Revisions seek to bring Japan’s archaic sex crime laws into modern era
Justice Minister Midori Matsushima photo: Satoko Kawasaki
For the first time since the Penal Code took effect in 1907, the Justice Ministry is compiling a package of amendments to Japan’s sex crime statutes that, if passed, will be the first major shake-up of those laws in more than a century.
From redefining rape to increasing the minimum sentence for that crime, the intended revision is largely hailed as a welcome development, if long-overdue, although critics say there is room for improvement.
The Cabinet of Prime Minister Shinzo Abe is set to green-light the revised bill for submission to the ongoing Diet session as early as this week.
We look into what legal changes are proposed and how they are supposed to better help victims of rape and other serious sex crimes.
Why revise the laws now?
The move to revise Japan’s archaic sex crime statutes gained traction under the leadership of former Justice Minister Midori Matsushima, who, upon assuming office in September 2014, declared it her priority to end the relative leniency she claimed had long been enjoyed by rapists.
Under current laws, those convicted of rape can be sentenced to a minimum of three years and perpetrators of rape resulting in injury or death can get as little as five years, versus a minimum of five and six years for robbery and robbery resulting in injury or death, respectively.
“I have always been infuriated that robbery is considered a more grave crime than raping a woman and ruining her life,” Matsushima said in her inaugural interview as justice minister.
At her instruction, a panel of outside experts was set up in October 2014 to debate a sweeping revision of sex crime statutes.
The ministry has been drafting the revision bill after its key decision-making legislative council approved the changes last September based on the panel’s recommendation.
What are the key changes?
The Justice Ministry seeks to expand the definition of rape, which has traditionally been interpreted as vaginal intercourse, to include anal and oral sex, thereby recognizing the possibility that men can also be victims.
In fact, the ministry even wants to remove the term rape, or gokan in Japanese, altogether from the legislation, replacing it with a more inclusive “forced sexual intercourse” (kyosei seiko).
To enforce a stricter crackdown on sex offenders, the ministry is looking to make crimes such as rape and indecent assault prosecutable even if a victim doesn’t press charges, as well as increasing the minimum sentence for rapists from the current three to five years.
In what has been hailed as a significant step forward, the proposed legal revision also would establish a new penalty against sex abuse committed by those who have used their “guardianship,” such as parents, to take advantage of children aged under 18.
How would expanding the definition of rape affect sex crime cases?
Hiromi Nakano, who represents Shiawase Namida (Happy Tears), a Tokyo-based group fighting sex abuse, said it would allow many child victims to be treated more seriously.
At present, children forced to perform oral sex, for example, are not recognized as victims of rape but of indecent assault, even though they have been physically “invaded,” Nakano said.
The minimum prison term for indecent assault is six months, compared with three years for rape.
The expanded definition of rape would also bring Japan a step closer to global standards, said Yukiko Tsunoda, a lawyer well versed in sex offense cases.
In the United States, Michigan redefined rape to include acts other than vaginal penetration back in 1974, prompting other states there to follow suit.
The new definition, therefore, signals a break from the male-chauvinist mindset that pervaded much of Japanese society in the Meiji Era (1868-1912), Tsunoda said.
The current law’s focus on vaginal sex, she said, suggests legislators back then placed the biggest emphasis on protecting the chastity of women, rather than on their dignity or human rights.
Why is the prerequisite of victims needing to press charges to be abolished?
Traditionally, sex crimes have been able to be prosecuted only upon a complaint by victims.
But experts say this causes tremendous psychological burden on victims, who are pressed to decide whether to seek criminal punishment for their offenders while they are still traumatized by the assault.
Experts have also pointed out that the current system has significantly lowered the chances of perpetrators of incest being prosecuted, leaving many offenders of child molestation unpunished.
“When a child is molested by their parent, it’s usually adults around them who lodge a complaint,” Nakano said.
“But would a mother, for example, want to file a criminal complaint against her own husband? It’s very difficult.”
How would other revisions affect underage victims?
Under the current law, rape and indecent assault do not constitute crimes unless it is established that offenders resorted to “violence and intimidation” to silence resistance by the victims.
The rationale behind this is that without such a struggle, there is still a possibility the act could be considered consensual.
Critics, however, have long decried this as being out of touch with reality, claiming in many cases offenders can overpower victims without, for example, beating or threatening to kill them.
This is particularly so when attackers hold some position of power over victims, including parents over children, teachers over students and superiors over subordinates.
To resolve the matter, the revised bill establishes a new penalty against “guardians” who have exploited their psychological control over a child under the age of 18.
It holds them criminally liable even if there is no evidence that they coerced a victim into sex.
Is everybody happy with the changes?
While hailing the planned legal revision as progress, experts say there is still room for improvement.
Lawyer Tsunoda, for one, said that although she welcomed the new crackdown on crimes committed by guardians, the legislation’s current definition is too narrow.
According to the Justice Ministry, guardians are essentially parents who live with the child, or in this case the victim, meaning a child’s relatives or schoolteachers, for example, would not fall under the definition as outlined in the amendments.
Nakano of Shiawase Namida, meanwhile, said her group will continue to campaign for a complete abolition of the clause that requires that offenders would have had to resort to “violence and intimidation” during the assault for the act to be considered a crime, which she claims has kept many rape victims from seeking justice.
One of the most common reactions victims make upon facing rapists, she explained, is that they simply freeze out of fear or instinctively choose to submit themselves to the offenders, feeling they won’t be killed if they don’t resist.
“Rape victims don’t always put up a fight against offenders, but that doesn’t mean sex was consensual,” Nakano said.
This lack of a struggle on the victims’ part, however, naturally obviates the need for offenders to resort to “violence and intimidation” as is currently stipulated by law, resulting in many offenders getting away scot-free, she said.
“We must put a stop to that.”