A symbolic step forward

By neglecting the importance of consent, proposed changes to Japan’s rape law will be mostly symbolic, yet there is still reason for cautious optimism, Yumi Suzuki writes.

The recent proposal by the Abe administration to revise Japan’s existing rape law is long overdue. The existing criminal code fails to reflect present-day Japanese society and attitudes toward rape, which have changed dramatically since the promulgation of the penal code in 1907. The Ministry of Japan is finally ready to amend the archaic and prejudicial definition of and punishment for rape. If the Diet approves the changes, the minimum sentence for rape will increase from three years to five years, and the criminal acts eligible for this sanction will be widened to include forced vaginal, anal, and oral penetration. Under the proposed revisions, the prosecution of rape also will be initiated without needing victims to press charges.

At a first glance, these changes appear promising to victims, citizens in general, and legal professionals for a few reasons. Victims may obtain some sense of justice with the increased punishment, and citizens may view rape as serious a crime as robbery, which carries a minimum five-year sentence. Legal professionals may focus on securing and presenting evidence in courts without victim cooperation. These changes may pave the way for more comprehensive legal changes that bring Japan’s rape law to an international standard – or at least to a level comparable with US laws.

To understand exactly how much progress Japan has made with this proposed revision, it is helpful to look at the example of the United States. The 1970s rape law reform in the United States was intended to increase reporting, arrest, and prosecution rates of rape in order to improve the treatment of rape victims within the criminal justice system. Instead, it is better-known as a symbolic act which positively changed victims’ and citizens’ attitudes toward rape.

The reform, which not only focused on a widened definition of rape encompassing various acts of unwanted penetration, but also involved the elimination of corroboration and so-called resistance requirements where victims were expected to show they had resisted rape, as well as disuse of the victim’s prior sexual history, was considered a modest legal victory.

More importantly, the reform is believed to have sent a subtle message about the serious and criminal nature of rape to the criminal justice community and the general public.

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Fast forward to 2017, and American society appears to have accepted the reality that men can also be rape victims, the existence of drug-facilitated rape, and the importance of consent. This can be seen in America’s public debate on improving the way the criminal justice system responds to victims and to the circumstances of rape that may not be “typical” in the eyes of many.

In Japan’s case, what is still lacking in the proposed revisions is a key ingredient in addressing and preventing rape: consent. Most rape victims do not show signs of resistance or injury, as they often know the perpetrators, who in turn use psychological coercion to subdue their victims. Renaming rape to ‘forced sexual intercourse’ without stipulating that victims do not need to show signs of force or resistance, namely injury, will be unlikely to change victims’ reporting patterns to the police or their disclosure to others of the incident.

Any additional amendments to Japan’s rape law would greatly benefit from the specification that lack of consent is a key part of psychologically coerced penetration. The notion of lack of consent should also cover situations of drug-facilitated rape where incapacitated victims are unable to give consent.

While the proposed revisions to Japan’s rape law appear to have generated a meaningful discussion in the public and in the legal community, a less serious, yet persistently widespread form of unwanted sexual touch and harassment still needs to be addressed. The incidents of public molestation – chikan – which occur particularly on crowded trains, have been so widespread and relentless that many Japanese girls and women treat these incidents as a public nuisance and do not necessarily report them to authorities. The treatment of public sexual molestation as simply an inconvenience, with no criminal implication, has a basis more in culture than in the law.

The proposed legal reform may awaken the citizens of Japan to engage in a public dialogue to address cultural obstacles surrounding rape. It will hopefully lead to rape being seen as a criminal act, requiring investigation and prosecution as one of the most serious offences, and a higher reporting rate for rape and other sex offences. The maintenance of social order and harmony should not prevent victims from reporting rape and other sex offences to police, nor should it have them labelled as family and social outcasts for going against the cultural tradition of silent suffering. Although the reform may merely be symbolic, it may well be a timely judicial and social reform deserving of cautious optimism for paving the way for further comprehensive rape law reform in Japan.