Legal Reforms After a Century of Immobility
The 2017 Revision of Sex Crimes in the Penal Code of Japan
Abstract
This article has analysed the responsiveness of the Japanese criminal justice system in the face of sustained international and domestic criticism concerning its policy on sex crimes and its overly lenient treatment of perpetrators of sexual offences. On the international level, human rights bodies such as the UN Committee on the Elimination of Discrimination against Women (2003; 2009; 2016), the UN Committee on the Rights of the Child (2004; 2010), and the UN Human Rights Committee (2008; 2014) have repeatedly reprimanded the Japanese government for failing to fulfil its obligation as a State Party to bring its policies in line with the respective treaties. Domestically, the outdated nature of Japan’s sex crime laws has long been the subject of debate among lawyers, victim support groups, and academics. Furthermore, a re-examination of the Penal Code regulations for sexual offences had already been requested in the Third Basic Plan for Gender Equality from 2010, as well as in the supplementary resolutions of the House of Representatives and the House of Councillors at the time of the 2004 and 2010 Penal Code revisions.
Finally, a substantive legal response to this long-standing criticism came in June 2017, when both houses of Japan’s parliament approved a bill aimed at revising the century-old sex crime laws. To what extent did the 2017 Penal Code revision on sex crimes address the criticisms by lawyers, academics, and international human rights bodies? In evaluating the responsiveness of the Japanese criminal justice system, it must be said that the 2017 Penal Code revision was rather close to the bare minimum. Broadening the definition of rape to include male victims and raising its statutory penalty, abolishing the requirement of a victim complaint to enable prosecution, and establishing a new crime for sexual abuse by custodians are all important reforms, but they do not add up to the comprehensive and nuanced approach to sexual violence that was sought. The 2017 Penal Code revision failed to meet the then already 15-year-old demands of raising the age of consent or explicitly criminalizing marital rape, let alone engage with the recent wave of legal reforms that places consent at the centre of sex crime laws.
However, the overall assessment need not be so bleak. Hopeful signs that the Japanese criminal justice system is moving towards one that better reflects the reality of sexual violence and that meets the needs of victims are also to be found. The fact that in the wake of the Flower Demo movement three out of four verdicts from the March 2019 string of acquittals in sex crimes cases were overturned on appeal to the High Courts and replaced with a verdict of guilty suggests that the criminal justice system is coming to reject the traditionally narrow interpretation of sex crimes and the underlying facts, consistent with changing public opinion. Furthermore, the inclusion of activist-survivor Jun YAMAMOTO on an investigative committee and the increased participation of practitioners in the discussions on the necessity of additional legal reforms is at least indicative of the intention of the Ministry of Justice to have the legal framework reflect the reality of sex crime cases. As a result, the tentative proposal released by the Ministry of Justice at the end of October 2022 seems to have taken to heart the criticisms made after the 2017 revision, although the concept of consent has yet to gain ground. Taking these and other recent developments into account, this article concludes that the responsiveness of the Japanese criminal justice system has taken a turn for the better.
