Japanese Rape Law - There's Still Work to be Done

Poppy Kemp

In October 2017, the world was shaken by the Harvey Weinstein scandal. Women around the world displayed a profound sense of solidarity with the females involved, sharing their own stories of sexual harassment and abuse, causing the hashtag #MeToo to go viral, pressuring governments to address the serious issue of women’s rights. These demands for change were initially muted in Japan, despite its appearance of modernity, reflecting its traditionally limited approach to gender equality issues. Nowhere is this clearer than with the Japanese law on rape; which is infamous for historically having a shorter minimum sentence than theft. It is only now, two years after the scandal and after Japanese rape victims such as Shiori Ito have spoken out against the law, that some headway is being made on this topic in line with the rest of the democratic world.

The law

Unlike the English andWelsh law, consent is not a feature of the Japanese rape law. Instead, the 1905law requires the prosecution to prove that violence or intimidation was used,leaving the victim ‘incapable of resisting’. This term is usually interpreted to mean that the victim attempted to fight their attacker but was ultimately overpowered, enabling the perpetrator to have sex with the victim.

This legal burden arguably reflects early 20th Century Japanese attitudes that it was a woman’s duty to protect and even fight for her chastity. However, critics have argued that this law is completely outdated and places an intolerable burden on victims, particularly if they are intoxicated. Moreover, as Miyako Shirakawa [1], a rape victim and psychiatrist,argues, it fails to reflect the medical reality of rape in that victims do not tend to ‘fight back’. Instead, they suffer an ‘involuntary paralysis’ [2], a‘common instinctive reaction, it’s a form of psychological self-protection’[3].The primary consequence of this medical inaccuracy is unlikely acquittals,hence in March 2019, a father was found not guilty of raping his 19-year-old daughter because she failed to respond to his advances with force [4], even though the court had held that the sex was non-consensual and that the daughter had been sexually abused as a child. This case alone has prompted some to question Japan’s rape law, triggering protests.

Attitudes

Despite the fact this law was drafted over a century ago, the attitudes of many Japanese citizens surrounding rape have changed very little. Sexual desire is perceived as ‘unfeminine’ [Hiroko Goto] [5] meaning that for many, as Japanese lawyer Murata comments, ‘no means yes’, and only physical displays of refusal suffice to usurp a man’s belief in a woman’s agreement to sex. These attitudes are by no means exclusive to men with many women agreeing that it is their duty to physically ward of male advances. Sugita Mio, a female politician in Japan illustrates this view, commenting that ‘if you’re working in society you’ll be approached by people you don’t like, being able to properly turn down those advances is one of [a woman’s] skills’, further noting that ‘that’s just how [society] is’. This may explain why the #MeToo failed to properly take off inJapan – Japanese women simply did not see it as an issue that concerned them,which is also perhaps why only 60% of Japanese women fail to report sexual harassment in the work place, despite the fact it occurs to 42.5% [6] of them – it has been normalised.

Criminal procedure

The criminal procedure surrounding rape are similarly outdated. Female police officers comprise a mere 8% [7] of the police force meaning that women are deterred from reporting their attackers for fear of embarrassing themselves or a policeman not believing them. However, even if a rape victim overcomes this hurdle, their situation is only worsened by the fact that they are often required to re-enact their alleged rape using life size dolls while they are photographed. This humiliation has now come to be referred to as the ‘second rape’ due to its dire impact on the mental health of many victims, the majority of whom suffer from some form of mental illness post-attack. Given this reality, it is unsurprising that only 2.8% [8] of sexual assault victims report the incident to the police.

This is only exacerbated by the fact that rape-kits, which serve as valuable evidence in rape trials, provided they are used very quickly after the attack has taken place, are only available in 14/47[9] of Japan’s regions. Furthermore, while there is a rape crisis centre in every region, by global standards, there should be 635 [10] (1 per 200,000 people) causing existing centres to be incredibly over-stretched. This has forced many to require any callers seeking advice to have an interview with a staff member. This has forced many to require any callers seeking advice to have an interview with a staff member, which again deters women from seeking advice since they are worried about being shamed or are simply too afraid to leave their own homes for fear of a repeat attack.The corollary of this is that vulnerable women are not receiving the help they desperately need.

Reform

In the past few years there has undoubtedly been some progress for Japanese women regarding rape law. In 2016, Shiori Ito, a freelance journalist, broke the silence typically surrounding rape and went public about her attack and rape by a high-profile figure with links to the Japanese Prime Minister, Shinzo Abe. This not only triggered protests calling for legal reform, but also spawned support groups such as Spring,whose head, and a fellow victim of sexual assault, Jun Yamamoto argues ‘the media are reporting about the verdicts and the protests. The increase in the number of people who think that this situation is wrong will give strength to those who cannot speak of their own suffering’ [11]. There have also been advances in legislation. In 2017 the law on rape was reformed to include oral sex meaning men could be raped for the first time,while also increasing the sentence for rape from 3- to 5 years, demonstrating the severity of the crime and the government’s improved resolve in tackling it to the public.

However, there is still a long way to go. Most importantly, the law needs to incorporate the concept of consent to truly reflect modern day views on sexuality and the medical reality that rape victims do not ‘fightback’. There are other policy-based changes that need implementing, funding, and support from the government. At present,although the Japanese government established a national rape fund to support victims of abuse, pledging £1 million for this purpose, this is 40 times less than the amount contributed to by the British government to an equivalent fund[12], highlighting how so much more can be done in Japan for the provision of rape victims. If this money was increased, more crisis centres fully stocked with rape kits could be built, 24-hour hotlines [13] staffed by women where victims can access free, confidential advice without having to be interviewed could be set up. Furthermore, re-enactment in police centres using dolls should be banned and there should be a recruitment drive for female police officers in tandem with special rape training for existing officers. These changes are not radical, but necessary in order to ensure the safety and wellbeing of women in Japan. Perhaps if these changes were made, 62% of rape victims would no longer keep their attack to themselves [14].

References

[1] Seig,Linda, Outrage at acquittals in rape cases sparks calls to fix Japanese law,Reuters, 10/06/19

[2] Oppenheim,Maya, Calls for Japan rape law to be reformed after recent acquittals sparkoutrage, The Independent, 12/06/19

[3] Seig,Linda, Outrage at acquittals in rape cases sparks calls to fix Japanese law,Reuters 10/06/19

[4] Oppenheim,Maya, Calls for Japan rape law to be reformed after recent acquittals sparkoutrage, The Independent, 12/06/19

[5] BBC,Japan’s Secret Shame, 2019

[6] Oppenheim,Maya, Calls for Japan rape law to be reformed after recent acquittals sparkoutrage, The Independent,  12/06/19

[7] BBC,Japan’s Secret Shame, 2018

[8] Oppenheim,Maya, Calls for Japan rape law to be reformed after recent acquittals sparkoutrage, The Independent, 12/06/19

[9] BBC, Japan’sSecret Shame, 2018

[10] BBC,Japan’s Secret Shame, 2018

[11] Seig,Linda, Outrage at acquittals in rape cases sparks calls to fix Japanese law,Reuters, 10/06/19

[12] BBC,Japan’s Secret Shame, 2018

[13] Kasia,Teppei, Japan’s Not-So-Secret Shame, Al Jazeera, 29/07/18

[14] Oppenheim, Maya, Calls for Japan rape law to bereformed after recent acquittals spark outrage, The Independent, 12/06/19