue of the absence of mention of consent can be explained by the lack of awareness. Although awareness has arguably been increasing in Japan through some gender equality initiatives, such as “HeForShe” and “NoMeansNo”, it is has not yet broken ground nationwide. According to the Japan Times, the “MeToo” movement, which started from the USA, has even caused confusion in Japan. Furthermore, the lack of proper sex education in schools simply adds to the problem and allows for a taboo-like attitude to continue when it comes to discussions about sex and sex crimes
The statute of limitations on rape remain as a further issue that should be amended. At the present, the statute of limitations for rape is 10 years and seven years for sexual assault. This is especially important in cases involving sexually abused children who may not be able to press charges within the statute of limitations. According to Kazumi Ogasawara, “since there are limits to the younger people’s understanding, the statute of limitations may expire before they can even understand that they have been the victims of crime.” The question that is debated is whether the statute should be abolished all together or simply extended. There has also been discussion about lengthening the period for juvenile victims to address the above mentioned issue.
In terms of how the revised law could be further amended the issues above should be taken into account. The UN Department of Economic and Social Affairs Division for the Advancement of Women has a guideline for sexual violence legislation which could be applied to the law as additional provisions or as extensions of existing provisions. According to the handbook, legislation should should attempt to do the following:
“• Define sexual assault as a violation of bodily integrity and sexual autonomy;
• Replace existing offences of rape and “indecent” assault with a broad offence of sexual assault graded based on harm;
• Provide for aggravating circumstances including, but not limited to, the age of the survivor, the relationship of the perpetrator and survivor, the use or threat of violence, the presence of multiple perpetrators, and grave physical or mental consequences of the attack on the victim;
• Remove any requirement that sexual assault be committed by force or violence, and any requirement of proof of penetration, and minimize secondary victimization of the complainant/survivor in proceedings by enacting a definition of sexual assault that either:
Requires the existence of “unequivocal and voluntary agreement” and requiring proof by the accused of steps taken to ascertain whether the complainant/survivor was consenting; or requires that the act take place in “coercive circumstances” and includes a broad range of coercive circumstances; and
• Specifically criminalize sexual assault within a relationship (i.e., “marital rape”), either by:
Providing that sexual assault provisions apply “irrespective of the nature of the relation- ship” between the perpetrator and complainant; or Stating that “no marriage or other relationship shall constitute a defence to a charge of sexual assault under the legislation.”
At the present, even the revised sex-crime law remains quite limited. Although the definition of rape has been expanded and renamed, quasi rape still exists. As mentioned before, there is no provisions for marital rape or “date-raping” which remains a problem. Although the requirement of assault and intimidation was removed for child abuse situations, it still remains as a requisite for regular rape. Therefore, it could be useful to use this guideline to further expand the law to become more well-rounded. This is possible due to the additional clause in the revised law that states that the law will go under review in three years. According to lawyer Keiko Ota, “These revisions are necessary, although they are only partial and come too late”.
An area which is connected to the law that should also be modernized is the process in which victims come forward and report the crime to the police. According to Hiromi Nakano, head of group fighting against sexual abuse, the first response of the officers remains a problem as “in Japan, police officers often don’t realize the importance of timely collection of biological evidence such as body hair and semen and sending victims to hospitals right away, this puts the burden on victims to know their legal rights”. Similarly, according to an author from the Japan Times, “they (police) are behind in their investigation techniques — this includes things like re-traumatizing the victim by forcing them to recreate the crime, and not allowing victims immediate access to a hospital for a rape kit right away.” This is also the reason why so many of the cases are settled outside courts as most victims don’t want to relive the crime in court as well as the shame associated with sex-crimes. The Asahi Shimbun also recognized the need for improvement in regards to investigation and trial procedures of sex-crimes.
In conclusion, although the revised law addressed some critical limitations of original 1907 law, such as by expanding the definition of rape, it still unsuccessful in covering all of the raised issues. The precondition of assault or intimidation still remains in the definition which fails to take into account rape that is not physically resisted but non-consensual. In addition, the lack of provisions outlining marital rape and consent serves as another disappointment. Furthermore, the statute of limitations as well as the investigative process should be amended. Due to the additional clause in the revised law, the law could be further amended to address these issues and one option could be to use the UN handbook as a guide. This would allow for Japan to meet global standards as well. Overall, it can be said that the revised law still falls short of what is expected and therefore is not yet sufficient enough to properly cover all aspects or sex-crimes.