Japan's Rape Laws: Fundamentally Flawed

Japan’s Rape Laws: Fundamentally Flawed

Daisy Whymark

The state of Japan’s rape laws is derisory. It fails to protect victims, and reflects deeply-entrenched societal values regarding female subordination. Although updated in 2017, the law remains outdated, failing to tackle the abuse that goes unreported and unprosecuted. The law is antiquated, and in dire need of reform.

The most striking element of Japanese rape law is that consent does not feature.1 In contrast to the UK’s Sexual Offences Act 2003, where consent forms the backbone for not only rape but also other sexual offences, it is a concept alien to Japanese rape law.2 This has to be qualified, however. It is acknowledged that Japan sets the age of consent at 13: the youngest of any developed nation.3 The relevance of the lack of the concept of consent is in determining a desire to have sexual intercourse above this age. Consent it not required: instead, following the 1907 law which is still in effect today, the prosecution must prove that violence or intimidation was used, which left the victim “incapable of resisting”.4

Such a conception of rape limits the autonomy of victims, as they are not required to say yes, but must be proven to have said no in the most extreme of terms. This reflects a traditional 20th century attitude that it is a woman’s duty to protect and even fight for her chastity,

1 Kemp, ‘Japanese Rape Law – There’s Still Work to be Done’ (Cambridge University Law Society, 2019) https://www.culs.org.uk/per-incuriam/japanese-rapelaw-theres-still-work-to-be-done 2 Sexual Offences Act 2003, s.74 3 Age of Consent, ‘Age of Consent in Japan’ https://www.ageofconsent.net/world/japan#:~:text= The%20Age%20of%20Consent%20in,to%20participa tion%20in%20sexual%20activity. 4 Penal Code 1907, Chapter 22, Article 177 deriving from the notion of self-control (gaman).5

The 2017 Penal Code updated elements of the 1907 law, removing the limitation that only women can be victims of rape.6 This is a satisfactory change, as although rape remains a gendered crime across the globe, recognizing that it can occur to and be perpetrated by all is a step towards normalizing reporting.7 But, the Penal Code also altered the name of the crime from the “crime of rape” to the “crime of forceable sexual intercourse”.8 This weakens the crime socially, as the power of naming is substantial. Rape labels an action that of abuse, rather than merely violence: ‘[n]ames provide social definition, make visible what is invisible, define as unacceptable what was accepted; make sayable what was unspeakable’.9 This name-change is not conducive to the social change that needs to occur in order to tackle rape.

Underlying Japan’s rape laws is the entrenched belief in the distinction between public and private spheres of life. The state is not considered to be valid in intervening in the lives of its citizens, reflected in the saying ‘there is no need for law in the family’: ‘ho wa uchi no naka ni wa iranai’.

10 The arms of the state display a similar attitude, with police having been quoted as stating that ‘fufugenka wa inu mo kuwanai’: ‘even dogs are disinterested in domestic disputes’.11 The public-private distinction is often advanced in Western debates, but it ultimately reveals itself to be a liberal fantasy predicated on androcentric

5 Burns and Edwards, Sexual Violence and the Law in Japan, 2005 (Taylor and Francis) 6 Penal Code 2017 7 Mardorossian, Framing the rape victim: gender and agency reconsidered, 1966 (Rutgers University Press) 8 Penal Code 2017 9 Burns and Edwards, Sexual Violence and the Law in Japan, 2005 (Taylor and Francis)

10 Id 11 Id